Colorado DUI Survival Guide

1
HOW CAN YOU DEFEND
DRUNK DRIVERS?
There is no such thing as a “legal technicality.”
Americans are presumed innocent and our Constitution
attempts to protect the innocent from the State. If the
State cannot prove an element of its case, it is not a
technicality.
Rhidian Orr
Often remarks are made indicating that ‘drunk
drivers’ should just be put in jail and that it takes a slimy
lawyer to try to get them off. That reaction is
understandable from a purely emotional standpoint, but
let’s dig a little deeper. The reason we have a judicial
system is to determine if the laws are being followed and
to administer justice. Being innocent until proven guilty
is the foundation of our country. Police officers get paid
to do a job - they arrest people who they suspect of
committing crimes. At that point, the District Attorney
(DA) assumes responsibility. The DA’s job is to
determine if charges should have been filed, whether the
correct charges were filed, and to prosecute the case. If
we stopped there, we would have the equivalent of a
kangaroo court, but we do not.
People accused are entitled by law to have their
day in court. The Defense Attorney is responsible for
providing balance, by fighting the overwhelming power
of the government. There will be a judge who is
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supposed to be neutral - a referee in effect. Then we have
a jury composed of your ‘peers’. That is, the jury should
represent people in the community who are similar to the
accused person.
With these players in place, each has an
individual responsibility and a job to do. The District
Attorney or also known as the Prosecutor wants to
convict and the Defense Attorney must protect his client.
The Defense Attorney demands that all laws and all
procedures are followed. The Defense Attorney ensures
that the rights of the accused are protected. The Defense
Attorney is an advocate, an officer of the court, and a
guardian of justice. Our Founding Fathers felt it was
extremely important that innocent people not be
convicted and this concern lead to the formation of our
current judicial system.
Without the objection of the Defense Attorney,
illegal evidence could and would be introduced. Without
the Defense Attorney, illegal interrogation by the police
would be rampant. Without the Defense Attorney, police
could and would arrest on just a hunch. Without the
Defense Attorney, illegal home searches could and would
take place. Without the Defense Attorney, you could and
would be contacted by the police anytime, anywhere and
for any reason. The Defense Attorney, by doing his job,
is defending the rights of EVERY citizen in the United
States. He is standing for justice and you cannot have
justice only for a certain group of people. Just as our
laws are meant to apply equally to all people -- justice is
meant to apply equally to all people.
3
The next time you say ---“I have a right to speak freely”
“I can read what I want”
“I can walk down the street without the fear being
stopped or harassed by the police”
“My home cannot be searched without a warrant”
“I can worship in any manner I choose” ---Defense Attorneys are helping to protect these
rights for you and for your family every single day. If
you still question this logic, the following poem explains
it most eloquently:
When the Nazis came for the communists,
I remained silent;
I was not a communist.
When they locked up the social democrats,
I remained silent;
I was not a social democrat.
When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.
When they came for the Jews,
I did not speak out;
I was not a Jew.
When they came for me,
There was no one left to speak out.
PASTOR MARTIN NIEMOLLER
4
5
WHAT IS THIS BOOK
ABOUT AND WHY SHOULD I
READ IT?
Justice cannot be for one side alone,
but must be for both.
ELEANOR ROOSEVELT
DUI has become a political crime and even
though advocacy groups will not admit it, we are quickly
moving towards a zero tolerance for alcohol. At one
point, the legal limit for driving after drinking was .15
grams of alcohol per 100 milliliters of blood or 210 liters
of breath. Then concerned parties got together and, with
no empirical research, and decided that .10 was a more
appropriate level. This was the ‘legal limit’ for years and
then, at the insistence of activist groups like MADD, the
federal government became involved. It is like a camel
poking his nose under a tent. . . .Before long, the camel
takes over the tent.
Using the same method of blackmail as when seat
belt laws became mandatory, the federal government set
a deadline and told the states they must reduce the level
for DUI to .08 or they would lose their funding for
federal highways. There were no new empirical studies,
no scientific data supporting the change, just tremendous
political pressure from advocacy groups, and it became
law. Now every state has capitulated and .08 is the law
6
of the land. But don’t be fooled, the law of the land is
continuing to change. Colorado is one of several states
that has succumbed to political pressures and reduced the
‘legal limit’ to .05. Additionally, in July 2010, Colorado
changed the laws increasing the minimum-mandatory
amount of jail for multiple alcohol offenses, not just for
DUI. It is very important to understand that there is a
difference in Colorado between an alcohol-related driving
offense and DUI.
We have all heard the national and local media
campaigns on television, on the radio, on billboards and
on display screens over the highway. These ads have
become ingrained in people’s minds; however, these are
not a correct statement of the law. It is a form of
brainwashing and jury manipulation. Most simply, it is a
scare tactic. If a lie is repeated often enough without
being challenged, it is accepted as being true. Here is an
example:
Drunk Driving, Over the limit, Under Arrest – did
you know you can be arrested, charged and convicted of
DUI in Colorado and still be under the “legal” limit? Did
you know that you do not need to be driving a motor
vehicle to be arrested and charged with DUI? Did you
know you can get a DUI on a bicycle?
Regretfully, the police have become indoctrinated
by these campaigns and if you are stopped for any reason
while driving and have an odor of an alcoholic beverage
on your breath or in your car, the odds are that you will
be arrested and charged with a DUI. This is NOT what
the law states, but it is the reality of the world in which
7
we now live. In fact, the head of the International
Association of Chiefs of Police (IACP) has been quoted
saying if you are stopped and smell of alcohol, you will
be arrested! Arrested for smelling like alcohol! This is a
perverse injustice, but you may be forced to argue that
point in court.
Knowing the risk you face, it is in your best
interest to have a good understanding of the law in
Colorado as it applies to DUI, DUID, DWAI, UDD and
Actual Physical Control. Colorado has some of the
strictest laws in our country regarding alcohol and drug
related driving. This is not a legal treatise and should not
be relied upon as legal authority. This book is purposely
written in everyday language so you can quickly use the
information in a practical manner and make informed
decisions.
This book is not intended to be a do-it-yourself
manual. There is just enough information to allow you to
be dangerous to yourself. As they say on television,
“Don’t try this at home.” There is no substitute for
having a competent, experienced and trained DUI
attorney representing you if you are charged with an
alcohol or drug related driving offense.
As you will see in the next pages, we have
invested countless hours traveling throughout the United
States to train in every aspect of DUI defense. We have
each invested well over $100,000 in this training and
continue to invest in our team’s training each year.
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Because of our passion for defending the accused
and protecting everyday people from overzealous cops
and prosecutors, the team at The Orr Law Firm is
nationally recognized as Colorado’s premier DUI defense
firm.
I hope you enjoy the material in this book and
recommend that you contact a skilled DUI Attorney with
your questions. The book was written in a way to allow
you to jump around to topics that interest you and your
family. It does not need to be read cover to cover to be of
benefit.
We hope you enjoy the book.
Rhidian Orr
John Hunsucker
Bruce Edge
9
DO THE GUYS WHO WROTE
THIS BOOK KNOW WHAT
THEY ARE TALKING
ABOUT?
Meet the Authors
It is not the critic who counts,
not the man that points out how the strong man stumbled,
or where the doer of deeds could have done them better.
The credit belongs to the man
who is actually in the arena;
whose face is marred by dust and sweat and blood;
who strives valiantly,
who errs and comes short again and again;
who knows the great enthusiasms,
the great devotions, and spends himself
in a worthy cause.
Who at best, knows in the end
the triumph of high achievement;
and who, at worst, at least fails while daring greatly,
so that his place shall never be with those
cold and timid souls who know neither victory nor defeat.
THEODORE ROOSEVELT
10
Rhidian Orr
Colorado lawyer Rhidian Orr is trained under the
National Highway Safety Administration (NHTSA)
guidelines to administer the Standardized Field Sobriety
Tests (SFSTs) and is trained to the level of Instructor on
the SFSTs. Rhidian has received Drug Recognition
Expert (DRE) overview training, which deals with people
who are charged with driving under the influence or
while impaired due to the consumption of drugs – illegal,
as well as, legal drugs. In addition, Rhidian is trained on
the Intoxilyzer 5000-EN. The Intoxilyzer 5000-EN is the
machine
currently
used
in
every
Colorado
DUI/DWAI/UDD breath case. Rhidian is also trained in
forensic chromatography and this training allows him to
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identify and attack issues with blood tests results used in
DUI cases.
Rhidian is asked on a regular basis to assist and
act as a consultant to other lawyers in finding ways to
attack their DUI cases. Rhidian has taught at the
Colorado Public Defender’s Conference, the University
of Denver, Sturm College of Law and the University of
Colorado Law School on the subject of DUI defense.
Rhidian is a graduate of Gerry Spence’s Trial
Lawyers College, Terry MacCarthy’s Cross Exam
Seminar and dozens of other trainings held throughout
the country by organizations such as the National College
for DUI Defense and the Colorado Criminal Defense Bar.
Rhidian has been chosen as a Rising Star by
Super Lawyers magazine in 2011 and 2012. This
recognition is limited to the top 2.5% of attorneys in the
state that are 40 years of age or younger. This
recognition is based on a survey of every attorney in the
state as well as an exhaustive background check of
training and cases handled by the attorney.
Rhidian Orr is an active member of numerous
defense bars and legal organizations. Rhidian is a
Sustaining Member for the State of Colorado by the
National College for DUI Defense and was recently
named the state delegate for Colorado by the National
College for DUI Defense.
The Orr Law Firm, L.L.C. was founded in 2002
with the primary focus on becoming Colorado’s premier
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DUI Defense Law Firm. Rhidian Orr knows that every
time he accepts a case, he accepts the responsibility for
his client’s future. The outcome of his client’s case can
mean the client’s job, home, family, and freedom. This is
a responsibility that he takes personally and one in which
he reminds himself of every day before he decides to
accept a case.
Rhidian lives in Denver, Colorado, with his wife,
Carin, and their two dogs, Kiowa and Chelsea. He loves
to travel, hike, teach skiing and is a Minnesota Vikings
fanatic.
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BRUCE EDGE
Tulsa lawyer Bruce Edge is 1 of less than 50
attorneys in the United States who are Board Certified in
DUI Defense according to the American Bar Association
guidelines. Bruce considers his law firm to be a boutique
practice—that is, he limits his practice to DUI Defense
and limits the number of cases he accepts; allowing him
to put more time and effort into each case. Not only does
he devote extra time to his cases, he devotes a
tremendous amount of time to study and training on the
issues related to alcohol offenses.
14
Bruce and John are the first and only two
Oklahoma DUI lawyers to ever be selected as a Super
Lawyer. This recognition is limited to the top 5% of
attorneys in the state. This recognition is based on a
survey of every attorney in the state as well as an
exhaustive background check of training and cases
handled by the attorney.
Bruce is trained under the National Highway
Safety Administration (NHTSA) guidelines to administer
the Standardized Field Sobriety Tests (SFSTs) and is an
Instructor of the SFSTs. He is certified by the Oklahoma
Board of Tests (BOT) and the U.S. Department of
Transportation (DOT) to administer the breath test on the
Intoxilyzer 5000 - the only approved machine in
Oklahoma - and he is a Maintenance Specialist for the
machine. He also has been trained to administer tests on
the Intoxilyzer 8000-the newest model breath machine. In
fact, Bruce and John own the only two Intoxilyzer 8000’s
held by attorneys in Oklahoma. There are only 6
attorneys in the U.S. who have one of these machines.
Mr. Edge has been formally trained as a DRE
(Drug Recognition Expert) which deals with people who
are charged with driving under the influence of drugs –
illegal as well as legally obtained drugs. Mr. Edge
recently completed an extensive study involving blood
tests, laboratory procedures and protocols. Bruce owns
the largest collection of Intoxilyzer breath testing
machines and alcohol simulators of any attorney in
Oklahoma.
15
More important than training, Bruce knows how
to win. With winning trial experience involving alcohol
blood test and alcohol death cases, he knows that once he
accepts a case, he has accepted the responsibility for his
clients’ future. It is a heavy responsibility and a
responsibility he takes personally.
Mr. Edge is sought out by other attorneys
throughout the United States to instruct them regarding
DUI defense including a recent session with the National
College for DUI Defense held at Harvard University.
Additionally, other attorneys request that Bruce serve as
an expert witness for their difficult cases.
Bruce’s passions are his work, collecting and
consuming fine wines, cooking, travel and adrenaline
pumping experiences such as race car driving, open
cockpit flying, skydiving, bobsledding and shark diving.
He is a consummate golfer who can break par—on the
first nine.
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JOHN HUNSUCKER
Never give in ---never, never, never, never,
in nothing great or small, large or petty,
never give in except to convictions of honour
and good sense. Never yield to force; never
yield to the apparently overwhelming might
of the enemy.
WINSTON CHURCHILL
17
Located in Oklahoma City, Oklahoma, Mr.
Hunsucker is the lead attorney with the Hunsucker DUI
Defense Firm. John’s practice is focused exclusively on
DUI defense. He handles over 200 DUI cases a year
ranging from first time offenders to DUI felony murder
cases.
John is certified by the National Highway Traffic
Safety Administration in the administration of the
Standardized Field Sobriety Tests (SFSTs). Certified as
an Instructor of the SFSTs, John has taught the SFST
course to attorneys from across the country. In 2004,
John was one of the first attorneys in Oklahoma to
receive formal Drug Recognition Expert (DRE) training
(and is still only one of a few attorneys in Oklahoma to
have this training).
Additionally, John teaches, participates in and/or
attends almost all national, regional and local DUI
seminars and is frequently called upon to teach DUI
seminars by various groups including the Oklahoma Bar
Association, Oklahoma Municipal Judges Association,
and the Oklahoma Criminal Defense Lawyers
Association.
John is certified as an Operator and Maintenance
Specialist of the Intoxilyzer 5000 and is also certified as
an Operator of Oklahoma’s newest machine, the new
Intoxilyzer 8000. John is one of only six attorneys in the
country that actually owns the Intoxilyzer 8000 and has
instructed attorneys in the United States and Canada on
the use and problems of the machine. Additionally, John
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has completed several advanced forensic blood collection
and analysis courses.
Nationally recognized, John has consulted on or
tried DUI/DWI cases in the States of Oklahoma, Texas,
Massachusetts, California, and Connecticut.
Being
considered Oklahoma’s leading DUI attorney, other
attorneys frequently refer their difficult DUI cases to
John or retain his services as co-counsel. John and Bruce
are the first and only DUI attorneys in Oklahoma to be
selected by their peers as Oklahoma Super Lawyers every
year since its inception in Oklahoma. Only the top 5% of
Oklahoma lawyers are selected for their dedication to
their field and excellence in representing their clients.
John has been featured as a legal expert nationally
on CourtTV’s Open Court with Lisa Bloom and
CourtTV’s In Session with Ashleigh Banfield. Locally,
John has been featured on KTOK radio, Channel 4 News,
Channel 5 News, and quoted in the Daily Oklahoman for
his extensive knowledge of DUI law.
John is a Director on the Board of the Oklahoma
Criminal Defense Lawyer’s Association is also a member
of the National Association of Criminal Defense
Lawyers, a Fellow with the Litigation Counsel of
America, and a Member of the National College of DUI
Defense.
As a result of John’s dogged desire to win, he has
accumulated a highly successful track record of
acquittals, dismissals and reductions to non-alcohol
related offenses.
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John lives in Oklahoma City with his wife Lauri
and their three beautiful children, Reigan, Riley, and
Jake. In his free time, he enjoys time with his family,
margaritas, Jimmy Buffett music, traveling, and playing
with his Great Danes.
20
21
THE COPS SAID I DIDN’T
HAVE THE RIGHT TO TALK
TO AN ATTORNEY
Your Constitutional Rights do not apply to a
DUI. DUI is the Exception to the Constitution.
You can only protect your liberties in this world by
protecting the other man's freedom.
You can only be free
if I am free.
CLARENCE DARROW
The Declaration of Independence begins, “We
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable Rights that among these are
Life, Liberty and the Pursuit of Happiness”.
The Constitution does not reserve or limit any of
our rights because of a specific criminal charge. That
means that someone accused of murder is entitled to the
same rights as someone accused of writing a bad check.
These rights apply to YOU as a citizen, not to a specific
charge. This is the way it is ‘supposed to be’, but in the
real world, IT IS NOT TRUE.
Our courts have continuously found ways to limit the
rights of people accused of DUI. You will find the
22
following statements difficult to believe, but they are
true:
•
If you are arrested for DUI and submit to a breath
test or refuse testing, the officer will
IMMEDIATELY seize your driver’s license and
will not return it. This is a form of punishment
and you have not even had an opportunity to talk
with a lawyer, see a judge or post bail. You ARE
PRESUMED GUILTY even though the
Constitution guarantees that you are to be
presumed innocent unless proven otherwise --- A
DUI EXCEPTION.
•
If you are arrested for DUI, you have to fight the
same charge in both the criminal courts and at the
Department of Revenue, Division of Motor
Vehicles. You have the right to contest the
revocation of your driver’s license at the DMV. If
you win that hearing to save your license, you
may think that’s it, because of double jeopardy,
which does not allow the Government to place
you in jeopardy twice for the same offense. Well,
you will still lose your license if you are
criminally convicted of a DUI --- A DUI
EXCEPTION.
•
If you are arrested, the officer will rarely read
your Miranda rights to you, even though he will
continue to question you. You have watched TV
and know this is wrong --- but not for DUIs. The
Court again has found --- A DUI EXCEPTION.
23
•
If you are arrested and taken to jail for DUI, you
should feel confident that you will be allowed to
talk with an attorney prior to questioning or being
asked to give incriminating evidence against
yourself. This is true in all crimes except DUI,
where you do not have the right to speak with an
attorney before deciding whether to take a test or
before deciding whether to answer the officer’s
questions…Again --- A DUI EXCEPTION.
•
If you are arrested and refuse to take a breath test,
Colorado state law says that your refusal can be
admitted to a jury with a presumption of guilt.
But --- what about the 5th Amendment? Don’t I
have the right to remain silent and it cannot be
used against me? --- A DUI EXCEPTION.
•
If you are driving and are stopped at a roadblock,
then questioned about drinking, you might easily
think, “Wait, you have to have a reason to stop
me, this is not legal.” If they were looking for
drugs, or stopping you for any other crime, you
would be correct, but not if it is a DUI checkpoint,
they don’t have to have a reason to stop you --- A
DUI EXCEPTION.
•
In most cases, if the government knowingly
destroys evidence, that evidence cannot be used
against you. In a DUI case, you are asked to take
a breath test.
The machine is capable of
preserving the sample of your breath for
additional testing. The government, for monetary
reasons and knowing there will be no punishment
24
for destroying that evidence has chosen not to
maintain the second sample, yet they are allowed
to introduce the result into evidence --- A DUI
EXCEPTION.
