Twenty Questions Answered by a Colorado DUI Defense Lawyer

Police Officer Colorado DUI Cases are unique. They require a complete understanding of this complex area of Colorado criminal law to raise a defense that will work in the court system. This article explores some common questions and answers about the investigation and prosecution of these cases as viewed from a Colorado criminal defense lawyer.

The Questions 1. What do Police Officers Look for When Searching for Drunk Drivers on the Highways?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

  • Turning with a wide radius
  • Straddling center of lane marker
  • ”Indicia of intoxication “Appearing to be drunk”
  • Almost striking object or vehicle
  • Weaving
  • Driving on other than designated highway
  • Swerving
  • Speed more than 10 mph below limit
  • Stopping without cause in traffic lane
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Headlights off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

2. If I’m Stopped by a Police Officer in a Colorado DUI Case and he Asks me if I’ve Been Drinking, What Should I say?

You are not required to answer ANY potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication and it may explain the odor of alcohol on the breath.

3. In Colorado DUI Cases do I Have a Right to an Attorney When I’m Stopped by an Officer and Asked to Take a Field Sobriety Test?

NO do not make this mistake in Colorado there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, NOT COLORADO there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

4. What is the officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slow and or Slurred speech
  • Fumbling around with a or purse wallet trying to get license
  • Failure to comprehend the officer’s questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other”inappropriate” attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • The Inability to follow directions
5. In Colorado DUI Cases what should I do if I’m asked to take field sobriety tests?

DO NOT TAKE THEM. They are voluntary and while there are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg) ,fingers-to-thumb, hand pat, and the officer will offer three to five of these “tests” you are not legally required to take any FSTs. There is NO penalty for refusing the tests.

The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which all of us will inevitably “fail”.

A polite but firm refusal is how you handle the request.

6. Colorado DUI Cases the Horizontal Gaze Nystagmus Test Why did the Officer Make me Follow a Penlight With my Eyes to the Left and Right?

This is the “horizontal gaze nystagmus” test. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset.

7. Colorado DUI Cases Should I Agree to Take a Chemical Test? What Happens if I Don’t?

The consequences of refusing to submit to a blood or breath test in Colorado is severe loss of your drivers license for at least one year NO EXCEPTIONS. It is almost never advisable to refuse the blood or breath test.

In addition to the one year loss of your driving privilege the fact of refusal can be introduced into evidence as”consciousness of guilt”. Of course, the defense is free to offer other reasons for the refusal.

However- if you have multiple prior convictions for DUI DWAI the decision is one in that circumstance of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

8. In Colorado DUI Cases do I Have a Choice of Chemical Tests? Which Should I Choose?

In Colorado, you have a choice of a breath or blood test. If you choose breath, Colorado uses the intoxilyzer machine and the standard blood test kit for blood tests.

Analysis of a blood sample is the most accurate. However Colorado breath tests are administered by a breath testing machines like the intozilyzer 5000 and are susceptible to a number of problems rendering their results more suspect and possibly unreliable. If you are confident that you are sober, the blood test is the wisest choice; the breath test is the least accurate and most easily attacked. It is the best option if you believe your blood alcohol content is above the legal limit.

9. Colorado DUI Cases the Officer Never Gave me a “Miranda” Warning: Can I get my Case Dismissed?

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more importance is the failure to advise you of Colorado’s “express consent” law that is, your legal obligation to take a chemical test. This can effect the suspension of your license…if you are not properly advised the test may be thrown out of evidence both at the DMV administrative hearing and in court.

10. In Colorado DUI Cases Why am I Charged With two crimes?

The traditional offense is “driving under the influence of alcohol” (DUI) Colorado also has a charge called a “per se” offense: driving with an excessive blood-alcohol concentration (.08% or more ) In those states, BOTH offenses are charged. The defendant can be convicted of both, but they MERGE for the purpose of sentencing.

If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.

11. The Officer Took my License and Served me With a Notice of Suspension After the Breath Test: How can he do that if I’m Presumed Innocent?

