Articles Posted in DUI

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IMG_0644-e1534455480832-768x1024Moffat County, Colorado covers an enormous area of 4,751 square miles in the Northwest corner of the state and is the second largest county in Colorado.  That’s a huge area for law enforcement to patrol!  District 4 of the Colorado State Patrol, Moffat County Sheriff’s Office, and the Craig Police Department enforce DUI laws in Moffat County.

In the year 2017 there were 94 DUI and DWAI cases filed in Moffat County, Colorado with an average BAC of .155.  DUI and DWAI cases are heard in Moffat County Court located at 221 West Victory Way in Craig, Colorado.  DUI arraignments are typically held by Judge Gardner on Tuesdays at 8:30AM in Division 2. Court dates and times can be confirmed by contacting the Moffat County Court clerk’s office at 970-824-8254.

If you submitted a breath or blood test in your Moffat County DUI or DWAI case, the law enforcement agency must comply with rules from the Colorado Department of Health and Environment, Laboratory Services Division.  A blood test must be collected in the presence of the arresting officer and the specific instructions for the DUI blood kit that must be followed.

The blood must be collected in a public safety facility or appropriate clinic and sterile equipment must be used.  It’s critical that a non-alcohol swab be used when drawing the blood.  Specifically, the swab must be an aqueous solution of nonvolatile antiseptic.  Two tubes are drawn and the tubes must contain Sodium Fluoride and Potassium Oxalate preservative.  Once the tubes are drawn, they must be correctly labeled and sealed in accordance with the directions for the draw and then placed in secured refrigerated storage at less than 8 degrees Centigrade or frozen until shipped.  The tubes must be shipped within 7 days of collection.  The Defendant’s attorney can have the 2nd tube tested at a certified independent lab within a reasonable period of time.  The chain of custody of these vials must also be documented.  It’s critical to review the entire blood testing process in the DUI case.

Similarly, a breath test on the Intoxilyzer 9000 machine must be completed in accordance with the same Colorado Department of Health and Environment, Laboratory Services Division rules (5 CCR 1005-2).  The machine must be certified and the operator must be certified to operate the machine.  According to the rules, the driver must be given a choice of which type of test he/she prefers to take (blood or breath).  A 20-minute deprivation period is required before administering the test on the machine.  During this 20 minute deprivation period, any foreign material must be removed from the driver’s mouth that is not permanent in nature.  No foreign materials should be introduced into the driver’s mouth cavity during the 20 minute period.  The cop must observe the driver continuously to ensure that the driver doesn’t belch, regurgitate, or intake any foreign material into the mouth cavity during the 20 minutes.  A clean mouthpiece before the 1st blow into the machine must be used.  Subsequently, the mouthpiece has to be changed out with a fresh one before the 2nd blow into the machine.  Sometimes the cops forget to change out the mouthpiece between the 1st and 2nd blow in the machine.  Not changing the mouthpiece between breath samples is a violation of the Colorado Department of Health and Environment rules for evidential breath testing.

The driver must be further observed during the 2nd blow into the machine to ensure that there is no belching, regurgitation, or intake of foreign material.  The driver must be removed from the area in close proximity to the breath test machine during the 2 minute period between the breath tests.  The breath machine operator must sign the report reflecting the breath test result and attest that the test was completed in compliance with the rules.  All printouts produced by the machine must be retained and provided to the driver or his lawyer.  Any errors in the testing process could invalidate the result.

DUI and DWAI cases in Moffat County are prosecuted by the 14th Judicial District Attorney’s Office.  This office handles all state criminal matters in Moffat, Routt, and Grand counties.

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IMG_0241-e1524851406320-768x1024Grand County, spanning 1870 square miles, is a very popular recreational destination in Colorado.  Whether it’s skiing or snowboarding at Winter Park or Mary Jane, or summer hiking near Cascade Falls or Horseshoe Lake Trail, Grand County seems to have endless outdoor opportunities to get away from it all.  Unfortunately, some people are arrested in Grand County for driving under the influence or driving while ability impaired while partaking in recreational activities.  Because many of those arrested are not residents of the county (or even the state), the court process can quickly become confusing and even overwhelming at times.

Rest assured that if you have been charged with DUI or DWAI in Grand County, you do have options and you do have rights throughout the process.  Experienced DUI defense counsel can help you navigate the system and the DUI process to obtain the best possible result when facing a difficult and stressful situation.