•
If you have a couple of quick drinks and are
stopped within 5-10 minutes after leaving your
house or a meeting, you may not be affected by
the alcohol yet—but you still may be requested to
take a chemical test and as long as it is taken
within 2 hours of your arrest, which is close
enough for the government. It can be used against
you and may show a much higher alcohol level
than what you had while you were actually
driving. In effect, you will be guilty of potentially
committing a crime even though you were not
intoxicated or even impaired when actually
driving. As long as you were impaired or under
the influence within two hours of driving, the
state thinks that is good enough to arrest, charge
and convict you --- A DUI EXCEPTION.
•
The Police must have a search warrant to enter
your home, even for a murder investigation. But
as long as the police can come up with an excuse
or claim that they were concerned about your
safety and wanted to conduct a ‘welfare check’,
they may be allowed to enter your home. A recent
California case allowed the police to enter a home
for a misdemeanor DUI investigation without a
warrant. This was based on a neighbor’s tip; that
is, the police did not even see the person driving,
they just entered the home without a warrant.
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Surely, this would not be allowed. Sorry --- A
DUI EXCEPTION.
•
You have heard of double jeopardy.
The
government will start two proceedings after a DUI
arrest--an administrative proceeding and a
criminal proceeding. You will be required to
respond to both and a loss at either will result in
you losing your privilege to drive. That’s right the government gets two chances to take away
your license and let’s not forget that the burden of
proof at the administrative proceedings is much
different. The state must only prove by a
preponderance of evidence that you refused to
take a test or were above the legal limit to revoke
your driving privileges --- A DUI EXCEPTION.
•
The Constitution requires a warrant before
evidence can be forcefully taken. In a nearby
state, if you are stopped, asked to submit to a
breath test and refuse (remember the 5th
Amendment and your right not to incriminate
yourself), a ‘BATmobile’ will be called to the
scene, you will be strapped down and a police
officer will take your blood on the spot. Yes, this
is happening in America because we have --- A
DUI EXCEPTION.
•
You can be convicted of DUI even if your driving
was not impaired. The law has what we call a
‘per se’ provision. That means if the machine
says you are .08 or more, you are presumed guilty
even if your driving was not affected. The
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government will not have to show your driving
was impaired or you were under the influence,
just that a machine reached a certain number.
You thought you had a right to be presumed
INNOCENT --- A DUI EXCEPTION.
•
The Constitution guarantees an accused the right
to face the accuser in court before a jury. This is
the Right of Confrontation. In DUI cases, the
accuser is most often a machine that makes
mathematical conversions to calculate a number
equivalent to what it thinks is in your blood. This
mathematical conversion is secret because the
manufacturer considers it ‘proprietary.’ Math is
generally considered to be an absolute and no one
owns it, but in DUI cases you will not know the
method used to compute your number because it
is the proprietary property of the manufacturer
and the state does not have to disclose how the
machine reached your BrAC --- A DUI
EXCEPTION.
•
Simply being charged with DUI or DWAI in
Colorado can create a record that cannot be sealed
or expunged. Even if your case is completely
dismissed, you may not be able to seal your
record. That record will follow you forever and
may impact you for the rest of your life. Now,
had you committed a felony like stealing a car or
selling cocaine, you would have the ability to seal
that record. Sound fair? – Not even close, but
another example of --- A DUI EXCEPTION
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You get the idea. We could go on and on listing
the exceptions to the constitution as they relate to DUI
cases. DUI has become a social crime and no politician
will speak against the charge or means of applying
penalties if he wishes to remain in office. We also
continue to move away from the problem-- intoxicated
drivers. The limits are lower and you can be convicted
for a number that has no relationship to your driving
abilities. In Colorado the legal limit for people over 21 is
only .05. Remember that number. When is the last time
you saw that number posted in any media campaign or
drunk driving prevention campaign? Oops, I guess the
state forgot to mention that minor detail, but it doesn’t
matter right, because ignorance is no excuse to the law?
None of this addresses the repeat offenders who
are heavily intoxicated, but it does move towards a new
form of prohibition in our country. One state has lowered
the legal limit to .04 for repeat offenders and it is easy to
envision a nationwide move to lower the number to .04
for all drivers. In addition, DUIs are the ‘cash cow’ for
the court system. Court costs for a first time DUI are
higher than for felony drug possession. There are
numerous reasons your case is being placed on a ‘fast
track.’ There are many powerful forces striving to
increase the number of DUI convictions throughout the
nation --- all the more reason you need an experienced
DUI ATTORNEY.
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IT’S A SIMPLE DUI, WHAT’S
THE BIG DEAL?
Hidden costs of a DUI
We must remember that any oppression,
any injustice, any hatred,
is a wedge designed to attack our civilization.
FRANKLIN D. ROOSEVELT
Being arrested for driving under the influence of
alcohol or drugs (DUI) or being in actual physical control
(APC) of a vehicle while under the influence of alcohol
or drugs in Colorado can intensely impact your life and
the lives of those around you who you love and care
about.
Jail time, loss of your driving privileges,
unbearable automobile insurance premiums, loss of your
job, eviction from housing, and bad credit ratings are but
a few of the problems that can result from a DUI.
Just because the officers took your driver’s
license, your world has changed. Following are a few of
the many things you can no longer do although you have
NOT been convicted of any crime or EVEN appeared in
court:
• Cash a check
• Open a bank account
• Buy car insurance
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• Rent a car
• Rent a hotel room
• Enter a federal building
• Board an airplane
• Obtain certain jobs
Have you had a friend, co-worker, or even worse,
an attorney, tell you a DUI is no big deal? Heaven forbid
that they say you may be able to save money and just plea
it yourself, “The worst that will happen is you will be on
probation for a while, do some classes and pay some
fines.”
Sound familiar?
STOP---BE CAREFUL! Even in court there are
many hidden costs. Following is a list of potential costs
associated with a DUI in Colorado:
•
•
•
•
•
•
•
Up to 1 year in jail
$1,500 fine
Mandatory community service, up to 120
hours
You may be fired from your present job
You may excluded as a candidate for a new
position or job because of an alcohol
conviction
Your credit rating may be downgraded
Most insurance policies will not allow you to
drive a company vehicle with a conviction -your boss will have no choice -- you may be
fired
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•
•
•
•
•
•
•
•
•
•
•
Loss of your driver’s license for up to 1 year
on a first offense and possibly longer if you
have prior offenses
Lifetime loss of a Commercial Driver’s
License (CDL) – for multiple offenses even if
none of them occurred in a commercial
vehicle
Lifetime inability to obtain a Commercial
Driver’s License (CDL)
Loss of a Pilot’s License (15 DAYS to appeal
and various other reporting requirements )
Your auto insurance can increase by
thousands of dollars each year for years to
come and your current carrier may drop your
coverage all together
You may be prevented from entering foreign
countries, including Canada
You may be evicted from many rental units
and others may refuse to allow you to move in
Many future jobs may be closed to you due to
a conviction
Life insurance policies may be up-rated,
canceled, or new coverage denied
Court costs and cost of prosecution in excess
of $2,200
You can be required to install an interlock
device (blow to start your car) in every vehicle
you own or drive for two years or more –
costing you thousands of dollars
These are only the most common hidden costs of
a DUI. Your record will be under scrutiny for years to
come and there easily can be other negative issues caused
32
by a conviction. In Colorado, a DUI or DWAI stays on
your record for life. It cannot be sealed or expunged.
DUI is truly a lifelong offense.
The point we are stressing is that there is no such
thing as a “Simple DUI”. The costs are extreme and you
may continue to pay for years to come and possibly the
rest of your life. If you are in this unfortunate situation,
you should do everything possible to ensure you obtain
the best possible outcome.
33
5 BIG LIES ABOUT DUIs
But they sound so true
Whether you think you can or
whether you think you can’tyou’re right.
Henry Ford
Many people --- attorneys and judges included --have completely wrong attitudes towards a DUI charge.
They are trapped by believing many common LIES about
DUIs. Such LIES can lead to malpractice by the attorney
and dire consequences for the client who suffers due to
the lawyer’s lack of knowledge. The LIES surrounding
DUI are:
1st LIE: A DUI Is A "Simple" Charge
Let us ask:
•
•
•
•
•
•
Is it ‘simple’ to lose your job?
Is it ‘simple’ to not be able to drive?
Is it ‘simple’ to be unable to travel to other
countries?
Is it ‘simple’ to not be able to rent an apartment?
Is it ‘simple’ to be banned for life from having a
Commercial Driver’s License?
Is it ‘simple’ to go to jail?
34
•
•
•
•
•
•
Is it ‘simple’ to have a damaged credit rating?
Is it ‘simple’ to have your insurance increased by
thousands of dollars for years to come?
Is it ‘simple’ to blow to start your vehicle for two
years or more?
Is it ‘simple’ to report to a probation officer every
month for two years?
Is it ‘simple’ to submit to monitored sobriety in
the form of breathalyzer test three times a week or
more for two years?
Is it ‘simple’ to ask for permission to leave the
state for two years and possibly be denied for no
good reason?
This is just the start of some of the hidden costs of a
DUI. This is a charge that keeps on ‘giving’ - it follows
you for your lifetime. There is nothing ‘simple’ about the
types of penalties you can suffer from a ‘simple’ DUI.
Regretfully, far too many untrained attorneys and
general practitioners think of DUIs as ‘simple’ and advise
their clients to quickly enter a plea. A trained, competent
DUI lawyer can help you understand the dangers you
face and do more to protect you.
2nd LIE: A DUI Case Is The Same As Any Other
Criminal Case
If the consequences were not so serious, this LIE
would be humorous. Recently, a judge said “A DUI case
is one of the most difficult cases to try, more difficult than
most murder cases.” In many areas, the courts handle
DUI cases differently from other offenses. For example,
35
in a murder case, the defense lawyer will order an
independent analysis of ballistics tests, blood splatter
patterns, fingerprints, and other physical evidence. This
is not true or possible in drunk driving cases. Colorado
law does not require an officer taking a breath test to
capture some of the breath so it can be analyzed
independently at a later date, even though the machines
can preserve samples at a minimal cost. The U.S.
Supreme Court has said that it is perfectly acceptable that
such critical evidence is destroyed.
In the judicial system, DUIs are ‘special’. Yes,
different rules apply to a DUI case. In a run of the mill
criminal case such as murder or drugs, you would be
allowed to view and test the evidence against you. If
blood was involved, you could also have it tested. In
most DUIs, the evidence consists of a breath test that
produces a number printed on a piece of paper. That’s it
– your ability to drive all depends on a number from a
computer-generated batch!
Attorneys, who are not extensively trained in DUI
defense or, even more disturbing, the ones who just want
to earn a quick buck, do not know how to protect their
clients. These attorneys could face malpractice from
mishandling such cases but even more disturbing—their
clients are the ones who will suffer for years to come.
3rd LIE: If You Were Arrested, You Must Be Guilty
You certainly don’t want an attorney representing
you who starts off thinking you are guilty. An attorney
36
should believe in his client and devote himself and his
team to defending his client.
This is perhaps the most troubling LIE because so
many attorneys and individuals believe an arrest is proof
of guilt. Since this mindset can eliminate objectivity, an
attorney who believes you’re guilty has no business
representing a person accused of drunk driving.
The evidence in most drunk driving cases is a
breath test, not a blood test. A skillful attorney can be
successful in exposing the problems with either test.
Because of their lack of sophistication and reliability,
most scientists would not trust the results of a breath test
machine as a basis for research or investigation. This is
especially true considering the fact that the manufacturer
refused to provide the source code for the machine, even
after the Supreme Court in Minnesota ordered them to do
so. Believe it or not, the state wants you to accept the
results produced by this machine without providing any
of the internal information or data on how the machine
works. Both the accuracy and reliability of these
machines should be subject to challenge.
The breath machine is just a low-bid machine
purchased in a government contract. There are a number
of ways to attack a breath test. This is not a scientific
instrument, yet the State wants to treat it as such. There
are reliability, accuracy, administration and training
errors, just to name a few.
It takes extensive training and study by an
attorney to challenge this test. Attempting to defend a
37
DUI case without this training and knowledge could
expose the attorney to a malpractice charge and leave the
defendant to suffer the consequences.
4th LIE: You Can't Win A Colorado DUI Case
It’s hard to believe, but we have allowed
ourselves to be brainwashed into believing this lie. It is
outrageous to think that a person would actually pay a
lawyer who believes this lie. With this attitude, you
might as well just plead guilty and save the fee.
An experienced DUI lawyer will start preparing
for trial from the very first meeting. He will investigate
and subpoena every piece of evidence available. The
lawyer will often fight extensively through motions and
other procedural maneuvers.
No client should
automatically be advised to plead guilty because an
attorney who is not properly trained believes that these
cases are difficult or impossible to win.
Many lawyers will push a guilty plea without
having done any investigation of the case. Possibly the
client told the attorney he could not afford to fight the
case.
This is common - but did the attorney tell the
client the hidden and long-term costs of a conviction and
did the attorney explain the defenses to the charge so the
client could make an informed, intelligent decision?
Many times the client will realize the long-term
cost of accepting a quick guilty plea is greater than the
38
cost of fighting—that is if the options are fully explained
by a competent attorney.
5th LIE: DUI Is A Minor Offense
The stigma of a conviction can cause tremendous
stress and fear. Many drivers whose licenses are
suspended or revoked continue driving to keep a job and
provide for their families. By doing so, they live in fear
of being stopped, caught, and jailed for driving with a
suspended or revoked license. Most of those convicted
also suffer financially and socially. In most states, a DUI
conviction is permanently on a driving record and
Colorado is one of those states. Only those justly
convicted should have to endure these emotional,
financial, and psychological hardships.
It is not a crime to have a drink and drive. A
conviction for drunk driving should only occur when it is
proven that a person’s driving was impaired due to the
consumptions of drugs and/or alcohol. Not because a
person’s BAC exceeded an arbitrary number.
Usually, drivers do not know if they have been
properly represented or if the state’s case was valid and
based on a legal stop. A qualified DUI attorney is needed
to investigate the case thoroughly and recommend the
best alternative.
You have a right to inquire about the training your
potential attorney has received. You should be sure that
the lawyer has spent substantial time training specifically
in the field of DUI.
39
A COLORADO DUI IS A
LIFE LONG CONVICTION
Professions that can and will be closed to you
Your soul is oftentimes a battlefield, upon which your
reason and your judgment
wage war against your passion and your appetite.
KAHLIL GIBRAN
A Colorado DUI conviction can have life altering
consequences. There is no sealing or expungement of an
alcohol conviction in Colorado. The most obvious
consequence is that you can face up to one year in jail or
more if you don’t successfully complete probation. Even
if you avoid jail, many employers will be reluctant to hire
you, and numerous professions may be closed to you.
Following is a list of rights and professions that probably
will no longer be available to you:
•
•
•
The armed services may not accept you with a
misdemeanor and you usually cannot be on
probation while in the military
Security clearances for many federal and state
facilities may not be possible
Any position that includes travel to foreign
countries that will no longer accept your entrance.
Canada, for example, prohibits people with DUIs
and DWAIs from entering.
40
•
•
•
•
Driving and delivery companies tend to shy away
from people with a DUI on their record.
The weeding out process for medical school,
veterinarian school and law school is becoming
more competitive in today’s market. A DUI can
be a large strike against attaining acceptance into
these institutions.
If a primary responsibility of your job is driving
or having a clean motor vehicle record, you
probably will be denied employment with that
company or for that position.
Teachers that have any driving responsibilities at
school may be terminated or required to inform all
of their students’ families of a conviction.
41
ROADMAP TO
COLORADO COURTS
Administrative Hearing vs. Criminal Case
I have lived my life, and I have fought my battles,
not against the weak and the poor--anybody can do that-but against power, against injustice, against oppression,
and I have asked no odds from them, and I never shall.
CLARENCE S. DARROW
Administrative Law vs. Criminal Law
In every DUI case in Colorado, there are actually
two separate proceedings or cases involved. These cases
run at the same time. The administrative case is handled
and initiated by the Colorado Department of Revenue,
Division of Motor Vehicles. The administrative case of a
DUI focuses exclusively on your privilege to drive. The
decision on whether to revoke your driving privileges is
made on a preponderance standard by a hearing officer
that works for the DMV. You’re naïve if you think these
hearings are fair and unbiased. Understand the hearing
officer is paid to revoke your driving privileges.
The administrative case begins on the day you
are stopped and charged. If you refuse to take a test or
take a breath test and you BrAC is .080 or higher, you
only have seven (7) days to request a hearing or the
Department of Revenue will automatically revoke
42
your license without a hearing. If you took a blood test,
once the state tests your sample, the results will be sent to
the DMV and they will mail you an Order of Revocation
which initiates the administrative process at that point.
The State of Colorado will revoke your license for
a minimum of 9 months for failing a chemical test and for
one year if you refused to submit to a chemical test of
your blood or breath. The revocation is automatic and
begins 8 days after you are served the affidavit of express
consent, unless you request a hearing within the seven
day timeframe. If you performed a blood test, the Order
of Revocation will be mailed to the address the DMV has
on record for you if the blood test shows a blood alcohol
content of .080 or greater. On a blood test you only have
10 days to request your hearing from the date the Order
was mailed.
This hearing is called an Express Consent Hearing
and if you fail to request the hearing, there is nothing that
can be done to prevent your license from being revoked.
Once the hearing is requested, it will put on hold any
revocation action until the hearing is held and a ruling is
made. If you had valid driving privileges as of the date
you request your hearing, you will be issued a temporary
60 day driving permit. The hearing is required to be
scheduled within that 60-day timeframe. The actual
proceedings of the Department of Revenue and appeal
rights are covered separately.
The other case deals with the criminal
proceedings. This will take place in the criminal courts
and the proceedings will be conducted in the county
43
where you were arrested. This is the portion of the DUI
case where the state authorities are trying to take away
your liberty and possibly, in some circumstances, place
you in jail for up to a year. The criminal portion drives
itself, in that the court will set mandatory court dates and
notify the defendant when they must appear. This will
happen regardless of any action taken by the defendant.
County Court of Colorado
In Colorado, your driving under the influence
charges are prosecuted in county court. The county court
is determined by where the officer said the violation
occurred.
The first step is an arraignment where in many
cases you show up to court and you are advised by an
officer of the court (usually a Judge or Magistrate) of
your rights and the possible penalties. Once you are
advised, in many cases, the District Attorney, or one of
their interns, will try and meet with you to make an offer
to plead guilty to some or all of the charges. It is
recommended that you speak to an experienced and
reputable DUI attorney before your arraignment date. In
many cases, the attorney can advise you of your rights
and the possible penalty. In some jurisdictions, your
attorney can request the court to vacate the arraignment
date. This course of action has many advantages. First,
you do not need to take a day off work or school.
