DUI Defense Attorney

Driving Under the Influence / Driving While Ability Impaired

When you find yourself facing a charge of Driving Under the Influence (DUI) or Driving While Ability Impaired (DWAI) in Colorado, it is vital that you consult a Colorado DUI attorney as early as possible. The unique nature of a DUI investigation requires an experienced attorney to analyze and evaluate all stages of the investigation, from the stop to the administration of the roadside sobriety tests to the chemical testing of blood and breath samples. The inception of a DUI case rarely involves enough information to provide a police officer with probable cause to make an arrest for impaired driving. Rather, the typical DUI stop involves a minor traffic violation, which then expands into an investigative detention and ultimately culminates in an arrest. A knowledgeable DUI attorney is able to identify and litigate the distinct issues involved in each stage of a DUI investigation.

Driving Under the Influence means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drug, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the operation of a vehicle.

Driving While Ability Impaired means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the operation of a vehicle.

Both DUI and DWAI in Colorado are strict liability offenses. What that means is that no mental state is required on the part of the defendant - the district attorney does not have to show that one intended to drive while they were either under the influence or while their ability was impaired. Both Driving Under the Influence and riving While Ability Impaired are unclassified misdemeanors.

In many DUI cases the Colorado Department of Motor Vehicles will revoke your license 7 days after the issuance of a DUI summons. Your license will be revoked unless you request a hearing within 7 days. If the hearing is not requested in writing within the 7 days the right to a hearing is forfeited. DMV regulations can be complex and Jim represents his clients both in court and at the DMV hearing.

Aside from the driver's license implications a DUI or DWAI charge can involve significant criminal penalties including jail time, hefty fines, alcohol education classes and therapy, and community service. Under Colorado law the district attorney cannot plead an impaired driving offense to a non-impaired driving offense except in very limited circumstances. Colorado's DUI laws are among the toughest in the nation and an impaired driving conviction can have serious consequences on one's liberty, ability to drive, and maintain or obtain certain kinds of employment. A second lifetime conviction for an impaired driving offense (whether committed in Colorado or in any other state at any time) carries along with it mandatory jail time.

If you have been charged with Driving Under the Influence or Driving While Ability Impaired in the Vail Valley or anywhere in Colorado call Jim today for a free consultation.

Driving Under the Influence of Drugs/Marijuana

Colorado's DUI and DWAI laws not only prohibit driving under the influence or driving while one's ability is impaired by alcohol but also under the while one is under the influence of, or impaired by, one or more drugs. It used to be the case that Colorado had a separate driving under the influence of drugs (DUID) law; however, the current DUI law now encompasses both alcohol and drugs.

Colorado's Amendment 64 and the legalization of the private use and possession of marijuana by those twenty-one years of age and older spurred efforts by the Colorado Legislature to enact news laws regulating driving and the use of marijuana. For several years a limit of five nanograms per milliletre of active THC, or 5 ng/ml, was proposed as the "per se" (in itself) limit for driving while under the influence as it related to marijuana. However there was, and still remains, a great deal of debate and uncertainty amongst experts as to what level of active THC in one's blood equals impairment.

In 2013 the legislature did enact the 5ng/ml limit. The law as it now stands is that, if at the time of driving or a reasonable time thereafter, the fact that a driver's blood contained five nanograms per milliletre or more of active THC gives rise to a permissive inference that the driver was driving under the influence of marijuana.

Inferences can be overcome, and given the uncertainty and debate in the scientific community as to what level of active THC in one's blood actually equals impairment, anyone charged with a "DUI Marijuana" should consult with an experienced DUI attorney and fully consider all of their defenses. There are many factors which bear on the issue of whether one individual's ability is impaired or one is under the influence of marijuana as compared to another individual who may have the same level of active THC in their system. A consultation with an expert is often advisable as well as is having a retest completed of the blood sample by a certified, independent laboratory. Contact Jim to fully explore all of your options.

Colorado's Express Consent Law/DMV Hearings

Under Colorado's Expressed Consent (EC) Law any person who drives a motor vehicle upon the streets and highways or elsewhere throughout the state is required to take and complete, and to cooperate in the taking and completing of, a test of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the state's impaired driving laws. If a law enforcement officer requests a chemical test the person must cooperate with the request in such a manner that the sample of blood or breath can be obtained within two hours of the person's driving.

Under the EC law one who is over twenty-one years of age or older is entitled to elect between a blood test or a breath test. Once that decision is made, however, the person is not allowed to change their mind.

If one elects a breath test and the result is .08 or greater the officer will serve that individual with what is called an Express Consent Affidavit and Notice of Revocation. If one elects a blood test it can take several months to obtain the test results. If the results come back at greater than .08, the arresting officer is then required to execute the Notice and Affidavit and submit it to the DMV. The DMV then mails the Notice and Affidavit to the individual.

