Denver DUI Defense - Frequently Asked Questions

Denver DUI Frequently Asked Questions

What is a DUI?

Driving Under the Influence (DUI) refers to operating a motor

vehicle

while impaired

by alcohol

or other drugs. In the State of

Colorado,

you are presumed to be ‘under

the influence’ of

alcohol when your

blood alcohol level is 0.08 or higher.

What is DWAI?

Driving While Ability Impaired (DWAI) is a lesser drunk driving

offense and refers to

operating

a motor vehicle while your ability

impaired ‘to the slightest degree’ by

drugs or alcohol. In

the

State of

Colorado, you are presumed to be ‘impaired’

when your

blood

alcohol level is 0.05

or higher.

The officer gave me a yellow "Notice of Revocation" form. What should I do?

This is one of the most crucial steps in the process of protecting

your driving

privileges!

YOU HAVE ONLY SEVEN DAYS TO REQUEST AN "EXPRESSED

CONSENT"

HEARING.

If you fail to do this, you will almost certainly lose your driving

privileges for 1-3

months. Take

this piece of paper with you and

immediately to the nearest DMV

office to request your

hearing.

There will be a box approximately 2/3 of the way down asking if

you

want the officer

to be

present at your hearing. Check "NO".

The

reasoning is this... If the officer

made mistakes in

their

reports and

they are present at the hearing, they can

correct

those mistakes with

their

testimony.

After reviewing the police reports, your attorney may decide that it

would help if the

officer was

present. In that case, the officer can

subpoenaed to the hearing.

If I'm stopped for DUI, what should I say?

First, do not admit to consuming alcohol. Even if you have only

had

two beers, the

officer will

likely not believe you. Frankly, that's

what

everyone says.

Politely inform the officer that you would like to consult with an

attorney prior to

answering any

questions. You do have to

answer

questions about your

identification but nothing else.

Do I have to perform sobriety tests?

Absolutely not! These tests are not mandatory under any

conditions. In fact, the

officer

SHOULD inform you that they are

VOLUNTARY.

Your refusal to perform them may, however, be used as evidence

a guilty

conscience on

your part. Nevertheless, these tests are

designed to fail the test

subject and will only provide

evidence

to the prosecution to use against you

later.

Are sobriety tests accurate?

NO!!! One out of five sober people who take them will be graded

a failure.

Again, politely

decline to perform these tests!

What are the sobriety tests that I might be asked to perform?

There are 3 recognized standard field sobriety tests (SFST's) that

are routinely

used in

Colorado. They are the Horizontal Gaze

Nystagmus (HGN), Walk and Turn,

and the One Leg

Stand.

You may be asked to perform other tests but they are not as

widely

recognized as

the three

listed above.

What is the HGN or "Eye" test?

The Horizontal Gaze Nystagmus (HGN) test claims to connect

blood

alcohol levels

with an

involuntary jerking of the eyes. The

officer will

hold an object in front of the

subject's eyes as

shown

in the photo

above and move it back and forth and

observe for

this jerking.

There are any number of causes of nystagmus other than alcohol

and officers

have very little

training in performing this test. If they

are

not properly qualified,

this evidence may not even be

admissible in

court. An aggressive cross-exam of

the officer is

crucial in defeating

this false

science.

What is the Walk and Turn test?

The Walk and Turn is more commonly known as walking a

straight

line.

Unfortunately, the

officer rarely actually offers the

subject a

straight line to walk.

Instead, the subject is supposed

to imagine a

straight line and then walk it and

follow all of the

other instructions.

Again, an aggressive cross-exam of the officer is crucial to

defeating this evidence.

What is the One Leg Stand?

This one is pretty self explanatory. That being said, an aggressive

cross-exam can

defeat a

poor performance on this test.

What is Portable Breath Test and am I required to take it?

The Portable Breath Test (PBT) is a non-evidentiary test of your

breath alcohol

level that is

usually given at the scene of your traffic

stop. This test is not

considered scientifically valid in

Colorado

courts and cannot be used against you

at trial. However, even this

unscientific test

may be used to establish probable

cause to arrest

you for Driving Under the Influence of

Alcohol.

You are not required and

SHOULD NOT

perform this portable breath

test. Politely

decline!