Secondly, it does not put the defendant in the
uncomfortable position of speaking to the District
Attorney without competent counsel present.
44
District Attorneys will spend very little time
reviewing your case before deciding to make a plea
bargain offer. In fact, their initial offers are based on a
formula that evaluates simplistic factors, such as BAC,
prior convictions, and whether there was an accident. .It
has been said that it is harder to get District Attorneys to
change their offers once they are written on the file. This
is true because many Deputy District Attorneys (DDAs)
don’t want to step on the toes of the DDA who wrote the
first offer. Many times there is no rhyme or reason for
the first offer, but once it is made no one handling that
file wants to offend the author of the first offer. This is
another reason to have an experienced DUI attorney
speaking to the District Attorney’s Office on your behalf.
If your attorney does not understand the science behind
your case, how can he explain to the DAs why their
conclusions are wrong?
The next stage in the criminal case is the pretrial
conference (PTC). The pretrial conference stage is the
longest stage as you will generally have several PTCs
before your attorney has enough discovery to make an
educated strategic decision in your case. The DA’s office
will take months to turn over the requested discovery and
often times evidence needs to be subpoenaed or argued
for at a hearing before the DA is obligated to disclose the
requested information. This frequently causes there to be
several additional hearings and for this stage to be
prolonged.
The next phase is the motions hearing. This is
when your attorney argues legal issues to the court in the
form of motions to dismiss, motions for suppression of
45
evidence, motions for specific discovery, and many other
matters that the court needs to hear. The Judge will make
a determination in the ‘light most favorable to the
prosecution’ when deciding on suppression issues.
The next stage is the trial stage. In a DUI case in
Colorado, we are only allowed a panel of six jurors. The
defendant has a right to a speedy trial and must be tried
within six months of pleading not guilty. Ideally, this will
be the last stage in the process as you will hope to be
found not guilty. However, if you are convicted at trial
or if you decide to enter a plea and waive your right to a
trial, you will have a sentencing hearing.
The sentencing hearing is the final stage in the
county court process and is the process in which the
Judge makes a final order or determination as to what
your penalties are going to be.
Upon plea or conviction, you have the right to
appeal the county court’s decision to a district court. It is
important to have an experienced DUI attorney to explain
your options.
46
47
HALT! CHECK WITH THE
BORDER GUARD
You can no longer travel to Canada
The death-knell of the republic had rung
as soon as the active power became lodged
in the hands of those who sought,
not to do justice to all citizens, rich and poor alike,
but to stand for one special class and
for its interests as opposed to the interest of others.
THEODORE ROOSEVELT
Although most citizens of the United States may
freely travel in and out of Canada without any
difficulties, those convicted of certain crimes may be
denied entry to Canada because such persons are
considered members of inadmissible classes. Canada
considers driving under the influence of alcohol an
extremely serious offense. Other crimes include, but are
not limited to, driving while ability impaired dangerous
driving, shoplifting, and unauthorized possession of a
firearm or illegal substances.
If the person seeking admission to Canada was
convicted outside Canada and at least five years has
elapsed since the end of the custodial portion (if any) of
the sentence imposed, he/she may apply for a Minister’s
48
Approval of Rehabilitation. If granted, the Minister’s
Approval will permanently remove inadmissibility
resulting from the conviction. The term “custodial
portion” means the period of time that you are in jail or in
the custody of the state. This includes probation if the
sentence was such that you were in the custody of the
state and the jail time was suspended.
If less than five years has elapsed since the end of
the custodial portion of the sentence, then the person
seeking entry may apply for a Temporary Resident
Permit if the person is only seeking entry for a single or
limited period.
Before either the Approval of Rehabilitation or
the Temporary Resident Permit is granted, the Canadian
government will consider how old the convictions are,
the number of offenses on the applicant’s record, the
applicant’s standing in the community, probation reports,
and the applicant’s purpose for entering Canada.
The Canadian government may require a police
certificate or a record check from each place the applicant
has lived for the previous ten years or since the applicant
turned eighteen. Other documents that may be required
include court records, probation reports, copies of the
statute the applicant was convicted of violating and three
reference letters from persons of standing in the
community. Additionally, the Canadian government may
require the applicant to write a statement of
circumstances that surrounded the events leading to the
applicant’s conviction.
49
Persons with DUI convictions are advised to
apply well in advance of their travel plans. The Canadian
government is similar to any other bureaucracy in that it
does not move quickly. Applications can be made at any
of the Canadian Visa Offices in the United States. These
include the Canadian Consulate General in Buffalo, New
York; New York City, New York; Detroit, Michigan; Los
Angeles, California; and Seattle, Washington.
Before visiting any one of these locations, visit
their web site to confirm hours of operation, required
documentation, processing times, as well as any other
instructions. Application forms may also be obtained
from the above locations.
Although the authors have heard of persons who
would be considered members of inadmissible classes
gaining entry into Canada without going through the
above procedures, the authors have heard of just as many
being denied entry at the border. It is better to take the
time to obtain the necessary approvals than be told at the
airport in Canada that you must immediately buy a ticket
home without ever leaving the airport.
50
51
I NEED A TICKET TO RIDE
What about my driver’s license?
A life spent making mistakes is not only more honorable,
but more useful than a life spent doing nothing.
GEORGE BERNARD SHAW
An arrest for Driving Under the Influence (DUI)
also carries administrative law consequences for the
person charged. This is separate from the criminal case
in which the District Attorney’s Office is attempting to
obtain a conviction, monetary fines, probation, and jail
time. Immediately after an arrest for DUI with a breath
test above the per se limit or a refusal to take a test, the
Colorado Department of Revenue will start
administrative proceedings against you to revoke your
Colorado driving privileges. A DUI involving a blood
test changes the procedure and timeframes, but the
penalty remains the same. In DUI cases involving blood
tests, the Department needs to wait for the blood tests to
be reported to them from the arresting agency, before
they initiate the revocation proceedings. This can take
from as little as three weeks to ten or more weeks.
The Colorado Department of Revenue, Division
of Motor Vehicles, can only suspend or revoke your
Colorado driver’s license or driving privileges in
Colorado. If you possess an out of state driver’s license,
please see the following sub-section entitled “Out of State
52
Licenses”. If you possess a Commercial Driver’s License
(CDL), please refer to Chapter 10 “COMMERCIAL
DRIVERS LICENSE”. If this DUI is your first or if you
have not had a prior administrative revocation in
Colorado and your BAC comes back at or above .08, then
the Department of Revenue will attempt to revoke your
driving privileges for 9 months.
Under Colorado law, on a first offense below
.170, a driver can apply for early reinstatement by
installing an interlock device in the driver’s car for 8
months after not driving for 1 month. An ignition
interlock device requires a driver to blow into the device
before starting the car and also while driving.
There is also a provision within the statute that
allows you to remove the device early if you qualify.
Upon getting your license reinstated with interlock, you
need to have no failures or tampering issues the first four
months. Once the DMV gets notice from the interlock
provider that you have met these criteria, they send you
notice and will allow you to remove the device early. If a
person’s BAC is at or above .170, then the interlock
period is for a mandatory two year period following
reinstatement after serving the 1 month of no driving.
If you have a prior per se revocation in Colorado,
the Department of Revenue will attempt to revoke your
driver’s license for a period of one year. There are no
more “red” or probationary licenses available on alcohol
related offenses in Colorado. Colorado is not a “right to
work” state. What I mean by that is that Colorado does
not care if you will lose your job if you do not have a
53
license. The revocation length and terms are nonnegotiable.
Habitual strikes are major traffic infractions that
include DUI, DWAI, DUS, DUR, and Reckless Driving.
If a driver receives three habitual strikes in a seven-year
period, their driving privilege will be suspended for five
years or more depending on the type and number of
offenses.
In Colorado, there is no such thing as a “work
permit” in alcohol-related cases. Other than winning
your license back through administrative hearings or on
appeal, the only way to get driving privileges is to agree
to a restricted ignition interlock license for the period of
time dictated by the persons BAC and the number or
prior offenses.
After the revocation period, to get your license
reinstated, you must pay the reinstatement fee, file the
application for reinstatement form, and in many cases,
show proof of enrollment or completion of alcohol
classes, obtain SR22 insurance, and have the interlock
installed for the required period of time.
Early reinstatement or an Ignition Interlock license
(Blue License)
On a first offense, the interlock license is
automatically granted if you file the appropriate
paperwork with the Department of Revenue. The
processing of this paperwork takes about 3 weeks.
Remember this is the DMV. If it can get screwed up, it
54
will, and nothing will be processed in a timely manner.
For a person to be allowed to drive right after the one
month day period, on a first offense, they need to file the
paperwork within a week or two of the revocation of their
driving privileges to ensure that their license is reinstated
in a timely manner.
The expense of the ignition interlock device is, of
course, to be paid by you, the licensee. There are only
four companies authorized in Colorado that will install
and monitor the device. These private companies charge
an installation fee and a monthly monitoring fee for the
ignition interlock device. You are required to have an
interlock in every car you drive and own.
If you drive your employer’s vehicle, your
employer will be required to place an ignition interlock
device on any employer owned vehicles driven by you.
Most company insurance companies will not allow this,
which often leads to termination. This is another reason
why you need to fight your DUI charge and hire a
competent and experienced DUI defense attorney or law
firm.
Preventing the Revocation
The suspension of your driving privileges can
only be prevented by challenging the revocation. To
challenge the revocation, it is necessary to request an
administrative hearing within 7 days of being served with
the express consent affidavit on a breath or a refusal case.
In a blood case, you must request the hearing within 10
55
days of the post-marked date of the order of revocation
that was sent by the DMV.
In cases of blood tests, the notice is sent to you at
the address the Department has on file (usually the same
address that is on your license). The notice resulting
from a blood test is sent after the Department receives
notice from the police agency that your blood tested over
the legal limit for alcohol. Notice is not sent to the DMV
for drug related DUI cases. This is because as of the date
this book was published, there is not yet a per se limit for
drugs. That may soon change as legislation is currently
being proposed to set a per se limit for marijuana.
After the Department receives a request for an
administrative hearing, the Department will provide you
with a temporary 60-day driving permit. The revocation
will be placed on hold until the hearing is held. During
this time, you will have the same driving privileges you
had before your license was taken, including commercial
driving privileges. After the Department receives a
timely request for an administrative hearing, the
Department will set the date for the administrative
hearing to take place within that sixty 60-day time period.
It is not necessary for you to appear at the
administrative hearing if your attorney waives your
appearance and appears on your behalf. If no one shows
on the licensee’s behalf, the revocation will be upheld
and the revocation will begin as of the time and date of
the set hearing date. If the officer in the case has been
requested or subpoenaed and fails to appear, the
Department should dismiss the revocation action. It is
56
important to understand that there is often times more
than one officer who played a vital role in the case, and a
good DUI defense attorney will be able to identify all
necessary officers and request subpoenas requiring those
officers to appear at the hearing as well.
If all the parties appear, then the Administrative
Hearing Officer will hear the issues and make a ruling.
As the law currently stands as of the date this book was
sent to print, the only thing the DMV must proof is: that
the person was in actual physical control of a motor
vehicle, that the officer had probable cause to arrest the
person and that test was done within substantial
compliance of the Department of Health Rules and
regulations within 2 hours of driving (or actual physical
control). If it is a refusal case, the Hearing Officer will
determine if the person was in actual physical control of a
motor vehicle, that the officer had probable cause to
arrest the person, and whether the person refused to take
a test or cooperate with the taking of a test of their blood
or breath after being advised of Colorado express consent
law.
The burden of proof is on the police officer and
the standard of proof is a preponderance of the evidence.
Preponderance of the evidence means it is more likely
than not that you were driving or in actual physical
control of a motor vehicle with a BAC over .08 for adults
over the age or 21 years old. The BAC limit for a person
under 21 years of age is .02. The preponderance standard
is a lesser standard of proof than the criminal standard of
proof, which is beyond a reasonable doubt.
57
Unfortunately, there are attorneys who tell their
clients not to bother with the administrative hearing
because they cannot be won. This is tantamount to
malpractice in the authors’ opinion, as the author has and
continues to get their clients’ licenses back after
successfully challenging the revocation. Any attorney
that advises you not to request the hearing and challenge
the revocation should be avoided at all costs. The
administrative hearing is the opportunity to crossexamine the officer under oath to discover the
weaknesses or strengths of the government’s case against
you. It allows your attorney to lock the state’s witness
into their testimony prior to proceeding in the criminal
case.
Not challenging the revocation and crossexamining the officer at the hearing is the equivalent of
not reading the police reports. Not only are these
administrative hearings the only chance you have to save
your license, but they are an invaluable part of the
discovery process.
If your license was under suspension or
revocation when you were arrested, it is still very
important that you request the administrative hearing. A
new
revocation
will
extend
your
license
suspension/revocation time. Again, these hearings are
not easy to win. Nothing involving a DUI and defending
them is easy. However, you don’t win battles that you do
not fight. You have nothing to lose by requesting a
hearing. As stated above, these hearings can be critical in
helping your defense attorney obtain useful information
and testimony in your case. The authors have had
hundreds of cases dismissed and reduced out of alcohol
58
based on the testimony given and the information
obtained from these hearings.
District Court Appeals
If the Department sustains or upholds the
revocation after an administrative hearing has been held,
you have the right to appeal the Hearing Officer’s
decision. The petition for judicial review must be filed
within thirty calendar days from the order sustaining the
revocation.
If the court finds that the hearing officer erred,
acted in an arbitrary or capricious manner or that there
was an abuse of discretion, then the court can dismiss the
action or remand the decision for further hearings.
Out-of-State Licenses
If you possess a driver’s license from another
state, Colorado can only suspend or revoke your
Colorado driving privileges. Most states belong to the
Interstate Driver’s License Compact. This compact
requires all member states to report driving convictions or
departmental actions to the licensee’s home state. The
home state is the state that issued the licensee’s license.
Once the home state is notified, it may take action
against your license. If the home state takes action, it
will send notice to you at the address the home state has
on file. This notice will usually advise you of the home
state’s action. The notice may or may not have the
licensee’s appellate rights listed. Once this notice is
59
received, you should immediately contact a lawyer in
your home state to explore ways to prevent license
suspension. The authors are able to refer our clients to
other qualified DUI attorneys that we have taught or
trained with at the national or international level.
Each state handles license suspensions differently.
If the suspension in Colorado is the result of not
successfully challenging the suspension at the
administrative level, then the suspension is an
administrative suspension. If the suspension in Colorado
is based on a conviction for DUI, then the suspension is a
conviction suspension. This is an important distinction as
some states will not suspend your license based on an
administrative suspension. Most states will suspend your
driver’s license if you are criminally convicted of DUI.
It is important to contact a DUI attorney from the
state of origin of your license to see what, if any,
ramifications will occur with either an administrative
action or a criminal conviction. This knowledge allows
you and your attorney to discuss the best course of action.
Not helping a client determine what ramifications will
occur in their home state is tantamount to malpractice.
60
61
I HAVE A COMMERCIAL
DRIVER’S LICENSE
Can I still work?
We make a living by what we get,
But we make a life by what we give.
WINSTON CHURCHILL
In recent years, the federal government has taken
steps to ensure uniform requirements for Commercial
Driver’s Licenses (CDL) throughout the United States.
By threatening to withhold federal highway money from
the states, the federal government is forcing the states to
pass new laws or amend current laws to toughen penalties
for commercial drivers. Colorado has succumb to this
pressure and amended Colorado’s laws concerning
commercial drivers to be almost identical to the federal
regulations.
The federal laws direct Colorado to not allow
those with a CDL to hide the conviction with a deferred
judgment. If you receive a deferred sentence resulting in
no conviction, the charge will be counted as a conviction
for purposes of your CDL. If you enter a guilty plea,
even to a deferred judgment, the charge will be counted
as a conviction for purposes of your CDL and your
regular license.
62
The Department of Revenue will revoke your
CDL for a period of one year if you are driving or in
actual physical control of a commercial vehicle with a
blood or breath alcohol level of .04 or more. If you
refuse to take a chemical test while driving or in actual
physical control of a commercial vehicle, your CDL will
also be revoked for one year.
Your CDL will be revoked if you are operating
any motor vehicle under the influence of alcohol or any
other intoxicating substances or combination thereof.
This means if you are driving your personal vehicle and
receive a DUI or DWAI, the state will revoke your CDL
for one year.
If you are driving a commercial vehicle that
requires a placard for hazardous material and your CDL
is suspended for the reasons outlined in the previous two
paragraphs, the suspension period is increased to three
years. If it is your second conviction for DUI, your CDL
will be banned for life (there is a provision that allows
for potential reinstatement after 10 years and completion
of a drug and alcohol rehabilitation program, however,
for most the loss of the CDL for 10 years is the
equivalent of a lifetime ban).
The Department of Revenue will suspend your
CDL for 60 days if you receive a second conviction
within a three year period for a serious traffic offense
while operating a commercial vehicle. If it is your third
conviction within a three-year period, the suspension will
be for 120 days and is consecutive to any other
suspensions for serious traffic offenses.
63
A serious traffic offense includes speeding 15
miles per hour or more over the limit, reckless driving,
and erratic or unsafe lane changes, following too close,
and not possessing your CDL or proper endorsements.
These violations must have occurred in a commercial
vehicle.
You are thinking, “No big deal, it’s my first one
so I can get a red license.” Not true. Colorado does not
allow driving a CDL vehicle for one year on a first
alcohol or drug related driving conviction. In fact, if your
BAC is at or above .170 the revocation is effectively for
thirty-three (33) months due to the interlock requirement.
The interlock requirement means that you must have
interlock installed in every vehicle that you operate. You
cannot install ignition interlock in a commercial vehicle.
The interlock requirement will prohibit the driver from
driving the commercial vehicle the duration of time the
driver is required to have interlock in their vehicles.
If you are convicted of DUI or DWAI and have a
CDL, you will not be able to work for one year or more
and perhaps your lifetime if your job requires a CDL.
One last point of distinction, even though your
CDL is banned for a year or life, the operator’s portion of
your license will only be suspended for the same amount
of time as a person without a CDL.
As you can see, your livelihood is at stake. A
conviction for DUI can have a lifetime effect on your
ability to make a living. Most lawyers do not understand
64
the complexities of the requirements for a CDL. It is
important to speak with skilled lawyers who understand
that your livelihood is at stake.
Hope is not lost, however. A skilled DUI attorney
can challenge the revocation and criminal case, possibly
preventing a conviction and the loss of your license.
65
DON’T GET GROUNDED OR
GO DOWN WITH THE BOAT
Big brother is watching Pilots and Merchant
Marines
No loss by flood and lightning, no destruction of cities
and temples by hostile forces of nature, has deprived man
of so many noble lives and impulses
as those which his intolerance has destroyed.
