Recently in DUI Category

Tips for avoiding a holiday DUI in Colorado.

October 16, 2013

1409262_39765484.jpgAs the holidays are quickly approaching, police agencies are out in full force looking for impaired drivers. Colorado law enforcement agencies typically expect more motorists to be on the road traveling to grandma's house, meeting up with friends, or perhaps attending an office party or other holiday party. It's important that drivers in Colorado take precautionary measures to avoid driving under the influence. The following is a list of tips that I have gathered during my experience defending many drivers in Colorado accused of driving under the influence.

Tip 1. Don't drink and drive. In fact, don't drink any alcohol and then drive. Don't rely upon the "system" to avoid a DUI. The DUI prosecution system is not designed to protect you. Officers can come to the wrong conclusion about who is DUI and who is not. Portable breath tests, Intoxilyzer machines, and Blood tests can give erroneous results. Often times the people conducting these tests don't conduct the tests correctly. People make mistakes and machines are not infallible. In Colorado, you can be charged with a DUI with any trace amount of alcohol in your system. Thus, it's best not to put yourself in that position.

Tip 2. If you decide to sleep it off and spend the night in your car on the side of the road, think again. You're better off spending a few bucks and staying at a motel. A DUI will cost you much more than one night's stay at a motel. In Colorado, you can be charged with a DUI if you're sleeping it off in your car, thus it's not worth the risk.

Tip 3. Take a cab. A cab ride is cheaper than a DUI. Store taxi cab numbers in your cell phone or information for RTD routes and times from your location.

Tip 4. Have a designated driver that doesn't drink any alcohol. A designated driver doesn't do anyone any good if he or she starts drinking. If a designated driver starts drinking as well, it's best to have a back-up plan such as taking a cab or calling a sober friend.

Tip 5. Call a sober friend for a ride.

Tip 6. If you insist on drinking and then driving, know that you're playing Russian Roulette regardless of how much you've had to drink. Eat enough food and hearty food to have a full stomach. These foods slow down the absorption rate in your stomach.

Tip 7. Avoid carbonated mixers and sparkling wines. These drinks speed the absorption of alcohol.

Tip 8. Check your car to make sure everything is in working order. Especially check all lights including license plate light bulbs and brake lights. Headlamp, tail lamp, valid registration stickers, and turn signal functions should also be checked. Take the plastic clear or smoke covers off your license plates! Many DUI cases start with something simple as a "license plate bulb out".

Tip 9. If you drive, pay attention to all highway regulation signs. Drive the speed limit. Not over, not under. Use your turn signal. Dim your high beams. Stop at stop signs. Don't weave between the lines.

Tip 10.Have your driver's license, registration, and insurance documents readily available and current. Don't fumble around in your car to find them. Know where they are and be able to confidently access them in the event you get stopped. Fumbling around trying to find documents can be an indicia of impairment.

Tip 11.Avoid DUI checkpoints. Search online and in the newspaper to find out where the DUI checkpoints will be before you go out.

Tip 12.Stay off your cell phone when driving. It's a distraction. Leave the radio tuned where it is.

Tip 13. Wear your seatbelt for obvious reasons.

Tip 14. Don't rely upon "one drink per hour and I'm ok" rule. Unfortunately, I've had many clients who have relied upon this rule and have ended up with a DUI. How the body processes alcohol is a little more complex than just one drink per hour. It depends upon a number of factors including, food in the stomach, body weight, hydration, gender, the strength of the drink, etc.

Tip 15. Driving to locations close to your home doesn't ensure that you'll escape a DUI. Here again, I've had many clients who have been stopped close to their home and some even as they are turning into their driveway and charged with DUI. Law enforcement in Colorado won't give you a "pass" simply because you are "almost home" or your house is "right around the corner".

Tip 16. If you get a DUI, get a lawyer to represent you that has experience defending clients accused of DUI. Shy away from lawyers who handle every type of case under the sun such as "divorces, wills, personal injury, workers comp....and DUI cases". Look for lawyers who dedicate a significant portion of their practice to DUI defense. DUI defense is a complicated area. Make sure the lawyer answers all your questions, that you are comfortable with the lawyer, and can effectively communicate with him about your goals regarding the case.

