DUI Colorado

“A DUI arrest can be a costly mistake,” says Alexis Austin, attorney at Right Law Group. “There are enormous costs that stem from a DUI conviction. All have a lasting impact. Don’t let one wrong decision impact your life, job or freedom. Call today for a free case evaluation. It doesn’t matter where you live in Colorado; driving under the influence is a serious crime. A DUI in Colorado is classified as a criminal offense and major traffic violation. If your DUI charges include property damage or injury to another person, you may face felony charges, as well. Your next actions will impact the outcome of your case. You need to educate yourself, so you can make a final decision on how you will defend yourself against your DUI charges. You have a seven (7) day window to request a hearing with the DMV to prevent the automatic suspension of your license in the next (30) days. You need to act now.

What Is A DUI?

DUI, or driving under the influence, occurs when a driver operates a motor vehicle while under the influence of drugs and/or alcohol, or when the driver has a blood alcohol level (BAC) of 0.08 or higher. Drivers under the age of 21 (UDD) are charged with impaired driving based on blood alcohol levels of 0.02 or higher, and CDL license holders can be charged based upon blood alcohol levels of 0.04 or higher.

DUI Colorado, DUI per se and DWAI Laws

Laws concerning DUI, DUI per se, and DWAI appear under Title 42, article 4, and part 13. The State of Colorado divides these offenses into two distinct categories: driving under the influence (DUI) and driving while ability impaired (DWAI). Colorado further separates DUI into two distinct categories: DUI and DUI per se.  In a DUI per se, the prosecution must prove the driver’s drug or alcohol blood levels were above .08 percent while driving or within two hours after driving. In a DUI per se, the driver may not appear to be under the influence. A DUI breathalyzer or DUI blood test will determine if blood levels violate legal limits. In a standard DUI, the prosecution proves that the ingested alcohol or drugs affected the driver’s mental or physical ability to drive.

• • DUI Colorado, DUI per se, or DWAI is a misdemeanor unless it has occurred after three prior convictions that are separate and distinct episodes, in which case it is a class 4 felony for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof.

• (d) Drugs defined. “Drugs” refers to any drug [27-80-203 (13), C.R.S.] any controlled substance [18-18-102 (5), C.R.S.], including prescription drugs, and any inhaled glue, aerosol, or other toxic vapor or vapors [18-18-412, C.R.S.].

• C.R.S. 42-4-1301. (e) The medical use of marijuana [18-18-406.3, C.R.S.] is not a defense against any charge of violating this subsection (1). Driving while under the influence of medical marijuana is treated the same as driving under the influence of ambien or any other prescription drug. 
• Distinctions between DUI, DUI per se and DWAI 
  • In a DUI,  the person is affected to the degree that they are either mentally or physically incapable, or both, to exercise clear judgment, sufficient control, or due care in the safe operation of a vehicle.
  • In a DUI per se, the person drives a motor vehicle when the person’s BAC is at least 0.08 at the time of driving or within two hours after driving.
  • In a DWAI, the person is affected to the slightest degree so that the person is less capable than the person would ordinarily have been, either mentally or physically, or both, to exercise clear judgment, sufficient control, or due care in the safe operation of a vehicle. The general rule is that a person’s BAC in a DWAI is between 0.05 – 0.079. 

DUI Colorado, DUI per se or DWAI  BAC Limits

Per Colorado’s driving DUI laws, it’s illegal to operate a motor vehicle with any of the following BAC percentages:

• 0.08 percent or higher―21 years old or older operating a regular passenger vehicle.
• 0.05-0.79 percent―is a DWAI per se
• 0.04 percent or higher―operating a commercial vehicle.
• 0.02 percent or higher―under the age of 21 (UDD)

Colorado has zero-tolerance for drivers under the age of 21 operating a vehicle with any alcohol in their system. Underage drivers with a BAC of 0.02 percent or more could be arrested, pay fines, do community service, and even face jail time. Colorado DUI laws include medications. It’s not legal to drive if you have consumed illegal drugs including:

• • Excessive amounts of drugs containing alcohol in them (such as cough syrup).

• Prescription medication.

• Over-the-counter medication.

• C.R.S. 42-4-1301. (e) The medical use of marijuana [18-18-406.3, C.R.S.].
• Drugs. There is no per se drug limit, and the presence of prohibited drugs and even some prescription drugs may result in a DUI or DWAI.