HELEN KELLER
Aircraft pilots and boat Captains have a huge
responsibility – they are accountable for the safety of
large masses of human lives on a daily basis. One error
in judgment can cause the loss of an untold number of
lives. As such, the United States government and the
licensing agencies responsible for overseeing these
professions have very rigorous requirements for reporting
alcohol related arrests and/or convictions.
These reporting requirements are mandatory in
certain situations whether the arrest and/or conviction
were job related or not. For example, the Federal
Aviation Administration (FAA) does not care whether a
DUI conviction occurred during the middle of a pilot’s
30-day vacation. It must still be reported. Moreover, the
FAA does not care if the pilot was even aware of the
reporting requirement. The failure to report may cause a
more severe punishment than would have been received
66
if reported. At a minimum, the FAA will begin a formal
investigation.
The other reporting requirement occurs when
renewing your annual Medical Certificate. Block 18v
requires disclosure of “(1) any arrest(s) and/or
conviction(s) involving driving while intoxicated by,
while impaired by, or while under the influence of
alcohol or a drug; or, (2) a history of any conviction(s) or
administrative action(s) involving an offense(s) which
resulted in the denial, suspension, cancellation, or
revocation of driving privileges or which resulted in
attendance at an education or rehabilitation program.”
Block 18v of the revised FAA Airman Medical Certificate Application
If the pilot attends counseling, this counseling
may have to be disclosed in block 19 of the application
“Visits to Health Professional within Last Three Years”.
These visits include visits to “clinical social workers or
substance abuse specialist for treatment, examination, or
medical/mental evaluation.” (FAA Form 8500-8)
Other than these disclosures on the Medical
Certificate, the reporting requirement to FAA Security is
triggered when an airman receives a conviction for DUI
or possession of any illegal narcotic drug, depressants,
stimulants, or marijuana. (14 CFR 61.15) Also, the
reporting requirement is triggered by any suspension of
67
an airman’s driver’s license that is related to the
operation of a motor vehicle while intoxicated, impaired
by, or under the influence of alcohol or a drug.
The reporting must be made in writing by way of
a “Notification Letter” to the FAA within 60 days of the
conviction or motor vehicle action. It must contain
certain information about the offense, so it is vital to
retain the services of an experienced DUI attorney to
guide you through this process.
Failure to comply with the reporting requirements
is grounds for denial of any application for certificate,
rating, or authorization issued for a date of one year from
the date of the conviction or motor vehicle action or
suspension or revocation of any certificate, rating, or
authorization issued.
Merchant Mariners are licensed and governed by
the United States Coast Guard. There are no regulatory
requirements that a mariner report a DUI conviction
immediately to the Coast Guard. However, there are two
ways for the Coast Guard to discover a DUI conviction or
refusal to submit to a chemical test. First, it must be
disclosed on an application for a new credential or
renewal of a credential. The Regional Exam Center will
also check each applicant with the National Driver
Register, which will reveal any refusals or convictions.
If the DUI conviction or refusal is discovered
through the application procedure, the Regional Exam
Center will decide if a further assessment period is
needed to monitor the applicant’s character and
68
suitability to hold the credential for which he is applying.
The Regional Exam Center will look at several factors
including the age and number of the convictions, the
severity of the crimes, any rehabilitation completed by
the applicant, evidence of sobriety in the form of
reference letters, and the status of the applicant’s driver’s
license.
The Regional Exam Center supervisor will make
a determination whether to assign a further assessment
period, approve the application, or deny the application.
This decision may be appealed but the appeal must be
valid and supported by evidence.
The second way for the Coast Guard to discover a
mariner’s refusal to take a chemical test or DUI
conviction is a report to the Coast Guard through thirdparty sources. The Coast Guard does not proactively
look for convictions, but they are obligated to investigate
any reports of convictions involving a credentialed
mariner. It does not matter whether the report is made
anonymously.
If the investigation confirms the mariner refused
to take a chemical test or had a DUI conviction, the Coast
Guard investigators have several options.
The
investigator can look at the age and number of the
convictions, post-rehabilitative measures taken, and the
severity and circumstances of the conviction or refusal
and make a decision not to take any action. The
investigator can issue a Letter of Warning or more
severely, file a complaint against the mariner to pursue
action against the mariner’s credentials.
69
The investigators will generally discuss the
circumstances of the conviction or refusal and any
rehabilitative measures completed before filing a
complaint. Once a complaint is filed, the mariner and his
counsel will have an opportunity to appear and be heard
before the Administrative Law Judge. Before the
administrative hearing, the mariner’s counsel and the
Coast Guard’s counsel have the opportunity to resolve the
case through a settlement agreement. The Administrative
Law Judge must approve any settlement agreement.
Although the settlement agreements are based on
the complexities and merits of each individual case, the
settlement agreement will usually require the mariner to
be screened by a medical professional and ordered to
complete some type of rehabilitation. The mariner’s
credentials may or may not be suspended for a timeframe
to allow completion of rehabilitation and to ensure that
the incident was an isolated occurrence.
One point of caution, federal law considers
intentionally making a fake or fraudulent statement or
representations in any matter within the jurisdiction of
any department or agency of the United States a federal
crime punishable by not more than five years in a federal
penitentiary and/or not more than $250,000 fine for an
individual or not more than $500,000 fine for an
organization.
A DUI conviction for a commercial or military
pilot or Merchant Mariner can mean the end of his career.
This is an extremely harsh outcome in a legal system
70
where equity should play
appropriate punishment for
reasonable, and should be
District Attorney to discuss
situations where a onetime
repercussions.
a part in determining an
someone. As such, it is
expected, to approach the
other possible outcomes in
mistake can have life-long
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WHAT ABOUT MY
RECORD?
A DUI arrest gives you 3 records
It is inaccurate to say that I hate everything.
I am strongly in favor of common sense, common
honesty and common decency.
This makes me forever ineligible for public office.
H. L. MENCKEN
People will often ask, “Can you clear my record
when this is over?” At first, the question seems simple
and lends itself to a simple yes or no answer.
Regretfully, as in most areas of the law, the correct
answer is IT DEPENDS.
Before we talk about clearing your ‘record’, you
should know that a DUI arrest creates THREE separate
records:
1.
An arrest record that is maintained by the
Colorado Bureau of Investigation (CBI).
2.
Due to the affidavit the officer created
when he took your license, you now have
a driving record and if quick action is not
taken, you will have a permanent record of
your license being revoked for an alcohol
offense.
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3.
The most commonly considered record is
your court record. A DUI/DWAI
conviction cannot be expunged from your
record. If your case was dismissed or you
received a deferred judgment you MAY be
able to have your record sealed. There
have been some very conflicting rulings in
Colorado recently that put the ability to
seal DUI and DWAI related deferred
judgments and dismissals into question.
Even if you are able to get the dismissal or
deferred judgment sealed, this can clear
your court record but it may not clear
your arrest record. A plea or conviction
creates a lifelong non-expugnable record.
Your driving record can be cleared only by
requesting a hearing within 7 days of your arrest for
breath or refusal and within 10 days of the mailing of the
order of revocation on a blood test. You must win the
hearing—either at the initial administrative hearing or on
appeal to one of the following courts: the District Court
in the county in which the respondent resides, the
Colorado Court of Appeals or by an appeal to the
Colorado Supreme Court.
You should know that it is possible to clear your
‘record,’ but there are many variables that may make it
difficult to clear all three records. The facts of each case
are different and the results may vary. A competent,
qualified DUI attorney who knows the minute details of
these issues can guide and help you.
73
THEY MADE ME PERFORM
LIKE A CIRCUS MONKEY
Are Standardized Field Sobriety Tests designed
for failure?
Policemen so cherish their status as keepers of the peace
and protectors of the public that
they have occasionally been known
to beat to death those citizens or groups
who question that status.
DAVID MAMET
The
National
Highway
Traffic
Safety
Administration (NHTSA) has set out the guidelines for
the three standardized field sobriety tests (SFSTs). The
three tests are the Horizontal Gaze Nystagmus test
(HGN), the Walk-and-Turn test (WAT), and the One Leg
Stand test (OLS). These are the only tests that have had
field studies completed to determine the validity of the
tests as they relate to the detection of people under the
influence of alcohol. The other tests, including touching
your nose or reciting the alphabet, have no validity
studies to back them up.
Field sobriety tests are psychophysical or divided
attention tests, used to assess impairment. The police
officer is trained to start psychophysical tests as soon as
the officer makes contact with you, the driver. For
example, the officer will ask for your driver’s license,
74
registration and proof of insurance at the same time. The
officer will then ask you where you are coming from as
you retrieve these documents in an effort to confuse and
distract you. This divided attention task requires the
driver to mentally process (a mind task) the request for
three different items while retrieving the requested items
(a body task). The three most significant psychophysical
tests are the three “scientifically validated” structured
tests known as the Standardized Field Sobriety Tests.
Horizontal Gaze Nystagmus
Nystagmus is defined as an involuntary jerking of
the eyes. It is something the person being tested will not
be aware of during the administration of the test.
Involuntary jerking of the eyes will become more
noticeable as a person’s blood alcohol level rises.
The Horizontal Gaze Nystagmus test is
considered the most accurate of the field sobriety tests by
the National Highway Traffic Safety Administration.
This test is not admissible in Colorado to show any
specific level of impairment, but rather to show
impairment in general. There are six total clues. If four
or more clues are evident, the Horizontal Gaze
Nystagmus test is allegedly 77% accurate in detecting a
person with a blood alcohol level in excess of 0.10. The
officer will be looking for three separate specific clues in
each eye. Thus, the total of six clues.
The officer is supposed to use a small stimulus to
move back and forth in front of your eyes. There should
75
be two sets of passes for each clue for a total of six passes
in the testing stage.
Before starting the testing phase of the test, the
officer is supposed to have you remove any glasses you
are wearing. Then, the officer will make two passes
using a small stimulus to check for equal tracking of the
pupils. If your pupils do not track equally, there may be a
medical problem. The officer is also supposed to check
your pupils to ensure they are the same size.
The officer will make two passes each looking for
lack of smooth pursuit, checking for distinct and
sustained nystagmus at maximum deviation, and
checking for onset of nystagmus prior to forty-five
degrees.
The last step of this test is to check for vertical
gaze nystagmus. The officer will hold the stimulus in the
center and raise the stimulus straight up to maximum
elevation to see if nystagmus is present. If vertical gaze
nystagmus is present, it is believed to be an indicator of
high levels of alcohol or the presence of other drugs.
There are several problems with the Horizontal
Gaze Nystagmus test. There are many other causes of
nystagmus other than alcohol. If the officer places the
driver in a position where the driver has strobe lights,
rotating lights, or rapidly moving traffic in close
proximity, the driver may have optokinetic nystagmus.
Certain drugs like seizure medication, caffeine, and
nicotine will cause nystagmus. Nystagmus can result
from pathological disorders ranging from brain tumors or
76
brain damage to inner ear problems. Natural nystagmus
is fairly common.
The officer who is administering the test has made
an initial judgment the driver is under the influence, and
the officer is the sole judge of the test results. By starting
with the mindset that the driver is under the influence, it
is more likely the officer will misread the clues because
he is expecting those clues to be present. The clues are
compromised if the officer deviates from the standardized
procedures.
Walk and Turn Test
The second standardized field sobriety test is a
divided attention test called the Walk and Turn test.
Initially, the officer will have you assume a heel to toe
position by instructing you to place your left foot on a
line and place your right foot on the line with the heel of
your right foot against the toe of your left foot. You will
be told to keep your arms at your side and not to start the
test until instructed to do so.
The officer is to
demonstrate this stance while he is instructing you, the
driver, how to stand. After these instructions are given,
you will be asked if you understand the instructions so
far.
The officer will tell you after he gives the
command to start, you are to take nine steps touching
heel to toe, after the ninth step, turn, and then take nine
heel to toe steps back. The officer is to demonstrate.
77
The eight clues the officer will be looking for are:
failing to keep your balance while listening to
instructions, starting the test before instructed to begin,
not touching your heel to your toe on every step, stopping
while walking to regain balance, stepping off the line,
using your arms for balance, making an improper turn,
and taking more or fewer than nine steps in either
direction.
NHTSA requires a designated straight line and a
reasonably dry, hard, level, no slippery surface for the
administration of this test. The officer should make sure
that there is adequate room for you to take all nine steps.
If you are wearing shoes with heels more than two inches
high, you should be given the option of removing your
shoes. According to the original research, persons with
back or leg problems, middle ear problems, as well as
persons over the age of 65 have had difficulty performing
this test.
The original research indicated that if you have
two or more clues on this test or fail to complete the test,
you have a 68% chance of having a BAC in excess of
0.10. If you have four or more clues on the Horizontal
Gaze Nystagmus test and two or more clues on the Walk
and Turn test, there is an 80% chance of having a BAC in
excess of 0.10.
Before these percentages are accepted as accurate,
you should know the tests were performed in ideal, well
lit indoor conditions. The majority of the people tested
were over 0.15, making the arrest decision easier and
only well trained, experienced officers were used. The
78
deck was stacked and the tests were slanted to yield the
result desired rather than a true evaluation of the test
validity. By no means was this a scientifically valid
study. No one in the scientific community would accept
this as a reliable and valid study. However, our
government and courts have decided to accept these
studies and use these almost exclusively to establish
probable cause in DUI cases.
One Leg Stand
The third standardized field sobriety test is the
One Leg Stand. This is also a divided attention task
requiring you to process verbal instructions while
completing physical exercises. The test requires a
reasonably dry, hard, level, and non-slippery surface for
the administration of the test. The officer will be looking
for four different clues. If two or more clues are present
or you fail to complete the test, the original research
indicates there is a 65% chance you have a blood alcohol
level over 0.10.
The officer will start the test by telling you to
stand with your hands by your side and your feet
together. The officer will then instruct you to begin by
raising one leg, either leg, six inches off the ground
keeping the foot parallel to the ground. While keeping
both of your legs straight and your hands by your side,
count out loud one thousand one, one thousand two, one
thousand three until told to stop. You will be instructed
to begin.
79
The officer will be looking for four clues. The
clues are recorded if you sway while balancing, use your
arms for balance, hop to maintain your balance, or put
your foot down before being instructed to do so.
Similar to the Walk and Turn test, drivers with
heels in excess of two inches should be given the option
of taking their shoes off. Drivers over the age of 65 will
have difficulty with this test. Drivers with back, leg, or
middle ear problems will also have difficulty. Another
distinction is that drivers who are overweight by 50 or
more pounds will have difficulty.
Conclusion
The authors are certified in the administration of
the Standardized Field Sobriety Tests. The authors are
certified Instructors of the Standardized Field Sobriety
Tests and have attended the required refresher courses.
The police officers are taught the procedure to
administer the tests in a controlled environment generally
as part of their full academy training. It is only a small
portion of their training as law enforcement officers and
many of the details may be lost in the bulk of material.
The manual is very clear that if the officer deviates from
the standardized manner, the validity of the test is
compromised.
Upon reviewing videotapes of various stops and
DUI arrests by the authors, it is very rare to see an officer
administer the tests correctly. The officers will almost
always testify and record in their police report that they
80
saw all the clues on the tests and that they administered
the tests correctly. More than once, though, after
reviewing the video, it was determined that these tests
were not properly administered.
These tests are
subjective and biased. They are not reliable and are
completely voluntary so you should decline to perform
these tests if an officer asks you to do them.
This is why it is important for your attorney to
request, preserve, and review any and all video tapes
available. Unfortunately, very few agencies in Colorado
have in-car or dash cameras. These tests are rarely
captured on video. It will be the officer’s subjective
opinion on your performance that will be used against
you. Although preserving physical evidence seems like
common sense, most attorneys do not do this because
they think DUI cases are easy. They are easy if all the
attorney does is plea the case out without working the
case.
In a perfect setting, field sobriety tests may have
some validity, but from the authors’ experience, their use
in the field by officers is unfair to the drivers. They test
normal abilities by having you perform abnormal
exercises. The officer giving the test already thinks you
are intoxicated --why else would he ask for the test? This
officer who basically has his mind made up is the sole
judge and interpreter of how you perform the tests. In
Colorado, these tests are strictly voluntary. As such, it is
the authors’ opinion that a driver should never submit to
any form of roadside sobriety testing.
81
GIZMO, MACHINE or
INSTRUMENT?
Is the Intoxilyzer 5000-EN breath test accurate?
How seldom a fact is accurately stated;
How almost invariably when a story has passed through
the mind of a third person it becomes…
little better that a falsehood;
even though the narrator
is the most truth-seeking person in existence.
NATHANIEL HAWTHORNE
Many people, including lawyers, will look at a
breath test result and say, “Oh, you scored a high number,
you’ll be convicted.” THIS DOES NOT HAVE TO BE
TRUE, but it does show a lack of understanding of the
testing process and procedures.
We have trained
extensively to understand how the machines work, know
the problems that can occur with them and how to fight
for you.
Your lawyer’s knowledge in this area of DUI
litigation often is the difference between a conviction and
being found NOT GUILTY.
82
How Accurate
Procedures?
Are
the
Chemical
Testing
•
Colorado law provides that a suspect can be
tested by blood or breath.
•
Blood testing is generally considered to be the
most reliable and accurate method. However,
this is the least desirable for the police
because it is more expensive and time
consuming. Additionally, blood testing would
allow you to have an independent test
performed on your blood sample by another
certified lab.
•
Breath testing is more convenient, cheaper
and is not subject to retesting. The machine is
capable of preserving a sample. But the state
has determined that the second sample does
not need to be preserved for the defense.
To be clear, the police use the cheapest, most
convenient, non-testable, scientifically debated chemical
test when your freedom is on the line.
How is breath testing done?
•
Colorado uses a machine called the
Intoxilyzer 5000-EN, commonly referred to as
a “breathalyzer”. (Often called the Intoxi-liar
because of its inaccuracies.)
83
•
The Intoxilyzer 5000-EN costs about $7,500.
Some models have been in service for 15 or
more years.
•
The Intoxilyzer 5000-EN is simply a computer
based on very old technology. The brain of
this thing is a Z-80 microprocessor, which was
introduced in 1975, more than 30 years ago.
Remember the “Radio Shack” TRS-80? Its
processor was the Z-80.
CMI Intoxilyzer 5000
•
The machine works on the theory of Infrared
Spectrometry (IR), which is the absorption of
infrared light. There is a light bulb at one end
of the breath cylinder and at the other end is a
filter wheel with three filters. As you blow
into the tube, the theory is that alcohol will
84
absorb the light rays and not show up on the
filter wheel.
•
The amount of breath actually measured is
very small (only 81 cc) and must be converted
to a number we will understand.
The
conversion the machine makes would be
similar to taking a paper towel tube and
increasing it to the size of a 55-gallon drum.