First, second, and third DUI offenses in Grand County are misdemeanors.  Fourth and subsequent offenses are Class 4 Felonies.  Convictions for DUI, DUI per se, DWAI, vehicular homicide, vehicular assault, aggravated driving with a revoked license, and driving under restraint (alcohol-related restraint) are considered to be a “prior” offense under Colorado law.  Colorado factors-in prior convictions anywhere in the US over the course of the person’s life.  There are no time constraints on the “look back period” for priors- it’s lifetime.

The Grand County Judicial Center is located at 307 Moffat Avenue, Hot Sulphur Springs, Colorado 80451.  County court misdemeanor DUI and DWAI matters are heard by Judge Catanzarite.

147 DUI and DWAI cases were filed in Grand County Court in 2017, with an average BAC of .155.  If a person has been arrested in Grand County for DUI, she must act immediately within 7 days to protect her driver’s license.  An administrative hearing request must be filed with the Colorado Department of Revenue, Division of Motor Vehicles.

Kremmling Police, Colorado State Patrol, Grand County Sheriff’s Office, Granby Police, Fraser/Winter Park Police are active police agencies in the county charging drivers with DUI and DWAI offenses.

Drivers who have been pulled over in Grand County will be asked to perform standard field sobriety tests (SFST).  These tests typically include, the Horizontal Gaze Nystagmus (HGN), walk-and-turn, and one leg stand.  Sometimes police will also request other tests such as counting backwards, reciting the alphabet, Romberg balance test, etc.  These tests are not easy for everyone to perform.  Medical problems, fatigue, complex explanations of how to perform the tests, stress, being nervous, poor coordination, and other innocent reasons can cause a person to perform poorly on the roadside tests.  The “graded performance” of a person’s roadside tests is based upon the officer’s subjective opinion and can be challenged in the DUI case.

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IMG_0487-e1524775160105-768x1024DUI and DWAI cases in Jefferson County, just like any other county in Colorado, must be supported by the evidence.  If the case proceeds to trial, the district attorney must prove the case beyond a reasonable doubt.  There must be a legal and valid reason for the initial contact.  This is typically the result of some alleged traffic infraction.  Thereafter a driver is stopped and contacted by the police.  Less frequently, a driver may be contacted from a “consensual encounter” or a roadblock.  SFST roadside maneuvers may be conducted, including a PBT portable breath test.  A driver doesn’t have to do roadside tests or a portable breath test.  They’re all voluntary tests, thus it’s typically a good idea to not do any of them (why give the cops anything that they will try to use against you later? -no reason to.)  A potentially admissible chemical test of the driver’s blood or breath typically follows next.  Or perhaps the driver refuses.  Cops typically look for indicia of alleged impairment throughout this process and collect any statements from the driver that they can use to bolster their case.  Each of these pieces of evidence may be challenged in a DUI case.

If there is an illegal stop involved, the driver may gut the prosecution’s case by suppressing all evidence obtained as the result of the illegal police action.  A driver must file a motion to suppress evidence in order to initiate this process.  Thereafter, the court will have a hearing and rule on the motion.  Although the motion may be heard at the time of trial, it’s much wiser to have the suppression hearing well in advance of trial.

The year 2017 saw 1901 DUI and DWAI cases filed in Jefferson County Court in Golden, Colorado, making it the 4th highest in terms of sheer volume of DUI and DWAI cases in the entire state of Colorado.  The courthouse is located at 100 Jefferson County Parkway, Golden, Colorado 80401.  Many people refer to it as the “mausoleum”.  Nine (9) separate county court trial divisions handle DUI cases in Jefferson County Court.  Although all 9 divisions are housed within the same court system, the process, case flow, and sentencing practices can vary amongst the divisions.  The county court trial divisions presiding over misdemeanor DUI and DWAI cases are as follows: Division C, Judge Burback; Division E, Judge Carpenter; Division B, Judge Fisch; Division F, Judge Moore; Division G, Judge Randall; Division D, Judge Sargent; Division A, Judge Stuart; Division H, Judge Vance; Division J, Judge Woodford.  For aggravated first time offenses and second offenses resulting in jail time, it has been the experience of Attorney Robbins that some of the judges in Jefferson County Court believe in in-home detention (as an alternative to jail), and others do not.