It's important to remember that the penalties in Colorado for drinking and driving are severe. DUI drivers face jail time, loss of driver's license, and many collateral consequences as a result of a DUI charge. A little common sense and planning can go a long way towards a safe and happy holiday season.

Continue reading "Tips for avoiding a holiday DUI in Colorado." »

Lamar Odom arrested for DUI in California. Colorado DUI process not dissimilar.

September 17, 2013

intal-slams-the-ball-332320-m.jpgCBS News reports that NBA Star Lamar Odom was recently arrested for DUI in California:

"The former Los Angeles Laker and Clipper was arrested by the California Highway Patrol (CHP) in the early morning hours of Aug. 30 after officers noticed him driving slowly and weaving in and out of lanes."

Driving slowly in the early morning hours combined with weaving is a sure-fire way to get pulled over in California or any other state. Police officers know that people who have been drinking and later decide to drive are often out at night and in the early hours of the morning. Police officers actively target minor traffic violations with an eye towards a possible DUI investigation especially during these prime times and often have designated "DUI cars" to focus on DUI arrests.

Colorado is no exception to this strategy. Colorado officers specifically train to look for these minor traffic infractions. Many jurisdictions in Colorado have designated "DUI officers" and "DUI cars". The State of Colorado, Alcohol and Drug Impaired Driver Enforcement Manual, 2008 [Enforcement Manual], prepared by the Colorado Office of Transportation Safety, indicates that both "weaving" and "slow speed" are cues which "predict a driver is DWI at least 35 percent of the time". The Enforcement Manual goes on to read that "the probability of DWI increases substantially when a driver exhibits more than one of the cues".

According to the New York Daily News, "[t]he police report filed after his arrest described Odom as showing 'objective signs of intoxication and was unable to perform field sobriety tests as explained and demonstrated.'"

In Colorado, roadside sobriety tests are a "search", thus probable cause with exigent circumstances must exist or consent given from the motorist. However, because the maneuvers can't be administered without the cooperation of the driver, consent is the typical focus of the investigating officer.

The National Highway Traffic Safety Administration [NHTSA] indicates that three (3) roadside tests are the most reliable: the Horizontal Gaze Nystagmus (HGN), the One Leg Stand, and the Walk and Turn. NHTSA claims that all three tests combined can predict a driver's BAC of .08 or greater in 91 percent of the cases. However, many officers don't do the roadsides correctly and a properly prepared cross-examination can reveal this.

The Colorado DUI Enforcement Manual adds the alphabet or counting, the finger-to-nose test, and the Rhomberg test to the 3 tests validated by NHTSA.

According to ESPN, "Odom refused all chemical tests and was booked for investigation of driving under the influence of alcohol or drugs at 5:01 a.m., CHP officials said."

Refusals in Colorado are similar to that in California. In Colorado, if a driver refuses a chemical test of his blood, breath, urine, or saliva at the direction of a law enforcement officer in a DUI stop, he can potentially lose his privilege to drive for one (1) year. A driver is entitled to a hearing at the Department of Revenue to contest the refusal. The hearing must be requested within 7 days of the stop. A new law is set to take effect in Colorado in January, 2014 which will permit a driver with a refusal revocation to apply for an ignition interlock restricted license after 2 months of no driving.

Continue reading "Lamar Odom arrested for DUI in California. Colorado DUI process not dissimilar." »

Colorado doesn't have a Felony DUI law for multiple offenses.

September 13, 2013

martini-846753-m.jpgAn Upper Darby Pennsylvania man was recently arrested for his 11th DUI in Delaware after being released on another DUI two days previously. Cindy Scharr of the Delaware County News Network writes that:

"James John Duggan, 54, posted $1,000 bail on July 9 and walked out of Delaware County prison, where he had been incarcerated since March on charges stemming from a DUI arrest in Tinicum, according to court records."

Under Delaware law, a third offense is a Felony according to Mothers Against Drunk Driving.

In comparison, a second offense within 5 years is a Felony in Indiana. A second offense depending upon the circumstances is a Felony in Minnesota. Both New York and Oklahoma classify a second offense as a Felony if the prior was within 10 years.