DUI convictions stay on your driving record for 10 years. NOTE: Colorado has harsh expungement rules regarding DUI, DUI per se and DWAI convictions. Drunk driving convictions appear permanently as criminal records. Prevent a DUI from becoming a criminal record with the help of an experienced attorney.

DUI Colorado/DUI per se, DWAI and Underaged Penalties

DUI Colorado or DUI per se

This section provides a concise explanation for the minimum and maximum penalties for Driving Under the Influence, DUI or DUI per se, convictions. Immediately following is a parallel explanation for DWAI.

First DUI Colorado or DUI per se 

The first DUI or DUI per se conviction in Colorado is a misdemeanor. The convicted motorist faces the following administrative and criminal penalties.

• • Points. A first DUI or DUI per se will result in 12 points on license.
  • Fines. A first DUI or DUI per se carries $600 to $1,000 in fines.
  • Jail. A first offender can receive five days to one year in jail. Should the judge order probation—which occurs in most cases—there’s no mandatory jail time if the BAC is below 0.20, but the Judge does have the ability to sentence up to 120 days in jail in addition to probation if he chooses. Mandatory jail time comes when the BAC is .20 or higher. Sometimes, judges show leniency on first offenders and don’t order time in jail as part of the sentence. If BAC is 0.15 percent or higher, you will be designated and sentenced as a repeat offender. 
  • License suspension. A first DUI conviction, there’s generally a nine-month license suspension. There’s also a nine-month administrative suspension imposed by the DMV if the driver had a blood alcohol concentration (BAC) of .08 percent or more. 
  • Probation. First DUI offenders typically receive a supervised probation  sentence and perform 48-96 hours of community service

• Level 2 education. Offenders receive 24hours of DUI education over a minimum 12 week period.

• • Level 2 therapy. Level 2 therapy follows level 2 DUI education, the duration relative to driving offenses.

• Interlock device (IID). Installation of an interlock device for nine months. For BAC of 0.17 or higher, the IID is required for two years.

First time DUI and DUI per se offenders, a month after the completion of their license suspension, may apply for ignition interlock devices (IIDs) in their vehicles if they took either a breath or blood test. Drivers must wait 2 months if they refuse testing. Prior convictions, including DUI and DWAI in any state or U.S. territory, are included at the time of sentencing. BAC test refusal: Colorado drivers are subject to expressed consent laws (42-4-1301 (6) (IV)(d) C.R.S.) and are required to take chemical tests for the purposes of determining BAC. Refusal to take a blood alcohol test at a traffic stop results in a Persistent Drunk Driver designation and is an independent cause for revoking a driver’s license and an automatic 2-year interlock device requirement. 

2nd DUI Colorado or DUI per se

Minimum and Maximum Penalties for a Second DUI or DUI per se Conviction

A second DUI or DUI per se conviction is a misdemeanor in Colorado. The convicted motorist faces the following penalties.

• • Points. A second DUI or DUI per se will result in 12 points on license.
  • Fines. A second DUI or DUI per se carries $600 to $1,500 in fines.
  • Jail. A second-time offender will receive ten days to one year in jail. The judge may order probation—which occurs in most cases—and there is  mandatory jail time even with probation because it is a second offense. 
  • License suspension. For a second DUI or DUI per se conviction, there’s generally a 12-month license suspension. (Colorado drivers are subject to expressed consent laws (42-4-1301.1 C.R.S.) and are required to give law enforcement officials blood, breath, urine or saliva samples to determine BAC. Refusal to take a blood alcohol test is an independent cause for revoking a driver’s license. 
  • Probation. Second time DUI or DUI per se offenders typically receive a supervised probation as well as a suspended jail sentence and perform 48-120 hours of community service. Mandatory jail time is imposed as well on a second offense and can be increased when the BAC is .20 or higher.
  • Level 2 education. The offender receives 24 hours of DUI education over 12 weeks conducted in a group setting.

• Level 2 therapy. Level 2 therapy follows level 2 DUI education, duration relative to driving offenses.

• Interlock device (IID). Installation of an interlock device is required for two years.

Prior convictions, including DUI and DWAI in any state or U.S. territory, are included at the time of DUI sentencing. The courts consider prior deferred sentences as prior charges as well. Offenders whose license is revoked because of a second DUI, DUI per se and DWAI, a month after the completion of their license suspension, may be able to apply for ignition interlock devices (IIDs) in their vehicles.

3rd DUI Colorado or DUI per se

The third DUI or DUI per se conviction in Colorado is a misdemeanor. 