Arvada Police, Jefferson County Sheriff’s Department, Edgewater Police, Golden Police, Lakewood Police, Littleton Police, Westminster Police, Colorado State Patrol, and Wheat Ridge Police are very active in DUI enforcement throughout the county and account for a large number of the cases charged.  Smaller police departments such as Bow Mar Police (provided by Columbine Valley Police Department), Lakeside Police, Morrison Police, and the Mountain View Police, account for a smaller portion of DUI enforcement and cases in the county.

DMV Express Consent Revocation Hearings for Jefferson County cases are typically held in-person (rather than via telephone) at DMV headquarters located at 1881 Pierce Street in Lakewood, Colorado.  Driver’s license hearings are held separate from Jefferson County Court DUI or DWAI matters.  The burden of proof in an Express Consent Revocation Hearing is by a preponderance of the evidence- a civil standard.  Preponderance of the evidence is a lower standard of proof than is required in a criminal case which requires proof beyond a reasonable doubt.

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IMG_0476-1024x768In 2017, there were 108 DUI cases filed in Morgan County Court in Fort Morgan, Colorado.  These cases had an average BAC of approximately two times the per se legal limit for DUI.  The average BAC being 0.155.  The number of DUI cases filed in Morgan County Court in 2012 was 137.  The average BAC of these 137 cases was 0.147.  Thus the sheer number of cases has dropped from the year 2012 to the year 2017 by approximately 27%, however the average BAC has gone up slightly.

Enforcement for Morgan County DUI and DWAI cases comes from several different law enforcement agencies.  The Colorado State Patrol frequently patrols the I-76 area and other county wide roads looking for traffic infractions and possible DUI drivers.  District 3 of the Colorado State Patrol handles patrol for Morgan County (and the entire Northeast Colorado area) with their local post located at 13360 W I-76 Frontage Road, Fort Morgan, CO 80701.

The Morgan County Sheriff’s Department is also active in the county.  Their office is located at 801 East Beaver Avenue, Fort Morgan, Colorado.  The Fort Morgan Police Department regularly patrols the City of Fort Morgan and initiates stops for DUI and other traffic matters.  Their office is located at 901 East Beaver Avenue, Fort Morgan, Colorado 80701.  The Fort Morgan Police Department maintains 28 sworn officers and 5 civilians to serve the residents of Fort Morgan, Colorado.

The Brush Police Department is active in the City of Brush in Morgan County and conducts traffic enforcement activities including DUI enforcement throughout the city of approximately 5000 persons.  The Brush Police Department is located at 118 Carson Street, Brush, Colorado 80723.

The Log Lane Village Police Department, with 4 deputy marshals, located at 109 Maine Street, Log Lane Village, Colorado 80705 and the Wiggins Police Department located at 304 Central Avenue, Wiggins, Colorado 80654 also conduct traffic enforcement in their towns within Morgan County.  Their traffic enforcement activities also include DUI enforcement.

DUI cases in Morgan County Colorado start out the same way that many of the cases do statewide.  There is typically an alleged traffic infraction which initiates the police contact.  This initial police contact must be supported by reasonable suspicion and may be challenged at a motions hearing.  Traffic infractions varying from speeding, weaving, driving the wrong way on a one way street, REDDI reports (report every drunk driver immediately), no turn signal, headlight/taillight/license plate bulb out are all common infractions the police utilize as grounds for stopping a vehicle.  Once the stop is initiated, the police are typically looking for any possible indicia of impairment to include bloodshot watery eyes, slurred speech, odor of alcohol, admission to drinking, etc. to then order the driver out of the vehicle where roadside tests are “requested”.  Thereafter, often times the driver is arrested even if no roadside tests are performed and asked to submit to a chemical test.  Audio and Video is sometimes available for certain DUI stops in Morgan County.  Although it is not available for all DUI stops, it can often be a critical piece of evidence to obtain for a defense attorney when investigating a police officer’s allegations in a report. Continue reading

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file00059914429Picture yourself enjoying Colorado’s blue sky and sunshine and reaching into your mailbox to find this little “gem”:

Colorado Department of Revenue records indicate that your ignition interlock device has prevented the operation of a motor vehicle in three of twelve consecutive reporting periods due to excessive blood alcohol content.  In accordance with CRS 42-2-132.5 the period of your driver license interlock restriction is hereby extended for an additional one (1) year from the current expiration of your restriction.  If we do not receive a new lease agreement by the Order of Suspension effective (date indicated in letter) through the extended restricted licensing period, your privilege to operate a motor vehicle in Colorado will be suspended.  If suspended, you must immediately surrender any driver licenses and/or permits in your possession to any driver license office.”  [Credit to: Colorado Department of Revenue, Driver Control Section, Colorado Division of Motor Vehicles, Standard Letter to Respondent, Letter# dL408 (2017)]

What should you do? Panic?  Ask you neighbor for advice?  Sign-up for another year with that damn interlock machine?  The answer is no, no, and no.  You should immediately request a hearing.  As of the date of this blog post, DMV ignition interlock violation hearings are backlogged  6-8 weeks just to receive a Notice of Hearing letter and you must first secure a spot on a waiting list.  As soon as your name appears at the top of the waiting list, the Hearings Division will mail you a Notice of Hearing letter setting the hearing.  Most of the hearings anymore are held via telephone.  If at all possible an in-person hearing is typically better than a telephone hearing.  However more and more hearings are being scheduled telephonically and a Respondent may not have a choice.  If a hearing is requested, the Hearings Division may postpone the effective date of the extension until after the hearing.  It is vitally important for a Respondent to clarify this information with the Hearings Division and determine the status of the driver’s license until the hearing.

What does 3 out of 12 reporting periods mean?  This can be confusing.  A “reporting period” is a month, and is defined the Code of Colorado Regulations as the first and last days of a calendar month.  The violations must occur in 3 out of 12 consecutive months.  The 12 months must be consecutive, the 3 months reporting violations do not need to be consecutive.

What is “excessive blood alcohol content”?  Excessive alcohol content for purposes of the ignition interlock machine means a BAC of .025 or greater.

How does DMV monitor the ignition interlock device?  At least every 60 days, a driver must have the interlock device inspected by the interlock company.  There are 4 ignition interlock companies approved in Colorado at the current time:  Guardian, Intoxalock, #1 A LifeSafer of CO, and 1A Smart Start, Inc.  At this inspection, the interlock company will download the data records and forward them to DMV.  An interlock provider is supposed to notify a driver at the time of inspection if there are any violations.  However, a failure of the interlock company to advise a driver of any violations will not win an ignition interlock violation hearing for a Respondent.

What if a driver gets their regular unrestricted license back before violations are reported to Colorado DMV- can Colorado DMV still cause an ignition interlock extension?  The short answer is yes.  Even if a driver gets their unrestricted full privileges back, they can still be subjected to an ignition interlock extension for violations that occurred before the driver got their license back.

According to the Code of Colorado Regulations, if there is evidence of circumvention of an interlock device, an ignition interlock company will file a report of circumvention to the Colorado Department of Revenue.  If a police officer detects circumvention of the interlock device, he/she may file a report with the Colorado Department of Revenue and may file criminal charges in the appropriate county court.

The sole issue at a hearing for an extension of an ignition interlock period is whether “lockouts” occurred in 3 of any 12 consecutive reporting periods, and if proven, to then determine the length of the extension.

A Hearing Officer may determine the following as “aggravating factors” in determining an extension period: 2 or more lockouts in 1 month, a prior extension for lockouts, a pattern of readings consistent with attempted drinking and driving, any BAC readings of .05 or higher, lockouts in more than 3 of the 12 consecutive months at issue, and any lockouts in the last 6 months of an ignition interlock lease agreement.

A Hearing Officer may determine the following as “mitigating factors” in determining an extension period: any factors the driver may submit in mitigation (obviously this is very subjective), attendance at alcohol treatment after the last lockout, only 1 lockout in each of the 3 months and no lockouts in any other months at issue, more than 1 year remaining of the interlock requirement, and alcohol readings subsequent to the last lockout indicating that the driver walked away from the vehicle and did not re-attempt to start it after consuming alcohol.

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booze-1481628-1024x768New, enhanced, tougher DUI penalties for 4th, 5th, 6th or more DUI offenses in Colorado start on August 9, 2017 pursuant to House Bill 17-1288.  The new law requires a person convicted of a Felony DUI, DUI per se, or DWAI who is sentenced to probation to serve a minimum period of straight time jail or work release/education release.  The minimum period of straight time jail is 90 days up to a maximum of 180 days as a condition of any probation sentence granted.

