A DUI or DWAI ticket affects your freedom, your job, your driver’s license, and your peace of mind. But a drunk or high driving charge does not have to ruin your life. Our job is to get you through the process of dealing with this stressful situation as painlessly as possible.
It is simply mandatory that you have a lawyer represent you for this type of charge. You should hire the best lawyer that you can afford, as the better your lawyer is, the better your result will be. In fact, this is such an important point that the courts will appoint a lawyer for you if you cannot afford one, so there is no excuse for trying to deal with this complicated matter by yourself. You just ask the clerk for a public defender on your first court date.
It is also important to speak to a lawyer soon after you get your ticket. There is a deadline that is seven days after you are ticketed or arrested for certain actions you must take to preserve your rights. Even if you do not have the immediate funds for a lawyer at this point, please still call us so that we can advise you as to what you need to do to meet this deadline.
The formal charges for these types of tickets involve several legal and technical terms:
Driving Under the Influence (DUI)
In order to be found guilty of Driving Under the Influence, or DUI, the prosecutor has to prove that you were driving while you were “substantially incapable” of safely operating a motor vehicle. There is a presumption under Colorado law that if your blood or breath test results indicate a level of .08 or more for alcohol, then you are guilty of Driving Under the Influence or DUI. There is also a presumption that you are DUI if your blood test reveals 5 nanograms of active THC marijuana metabolites. The presumption is able to be rebutted, and certainly we have accomplished this before, but this law places the burden on you to prove that you were not substantially incapable of driving.
Driving While Ability Impaired (DWAI)
The standard for this charge is incredibly low, and therefore, incredibly unfair. All the prosecutor has to prove is that your driving was “affected to the slightest degree” by the consumption of alcohol or drugs. Furthermore, there is a presumption under the law that if your blood or breath test results are between .05 and .08 that you are guilty of Driving While Ability Impaired, or DWAI. Again, it is certainly possible to rebut this legal presumption, but the burden falls on you to prove yourself innocent once the prosecutor is able to invoke this presumption.
Driving Under the Influence Per Se (DUI Per Se)
To be found guilty of DUI Per Se, the prosecutor has to prove that you submitted to a blood or breath test, and the result was .08 or more within two hours of driving. The two hour limit applies to when you were actually in control of the vehicle.
Vehicular Assault is a Class 4 Felony charge in Colorado. This means that you can face from 2 to 6 years in prison if you are found guilty of this charge. Basically, this charge alleges that you were driving under the influence and as a result caused some other person serious bodily injury. For the injury to be considered “serious” under Colorado law, there has to be some kind of broken bone or cut that required stitches.
To be guilty of Vehicular Homicide, the prosecutor has to prove that you were driving under the influence and caused a wreck that killed someone. This is a Class 3 Felony in Colorado, which means you are facing 4 to 12 years in prison if convicted.
Defenses to Drunk Driving charges
- No Driving. This defense involves showing that you were not driving as alleged by the police. In actuality, you do not have to be physically driving or operating a motor vehicle to be deemed to be legally “driving.” They just have to prove that you were in “actual physical control” of the vehicle. This is a factual determination made by the jury, where the jurors consider:
- Whether you had the intent to drive
- Whether the keys were in the ignition
- Whether your seat was reclined
- Whether the engine was running
- Where you were in the vehicle
- Illegal Traffic Stop. This defense is presented to a judge, not a jury. To prove that your traffic stop was illegal under the United States Constitution, we show that there was no valid or legal reason for you to be pulled over in the first place. This allows us to get the entire case thrown out of court, and you walk free with no consequences. The police have to have a valid reason to contact you. You either have to be doing something illegal, or there has to be some emergency that requires them to contact you. If you are doing nothing wrong and not bothering anybody, they have to leave you alone.
- Invalid blood or breath test. Sometimes, the blood or breath test performed by law enforcement was not done properly or according to the rules set forth by the Colorado Department of Health. This defense is presented to both the judge and the jury. If the judge throws out the test, then the jury does not get to hear about it. If the judge decides that what was wrong with the test does not rise to the level of being necessary to throw out the test entirely, we can still present the defense to the jury by arguing that they cannot trust the test since it was not done properly.
- Roadside tests. The standard field sobriety tests performed on the roadside by the police officer in your case are voluntary. If we can prove that you were not presented the opportunity to refuse these tests, the judge will throw them out. Above that, these tests are scientifically suspect. We have successfully shown juries that these tests are not to be trusted at all. The tests simply do not scientifically prove that someone is impaired. These tests are graded subjectively, not objectively. For example, if the officer determined that you stepped off the line during the walk and turn test, it is his judgment of whether you stepped of the line that counts, not whether you actually stepped off the line in reality. This is especially important during the eye test, called Horizontal Gaze Nystagmus. The officer is subjectively looking into your eye and making a medical diagnosis, as opposed to some subjective standard determined by a medical expert in eye conditions.
- Lack of Evidence showing Impairment. We have successfully proven to juries that our clients were not impaired when they were driving. The officer may say that your speech was slurred, but he or she often testifies that he understood what you were saying and cannot say which word you slurred and how you said it. The officers never record your speech, either. The police may say that you smell like alcohol, but alcohol has no smell. They cannot say that they can determine whether you were impaired by a smell. The officer may say that you stumbled getting out of your car, but they do not record this on their dash cam.
Driver’s License Consequences
There are two parts of every drunk driving case in Colorado, and they are handled completely separately from each other. The first is the court case, which is handled by the court system. The second is the administrative hearing at the Department of Motor Vehicles where they try to take away your license. The DMV hearing process is a technicality-based system. If your case meets certain technicalities, then they are going to take away your license. If they do not meet these technicalities, then you will not lose your license, at least through the DMV hearing process. You can still lose your license later in court.
This results in a lot of unfairness in both directions. Sometimes, you are really not guilty of your DUI, but they take your license based on those technicalities. But the good news is that even if you are guilty of DUI, it is still possible to save your license based on their failure to meet the technicalities.
By driving in Colorado, you automatically agree that you will take a blood or breath test when asked by a police officer. Failure to take either test will subject you to a possible longer license suspension. It will also not necessarily help you in court. The reason is that the prosecutor is allowed to argue to the jury that you were hiding something by not performing the test and that the failure to do the test was because you knew that you were drunk or high.
Marijuana DUI and DWAI
Colorado has passed a law saying that if they find 5 nanograms or more of active THC in your blood within two hours of driving, you are presumed to be driving under the influence. We have rebutted this presumption many times over because it is such an unfair standard. Our expert witness in forensic toxicology has testified many times that a regular user of marijuana is not affected in the least by a 5 nanogram THC blood content. Additionally, a nanogram is one one billionth of a gram. The lab is counting angels on the head of a pin. It is essential that your lawyer have your blood tested by an independent lab to confirm the result.
What You Can Do Now
Your immediate reaction will be to fret and stress about your charges. However, it is essential that you take a deep breath and commit yourself to getting through this process as unscathed as possible. Being proactive and completing alcohol counseling and community service before your court date is quite helpful. And if you end up doing some sort of plea deal or plea bargain, this work will count toward your obligations to the court on that front. Even if everything goes wrong for you and you end up being convicted at trial, the judge will be impressed that you have taken the matter so seriously. This will greatly reduce your chances of being sent to jail by the judge.
Depending on your individual situation, we can counsel you on what to do to mitigate your charges. Please call for a free consultation at 719-381-1707.