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Driving Under the Influence

For any drunk driving offense it is imperative that you have an experienced lawyer. Drunk driving is treated very seriously in Colorado. In recent years, punishment in alcohol and drug-related driving cases has become more severe and complex, especially with the potential loss of your driver’s license and mandatory minimums for multiple convictions for alcohol offenses.

Cases in which we specialize
Kurtz & Peckham represents teens and adults charged with 1) Driving under the Influence of Alcohol, 2) Driving While Ability Impaired, 3) Driving Under the Influence of Drugs, 4) Underage Drinking and Driving, and 5) Driving with Excessive Alcohol Content.

We will use our experience to analyze all the facts and circumstances surrounding your DUI or related charge. We will obtain all of the relevant police reports and discovery that you are entitled to. Our representation includes a thorough investigation (discussing dietary or medical factors that may impact chemical test results, scene visits, obtaining video or audio evidence, ordering an independent test of your BAC), advising you of the impact any plea will have on your license, challenging illegally-obtained evidence, working with experts in toxicology, presenting a full defense at jury trial, and preparing you for sentencing.

If you take your case to trial, we will use our expertise to ensure that your case is well-prepared, keeping your budget in mind.

If you choose to accept a plea bargain, we will help you plan for sentencing to reduce the impact of the charge as much as possible. We can refer you to reputable treatment providers, set up an independent alcohol evaluation, argue for alternatives to incarceration, challenge prior convictions, and negotiate multiple charges.

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The DUI Process
A Colorado DUI is a two-sided charge. There are always two proceedings that result from one DUI arrest. The courts handle your criminal case, while the DMV goes after your driver’s license. Each proceeding is separate and they have difference procedures, standards, and effects.

The Administrative Side (non-criminal)

The DMV hearing decides if you will keep or lose your license from the administrative side.

The first thing to deal with is the action that the DMV will take against your license to drive. You have the right to a hearing before the DMV can take away your license. You must take action within 7 days of your arrest or you will lose this right to a hearing.

The DMV has the authority to automatically suspend or revoke your license when you are arrested for DUI. You do not have to be convicted in court for this to occur. As a matter of fact, the DMV usually takes away your license before your court case is done.

In a DUI arrest, the officer will order you to take a chemical test to determine the content of alcohol in your blood. You may choose a breath or blood test. If you refuse the test, the arresting officer will take your license on the spot. The officer will give you a Notice of Revocation and will issue you a temporary permit form that is valid for seven days after its issuance. If you fail the test, the arresting officer will take your license and hand you a Notice explaining that your license to drive will be suspended immediately if you do not request a hearing in 7 days. When you go to the DMV office to request a hearing in writing, the DMV will require you to surrender your license if the officer did not already take it. The DMV will give you a letter (temporary license) which allows you to continue driving until the date of your hearing.

We request a hearing in every case. Some hearings are won because an arresting officer fails to appear. If the officer is not subpoenaed to appear at the hearing, then the DMV must find that the police reports, test results, and affidavits support the action against your license. Some hearings are also won because an attorney demonstrates that the officer lacked probable cause to stop you or order you to take the test. Sometimes the test was administered too late to be reliable. These results are rare; usually, the DMV finds that you refused to take a test or that your blood-alcohol level was over 0.08. Nonetheless, it is worthwhile to have the hearing.
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DUI PROCESS
When you send in a request for a hearing, the DMV sets a hearing. The hearing must be held within 60 days from that point. It can be very difficult to get the DMV to continue or re-schedule hearing dates. Therefore, you should allow us to schedule a date with the DMV that works for you and your attorney. The arresting officer can be subpoenaed to testify about the arrest. We decide whether to subpoena the officer on a case-by-case basis.

If you refused a breath or blood test, you will automatically lose your license for one year. There is no work permit or other probationary (red) license available. In rare circumstances, this type of case can be dismissed if the arresting officer did not have probable cause to order you to submit to testing.
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What is the purpose of the DMV hearing?

