DEFENSE OF DUI CHARGES
WORK WITH EXPERIENCED COLORADO DUI LAWYERS
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.
CONTENTS
I. CASES WE SPECIALIZE IN
II. THE DUI PROCESS
III. DUI PENALTIES
IV. LICENSE REVOCATION AND SUSPENSION
VII. GLOSSARY OF TERMS
I. CASES WE SPECIALIZE IN
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.
Back to Top
II. 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.
A. 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:
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.
B. 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:
1. 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.
2. 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.
3. Pre-trial Conference
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.
4. Pre-trial Motions
There are several pre-trial motions that your attorney
can file to assert certain rights. A partial list is as follows:
1) 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.
2) 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.
3) 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.
4) 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.
5. 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.
6. Sentencing
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:
1) in-home detention (you wear an ankle
monitor and go to work, school)
2) work release (allows you to work while
serving jail)
3) jail time served on weekends
4) 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.
Back to Top
III. DUI PENALTIES
In addition to the penalties described below, anyone
convicted of an alcohol-related offense can expect $300 to $600 for court costs
and probation supervision fees, not including the cost of alcohol education,
therapy, or testing.
A. Driving Under
the Influence (DUI)
The legal limit for adults in 0.08. In a DUI case,
the prosecution must prove beyond a reasonable doubt that you drove a vehicle
or had actual physical control of a vehicle while under the influence of alcohol
(or drugs or both) to such a degree that you were substantially incapable of
operating a vehicle. Having a blood-alcohol level of 0.08 grams per 210 liters
of breath permits the jury to infer that you were under the influence. The DUI
statute is C.R.S. §42-4-1301(1)(f).
1) First Time DUI Conviction
- 5 days to 12 months jail, with a minimum of 5 days in jail
- $300 to $1000 fine
- 48 to 96 hours of useful public service (48 mandatory)
- attend M.A.D.D. victim impact panel
- court costs
- 12 points on your license
All jail time may be suspended if you complete and pay for a
Level I or Level II alcohol/drug education program and therapy
as recommended by a court-ordered evaluation.
2) DUI with prior DUI,
DUR (alcohol), Vehicular Assault, Vehicular Homicide in your
lifetime
- 90 days to 12 months jail
- $450 to $1000 fine
- 60 to 120 hours of useful public service (60 mandatory)
- attend M.A.D.D. victim impact panel
- abstain from using alcohol for one year
- court costs
- 12 points on your license
All but 10 days jail time may be suspended if you complete and pay for
a Level I or II
alcohol/drug education program and therapy as recommended by an evaluation. This
may be served on in-home detention,
at the discretion of the judge.
3) DUI with a prior
DWAI in your lifetime
- 70 days to 12 months jail
- $450 to $1000 fine
- 56 to 115 hours of useful public service (56 mandatory)
- attend M.A.D.D. victim impact panel
- abstain from using alcohol for one year
- court costs
- 12 points on your license
All but 7 days jail may be suspended if you complete and pay for a Level I or
II
alcohol/drug education program and therapy as recommended by an evaluation. This
may be
served on in-home detention, at the discretion of the judge.
4) DUI with a BAC over
0.20
- 10 day mandatory minimum jail
- 90 days to 12 months jail
- $500 to $1500 fine
- 60 to 120 hours of useful public service
- attend M.A.D.D. victim impact panel
- abstain from using alcohol for one year
- court costs
- 12 points on your license
All but 10 days jail may be suspended if you complete and pay for a Level I
or II
alcohol/drug education program and therapy as recommended by an evaluation. This
may be served
on in-home detention, at the discretion of the judge.
B. Driving While Ability Impaired (DWAI)
This is a lower alcohol-related offense. Many states
do not even recognize the charge of DWAI. If you have a legal limit of 0.05
to 0.08, you will be charged with DWAI. In a DWAI case, the prosecution must
prove beyond a reasonable doubt that you drove or had actual physical control
of a vehicle when you consumed enough alcohol that it affects you to the slightest
degree that you are less able than you ordinarily would have been to exercise
clear judgment, sufficient physical control, or due care in the safe operation
of a vehicle.
