Aspen man petitions court to reverse license revocation | AspenTimes.com

Aspen man petitions court to reverse license revocation

Andre Salvail
The Aspen Times

An Aspen resident has filed a petition in Pitkin County District Court asking for a reversal of a recent state Division of Motor Vehicles decision to revoke his license.

The petition, filed Monday by Boulder attorney Franz P. Frechette on behalf of resident David B. Frank, alleges that the division erred in determining that Frank “refused to take or cooperate in the completion of a breath test” following a Sept. 28 traffic stop by the Colorado State Patrol in Garfield County.

Frank, according to the petition, was pulled over by Trooper Kimberly Jenkins after he allegedly failed to move to a different lane as she was conducting a traffic stop of another motorist.

According to AAA Colorado, state law requires drivers approaching stationary emergency vehicles that are displaying flashing lights — including law enforcement vehicles and tow trucks — to vacate the lane closest to the emergency “if safe and possible to do so.”

Frank was charged with two traffic violations: failure to yield and careless driving, the petition says. He also is “alleged to have unlawfully refused” a request by the state trooper for a blood test.

Jenkins, the petition states, asked for the blood test on the basis of “an alleged strong odor of marijuana emitting from Mr. Frank’s vehicle” in addition to his “alleged pink and glassy eyelids.”

An officer of the division conducted a license-revocation hearing Nov. 28 and the division incorrectly ruled Nov. 30 that Frank’s refusal to submit to the blood-test request was unlawful, the petition says.

In addition, Frank was denied his right to due process by the division, according to his attorney’s filing.

The petition says that prior to the Nov. 28 hearing, Frank’s legal counsel sent a packet of evidence containing a document, a photograph and a compact-disc video of his encounter with Jenkins to the division, which was received by the division Nov. 24, according to U.S. Postal Service tracking information.

The evidence packet would have allowed Frank to present a defense against Jenkins’ allegations that formed “the purported legal basis of establishing probable cause” authorizing her to invoke state law in requiring Frank to submit to a blood test.

However, the hearing officer claimed to have not received the packet, and added that he conducted “a diligent search of the department, its staff and its mail room” for it, but could not locate it, despite the department’s acknowledgment of having received it.

The division wrongfully concluded that the video “was immaterial and irrelevant” for the hearing, despite legal precedent indicating that “the legality of the initial contact by law enforcement is a legal defense that the driver may raise in defending such an action against (him),” the petition states.

Though the division revoked Frank’s license, it also officially found that Jenkins’ belief that Frank did not perform field sobriety tests in the manner of a sober person “was not supported by the evidence in the record” and also that some tests were improperly administered and evaluated, the filing states.

Frechette could not be reached for comment Tuesday and Wednesday. Due to time constraints, a Division of Motor Vehicles spokesperson could not provide information regarding the issue Wednesday.

andre@aspentimes.com


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