A Hearing Officer will evaluate the evidence and determine whether a suspension or revocation is ordered. The hearing officer wears two hats. He or she acts as a “prosecutor” in presenting evidence, then switches to the role of administrative judge to rule on objections and decide the outcome. The hearing is conducted by the very agency that is trying to suspend your license. As a result, there is a strong inclination to achieve this purpose – to confirm that grounds for suspension exist.

If your license has been revoked because you refused to submit to a chemical test, there are only two issues:

      1)   Did the law enforcement officer have probable cause to believe you were operating a motor vehicle while you were under the influence of drugs or alcohol?

      2)   Did you refuse to submit or fail to complete a test when directed to do so by a law enforcement officer?

If you submitted a test and tested over 0.08 breath-alcohol content, two basic issues apply:

      1)    Did the law enforcement officer have probable cause to believe you were operating or in actual physical control of a motor vehicle while under the influence of drugs or alcohol?

      2)    Were you operating or in the actual physical control of a motor vehicle while you had an illegal concentration of alcohol in your system?

At the outset of the hearing, the Hearing Officer will open the hearing, state the names of the persons present, and explain the purpose of the hearing. He or she will introduce exhibits. The exhibits usually include the arresting officer’s report, field sobriety test results, Notice of Express Consent, Certificate to operate the Intoxilizer, and chemical testing results. It is our job to go to this hearing, review the exhibits, and object on any legal grounds. We may offer our own exhibits. The Hearing Officer will decide if they are relevant and material and rule on whether they may be entered. The Hearing Officer will have the arresting officer testify about the arrest. We will then ask questions of the arresting officer. If the officer’s presence has not been requested, then the Hearing Officer will examine only the written exhibits. We present out side of the case, which may include your testimony, the testimony of any witnesses, and possibly expert testimony.

After hearing the evidence, the Hearing Officer will immediately order dismissal or the revocation on your license.

If the ruling is in our favor, your license will be returned and the suspension will be rescinded. If we lose, one of three things will occur:

         1)    If your BAC was between 0.08 and 0.20 and this was a first offense, your license will be suspended for three months. You will have the option to apply for a probationary license after 30 days; this will allow you to drive on a probationary license for five months.

         2)    If you BAC was 0.20 or above, you will not have the option of  getting a probationary license, except in extraordinary circumstances.

         3)    If you refused the tests, your license will be revoked for one year with no possibility of a probationary license. If you are later convicted of DUI, the DMV will add a one-year consecutive suspension.

You have 15 days following the hearing to file a Notice of Appeal if you wish to appeal the agency’s actions to the district courts. The appeal process involves paying for a transcript of the hearing, preparation of a brief, and argument before the district court. Kurtz & Peckham will handle an appeal if there are valid legal issues to be raised.

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The Criminal Side
The second part of the case is your complaint in the criminal courts. The police officer sends reports to the prosecutor to file the actual criminal charges. The charges filed by prosecutors may be the same or entirely difference from those on your citation. There are several stages to a criminal proceeding, which are outlined below:

The Bond
A bail bond is often the only means by which a defendant is released before his or her trial date. Bond is a sum of money that must be deposited with the court before a defendant will be released. That sum guarantees the defendant’s presence at later court dates. If the defendant fails to honor the conditions of the bail bond, it will be forfeited.

A defendant may also be released on a personal recognizance bond, in which your signature guarantees your return for hearings.

On most alcohol-related charges, you will be released on a Summons. Most juveniles are released to their parents. By signing a Summons to appear, you are promising to come to court to answer charges in the citation. Your signature is the proof that you personally received the Summons.

The more serious the charge is, the higher the bail bond. Also, if you have had prior convictions or failures to appear in court, you can expect a larger bond. You may be held up to 48 hours before you are brought before a judge or magistrate to hear an argument about setting of bond. Usually this happens within 24 hours.

Arraignment
This is the date on your citation, about 30 to 60 days after your arrest. If you have an attorney, we can usually waive this initial appearance and re-set the case for a pre-trial conference with the prosecutor. The purpose of arraignment is to advise you of your rights and the possible penalties you face. It is usually a mass gathering and with a video advisement. If you have an attorney, you will have already been advised. Your attorney will help you develop a strategy for protecting your rights. If you do go to the arraignment without an attorney, be sure to enter a plea of not guilty and ask for a JURY trial.