DWAI is also a reduced charge for plea-bargaining purposes.
It is a common resolution because the conviction for DWAI does not trigger a
license suspension due to excessive points. However, even if you plead guilty
to DWAI, your license may be suspended if the DMV finds your BAC was over 0.08
while driving. If a minor driver (under 21) is convicted of DWAI, his or her
license is revoked for one year.
1) First DWAI conviction with no
priors
- 2 days
to 6 months jail
- 24 to 48
hours public service (24 mandatory)
- $300 to
$500 fine
- attend
M.A.D.D. victim impact panel
- likely
one year probation
- court costs
- 8 points
on your license
2) DWAI conviction with a prior
DWAI
- 45 days
to 12 months jail
- 48 to 96
hours useful public service (48 mandatory)
- $300 to
$1000 fine
- attend
M.A.D.D. victim impact panel
- court costs
- 8 points
on your license
All but 5
days of the jail may be suspended if you complete and pay for a Level I or II
alcohol/drug education program and
therapy as recommended by an evaluation.
3) DWAI conviction with a prior
DUI, vehicular homicide, Driving Under Restraint, or
vehicular assault
- 60 days
to 12 months jail (6 days mandatory minimum)
- $400 to
$1000 fine
- 52 to 104
hours useful public service
- attend
M.A.D.D. victim impact panel
- court costs
- 8 points
on your license
C. Underage Drinking and Driving (U.D.D.)
If you are under 21, it is against the law to drive
with a BAC of 0.02 or higher. Colorado classifies this charge as a Class A traffic
misdemeanor if you have a BAC at least 0.02 but not more than 0.05. C.R.S. §
42-4-1301(2)(a.5).
Back to Top
IV. LICENSE REVOCATION AND SUSPENSION
If you are arrested for DUI, you will be required to
take a chemical test to determine your alcohol content (BAC). Under Colorado’s
Express Consent Law, all drivers are considered to have expressed their consent
to take this test.
Drivers age 21 and up have the right to choose whether
to take a breath or blood test. Drivers under age 21 may request a breath or
blood test when charged with DWAI, DUI, or DUI per se. Minor drivers under 21
charged with UDD will have to submit to a breath test only.
The arresting officer must have probable cause to believe
that you were drinking and driving in violation of the law to order you to submit
to the test. Kurtz & Peckham will often raise the challenge of whether probable
cause existed to get the test results suppressed.
If you refuse the chemical test, your Colorado license
will be revoked for twelve months, without the possibility of a probationary
license during that time. If there is a later suspension due to a conviction
for DUI or excessive points, that will be consecutive; you may be eligible for
a probationary license during that added time.
How long will my license be revoked and suspended
for?
If you have a BAC over 0.08, it will be revoked for
a straight three months or you can get a work permit after 30 days and then
get a work permit under a suspended license for five more months (total of six
months).
If you have a prior alcohol-related conviction, your
license will be revoked for one year, without the possibility of a probationary
license (work permit).
If you are under 21 and your BAC was between 0.05 to
0.08, it will be revoked for three months for a first violation, six months
for a second violation, and one year for a third or subsequent violation. You
may request a work permit after 30 days and then have a probationary license
for five months (total six months).
If you refused to take a chemical test, it will be
revoked for one year for a first violation. For a second refusal, the license
will be revoked for two years. For a third or subsequent refusal, it will be
revoked for three years.
If you refused to take a chemical test while driving
a commercial motor vehicle, the revocation is for one year. If the commercial
vehicle was transporting hazardous materials, the license will be revoked for
three years. A second or subsequent refusal involved with driving a commercial
vehicle will result in a cancellation or denial of the license.