• • Points. A third DUI or DUI per se will result in 12 points on license.
  • Fines. The fines for a third DUI or DUI per se are the same as those for a second offense: $600 to $1,500 plus penalty assessments.
  • Jail. Third time DUI offenders face a minimum of 60 days to one year in jail. 
  • License suspension. For a third DUI, there’s a 24-month suspension that comes from the administrative suspension for offenses involving a BAC of .08 percent or more. If you have three prior qualifying convictions within a seven-year period, your license will be revoked for five years based on the date of the violation.
  • Probation. Third-time DUI or DUI per se offenders typically receive a supervised probation  sentence and perform 48-120 hours of community service in addition to jail time. Level 2 education. The offender receives 24 hours of DUI education over 12 weeks conducted in a group setting.

• Level 2 therapy. Level 2 therapy follows level 2 DUI education, duration relative to driving offenses.

• Interlock device (IID). Installation of an interlock device is required for two years.

Qualifying offenses may include:

• Driving under suspension or revocation
• Driving while ability impaired (DWAI)
• Driving under the influence (DUI)
• Reckless driving
• Vehicular assault
• Vehicular homicide

Felony DUI Colorado or DUI per se 

The 4th entirely separate DUI or DUI per se conviction either in Colorado or any other U.S. state or territory is a class 4 felony. 

• Fines. A DUI or DUI per se (0.08 percent BAC) or vehicular homicide will result in fines of $2000 to $500,000.
• Jail. Felony DUI or DUI per se offenders face two to six years in Colorado State prison and three years of parole (mandatory). 
• Level 2 Four Plus/ Track F. Specialized treatment for individuals with four or more DUI or DUI per se driving offenses. A comprehensive clinical assessment determines the treatment.

Penalties for DUI or DUI per se involving Deaths or injuries

DUI or DUI per se with injuries. Anytime an injury occurs in a DUI accident, the driver faces more severe penalties, including being charged as a felony. Such cases can result in 16 months to six years in prison. Fines for an injury DUI range from $2000 to $500,000, depending on the defendant’s history. DUI or DUI per se with fatalities. DUI offenders, who proximately cause the death of another person, (Colorado vehicular homicide 18-3-106 C.R.S.) are prosecuted under manslaughter or murder laws. Charges may include:

• Colorado reckless vehicular homicide. A class 4 felony. If the driver drove recklessly (with conscious disregard OR while under the influence of alcohol and/or drugs and killed someone in Colorado. 
  • 2-6 years in Colorado prison
  • A fine of $2,000-$500,000
• Colorado DUI vehicular homicide. A class 3 felony. A felony, considered to be more serious. The driver was driving under the influence of alcohol or drugs (including prescription drugs) and killed someone — even when not driving recklessly. 
  • 4-12 years in a Colorado prison
  • A fine of $3,000-$750,000

DWAI Colorado

This section provides a concise explanation for the minimum and maximum penalties for the different levels of Driving While Ability Impaired or DWAI convictions. 

1st DWAI in Colorado

The first DWAI conviction in Colorado is a misdemeanor. Ability impaired occurs when BAC is over 0.05 percent but less than 0.08 percent, and the mental and/or physical capacity to drive is impaired. Unlike a DUI or DUI per se conviction, where guilt is automatic, DWAI must be proved by the prosecutor. The convicted motorist faces the following administrative and criminal penalties. 

• Points. A first DWAI will result in 8 points on license.
• Fines. A first DWAI carries $200 to $500 in fines.
• Jail. A first offender to receive two days to 180 days in jail. But if the judge orders probation—which occurs in most cases—there’s no mandatory jail time. 
• License suspension. For a first DWAI conviction, there’s no license suspension. 
• Probation. First DWAI offenders typically receive a supervised probation sentence  and perform 24-48 hours of community service

Prior convictions, including DUI and DWAI in any state or U.S. territory, are included at the time of sentencing. BAC test refusal: Colorado drivers are subject to expressed consent laws (42-4-1301.1 C.R.S.) and are required to take chemical tests to determine BAC. Refusal to take a blood alcohol test at a traffic stop results in a Persistent Drunk Driver designation and is an independent cause for revoking a driver’s license. 

2nd or 3rd DWAI in Colorado 

Penalties and fines are the same as DUI and DUI per se, except drivers receive 8 points on their driving record for each subsequent conviction. 

Under 21 Drinking and Driving

Colorado is a zero-tolerance state for drivers under the age of 21 with BAC levels of 0.02 percent but less than 0.05 percent.  