Any error in the testing will be exaggerated by
that amount.
How reliable is the breath test?
•
Close enough for government work! In
Colorado, you will be given two tests and
those tests must be within .02 of each other. If
your first test was .08, an acceptable second
test could range from .06 to .10. This is a
range of 50% and they tout the machines as
being scientifically accurate??? Would you
accept such a variance from a thermometer,
speedometer, calculator, medical test or
toaster? Obviously not, but our state finds this
“scientifically reliable” and acceptable when
dealing with a person’s liberty.
•
What are they hiding? Neither the State nor
the manufacturer of the machine will allow
anyone other than law enforcement to test the
machine for its accuracy and reliability. For a
procedure to be accepted as accurate and
reliable in the scientific community, it must be
85
open and available for the scientific
community to test and retest the procedure.
This is not permitted with the Intoxi-liar.
•
2+2=5. Is this government math? The
number produced by the machine comes from
a mathematical formula in the machine. The
manufacturer will not divulge this formula,
claiming it is ‘proprietary’. At this point,
neither the government nor the courts are
willing to divulge the secret formula that is
used to determine your test value. Literally--you could go to jail based on a secret formula!
•
Why don’t they save a sample when your
freedom is on the line? A sample of your
breath could be saved for retesting for about
$2, but the state chooses not to save it. The
courts have said they should save evidence,
but if it is not saved, that’s okay because there
is a secret formula that determines your BAC
and whether you are guilty.
•
A few of the many other issues that can affect
the accuracy of a breath test are:
1.
2.
3.
4.
5.
6.
7.
Power surges
Cell phones
Body temperature
Breath temperature
Machine temperature
Simulator solution temperature
Radio frequencies
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8. Mouth contaminates (smokeless
tobacco, dentures, denture adhesives,
mints, lip balm, tongue and lip
piercings, etc.)
9. Physical problems
10. Exposure to certain chemicals
11. Hand Sanitizer
12. Mouthwash
13. Diabetes
14. Esophageal hernia
15. Heartburn
16. Liver disease
17. Certain diet
18. Disease of the lungs
19. Periodontal (gum) disease
20. Faulty bridge work
21. Gastric reflux disease
22. Fever
23. Pre-menstrual
24. Heart disease
25. Airbags
26. Certain medications
27. Machine malfunctions
28. Improper maintenance, and
29. Improper training
The defense of a DUI case requires specialized
knowledge about physics, chemistry, biology, anatomy,
toxicology, pharmacology, and how these scientific
disciplines interrelate.
87
Chemical testing for blood alcohol levels assumes
that the subject is a:
Normal,
Healthy,
Average Person.
People are not the same and everyone’s body does
not react in the same manner. Common sense tells you
this is true, yet the Government will prosecute as if you
are identical to the “average person” in the state. A few
years ago, NL quarterback, Peyton Manning averaged
357 yards per game but there was not a single game in
which he threw for 357 yards. This is the same with the
test. They are designed around an “average person” but
you are never tested to see if your body is responding in
an “average” manner.
Female Issues
Social Issues
Men account for an overwhelming majority of
those arrested for DUI. However, the percentage of
female arrestees has increased rapidly in the last two
decades. There are several social and psychological
factors that account for the growing number of women
accused of DUI.
Law enforcement officers’ attitudes towards
women have changed over the past few decades. It was
once more likely for an officer to ensure that a female
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drunk driver got home safely rather than put her in a jail
cell.
There is no doubt that the changing role of
women in American society has played its part as well.
More women are in the workforce and subjected to the
same stress as men. These changing lifestyles leave
women, like men, in situations that are more conducive to
DUI arrests.
Gender/Test Bias
While the above issues are factors, the most
pressing issue is test bias. Studies have shown that
women tend to score higher on breath testing machines.
This is because the machines are set for an average male's
lung capacity. This is inherently unfair to women and
should be addressed by your lawyer.
Alcohol also affects women differently than men
because women metabolize alcohol more slowly.
Women have less of the ADH enzyme. This causes a
larger proportion of the ingested alcohol to reach the
blood system prior to being converted to acetate. Also,
women may experience fluctuations in hormone levels
during their menstrual cycle that can affect the rate of
alcohol metabolism. This may make a woman more
susceptible to elevated blood alcohol concentrations at
different points in the cycle.
Due to many things that an expert DUI lawyer
will know, a woman of the same size and drinking the
same amount as a man will often show a higher BAC
reading. Men and women’s bodies are not the same but
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the machine used by the police assumes they are. You
should consult a DUI attorney who is capable of
protecting you from this bias.
A predecessor Breathalyzer
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NEEDLES, NEEDLES,
NEEDLES
Blood test issues
In matters of style, swim with the current;
in matters of principle, stand like a rock.
THOMAS JEFFERSON
Colorado has approved two separate chemical
tests to determine a person’s alcohol level. The first
approved test is a breath chemical test analyzed by the
Intoxilyzer 5000-EN. The Intoxilyzer is discussed in
detail in Chapter 14, “GIZMO, MACHINE, or
INSTRUMENT?” The second approved method is blood
testing.
Most states, including Colorado, have Express
Consent laws which, in layman’s terms, means when you
are driving a car or in actual physical control of a car, it is
assumed that you have given consent to having a
chemical test performed if you are suspected of driving
under the influence of alcohol or another intoxicating
substance. As the driver, you have the right to refuse the
test, but refusing the test may result in an administrative
revocation of your driving privileges for a year. This
revocation can be challenged in the same manner as a
revocation for a chemical test result showing an over the
legal limit of .08 breath/blood alcohol level for persons
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over 21 and .02 breath/blood alcohol level for persons
under the age of 21.
The choice of whether a breath chemical test on
an Intoxilyzer or a blood test is administered remains
with the person being arrested. The officer must follow
certain guidelines established by Colorado law. First, to
request a test, the arresting officer must have a valid
arrest. The officer must inform you of your rights as
afforded by Colorado Express Consent law. The officer
should advise you of your right to a chemical test, and
notify you that you are not entitled to consult with an
attorney prior to making the decision whether to take the
chemical test.
Colorado Express Consent law requires any driver
to consent to a chemical test if a police officer has
probable cause to believe the person is driving under the
influence or the driver’s ability to operate a motor vehicle
is impaired because of alcohol, drugs or a combination of
both. Failure to submit to a chemical test results in a
minimum one year revocation of your driving privileges.
The following advisement should be given prior to a test
being taken, but it rarely is:
“You are required to take, complete or cooperate in
completing an evidential chemical test to determine the
alcoholic content of your blood or breath (C.R.S. 42-41301.1 (2) (a) (I).) The chemical test you choose is the
test you will be taking. You cannot choose a different test
later (C.R.S. 42-4-1301.1(2) (A) (II).) If you choose a
blood test, two (2) tubes of blood will be drawn. One
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tube belongs to you and you may have it tested at a health
department certified independent laboratory of your
choice. If you choose a breath test, two (2) breath
samples will be analyzed by a certified evidential breath
alcohol testing device following an approved standard
operating procedure. You will not receive a sample to
have independently tested by a certified laboratory. If you
refuse to take, complete or cooperate in completing an
evidential chemical test to determine the alcoholic
content of your blood or breath your driving privilege
may be revoked.” (C.R.S. 42-2-126(2)(a)(II)).
If the driver is involved in an accident where
death or serious bodily injury results, the police officer
can require a forced blood draw. If the driver is
unconscious and unable to give consent to a chemical
test, the driver’s consent is considered expressly given
and the police officer can direct a blood test. Under
circumstances in which the driver is unable to give
consent, the law does not require an injury or death for
the officer to proceed with a blood test. If there are
extraordinary circumstances and the test requested cannot
be performed, the test shall be of the person’s blood.
If a blood test is required or consented to, the
officer will use a blood kit provided by the Colorado
Department of Public Health and Environment (CDPHE).
This is a standard blood withdrawal kit that is completely
self-contained. The kit is provided to the medical
personnel withdrawing the blood samples. Contained in
the kit are two vials that contain an anticoagulant and a
preservative.
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The officer will direct a nurse, doctor, emergency
medical technician, paramedic, or other approved medical
personnel to withdraw the blood samples in the officer’s
presence. The person withdrawing the blood will use
both vials to obtain two separate blood samples. After
the blood samples are taken, it is required that the vials be
inverted several times so the blood samples will be
thoroughly mixed with the preservative and the
anticoagulant
The two blood samples will be given to the police
officer who will seal and repackage the vials into the
blood kit. The officer will seal the package and will take
custody of the sealed kit for delivery to the proper
laboratory for analysis. The officer needs to make sure
the sample reach the testing laboratory within a
reasonable time.
Blood Kits used in DUI cases throughout Colorado
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Transportation and storage of the blood is
important to prevent fermentation. If fermentation or
contamination occurs, it can cause an increased blood
alcohol level in the blood sample. If the anticoagulant
and/or preservative in the vial are defective or not
properly mixed, an increased blood level can result.
These are just some examples of how the blood alcohol
level reported could be incorrect and falsely elevated.
A laboratory approved by the Colorado
Department of Public Health and Environment (CDPHE)
must process the blood sample. There are only nine
approved laboratories in Colorado that can test for blood
alcohol concentrations and only three labs certified to test
for drugs in blood tests. The second vile is preserved for
up to one year for the defense to test the sample. After
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one year, the samples are destroyed.
If a chemical blood test is completed on the
driver, the driver is entitled to have one of the vials of
blood sent to an independent laboratory for a separate
independent analysis. The driver isn’t allowed to just
show up and pick up the sample from the lab; rather, the
sample must be requested by the testing laboratory to
keep the chain of custody intact.
This independent test allows the opportunity to
double-check and confirm the work of the State’s
laboratory. However, if there is an increased blood level
due to human error in procedure, the error quite possibly
affected all the samples. For example, if the officer left
the blood kit containing the vials of blood in his trunk for
three days in July before transporting it to the state’s lab,
fermentation could occur in all vials causing falsely
increased blood alcohol levels.
In Colorado the state’s tests are performed on a
gas chromatograph. These machines are expensive and
the test sequence to determine the blood alcohol level is
time consuming. Due to the expense and time of using
these machines, many hospitals do not use the gas
chromatograph to analyze for blood analysis. The
hospital’s concern when taking a blood sample to analyze
for alcohol or drugs is to determine if these substances
are in the patient’s system. The hospitals want to know
this information before administering any drugs that may
react adversely with possible intoxicants already in the
patient’s blood.
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Gas Chromatograph
The hospital’s concern is speed and not
necessarily accuracy of alcohol or drug levels. The
analytical methods used by the hospitals routinely render
alcohol or drug levels 20-30% higher than the more
accurate result rendered by the gas chromatography
method. There is also a much higher possibility of
contamination because steps to prevent possible
contamination are not used (little to no preservative is
used). With these increased risks of false reporting, it is
not surprising that these blood alcohol reports do not
meet the basic scientific requirements required to be
admissible in court.
A blood test result over the legal limit, even a
high result, is not the final nail in the coffin. Skilled
attorneys can successfully challenge the test when they
understand how gas chromatography works, have visited
forensic labs, have researched, and understand the
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standard operating procedure and legal requirements for
withdrawing and analyzing blood samples.
If the
challenge is successful, the blood result will not be
admitted and the jury will never know a blood sample
was taken. A suppression of the blood test can result
from many different challenges, including but not limited
to, issues with chain of custody, fermentation, expired
equipment, expired certifications, and faulty equipment
or maintenance.
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WHAT DO THEY HAVE TO
PROVE TO LOCK ME UP?
Elements of the Crime
I have always found that mercy
bears richer fruits than strict justice.
ABRAHAM LINCOLN
At the end of a jury trial, the jury is told what
elements for each alleged crime the government must
prove for a person to be convicted of the offense charged.
These elements are contained in the Colorado Jury
Instructions. A committee develops these instructions and
the instructions are approved by the Colorado Supreme
Court. Samples of these instructions can be found in the
Colorado DUI Bench Book. They can also be found on
the Colorado State Judicial webpage.
The instructions are not inclusive of every crime
possible in the State of Colorado. However, they do
include the elements for most of the major driving and
alcohol related crimes. We do not intend to include all of
the Colorado Jury Instructions, just the primary ones that
readers of this book will encounter. The instructions are
not presented in the order of relevancy.
Most readers of this book will have been charged
themselves or had a family member charged with the
crime of Driving Under the Influence of Alcohol and/or
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Drugs (DUI). The elements of driving under the
influence are: 1. That the defendant, 2. in the state of
Colorado, at or about the date and place charged, 3. drove
a vehicle, 4. while under the influence of [alcohol]
[drugs][a combination of drugs and alcohol]
The lesser-included charge is Driving While
Ability Impaired by Alcohol and/or Drugs (DWAI). The
elements of driving while ability impaired are: 1. That the
defendant, 2. in the state of Colorado, at or about the date
and place charged, 3. drove a vehicle, 4. while his ability
to operate a vehicle was impaired by [alcohol][drugs][a
combination of drugs and alcohol] to the slightest degree.
Other readers may be charged with Driving Under
the Influence of Drugs (DUID). The elements of the
crime of driving under the influence of drugs are:
1. That the defendant, 2. in the State of Colorado, at or
about the date and place charged, 3. drove a vehicle,
4. knowingly [being a habitual user of any controlled
substance] [while under the influence of any controlled
substance] [while under the influence of any drug to a
degree which renders one substantially incapable of
safely operating a vehicle].
These instructions have many words that have
specific legal definitions. We have added some of the
major definitions. The Colorado Court of Appeals and/or
the Colorado Legislature have defined, either by statutes,
case decisions or through other Colorado Jury
Instructions, several of the terms.
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“DRIVING UNDER THE INFLUENCE” means
driving a vehicle when a person has consumed alcohol or
one or more drugs, or a combination of alcohol and one
or more drugs, which alcohol alone, or one or more drugs
alone, or alcohol combined with one or more drugs
affects the person to a degree that the person is
substantially incapable, either mentally or physically, or
both mentally and physically, to exercise clear judgment,
sufficient physical control, or due care in the safe
operation of a vehicle.
“DRIVING WHILE ABILITY IMPAIRED” means
driving a vehicle when a person has consumed alcohol or
one or more drugs, or a combination of both alcohol and
one or more drugs, which alcohol alone, or one or more
drugs alone, or alcohol combined with one or more drugs,
affects the person to the slightest degree so that the
person is less able than the person ordinarily would have
been, either mentally or physically, or both mentally and
physically, to exercise clear judgment, sufficient physical
control, or due care in the safe operation of a vehicle.
“MOTOR VEHICLE” means any self-propelled vehicle
which is designed primarily for travel on the public
highways and which is generally and commonly used to
transport persons and property over the public highways,
but the term does not include motorized bicycles as
defined in paragraph (b) of subsection (59) of this
section, wheelchairs as defined by subsection (113) of
this section, or vehicles moved solely by human power.
“Motor vehicle” includes a neighborhood electric vehicle
operated pursuant to section 42-4-111(1)(a). For the
purposes of the offenses described in sections 42-2-128,
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42-4-1301, and 42-4-1401 for farm tractors and offhighway vehicles, as defined in section 33-14.5-101(3),
C.R.S., operated on streets and highways, “motor
vehicle” includes a farm tractor or an off-highway vehicle
which is not otherwise classified as a motor vehicle.
“VEHICLE” means any device which is capable of
moving itself, or of being moved, from place to place
upon wheels or endless tracks. “Vehicle” includes any
bicycle, but such term does not include any wheelchair as
defined by subsection (113) of this section, or any offhighway vehicle, snowmobile, any farm tractor, or any
implement of husbandry designed primarily or
exclusively for use and used in agricultural operations or
any device moved by muscular power or moved
exclusively over stationary rails or tracks or designed to
move primarily through the air. [§42-1-102(111), C.R.S.]
“DRIVING” does not have a statutory definition.
However, according to C.R.S. 42-1-102(27), “DRIVER”
means every person, including a minor driver under the
age of twenty-one years, who drives or is in actual
physical control of a vehicle. Colorado case law has
defined driving as including “actual physical control of a
vehicle.” Accordingly, when considering whether a
defendant exercised actual physical control over a vehicle
or caused it to function, that is, drove or operated a
vehicle, a jury may consider the totality of the
circumstances. Furthermore, when there is evidence
indicating that the vehicle may not have been reasonably
capable of being rendered operable, the jury must be
instructed that it must find the vehicle was either
operable, reasonably capable of being rendered operable,
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in motion (whether by coasting or pushing), or at risk of
being put in motion before finding the defendant guilty of
driving or operating a vehicle under the DUI and DARP
statutes.
It is important to remember that the state must
prove beyond a reasonable doubt each element of the
alleged crime. Attorneys trained in the art and science of
DUI defense, like your authors, will look at each element
of the charge and will force the state to prove each and
every element before you are found guilty. If the state is
not able to prove any one of the elements, the charges
should be dismissed or you will be found not guilty at
trial.
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105
ROW, ROW, ROW YOUR BOAT
Boating and Alcohol
Giving money and power to government is like giving
whiskey and car keys to teenage boys.
P.J. O'ROURKE
Many people enjoy boating and having an adult
beverage; and that is not illegal, but operating or allowing
a person to operate a boat while under the influence or
impaired by alcohol is illegal. The laws for Boating
Under the Influence (BUI) are similar, but not the same
as, driving under the influence (DUI).
BUI is covered under Colorado Revised Statues,
section 33-13-108. It is a misdemeanor to operate or be in
actual physical control of a vessel while under the
influence of alcohol, drugs or a combination of both. The
legal limit for BUI is the same as DUI, .08.
The penalties for a first time BUI are 5 days to 1
year in jail. A fine of no less than $200, but no more than
$1,000 shall be imposed. The court can impose up to 96
hours of useful public service. All jail may be suspended
if a person completes an alcohol evaluation and the
recommended treatment. This would consist of level I or
II alcohol education.
In addition, you would have to attend a drunk
driving safety class and abstain from the use of alcohol
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for at least 1 year. The abstinence will be supervised by a
treatment facility. Upon a conviction for a first offense
you shall be prohibited by the court from operating a
vessel for 3 months.
On a second offense within five years, the
penalties increase to jail of 60 days to 1 year. If a person
completes the alcohol evaluation and recommended
treatment the court can suspend all but 5 days of the
mandatory jail. A fine of not less than $500, but no more
than $1,000 dollars shall be imposed. The court shall
impose no less than 60 hours of useful public service but
no more than 120 hours. All but 5 days of jail may be
suspended if a person completes an alcohol evaluation
and the recommended treatment. This would consist of
level I or II alcohol education.
In addition you would have to attend a drunk
driving safety class and abstain from the use of alcohol
for a year. The abstinence will be supervised by a
treatment facility. Upon a conviction for a second offense
you shall be prohibited by the court for operating a vessel
for 1 year.
