DMV has failed to provide adequate notice of hearing.  It periodically happens that the DMV fails to comply with hearing notice requirements, and thus has failed to acquire personal jurisdiction.  This would be a defense..

        DMV has assessed points or conviction against wrong person.  It periodically happens that when a court certifies a conviction and points to the DMV, the assessment is made against the wrong person.  Usually two persons have the same or similar names, but different dates of birth.  Error may have been made the law enforcement officer issuing the ticket, by a court clerk or by a DMV keypunch operator.  Certified copies of the court file (including the ticket) can be obtained from the originating court, introduced into evidence at DMV hearing.  Misidentification:

1. Deprives the DOR hearing officer of use of the "conviction" or points to support DMV adverse action order (suspension, revocation, denial or habitual offender status), or driver would have meritorious grounds for appeal.  Multiple Colorado cases have been decided regarding improper application of the law, however none have been decided specifically on the issue of misidentification.

2. Will not affect the underlying court proceedings - but, they pertain to someone else.

3. May not be used as a subsequent driving under restraint criminal case jurisdictional attack.

4. May be a defense in a subsequent driving under restraint criminal charge as a collateral attack (DMV order void for lack of personal jurisdiction).  However that is questionable.  DMV has subject matter jurisdiction over license actions and personal jurisdiction is acquired when the notice of hearing is served.  There is no Colorado appellate caselaw on the issue of whether misidentification deprives the DMV of personal jurisdiction to proceed with adverse action.  If not argued at DMV hearing, use of an improper conviction may be considered a mere error in application of the law and denial of criminal case collateral attack.

        Points not identified on traffic infraction penalty assessment.  Periodically a state court or municipal court traffic infraction penalty assessment has been paid by mail or paid at an expedited and simplified traffic violations bureau, and the law enforcement officer failed to provide notice on the traffic infraction penalty notice (ticket) of points for each relevant charge.  Certified copies of the court file (including the ticket) can be obtained from the originating court, introduced into evidence at DMV hearing.  Failure to provide notice of points:

1. Deprives the DOR hearing officer of use of the "conviction" or points to support DMV adverse action order (suspension, revocation, denial or habitual offender status), or driver would have meritorious grounds for appeal.  Three Colorado cases have been decided on point.  

2. Will not affect the underlying court proceedings or plea & payment.

3. May not be used as a subsequent driving under restraint criminal case jurisdictional attack.

4. May not be used as be a defense in a subsequent driving under restraint criminal charge as a collateral attack.  This issue does not rise to:
           DMV order void for lack of personal jurisdiction
           Deprivation of constitutionally protected right

5. This prohibition of usage for DMV adverse action is not applicable if, in the underlying traffic case, the driver appeared in court and entered a guilty plea or was convicted at trial. 

        Municipal court default judgment - defendant failure to appear
        traffic infraction penalty assessment
        Periodically the law enforcement officer issues a traffic infraction penalty notice (ticket) into municipal court, the driver failed to appear in municipal court and default judgment enters. Certified copies of the court file (including the ticket and the court register of action) can be obtained from the originating court, introduced into evidence at DMV hearing.  Municipal court FTA default judgment:

1. Deprives the DOR hearing officer of use of the "conviction" or points to support DMV adverse action order (suspension, revocation, denial or habitual offender status), or driver would have meritorious grounds for appeal.  One Colorado case has been decided on point.  

2. Will not affect the underlying court proceedings or the default judgment.

3. May not be used as a subsequent driving under restraint criminal case jurisdictional attack.

4. May not be used as be a defense in a subsequent driving under restraint criminal charge as a collateral attack.  This issue does not rise to:
           DMV order void for lack of personal jurisdiction
           Deprivation of constitutionally protected right

5. Will not affect the DMV noting the infraction plea on the consumer driving abstract
           insurance rates may increase

6. This prohibition of usage for DMV adverse action is not applicable if, in the underlying traffic case, the driver appeared in court and entered a guilty plea or was convicted at trial.

7. Caveat:  Failure to appear will result in an outstanding judgment warrant fee ($30 in state court) which must be paid before a driver is eligible for license renewal or reinstatement.  OJW hold triggers suspension, is a hold against future licensing and will cause driving under uspension charges to be brought against the driver if he or she operates a motor vehicle before becoming reinstated.

        Penalty assessment notice deficiency.  Periodically a penalty assessment notice fails to comply with the requirements of Colorado state law.  Certified copies of the court file (including the ticket) can be obtained from the originating court, introduced into evidence at DMV hearing.  This has arisen in the context of the PA notice failing to advise the defendant that payment constitutes a guilty plea and will be used as a conviction.   PA notice deficiency:

1. Deprives the DOR hearing officer of use of the "conviction" or points to support DMV adverse action order (suspension, revocation, denial or habitual offender status), or driver would have meritorious grounds for appeal.  One Colorado case has been decided on point.  