Do I have to perform a breath or blood test?

In the State of Colorado, once an officer has probable cause to

arrest a subject for

suspicion

of DUI, they can invoke the Expressed

Consent Law. This law requires

that you submit to

chemical testing

of your blood or breath to determine your blood

alcohol level. If you

refuse to

cooperate, there will be a minimum of a one-year

suspension of your Colorado driving

privileges.

If you choose to take a breath test, this must be performed on a true

"Breathalyzer"

machine

such as the one shown to the right, not a

portable machine that fits in the

officer's hand as

mentioned in the

previous question. The true "Breathalyzer" test

will almost certainly

be done

at a police station.

Should I do a blood or breath test?

This question has no easy answer. Each of these tests can be

attacked by an

experienced

DUI attorney.

The Colorado Department of Health and Environment has created a

very detailed

set of

regulations that must be followed whenever an

evidential blood or breath

alcohol test is

conducted.

Blood Test

If performed according to these regulations, the blood test is

unquestionably more

precise

than the breath test. If you are certain

that your alcohol level is not above

the legal limits, then

you should

almost certainly choose a blood test.

Additionally, if a blood test is chosen, two samples of blood will be

drawn. The first

will be

analyzed by a lab of the law enforcement

agency's choosing. The second

sample will be

saved and can be

tested independently. If these results vary, and

they do more often

than you

might think, the state's test can then be challenged in

court.

Breath Test

All Colorado breath tests are conducted on the Intoxilyzer 5000 EN.

Again, there

are a

multitude of regulations that should be followed

when obtaining a breath

sample. If they

aren't, these breath alcohol

test results can be challenged in

court. A detailed review of the

prosecution's evidence and a request for specific

records from the

law enforcement agency

and the Health Department may reveal

substantial problems with the breath alcohol test.

The breath test can be defeated through various legal means. You,

the test

subject, cannot

trick the machine.

Do I have the right to speak with an attorney prior to making the choice of test?

Unfortunately, Colorado law does not allow you to speak with your

DUI attorney

prior to your

alcohol test.

The officer never read me my rights. What effect will that have on my case?

In most cases, this is not a fatal error by the police.

Your 'Miranda' rights are only necessary once you are in custody

and only if the

police are

asking you questions. This is known as

custodial interrogation. These

two parts of the

equation are crucial

to determining if your Constitutional rights

have been violated.

In most cases of simple traffic stops, you are not 'in custody' for the

purposes of

Miranda.

Once you have been arrested, you are

certainly in custody. There are

situations where a court

would find

that you were 'in custody' prior to being

restrained in handcuffs and

then placed in a

patrol car. These situations are

extremely fact

specific.

In this context, Miranda only applies to questioning by the police. If

you blurt out

"I'm not going

to do that test because I am too drunk,"

or "I'm so wasted," those

statements are not protected

by a failure to

provide a 'Miranda' warning because

they were not made in

response to police

questioning.

What signs does an officer look for when he conducts a traffic stop?

Odor of an alcoholic beverage on your breath or clothing
Bloodshot, red, or watery eyes
Slurred speech
Flushed face
Fumbling with wallet/purse while trying to get license, registration, and proof of
insurance
Staggering/falling when exiting your car
Failure to comprehend the officer's questions
Swaying/instability on feet
Leaning on car for support
Being excessively silly, angry, argumentative
Stumbling while walking
Disheveled appearance
Inability to follow simple directions

To minimize these signs, do the following:

Simplify the process of dealing with an officer as much as possible and give them
as little evidence as possible.
Keep your vehicle registration and proof of insurance on your visor or some place
where they are extremely easy to reach.
Roll down your window just enough to speak with the officer and enough to hand
and retrieve your documents to and from the officer.
Speak as little as possible.

The police have asked to search my car. What should I do?

DO NOT GIVE YOUR CONSENT TO A SEARCH!!

You have many Constitutional rights. Don't just give them away.

There are

situations where

an officer can search your car and

containers within it without your

consent, but if they ask for

your

consent, they may not have that justification yet.

DON'T GIVE UP YOUR RIGHTS!

Law Office of John L. Buckley
3773 Cherry Creek North Drive
Suite 575
Denver, Colorado 80209
(303) 501-1800 office
(303) 501-1799 fax