In the alternative, if the Court grants probation for a person convicted of a 4th or subsequent Felony DUI, DUI per se, or DWAI, he/she must serve a minimum of 120 days up to a maximum of 2 years of jail with work release or education release authorized.  This provision applies only to counties that have jails that support work release and education release.  The statute further indicates that work release may only be authorized for people who have established employment at the time of sentencing.  Education release may only be authorized for those who are enrolled in an education program at the time of sentencing.  No other sentencing alternatives are authorized (i.e. in home detention, weekends, or mid-weeks), however release for medical treatment may be authorized.

Prior to this new enhanced law, there was no minimum mandatory period of jail to be served as a condition of probation.

Further, 48 hours of community service up to 120 hours are required.

If a person is not granted probation and is instead sentenced to prison (the Department of Corrections) for a Felony DUI, DWAI, or DUI per se, the Court must determine that incarceration is the most suitable option given the facts and circumstances of the case.  The Court shall consider the person’s willingness to participate in treatment and whether all other reasonable and appropriate sanctions and responses to the violation have been exhausted.  The Court must further determine that all other reasonable and appropriate sanctions and responses either present an unacceptable risk to public safety or do not appear likely to be successful if tried.

Probation, rather than prison time, may be authorized when it appears that the ends of justice and the best interests of the defendant and public will be served.  The length of the probation term is left at the discretion of the court.  By statute, the length of the probation may exceed the maximum period of incarceration authorized by statute.

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photo_13072_20090812-2What are the requirements?  Well that depends.  Adult drivers age 21 and up who have been stopped for a DUI or DWAI offense in Colorado and have either submitted a chemical test of their blood or breath at .08 or higher, or, have refused a chemical test are subject to revocation of their driver’s license.  Out of state residents who are stopped in Colorado are subject to the same revocation process and term as Colorado residents.

The revocation for a 1st offense per se revocation, blood or breath .08 or greater but less than .15, is 9 months.  Colorado residents are eligible to reinstate early after 30 days of no driving with ignition interlock on their vehicle for 8 months.  Early removal of the interlock device is possible after 4 months of 100% compliance.  The specific language of the statute requires that the monthly monitoring reports reflect that the ignition interlock device did not prevent or interrupt the “normal operation” of the vehicle due to breath alcohol.  Further, no tampering is evident, and no other reports of circumvention or tampering exist, and there are no other grounds to extend the interlock requirement.  Thus, in light of full compliance with the interlock, the requirement can be whittled down to just 4 months.

The Department of Revenue will serve a driver with a notice of eligibility for early removal.  If on the other hand, the driver has been compliant and has not received notice of early removal eligibility from the Department of Revenue, then the driver may request a hearing to determine eligibility by contacting the Hearings Division at 303-205-5606.

If the driver submits a blood or breath test result at .15 or greater or refuses a chemical test, the ignition interlock requirement lasts for 2 years following reinstatement.  Colorado labels these drivers “persistent drunk drivers” by statute.  Those who submit a chemical test .15 or greater are eligible for reinstatement as a Colorado resident after 30 days of no driving.  Those who are found to refuse a chemical test are eligible after 60 days of no driving.  There is no temporary or restricted driving privileges available for any drivers during the 30 day or 60 day period of “no driving”.

If a driver who has submitted a chemical test at .15 or greater or refused a chemical test decides not to reinstate his/her license early after 30 days or 60 days of no driving they must still reinstate with ignition interlock for 2 years once they decide to get back on the road again.  Thus, there really is no benefit for a driver who has either refused or submitted a .15 or greater BAC to wait on the sidelines in the hopes of avoiding an ignition interlock requirement.  If they ever want to get their license back in Colorado, thus must have 2 years of interlock.

Some drivers who cannot afford the full monthly cost of ignition interlock are eligible for financial assistance to help pay for the ignition interlock device.  Information on this program may be obtained by contacting Driver Services at 303-205-5600.