Probation in BUI cases shall not exceed 2 years.
One of the major differences between DUI and
BUI is that an owner or operator of a vessel can be
charged under this section if they knowingly allow
another to operate or take actual physical control of a
vessel while the other person is impaired or under the
influence of alcohol or controlled substances.
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MY DOCTOR PRESCRIBED
THIS CUTE LITTLE PILL
AND I WENT TO JAIL
Driving under the influence of drugs illegal and prescription
My reading of history convinces me that
most bad government
results from too much government.
THOMAS JEFFERSON
The law in Colorado allows for prosecution if you
are under the influence of ANY substance that will
impair your ability to drive. The most common item is
alcohol, but many drugs can produce a form of
impairment. Illegal drugs such as marijuana, crack
cocaine, and PCP are a few examples of the 6 main
categories a police officer will be looking for. Included
in the 6 classifications of impairing drugs are many
prescription medications, one of the most common being
narcotic analgesics. Valium, Zanex, Ambien and Loritab
are but a few of other commonly prescribed drugs that
people may legally possess with a valid prescription from
their physician yet still result in an arrest if they are
driving while under the influence of those drugs. A
person charged with driving under the influence of drugs
(DUID) would be facing the same penalties as a DUI
charge.
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There is a program designed through the
Department of Transportation to train officers to be Drug
Recognition Experts or Evaluators (DRE). The authors
of this book have been trained to understand and defend
against the allegations of the state’s Drug Recognition
Experts. Once an officer on the street suspects drug
impairment, there is a 12-step evaluation procedure that
is undertaken to determine if an arrest is warranted.
Similar to the SFSTs for alcohol impairment,
there have not been any credible studies to support the
position that DRE exams have any scientific basis of
reliability. Another problem is that there are very few
officers trained in drug recognition evaluation and the
trained ones often will ignore the procedures and just
make a guess. This results in an arrest, but it also opens
the door for a vigorous defense by properly trained DUI
attorneys with DRE training.
The tides in Colorado are changing when it comes
to DUID. At the time of the publishing of this book, the
state had not yet determined a per se level for
Tetrahydrocannabinol (THC). It is the author’s belief
that, right or wrong, the state will settle on a per se limit
for THC with little or no scientific research to support the
arbitrary number.
Once this decision has been made there will be a
charge for DUID and for DUID per se as it relates to
levels of THC within the blood. A trained DUI and
DUID attorney knows how to decipher the state’s blood
and urine tests to determine whether the state has
109
evidence of past use or of active impairment. It is
important to note that unlike alcohol, drug metabolites
stay in the body for an extended period of time. Most
drugs have an active and inactive component, known as a
metabolite, and it is critical that your defense attorney
now how to determine the difference between them and
ensure that the state’s test is for the active metabolites.
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HOW BAD WILL IT HURT?
Legal penalties
Good resolutions are simply checks
that men draw on a bank
where they have no account.
OSCAR WILDE
There are several different crimes in Colorado
dealing with drinking and/or drugged driving. The most
common is driving under the influence of alcohol or
drugs. These two crimes are commonly referred to as
DUI or DUI drugs. The elements of DUI are that you
were under the influence of alcohol or drugs while
operating a motor vehicle or in actual physical control of
a vehicle.
To prove that you were under the influence of
alcohol or drugs, the State must show that you were
incapable of safely driving or operating a motor vehicle
due to the consumption of alcohol or drugs or a
combination of alcohol and drugs.
However, in
Colorado, if you consent to a chemical test (breath or
blood) and it shows a breath or blood alcohol level of .08
grams per 100 milliliters of blood or 210 liters of breath,
then you are presumed to be under the influence of
alcohol, regardless of your indicia or whether your
driving was actually impaired.
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DUI and Actual Physical Control (APC)
Driving Under the Influence actually requires
driving a motor vehicle. However, if you were not
actually driving a vehicle, then you may still be charged
with DUI due to being in actual physical control (APC)
of a motor vehicle while under the influence of alcohol or
drugs. A person sleeping in their car can be charged with
DUI.
The definition of actual physical control is that the
vehicle was either operable, reasonably capable of being
rendered operable, in motion (whether by coasting or
pushing), or at risk of being put in motion.
In layman’s terms, it is having the ability to put
the vehicle into motion. Could you have put the vehicle
into motion if you wanted to? That’s right - you can be
convicted of DUI for having the ability to drive a vehicle.
There is case law that states that a person can be in actual
physical control of the motor vehicle even when sleeping
behind the wheel of the car.
Although the car must be operational, it is not
necessary that the vehicle be able to move. For example,
a vehicle that is stuck on a curb and with the tires
spinning, would be sufficient for APC if the other
elements of the crime were also proven.
To find APC, the jury can determine if someone is
exercising actual physical control by a totality of the
circumstances. The factors for the jury to consider in
determining the issue of actual physical control include
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the vehicle’s operability, the vehicle’s location,
defendant’s location in the vehicle, the location of the
ignition keys, whether the motor was running, whether
defendant had the apparent ability to start the vehicle,
whether defendant was conscious, whether the heater or
air conditioner was running, whether the windows were
up or down, and any other factor which tended to indicate
that defendant exercised bodily influence or direction
over the vehicle based on the jury’s everyday experience.
Penalties
A DUI and DWAI are currently misdemeanor
charges in Colorado regardless of the number of priors.
The maximum penalty for a DUI is the same regardless
of priors, however, the minimum mandatory penalties
increase as the number of priors increase.
Driving Under the Influence - DUI First Offense
A DUI first offense carries a mandatory 5-day jail
sentence with up to a maximum of 1 year. All jail can be
suspended upon completion of level I or level II alcohol
education and therapy. The requirements are set forth in
CRS §42-4-1307(3). There is a fine of not less than $600
and not more than $1,000. There is a mandatory 48 hours
of useful public service (UPS) but no more than 96 hours
of UPS may be imposed. The court may order up to 24
months of probation.
If the BAC is .200 or greater, then there is a
mandatory 10 days jail that must be imposed. The court
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has the discretion to employ alternative sentencing
options for this mandatory period of jail.
Driving While Ability Impaired - DWAI First Offense
The lesser-included charge of DUI is Driving
While Ability Impaired. This charge is commonly
known in Colorado as DWAI. Driving while ability
impaired means driving a vehicle when a person has
consumed alcohol or one or more drugs, or a combination
of both alcohol and one or more drugs, which alcohol
alone, or one or more drugs alone, or alcohol combined
with one or more drugs, affects the person to the slightest
degree so that the person is less able than the person
ordinarily would have been, either mentally or physically,
or both mentally and physically, to exercise clear
judgment, sufficient physical control, or due care in the
safe operation of a vehicle. In Colorado, this is the lesserincluded crime of DUI. If your BAC comes back
between .05 and .079, there is a rebuttable presumption
that you are driving while impaired.
The punishment for DWAI first offense has a
mandatory minimum of 2 days jail and a maximum of 6
months in jail.
All jail can be suspended upon
completion of level I or level II alcohol education and
therapy. There is a fine of not less than $200 and not
more than $500. If convicted of DWAI, you have to
complete a mandatory minimum 24 hours of useful
public service (UPS), but not more than 48 hours of UPS.
The Court may order up to 24 months of probation.
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If the BAC is .200 or greater, then there is a
minimum mandatory 10 days jail that must be imposed.
The court has the discretion to employ alternative
sentencing options for this mandatory period of jail.
DWAI does not carry an automatic license
revocation unless the defendant receives enough points to
place the defendant over the allotted amount of points for
the 12 or 24 month timeframes.
Driving under the Influence DUI - Second Offense
within 5 years
A DUI second within five years of the prior has a
mandatory minimum 10 days jail and a maximum of up
to 1 year. The mandatory minimum jail must be
imposed. There will be no credit for good time, earned
time or reduction on the minimum due to trusty status.
Work and education release are available if the person is
employed or enrolled at the time of sentencing. There is a
fine of not less than $600 and not more than $1,500.
There is a mandatory minimum of 48 hours of useful
public service (UPS), but not more than 120 hours of
UPS may be imposed. The court SHALL order 24
months of probation. There will be 1 year jail suspended
as a condition of probation.
Driving Under the Influence DUI - Second Offense
outside 5 years
A DUI second outside of five years of the prior
has a mandatory minimum 10 days jail and a maximum
of up to 1 year. The mandatory minimum jail must be
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ordered. This jail time may be served by alternative
sentencing (in-home detention, weekends, etc) at the
discretion of the court.
There will be no credit for good time, earned
time or reduction on the minimum due to trusty status.
Work and education release are available if the person is
employed or enrolled at the time of sentencing. There is a
fine of not less than $600 and not more than $1,500.
There is a mandatory minimum of 48 hours of useful
public service (UPS) but not more than 120 hours of UPS
may be imposed. The court SHALL order 24 months of
probation. There will be 1 year jail suspended as a
condition of probation.
Driving Under the Influence DUI - Third or
subsequent offense in a lifetime.
A DUI third or more in a lifetime has a mandatory
minimum of 60 days jail and up to a maximum of 1 year.
The mandatory minimum jail must be imposed. There
will be no credit for good time, earned time or reduction
on the minimum due to trusty status. Work and
education release are available if the person has them in
place at the time of sentencing. There is a fine of not less
than $600 and not more than $1,500. There is a
mandatory minimum of 48 hours of useful public service
(UPS) but not more than 120 hours of UPS may be
imposed. The court SHALL order 24 months of
probation. There will be 1 year jail suspended as a
condition of probation.
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Underage Drinking and Driving (UDD)
There is an additional subsection of the statute
that only applies to drivers under the age of 21. Colorado
holds underage drivers to a higher standard. Colorado
law states that if you are under 21 and driving with a
breath or blood alcohol level of .02 or greater, then you
can be charged with a crime. What you are charged with
will depend on the result of your chemical test. If your
BAC is .08 or greater, you will be charged with DUI, just
like a driver over the age of 21. If your BAC is between
.05 and .079, you will be charged with DWAI, just like a
driver over the age of 21. The difference comes when
your BAC is between .02 and .049. If your test result is
greater than .02 and less than .05 you will be charged
with Underage Drinking and Driving (UDD).
A UDD is a class A traffic infraction:
The court, upon sentencing a defendant for UDD,
may, in addition to any penalty imposed under a class A
traffic infraction, order that the defendant perform up to
24 hours of useful public service., and may further order
that the defendant submit to and complete an alcohol
evaluation or assessment, an alcohol education program,
or an alcohol treatment program at such defendant's own
expense.
Child Abuse
This is a cautionary note to parents or anyone who
has custody of a child. In addition to being charged with a
DUI, DWAI or DUID, the District Attorney’s Office can
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and will add the charge of child abuse if you have
juveniles in the car when you are contacted and suspected
of driving under the influence or while impaired.
A person commits child abuse if such person
causes an injury to a child’s life or health, or permits a
child to be unreasonably placed in a situation that poses a
threat of injury to a child’s life or health. A “child”
means anyone under the age of 16.
Vehicular Assault - A DUI accident with Serious
Bodily Injury
Regardless of prior convictions, if your DUI or
DWAI involves an accident causing serious bodily injury,
you will be charged with felony vehicular assault. If a
person operates or drives a motor vehicle while under the
influence of alcohol or one or more drugs, or a
combination of both alcohol and one or more drugs, and
this conduct causes serious bodily injury to another, that
person commits vehicular assault. This is a strict liability
crime, which means you do not have to have the specific
intent to commit the act or crime. This crime involving
impairment is a class 4 felony. It carries a presumptive
range of 2 to 6 years in prison or 1 to 12 years if there is
exceptional mitigating or aggravating circumstances.
There is also a mandatory 3 years parole if sentenced to
Department of Corrections (prison).
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Vehicular Homicide – A DUI accident resulting in
Death
If a person operates or drives a motor vehicle
while under the influence of alcohol or one or more
drugs, or a combination of both alcohol and one or more
drugs, and causes death of another, such person commits
vehicular homicide. This is a strict liability crime.
Vehicular homicide involving impairment is a class 3
felony. This charge carries a presumptive range of 4 to 12
years in prison or 2 to 24 years if there is exceptional
mitigating or aggravating circumstances. There is also a
mandatory 5 years parole if sentenced to Department of
Corrections (prison).
A DUI charge carries significant penalties and
loss of liberty. It is very important for anybody who is
charged with DUI or DUI-related crimes to immediately
consult and retain a highly qualified DUI attorney.
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121
COMMON POLICE
MISTAKES
And how they can help you
Liberty may be endangered by the abuse of liberty
but also by the abuse of power.
JAMES MADISON
Numerous policies, procedures, and laws govern
the actions of the police. Mistakes, misunderstandings,
or errors from the initial contact to the final booking may
help in winning your DUI.
Improper Stops
TIPS OR ANONYMOUS CALLS – There are
two types of Report Every Drunk Driver Immediately
(REDDI) reports. There is the unidentified REDDI
reporter. If the caller cannot be identified or refuses to
provide any contact information, the officer must have a
secondary reason for contact. The officer cannot solely
rely on the caller’s report or observations to make contact
if the officer cannot identify the caller. If the reporter
leaves his name and contact information (identified
REDDI reporter) the officer can contact you without
directly observing any infractions or law violations.
WEAVING IN LANE - This observation alone is
not a proper basis to stop a driver. No car drives
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completely straight. There are various reasons a driver
may drift or weave within a lane. Weaving within your
lane is not illegal.
MISTAKE OF LAW – Even if the officer has the
best intentions, a stop based on a mistake of law is an
illegal stop.
STOPPING WRONG CAR - Just as an officer
must see an actual violation, the officer must be able to
clearly identify the car stopped and identify why it was
stopped.
STOPPING FOR A HUNCH OR JUST FELT
LIKE IT - Rarely will an officer admit this was the
reason for a stop. Almost every officer knows this is an
illegal stop and any resulting evidence will be excluded.
Improper Arrest
BAD SFSTs - The roadside gymnastic tests are a
tool used to make an arrest decision. The tests have
specific rules and observations. If they are not followed,
then the probable cause for the arrest can be brought into
question.
WEATHER - Weather can affect observations of
driving and performance on SFSTs. Failure to consider
this factor can affect credibility.
MEDICAL-PHYSICAL CONDITIONS - There
are numerous medical and physical conditions that can
affect a person’s roadside behavior and performance.
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These issues should be considered and factored into an
officer’s arrest decision.
For instance, there is
documented court testimony of at least 38 causes for
HGN (the condition being tested during the pen/eye test)
other than alcohol. Included are stress, caffeine, nicotine,
flu, strep, measles, hypertension, lack of sleep, and
fatigue to name a few.
ILLEGAL EXTENSION OF STOP - Once an
officer has completed the reason for the initial stop, the
officer should terminate the contact and allow you to
leave. For instance, if you are stopped for speeding, you
should receive a ticket and be allowed to leave unless
there is a clearly articulated reason to extend the
detention. If the initial reason for the stop dissipates
before or during, then the contact must cease.
VIDEOS DON’T SUPPORT ARREST REPORTVery few agencies use videos in Colorado. You have
probably watched COPS on TV. When the videos are
available, they may not support the arrest decision or may
show facts different from what is in the police report.
Improper Blood Test
PROPER REQUEST – If a person requests a test
and is not given one through no fault of their own then
the case can be dismissed. A persons request needs to be
granted unless there are extraordinary circumstances
precluding the completion of the requested test. The
statute provides that under the extraordinary
circumstances the other test shall be offered.
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STATUTORY REQUIREMENTS - There are
specific procedures that must be followed in performing a
blood test.
LAB MISTAKES - Most often a blood test is not
tested by a human. Many samples are loaded in a
machine; it runs overnight and prints out multiple reports
in the morning. This allows for many human and
machine mistakes.
Sample tray loaded with one testing batch of blood samples.
Improper Breath Test
RULES OF CDPHE – The Colorado Department
of Public Health and Environment sets the rules
governing all breath testing in the state of Colorado.
Failure to follow the rules can result in the exclusion of
the test from court evidence.
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CERTIFICATION OF OPERATOR - The
operator of the machine must be certified and the
certification must be renewed every 6 months.
CERTIFICATION OF INSTRUCTOR – A breath
test instructor must be certified and the certification must
be renewed every year or the instructor must teach a class
in the past twelve months to maintain their certification.
CERTIFICATION OF MACHINE - The machine
must be certified by CDPHE annually and periodic
maintenance must be performed on it.
INTERFERENTS - There are numerous chemical
and physical items that can interfere with a proper test,
which can result in false readings.
MACHINE NOT CALIBRATED - If a machine
is not properly calibrated, it will result in false or
unverifiable readings.
MACHINE MALFUNCTION - This machine is
1980s technology. There are numerous parts of the
machine that may not be working, yet, the machine will
still generate a BAC reading.
PROCEDURES NOT FOLLOWED - There are
specific procedures that must be followed before a proper
test can be administered.
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Procedural Mistakes
MIRANDIZE/READ YOUR RIGHTS - Although
the law will not require a reading of your Miranda
warning, if the officer continues to question you after
your arrest, many statements may be excludable.
WITNESS APPEARANCE - If a witness was
responsible for your initial stop or other key element, the
witness will also have to appear at key points in the case.
INCONSISTENT STATEMENTS BY COP - If
the cop’s testimony at court differs from his written
report, it brings his credibility into question.
EXPERT WITNESS - We have experts who often
analyze reports, breath tests, and video tapes to help
determine if the arrest was proper and the facts were
correctly presented.
ABSORPTIVE STAGE - It is a medical fact that
during the early stages of drinking, you will show an
artificial ‘peak’ while absorbing the alcohol. This means
that during the early stages of absorbing alcohol before it
is fully absorbed into your system you will yield an
artificially high BAC.
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I’M A SMART PERSON
I DON’T NEED AN
ATTORNEY
Do I?
If you want to be free, there is but one way,
it is to guarantee an equally full measure of liberty
to all your neighbors.
There is no other way.
CARL SCHULTZ
If you haven’t read Chapter 4, “IT’S A SIMPLE
DUI, WHAT’S THE BIG DEAL?”, read it and then
return to this page. Ask yourself, “Am I willing to pay
this price?” Then ask, “Do I feel my future is worth the
investment of hiring a top-flight DUI attorney?”
Now read Chapter 14, “GIZMO, MACHINE or
INSTRUMENT” along with Chapter 15, “NEEDLES,
NEEDLES, NEEDLES”.
If you have read these
chapters, ask yourself one more question, “Even though I
may be an intelligent person, do I really think I have the
skill and experience in what is possibly my only time in a
court room to outsmart the police officer and prosecuting
attorney who do this for a living every single day?”
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CAUTION:
Far too often, I will receive a phone call from
someone who says, “I think I will just go talk to the judge
or the prosecutor myself.” REALLY? Let’s think about
this --- they have arrested you and have filed criminal
charges against you. Does that sound like a friendly
shoulder to lean on?