• Points. Underaged DUI, DUI per se and DWAI receive 4 points on their license.
• Fines. A first offense incurs fines of up to $150; second and third offenses incur fines of $150 to $300.
• Classifications. Underaged DUI or DUI per se or DWAI are a Class A traffic infractions for 1st offense and a Class 2 misdemeanor for subsequent offenses.
• Jail. First-time offenders do not receive jail time; second-time offenders face 10 to 90 days in jail, and third-time offenders 60 to 90 days in jail. 
• License suspension. Violators will find their license is suspended as follows:

• 1st offense–3 months
• 2nd offense–6 months
• 3rd offense–1 year

• Level 1 education. The offender receives 12 hours of DUI education over a minimum 3-day period paid for by the offender.

• • Level 2 therapy. Level 2 therapy follows level 1 DUI education, duration relative to driving offenses, and paid for by the offender.

• Community service. The first time–up to 24 hours; second and third times–48 to 120 hours.

Wet Reckless Driving in Colorado

Wet reckless (driving) is a term describing a specific type of plea deal sometimes offered to first time DUI, DUI per se or DWAI offenders in Colorado. Those offered a “wet reckless” plea bargain, plead guilty to the lesser charge of reckless driving.

1st Wet Reckless Driving in Colorado

Wet Reckless driving is a misdemeanor. Drivers convicted of wet reckless driving are charged with “a wanton or willful disregard for the safety of persons or property.” That means the driver understood the risks and chose to drive anyway.

• Points. A first wet reckless driving offense results in 8 points on license. 
• Fines. A first offense reckless driving offense carries $150 to $300 in fines.
• Jail. A first offender can receive ten to 90 days in jail. 
• License suspension. For a first offense, and depending on your driving record, a suspension may occur. An instance where reckless driving leads to death could also involve charges of vehicular homicide.

In the event that the driver is later convicted of a DUI, DUI per se or DWAI, the wet reckless conviction counts as a DUI or DWAI prior offense.

2nd Wet Reckless Driving in Colorado

Consequences depend on the circumstances surrounding each instance.

• Points. A wet reckless driving offense results in 8 points on license. 
• Fines. A second offense reckless driving offense carries $150 to $1000 in fines.
• Jail. A second offense reckless driving offense carries jail time of ten days to six months. 
• License suspension. A reckless driving conviction could lead to suspension depending on how many points the driver already has.

Wet Reckless Driving deals

A prosecutor may reduce DUI, DUI per se or DWAI charges to a wet reckless when:

• The defendant’s BAC was under 0.08%
• The defendant has no history of drug/alcohol-related offenses
• Impairment is difficult to prove.

DUI Colorado, DUI per se or DWAI Arrest

While being pulled over for the first time can be frightening, it’s important to remember that a DUI, DUI per se or DWAI arrest is not a conviction. If it is your first offense, the law will work in your favor if you keep your emotions in check and make good decisions.  Remember: It’s important to get an experienced DUI defense attorney who can take you through the steps successfully.  Here are some things to be aware of and some initial steps you’ll need to take to get your situation moving in the right direction. 

• Your license may be suspended.
• Regardless of how disturbing your arrest has been, you must be prepared to fight DUI charges to ensure the best outcome both now and in the future.
• Book a case evaluation as soon as possible. Colorado only allows seven days from the time of your arrest to set your DMV hearing in motion. You need an experienced attorney who knows how to navigate the system. 

Key points to remember and implement immediately following a DUI, DUI per se or DWAI arrest in Colorado that will directly impact your trial outcome.

Step 1. Say nothing incriminating.

The arresting officer stopped you because he or she has the evidence they need to arrest you. You cannot prevent your arrest at this point. Remember to limit your words and be polite. What you say can lessen your chances for a case dismissal and favorable outcome in court.

• Remain silent. Other than confirm your identity, remain silent. You have the right to remain silent. Use it.
• Don’t respond to questions that imply guilt. Officers at the scene will ask probing questions to trick you into admission of guilt. Do not answer any questions regarding admission of drinking.
• Be polite. Don’t allow yourself to become frustrated or pulled into an argument with law enforcement. Focus on limiting information and remaining polite. That is the best course of action. 

Remaining silent is essential at this stage.

Step 2. Take the BAC chemical test after the arrest. 