If the driver has a previous offense within the past 10 years, a third offense is a Felony in the following states: Alaska, Connecticut, Florida, Michigan, South Dakota, Utah, and Virginia.

Arizona, Delaware, Idaho, Illinois, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Nevada, North Carolina, Texas, Vermont, and West Virgina classify a third offense as a Felony, regardless of when the prior offenses occurred.

A fourth offense is a Felony in the following states if a prior offense occurred within the previous five years: Alabama, Arkansas, Wisconsin, and Wyoming. Ohio utilizes a six year look back period for a fourth offense Felony determination.

A fourth offense is a Felony in the following states regardless of when the prior offense occurred: California, Hawaii, Kentucky, Louisiana, Montana, New Hampshire, New Mexico, and Oregon. Georgia and Tennessee look back ten years to determine if the fourth offense charged will be a Felony. North Dakota looks back seven years and Nebraska twelve years.

A fifth offense is a Felony in Washington state. The District of Columbia, Colorado, Maryland, Maine, and Rhode Island do not have a Felony DUI offense based upon the number of priors a driver has.

In Colorado, prior offenses unfortunately are a common occurrence and the penalties rapidly increase for drivers who have a prior conviction anywhere in the United States. However in Colorado, the prior offense has to be a conviction to be a "prior". Sometimes a prosecutor will try to argue that a prior offense should be treated as a conviction, even when it is not. Thus, it's important to secure the court records for any prior offense that is not actually a conviction.

A study by the Denver Post found that one in three drivers arrested for DUI in Colorado had a prior offense. Kevin Vaughan and David Olinger of the Post report:

"From 2005 to 2007, an average of 31,011 alleged drunken drivers were arrested each year in Colorado, according to statistics compiled by the Colorado Bureau of Investigation. During that same three-year span, an average of 10,835 drunken drivers each year had at least one prior DUI arrest, according to Division of Behavioral Health data from probation-department evaluations of drivers facing DUI charges."

The penalty for a first offense DUI is 5 days to one year in jail. The jail can be suspended. A second offense brings a minimum of 10 days to one year in jail. A third or more offense calls for a sentence of 60 days to one year in jail. Actual sentences vary greatly depending upon the facts of the case, the jurisdiction, the position of the district attorney, and how the driver is presented to the Court by experienced counsel.


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1342 people arrested for DUI in Colorado over Labor Day period.

September 11, 2013

ready-to-roll-542939-m.jpgAccording to a recent article by the Denver Channel, 1342 people were arrested in Colorado and charged with DUI during the period August 16, 2013 through September 3, 2013. Most of the arrests were conducted by the Denver and Aurora Police Departments.

This figure is down approximately 100 arrests from the similar period in 2012 from August 17, 2012 through September 4, 2012, according to an article by Andy Koen of KOAA News.

1442 was the estimated number of DUI arrests over the similar period in 2011 according to an article by Michael Roberts of Westword.

By comparison, California reported 2313 arrests during the similar time period this year according to an article by the Antelope Valley Times: "During the 18-day campaign, 100 county law enforcement agencies conducted sobriety checkpoints, special saturation patrols and routine patrols, which resulted in 2,313 arrests countywide for driving under the influence of alcohol or drugs."

However, California's population in 2012 is reported at 38.04 million people. Whereas Colorado's population in 2012 is reported at 5.188 million people. Thus, Colorado's DUI arrest rate over the same time period is about 7.5 times that of California's.

A DUI arrest can be a startling event in a person's life. There are many consequences beyond the court case which should be considered while the case is still pending in the courts. A DUI conviction in Colorado will stay on a person's criminal and motor vehicle record forever. A DUI conviction can have a severe impact upon a person's driver's license, insurance rates, schooling, social consequences, employment, future employment, and a host of other issues.


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DUI on a horse in Boulder, Colorado....well sort of.

September 10, 2013

horse_stock__free_to_use_by_eleonora_horses-d5gg0vr.jpgThe Washington Post reports that a man was arrested in beautiful Boulder, Colorado for riding under the influence, animal cruelty, and other charges. The rider apparently had a Pug in his backpack and some beer and a pistol in his saddlebag.

