DUI AND DWAI INFORMATION

Arrest for intoxicated driving is an event that thousands of normal people in Colorado will suffer every year. A conviction for a "driving under the influence " (DUI) can have serious consequences for your work and personal life, such as suspension of a professional license and revocation of a license to drive. It is very important to hire a lawyer who has experience with the courts and DUI cases, to minimize the legal impact if you or someone close to you has been arrested for DUI.  Richard Hathcoat is a former traffic court prosecutor with more than 20 years of experience defending drivers in drug and alcohol related DUI cases, and he can help resolve your DUI problems.

"It is very important to hire a lawyer who has experience with the courts and DUI cases, to minimize the legal impact if you or someone close to you has been arrested for DUI."

A general discussion of DUI and DWAI in Colorado is helpful in evaluating the seriousness of the legal issues facing a person charged with an alcohol or drug related driving offense. It is a misdemeanor crime for any person who is impaired by, or under the influence of, alcohol or one or more drugs, or a combination of both to drive any vehicle in Colorado. "Driving under the influence" is defined in Colorado as driving a vehicle when a person has consumed alcohol or drugs, or a combination, to a degree that he/she is substantially incapable of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. "Driving while ability impaired" means driving a vehicle when a person has consumed alcohol or drugs, or both, which affects the person to the slightest degree so that the person is less able than he/she ordinarily would have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. See C.R.S. § 42-4-1301(1).

Whether a person is “driving under the influence” or “driving while ability impaired” is a subtle, but important difference, and is a very difficult evidentiary matter to navigate at a criminal trial.  In order to assist prosecutors with proof of these issues, the State of Colorado has adopted the 0.08 blood alcohol content (“BAC”) standard for DUI, and 0.05 to 0.07 (“less than 0.08”) BAC for DWAI. Regarding these BAC levels, Colorado law makes the following rebuttable presumptions in order to assist the prosecutor to convict a driver charged with DUI/DWAI:

 The law presumes that a driver is “impaired” (DWAI) with a BAC of more than 0.05 but less than 0.08;

 The law presumes a driver is “under the influence” (DUI) if his BAC is 0.08 or more;

 The law presumes a driver is “under the influence” if his blood contained five nanograms or more of delta 9-tetrahydrocannabinol[1], (the active ingredient in marijuana);

 A driver is presumed to not be impaired nor under the influence of alcohol if his BAC is 0.05 or less.

Moreover, other BAC limits and presumptions apply for drivers under 21, and drivers with commercial driver’s licenses.

While these presumptions carry significant weight in a criminal trial for DUI or DWAI, other evidence bearing upon the question of whether or not the defendant was “under the influence” or was “impaired” can be introduced by either the driver or the prosecutor. See C.R.S. § 42-4-1301(6)(a), (b). This type of evidence could include the observations of passengers in the driver’s car, or video of the driver’s actions immediately after being stopped by law enforcement.  It requires the help of a skilled lawyer to identify this evidence and present it in an effective way in negotiations with the prosecutor or at trial.

A driver who has been requested by law enforcement, after probable cause is obtained of DUI/DWAI alcohol, is legally required to submit to a chemical test (breath or blood) to evaluate his BAC.  Refusal to take such tests will result in immediate revocation of the subject’s driver’s license, and the refusal itself will be admissible into evidence at a trial on the charge of DUI/DWAI.  (But note that there is no requirement under the law for a driver to submit to roadside field sobriety tests.)

In Colorado, a first DUI charge carries a range of punishments including fines and fee assessments, a term in jail up to 1 year which may be suspended in whole or in part, driver’s license revocation of nine months or more, at least 24 hours of community service, undergoing a drug and alcohol evaluation, participating in drug and alcohol education, and submitting to Level I or Level II treatment. The range and type of punishments are increased for subsequent DUI charges. See C.R.S. § 42-4-1307. However, many of these sanctions are negotiable elements of a DUI/DWAI sentence and can be minimized or avoided altogether by an experienced DUI lawyer. 

“ ... many of these sanctions are negotiable elements of a DUI/DWAI sentence and can be minimized or avoided altogether by an experienced DUI lawyer.”

Anyone investigating their own DUI arrest, the arrest of a loved one or a minor, should know that at every stage of the process: traffic stop, arrest, testing, license revocation hearing, and criminal court proceedings, all involved state officials are required to follow the law or administrative rules to enforce DUI/DWAI laws. The failure of any of these officials to follow the law can invalidate the driver’s arrest and subsequent administrative and criminal prosecution. A qualified, conscientious, and caring lawyer is necessary to identify and exploit any procedural failures by the state and to protect the driver’s rights and future.

Summary of DUI/DWAI laws and penalties

[1] Per milliliter in whole blood.

DRIVER’S LICENSE REVOCATION AND REINSTATEMENT

Refusal to submit to a chemical test for a drug or alcohol related traffic stop, or scoring 0.08 BAC or above on the chemical test, can result in the Colorado Department of Motor Vehicles (“DMV”) revoking your driver’s license. C.R.S. § 42-4-1301.1. This is an aspect of a DUI/DWAI arrest that many people overlook in the days immediately after their arrest, and is a separate matter from any criminal charges.  Alarmingly, you only have seven days after a breath test, or seven days from receipt of the notice of revocation (ten (10) days from the postmarked date on the Order of Revocation letter) from a blood test result, to request a hearing to fight the license revocation. Although the revocation proceeding is an administrative matter, it is a very serious consequence of a DUI arrest as the revocation period for even a first time DUI is 9 months if the chemical test was taken, and 12 months if the test was refused. Those penalties increase for second and subsequent offenses, or for high BAC test results.

You should be represented by a lawyer at the DMV hearing if you choose to fight a driver’s license revocation resulting from a DUI arrest.  Your lawyer can cross examine law officers who arrested you to uncover whether the arresting officers obtained sufficient evidence to support your license revocation.

Even if your license is ultimately revoked, your lawyer should seek to get your license reinstated as early as possible.  You will be eligible for early reinstatement after one month if you elected to submit to the chemical test for drugs or alcohol resulting from DUI/DWAI arrest.


DRIVERS UNDER 21 – DUI/DWAI

Drivers who are under 21 are particularly at risk under Colorado’s DUI/DWAI laws.  There are special rules and penalties for young drivers that can affect their lives and reputations for many years. Any appreciable amount of marijuana or alcohol in a young driver’s blood (0.02 BAC or above) can subject him/her to burdensome fines, license revocation, community service and even jail time. A BAC of 0.05 or more will subject a person under 21 to a one year license revocation, which can only be reinstated after a lengthy application process and taking the eye, written and driver’s test.

The record of a DUI/DWAI arrest can complicate or even disqualify a young person for admission into certain social and professional organizations, schools, or certain types of employment later in life. Therefore, every reasonable effort should be made by the young driver and his family to fight the special DUI/DWAI criminal charges with the help of an accomplished DUI defense lawyer.