In Colorado, refusal to take a chemical test is a crime resulting in automatic suspension of license and other penalties. The chemical test shows your current blood alcohol level after the arrest. You must either take the chemical test or refuse which will result in immediate license suspension. It is your decision whether you want to take a chemical test to show how much alcohol you have in your system. A breath test only detects alcohol and will not show any marijuana or other substances. A blood test will show everything that is in your system. 

Step 3.  Find a local DUI attorney. 

Don’t let the court assign your attorney. The complexity of DUI laws requires an experienced understanding of the legal system.  You want a DUI specialist and supporting team to avoid criminal conviction, as expungement in Colorado may be difficult to impossible. Avoid this problem on the front end rather than having to address your record years from now.

Step 4.  Contact a bondsman to post bail. 

Posting bail is often unnecessary, but some individuals may require the aid of a bondsman.  You’ll need to pay an up-front fee, at which time they’ll post bail for you. This is less expensive than paying the court directly, which means paying your entire bail. Usually bondsman only require about 10% of your bond upfront. Your bondsman guarantees your court presence and will come to find you if you fail to show up for court proceedings.

Step 5.  Immediately request a DMV hearing.

You have seven days (usually 10) including weekends and holidays, to formally request for DMV hearing. This hearing determines whether you may keep your driver’s license. If you (or your attorney) do not request a DMV hearing, your license will be automatically suspended. 

Step 6.  Prepare for arraignment.

You should never go to court without an attorney, but if you do, you enter your plea in the initial court appearance, called the arraignment. Do not plead guilty. An experienced attorney can fight DUI charges and win the case. Your not guilty plea initiates a jury trial and will allow your attorney the opportunity to show you were not driving under the influence. The district attorney only has 6 months to try your case from the date that you enter a not guilty plea. 

Speak with an experienced DUI attorney?

We’re the Right Law Group.

DUI, DUI per se and DWAI Defense

You can win a Colorado DUI, DUI per se or DWAI case regardless of the allegations. There’s a winning defense strategy for your situation.  Even if the prosecution alleges you drove with a blood alcohol concentration (BAC) of 0.20 percent, under 0.08 percent is the legal limit, or claims your impaired ability to drive led to an accident, you can still win a court case. An experienced DUI defense attorney knows the defenses that could persuade a prosecutor to reduce the charges or even dismiss them. The best defense for your case depends on the circumstances surrounding your arrest and the nature of the charges. As top Colorado DUI defense lawyer Alexis Austin, attorney at Right Law Group explains, “People plead guilty to DUI mistakenly because they feel the evidence is stacked against them. Experience has shown me that very rarely is the evidence insurmountable. Law enforcement mishandles DUI investigations procedurally and evidentially, and some prosecutors leverage fear and unfamiliarity to intimidate defendants. The best move for a defendant, in almost every case, is to consult with an experienced Colorado DUI lawyer rather than trying to go it alone.” The following are 20 DUI defense summaries provided by our Colorado DUI defense lawyers that can help you beat your Colorado DUI charges: If you have additional questions or want to speak with one of the attorneys of our Colorado DUI defense team, we invite you to contact us at Right Law Group. Mouth Alcohol-Related DUI Charges

1. DUI Defense: Breathalyzer Test Errors

Colorado DUI breath tests are subject to a wide range of errors. These include (but are not limited to):

• instrument failure or malfunction
• improper handling by law enforcement
• physiological conditions (such as GERD or your diet, both of which are discussed below)
• outside environmental factors (including radio frequency interference (RFI), described below)

Law enforcement most commonly uses DUI breath testing to measure BAC, but it’s not always accurate. A DUI breath test isn’t a direct measure of the level of alcohol in your blood. It calculates the level of alcohol present in your breath and then estimates the likely level of alcohol in your blood.2 Breath testing errors are a top Colorado DUI defense. DUI breath testing is often unreliable, generating erroneously high BAC readings. Understanding how this happens can be the basis of a successful DUI defense strategy.

2. DUI Defense: the Presence of Alcohol in the Mouth

“Mouth alcohol” is misread by DUI breath testing instruments as the presence of alcohol in lung tissue alcohol (alveolar air). This reading can occur under several circumstances:

• alcohol trapped in food particles lodged in your dental work
• a small alcoholic drink burp leaves traces in mouth 
• your mouthwash or breath spray contains alcohol
• your chewing tobacco leaves traces of alcohol
• a medical condition3, such as acid reflux, increases the concentration of alcohol in the mouth (below)

You can challenge the results of a breath test as part of your DUI defense strategy.