According to an article by Matt Farley of KDVR, "Witnesses Monday said the man hit the horse hard enough that it reared up on its hind legs." "Officers observed that the rider was slumped to his right side as he crossed streets and forced pedestrians off the sidewalk."

The Salt Lake Tribune, Matthew Piper, reports that the rider was arrested for suspicion of "animal cruelty, prohibited weapons use, riding a horse while under the influence of alcohol, and reckless endangerment."

The DUI laws in Colorado state that it is illegal for a person who is under the influence of alcohol or one or more drugs (or a combination) to drive a motor vehicle or vehicle. Obviously a horse is not a motor vehicle. However, is it a vehicle? The statutes read that a vehicle is a bicycle, an EPAMD, or an electrical assisted bicycle. The statutes also indicate that a vehicle is not a wheelchair, a snowmobile, a farm tractor, off highway vehicle, or an implement of husbandry designed primarily or exclusively for use is agricultural operations, or a device designed to move through the air or stationary rails or tracks.

Thus, the short answer is no. A horse is not a vehicle. There is no DUI case here. A bicycle can get you a DUI, but a horse can't.

There is however, a charge of animal rider on highway under the influence of alcohol/controlled substance. The penalty for this charge is a small fine only. It is a class B traffic infraction. The maximum penalty is $100.00 and no points on a driver's license. This charge is small potatoes. The other charges for the rider are of much more concern.

To prove the possession of a weapon while intoxicated charge, the prosecutor will have to show that the rider had in his possession a firearm while under the influence of an intoxicating liquor or a controlled substance. If found guilty, the charge is a Class 2 Misdemeanor that carries the possible penalty of 3 months to 12 months in jail.

To prove the reckless endangerment charge, the prosecutor will have to show that the rider engaged in conduct which creates a substantial risk of serious bodily injury to another person. This offense is a Class 3 Misdemeanor which carries a possible penalty of 6 months in jail.

In order to prove animal cruelty, the prosecutor will have to prove, in summary, that the rider knowingly, recklessly, or with criminal negligence overdrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, or protection from the weather consistent with the species, breed, and type of animal involved, or abandons an animal. Cruelty to animals is a Class 1 Misdemeanor punishable by 6 months to 18 months in jail.


Continue reading "DUI on a horse in Boulder, Colorado....well sort of." »

Evaporation of Reasonable Suspicion = Magical Colorado DUI dismissal.

September 9, 2013

rabbit-in-a-hat-007.jpgIf a Colorado police officer stops a motorist, she must have legal grounds to do so. In the DUI context, this typically results from stopping the motorist for some minor traffic violation (an investigatory stop). Common examples include speeding 5 miles per hour over the limit, tail light out, headlight out, license plate bulb out, weaving, driving too slow, etc. These minor traffic infractions often times are a segway into the investigation of DUI, a much more serious offense.

An investigatory stop is less than an arrest, but more than a consensual encounter. It is an "intermediate" form of police intrusion. Police officers regularly look for minor traffic violations as reasons to stop a motorist and investigate further for a possible DUI.

However, if a police officer initially stops a motorist for a traffic violation and has reasonable suspicion for the stop, but that reasonable suspicion later "evaporates", that police officer cannot continue with her investigation according to two (2) very important Colorado decisions in this area. Examples of the evaporation of reasonable suspicion include a police officer who stops a motorist for not having a license plate, but after she approaches the motorist she sees a valid temporary permit in the back window of the truck. The courts say that the investigation by the cop ends at that point because the reasonable suspicion has evaporated.

Another example is a motorist who is stopped for a cracked windshield. After the stop, but during the course of the investigation the officer determines that the windshield really doesn't obstruct the driver's view and therefore is not a violation of law. In that situation, the courts have held that the investigation must cease, because the reason for the initial stop is no longer valid.

Another example might be that the officer believes that both of the driver's headlamps are not working, but later determines that he made a mistake and both headlamps are functional. Again here, the reason for the stop has evaporated. Once the officer determines that his stop is not valid, he must cease further investigation of the stopped driver.

In the landmark case of People v. Cerda, an officer stopped a motorist for a cracked windshield and then later determined that the driver was driving with a suspended driver's license. However, over the course of the investigation, the officer determined that the crack in the windshield was not significant enough to issue a ticket. The Court determined that all evidence obtained from the stop had to be suppressed because the stop was not a valid investigatory stop.

