The Law in Colorado – DUI and DWAI
This site is not intended as a substitute for legal advice. DUI law is extensive and complicated. If you desire legal advice related to a DUI or DWAI, contact Attorney Adam Mayo at 970-879-6060.
What Is DUI?
DUI is defined as driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs 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 safe operation of a vehicle. A person may also be DUI if their blood alcohol content is .08 or higher at the time of driving, or within 2 hours of driving.
A conviction for DUI carries 12 points. Your license will be revoked if you receive 12 points in one year. A conviction for DUI will cause a license revocation.
What Is DWAI?
DWAI is defined as 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, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, 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 safe operation of a vehicle.
A conviction for DWAI carries 8 points. Your license will be revoked if you get 12 points in one year or 18 points in two years.
What Constitutes Driving?
Driving is defined as having actual physical control over a motor vehicle. Being asleep in the driver seat of a vehicle, with the keys in your pocket, can constitute actual physical control over a motor vehicle. Factors to consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:
A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle’s ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.
Do You Have To Take A Test?
You never have to perform the roadside maneuvers (examples: walk the line, reciting the alphabet, watching the pen, etc). You never have to perform a portable/preliminary breath test (PBT). The officer will ask you to voluntarily perform them. He may ask several times. You do not have to perform these two tests.
Colorado is an express consent state. This means any person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to take and complete, and to cooperate in the taking and completing of, any test or tests of such person’s breath or blood for the purpose of determining the alcoholic content, or blood, saliva, and urine for the purpose of determining the drug content, when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI or DWAI.
It is important to distinguish the portable/preliminary breath test (PBT) machine from an intoxilyzer. A driver does not provide express consent to take a “voluntary” PBT prior to an officer obtaining probable cause. PBT results are not admissible at trial. The PBT results may, however, provide an officer with probable cause to arrest, thus triggering your express consent to perform an intoxilyzer test. Intoxilyzer test results are admissible at trial. Typically, the voluntary PBT helps provide an officer with probable cause to arrest.
What If I Refuse the Test?
Failing to perform a test when so required under the express consent statute is not a crime. Rather, there is a civil penalty: revocation of driver license. If you do perform the test, the results could also cause a revocation of driver license. The period of license revocation depends on the specifics of your case, but ranging from 30 days to life.
What Is The “Notice of Revocation” Form?
If your license is revoked, you should receive a “Notice of Revocation” document from an officer. You will have seven(7) days from the date of the Notice to request a hearing on the revocation. If you fail to request the hearing within those seven(7) days, you will lose your license. The hearing is winnable. Do not miss your opportunity!
What Are The Penalties?
Persons convicted of DUI or DWAI are usually sentenced to:
perform from 24 to 120 hours of public service,
submit to a substance abuse evalution and attend a number of education classes,
pay fines and court costs that range from around $500 to $2000,
probation,
possible loss of driving privileges, and
jail up to one year (usually for repeat offenders only)
Defenses – DUI and DWAI
What Is The Evidence Against You?
Every person charged with DUI has the right to inspect the police reports and related documentary evidence held by the District Attorney’s office. Collectively, this bundle of information is referred to as “discovery”. A defendant’s discovery materials often include: narratives written by police officers, a criminal history of the defendant, statements written by the defendant or witnesses, results of any chemical anlayis of blood, breath or urine, records of the officer’s certification to operate an intoxilyzer machine, records of the intoxilyzer machine’s certification for accuracy, as well as any photographs that may have been taken.
Most important of all the discovery materials is the officer’s narrative. The officer’s narrative is typically a 2-3 page documentation of the events leading up to the arrest. It often reveals whether the officer engaged in any improper conduct. Only after closely reviewing the officer’s narrative is an attorney able to develop a theory of defense.
Why Did The Officer Stop You?
The first thing an attorney looks for is the reason behind the officer’s contact with the defendant. In order to effect a traffic stop, an officer must have reasonable suspicion that a suspect is committing an offense. An officer cannot stop a car unless he can first articulate facts that amount to reasonable suspicion. For example: having a defective headlight or taillight, speeding, the absence of a license plate on the front or rear of your vehicle, and having a cracked windshield are all legitimate bases for an officer to make a traffic stop. If it is determined that the officer did in fact have a reasonable suspicion to make the traffic stop, the next issue an attorney looks for is whether the officer obtained probable cause to arrest the driver for DUI.
Did The Officer Have Probable Cause To Arrest You?