Drivers who hold an ignition interlock restricted driver’s license must only drive a vehicle in which an approved ignition interlock machine is installed.  This is sometimes difficult for drivers to adhere to.  An example of a common violation is when a driver’s vehicle is in the shop for repairs and the driver “takes the wife’s car” to work and is stopped for not using a turn signal or other minor traffic infraction.  Thereafter, DMV may revoke the driver’s ignition interlock license for failing to drive a vehicle equipped with interlock.  The revocation will cause a driver to no be eligible to reinstate his/her license for one (1) year or the remaining period of license restraint imposed prior to driver obtaining the interlock license, whichever is longer.  A driver subject to this type of sanction is eligible to request (and should request) a hearing to determine whether or not the license will be revoked and the length of time in which the driver is deemed to be ineligible to reinstate.  Operating a vehicle not equipped with interlock (when the driver’s license requires an interlock equipped vehicle) is a Class 1 Misdemeanor Traffic Offense.

If a police officer stops a driver and thereafter determines that the driver is not driving a vehicle equipped with interlock (and is required to under the terms of their license), the police officer is required to confiscate the driver’s license, file an incident report on a special form provided by the Department of Revenue, and not permit the driver to continue to drive the vehicle not equipped with interlock.

Courts may not accept a plea of guilty to just any reduced traffic offense or infraction for a driver charged with circumventing interlock/driving without interlock.  Courts may only accept a plea to another offense or infraction of the district attorney prosecuting the case is willing to state to the Court that he/she doesn’t have a prima facie case for the interlock offense charged.

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file000769845610-1024x768Governor Herbert in Utah just signed a bill to lower Utah’s BAC threshold for DUI offenses from .08 to .05.  Utah will be the first state to lower their BAC to this level when the law takes effect in 2018.  It’s noteworthy that Utah was also the first state to lower their BAC from .10 to .08.  Thereafter, the rest of the country followed in their footsteps.  It has been illegal to drive with a BAC of .08 or greater in all 50 states since 2002.

In Colorado, there is a permissible inference that someone is under the influence of alcohol if they submit a chemical test of their blood or breath at .08 or more.  Similarly there is a permissible inference that a person is driving while ability impaired if they submit a chemical test of their blood or breath at .051 BAC up to .079 BAC.  A driver is presumed that they are not under the influence and not impaired if they submit a chemical test of their blood or breath at .05 or less (although sometimes Colorado police officers still charge people with DUI and DWAI even if they submit testing at .05 or less).

Drivers charged with DUI or DWAI after submitting chemical testing reflecting a BAC of .05 or less have the “power of the statute” behind them.  However, often times a DUI defense lawyer must “politely remind” a district attorney prosecuting this type of case as to what the statute reads CRS 42-4-1301.

Also in Colorado, if a person submits a chemical test of his blood yielding a result of 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter of whole blood there is a permissible inference that the person is under the influence of THC- Marijuana.

Thus, people may wonder if Colorado will follow along with Utah and lower their BAC threshold from .08 to .05.

According to an article by Amy Joi O’Donoghue of Desert News Utah, the Utah governor “pointed out that 85 percent of the world’s population currently lives in countries with laws that have .05 percent blood-alcohol limits or less, including France and Italy”.

Some countries even have stricter BAC limits.  China and Colombia for instance have a BAC limit of .02.  Whereas India, Japan, and Taiwan have a BAC limit of .03.

Only time will tell how Utah’s direction with this new BAC legislation will impact other states who may wish to follow in their footsteps.

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file000496525036-1024x391Colorado law mandates that ignition interlock drivers are required to extend their ignition interlock lease agreements by a period of 12 months when it is reported by their ignition interlock provider that the ignition interlock device has prevented the operation of a motor vehicle in 3 of 12 consecutive reporting periods due to excessive alcohol.  This information is downloaded by the ignition interlock provider and submitted to DMV when it appears that the threshold for a suspension has been met.  Thus, it is critically important to always request a hearing regarding alleged ignition interlock violations.

The suspension process is initiated when DMV sends out a violation notice letter to a respondent indicating that the respondent is alleged to have violated the terms and conditions of the interlock device.  A respondent must then either submit a new ignition interlock lease agreement (with a 12 month extension) by the deadline indicated in the letter.  Or, the respondent must request a hearing on the matter.  A respondent should never simply agree to the ignition interlock extension.  A hearing should always be requested.  At the hearing, the extension may be either rescinded, reduced, or sustained.

A violation must be shown to interrupt or prevent the normal operation of the vehicle in 3 of 12 consecutive reporting periods.

Rolling retests don’t count.  Although an action may be triggered due to rolling retests, theses “fails” should not be upheld at an ignition interlock violation hearing.  Why?  Because they don’t fit the textbook definition of a fail.