Similarly in People v. Redinger, a police officer stopped a driver for a suspected motor vehicle violation, but later determined that his suspicion was not valid. The Court determined that requiring the driver to produce information without reasonable suspicion or probable cause was illegal.

I previously represented a client who was charged with his second lifetime DUI. In light of Colorado's enhanced sentencing penalties, he was facing mandatory jail time and loss of his driver's license, which also potentially led to the loss of his employment. Thus, the stakes were incredibly high.

According to the officer, my client was seen driving in his neighborhood with only one headlamp working on his truck. However, both headlamps were later determined to be working, thus the reason for the stop had evaporated. This argument led to the successful dismissal of all criminal charges against my client. Thus, the evaporation of reasonable suspicion is alive and well and it can lead to the dismissal of charges if the original contact was determined to be unfounded.

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Feds won't challenge Colorado Marijuana laws.

September 4, 2013

marijuana-540317-m.jpgCNN reports that the Federal Government won't challenge Colorado's marijuana legalization laws and will instead focus on serious traffic cases and preventing children from being exposed to the drug.

Marijuana is still illegal under federal law. It's listed under the Federal Controlled Substances Act as a Schedule 1 drug. CBS News reports that Schedule 1 drugs are substances with a high potential for abuse and with no accepted medical use.

The Justice Department began relaxing its position on personal marijuana use in 2009. In that year, the Ogden memo was released by the Justice Department and basically indicated that prosecuting marijuana users was not their priority. This memo was clarified in 2011 with the caveat that the memo was just intended for marijuana users "not commercial operations for cultivating, selling, or distributing marijuana."

However, under this new directive, federal prosecutors will have tightened prosecution standards. There are eight (8) enforcement priorities for federal prosecutors in reference to marijuana: 1) growing marijuana on public lands; 2) using or possessing marijuana on federal lands; 3) distributing marijuana to minors; 4) using legal sales to cover up trafficking operations; 5) using violence and or firearms in marijuana cultivation and distribution; 6) DUID driving under the influence of marijuana; 7) diverting marijuana from states where it is legal to those where it is not; 8) directing marijuana revenue to gangs and cartels.

This new directive is substantial progress for advocates of legal marijuana use not only in Colorado but also nationwide. Twenty (20) states and the District of Columbia permit medical marijuana use. Washington and Colorado are currently the only states who permit recreational marijuana use.

The new directive doesn't alter federal money laundering rules. This still presents a problem for Colorado marijuana industry businesses. Many banks won't do business with marijuana businesses in Colorado for fear of violating federal laws. Evan Perez of CNN writes that "Justice Department officials said there is some leeway for banks to provide services to such businesses, so long as they don't violate the eight priorities being assigned to federal prosecutors".

Many advocates of legal marijuana see the new directive as great progress for the industry, however some are still concerned and cite that the Obama administration has shut down more state-legal marijuana businesses in one term than the Bush administration did in two terms. According to an article by Nick Wing and Luke Johnson of the Huffington Post, the Obama Administration has spent nearly $300 million cracking down on medical marijuana.

Michael Roberts of Denver Westword quotes Governor Hickenlooper as reacting to the directive:

"We recognize how difficult this issue has been for the Department of Justice and we appreciate the thoughful approach it has taken. Amendment 64 put Colorado in conflict with federal law. Today's announcement shows the federal government is respecting the will of Colorado voters."

Only time will tell how individual Colorado's U.S. Attorneys will interpret the new guidelines.


Continue reading "Feds won't challenge Colorado Marijuana laws." »

NTSB wants to lower Colorado's BAC limit to .05.

August 29, 2013

a-beer-in-a-pub-1171697-m.jpgThe National Transportation Safety Board (NTSB) recently voted to lower the blood alcohol limit for alleged drunk drivers to .05 in Colorado and all other states. "The research clearly shows that drivers with a BAC above .05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured," according to NTSB Chairman Deborah A.P. Hersman. The NTSB reports that approximately one-third of all traffic accidents are drug or alcohol-related.

