What is a DUI in Colorado?

Colorado has three DUI Offenses:
Hand ciffs DUI, DUI per se, and DWAI. DUI is an abbreviation for "Driving Under the Influence".
DUI means driving a vehicle when you have consumed alcohol, drugs or both to such a degree you are "substantially incapable" of safely operating a vehicle. DUI per se means driving with a BAC of .08 or greater.

What is a “DWAI”?

A DWAI is a lesser included offense of a DUI. It means "Driving While Ability Impared".
Juries in Colorado are told that they may, but are not required to, infer a driver is guilty of DWAI if his BAC is greater than .05 (but less then .08). The DWAI offense means a typical male cannot safely consume more then two drinks, and a typical woman cannot safely consume more then one drink, and then drive within the same hour.

What is BAC?

BAC means your breath or blood content expressed in terms of grams of alcohol in your
breath or blood. The breath test machine is designed to be a substitute for the blood test.

What is the punishment for a DUI in Colorado?

The maximum punishment for a DUI in Colorado is one year in jail, a $1,000 fine, 96 hours of useful public service, an alcohol evaluation, an alcohol education course, and up to 86 hours of alcohol therapy. A BAC over .20 requires 10 days jail, even on a first offense. Second and third offenses carry higher maximums and require jail.

Jail: What is the typical punishment for a first offense?

Typically, unsupervised probation for 1 or 2 years, 48 hours of useful public service, an alcohol evaluation, an alcohol education course, and fines, fees, and court costs amounting to approximately $600. You must also abstain from drinking for 1 year.

What happens to my driver’s license if I have a DUI in Colorado?

The Department of Revenue, not the courts, has power over your driver’s license. Colorado has a system of administrative driver’s license revocations and suspensions for DUI. If you have a BAC of .08 or greater, your driver’s license will be revoked for a minimum of three months. You can prevent the BAC revocation only if you (1) ask for a hearing within 7 days and (2) win the hearing.

If my driver’s license is revoked can I still drive to work or get limited driving privileges?

No.

How do I get a hearing if my driver’s license is revoked for a BAC of .08 or greater?

Run, don’t walk, run to the nearest DMV office and request a hearing. The Department of Revenue (which includes the DMV) must set the hearing within 60 days of your request. You are permitted to drive with a temporary driver’s license until the date of your hearing. It is almost always in the driver’s best interest to request a hearing.

Should I ask to have the arresting officer present at the driver’s license revocation hearing?

This is a difficult question. You have the right to have the arresting officer present at the hearing so you can confront and cross- examine him. The decision whether to have the cop present often determines the outcome of the hearing. You should consult with a lawyer to determine whether it is a good idea to have the cop present or not. If you request the cop and he does not appear, your driver’s license will be reinstated. If you have no defenses, you should ask for the presence of the arresting officer and hope he does not appear. On the other hand, if you have one or more defenses, it may not be a good idea to ask for the cop’s presence because he will rebut your defense. Also, some hearing officers find it difficult to rule against a cop who is present.

Should I get a lawyer if I am arrested for a DUI in Colorado?

Let’s face it, lawyers cost money, and there is no guarantee they will make a difference in Courtroom your case. On the other hand, a DUI will stay on your driving record for life, dramatically increase your auto insurance rates, and may put you jail. You should always consult with a lawyer after a DUI arrest. Remember there is a difference between an office consultation and hiring a lawyer to do your case.

How can a lawyer help me?

1. He can challenge your traffic stop and arrest.
2. He can take your case to trial or negotiate a plea bargain on your behalf with the prosecutor.
3. He can represent you in your driver’s license revocation hearing.
4. He can get the second sample of your breath or blood tested by a certified lab.
5. He can help you in sentencing
6. He can get you started on the road to rehabilitation if you have an alcohol problem.

What are the defenses to a DUI?

1. A bad traffic stop.
2. Lack of probable cause for an arrest for a DUI.
3. Absence of driving. However, you maybe considered to be driving if you are in the driver’s seat and have your car keys within immediate reach.
4. Inaccurate breath or blood testing.
5. A serious failure to follow regulations for breath or blood testing.
6. An inconsistency between the amount you drank and what the test shows.

