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Articles Posted in DUI

IMG_3712-1024x768If you have at least 3 prior convictions for alcohol-related traffic offenses (to include DUI, DUI per se, DWAI) or vehicular homicide or vehicular assault, anywhere in the United States or any territory subject to the jurisdiction of the United States you may be charged in Colorado with Felony DUI.  Felony Driving Under the Influence (DUI) in Colorado is a Class 4 Felony.

If a person is found guilty or pleads guilty, he may be punished by two (2) to six (6) years imprisonment in the Department of Corrections followed by three (3) years of mandatory parole.  If probation is imposed rather than imprisonment in the Department of Corrections, then the minimum county jail sentence is 90 days up to 180 days.  No sentencing alternatives (i.e. work release, education release, in-home detention) are available for the minimum mandatory 90 days.   Alternatively, if probation is imposed, a judge has discretion to impose a minimum of 120 days up to 2 years of county jail time served on work release or education release if those programs are available in the county where the DUI occurred.

As referenced-above, a felony DUI in Colorado is triggered by a person having 3 prior alcohol-related traffic convictions.  These convictions are established by three possible methods: 1) if the DA and the person stipulate to the prior convictions; 2)  the prior convictions may also be established when the DA presents to the court a copy of the person’s driving records provided by the department of revenue or by a similar agency in another state which references the previous convictions; 3) the DA presents an authenticated copy of the record of the previous convictions or judgements from a court of record of this state or from a court of any other state, the United States, or any territory of the United States.  Of further note the Court shall not proceed to immediate sentencing if the person has not stipulated to prior convictions or if the DA has requested an opportunity to obtain a DMV record or court record.

The bottom line here is that felony DUI matters in Colorado are very serious matters.  Hiring an experienced felony DUI attorney is critical in fighting a felony DUI charge and addressing the complexities presented by prior offenses.  This is not the type of case that should ever be fought without experienced felony DUI representation.

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Phillips County DUI, DUI per se, DUI drugs, DWAI, and Felony DUI cases are prosecuted by the Sterling Office of the 13th Judicial District Attorney’s Office.  The courthouse is located at 221 S. Interocean Avenue, 2nd Floor, Holyoke, Colorado 80734.  The county court criminal docket is typically held on Thursdays.

Due to the lower population of Phillips County, Colorado, DUI and DWAI charges are  infrequently charged in the county court system.  In the year 2021, there were 20 total DUI cases and only 1 DWAI case charged in the court.  The Phillips County Sheriff’s Office, the Holyoke Police Department, the Haxtun Police Department, and the Colorado State Patrol are active law enforcement agencies in the county.

If you’ve been arrested for a DUI offense in Phillips County Colorado it’s important to recognize that you likely have two cases going on at the same time.  The first case is a civil case with your driver’s license administered by the Colorado Department of Revenue.  The second case is a criminal case in Phillips County Court.

The civil case with your driver’s license is triggered by submitting a breath test at .08 or greater (or .02 or more if under 21 years of age), refusing a breath/blood test, or submitting a blood test yielding a result of .08 or greater (or .02 or more if under 21 years of age).  A hearing should be requested with the DMV within 7 days of the date of notice of the Express Consent Affidavit and Notice of Revocation for breath or refusal cases, and by the deadline indicated in the letter received from DMV for blood test cases.  If a driver is unable to request a hearing by the deadline in the Express Consent Affidavit or by the deadline indicated in a letter from DMV, a “late hearing request” may be submitted which sets forth the grounds upon which an Express Consent Hearing should be granted.  If a late hearing request is granted, it may/may not be possible to obtain a temporary permit to drive on upon until the hearing.

The criminal case in Phillips County Court will typically commence with an initial court date as indicated on a person’s summons (ticket) or bond paperwork.  It’s typically best to secure representation as quickly as possible prior to any court appearances in the case.  An experienced DUI lawyer will likely move the court date to allow time to investigate the case and prepare an aggressive defense strategy with the client.

