A police officer’s claim that a suspected drunk driver refused a blood or breath test, without any additional details, was insufficient to justify a suspension of the driver’s license, Colorado’s second-highest court ruled last week.

Under the state’s “express consent law,” motorists automatically give their consent to a chemical test whenever law enforcement has probable cause to believe someone is driving under the influence. If a driver refuses, the state can revoke their license and prosecutors may use evidence of the refusal at a criminal trial.

In the case of Maggie Jansma, the Division of Motor Vehicles suspended her license after reviewing a police document in which an officer noted Jansma “refused” a blood or breath test, with no further explanation. Jansma then challenged that decision before a three-judge panel of the Court of Appeals, focusing on the sole piece of evidence against her.

“Does a police officer’s statement that a legal standard was met, alone, sufficiently support a factual finding that the officer had probable cause to revoke a driver’s license?” wrote Judge David Furman in the June 29 opinion. “In this case, we conclude that it does not.”

Jansma argued there would be no point in holding a driver license revocation hearing if the DMV simply accepts an officer’s claim of refusal with no additional facts. The government countered that there was “no logical reason” for Jansma’s arresting officer to falsely claim she refused a test.

In January 2022, Jansma was involved in a car accident in Loveland. Police arrested her on suspicion of driving under the influence.

Two weeks later, Officer Erik Contino filled out paperwork for Jansma’s driver license suspension and sent it to the DMV. Contino checked boxes indicating that at the time of Jansma’s arrest, her eyes were “bloodshot” and “watery,” her speech was “slurred” and her balance “unsteady,” plus there was “odor” of alcohol. He also checked the box indicating Jansma “refused” a chemical test.

However, in the section marked “what did officer see or hear” during the refusal, Contino wrote nothing.

Case: Jansma v. Colorado Department of Revenue

Decided: June 29, 2023

Jurisdiction: Larimer County

Ruling: 3-0

Judges: David Furman (author)

Ted C. Tow III

Sueanna P. Johnson

Background: ‘The law is the law’: Conifer students experience real appellate cases, quiz judges

A hearing officer agreed Contino’s report was enough to prove Jansma refused a chemical test and her license should be revoked. A Larimer County judge upheld that conclusion. The Court of Appeals, as part of its “Courts in the Community” initiative, then heard oral arguments in Jansma’s case earlier this year at Conifer High School.

“I took this appeal because, frankly, I think that if just checking the box becomes sufficient, I think that will be the death knell for any due process in these proceedings,” said attorney Sarah Schielke, arguing for Jansma. “It will be just accepting that the police officer makes a legal determination as to refusal.”

The government, in turn, blamed Jansma for not doing more to challenge Contino’s statement.

“If Ms. Jansma has concerns about the accuracy of the Affidavit, she could have called Officer Contino as a witness and questioned him about whether he had asked her to take a chemical test and what she did in response,” wrote Assistant Attorney General Danny Rheiner.

The appellate panel sided with Jansma, explaining the government has the burden of proof to justify a suspension. While there was some description of Jansma’s intoxication, the report contained no supporting evidence of her refusal to take a test.

“(W)e cannot uphold revocation based only on the transporting officer’s bare assertion that Jansma refused testing in the absence of factual detail,” wrote Furman.

The case is Jansma v. Colorado Department of Revenue.