Probable cause for arrest for DUI typically consists of the odor of an unknown alcoholic beverage on the suspect’s breath, bloodshot and watery eyes, slurred speech, unsteady movements, unbalanced walking, or even an admission by the suspect as to prior drinking. If an officer notices these characteristics of the suspect he will usually make an arrest. However, before making the arrest, the officer usually asks the suspect to perform some “voluntary roadside maneuvers”. You do not have to perform the “voluntary roadside maneuvers”. However, if you consent to the maneuvers, the officer will more easily be able to obtain further facts supporting his probable cause claim. In addition, the officer usually asks the suspect to perform a voluntary preliminary/portable breath test (PBT). You do not have to perform the PBT. Again, if you do perform the test, and your breath registers higher than .08, the officer will most certainly have probable cause to arrest you.
An officer is less likely to prove that he had probable cause to arrest if he obtained little or no evidence. For instance, if the only evidence supporting the officer’s probable cause is bloodshot and watery eyes and the odor of alcohol on the suspects breath, you will likely have a good defense, possibly a dismissal prior to trial. On the other hand, if you also submit to the voluntary roadside maneuvers and the PBT, then the officer will be more likely to prove that he had probable cause to arrest. After obtaining probable cause for arrest, the officer will invoke the Colorado Express Consent provision, requiring you to submit to further testing. If the arrest is good, then the test results that follow the arrest are going to be used against you in court, unless you can find a defect related to the administration of the test. If the arrest is bad (the judge agrees the officer lacked probable cause), you have a defense.
What Tests Did You Perform? Once arrested, a suspect is given the option to provide a sample of blood or breath if the officer suspects he or she has been drinking; or saliva, blood or urine if the officer suspects he or she is on drugs. How the officer obtains such sample determines whether or not such evidence can be used against you. For instance, there are extensive regulations that govern how samples are to be taken. The regulations can be found at: State testing regs .
Additionally, if a sample of your breath is taken, there may be numerous issues governing the reliability of the intoxilyzer. For example, both the officer and the intoxilyzer machine must be recertified periodically. Your attorney should have a copy of the intoxilyzer owner’s manual. Finally, even if the officer did everything “by the book”, you can have a second sample of your test submitted to an independent lab for a second analysis. This often reveals a different level of alcohol or drugs, which may be the difference between guilty and not guilty.
In Colorado, the Department of Revenue (Department) controls driver licenses. There are many bases for the Department to place a restraint on one’s driver license. Below are some of the main reasons for receiving a license restraint based on drinking and driving. This information is applicable to non-commercial driver license holders. The information below is not intended to be a complete list. The Colorado Department of Revenue’s website is: DOR
Point Suspension
For adults over age 21, the Department may suspend a driver license if a driver receives 12 points in a 12-month period or 18 points in a 24-month period. A conviction for DUI causes 12 points on one’s record, which can cause a suspension. A conviction for DWAI causes only 8 points on one’s record. Therefore, if a driver with 0 points is convicted of DWAI he or she must avoid receiving 4 additional points for a period of 12 months, or 10 additional points for a period of 24 months.
The Department maintains a helpful brochure regarding point suspensions here: points
Revocation Based On High B.A.C. Even if you are found not guilty of DUI and DWAI, your test results may cause a license revocation. For adults over age 21, your license may be revoked if you provide a sample of blood or breath that reveals your blood/breath alcohol content (B.A.C.) was .08 or higher within two hours of driving. For the first violation, the revocation period is 9 months, though you may be granted a restricted license after 30 days. For each subsequent violation, the revocation period is extended. Revocation Based On Refusing To Take A Test If an officer, with probable cause to arrest, requests a sample of your blood, breath, urine or saliva, and you refuse to provide such sample, the Department may revoke your license. For the first violation, the revocation period is one year. For a second violation, the revocation period is two years. And for a third violation, the revocation period is three years. *Notice Of Revocation* When revoked for either a high B.A.C. or refusing a test, an officer, or the Department, will provide you with a “Notice of Revocation” document. You will have seven(7) days from the date of the notice to request a hearing. If you do not request the hearing, your license will be revoked on day 7. If you do request a hearing, you will be issued a temporary permit, allowing you to drive until the date of the hearing. Revocation Based On Prior Convictions The Department will revoke the license of any adult over the age of 21 if their records reveal two convictions within a 5-year period for either DUI or DWAI. The period of revocation is limited to one year. Following the period of revocation, drivers revoked pursuant to this provision must operate under a restricted license for an additional period. The Department will also revoke the license of any adult over the age of 21 if convicted for either DUI or DWAI when that adult has two prior convictions for either DUI or DWAI. The period of revocation pursuant to this provision is indefinite, but at least two years. Further, these individuals must complete a level II alcohol and drug treatment program and undergo the regular motor vehicle testing process before a license may reissue. Revocation As Habitual Traffic Offender The Department will revoke the license of anyone who recieves three convictions for either DUI or DWAI within a seven-year period.