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Colorado has revised their DUI and DWAI penalty structure again in 2022.  The penalty for a first time DUI or DUI per se offense is 5 days to 1 year in jail (the Court may suspend the 5 days if the person pays for and completes an alcohol and drug evaluation and treatment).  $600 to $1000 may be imposed as a fine, with the Court retaining discretion to suspend the fine.  48 to 96 hours of community service at a non-profit agency will be imposed.  If the person has a BAC of .20 or greater, a minimum 10 days up to one year of jail will be imposed.  However, the Court may impose “sentencing alternatives” such as work release, work-seek release, work release for a self-employed business, reasonable and necessary child or family care services, education release, medical treatment, day reporting, behavioral health treatment, reentry program.  Probation may be imposed not to exceed two years.

The penalty for a first time DWAI driving while ability impaired conviction is 2 days to 180 days in jail, the minimum 2 days may be suspended upon the person successfully completing an alcohol/drug evaluation and treatment.  A BAC of .20 or greater requires 10 days up to 1 year in jail, however the court may apply the same sentencing alternatives listed above for DUI offenses.  Probation may be imposed for a maximum of 2 years.

Second offenses, including DUI 2nd, DWAI 2nd, and DUI per se 2nd, with the prior being greater than 5 years ago, require a minimum mandatory 10 days up to 1 year of jail, however the Court retains discretion to impose the sentencing alternatives listed above.  No deductions to the jail sentence are allowed for trusty prisoner status, however the person can receive credit for time served prior to the sentence.  A fine of $600 to $1500 will be imposed, with the Court retaining discretion to suspend the fine.  48 hours to 120 hours of community service will be imposed, and is mandatory.  A minimum period of 2 years of probation will be imposed, in addition to a suspended 1-year jail sentence (on top of any jail imposed as a condition of probation).

If a person is convicted of DUI 2nd, DWAI 2nd, or DUI 2nd and the prior conviction (the 1st offense) occurred less than 5 years before the current offense, then the Court does not have discretion to impose the sentencing alternatives listed above.  However, the Court may still authorize work release, education release, and medical release (if these programs are available in the county jail of the sentencing court).  The purpose of the release has to be related to the following: continuing employment that the person held at the time of sentencing, continuing education that the person was enrolled in at the time of sentencing, participation in Level II treatment.

What is a “prior offense” for sentencing purposes?  A prior offense under Colorado law is when a person has a prior conviction for DUI, DUI per se, DWAI, vehicular homicide, vehicular assault, or aggravated driving with a revoked license, driving under restraint-alcohol.  These prior offenses need not to have occurred in Colorado.  The priors are counted whether they occurred in Colorado, another state, the US, or an territory subject to the jurisdiction of the US.  Thus, Colorado takes a very broad and aggressive approach to what constitutes a prior.  Furthermore, Colorado does not have a specific “look back period” for priors.  Colorado factors in priors which occurred at any time during the person’s life.  In other words, a lifetime “lookback period” is utilized.  Even if a prior offense occurred 20 or 30 years ago, or more, Colorado will utilize it for sentencing purposes as a prior conviction.

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Being charged with a DUI in Colorado can be one of the most stressful times a person can go through in life.  Unfortunately, sometimes the stress of a DUI can be greatly compounded by also being charged with possessing a gun while intoxicated.

If you were stopped for DUI, DUI per se, DWAI, or DUI drugs in Colorado and had a gun in your vehicle, you most likely were also charged with “drunk with a gun” or “possessing a weapon while intoxicated”.  The statutory charge is identified as “prohibited use of weapons”, however it’s all the same charge- it’s simply characterized differently in some charging documents.  This charge is a Class 2 Misdemeanor offense and is punishable by 3 months up to to 364 days in the county jail and a fine of $250.00 up to $1000.00.  Whether or not the gun was loaded makes no difference under the statute- a loaded gun is treated the same was as an unloaded gun.  However, the fact that the gun was loaded or unloaded and the proximity of the gun to the driver are certainly factors that may be taken into consideration by a prosecutor in assessing aggravation/mitigation and strength/weaknesses in the case.