The threshold alcohol detection level which triggers a fail is .025 BAC.  This figure is set by the Colorado Department of Public Health and Environment in 5 CCR 1005-3 and is defined as the “setpoint value”.

Many interferents may cause this setpoint value to trigger a “fail” aside from a driver drinking alcohol.  This is a false positive.  Some known causes include mouthwash, windshield washer fluid, contaminants from orthodontics/oral appliances, spicy foods, energy drinks, sweets such as cookies and donuts, mouthspray, chewing tobacco, and many other reported interferents.

It is imperative in ignition interlock violation hearings that the complete interlock reports be acquired from the interlock company and investigated well in advance of the hearing.  Often times due to the sheer number of interlock violation hearings being held the reports are sent out by DMV only a few days in advance of the hearing.  This shortens the time period the respondent has to investigate the reports and prepare for the hearing.  The ignition interlock reports tell a very detailed story of the history of the use of the machine and are vital in defense preparation.

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file0001882885044-1024x715The burden of proof at an Express Consent Revocation Hearing in a Colorado DUI case is a preponderance of the evidence.  In order to sustain a refusal revocation, the police must show that the respondent was driving or in actual physical control of a motor vehicle (a commercial vehicle also applies) in Colorado on the date alleged.  Secondly, the police must show that they had probable cause to believe that the respondent’s ability to drive was impaired even to this slightest degree and that they requested that the respondent complete a chemical test.  Finally, the police must show that respondent refused to take, complete, or cooperate in the completion of a chemical test of respondent’s blood, breath, saliva, or urine such that the test could be obtained within two (2) hours of driving.

According to the case law a respondent may not refuse a chemical test simply because the police officer requested the test more than two (2) hours after driving.  A reasonable time after driving is sufficient as long as the time is not so remote that it diminishes the evidentiary value of the test.

An Express Consent Revocation Hearing is independent from the DUI criminal case.  As such, often times when a driver is arrested for DUI, he will have two (2) cases pending.  The first is the Express Consent Revocation Hearing (administrative hearing) regarding his driver’s license through the Department of Revenue.  The second case is a criminal DUI case in the county where the action occurred.

Many people are familiar with the Miranda warnings of the police from watching crime television shows or movies.  The warnings encompass the following rights of a defendant: 1) the right to remain silent; 2) anything you say can and will be used against you in a court of law; 3) you have the right to an attorney;  4) if you cannot afford an attorney, one will be appointed for you.  Police officers often advise a defendant of these rights upon arrest.

A problem can arise for the police when they advise a defendant of his Miranda rights before a request to take a blood or breath test.

Specifically, if a defendant is 1) read his Miranda rights; 2) chooses to remain silent and requests a lawyer; 3) the police give the defendant an Express Consent Advisement; 4) the defendant refuses the test because he wants a lawyer; and 5) the police do nothing to alleviate the confusion that they caused.

This scenario appeared in the Calvert case.  In Calvert, a Denver Police Officer observed Mr. Calvert drive his car in an erratic fashion.  Thereafter, the officer observed a strong odor of alcohol and staggering while Mr. Calvert walked.  He was arrested for DUI.  Calvert was subsequently read his Miranda rights and he requested to call his lawyer.  However, the officer refused to let him call his lawyer.

The Denver officer then handed Calvert a form regarding Colorado Express Consent (previously “implied consent”) and asked him to sign it.  Calvert refused to sign until he consulted with his lawyer (as you will recall the officer previously told him that he was entitled to a lawyer).  The police officer alleged that he refused a chemical test and the hearing officer at his driver’s license revocation hearing agreed.

Calvert appealed and won.  The Court found that Calvert was advised of Miranda, requested to speak with his lawyer, and was not advised that he didn’t have a right to speak with his lawyer regarding completing a chemical test.  Therefore Calvert was not held responsible for the refusal because the police failed to advise him that the right to remain silent did not include the right to refuse to submit to the test or the right to consult with a lawyer.

Thus the essential elements for a respondent to potentially avoid a driver’s license revocation sanction after Miranda are the following: a Miranda advisement, request to speak to a lawyer, confusion caused by the police about the right to a lawyer, and a failure of the police to clear up the confusion.

If your alleged refusal contains those elements mentioned above you may have a shot at keeping your driver’s license.

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