The current limit in Colorado is .08 for a charge for DUI per se, and more than .05 but less than .079 for a charge of DWAI (the statute reads that there is a presumption that a driver is not DUI or DWAI if his BAC was .05 or less). However, even if a driver's BAC is less than .08 some officers will still cite a driver for DUI, even if they are in the presumptive range for DWAI. Additionally, some officers will even cite for DWAI or DUI when a driver submits a blood or breath test below .051 and argue that the driver's performance on the roadside maneuvers and/or her driving provide the basis (probable cause) for the charge.

According to the NTSB, alcohol levels as low as .01 have been show to impair a person's driving and that a level of .05 has been "associated with significantly increased risk of fatal crashes."

According to a an article by CNN, an 180 pound male will reach a BAC of .08 after consuming four (4) drinks over a one (1) hour period. It may take only two (2) to three (3) drinks for that same male to reach a BAC of .05 over a one (1) hour period. Thus, the proposed change could certainly increase the number of drivers who are charged with DUI in Colorado.

Studies show that a woman weighing less than 120 pounds can reach a BAC limit of .05 after just one (1) drink.

There are many factors that determine a person's blood alcohol content beyond just weight and gender. Various blood alcohol calculators online will attempt to calculate a person's BAC for them based upon factors they input into the program. However, these calculators should not be used to determine whether or not a person should get behind the wheel, because they are not precise and other factors will influence a person's actual BAC.

According to the NTSB, the change in the BAC limit would save 500 to 800 lives per year. The NTSB report sites the BAC limit in Queensland, Australia that was lowered from .08 to .05 and resulted in a decrease of fatalities by 18%.

The NTSB does not have the authority to make laws, however its recommendations are very seriously considered. It may be years before Colorado implements a .05 BAC limit but it appears that Colorado and all other states are likely to lower their BAC.


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What is the benefit of a deferred sentence in a DUI case if you can't seal it?

April 10, 2013

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The Colorado Court of Appeals recently announced that you can't seal a successfully completed deferred judgment and sentence for a DUI offense. In the Matter of the Petition of Paige Harte, the Court found that Ms. Harte successfully completed a deferred judgment for her alcohol-related driving offense, but was not eligible to seal her record. The record sealing statute excludes convictions for alcohol-related driving offenses from eligibility. Therefore, the Court reasoned that the term "conviction" in the record sealing statute also applied to a successfully completed deferred sentence, even though Ms. Harte's case was dismissed and she ultimately was not convicted. If you're confused about this reasoning, you're not alone.

Due to this recent ruling, the benefits of a deferred judgment in the DUI context are minimal.

One of the "selling points" of a deferred judgment and sentence in any criminal case is the ability of a defendant to get the case off their record at the end of the deferred period by sealing all the records. It's another chance at a "clean slate".

The way a deferred works is that a defendant pleads guilty to a criminal charge, but the judgment of conviction is deferred for a set time period. During the set time period, the defendant complies with probation and stays out of trouble. If the defendant completes all the terms and conditions of the deferred judgment, his case will be dismissed with prejudice at the end of the deferred period. A defendant will typically want to seal all of the records associated with his case at the end of the deferred period. It essentially gives a defendant a "fresh start" or a second chance at life with a clean and clear criminal history. Once the records are sealed, Colorado law provides that a defendant can also deny the record and indicate that no such record exists.

A dismissal is a great result in any criminal case because the percentage of cases that result in a dismissal are low. However, a dismissal should also come with the benefit of a defendant being able to seal his or her record.

In today's competitive job market, the majority of companies run some sort of a criminal background check on prospective applicants. According to the National Consumer Law Center, 93% of employers run criminal background checks on some applicants and 73% of employers run criminal background checks on all applicants.If an applicant has a record that has been properly sealed, the company should not be able to find the record and the applicant can lawfully state, under Colorado law, that he/she has not been arrested and no such record exists. Essentially, the applicant can answer "no" to a criminal background question (assuming that he/she has no other criminal history records).

On the other hand, if an applicant has a record that has been dismissed, all of the records will likely still appear in a person's background. And often times, even though no conviction enters on a dismissed case, many potential employers are reluctant to hire an applicant with a "criminal history". It seems that often times employers do not distinguish between an arrest, charge, and a conviction. Thus any record of criminal activity, regardless of the actual outcome, may negatively impact a job applicant. Thus it is unfortunate to see that the Colorado Court of Appeals has determined that the benefits of a record seal do not apply to those who have successfully completed a deferred sentence in a DUI case.