If a person is charged with prohibited use of weapons in addition to a DUI charge, the prosecutor must prove certain “elements” of the crime.  The first element is that the prosecutor must show that the person “possessed” a firearm.  This first element can be aggressively challenged by the defense.  Often times possession issues arise from the location where the firearm was found.  Examples include: a firearm locked in a toolbox in the bed of a pickup truck, a firearm located in the center console of the vehicle, a firearm located in the backseat of a vehicle, a firearm located in the glovebox, a firearm in the side map pocket of the door, etc.  Simply having a gun in the vehicle when stopped for DUI does not automatically establish the element of “possession”.  That burden falls on the prosecutor.

“Possession” in People v. Garcia, 595 P.2d 228 (1979) was interpreted to mean the actual or physical control of a firearm.  The  Court further indicated that “interpreting ‘possession’ to mean anything other that actual physical control would thus constitute an inconsistent construction of the statute”.

Secondly, the prosecutor must establish that the person is under the influence of intoxicating liquor or of a controlled substance.  There is no specific blood or breath level indicated in the prohibited use of weapons statute in establishing the requisite element of intoxication.

Possible defenses to this charge may include:

1) The driver of the vehicle was not intoxicated, therefore the prosecutor has not established the intoxication element of the charge;

2) The stop of the driver was illegal;

3) The weapon was found through an illegal search and seizure;

4) The driver did not possess the weapon through actual or physical control.

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pexels-photo-843563-683x1024The walk and turn test is popular among Colorado DUI police officers as a tool they utilize in an attempt to prove intoxication.  The walk and turn test is a divided attention test which divides a person’s attention between balance, memory, and muscle control.  There are two stages to the test: “the instructional stage” and the “walking stage”.  The test consists of a driver listening to a specific set of complex instructions and then walking down a straight line which could be an imaginary line or a real line.  The police officer will then score a driver’s performance on the test based upon 8 “clues” which may be observed.  Scoring on this test is similar to how golf is scored (the more strokes you have in golf, the worse your score is).  In the walk and turn test, the more clues you have the worse score is as well.  The “clues” are as follows: 1) the driver must keep her balance in the starting position during the instruction stage.  If the driver cannot maintain balance in the starting position the driver will be scored as having 1 clue.  2) If the driver starts walking too soon before instructed to start the test, the DUI police officer will assign a second clue for starting too soon.  Thus simply being anxious and starting the test will earn a driver a negative score.

Once the driver starts walking the line, if she stops while walking she will receive another clue/negative score.  The driver must touch each step heel to toe.  If each step is not perfectly heel to toe, the driver will receive a fourth negative mark/clue.  If the driver steps off of the line (even if an imaginary line) she will be scored with her 5th negative marking for stepping off the line.  Don’t use your arms for support like you’re walking a tight rope in the circus during any part of the maneuver.  If you do, you just scored your 6th clue/negative mark.

A driver must listen carefully to the instructions regarding the complicated turn at the end of the initial 9 steps.  For this turn, the driver must keep her front foot flat on the line and turn taking several small steps with the other foot.  This is not a normal way for a human being to turn around.  It’s a very complex turn that has to be performed exactly the way the police officer describes it.  If the turn is not perfect for the police officer the driver will score her 7th negative mark/clue.  Lastly, the driver must not try to earn extra credit by completing more (or less) than 9 steps.  If a driver does, she will be scored with the 8th clue/negative mark for taking an incorrect amount of steps.

If a driver doesn’t pay extreme attention to the complex set of instructions from the police officer, she will likely fail miserably.  Nervousness, footwear, confusion, the ground surface for the tests, wind and weather, a person’s age and physical abilities, and poor instructions can all be factors that come into play in performance on these tests.  Many people seem to especially have difficulty in staying in the instructional position, not starting the test too soon, and turning around correctly after the 9th step.

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DUI, DUI per se, and DWAI charges in Adams County Colorado are heard in the Adams County Justice Center at 1100 Judicial Center Drive, Brighton, Colorado 80601.  There are several different trial divisions that preside over DUI, DUI per se, and DWAI cases in Adams County.  Accordingly, your case could be assigned to any of the following trial divisions: Division 2, Judge Bowen, Division 3 Judge Cox, Division 4, Judge Roybal, Division 5 Judge Dang, Division 6 Judge Flaum, Division 7 Judge Howell, or Division 8 Judge Kirby.

