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.
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.
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.
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:
- 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?
- 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:
- 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?
- 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:
- 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.
- If you BAC was 0.20 or above, you will not have the option of getting a probationary license, except in extraordinary circumstances.
- 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.
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:
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.
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.
A pre-trial or “disposition” conference is an opportunity for your attorney to confer with the District Attorney about a possible plea bargain in your case. We point out weaknesses in the state’s case and explain important facts about you and your life situation. Sometimes the District Attorney or prosecutor will offer a reduced charge or make agreements (called “stipulations”) about sentencing. Sometimes the parties reach a plea agreement at this stage. If a reasonable plea bargain is not reached, the matter is set for trial.
There are several pre-trial motions that your attorney can file to assert certain rights. A partial list is as follows:
- Motion for Discovery – a motion filed to make the state produce certain documents such as police reports, calibration and history of the breath testing machine, video tape, audio tape, field testing manuals, witness information, roadblock requirements.
- Motion to Suppress – the officer must have a valid, explainable reason to pull over your vehicle. In order to stop you, the constitution requires reasonable suspicion that you have engaged in criminal activity. Further, the officer needs probable cause to believe you are driving while impaired to order you to take chemical tests. This motion challenges the officer’s basis for stopping you and ordering tests. If the court rules that the stop or tests were unjustified, then evidence may be kept out of the trial.
- Motion to Suppress Statements – you have the right to remain silent if you are in police custody. This motion seeks an order from the court to keep out any incriminating statements you made while in police custody.
- Motions Attacking Scientific Evidence – the state’s case often relies on evidence obtained through roadside sobriety testing, breath tests, and blood tests. In some cases, the officer’s failure to comply with procedures may justify excluding this evidence or limiting its usage.
Each of these motions would be set for a hearing by the Court prior to your trial date. The outcome of many DUI cases is determined at or before these hearings. However, many prosecutors threaten to rescind plea bargain offers if the defendant proceeds to a motions hearing and trial.
The trial is the proceeding familiar to most people. A trial has several distinct phases: 1) jury selection, 2) opening statements, 3) the state’s case, 4) half time, 5) defense evidence, 6) closing statements, and 7) jury instructions. Your attorney will cross examine the state’s witnesses. After the state puts on all its evidence, they rest. The defense asks the judge to dismiss based on whether the state put on enough evidence to support each charge. The defense presents evidence, often including expert testimony about the reliability of chemical tests. If a guilty verdict is returned, we proceed to sentencing.
The other possibility on trial day is a plea. This results from plea-bargaining between the state and you. The defendant may agree to a plea to a charge or charges, in exchange for a lenient recommendation by the state on sentencing. In some counties, judges will agree to be bound by sentencing agreements (Denver, Arapahoe). In other counties (such as Jefferson), the judge is not required to go along with recommended sentences. In some cases, the judge will allow the defendant to withdraw his or her guilty plea if the judge’s sentence far exceeds the recommendation by the State.
At the end of trial, or upon entering a plea bargain, the judge will sentence you. If this is your first alcohol-related offense and the BAC is less than 0.20, the court will allow immediate sentencing on that same court date. If you have prior offenses or a high BAC, the court will order the probation department to meet with you for an alcohol evaluation and a “pre-sentence investigation” (a PSI). The sentencing will be set at a later date and the judge will consider whether to follow the recommendations of the probation department. The possible penalties for alcohol-related offenses are explained below. If jail is likely, we request a stay of execution to give you time to prepare yourself. Different courts have difference policies about stays. Among the sentencing options that we ask for in serious cases:
- in-home detention (you wear an ankle monitor and go to work, school)
- work release (allows you to work while serving jail)
- jail time served on weekends
- in-patient alcohol treatment
We recommend that almost all of our DUI clients start alcohol treatment prior to sentencing. Treatment with some form of monitored sobriety, demonstrates to the judge that you are serious about preventing a future offense. In any case, completion of a Level I or II alcohol program may be required for you to get your license reinstated or to get the ignition interlock on your car; treatment will not be a waste of time.