If your license is revoked due to a high BAC, any suspension
or revocation that is caused by a criminal conviction will run CONCURRENT (or
at the same time). However, if your license is revoked due to a refusal, any
revocation caused by a criminal conviction will run CONSECUTIVE to that revocation
(it will be added on).
VII. GLOSSARY OF TERMS
Blood-Alcohol Content (BAC): Measure of the alcohol content in
your blood. Chemical evidence of blood-alcohol content is used by the
prosecution to show that a driver was “under the influence.” In addition,
Colorado law makes it illegal to simply drive with a blood-alcohol level in
excess of .08 percent. If the results of your breath or blood test were 0.08 or
higher (0.02 if you are under 21 years of age) your license is subject to a
three month revocation. The blood-alcohol reading is also used as an important
gauge in plea bargaining and sentencing in alcohol-driving cases.
Cancellation: An action to void a valid Driver License
Denial: A restraint action taken when an individual doe not have a
Colorado Driver License.
DUI Per Se: Most Coloradans in drunk driving cases are charged
with two offenses: (1) driving under the influence and (2) driving with a
blood-alcohol level in excess of 0.08. The second offense is a violation of the
per se statute, which makes it illegal to drive with a blood-alcohol content
over 0.08, regardless of whether your driving was impaired.
Field Sobriety Test (FST): A series of roadside tests given by the
police officer which allow the cop to determine if you are impaired by alcohol.
The tests include the Horizontal Gaze Nystagmus, the Walk & Turn, and One-Leg
Stand. You may refuse to take roadside tests without any legal penalty. We
challenge the scientific reliability of these tests in motions to the court.
Ignition Interlock: A device that prevents a driver from starting
a vehicle without first breathing into a primitive breath analyzing device and
getting a negative reading. In Colorado, repeat alcohol offenders are required
to have the Ignition Interlock when they reinstate driving privileges. CRS §
42-2-132.5. Reinstated licenses are restricted to the use of vehicles equipped
with an Ignition Interlock device for at least the period of one year. Drivers
with two alcohol driving offenses in five yours, three in a lifetime, or with
Habitual Traffic Offender status and at least one alcohol driving offense after
7/1/00 will be allowed to reinstate only with a restricted license that limits
their driving to vehicles with an Ignition Interlock device. The interlock
driver bears all costs of the Ignition Interlock device.
Level II Education & Therapy: A condition of probation for
alcohol-related offenses. Completion of Level II is a mandatory condition for
reinstatement of your license if it is revoked for having a BAC over 0.20. You
should start classes right away to show DMV you are enrolled at your hearing.
Preliminary Breath Test (PBT): Instruments used by police officers
in the field to obtain initial indications of blood-alcohol levels. This
screening is used to detect the presence of alcohol in the driver, or to roughly
determine a pass or fail level. If the PBT instrument shows that alcohol is
present, or if it reflect a possibly high blood-alcohol level, the cop can use
this information in deciding whether to arrest. Results are not admissible at
trial, but can be used to support probable cause. A driver may refuse to take a
preliminary breath test without any license consequences, unless the driver is
under age 21. See CRS § 42-4-1301(6)(i).
Refusal Warning: If you refused (or are alleged to have refused)
to take a blood, breath or urine test after being requested to do so when being
processed for any drunk driving related charges in Colorado, your driver’s
license is subject to a one year revocation. You have only seven (7) days to
request an administrative DMV hearing or else or license is automatically
revoked.
Revocation: A restraint action that invalidates the Driver License
and revokes the driving privilege.
Roadside Tests: See “Field Sobriety Test.”
Suppression: When law enforcement violates your civil rights, one
remedy is to have illegally-obtained evidence suppressed, which means that the
court orders that the evidence cannot be used against you at trial. Your
attorney will file a Motion to Suppress evidence, such as test results, if law
enforcement lacked the proper legal justification to stop, search, or seize you
or obtained evidence in violation of your rights.
Suspension: A restraint action that temporarily invalidates the
Driver License and withdraws the driving privilege.
Back to Top