Adams County DUI Lawyer Monte Robbins aggressively fights DUI charges in Adams County Court and at the DMV license revocation hearing.  If you submitted a breath test or allegedly refused chemical testing in your Adams County case you must request an Express Consent Revocation Hearing at any full service DMV office in Colorado.  This request must be made within 7 days of the stop.  The agent at DMV will ask you whether or not you want the police officer present at your hearing.  Strategy comes into play when making this request thus it is a good idea to speak with an experienced Adams County DUI defense attorney before requesting your hearing.  Any driver who is presented with an Express Consent Affidavit and Notice of Revocation should make the request for hearing regardless of whether the person lives in Colorado, is out of state, or has a valid driver’s license.  The Express Consent Revocation Hearing can be a valuable tool in further investigating the Adams County DUI case.  It’s important to keep in mind that the driver’s license case is a separate civil case from the criminal case in Adams County Court.  Thus, a person charged with DUI in Adams County will have 2 cases proceeding at the time time: civil and criminal.  Adams County Drunk Driving Lawyer Monte Robbins will fight for you in both the criminal and civil case.

If you submitted a blood test, you must monitor your mail for a notice from the Colorado Department of Revenue with the results of the blood test.  If the blood test resulted in an alcohol level of .08 or greater, the driver must request a hearing at any full service DMV office before the deadline indicated in the letter.  Upon requesting the hearing, the driver will surrender his physical driver’s license in exchange for a temporary permit that will be valid up until the date of the hearing but not to exceed 60 days.

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The 13th Judicial District Attorney’s Office in Sterling prosecutes DUI and DWAI cases in Logan County, Colorado.  The year 2019 saw 96 DUI (driving under the influence) cases filed in Logan County and 4 cases filed as the lesser offense of DWAI (driving while ability impaired).  Eleven (11) DUI cases were filed as Felony offenses in Logan County District Court.  Felony DUI offenses may be filed when a person has 3 prior, in a lifetime, alcohol-related traffic convictions.  The district attorney’s office has the discretion under the law to file the offense as either a felony or as a misdemeanor.

The Logan County Sheriff’s Office, the Colorado State Patrol, and the Sterling Police Department are active in DUI enforcement throughout Logan County.  Compared with 2018, the number of DUI and DWAI offenses filed in 2019 increased across the 13th judicial district (Phillips, Morgan, Logan, Kit Carson, Sedgwick, Yuma, and Washington Counties).

DUI cases in Logan County are often initiated through a traffic stop for some sort of alleged traffic violation.  This traffic violation may be something as minor as failing to use a turn signal, having a license plate bulb out, having tinted windows that are too dark, or speeding just a couple miles an hour over the limit.  Other contacts may originate from a REDDI report, a sobriety checkpoint, a traffic accident (many times a single vehicle accident), or what the police like to call “a consensual encounter”.

Upon contact, the Logan County Sheriff’s Deputy, the CSP Trooper, or the Sterling Police Officer will be looking for “indicia of impairment”.  These indicia will often be the “usual indicia” alleged by all police: bloodshot watery eyes, slurred speech, fumbling hand movements, strong odor of alcohol, balance issues, etc.  If an officer claims to observe some or all of these indicia, she will typically ask the driver out of the vehicle for standard field sobriety tests.  Some officers explain that these field sobriety tests are voluntary…and some do not.

These tests may include a walk and turn test, a one leg stand, and a Horizontal Gaze Nystagmus (HGN) test.  Other tests may include an alphabet test, a counting backwards test (often from 57 to 43), a finger to nose test, a Modified Romberg, and a portable breath test (PBT).

Upon arrest, Colorado’s Express Consent is typically next which includes a blood test, breath test, or refusal.  When an officer requests a chemical test in Logan County, the driver (“respondent”) has just 7 days to request a hearing at Colorado DMV, otherwise the driver’s right to a hearing expires on the 8th day.  Logan County DMV hearings are all held via telephone.  The Logan County DUI case is separate from the Colorado Express Consent DMV case, thus it’s important for a driver to know that a Colorado DUI initiates two cases: a criminal case in the courts and a civil case at the Colorado DMV.