2. Will not affect the underlying court proceedings or the judgment - 
           A separate collateral attack would be required in the underlying court proceedings
           If the DOR is unable to use the "conviction" or points for DMV adverse action, in my opinion separate collateral attack would be a waste of time and money unless
                   The driver will incur significant insurance or employment consequences, such as hazmat CDL.
                   DMV uses "convictions" and points for a statutory period of time when issuing DMV adverse action notices (suspension, revocation, denial or habitual offender status) - see Point Structure page.  If the driver has no intent to be a law abiding citizen, but intends to be a "truly dangerous criminal" and anticipates receiving another minor traffic infraction or DUI within the near future, the same issue may arise before expiration of the point suspension period or the period for which revocation, denial or habitual offender status may enter.  If the driver is unable to control his / her behavior, collateral attack in the underlying court proceedings may be worthwhile.

3. May not be used as a subsequent driving under restraint criminal case jurisdictional attack.

4. May be a defense in a subsequent driving under restraint criminal charge as a collateral attack - (inadequate notice reaches constitutional proportions)  However that is questionable - no Colorado cases have been decided whether PA notice deficiency may be used as a collateral attack in a subsequent driving under restraint criminal charge.  If not argued at DMV hearing, use of an improper conviction may be considered a mere error in application of the law and denial of criminal case collateral attack.

5. Will not affect the DMV noting the infraction plea on the consumer driving abstract
           insurance rates may increase

6. This prohibition of usage for DMV adverse action is not applicable if, in the underlying traffic case, the driver appeared in court and entered a guilty plea or was convicted at trial.

        Constitutional deprivation - penalty assessment notice deficiency
        or summons and complaint traffic offense.:
        A penalty assessment notice may be defective to the degree of constitutional proportions, or
        In a traffic offense, misdemeanor traffic offense or misdemeanor offense in a providency hearing under C.R.Crim.P. 11, the court may fail to adequately advise the defendant of his / her constitutional rights
        Whether PA notice, traffic offense, misdemeanor traffic offense or misdemeanor offense this usually arises as failure to advise of the right to counsel, but may be other constitutional rights.  Certified copies of the court file (including the ticket, register of action and transcript of court proceedings) can be obtained from the originating court, introduced into evidence at DMV hearing.  Error of constitutional proportion:

1. Deprives the DOR hearing officer of use of the "conviction" or points to support DMV adverse action order (suspension, revocation, denial or habitual offender status), or driver would have meritorious grounds for appeal.  Multiple Colorado cases have been decided on point.  

2. Will not affect the underlying court proceedings or the judgment - 
           A separate collateral attack would be required in the underlying court proceedings
           If the DOR is unable to use the "conviction" or points for DMV adverse action, in my opinion separate collateral attack would be a waste of time and money unless
                   The driver will incur significant insurance or employment consequences, such as hazmat CDL.
                   DMV uses "convictions" and points for a statutory period of time when issuing DMV adverse action notices (suspension, revocation, denial or habitual offender status) - see Point Structure page.  If the driver has no intent to be a law abiding citizen, but intends to be a "truly dangerous criminal" and anticipates receiving another minor traffic infraction or DUI within the near future, the same issue may arise before expiration of the point suspension period or the period for which revocation, denial or habitual offender status may enter.  If the driver is unable to control his / her behavior, collateral attack in the underlying court proceedings may be worthwhile.

3. May not be used as a subsequent driving under restraint criminal case jurisdictional attack.

4. May be used as a defense in a subsequent driving under restraint criminal charge as a collateral attack - (defect reaching constitutional proportions).  Multiple Colorado cases have been decided on point.

5. Will not affect the DMV noting the infraction or offense plea or conviction on the consumer driving abstract
           Insurance rates may increase

        The logic applied by Colorado appellate courts in this area is somewhat of a maze.  To simplify, each above defense will work in DMV adverse action hearings and appeal to district court should the DOR hearing officer rule against the driver.  Bottom line - except for DMV lack of jurisdiction or deprivation of constitutional rights in the underlying tickets, the arguments will not work as a collateral attack in driving under restraint criminal charges - if you snooze, you lose.  Driving under restraint criminal charges carry mandatory jail and some are felonies carrying penitentiary time.  If you have a license problem and your driver's license is important to you, it's a plan to consult an attorney as quickly as possible.

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