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Should "Drunk Driving. Over the Limit. Under Arrest." be changed to "Drunk Driving. Under the Limit...still Under Arrest"!?

September 12, 2012

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The National Highway Transportation Administration (NHTSA) sponsors various national campaigns throughout the year to promote safety on the roadways. One of the campaigns indicates that if you are driving "over the limit", that you will be placed "under arrest". The message is seemingly simple and clear. And in many cases this message holds true. If a driver is driving with an alcohol content (BAC) which exceeds "the limit" and is stopped, he will be placed under arrest. On the other hand, in many cases, this message does not hold true and does not reflect what is happening in our court system.

Specifically, the message infers that the converse is true: that if you are driving "under the limit", that you will not be placed "under arrest". As a Colorado DUI lawyer, I've seen many cases where this does not happen. Drivers are routinely arrested when their BAC is below "the limit".

In Colorado, and all 50 states, the commonly referred to "limit" is .08 grams of ethyl alcohol per one hundred (100) milliliters of blood or .08 grams of alcohol per two hundred ten (210) liters of breath. The public knows "the limit" is .08. All states have passed legislation making .08 the per se limit.

But what about the other limits in Colorado? In Colorado, it is assumed ("permissible inference") that you are driving while ability impaired (DWAI) if you have a BAC (blood or breath) of .05 to .079. As a Colorado DWAI defense lawyer, I regularly see people who have been charged with DWAI who have a BAC under the limit of .08.

DWAI is a serious offense with serious consequences. It is an alcohol-related (also can be drug-related) traffic offense that carries the majority of the same penalties as the greater offense of DUI. It also carries most, if not all, of the collateral consequences associated with a DUI offense.

And as shocking as it may seem, I've seen cases where law enforcement have charged drivers with DWAI or DUI even if their BAC is below .05! In Colorado, the law reads that you are presumed to not be under the influence and not impaired by alcohol if your BAC is below .05, but some officers ignore that law and charge the offense anyway.

In other cases, if a driver refuses a blood or breath test, he will be arrested anyway. Thus, even though no chemical test has shown that he is "over the limit", he is still "under arrest".

Although the intent of the message "over the limit, under arrest" is to curb drunk driving, Colorado drivers need to be aware that they can be charged with DUI or DWAI even if they haven't reached any statutory numerical "limit". If an officer has probable cause to believe that a driver is impaired to the slightest degree (DWAI) or substantially incapable of safely operating a motor vehicle (DUI), the driver will likely be charged regardless if she is "over" or "under" "the limit".


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Can you be arrested for a DUI in Colorado even if you're not driving?

October 24, 2011

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The short answer is yes. You can be charged, and you might be convicted. However, just because you may have been arrested for a DUI in Colorado, doesn't mean that the prosecution will get a conviction. The conviction is what matters. You're innocent of the DUI until they prove it.

If you go to trial on a DUI in Colorado, the jury will get an instruction as to the elements of the charge, to include that: 1) the defendant; 2) in the State of Colorado, at or about the date and place charged; 3) drove (or was in actual physical control of) any vehicle; 4) while under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].

Driving a vehicle is self-explanatory. Actual physical control is a little more subjective. This is where the "fun" starts.

The Colorado Supreme Court opinion in People v. Swain, 959 P.2d 426, 430 (Colo. 1998) is the most up-to-date case on the meaning of "actual physical control". According to the case, actual physical control is to be determined by the "totality of the circumstances". The Swain court looked to the following factors to determine if a person was in actual physical control: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor vehicle's ignition; 4) whether or not the motor vehicle was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based upon your every day experience. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle.

Thus according to Swain, a car doesn't have to actually be moving down the road for an occupant to be determined to be in actual physical control, and thereafter be convicted of DUI. On the other hand, DUI cases can be won on these factors as well. Thus, although the common sense meaning of driving has been expanded, the above-referenced factors can be very helpful at beating a case where there is no movement of the vehicle.