Walk and Turn testCan I get my DUI thrown out if my traffic stop was bad?
Yes! The police have to have probable cause that you committed a traffic offense or a “reasonable suspicion” that you are DUI in order to stop you in the first place. A surprising number of traffic stops are bad.

Can I get my DUI thrown out if there was not probable cause for arresting me?

Yes. In order to arrest you for DUI and require you to take a blood or breath test, there must be probable cause that you are DUI. Even if the traffic stop was good, the police sometimes lack probable cause because they put too much weight on the odor of alcohol, which, the Colorado Supreme Court has ruled, is not enough for probable cause to arrest for DUI.

What is “expressed consent”?

Expressed consent means the rule of law in Colorado that any person who drives in Colorado is deemed to has expressed his or her consent to cooperate in and complete a breath, blood, or urine test to determine his or her BAC when directed by a police officer who has probable cause to believe the person is DUI.

Do I have to take a blood or breath test if I am stopped for a DUI?
No, but you will have your driver’s license revoked for 1 year if you don’t. If your driver’s license is revoked for a refusal to take a blood or breath test, you have a right to a hearing at which the following defenses are available:

1. The traffic stop was bad.
2. There was no probable cause for your arrest for DUI.
3. You were incapable of taking the breath test.
4. The officer terminated the breath test before you had sufficient opportunity to perform the test.
5. You initially refuse to take a chemical test of your blood or breath, but recanted your refusal and told the officer you are willing to take a blood or breath test and it was still possible for the officer to accomplish the chemical test within two hours of the traffic stop.

Can I talk to a lawyer before I take a blood or breath test?

No. The police are entitled by the law to treat a driver with alcohol in his system as an “exigent circumstance” because your body is steadily eliminating alcohol. Therefore, the courts do not require the police to delay a blood or breath test so that you can speak with a lawyer.

What are roadside field sobriety tests?

Roadside field sobriety tests are field tests for alcohol impairment usually conducted behind your vehicle after a traffic stop where the cop suspects you are DUI. The standard field sobriety tests are (1) a test for involuntary jerking of your eyes, (2) the walk and turn test, and (3) the one-leg stand. The portable or handheld breath test is also a field sobriety test. You are not required to take roadside field sobriety tests, and cop is required by law to tell you that you do not have to take the portable breath test.

Do I have to take roadside field sobriety tests?

No! There is no penalty for refusal to take a roadside field sobriety test. In most cases, the cop is supposed to inform you that roadside field sobriety tests are voluntary. Keep in mind if you take roadside field sobriety tests, the officer decides how well or how poorly you performed them. Your results can and will be used against you later.
I recommend that drivers never take roadside field sobriety tests.

Do the police preserve a second sample of the blood or breath test and can I get it tested?
The answer to both questions is “yes”. The police are required to preserve a second sample of your blood or breath.
You are entitled to obtain your second sample and have it tested independently.

What happens to out-of-state drivers who get a DUI in Colorado?

Out-of-state drivers who have DUI’s in Colorado are treated no differently than in-state drivers. An out-of-state driver will have to go to county court to resolve his DUI charge. The out-of-state driver will also have to participate in a driver’s license revocation hearing if he wants to prevent his Colorado driving privilege from being revoked. An out-of state driver can hire an attorney to represent him or her in court and at the driver’s license hearing and may thus be able to avoid having to return to Colorado.

Will a DUI in Colorado be reported to other states?

Yes. Colorado is a member of the Interstate Driver’s License Compact. Therefore, a conviction of a DUI in Colorado will be reported to other states. DWAI convictions are not reported to other states.

If I did not ask for a driver’s license hearing within seven days, can I still get a hearing?

Generally, no. The DMV is very unforgiving of drivers who fail to request a hearing within seven days. In order to get a hearing out of time, you must show that you were in jail, hospitalized, or some other extraordinary circumstance.

What if I was under the influence of prescription drugs, and not alcohol or illegal drugs?

Driving under the influence of prescription drugs is a DUI offense.

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You should consult an attorney for individual advice regarding your own situation.
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