Once provided with the Affidavit and Notice the person has seven days to request a DMV hearing. The request must be made in writing at a DMV office. Requesting a hearing stays the revocation of the individual's driver's license until the date of the hearing, which must be scheduled within 60 days of the request. If the Affidavit and Notice issued as the result of blood test results, the individual has ten days from the date of the mailing of the document to request the hearing. For those who submit to a blood test it is very important that they ensure the DMV has their current mailing address so that they receive the Notice and Affidavit if the test results come back at greater than .08 in order that they can request the hearing.

If an EC hearing is not requested within the required time frame the individual forfeits all right to a hearing and the revocation of the driver's license takes effect at the end of the seven-day period (or ten-day period if the Notice and Affidavit were mailed following a blood test).

A refusal to submit to a breath or blood test does not result in a criminal charge. However, such a refusal will result in the revocation of the person's driver's license if the officer had probable cause to invoke the expressed consent law. Additionally, a person's refusal to provide a breath or blood sample is admissible in court.

If you have been arrested for an impaired driving offense it is incumbent on you to contact a Colorado DUI attorney in a timely fashion, as well as request an EC hearing with the DMV before it is too late. Contact Jim today for a free consultation.

What are the Legal Limits?

What are the Legal limits?

Under Colorado law, in any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:

Driving Under the Influence: If a defendant's BAC was .08 or more that fact gives rise to a permissible inference that the defendant was under the influence of alcohol.

Under Colorado law, in any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:

Driving While Ability Impaired: If a defendant's BAC was in excess of .05 but less than 0.08 that fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol. That fact may also be considered with other evidence in determining whether or not the defendant was under the influence of alcohol.

Underage Drinking and Driving: For those under twenty-one years of age it is a class A traffic infraction to drive a vehicle when that person's BAC, as shown by a breath test, is at least .02 but not more than .05 at the time of driving or within two hours of driving.

If a defendant's BAC was .05 or less, it is presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a vehicle was not impaired by the consumption of alcohol.

Note that one can be charged with DUI even if their BAC is below .08 or and can also be charged with DWAI even if their BAC is below .05.

Impaired Driving Penalties

There are both criminal and administrative penalties for drunk driving in Colorado. Criminal penalties include imprisonment, fines, court costs, community service, mandatory alcohol education and possible treatment. Administrative penalties are sanctions against one's driver's license and are assessed by the Colorado Department of Revenue. The administrative penalties include the revocation or suspension of driving privileges stemming from convictions for certain impaired driving offenses or when a driver accumulates too many points against their driver's license.

The following tables are summaries only and do not contain any legal opinion or position on the part of The Law Office of Jim Little or any of its employees. Anyone in need of legal advice related to impaired driving offenses in Colorado should contact Jim for a free consultation.

Offense Jail Term Range Mandatory Jail Maximum Jail Probationary Period Fines Public Service
1st DWAI2-180 daysNone180 daysUp to two years$200.00 - $500.0024-48 hours
1st DUI5 days - 1 yearNone1 yearUp to two years$600.00 - $1,000.0048-96 hours
2nd Offense outside of five years (DUI or DWAI)10 days - 1 year10 days1 year2-4 years$600.00 -$1,500.0048-120 hours
2nd Offense within five years (DUI or DWAI)10 days - 1 year10 days consecutive1 year2-4 years$600.00 - $1,500.0048-120 hours
3rd or subsequent Offense60 days - 1 year60 days consecutive1 year2-4 years$600.00 - $1,500.0048-120 hours
1st Underage Drinking and DrivingNoneNoneNoneNone$100.00Up to 24 hours
Driving Under Restraint - Alcohol30 days - 1 year30 days1 yearNone$500.00 - $1,000.00None
1st Conviction with >.20 BAC10 days - 1 year10 days1 yearUp to 2 years$600.00 - $1,000.0048-96 hours

*This table is for reference purposes only.

Administrative Penalties*

OffenseLicense Suspension or RevocationPoints Assessed Against Driving Privileges
BAC of .080 or higher9 monthsNone
Second BAC of .080 or higher1 yearNone
Third of subsequent BAC of .080 or higher2 yearsNone
1st Refusal1 yearNone
2nd Refusal2 yearsNone
3rd or subsequent Refusal3 yearsNone
1st DWAI Criminal ConvictionNone8 points
1st DUI Criminal Conviction9 months12 points
2nd DWAI or DUI Criminal Conviction in a 5 year period1 yearDWAI - 8 pointsDUI - 12 points
3rd or subsequent DWAI or DUI Criminal Conviction2 yearsDWAI - 8 pointsDUI - 12 points
1st underage drinking and driving - BAC .02 -.0491st Offense - 3 months2nd Offense - 6 months
3rd or subsequent offense - 1 year4 points

Standardized Field Sobriety Tests

The Standardized Field Sobriety Test (SFST) was developed by the National Highway Traffic Safety Administration (NHTSA) in conjunction with the Southern California Research Institute beginning in 1977 for use by police officers in detecting drivers who may be under the influence of alcohol or drugs. The tests are standardized, meaning they must be administered the same way each time. When charged with Driving under the Influence in Colorado, it is important to have a DUI attorney knowledgeable in the proper administration of the SFST review the officer's administration of the tests as well as how the officer "scored" the tests.

