A DRIVING ISSUE

A WAITRESS IS CLEARED OF A DUI CHARGE BUT STILL LOSES HER LICENSE.

An Aurora waitress was on a Rocky Mountain high last September 5, five days before her marriage, until a minor fender-bender resulted in her losing her driver's license for drunken driving--despite having had drunken-driving charges against her dismissed in court.

Terry Faust's situation isn't quite the same as singer John Denver's battle against drunken-driving charges. But it raises similar questions about the independence of the state's Motor Vehicle Division.

Denver's attorney, Walter Gerash, has convinced at least one judge that having one's license revoked by the Motor Vehicle Division after a DUI stop and then having to go to court on a DUI charge constitutes double jeopardy. Drunken drivers and attorneys around the country are eagerly awaiting the final results of Denver's court challenge. Faust's attorney, Richard Gross, is one of them, even though his client's situation doesn't exactly parallel Denver's.

"One government agency has said she's not guilty, and another says she is guilty--all on the same evidence," Gross says. State senator Richard Mutzebaugh, a Republican from Highlands Ranch who chairs the Senate transportation committee, sympathizes with Faust but says that won't get her license back.

"It doesn't seem fair," Mutzebaugh says when told of Faust's situation, "but the law is the law. Until we change this statute, she still gets treated separately in two kinds of cases, one dealing with her driver's license and one dealing with the violation of the traffic code. To tell you the truth, I don't know why we have it separate and why we have it written the way we do."

The chain of events started when Faust, returning from a company picnic in Evergreen with her husband-to-be, got into a minor accident in the parking lot of an Evergreen bar. She says she hadn't been drinking at the time. After assessing the damages, Faust says, she suggested to the driver that they handle their own costs for repairs. In her opinion, she says, they were both at fault.

"I was backing up, and I sideswiped him," she says. "I'm talking minor damage. I said, `Look, sir, you pulled in the wrong way. You fix yours, I'll fix mine, and have a good day.' I wasn't leaving because I didn't have insurance, and I wasn't leaving because I had been drinking. I just felt that it was as much his fault as it was my fault, and I wasn't going to hassle my insurance."

Apparently the driver didn't like her suggestion: Faust says she found out later that he had hailed police. Three hours after the accident, police stopped her as she was walking out of a bar in Morrison, where she says she did have some drinks with her fiance.

Police asked her to submit to a breath test. When she tested over the legal limit of .10, she was hauled off to detox and her license was yanked. According to police records, Faust's blood alcohol content was .19.

But when Faust went to Jefferson County traffic court in December, District Attorney Michael Bellipani dropped the DUI charge for lack of evidence. Faust had been ticketed about three hours after the accident; there was no proof that she had been driving drunk at that time. She pled guilty to careless driving and failure to yield.

In the meantime, however, Faust made a crucial error. State law allows those who score above .10 seven days to request a Motor Vehicle Division hearing on whether they should have their licenses suspended. Most drivers who score above that mark don't request a hearing, because they know they can't win.

"Most people who get DUIs are guilty," says Gross, "and there's very few who aren't guilty who fail to request a hearing who were found to be subsequently innocent. It's rare, very rare."

But Faust waited until after her wedding and honeymoon to request a hearing--and that was after the seven-day time limit. The only excuses the department would accept for waiving the time limit were incarceration or hospitalization.

In hindsight, Faust realizes her DUI should have gotten top priority over her wedding plans. After all, it was her second stop for allegedly drunken driving in five years, which meant, she says, that this time she would forfeit her license for a year. But she says she wanted to put everything, including her stay in the detox unit that cost her $300, behind her. She decided she would handle everything after her wedding.

"I was so upset," Faust recalls. "I didn't request a hearing because I said to myself--and Scott told me--`Just put everything away, and we'll deal with this all when we come back.'"

When she finally requested a hearing, the seven-day limit had passed, and the MVD turned her down. At this point, says her attorney, a lawsuit against the MVD is her only recourse, and he's not optimistic.

"The chances of success are minimal," says Gross. "The way the law is written, I can see a judge very easily letting the Department of Motor Vehicles win. The judge would have to go out on a limb to let us win."

Gross says he may have to wait for a ruling in John Denver's case to see what his own client's chances might be. "That would be a real break from what's happened in the past, if John Denver were to win that case," he says.

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