1 Colo. Code Regs. § 211-2-5

Current through Register Vol. 47, No. 18, September 25, 2024

Rule 1 CCR 211-2-5 - SUBPOENAS

Basis and Purpose: The statutory authority for this rule includes, but is not limited to, §§ 24-1-107, 24-1-117, 24-35-103, 24-35-116, 42-1-102(24), 42-1-201, 42-1-204, 42-2-126, and more generally, Article 1 Parts 1 and 2, Article 2 Parts 1 through 5, and Article 7 of Title 42, C.R.S. The purpose of this rule is to describe the procedure for requesting, issuing, serving, enforcing, and opposing subpoenas in administrative proceedings before the Division regarding driver's licenses or state issued identification cards.

A. Respondent in a hearing before the Division may request subpoenas to compel the presence of witnesses or production of documents necessary for the hearing. Subpoenas of witnesses and documents must directly relate to the subject matter of the hearing and will not be issued to further the discovery needs of the Respondent in other proceedings.

B. All subpoena requests must be delivered in person, by mail, or by email to the main Division office.

C. All subpoena requests must be made on a "Request for Subpoena" form authorized and provided by the Division. No subpoena will be issued unless the request contains the following information:

1. Name of Respondent;

2. Case number;

3. Date of hearing;

4. Location of hearing, or telephone number for telephone check-in;

5. Time of hearing;

6. Name of witness to be subpoenaed; and

7. Address of witness (home or business).

D. A request for a subpoena duces tecum must specifically identify each document to be produced.

E. Any subpoena (excluding that for the officer who signed the Affidavit and Notice of Revocation for hearings under § 42-2-126, C.R.S.) must also include a specific and detailed statement attached to the request form that indicates the following:

1. The nature of the expected testimony or evidence;

2. The reasons the testimony or evidence is relevant necessary, and not cumulative to other evidence;

3. The reasons why the production of the evidence is not unduly burdensome on the entity or witness subpoenaed;

4. The reasons why compliance with the subpoena will not unreasonably delay or prolong the proceedings; and

5. That the evidence sought is not otherwise available to the Hearing Officer.

F. When multiple witnesses or documents are requested for a single hearing, the supporting statements must clearly identify the reason each witness or document is necessary, and the reason the evidence sought is not cumulative.

G. Every request for a subpoena (excluding that for the officer who signed the Affidavit and Notice of Revocation for hearings under § 42-2-126, C.R.S.) shall be signed by the Respondent or the Respondent's attorney. This signature constitutes an affirmation that the request complies with C.R.C.P. 45. This signature also certifies that to the best of the signer's knowledge, information, and belief the request is consistent with these Rules, warranted by the law, not made for any improper purpose, and will not be unreasonable, unduly burdensome or expensive. Any unsigned request will be denied.

1. Incorporation by Reference. C.R.C.P. 45 incorporated by reference in Rule 5(G) includes only the version that was in effect as of July 2023, and does not include any later amendments or editions. C.R.C.P. 45 is available for public inspection during regular business hours at the Office of the Hearings Division of the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. C.R.C.P. 45 is also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

H. Issuance

1. A subpoena will be issued only upon a determination by the reviewing Hearing Officer that:

a. The information to be obtained appears to be relevant and necessary to the issues involved in the hearing, and is not cumulative;

b. Such discovery shall not in any way unreasonably delay or prolong the proceedings;

c. The subpoena can be served within the time period established by rule or statute;

d. The information sought can reasonably be provided by the date required on the subpoena; and

e. The information requested is not otherwise attainable by the date set for the hearing.

2. If the statement in support of a subpoena request is insufficient to meet the criteria specified by this Rule, it shall be returned to the requesting party for revision.

3. If the reviewing Hearing Officer denies issuance of the subpoena, or alters the subpoena in any material way, specific findings and reasons for such denial or alteration must be made on the record, or by written order incorporated into the record. This review process may include communication with the requesting party.

