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Colorado Driving Under the Influence (DUI) Related Topics

License Revocations

If being arrested for a DUI and being humiliated by the police is not enough, the Colorado Department of Revenue is required by law to revoke the driver’s license of any driver who tests above 0.10 blood alcohol content (BAC). This revocation is separate from any criminal charges that 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 driving under the influence of drugs (DUID) will be sent by mail.

Drivers license revocations of this sort last a minimum of three 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 year for “refusal.” A conviction for DUI, DUID or driving while ability impaired (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 (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, must 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!  The 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program that allowed persons on short-term revocation to get licenses after serving one-third of their revocation was repealed as of January, 2001.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 days of a notice of revocation. You may schedule a hearing at any of driver’s 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 alcohol related offenses within five years are subject to an additional license revocation for one 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 alcohol convictions 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 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 alcohol convictions within seven 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 that we use to save drivers’ licenses and keep persons wrongfully accused of DUI out of jail.

Reasonable Suspicion

Under the U.S. 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 a 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 a 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 that 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 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 a 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 to increase the chances of  conviction.

The first, more traditional prosecution, relies on outward indications of driving while intoxicated–that is, 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 BAC limits.  Above 0.05 BAC, a driver is automatically considered to be DWAI. Above a 0.10 BAC. a driver is considered to be DUI.  Limits are lower for “underage” drivers and Colorado driver’s license 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 that 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 DAs consider a person to be DUID, even if they were not “high” at the time of driving!



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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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