THINK… We call them
PROSECUTORS for a reason… they make their living
PROSECUTING people. Do you really think they have
your best interest at heart? Of course not, they are
concerned with CONVICTIONS. In Colorado, there
have been recent admissions of bonuses being paid to
district attorneys based on the number of convictions they
achieve. Do you think this system will cause them to feel
bad for you and cut you a break?
The Judge will not talk with you; he is supposed
to be an impartial party who stands between your defense
attorney and the prosecutor. If you plead guilty, the
judge can sentence you to jail with no explanation. And
please, please do not turn to a friendly police officer for
help. Hasn’t he helped you enough by putting you in this
position to begin with? Cops may be familiar with the
statutes but that doesn’t mean they know how to use them
to protect you. They often do not understand the hidden
costs, deadlines, or court procedures that are so important
to your future.
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OK, YOU CONVINCED ME
TO HIRE SOMEONE,
WHERE CAN I FIND THE
CHEAPEST ATTORNEY?
Parachutes, brain surgeons, and DUI attorneys
Security is mostly a superstition.
It does not exist in nature.
Life is either a daring adventure or nothing.
HELEN KELLER
Beware of bargains when choosing a parachute, a
brain surgeon, and a DUI attorney. These are not areas
where your first thought should be, “Where can I get the
best deal?” You need quality and excellence. Just as
with the parachute and surgeon, when choosing a DUI
attorney, you need protection, strength, and
dependability. You deserve the best defenses.
Why do prices vary so much between attorneys,
it’s just a DUI?
Let me ask you, how much does a car cost?
Before you could give an answer you would need
to know if it is a new car or a used car. Is it a compact, a
high performance sports car or an ultra-luxury car? How
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many miles are on it? What is the maintenance record
and much, much more?
One car may be a compact with no air
conditioning, burning oil, running on one donut tire and
the fuel line is clogged so it just stops at times. It may or
may not get you where you are going but if you do finally
arrive, you will be worn out, tired, sweaty, and late.
Another car may have perfect temperature
control, runs smooth with great suspension, all systems
work perfectly and you will arrive early to your
destination, relaxed and in a good mood.
It would be unfair and misleading to compare the
two cars on price alone.
There are two main ways a lawyer can attract new
business. For some, it is through cheap fees. For others
it is through exceptional skills, training, and reputation.
Regretfully, you do not find cheap and highly skilled
together. Why?
•
It costs more if an attorney has specialized,
detailed training that applies to a specific case.
•
It costs more if an attorney focuses his practice in
a specific type case, thus limiting income
potential.
•
It costs more if an attorney is constantly updating
his skills and knowledge necessary to protect
you.
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•
It costs more if you are hiring a trained team of
lawyers and staff dedicated to your type of case.
•
It costs more to provide you with the type of
customer service and communication that you
deserve.
•
It costs more to purchase a product or service that
is better than what the competition is offering.
BUT, it actually costs LESS if the attorney can
properly protect you. You will have to decide---do you
want to cut costs and gamble on poor results? Don’t you
deserve an investment in yourself and your future by
having a skilled attorney who gives personalized
attention to your needs?
No attorney can guarantee results, but you need to
give yourself the best opportunity for success. You can
do this by hiring a DUI attorney who has the experience,
training and skill set needed to attack and successfully
defend DUI cases.
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133
ONLY 2 CASES OF BEER
AND THEY SAID I WAS
DRUNK
How to estimate your blood alcohol level
When I was younger, I could remember anything,
whether it had happened or not.
MARK TWAIN
You can estimate the percent of alcohol in the
blood by the number of drinks in relation to body weight.
You should remember this is just an estimate. Many
factors such as amount and type of food consumption,
prior exposure to alcohol, medical issues, gender
differences, and time of consumption can change the
calculations up or down. To make an estimate:
1. Count your drinks (1 drink equals one ounce of
100-proof liquor, one five - ounce glass of table
wine or one twelve ounce bottle of regular beer).
2. Use the following chart and under number of
“drinks” and opposite “body weight” find the
percent of blood alcohol listed.
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DRINKS
Body
weight
100
lb.
110
lb.
120
lb.
130
lb.
140
lb.
150
lb.
160
lb.
170
lb.
180
lb.
190
lb.
200
lb.
210
lb.
220
lb.
230
lb.
240
lb.
1
2
3
4
5
6
7
8
9
10
11
12
.038 .075 .113 .150 .188 .225 .263 .300 .338 .375 .413 .450
.034 .066 .103 .137 .172 .207 .241 .275 .309 .344 .379 .412
.031 .063 .094 .125 .156 .188 .219 .250 .281 .313 .344 .375
.029 .058 .087 .116 .145 .174 .203 .232 .261 .290 .320 .348
.027 .054 .080 .107 .134 .161 .188 .214 .241 .268 .295 .321
.025 .050 .075 .100 .125 .151 .176 .201 .226 .251 .276 .301
.023 .047 .070 .094 .117 .141 .164 .188 .211 .234 .258 .281
.022 .045 .066 .088 .110 .132 .155 .178 .200 .221 .244 .265
.021 .042 .063 .083 .104 .125 .146 .167 .188 .208 .229 .250
.020 .040 .059 .079 .099 .119 .138 .158 .179 .198 .217 .237
.019 .038 .056 .075 .094 .113 .131 .150 .169 .188 .206 .225
.018 .036 .053 .071 .090 .107 .125 .143 .161 .179 .197 .215
.017 .034 .051 .068 .085 .102 .119 .136 .153 .170 .188 .205
.016 .032 .049 .065 .081 .098 .115 .130 .147 .163 .180 .196
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.016 .031 .047 .063 .078 .094 .109 .125 .141 .156 .172 .188
3. Subtract from this number the percent of
alcohol “burned up” during the time elapsed since
your first drink. This figure is .015% per hour.
(Example: 180 lb. man has 8 drinks in 4 hours /
.167% minus (.015x4) = .107 %)
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137
THE 7 DEADLY SINS FOR A
COLORADO DUI
And how to avoid them
We as people are neither as good
as our finest moment in life,
nor as bad as our least flattering moment.
All in all, and for the most part,
We all generally fall somewhere in the middle.
BRUCE EDGE
The seven deadly sins you can commit when dealing
with a DUI case in Colorado are:
•
THINKING IT IS A ‘SIMPLE’ DUI. There is no
such thing as a ‘simple’ DUI. A conviction on this
charge will follow you for the rest of your life. The
additional insurance charges alone could cost you
thousands of dollars. You may lose numerous job
opportunities, be denied housing, lose a pilot’s license
and be prevented from traveling to foreign countries.
There are many hidden costs (see chapter 4) you will
experience from a conviction.
•
THINKING ALL ATTORNEYS ARE THE SAME they are NOT. DUI defense is a complex field. It
involves physical, mental, emotional, scientific,
technical, and factual issues that are unique to each
case. Timing can be very important to the success of
138
your case. Defenses must be raised at the right time
or you will lose them and evidence must be gathered
quickly. You should seek out the best qualified
attorney who specializes in this area of practice. A
quality DUI attorney will surround himself with a
trained and talented team, assuring the client of
personalized attention to each case.
•
NOT REQUESTING AN ADMINISTRATIVE
HEARING TO PROTECT YOUR DRIVER’S
LICENSE. The accused only has 7 days to request
the hearing in a breath or refusal case. In a blood
case the accused only has 10 days to request this
hearing from the date the Order of Revocation was
mailed. If an attorney doesn’t tell you about this
hearing or says you can’t win this hearing-- that
attorney is either not competent to represent you or is
taking short cuts at your expense.
•
HIRING A LAWYER WHO HAS THE LOWEST
FEE. The lowest fee may mean the least qualified
and the least amount of time spent on your case. This
kind of lawyer may take the easy way out and settle
for the first offer the government makes so he can
quickly move on to another low-fee case. His
concern is quantity, not quality. You get sold out
when the legal issues of your case are ignored in an
effort to make a quick fee. The low fee most likely
will cost you more in hidden costs (see chapter 4)
before you are finished. Be careful of bargains with
brain surgeons, parachutes, and DUI defense
attorneys.
139
•
QUICKLY ACCEPTING A SETTLEMENT FROM
THE PROSECUTOR. The first offer is not a deal.
An attorney who takes the first offer is trying to get
rid of your case with the least amount of work. You
never get to raise legal issues or make the state prove
its case. This is not legal defense—this is dump truck
lawyering (see chapter 24).
•
DRIVING AFTER YOUR LICENSE HAS BEEN
TAKEN AWAY. This is an arrestable offense and
can make it more difficult to defend your DUI case,
as well as cause an increased revocation period. In
Colorado, you can be facing an additional one year
revocation of your driver’s license and a mandatory
minimum 30-day jail sentence, if charged with
Driving Under the Influence – Alcohol Prohibited.
•
NOT PROTECTING YOUR CONSTITUTIONAL
RIGHTS.
An experienced DUI attorney will
recognize the issues unique to your case and will have
the experience to protect you. This includes at a
minimum, challenging the legality of the reason you
were stopped, the legality of any test given to you, the
voluntariness of the field tests, the propriety of any
field test given to you, the validity of your arrest
itself, the legality of any express consent advisement,
and the procedures of the administration of any
breath/blood test.
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141
DUMP TRUCK LAWYERS
Don’t get dumped by an unconcerned lawyer
A judge is a law student
who marks his own examination papers.
H. L. MENCKEN
“Dump Truck” is what attorneys call other
lawyers who only want to dump their clients by quickly
pleading them guilty instead of offering a vigorous
defense. Unfortunately, there are a number of such
lawyers, and they can be spotted in several ways.
Warning signs of a ‘Dump Truck’ lawyer are any
attorney who:
● Quickly leads the conversation into a
discussion about plea bargaining as the
primary focus (unless there are complications
with the case which can only be discovered
after reviewing the facts of your case). If the
attorney is talking about a plea bargain or a
deal during the initial consultation or before
they have had a chance to review the facts of
your case, you may want to consider hiring
someone whose goal is not to plead you
guilty.
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•
Promises to get it all taken care of quickly
with no appearance by you. One such
attorney may advertise “no court appearances,
no time off work.” You cannot fight the
charges that way. Not surprisingly, his ad also
says “low cost.”
•
Promises you an outcome. Quality attorneys
do not promise, speculate or guarantee
outcomes. An attorney, who promises to get
you a DWAI, isn’t getting you anything you
couldn’t achieve on your own.
•
Promises low cost and quality representation.
These are two traits that you do not find at the
same time. If the attorney is primarily selling
himself as a low-fee alternative, it means he is
either not well qualified or he will spend little
or no time in preparing the case. Far too
often, both happen in DUI cases.
•
Quotes a low fee over the phone after a very
short conversation. He has already decided he
will just go through the motions necessary to
plea your case. It is reasonable to spend 1 to 1
½ hours with a reasonable qualified attorney
before deciding to hire him. There should not
be a fee for this initial consultation. This
consultation can be on the phone or even
better, in person. Any attorney who is not
willing to give you the time you need during
the consultation stage will never give your
143
case the time it needs once the check has been
cashed.
•
Meets you for the first time at court and wants
money to be there. This is not representing
you. He doesn’t even KNOW WHO YOU
ARE OR WHAT YOUR CASE INVOLVES!
Your first meeting should be in an office and
it should be a detailed investigation into the
case. Only then, can the lawyer give an initial
evaluation and advise you properly about the
next stages that your case should take.
•
Charges you a trial fee that is higher than the
amount for the preliminary matters.
Successful DUI attorneys go to trial. They
don’t discourage their clients from going to
trial by having an escalated trial fee. If your
attorney is charging two or three times more
for trial than for the pre-trial matters, you may
want to re-consider who you hire. Trial
preparation should begin the moment you hire
your attorney.
Every case needs to be
prepared from the start as if it is going to go to
trial.
•
Operates his/her firm with no office staff and
meets you at a restaurant, law library or a
virtual office downtown, because he has no
actual office.
It takes a great deal of
preparation to properly defend a DUI case and
a lawyer should have staff members to assist
not only the lawyer, but you the client when
144
the client calls with a question. Who answers
their phones when they are in court and even
worse, do you want your lawyer leaving the
courtroom during your case to take a cell
phone call? Attorneys are only as good as
their staff and you want someone who has
surrounded themselves with quality people.
You should be assured the attorney and his staff
members are capable, willing, and ready to TAKE YOUR
CASE TO TRIAL. In any discussion of your case, you
deserve to be represented from a position of strength
rather than weakness.
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LAWYERS ALL LOOK THE
SAME TO ME
Questions you should ask before hiring a DUI
Lawyer
The nose of the bulldog has been slanted backwards
So that he can breathe without letting go.
WINSTON CHURCHILL
The following are qualifications your attorney
should possess if he is serious about properly defending
your case and is passionate about defending citizens
accused of DUI:
1. Have you been honored by fellow Colorado
attorneys as a SUPER LAWYER or RISING
STAR, placing you in the top 5% of attorneys in
the State?
2. Are you a member of the National College for
DUI Defense?
3. Have you attended the National College for DUI
Defense summer training in Boston, held at the
Harvard Law School? Did you attend the last
college and how many times have you attended?
4. Have you instructed other attorneys and spoken
or trained at continuing legal education
146
seminars certified by the Colorado Supreme
Court?
5. Are you certified in Standardized Field Sobriety
Tests administration?
6. Are you certified as an INSTRUCTOR of
Standardized Field Sobriety Tests?
7. Are you trained by the Department of
Transportation as an Intoxilyzer 5000-EN
OPERATOR?
8. Do you have instant access to the most
experienced DUI Attorneys and experts in the
nation?
9. Are you DRE (Drug Recognition Expert)
trained?
10. Do you have successful trial experience in DUI
defenses?
11. Do you have successful experience in fighting
DUI blood tests?
12. Have you had specialized training in lab testing
to understand blood testing?
13. Do other criminal defense attorneys refer their
‘tough’ cases to you?
147
14. Have you ever been disciplined by the Board of
Professional Responsibility in any state that you
have practiced in?
15. Is your practice limited to DUI and criminal
traffic defense?
148
149
I HAVE TO BLOW START
MY CAR?
Ignition Interlock and SCRAM devices
Experience is the name
everyone gives to their mistakes.
OSCAR WILDE
As the result of pressure from lobbying groups,
the federal government has increased the pressure on the
states to take measures to ensure repeat offenders do not
drink and drive and in some cases, consume alcohol at
all. Similar to the same methods used to force the states
to lower the legal limit from .10 to .08 and increase the
legal drinking age to 21, the federal government threatens
to withhold highway money unless the states change their
state laws to reflect the demands of the federal
government.
In Colorado, if you lose your license for a per se
revocation at the Department of Revenue, the motor
vehicle division will require an interlock for early
reinstatement on a first offense.
Ignition Interlock
The most widely used method to prevent drunk
drivers from re-offending is requiring the installation of
an ignition interlock device. We call this device the
150
“blow and go.” There are several companies offering
these devices which are all essentially the same device.
These companies include Smart Start, Guardian Interlock,
Draeger Safety Diagnostics, Inc., and National Interlock
Services Ltd.
An ignition interlock is basically a portable, barebones breathalyzer. However, it does not have the same
screening filters to keep out interferents like the bigger
machines used by law enforcement agencies do.
The device attaches to your vehicle under the dash
near the driver’s right leg. It is installed directly into the
ignition system of your vehicle. According to the
manufacturers, the devices do not cause any permanent
damage to your vehicle.
The devices are small,
approximate size of 3.5 inches by 6 inches. This box will
have a blow tube on one end and a cord similar to a
telephone cord on the other end extending under the dash.
Ignition Interlock System
To start your vehicle, you will have to blow into
the ignition interlock device. If any alcohol is detected in
your breath, your car won’t start. If you think, “I’ll just
have my sober friend blow and I’ll be off.” Nice
thinking, but you will have to blow again after you drive
a while, usually every 5 to 30 minutes while driving. The
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only way around this would be to take your friend that
hasn’t consumed any alcohol with you. In which case,
your friend should be the one driving!
On a first offense in Colorado where your BAC
was .169 or lower, the DMV requires the installation of
an ignition interlock device for 8 months after you have
served the 1 month of not driving. You can avoid the
interlock altogether if you choose to serve the full 9
month revocation. If your BAC is .170 or higher, the
DMV will require an ignition interlock for two years after
the required 1 month of no driving and that 2 year
interlock requirement will not go away, even if you don’t
drive or reinstate your license.
The Court may also order the installation of an
ignition interlock device for a specified time frame as a
condition of probation. The Court does not have the
power to reinstate driving privileges if you are under a
valid license suspension or revocation. Only the DMV
has that power.
The use of ignition interlocks is excessive in some
situations. For example, the device only detects alcohol,
but Colorado requires the installation of the device even
when your revocation is the result of driving under the
influence of prescription medicine. Toyota has recently
announced the introduction of vehicles that have what
amounts to an ignition interlock built into the car so it
will not start if you have any alcohol in your system. It is
important to note that these devices do serve a purpose,
but they are highly unreliable and provide a lot of false
positive results.
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SCRAM
Another alcohol detecting device starting to be
used more and more is the SCRAM ankle monitor. The
SCRAM device is an ankle monitor similar to a global
position monitor used by some states and the federal
government for persons under house arrest. Think of
Martha Stewart serving her house arrest on her
multimillion dollar farm. This monitor communicates
through a modem connected to a monitoring station
which alerts the authorities if alcohol is detected.
The SCRAM device uses the same technology
and chemistry used in the Breathalyzer. This technology
is called a fuel cell. It samples or tests the constant
perspiration coming from your skin for traces of alcohol.
There are several problems with fuel cell devices.
They are not specific to ethyl alcohol and can produce
false positives. At least one study has shown these types
of transdermal alcohol measuring devices do not meet the
basic scientific evidence requirements to be admitted in
court.
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WHERE DID THE MONEY
GO?
Bail and bond issues
In the end, we will not remember
the words of our enemies,
But the silence of our friends.
MARTIN LUTHER KING, JR.
In Colorado when you are arrested and processed
for a DUI or DUID the officer in many cases will release
you to a sober person or take you to a detoxification
center. If they arrest you and book you into jail you will
be advised the next morning by a judge or magistrate of
your rights and the amount of bond you will need to post
before you can be released.
In cases where there is an accident with serious
injury or death, bond may be set at an extremely high
amount. Your attorney can argue and explain to the court
that you are not a current or future threat to the
community to allow bail to be reduced. This explanation
may include a willingness to do random or continuous
alcohol monitoring.
A police officer may arrest a person without a
warrant for crimes committed in the officer’s presence.
