Opinion
No. 78-1204
Decided July 19, 1979.
Finding that certain of driver's traffic offense convictions could not be considered for point assessment purposes, trial court set aside the revocation of his license entered under the habitual offender statute. Department of revenue appealed.
Affirmed
1. AUTOMOBILES — Traffic Conviction — Municipal Summons — Not Usable — Suspension or Revocation — Unless — Points Assessed — Appears — Applicable — — Home Rule City — Without Model Traffic Code. The principle that a traffic conviction obtained by issuance of a municipal traffic summons cannot be used for license suspension or revocation purposes unless the number of points to be assessed clearly appears on the summons is a principle that applies even in home rule cities which have not adopted the Model Traffic Code.
2. Driver — Admitted — Traffic Violations — Without Significance — Three Violations — Not Comply — Statutory Requirements — License Revocation — Properly Vacated. Even though driver admitted the eleven traffic convictions which served as basis for entry of license revocation order, that admission was without significance where three of those convictions could not be used for suspension or revocation purposes because of their failure to meet statutory requirements; hence, trial court properly vacated order revoking driver's license.
Appeal from the District Court of Larimer County, Honorable William F. Dressel, Judge.
G. William Beardslee, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Richard H. Forman, Assistant Attorney General, for defendants-appellants.
The Department of Revenue appeals from a judgment of the trial court which set aside the revocation of the plaintiff's driver's license under the habitual offender statute because certain of plaintiff's convictions could not be considered for point assessment purposes. We affirm.
The plaintiff's license was revoked for five years by defendant's hearing officer, based on a finding that plaintiff had been convicted within a five-year period of eleven moving violations, each of which was subject to an assessment of four or more points. See § 42-2-202(3), and 42-2-203, C.R.S. 1973.
On review, the district court set aside the hearing officer's order because there was no proof that plaintiff was informed about point assessment when he paid three of the tickets. All three of the disputed tickets were issued for violation of the Fort Collins City Code and were paid by plaintiff to a clerk of the City Traffic Violations Bureau. The summons forms contained no information about the points that would be assessed against plaintiff's license, and the trial court found that there was no indication that plaintiff was given notice of the point assessment by either the arresting officer or the court clerk.
The issue presented for review here is very similar to that addressed in Stortz v. Colorado Department of Revenue, 195 Colo. 325, 578 P.2d 229 (1978). In Stortz, a traffic violation conviction was held to be insufficient for the purpose of assessing points against the licensee where the Grand Junction Municipal Court Summons failed to state the number of points which could be assessed upon a plea of guilty. The court determined that the summons was deficient based upon statutory requirements and the requirements of the Model Traffic Code adopted by Grand Junction.
The Department argues that Stortz does not control here because the Fort Collins Municipal Code, in contrast to the Grand Junction Code, does not specifically require advisement about point assessment. Although as the trial court noted, Fort Collins is a home rule city that has not adopted the Model Traffic Code, we conclude that Stortz is nevertheless controlling.
[1] A close reading of the Stortz decision reveals that it is based primarily upon § 42-2-121(3), C.R.S. 1973, rather than the Model Traffic Code. Section 42-2-121(3), C.R.S. 1973, is addressed to point assessment for license suspension and revocation proceedings, stating that "a penalty assessment . . . shall also be considered a conviction if the summons states clearly the points to be assessed for that offense." The court in Stortz characterized this as a "minimum standard of due process" established by the General Assembly and held that it applied to a municipal summons when a fine was paid before the municipal traffic violations bureau. It is this conclusion that determined the outcome of Stortz and is dispositive in the instant case.
"Section 42-2-121(3) specially mandates that in order for a penalty assessment to constitute a conviction for license suspension or revocation purposes, the number of points to be assessed must appear clearly on the summons."
[2] The hearing officer, in order to find that there were 11 four-point violations, had to include the three tickets issued by the Fort Collins Police Department which were paid by plaintiff to the clerk of the traffic violations bureau. There was no showing on the summons as to the number of points to be assessed. The fact that plaintiff admitted the 11 traffic convictions at the revocation hearing is of no significance where three of the eleven did not meet the statutory requirements so that they could be used for suspension or revocation purposes.
The record does not support the finding of the hearing office that plaintiff was a habitual offender. Accordingly, the trial court properly vacated the order revoking plaintiff's driver's license under the Habitual Offenders Statute.
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE VAN CISE dissents.