3. DUI Defense: Mouth Alcohol Resulting from Medical Conditions: 

• heartburn
• acid reflux
• gastroesophageal reflux disease (GERD)
• hiatal hernia

Medical conditions may be triggered by the stressful encounter with law enforcement and being required to take a DUI breath test. The mouth alcohol levels increase due to the medical condition and are misread by breath testing instrument.4 Your experienced DUI attorney will know how to leverage your medical condition to defend you in court. Medical conditions such as GER, acid reflux and heartburn can serve as a defense to DUI charges.

4. DUI Defense: Mouth Alcohol from Ketosis as a Result of Diabetes or Low-Carb Diets

Ketosis is a chemical state where stored fat is used for energy, releasing alcohol in breath and urine. It turns to isopropyl and is picked up as high alcohol content on a DUI breath testing device. These machines do not distinguish between ethanol (alcohol in beverages) and isopropyl.5 Ketosis is commonly caused by:

• diet 
  • low-carbohydrate
  • high-protein 

• diabetes

People who ascribe to keto, carnivore or paleo diets or who have diabetes can fight DUI charges on this basis.

5. DUI Defense: Rising Blood Alcohol

It takes 50 minutes to three hours for alcohol to absorb into the system.6 This phenomenon, called “rising blood alcohol,” may be leveraged as a defense regardless of how BAC levels are measured in either a DUI breath or blood test. If at the time of your arrest, your blood alcohol levels were still rising, the chemical test results will show a higher degree of BAC than when you operated your vehicle. 

6. DUI Defense: Blood Test Errors

As with DUI breath tests, the potential for error exists. Inaccuracies may be due to several factors.  

• Fermentation of the blood
• improper storage of your sample
• contamination

Your DUI defense attorney may make what is called a “blood split motion” to learn how your blood test was conducted and your sample was stored.7 Improper handling of your BAC results or blood sample will allow your attorney to have them excluded from evidence, which could lead to the dismissal of your DUI charges.

7. DUI Defense: Title 17 Violations

Title 17 of the Colorado Code of Regulations sets forth strict guidelines for DUI chemical test samples.8 

• collecting
• storing
• analyzing

If there are any violations of these specific regulations and any violations of Colorado’s Title 17, BAC test results may be compromised. Your DUI blood test may be excluded from evidence if Title 17 isn’t properly handled in the following cases.

• technician drawing DUI blood sample does not follow procedure 
• the DUI breath testing instrument isn’t properly calibrated 

8. DUI Defense: Lack of Probable Cause in a DUI Stop

A law enforcement officer must have reasonable suspicion or believe you are engaged in criminal activity9 before:

• ordering you to stop your car
• detaining you to conduct a DUI investigation
• arresting you for a Colorado DUI

If “probable cause” is not supported by evidence gathered by the arresting officer, it will be suppressed.10 It will not be used against you in your DUI case and may result in reduced charges or dismissal.

9. DUI Defense: Arresting Officer Didn’t Read Miranda Rights

Miranda rights are not required in a Colorado DUI arrest.  They are required, however, in the following instances:

• you have been arrested
• your arresting officer conducts custodial interrogation

When the arresting officer asks questions that solicit incriminating responses after you’ve been arrested, or are in custody, Colorado DUI law calls this custodial interrogation.11 The arresting officer must read you your Miranda rights if you’re in custody and the officer conducts a custodial interrogation. When these conditions are met, the officer must advise you of your Miranda rights. Otherwise, any subsequent statements will be excluded from evidence upon a motion by your DUI defense attorney. 

10. DUI Defense: Innocent Explanations for Physical Signs of DUI

The arresting officer may claim things about your appearance at the time of the arrest. A flushed face, unsteady gait, watery eyes, slurred speech and even the smell of alcohol on the breath do not prove impairment or indicate BAC above legal limits. Every one of these descriptions can be caused by something innocent: sunburn, fatigue, allergies, illness and a drink within legal limits. An experienced attorney will know the way to address these types of allegations during a hearing.

11. DUI Defense: Inaccurate Field Sobriety Test Results

DUI field sobriety tests are notoriously unreliable. Colorado standardized field sobriety tests (SFSTs) are only 65-77 percent accurate indicators of alcohol and/or drug impairment, and data shows that accurate readings only happen if they are precisely administered and scored (which is rarely the case). Other factors contribute to the unreliability of SFSTs and make it difficult for sober people to pass sobriety these tests:

• Intimidation tactics
• weather conditions
• poor lighting
• uneven road surfaces
• awkward footwear, such as boots, dress shoes or high heels 

Your DUI defense attorney will ensure the prosecutor is not able to present SFST results as reliable evidence in your DUI case.