The SFST is a battery of three tests:

  • Horizontal Gaze Nystagmus (HGN);
  • Walk and Turn; and
  • One Leg Stand

The SFST battery is voluntary and one is never required to perform the below tests. The Colorado Supreme Court has recognized they constitute searches under the Constitution that if not performed voluntarily would otherwise require a warrant.

Horizontal Gaze Nystagmus

Nystagmus is an involuntary jerking of the eyes that occurs naturally as the eyes gaze to the side. According to those who developed this test, a person impaired by alcohol may exhibit exaggerated nystagmus and the its onset prior to forty-five degrees.

An officer administering the HGN test observes the eyes of one suspected of drinking and driving as the person follows a slowly moving object, such as a pen, horizontally with their eyes. The officer is looking for three different clues of impairment in each eye: whether the person can follow the object smoothly, whether the jerking of the eye is distinct at maximum deviation, and whether the jerking of the eye is within forty-five degrees of center.

Although police and prosecutors alike tout the HGN test as the most accurate predictor of impairment of the three tests, there are literally dozens and dozens of causes of nystagmus apart from impairment due to the consumption of alcohol. These include everything from inner ear problems to head injuries to prescription medication. HGN is far from a perfect test in determining whether a driver is impaired by alcohol.

Walk and Turn

The Walk-and Turn (WAT) test as well as the One Leg Stand (OLS) test are what are called "divided attention" tests, meaning that they involve both a physical and mental component and require one to divide their attention between two tasks.

A law enforcement officer administering the WAT instructs the individual to take none steps, heel-to-toe, along a straight line, turn, and then return in the same manner in the opposite direction. The officer is looking for eight different clues of impairment.

If the WAT sounds difficult it's because it is a difficult maneuver for anyone to complete to an officer's satisfaction, whether they are impaired by alcohol or not. Also, the WAT, like the HGN and the OLS, is performed on the side of the road under often times less than ideal conditions. The road surface as well and weather and traffic conditions are just a few of the factors that can skew one's performance on the WAT.

One Leg Stand

The last of the SFST tests is the One-Leg-Stand (OLS) test. An officer administering the test instructs the person to stand with one foot approximately six inches off the ground and count aloud by one-thousands until told to put their foot down. The officer times the individual for thirty seconds, and is looking for four clues of impairment.

Probably even more so than the WAT, the OLS is an extremely complicated maneuver that is difficult for many non-impaired individuals to complete to an officer's satisfaction under the most ideal circumstances.

Vehicular Homicide

Under Colorado law if a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, that person commits vehicular homicide.

Additionally, if a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, that person commits vehicular homicide.

If death results as a result of reckless driving in the absence of the defendant being under the influence of alcohol or one or more drugs, it is a class 4 felony. If death results as a result of reckless driving and the defendant was under the influence of alcohol or one or more drugs, it is a strict liability offense and a class 3 felony.

Vehicular homicide cases are extremely serious. The presumptive sentence range for the class 3 felony charge is 4-12 years in the Department of Corrections, or up to 24 years if the court finds extraordinary aggravating circumstances. The presumptive sentence range for the class 4 felony charge is 2-6 years in the Department of Corrections, or up to 12 years if the court finds extraordinary aggravating circumstances.

Colorado law permits a police officer to physically restrain a driver to obtain a blood draw if the officer has probable cause to believe the driver committed vehicular homicide. This differs from a DUI which does not involve the death of anyone, where an officer is required to ask the driver to submit to blood or breath test.

A conviction for vehicular homicide will result in the defendant's driver's licenses being revoked for one year.

Vehicular Assault

In Colorado if a person operates or drives a motor vehicle in a reckless manner, and that conduct is the proximate cause of serious bodily injury to another, that person commits vehicular assault.

If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, that person commits vehicular assault, which is a strict liability crime.

Vehicular assault, in the absence of the driver being under the influence of one or more drugs, is a class 5 felony. If the driver was under the influence of alcohol or one or more drugs, it is a class 4 felony.

Vehicular assault cases are extremely serious. The presumptive sentence range for the class 4 felony charge is 2-6 years in the Department of Corrections, or up to 12 years if the court finds extraordinary aggravating circumstances. The presumptive sentence range for the class 5 felony charge is 1-3 years in the Department of Corrections, or up to 6 years if the court finds extraordinary aggravating circumstances.

Colorado law permits a police officer to physically restrain a driver to obtain a blood draw if the officer has probable cause to believe the driver committed vehicular assault. This differs from a DUI which does not involve the serious bodily injury of anyone, where an officer is required to ask the driver to submit to blood or breath test.

A conviction for vehicular assault will result in the defendant's driver's licenses being revoked for one year.

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