The initial contact, the officer’s alleged observations, the field sobriety tests, the blood/breath/refusal, and the civil Express Consent DMV case can all be challenged in Logan County DUI matters.  There is often video and audio evidence available in Logan County DUI cases that may be acquired as part of the defense investigation.  Sterling, Logan County DUI Attorney Monte Robbins can assist you in evaluating all the evidence in your Logan County DUI case and developing a comprehensive approach to the case.

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pexels-photo-1117647Being charged with a DUI can be an incredibly stressful experience.  This stressful experience can be greatly magnified when one is charged with not only DUI, but also with Child Abuse (or multiple counts of Child Abuse), as a result of having a child or children in the vehicle.  A Child Abuse charge in a DUI case typically results from a child being unreasonably placed in a situation that poses a threat of injury to the child’s life or health.

Child Abuse resulting from a DUI comes in a few different forms depending upon the facts of the case.  One of the common forms is a Class 2 Misdemeanor charge whereby the driver is charged with acting “knowingly” or “recklessly” resulting in no death or injury to the child.  If more than one child is present in the vehicle, then the police typically charge multiple counts in relation to the number of children in the vehicle.

A Class 3 Misdemeanor is another common form of child abuse charged in conjunction with a DUI.  The Class 3 Misdemeanor is charged when a person acts with criminal negligence, resulting in no death or injury to the child.

Child Abuse may be charged regardless of whether or not the driver is the parent of the children in the vehicle.  No parental/child relationship is required.  The simple fact that the alleged DUI driver has children in the car is sufficient.  A child is defined under the child abuse statute as someone under 16 years of age.

The penalties increase significantly if a child is injured or dies as a result of the alleged DUI driver’s conduct.  If a person acts knowingly or recklessly and the child dies, an alleged DUI driver will be charged with a Class 2 Felony.  If the person acts with criminal negligence and the child dies, the alleged DUI driver will be charged with a Class 3 Felony.  Similarly, if a child sustains serious bodily injury (SBI) as a result of knowing or reckless behavior, an alleged DUI driver will be charged with a Class 3 Felony.  If the alleged DUI driver’s behavior is a result of criminal negligence and a child received serious bodily injury, the driver will be charged with a Class 4 Felony.

Injuries that are not defined as serious bodily injury will cause a driver to be charged with a Class 1 Misdemeanor if the driver’s action was knowingly and recklessly.  Alternatively, a Class 2 Misdemeanor will be charged if the driver’s action was criminally negligent and resulted in injury to the child (not SBI).

In addition to the penalties for DUI and Child Abuse, a driver will typically also face an investigation by the Colorado Department of Human Services Division of Child Welfare.  A conviction for child abuse may also carry collateral consequences including loss of employment, professional licensing issues, and family law issues including visitation rights and custody.

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element5-digital-645671-unsplash-684x1024If a police officer in Colorado has probable cause to believe that a person’s ability to drive is impaired even to the slightest degree due to alcohol consumption, he will require the person (driver) to submit to a chemical test of either blood or breath.  According to Colorado law, the driver has already consented to this test simply by driving on the roads in Colorado.  An adult driver at least 21 years of age or older has a right to a blood test.

If extraordinary circumstances are present, then a police officer may request that a driver submit to a different test than the one chosen.  Extraordinary circumstances are those which are out of the control of law enforcement.  Examples include, but are not limited to: high call volume affecting medical personnel, power outages, malfunctioning breath test equipment and weather-related delays.  Extraordinary circumstances do not include: a busy workload, inconvenience, a minor delay that does not impact the 2-hour window to complete the test, and routine circumstances within law enforcement’s control.

Absent extraordinary circumstances, a driver may not change his election of chemical test.  In other words, a driver may not select blood and then change his mind to breath or vice versa.  The police officer is required by law to accommodate the driver’s initial selection.  Although the law does not specify sanctions when the police don’t honor the driver’s initial selection, case law has shown that dismissal is appropriate in certain cases.