12. DUI Defense: Simple Bad Driving–Not DUI

Erratic driving such as weaving and speed is often due to inattention or distraction and has nothing to do with DUI. Police may assume bad driving is DUI related. Not all bad or distracted driving results from DUI. It’s not unusual to drop something while driving and try to pick it up. Perhaps you were trying to change a CD, or your passengers distracted you. Eating or entering an address into your GPS is just as likely to cause a moment of poor driving. Any of these activities are something sober drivers do every day and are effective strategies for building a successful DUI defense.

13. DUI Defense: BAC Over the Legal Limit Not the Same as DUI

Blood alcohol concentration (BAC) readings can be affected by factors other than the actual amount of alcohol in your body. Examples of factors when DUI Test devices don’t tell the whole story are:

• the time you finished drinking alcohol and how much is absorbed into your system.
• test equipment errors in Colorado DUI chemical testing.
• process errors in obtaining your DUI blood, breath, or urine sample.
• your medical condition.

People tend to assume that DUI chemical test readings of BAC “over the legal limit” equate to DUI. This assumption is wrong, and your DUI defense attorney will let the prosecution know the reality for your situation.

14. DUI Defense: Error Rates for DUI Chemical Testing

Assuming DUI Chemical testing conditions are perfect, there is still an inherent +/- error rate of between 0.005 percent and 0.02 percent with all Colorado DUI chemical testing equipment. With that in mind, your DUI defense attorney may challenge the results of your BAC test when BAC levels are between 0.08 percent and 0.10 percent.

15. DUI Defense: Sobriety Checkpoint Not in Legal Compliance  

Colorado DUI sobriety checkpoints must comply with strict legal requirements. In Colorado, DUI sobriety checkpoints must comply with strict legal standards. This means:

• supervising officers must organize and oversee each checkpoint.
• field officers stop cars according to a predetermined formula. 
• DUI roadblocks must be publicly advertised.13

Your Colorado DUI defense attorney can challenge your arrest and fight the DUI charges whenever these requirements aren’t satisfied.

16. DUI Defense: Radio Frequency Interference (RFI)  

A Colorado DUI chemical blood or breath testing device can produce erroneously high BAC readings due to Radio Frequency Interference (“RFI”). That’s because electromagnetic static produced by high wires or even buildup on people can interfere with DUI blood and breath device function and produce an erroneously high BAC. RFI or EMI (electromagnetic interference) may be caused by the following:

• vehicles such as patrol cars
• fluorescent light fixtures
• crime lab equipment including automatic door-unlocking devices
• cell phones
• microwaves 

An RFI or EMI disturbances can devalue or even invalidate your DUI blood and breath testing results and are a strong DUI defense strategy (42-4-1301 (6) (IV)(II) C.R.S.), (42-4-1301 (6) (IV)(f) C.R.S.).

17. DUI Defense Due to No Signs of Mental Impairment

The State of Colorado distinguishes between two types of impairment: mental impairment and physical impairment. No sign of mental impairment at the time of your DUI arrest could be a defense to your DUI charges. Law enforcement officers most frequently cite physical impairment as evidence of DUI during Colorado DUI investigations. Physical impairment might include:

• an unsteady gait.
• slurred speech.
• awkward movement and poor coordination.
• red or watery eyes.

Medical and legal experts agree, however, that alcohol and/or drug-related impairment always displays itself in the form of mental impairment first.  If an officer testifies against you citing behavior that does not display  mental impairment, you may be able to challenge the allegations you were DUI under (42-4-1301 (1) (g) C.R.S.) Colorado’s DUI law.

18. BAC Doesn’t Accurately Reflect Impairment

When there’s a discrepancy between your BAC and your alleged impairment, there’s something wrong. When you reportedly exhibited no impairment, or slight impairment but had a high BAC, this is called a disconnect DUI case. If the evidence seems untrustworthy,  you and your DUI defense attorney should challenge the results of your DUI blood or breath test as part of your DUI defense strategy. A “disconnect” between evident impairment and BAC results is a red flag that can point to a successful DUI defense strategy.

19. DUI Defense Due to No Driving

If the police or witnesses did not see you driving, they can’t prove you were guilty of driving under the influence.  Some examples might be:

• no one saw you driving your car in an accident
• the police find you in your parked car

A “no driving” DUI defense should be considered when the police didn’t see you operating the vehicle. 

