License
Revocations
If
being arrested for dui and being humiliated by the police is not
enough, the Colorado Department of Revenue is required by law to
revoke the drivers license of any driver who tests above 0.10 BAC.
This revocation is separate from any criminal charges which may be
brought by the District Attorney.
An
arresting officer will issue a "notice of revocation"
and seize the license of any driver who blows more than
0.10 BAC in a breath test. If the driver elects to take a
blood test, it will be several days or weeks before the results are
ready. Where the blood test comes back 0.10 BAC or higher, the
Department of Revenue will send a notice of revocation in the mail.
Similarly, a test for drugs (blood, urine or saliva), will take time
and any notice of revocation for duid will be sent by mail.
Drivers
license revocations of this sort last a minimum of three (3) months
for a first offense. Repeat offenders are subject to revocations
of up to several years depending on the circumstances. If a
driver refuses to take a dui or duid test, the Department of Revenue
will issue a license revocation for a period of not less than one (1)
year for "refusal." A conviction for
dui, duid or dwai in the criminal phase of a case may result in a
license revocation by the Department of Revenue based upon the
driver's record, e.g., prior alcohol related convictions, under
section 42-2-125, C.R.S. WARNING! If you are not sure of your
driving record or the effect of a plea bargain on your right to drive
under 42-2-125, C.R.S. contact a competent attorney before you plead
guilty! Similarly, section 42-4-127, C.R.S. requires that persons with
more than twelve points per twelve month period or eighteen points per
twenty-four month period have their licenses suspended. For this
reason the driver's record should always be reviewed in depth before
entering into a plea bargain.
Red
Licenses for dui
To get
right to the point - Forget it! Department of Revenue is
prohibited from issuing restricted licenses (red licenses) to persons
revoked for dui, duid or refusal for one year or less. The
interlock program which allowed persons on short term revocation to
get licenses after serving one third of their revocation was repealed
as of January, 2001. There are no exceptions even if
you must drive for work, if you are a single parent or if you have a
completely clean record except for the dui. The only way to
avoid a revocation for dui or duid is to challenge the
action in an administrative hearing under 42-2-126, C.R.S. There
are rumors of a bill in the General Assembly to correct this injustice
as part of the new interlock program which went into effect
January, 2001, but, even if the bill passes, it is unlikely to be
retroactive.
Hearings
must be scheduled within seven (7) days of a Notice of Revocation.
You may schedule a hearing at any of drivers license office.
Multiple
Dui Offenses
Drivers
charged with a second or subsequent drunk driving offense in
Colorado face stiffer penalties and longer probation. In
addition to the penalties in sections 42-2-126, C.R.S. (drivers'
license revocation ) and 42-4-1301, C.R.S.(criminal drunk driving
charges), the Department of Revenue is authorized to revoke or suspend
drivers' licenses under sections 42-2-125 and 42-2-203, C.R.S.
Revocations
for Multiple Offenses
Divers
convicted of two (2) alcohol related offenses within five years are
subject to an additional license revocation for one (1) year under
section 42-2-125(1)(g)(I), C.R.S. Minor drivers convicted for a
first alcohol related driving offense are subject to license
revocation under subsection (g)(II). Drivers with three(3) alcohol
conviction in a lifetime can have their licenses revoked under section
42-2-125(1)(i), C.R.S. The period of revocation under this
section is two (2) years. After the expiration of any
revocation for multiple drunk driving offenses, the driver shall be
required to have a restricted license for a period of at least one
year.
Habitual
Traffic Offender Status
Drivers
with three (3) alcohol convictions within seven (7) years may be
revoked for a period of five years. During this period,
the driver will be considered a habitual traffic offender under
section 42-2-203, C.R.S. and subject to additional revocation time and
lengthy mandatory jail or prison terms if he or she drives during the
revocation period.