The law in Colorado provides for a 7 day temporary license and the right to request a hearing thereafter before the suspension of your license. The confiscation of the license if the breath test result is above the legal limit is permitted even in the absence of the findings of the hearing.

Warning: Be aware of a 7-day deadline for calling the Colorado DMV to request a hearing on the suspension and to get an extension of the temporary license.

12. In Colorado DUI Cases can I Represent Myself? What can a Lawyer do for me?

You can represent yourself although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

13. How can I Find a Qualified Colorado Drunk Driving Lawyer?

The best way to find a good DUI/DWAI lawyer is by reputation. The best approach is to do your own research The internet is a good option if you do not know any attorneys. You go also go to the local courthouse and ask around there Who would THEY go to if arrested for drunk driving?

When you call the attorney, make sure of three things:

  • She He has extensive experience in DUI/DWAI litigation;
  • She He has a reputation for going to trial in appropriate cases, rather than just “pleading out” his clients; and
  • The financial terms of representation are clear.
14. What Will it Cost to get a Lawyer?

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner in a small community may charge only $1000 1500; a DUI specialist with a national reputation may charge up to $15,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:

  • Is the offense a misdemeanor or felony?
  • If prior convictions are alleged, the procedures for attacking them may add to the cost.
  • The fee probably will not include trial or appeals.
  • Administrative license suspension procedures may also be extra.
  • Most lawyers charge a comprehensive flat or fixed fee, or they may ask for a retainer in advance to be applied against hourly charges.
  • Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., are usually extra.

Whatever the fee quoted, you can ask for a written agreement. And make sure you understand all the terms.

15. In Colorado DUI Cases What is the Punishment for Drunk Driving?

I would direct you to this link. For a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps one to two years. Additional punishments involve community service, possible ignition interlock devices, and MADD classes.

16. What is a Sentence “Enhancement” in Colorado DUI Cases?

Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child was in the car at the time a separate charge for child abuse is usually added.
  • The defendant was traveling 20 or 30 miles over the speed limit at the time.
  • The blood-alcohol concentration was over .20%.
  • The defendant refused to submit to a chemical test.
  • There was property damage or injury.
  • The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood alcohol level, and impose longer license suspensions).

In Colorado the existence of any personal injury caused by drunk driving elevates the offense to felony Vehicular Assault. A death will trigger Vehicular Homicide charges.

17. What is the “Rising BAC Defense” in Colorado DUI Cases?

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC will continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit but his actual BAC AT THE TIME OF DRIVING was below the legal limit.

18. What is “Mouth Alcohol”?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100.

Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol.

Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

19. Colorado DUI Cases What Defenses are There in a DUI Case?

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  1. Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.
  2. Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  3. Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  4. Express consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states this may affect admissibility of the test results as well as the license suspension imposed by the motor vehicle department.
  5. “Under the influence” or “impaired driving”. The officer’s observations and opinions as to intoxication can be questioned the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Too, witnesses can testify that you appeared to be sober.
  6. Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.
  7. Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
  8. Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
  9. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
  10. License suspension hearings. A number of issues can be raised in the context of a DMV administrative hearing.

Please call our law firm if you have questions about.

Colorado DUI Cases

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 38 years (as of 2012). For the first 13 years of his career, he was an Arapahoe Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

The Colorado Steinberg Criminal Defense Law Firm serves clients charged with criminal offenses in the Denver Metro Region and throughout Colorado, including Adams County, Arapahoe County, Boulder County, Broomfield County, Denver County, Douglas County, Jefferson County, Larimer County, El Paso County, Pueblo County, Weld County and Grand County; and communities such as ; Centennial, Denver, Boulder, Aurora, Lakewood, Littleton, Westminster, Thornton, Northglenn, Brighton, Greenwood Village, DTC, Denver Tech Center, Highlands Ranch, Castle Rock, Lone Tree, Englewood, Golden, Grand Junction and all across the Front Range.

Your freedom is too precious to entrust to someone with less experience.

If you have questions about Colorado DUI Cases in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards .Colorado DUI Cases.

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