20. DUI Defense Due to Police Misconduct 

Law enforcement must follow proper police procedures. If you have experienced or witnessed police misconduct and can support your claims with evidence, your DUI charges may be dismissed despite being guilty of DUI! Examples of irregular procedures may include:

• inaccuracies in DUI police reports
• failure to comply with Title 17 procedures 
• perjured testimony

Improperly obtained evidence or manipulations will be suppressed during court testimony. The prosecution may even reduce or even dismiss charges depending on the severity of the misconduct.

Speak to an attorney … 

Call us for help If you or a loved one have been arrested for DUI, DUI per se or DWAI and would like to explore DUI defense options, we invite you to contact us for a FREE Consultation at Right Law Group. We can provide a free consultation in the office or by phone. Our offices are located in Colorado Springs.

Common Questions About DUI/DWI in Colorado

Legal References:

1. For a detailed discussion of breath testing methodology and science, see People v. McNeal (2009) 46 Cal 4th 1183. See also Jeanne Swartz, Breath Testing for Targeting Hardcore Impaired Drivers, American Prosecutors Research Institute (December 2004).
2. American Medical Association’s Committee on Medical Problems — Manual for Chemical Tests for Intoxication (1959). (“True reactions with alcohol in expired breath from sources other than the alveolar air (eructation, regurgitation, vomiting) [i.e., mouth alcohol, a powerful DUI defense] will, of course, vitiate the breath alcohol results…”)
3. People v. McNeal (2009), 46 Cal.4th 1183, 1191. (“When a subject blows into a breath-testing machine, the device measures the amount of alcohol vapor expelled into alveolar spaces deep in the lungs [in theory, that is–in practice GERD, acid reflux/heartburn, or a hiatal hernia can prevent this from happening].”)
4. University of San Francisco, What are ketones and why do I need to know about them? [supplies context for link between diabetic ketosis and DUI]. See also Lawrence Taylor, Drunk Driving Defense 3d Edition, page 685. (“…the likelihood exists of auto-generated isopropyl alcohol upon the introduction of carbohydrates in the presence of ketosis [common in people with diabetes] and that the Intoxilyzer [DUI breath testing instrument] cannot dependably distinguish ethanol from isopropyl alcohol.”)
5. Forcon Forensic Consulting, Alcohol Absorption, Distribution & Elimination [provides context for the phenomenon of rising blood alcohol as a DUI defense].
6. Vehicle Code 23158(b) VC — Right of DUI defendant to make a blood split motion [can be helpful to DUI defense strategy].
7. Title 17 of the Colorado Code of Regulations (“Title 17”), sections 1215-1221 [pertaining to DUI chemical testing].
8. See Terry v. Ohio, (1968) 392 U.S. 1, 20.
9. Penal Code 1538.5 PC — Motion to return property or suppress evidence [can be made as part of DUI defense strategy when there was a lack of probable cause].
10. Miranda v. Arizona, (1966) 384 U.S. 436, 444.
11. U.S. Department of Transportation “DWI Detection and Standardized Field Sobriety Testing”; NHTSA Student Manual (February 2006): VII-3, VII-6.  
12. Eight guidelines for a legal Colorado DUI checkpoint were enumerated by the Colorado Supreme Court in Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 743 P.2d 1299. If not followed, these can be used as the basis for an effective defense to Colorado DUI charges.

About Right Law Group Founded by Managing Partner Alexis Austin in 2018, Right Law Group leverages a hands-on approach to helping people in difficult situations to achieve successful outcomes within the complex DUI law system. Alexis and her team provide the highest level of care and efficiency in the process of guiding people through the criminal justice process. Follow us on Facebook https://www.facebook.com/RightLawGroup/, Twitter https://twitter.com/RightLawNow, and LinkedIn https://www.linkedin.com/company/rightlawgroup/  About Alexis Austin Alexis began her career as a prosecutor in the Arapahoe County DA’s office in 2012, gaining expertise in prosecution and law enforcement tactics, which she and her team now use to win cases for their clients. In 2014, she was promoted to the felony prosecution unit of Pueblo County and earned multiple certifications including one in trial tactics. She has served as an advisor and trainer to law enforcement in Pueblo County and El Paso County, giving legal advice on scenes involving fatalities and aggravated DUI cases. In 2016, she joined the 4th Judicial District Attorney’s office in Colorado. After learning the systems and strategies employed in El Paso County, Alexis then began practicing criminal defense in 2017.