Protecting
Your Rights
Have
you been charged with drunk driving based upon an illegal traffic stop
or search without probable cause? Were proper testing procedures
followed in the dui, dwai or duid chemical test? Here are some
techniques which we use to save drivers licenses and keep persons
wrongfully accused of dui out of jail.
Reasonable
suspicion
Under
the United States Supreme Court case, Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, a police officer may
stop a motorist where circumstances give rise to a "reasonable
suspicion" that the motorist is involved in criminal
activity. Where an officer stops a vehicle without
reasonable suspicion, any evidence related to a drunk driving
charge should be "suppressed" by the court.
Suppression of a dui chemical test will usually result in dismissal
of the case by the district attorney.
Dui
Chemical Test
Colorado
law requires that a duplicate sample be taken where a blood or
breath test is administered. Testing of blood and breath
alcohol samples has progressed significantly over the last twenty
years-but errors still occur. It is always a
good idea for anyone accused of dui to have the duplicate sample
retested. Significant variations in alcohol content between
the primary and duplicate sample may warrant throwing out the
dui chemical test altogether - thereby seriously weakening the
State's case against the accused.
Probable
cause - Under Colorado's Express Consent law
A
police officer must have probable cause to require a driver to
take a chemical test. Halter v. Dept. of Revenue,
857 P.2d 535(Colo. App. 1993). As with reasonable suspicion,
all relevant police reports should be examined to determine whether
probable cause to test existed. In the absence of
probable cause, appropriate motions should be filed with the court
to seek suppression of the incriminating chemical test.
No evidence - no case!
Absorption
and elimination
Usually,
in order to convict a driver of dui, dwai or duid, the State
must prove that the accused of was impaired or intoxicated
AT THE TIME OF DRIVING. The science of alcohol metabolism is very
complex. Dui prosecutors rely on a number of assumptions
about alcohol consumption which are not true for everyone.
Accurate consideration of individual absorption and elimination
characteristics often shows that an individual accused of drunk
driving, was in fact, not intoxicated at the time of driving.
You will need a toxicologist from a certified laboratory in order
to use this defense.
Violations
of Statutes and Agency Rules
The
agencies charged with enforcing dui laws in Colorado all have
regulations dictating how drunk driving laws are to be enforced.
In defending a person accused of dui, care should be taken to
become familiar with all relevant agency regulations. Demand
strict compliance with these regulations at all stages of the
process.
Types
of Violations - "DUI Per Se"
In
Colorado, drivers may be prosecuted for dui or duid even if they
refused to take a chemical test when stopped by the police.
Section 42-4-1301 sets forth two types of dui charges in
Colorado. Most drivers stopped for dui will be charged with both
types of violations by police in order to increase the chances of
conviction.
The
first, more traditional prosecution, relies on outward indications of
driving while intoxicated, e.g., poor coordination, "blood shot,
watery eyes" and "slurred speech." This type of
prosecution does not require a chemical test for conviction, although
a chemical test can be used to establish a "presumption" of
guilt. The second drunk driving charge, "dui per
se" discussed below, requires that the prosecution prove
that the driver drove with an alcohol level above legal limits.
Colorado
has set two "blood alcohol concentration" (BAC)
limits. Above 0.05 BAC a driver is automatically considered to
be "driving while ability impaired" ( dwai )Above a 0.10 BAC
a driver is considered to be "driving under the influence" (
dui ). Limits are lower for "underage" drivers
and CDL drivers. "Dui per se" refers
specifically to a violation under section 42-4-1301(2)(a), C.R.S.
Under the per se statute a driver can be convicted of drunk
driving solely upon proof that a level of 0.10 BAC was reached
within two hours of driving.
All
persons charged with alcohol related driving offenses should consider
a retest of their blood or breath sample. Errors in testing
sometimes occur which can invalidate the test, possibly
resulting in dismissal of the case. We haven't mentioned any
limits for drugs here because there are none. If a urine,
saliva or blood sample comes back positive for intoxicating drugs -
Colorado DA's consider a person to be duid, even if they were not
"high" at the time of driving!
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