It is important to note that the list of factors in Swain is not exclusive. Additional factors may be considered under the blanket language of factor number 5 ("any other factor") listed above.

Whether or not the defendant allegedly drove on a public road, private road, or private property is not a factor. The Colorado Supreme Court held in Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) that Colorado's Express Consent Statute applied to private parking lots.

There have been many cases previous to Swain that have pondered unique fact patterns to determine the boundaries of actual physical control. These cases are sometimes helpful in fighting a DUI allegation where driving is not witnessed.

Continue reading "Can you be arrested for a DUI in Colorado even if you're not driving?" »

Driver Beware: If you're pulled-over alongside the road in Colorado "sleeping it off", you might be fair game for the cops.

June 7, 2011

240373_police_car_-_louisville_kentuc.jpgThe best decision that you can make if you are impaired (even to the slightest degree) or intoxicated is to never get behind the wheel of a vehicle. Period. Because alcohol impairs judgment, sometimes a person will start to drive and later realize that he/she is not safe to drive; and pull over alongside of the road and "sleep it off" or call a sober driver for a ride. From a moral standpoint, this is the absolute best action to take. Who in their right mind would argue that an impaired or intoxicated driver should continue driving? Not me.

Unfortunately, it's not a good idea from a DUI defense standpoint to stop along side the road if you're intoxicated or impaired. A couple of cases always seem to rear their ugly heads in this situation. Firstly, in Colorado, you don't have to be "driving" a vehicle (in motion) to be convicted of a DUI. You simply need to be in "actual physical control". Actual physical control is determined by the totality of the circumstances to include: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor's ignition; 4) whether or not the motor was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle, or not, based upon your everyday experience. The jury will get this instruction if it is relevant to the case and the Court lets it in. These factors come from the Colorado Supreme Court's decision in People v. Swain, 959 P.2d 426 (Colo. 1998).

Secondly, you don't actually have to commit a major traffic offense or minor traffic infraction to be contacted by the police in your car. If you're already stopped, the Court says that the police can "request your voluntary cooperation". Make no mistake about it, an experienced police officer is well-versed in how to shake you down a/k/a "initiate a consensual encounter" when you are already stopped. I find this phrase rather amusing. When a citizen is contacted by the police, it doesn't seem like there is ever anything "consensual" about it. However, the Colorado Supreme Court indicates that there are situations when a citizen is voluntarily cooperating with the police when the police questions start to fly.

According to the Court, not all police-citizen encounters implicate the Fourth Amendment. It held in People v. Marujo, 192 P.3d 1003 (Colo. 2008) that a "consensual encounter" is not a seizure, but rather a request for cooperation that does not implicate the Fourth Amendment. The Court held that there are three general categories of police-citizen encounters: 1) arrest; 2) investigatory stop; 3) consensual interview. The first two categories implicate the Fourth Amendment, whereas the latter does not.

The Court goes on to enumerate the following factors in an attempt to distinguish an investigatory stop, which requires reasonable suspicion of criminal activity, from a consensual encounter: 1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; 2) the number of officers present; 3) whether the officer approaches in a non-threatening manner; 4) whether the officer displays a weapon; 5) whether the officer requests or demands information; 6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; 7) whether the officer physically touches the person of the citizen; 8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter; 9) the duration of the encounter; 10) whether the officer retains the citizen's identification or travel documents. The Court further held that in order for the police-citizen interaction to rise to the level of seizure with Fourth Amendment protections, the obligation to comply must exceed the obligation an innocent citizen would normally feel to cooperate.

If you were trying to do the right thing and pulled-over to sober-up, but are now charged with a DUI, it's a good idea to get help from an experienced DUI attorney. How you are initially contacted may be crucial to your defense. Even though the Marujo case makes it easy for police to initiate contact with a parked motorist, they still need to follow a very specific protocol, otherwise, their request for cooperation quickly becomes a seizure within the Fourth Amendment. Thus, the bright side of the Marujo case for a defendant is that it gives a knowledgeable DUI defense attorney a lot of issues to argue to the prosecutor and the Court.

Continue reading "Driver Beware: If you're pulled-over alongside the road in Colorado "sleeping it off", you might be fair game for the cops." »