4. When expert testimony or documents are requested by subpoena, any such expert shall be entitled to reasonable fees for compliance with the request. The Respondent shall have the burden of paying such fees within 48 hours of service of the subpoena. If the amount of the fees is in dispute, the reviewing Hearing Officer shall hear the issue and make a final determination.

I. Service

1. Service of the subpoena is the duty of the party requesting the subpoena. Service shall be made pursuant to the requirements of C.R.C.P. 45(b), or as otherwise set forth in these Rules.

2. Witness and mileage fees shall be tendered at the time of service consistent with C.R.C.P. 45(b), except as otherwise set forth in these Rules.

a. Incorporation by Reference. C.R.C.P. 45(b) incorporated by reference in Rules 5(I)(1) and (2) includes only the version that was in effect as of July 2023, and does not include any later amendments or editions. C.R.C.P. 45(b) is available for public inspection during regular business hours at the Office of the Hearings Division of the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. C.R.C.P. 45(b) is also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

3. For cases under §§ 42-2-126 and 42-2-127.7, C.R.S., subpoenas for law enforcement officers must be served at least five (5) calendar days prior to the start date and time of the hearing; all other subpoenas must be served at least 48 hours prior to the hearing.

4. Proof of Service is acceptable if the form incorporated within the subpoena issued by the Hearing Officer is fully completed, or an affidavit containing that same information and the case number, time, date, and location of the hearing is provided. Any affidavit of service must contain sufficient information, including the name and contact information for the witness, to match it to the corresponding subpoena.

J. Enforcement of Subpoenas

1. Quash by Request Prior to Hearing

a. Any subpoenaed witness, entity, or custodian of documents may request that a subpoena be quashed. Any request shall be treated as a motion to quash.

b. A motion to quash may be granted if the reviewing Hearing Officer finds that, contrary to the Respondent's statements, compliance would be unduly burdensome or impracticable, unreasonably expensive, or require disclosure of privileged or other protected materials.

c. If a motion to quash is granted, the witness, entity, or custodian of documents may be entitled to reimbursement from the Respondent for any reasonable attorney fees or costs associated with the motion to quash.

d. If a motion to quash is denied, but the reviewing Hearing Officer finds that compliance with the subpoena will be unreasonably expensive, the Respondent may be ordered to pay the costs of production.

2. Dismissal of Case at Hearing

a. If the Hearing Officer deems that the non-appearance of a witness and/or failure to produce documents substantially impairs the right of the Respondent to present a defense, and that the subpoena was properly served, the Hearing Officer shall have the authority to dismiss the case with prejudice.

b. Failure of the police officer who signed the Affidavit and Notice of Revocation pursuant to § 42-2-126, C.R.S. to appear after proper service of the subpoena, for reasons other than events authorized by statute, shall result in dismissal of the case with prejudice.

3. Quash by Hearing Officer at Hearing

a. If a properly served witness (including law enforcement officer(s) who did not sign the Affidavit and Notice of Revocation pursuant to § 42-2-126, C.R.S.) fails to appear or to provide required documentation, the presiding Hearing Officer shall require an offer of proof from the Respondent as to the specific nature, content, and relevance of the expected testimony or documentation.

b. If the presiding Hearing Officer finds that the appearance of the subpoenaed witness, and/or production of documents, would not provide relevant and necessary information, or that the evidence would be needlessly cumulative, the Hearing Officer may quash the subpoena. NOTE: The reviewing Hearing Officer's determination to issue a subpoena is not binding upon the presiding Hearing Officer and does not preempt their authority to assess the propriety of enforcing the subpoena.

4. Reschedule by Hearing Officer at Hearing

a. If a witness fails to appear after proper service of a subpoena the presiding Hearing Officer may, if practicable and necessary, seek to reschedule the hearing to allow the Respondent additional opportunity to have the witness appear. NOTE: Rescheduling for this limited purpose does not waive jurisdictional limits.

1 CCR 211-2-5

46 CR 20, October 25, 2023, effective 11/29/2023