Driving Under the Influence (DUI)
It is often said by judges that a first offense DUI does not demonstrate bad character, but only a bad decision made through impaired judgment. Unfortunately, a single bad decision to drive after you have been drinking can have serious, unintended, and long-lasting consequences. Even in situations where there is no evidence of bad driving, a person can be arrested simply if the police officer subjectively believes there are indications a person is impaired.
Although a majority of states have one level for breath/alcohol content, Colorado actually has two different levels with different applications and consequences:
- If your blood alcohol level is .08% or higher, Colorado law infers that you are intoxicated and unable to safely operate a motor vehicle.
- If your blood alcohol is .05% to .08%, Colorado law infers that your ability to safely operate a motor vehicle is impaired.
However, whether you are guilty of DUI or not depends on other circumstances in your case. The District Attorney must prove beyond a reasonable doubt that you were either unable to drive safely due to intoxication, or that you were less able than you normally would have been to drive safely due to the voluntary consumption of alcohol.
Defending a DUI/DWAI requires expertise not only in the law and court procedures, but also in blood chemistry, bio-physiology, and administrative proceedings through the Division of Motor Vehicles. You need knowldgable, experienced legal counsel, such as the Sarbaugh Law Firm, who understands and is specifically trained in all these areas to successfully defend you against a charge of DUI, DWAI, or DUID.
Driving Under the Influence of Drugs (DUID)
Simply having a Colorado medical marijuana license is not a defense to driving under the influence of marijuana. If you have been smoking pot and are pulled over, you can and will be charged with Driving Under the Influence – Drugs (“DUID”).
However, many of the factors police and prosecutors use to establish evidence of alcohol impairment do not apply to marijuana. There is currently a hotly contested debate as to the appropriate level of THC in one’s blood street which correlates to impairment in driving. In addition, the standard roadside tests are specifically designed to detect impairment from alcohol, not marijuana, and therefore have questionable relevance at best in determining whether your driving ability is impaired by the consumption of marijuana.
Nevertheless, if you are arrested for DUID, just as in a DUI case, you must submit to a chemical test of your blood or urine or face losing your driving privileges for one year or longer.
In Colorado, a person can be charged with driving under the influence of alcohol or drugs, or a combination of alcohol and drugs, even if these medications are legally prescribed by a physician. However, there must be evidence that the effects of the medication that you were taking adversely affected your ability to drive.
As with marijuana, the standard alcohol roadside tests are not designed to establish evidence of impairment from prescription drugs. There are, however, police officers (called "Drug Recognition Experts" or "DRE" officers) who are trained to detect drug impairment.
If the officer who arrests you is not a DRE, then you may have a defense that he/she was not trained to detect impairment from your medication and is only guessing based on flawed assumptions. Testimony from your doctor can also assist in explaining that your medication typically does not impair driving ability.
Be careful to check if the prescription label on your medication warns against operating a motor vehicle while taking the medication, (the DA will use against you to try and establish impairment).
Blood Alcohol Content Below .08%
Yes, you can still be charged with a DUI even if your BAC was below .08%. The specific blood/alcohol level is only one of many factors that are relevant to a determination of whether you were intoxicated to the point that you were unable to safely operate a motor vehicle (which is the legal definition of DUI). Even if the facts of your case do not support a charge of DUI, the officer can still charge you with the lesser offense of Driving While Ability Impaired, particularly if your BAC was over .05%.
Refusing Breathalyzers and Roadsides
Intoxilyzer Breath Test
Whether a refusal to submit to the Intoxilyzer breath test will help or hurt your case depends upon the factual circumstances under which you were arrested. While the absence of a specific blood/alcohol level may actually help you in your criminal defense case, a refusal to submit to a breath (or blood) test after a lawful arrest for DUI or DUID, will result in the loss of your driving privileges for one year.
If the officer has sufficient evidence to arrest you for DUI, that same evidence is sufficient to charge you with DUI and require that you appear in court. Although the evidence may be enough to arrest and charge you with DUI, there is a much higher standard of proof required to find you guilty of DUI.
Only an experienced DUI attorney can advise you as to whether there is sufficient evidence in your specific case for a jury to convict you of the charge. If you have been arrested for DUI and refused a chemical test, give us a call and we can discuss the evidence in your specific case.
Although the public is becoming more educated in DUI procedures, many people still do not realize that you don't have to take the roadsides. They are completely voluntary and you may (and should) decline to take them.
The roadside maneuvers (Standard Field Sobriety Tests or "SFSTs") constitute a search and seizure of your person and therefore can only be administered if you voluntarily agree to do them. The tests must be administered and interpreted pursuant to strict standards established by the National Highway Transportation Safety Administration (NHTSA) and the law enforcement officer must be certified to properly administer the tests.
While the officer will likely tell you that the SFSTs assist them in determining whether you are safe to operate a motor vehicle, make no mistake - the officer is attempting to obtain and develop information which he/she will use to arrest you.
Because of the bias nature of these tests, we routinely advise our clients to decline to do the SFSTs if they ever find themselves in that unfortunate situation. However, if you are still arrested for a DUI or DWAI after refusing the roadsides (and chances are you will be if you refuse), you are required to submit to a chemical test of your blood or breath or face a one-year revocation of your driver’s license.
Bottom line – declining the roadsides is OK, but refusing the chemical test will cost you.