The purpose of the Express Consent Statute is to facilitate cooperation between law enforcement and drivers in promoting highway safety.  In order to further this cooperation, the law creates mutual rights and responsibilities for the driver and the police.  If a police department has no reasonable protocol in place for completing the driver’s selection of test, then dismissal of the charges has been held in some cases to be an appropriate remedy.  Further, the courts have held that when an officer denies a driver his right to choose between a blood and a breath test that the officer denies the driver the right to establish non-intoxication.  The state may not disregard the statutory rights of drivers with impunity.

Although dismissal of DUI charges against a person has been held to be a drastic remedy, courts appear to be serious about ensuring that the police honor a driver’s selection.  Dismissal has been held to be an appropriate remedy when the police don’t have a reasonable protocol in place to obtain and complete the test under routine circumstances or when the test that the driver selected is not given and there is no good faith effort by the police to follow that protocol.

 

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clarisse-meyer-162874-unsplash-1024x683Probation revocations hearing in county courts in Colorado for DUI and DWAI offenses are typically based upon an alleged new law violation or a “technical violation”.  A new law violation means that the person on probation has been charged (or convicted) of a new offense while on probation.  Standard terms and conditions of probation typically include not receiving any new criminal offenses while on probation.  A new law violation must be proved beyond a reasonable doubt.  Often times probation will file a probation revocation complaint simply based upon a person being charged with a new law violation.  In this case, the Court should “trail” (continue) the probation revocation complaint until after the new law violation case has been resolved.  A probationer should not “admit” to a probation revocation complaint based upon a new law violation while the new law violation case is still pending.

A technical violation, on the other hand, includes violations such as not complying with monitored sobriety (hot UA’s, missed UA’s, dillute UA’s).  Other technical violations may include missing appointments or check-ins with probation, missing Level II alcohol classes (or not enrolling), being discharged from Level II classes, traveling outside of Colorado without permission, not completing community service hours, not paying fines and costs, not completing the MADD victim impact panel, as well as other possible technical violations.

Technical violations must be proven by a preponderance of the evidence (a civil standard).  Technical violations are not required to be proven beyond a reasonable doubt.  Probationers have the right to be released on bond during DUI and DWAI probation revocations.  Other rights of probationers include the right to an attorney, the right to remain silent, the right to know the alleged violations (i.e. to receive a copy of the complaint), and that any admission must be voluntary and not the result of undue influence or coercion.   Probation violation proceedings in DUI cases tend to move very quickly, especially if a probationer has been arrested and released on bond for a probation revocation complaint.  Often times, the Court will request an admission or denial immediately at the bond return date, which does not permit much time for the probationer or defense counsel to investigate and prepare the matter.  If an admission is entered, often times the probationer will be immediately sentenced that same day, however it is possible in some cases for the matter to be continued for sentencing at the discretion of the Court.  Depending upon which county court division the case is assigned to, if a denial is entered the matter might be set as quickly as 7 days.

If a denial is entered, the matter will proceed to hearing where the probationer has the right to confront and cross-examine witnesses against her, testify if she chooses to, receive a copy of the alleged violations and evidence against her, and have a judge determine whether or not probation was violated by a preponderance of the evidence.  A probationer is not entitled to a jury trial on the complaint.

If the probationer remains in custody on the complaint, the hearing must be held within 14 days.  This 14 day limitation also applies in situations where a probationer is arrested by her probation officer.  In that event, the hearing must take place within 14 days of the filing of the complaint.  A probation revocation complaint must be filed before the expiration of probation, otherwise the Court loses jurisdiction in the matter.

If the violation is proven (or violations), the probationer will be resentenced either to probation (typically with a punitive sanction if granted) or to a jail sentence.  If probation is granted, the old probation sentence is revoked and a new probation sentence is granted.  If the probation is not regranted, then probation is revoked and the matter is closed with a jail sentence.  The Court may sentence the person to any sentence available at the time of the original sentencing.

If a complaint contains both technical violations and a new law violation, the Court may not wish to trail the matter until resolution of the new law violation.  In this case, the Court may request an admission or denial simply on the technical violations in the complaint and then proceed accordingly.

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