In the alternative, an officer may arrest a person when
there has been a warrant issued for the person’s arrest. If
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a warrant has been issued, the issuing judge sets a bond
amount when signing the warrant. This is done off of a
bond schedule, but the amount can always be higher if
the judge deems it necessary. In DUI cases, the arrest is
usually the result of the officer witnessing the alleged
crime occurring.
Cash Bond
If the bond is posted in cash, this money is not
lost as long as the defendant appears for his court
appearances. At the end of the case, the cash bond is
returned to the person posting the bond. However, some
courts will apply the cash bond towards payment of any
court costs or fines assessed against you if it was your
money and not that of a surety.
Be sure to keep your cash bond receipt until the
case is closed and to know whose name is on the bond.
Bail Bondsmen
If a bondsman is retained, they will charge a
premium of ten to twenty percent of the amount of the
bond plus any bond posting fees charged by the jail. For
example, if the bond is $1,000, a bondsman will charge
usually in the range of $150 to $225 which includes his
percentage, plus jail fees. The bondsman’s percentage
will depend on the amount of risk involved in writing the
bond. This percentage is the fee or retainer that is paid to
the bondsman who then posts the full amount of the bond
and is not refundable. The person paying the bondsman
is paying him to place a guarantee with the court that the
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bondsmen will pay the full amount of the bond if you
don’t appear in court.
Most bonding companies will want a guarantee
from the person posting the bond that you will appear.
This assurance is usually in the form of a cosigner on the
bond or posting collateral. Any cosigners are responsible
to the bondsman for the amount of the bond if you don’t
appear in court and the bond is forfeited.
Be aware that every court and jurisdiction will
have different rules and procedures concerning bonds.
Some jurisdictions will “P.R. bond” a person charged
with DUI. “P.R. bond” means the person is released on
their own personal recognizance. If they fail to appear,
they can be charged with further crimes for not
appearing.
In serious cases where the bond can be tens of
thousands of dollars, an attorney may be able to get the
bond reduced depending on the facts of the case. This
reduction in bond can be achieved by agreement with the
prosecutor or lowered by a judge in certain
circumstances. The issues the judge and/or prosecutor
will look at are the risk to the community, the defendant’s
ties to the community (e.g. owns a home, employed,
family in community, etc.), risk of flight, the facts and
seriousness of the alleged crime, and possible
punishment.
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GLOSSARY OF COMMON
TERMS
Administrative License Revocation: The law that
allows the prompt revocation of the license of drivers
charged with Driving Under the Influence (DUI) when a
driver has a BAC above the prescribed legal limit, or if a
driver refuses to take a blood or breath test. Under these
circumstances your driver’s license may be revoked
before adjudication of the DUI charge.
APC: Short for Actual Physical Control. If you are in
physical control of a motor vehicle that is capable of
being driven and are under the influence of alcohol or
drugs, you can be found guilty of DUI. Some states have
a ‘safe harbor’ provision; Colorado currently does not
have this provision. A “safe harbor” provision gives you
credit for realizing you shouldn’t drive and pulling off the
road. But in Colorado, if you go to your car to ‘sleep it
off,’ you will be arrested for DUI.
BAC: Short for “blood alcohol concentration.” BAC
refers to the amount of alcohol in your bloodstream and is
measured in percentages. BAC can be measured by
breath (BrAC), blood, or urine testing and is often used
by law enforcement to determine whether or not a
motorist is “legally drunk.” Colorado has adopted BAC
laws that make it illegal to drive with a BAC at or above
0.08 for substantially incapable and a BAC of 0.05 for
impaired to the slightest degree.
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Breathalyzer: A generic term for a machine used by law
enforcement to measure the BrAC of suspected drunk
drivers. In Colorado, the designated machine is the
Intoxilyzer 5000-EN. The officers will also use a
preliminary breath test (PBT) or often referred to as a
breathalyzer, on the side of the road to help establish
probable cause.
BUI: Short for Boating Under the Influence. Currently
this is defined as operation or being in actual physical
control of a vessel with a BAC of 0.08 or greater.
Chemical Test: As it relates to DUI, a test of the alcohol
or drug concentration in a person’s blood.
An
Intoxilyzer, blood analysis, or urinalysis can be used as
chemical tests for alcohol. If other drugs are suspected, a
blood test or urine test is used.
CDL: Short for Commercial Driver’s License. A
Commercial Driver’s License is required in the United
States to operate any type of vehicle which has a gross
vehicle weight rating (GVWR) of 26,001 lbs (11,793 kg)
or more for commercial use, or transports quantities of
hazardous materials that require warning placards under
Department of Transportation regulations, or that is
designed to transport 16 or more passengers, including
the driver. This includes (but is not limited to) tow trucks,
tractor trailers, and buses.
Commercial Vehicle: A commercial vehicle is a type of
motor vehicle that may be used for transporting goods or
passengers. A vehicle driven for commercial purposes is
classified as either a Class A, B or C commercial vehicle.
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The punishment for a DUI by a person who holds a CDL
is more severe than a non-CDL holder.
Community Service: Uncompensated work performed
for a governmental agency or a non-profit agency.
Community service or useful public service may be a
mandatory part of your sentencing. Once ordered by the
court, it is required to be performed unless the court
allows you to pay a higher fine in lieu if the community
service hours.
DOR: Department of Revenue. In Colorado, this is the
agency responsible for issuing, administering and
revoking your driver’s license.
DUI: Driving Under the Influence. This can be from
two sources. The per se law says you are guilty of DUI if
you have a BAC of .08 or greater. You can also be found
guilty of DUI if a jury determines you were substantially
incapable of operating a motor vehicle safely due to the
consumption of alcohol, drugs or a combination of both.
DUS/DUR: Driving under suspension/revocation. If you
do not have a valid license and drive, you can be arrested.
Driving under suspension and driving under revocation
penalties consist of jail time and an additional loss of
your license for a minimum of one year.
DWAI: Driving While Ability Impaired. A lesser
offense to DUI, which consists of a BAC of .05 to .079
and requires a person be impaired to the slightest degree
such that they are less than ordinarily capable of
operating a motor vehicle safely.
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Felony: A serious crime, such as murder, rape, or
burglary, for which a stricter sentence is given than for a
misdemeanor. Vehicular assault and vehicular homicide
are felonies. If there has been a death or serious bodily
injury as a result of driving under the influence or driving
while ability impaired, you may be charged with a felony.
Ignition Interlock Device: An ignition interlock device
is an in-car alcohol breath screening device that prevents
a vehicle from starting if it detects a blood alcohol
concentration (BAC) over a pre-set limit. The pre-set
limit in Colorado for people under interlock restriction is
currently set at .025. The interlock device is located
inside the vehicle, near the driver’s seat, and is connected
to the automobile’s ignition system.
License Revocation: A license revocation means your
driving privileges have been revoked. You will need to
reapply for a driver’s license after a designated length of
time. Reinstatement requirements will vary based on the
driving record and the reason the license was revoked.
Misdemeanor: A crime less serious than a felony. In
Colorado all misdemeanor cases are heard in county
court.
Open Container Laws: It is illegal to have an open
container of alcohol in your vehicle.
Probation: When all or part of the required jail time is
suspended in exchange for good behavior. Jail time may
be imposed if it is found that the terms of probation have
been violated. Examples of violations would be another
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arrest, driving under suspension, failure to complete your
community service or pay your court fines or complete
your alcohol education and/or therapy classes, or any new
law violation.
Sobriety Checkpoints:
A system where law
enforcement agencies select a particular location for a
particular time period and systematically stop vehicles
(for example, every third car) to investigate drivers for
possible DUI. If any evidence of alcohol consumption is
detected, a detailed investigation ensues.
VIP: Victim Impact Panel. A meeting that usually lasts
about 3 hours consisting of victims, victim’s friends, or
victim’s family members of drunk driving accidents.
Attendance at one of these meeting is a standard
requirement of probation upon conviction of an alcohol
offense.
Work Permit: A common term and a misconception.
People think they can apply for a work permit if their
driver’s license is suspended for a DUI. That is not true.
There is no such thing as a “work permit” in Colorado. A
“Red License” or Probationary Driver’s License exists in
Colorado, but is only for people who have had their
license suspended due to excessive accumulation of
points.
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COLORADO’S DUI STATUTE
42-4-1301. Driving under the influence - driving while
impaired - driving with excessive alcoholic content definitions - penalties.
(1) (a) It is a misdemeanor for any person who is under
the influence of alcohol or one or more drugs, or a
combination of both alcohol and one or more drugs, to
drive a motor vehicle or vehicle.
(b) It is a misdemeanor for any person who is impaired
by alcohol or by one or more drugs, or by a combination
of alcohol and one or more drugs, to drive a motor
vehicle or vehicle.
(c) It is a misdemeanor for any person who is an habitual
user of any controlled substance defined in section 1222-303 (7), C.R.S., to drive a motor vehicle, vehicle, or
low-power scooter in this state.
(d) For the purposes of this subsection (1), one or more
drugs shall mean all substances defined as a drug in
section 12-22-303 (13), C.R.S., and all controlled
substances defined in section 12-22-303 (7), C.R.S., and
glue-sniffing, aerosol inhalation, and the inhalation of
any other toxic vapor or vapors.
(e) The fact that any person charged with a violation of
this subsection (1) is or has been entitled to use one or
more drugs under the laws of this state, including, but not
limited to, the medical use of marijuana pursuant to
section 18-18-406.3, C.R.S., shall not constitute a
defense against any charge of violating this subsection
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(1).
(f) "Driving under the influence" means driving a motor
vehicle or vehicle when a person has consumed alcohol
or one or more drugs, or a combination of alcohol and
one or more drugs, that affects the person to a degree that
the person is substantially incapable, either mentally or
physically, or both mentally and physically, to exercise
clear judgment, sufficient physical control, or due care in
the safe operation of a vehicle.
(g) "Driving while ability impaired" means driving a
motor vehicle or vehicle when a person has consumed
alcohol or one or more drugs, or a combination of both
alcohol and one or more drugs, that affects the person to
the slightest degree so that the person is less able than the
person ordinarily would have been, either mentally or
physically, or both mentally and physically, to exercise
clear judgment, sufficient physical control, or due care in
the safe operation of a vehicle.
(h) Pursuant to section 16-2-106, C.R.S., in charging the
offense of DUI, it shall be sufficient to describe the
offense charged as "drove a vehicle under the influence
of alcohol or drugs or both".
(i) Pursuant to section 16-2-106, C.R.S., in charging the
offense of DWAI, it shall be sufficient to describe the
offense charged as "drove a vehicle while impaired by
alcohol or drugs or both".
(2) (a) It is a misdemeanor for any person to drive a
motor vehicle or vehicle when the person's BAC is 0.08
or more at the time of driving or within two hours after
driving. During a trial, if the state's evidence raises the
issue, or if a defendant presents some credible evidence,
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that the defendant consumed alcohol between the time
that the defendant stopped driving and the time that
testing occurred, such issue shall be an affirmative
defense, and the prosecution must establish beyond a
reasonable doubt that the minimum 0.08 blood or breath
alcohol content required in this paragraph (a) was
reached as a result of alcohol consumed by the defendant
before the defendant stopped driving.
(a.5) (I) It is a class A traffic infraction for any person
under twenty-one years of age to drive a motor vehicle or
vehicle when the person's BAC, as shown by analysis of
the person's breath, is at least 0.02 but not more than 0.05
at the time of driving or within two hours after driving.
The court, upon sentencing a defendant pursuant to this
subparagraph (I), may, in addition to any penalty
imposed under a class A traffic infraction, order that the
defendant perform up to twenty-four hours of useful
public service, subject to the conditions and restrictions
of section 18-1.3-507, C.R.S., and may further order that
the defendant submit to and complete an alcohol
evaluation or assessment, an alcohol education program,
or an alcohol treatment program at such defendant's own
expense.
(II) A second or subsequent violation of this paragraph
(a.5) shall be a class 2 traffic misdemeanor.
(b) In any prosecution for the offense of DUI per se, the
defendant shall be entitled to offer direct and
circumstantial evidence to show that there is a disparity
between what the tests show and other facts so that the
trier of fact could infer that the tests were in some way
defective or inaccurate. Such evidence may include
testimony of nonexpert witnesses relating to the absence
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of any or all of the common symptoms or signs of
intoxication for the purpose of impeachment of the
accuracy of the analysis of the person's blood or breath.
(c) Pursuant to section 16-2-106, C.R.S., in charging the
offense of DUI per se, it shall be sufficient to describe
the offense charged as "drove a vehicle with excessive
alcohol content".
(3) The offenses described in subsections (1) and (2) of
this section are strict liability offenses.
(4) No court shall accept a plea of guilty to a nonalcohol-related or non-drug-related traffic offense or
guilty to the offense of UDD from a person charged with
DUI, DUI per se, or habitual user; except that the court
may accept a plea of guilty to a non-alcohol-related or
non-drug-related traffic offense or to UDD upon a good
faith representation by the prosecuting attorney that the
attorney could not establish a prima facie case if the
defendant were brought to trial on the original alcoholrelated or drug-related offense.
(5) Notwithstanding the provisions of section 18-1-408,
C.R.S., during a trial of any person accused of both DUI
and DUI per se, the court shall not require the
prosecution to elect between the two violations. The
court or a jury may consider and convict the person of
either DUI or DWAI, or DUI per se, or both DUI and
DUI per se, or both DWAI and DUI per se. If the person
is convicted of more than one violation, the sentences
imposed shall run concurrently.
(6) (a) In any prosecution for DUI or DWAI, the
defendant's BAC at the time of the commission of the
alleged offense or within a reasonable time thereafter
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gives rise to the following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less,
it shall be presumed that the defendant was not under the
influence of alcohol and that the defendant's ability to
operate a motor vehicle or vehicle was not impaired by
the consumption of alcohol.
(II) If at such time the defendant's BAC was in excess of
0.05 but less than 0.08, such fact gives rise to the
permissible inference that the defendant's ability to
operate a motor vehicle or vehicle was impaired by the
consumption of alcohol, and such fact may also be
considered with other competent evidence in determining
whether or not the defendant was under the influence of
alcohol.
(III) If at such time the defendant's BAC was 0.08 or
more, such fact gives rise to the permissible inference
that the defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be
construed as limiting the introduction, reception, or
consideration of any other competent evidence bearing
upon the question of whether or not the defendant was
under the influence of alcohol or whether or not the
defendant's ability to operate a motor vehicle or vehicle
was impaired by the consumption of alcohol.
(c) In all actions, suits, and judicial proceedings in any
court of this state concerning alcohol-related or drugrelated traffic offenses, the court shall take judicial notice
of methods of testing a person's alcohol or drug level and
of the design and operation of devices, as certified by the
department of public health and environment, for testing
a person's blood, breath, saliva, or urine to determine
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such person's alcohol or drug level. The department of
public health and environment may, by rule, determine
that, because of the reliability of the results from certain
devices, the collection or preservation of a second sample
of a person's blood, saliva, or urine or the collection and
preservation of a delayed breath alcohol specimen is not
required. This paragraph (c) shall not prevent the
necessity of establishing during a trial that the testing
devices used were working properly and that such testing
devices were properly operated. Nothing in this
paragraph (c) shall preclude a defendant from offering
evidence concerning the accuracy of testing devices.
(d) If a person refuses to take or to complete, or to
cooperate with the completing of, any test or tests as
provided in section 42-4-1301.1 and such person
subsequently stands trial for DUI or DWAI, the refusal to
take or to complete, or to cooperate with the completing
of, any test or tests shall be admissible into evidence at
the trial, and a person may not claim the privilege against
self-incrimination with regard to admission of refusal to
take or to complete, or to cooperate with the completing
of, any test or tests.
(e) Involuntary blood test - admissibility. Evidence
acquired through an involuntary blood test pursuant to
section 42-4-1301.1 (3) shall be admissible in any
prosecution for DUI, DUI per se, DWAI, habitual user,
or UDD, and in any prosecution for criminally negligent
homicide pursuant to section 18-3-105, C.R.S., vehicular
homicide pursuant to section 18-3-106 (1) (b), C.R.S.,
assault in the third degree pursuant to section 18-3-204,
C.R.S., or vehicular assault pursuant to section 18-3-205
(1) (b), C.R.S.
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(f) Chemical test - admissibility. Strict compliance with
the rules and regulations prescribed by the department of
public health and environment shall not be a prerequisite
to the admissibility of test results at trial unless the court
finds that the extent of noncompliance with a board of
health rule has so impaired the validity and reliability of
the testing method and the test results as to render the
evidence inadmissible. In all other circumstances, failure
to strictly comply with such rules and regulations shall
only be considered in the weight to be given to the test
results and not to the admissibility of such test results.
(g) It shall not be a prerequisite to the admissibility of
test results at trial that the prosecution present testimony
concerning the composition of any kit used to obtain
blood, urine, saliva, or breath specimens. A sufficient
evidentiary foundation concerning the compliance of
such kits with the rules and regulations of the department
of public health and environment shall be established by
the introduction of a copy of the manufacturer's or
supplier's certificate of compliance with such rules and
regulations if such certificate specifies the contents,
sterility, chemical makeup, and amounts of chemicals
contained in such kit.
(h) In any trial for a violation of this section, the
testimony of a law enforcement officer that he or she
witnessed the taking of a blood specimen by a person
who the law enforcement officer reasonably believed was
authorized to withdraw blood specimens shall be
sufficient evidence that such person was so authorized,
and testimony from the person who obtained the blood
specimens concerning such person's authorization to
obtain blood specimens shall not be a prerequisite to the
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admissibility of test results concerning the blood
specimens obtained.
(i) (I) Following the lawful contact with a person who
has been driving a motor vehicle or vehicle and when a
law enforcement officer reasonably suspects that a
person was driving a motor vehicle or vehicle while
under the influence of or while impaired by alcohol, the
law enforcement officer may conduct a preliminary
screening test using a device approved by the executive
director of the department of public health and
environment after first advising the driver that the driver
may either refuse or agree to provide a sample of the
driver's breath for such preliminary test; except that, if
the driver is under twenty-one years of age, the law
enforcement officer may, after providing such
advisement to the person, conduct such preliminary
screening test if the officer reasonably suspects that the
person has consumed any alcohol.
(II) The results of this preliminary screening test may be
used by a law enforcement officer in determining
whether probable cause exists to believe such person was
driving a motor vehicle or vehicle in violation of this
section and whether to administer a test pursuant to
section 42-4-1301.1 (2).
(III) Neither the results of such preliminary screening test
nor the fact that the person refused such test shall be used
in any court action except in a hearing outside of the
presence of a jury, when such hearing is held to
determine if a law enforcement officer had probable
cause to believe that the driver committed a violation of
this section. The results of such preliminary screening
test shall be made available to the driver or the driver's
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attorney on request.
(7) Repealed.
(8) A second or subsequent violation of this section
committed by a person less than eighteen years of age
may be filed in juvenile court.
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