It Depends. Most defendants charged with a First Drunk Driving Offense in Colorado accept a plea bargain and probation. While there may be adverse driver's license consequences associated with pleading to a First DWAI, DUI, DUI Per Se or DUID especially for non-Colorado residents, many defendants conclude that the cost benefit analysis does not justify hiring a private attorney. On the other hand, if you have had multiple prior Drunk Driving convictions, in Colorado or another state, or if you had an high BAC over 0.2, you could be looking at jail or prison. A long driver's license revocation and/or ignition interlock requirement for defendants with priors or a high BAC is also likely. Out-of-state Residents with more than one Drunk Driving conviction must also consider that the "Interstate Commission for Adult Offender Supervision" Compact may require them to remain in Colorado until their home state allows them to transfer their case or until they complete any probation or parole sentence! If any of these circumstance apply to you the cost benefit analysis shifts and you should definitely consult with a DUI attorney a call BEFORE YOUR COURT DATE.

Particularly important to any successful DUI defense is an understanding of substantive and constitutional restrictions under which the Government must operate in prosecuting you. The fact is that many Drunk Driving defendants have their legal rights violated by the police and/or the prosecutor in ways that could lead to an dismissal, acquittal or favorable plea bargain. Few District Attorneys or Judges will to tell you that the case against you is critically weak because of a violation of your legal rights by the Police or Prosecutor. Many Defendants needlessly go to jail and prison or lose their driver's licenses for extended periods of time because they figured that there was nothing that competent legal counsel could do to prevent a conviction. Having been primarily a Colorado DUI Lawyer for nearly 30 years, I would advise anyone facing a Colorado DUI to seriously consider consulting an experienced DUI attorney before speaking to a Prosecutor. In most instances a consultation cost you nothing. If you can afford a private attorney, going it alone or relying on a public defender is not a good option. The reasons are simple, Colorado DUI law is complicated and an attorney specializing in Drunk Driving Law can raise legal and constitutional defenses that a non-lawyer or public defender would never think of. If your freedom, your job and your driver license are valuable to you, consult a dedicated Drunk Driving attorney before you go to court. Further, judges routinely require unrepresented DUI Defendants to travel back in forth to the county where the DUI occurred for scheduled court appearances. Having an attorney to do the leg work of defending your case can pay for itself by saving you lost work days, missed medical appointments and if you live out-of-state, travel expenses. Finally, there is always the possibility that your case will benefit from a Preliminary Hearing, Motions Hearing and/or Jury Trial. Are you really going write and argue Fourth or Fifth Amendment Motions, write jury instructions and conduct a Jury trial yourself?

Drunk Driving crimes in Colorado range from the Driving While Ability Impaired (DWAI) and Driving Under the Influence (DUI, DUI per se and DUID) to the more serious and less common charges of felony DUI, Vehicular Assault and Vehicular Homicide. The difference between Impaired driving and Driving Under the Influence is the degree that a person's ability to drive is effected by alcohol and/or drugs. Impaired driving occurs when a person is less able to drive safely than they normally would be, even to the slightest degree. A person Drives Under the Influence when they are substantially incapable of driving safely due to the consumption of alcohol, drugs or both. DWAI and DUI Per Se both have blood alcohol concentrations (BAC) associated with them. A person is considered to be DWAI over a 0.05 BAC in Colorado. A person is DUI Per Se above a 0.8 BAC. DUID is a DUI with one or more drugs in the driver's system. With the exception of a permissible inference of intoxication for marijuana at 5 nanograms per milliliter there are generally no established blood levels at which a person is considered under the influence. Most prosecutors will argue that any drugs in a driver's blood renders them unsafe. Despite this bias, several years ago I won a jury acquittal for my client, after she drove with a very high dosage of oxycontin in her blood. I did this with expert testimony about how narcotics work where a driver has a legitimate health issue and is under a doctor's care and supervision. It can be done!

Most people convicted of DWAI, DUI, DUI Per Se and DUID are sentenced in the misdemeanor penalty range on a first, second or third conviction for drunk driving. Misdemeanor Drunk Driving sentencing in Colorado is progressive. Progressive Sentencing means that defendants with prior Drunk Driving convictions, two convictions within five years or high BACs are sentenced more harshly and are subject to mandatory sentencing. For sentencing purposes, behaviors that constitute a prior Drunk Driving offense may not involve alcohol or drugs. For, example, sentencing provisions for Second, Third and Subsequent Drunk Driving convictions take into account prior convictions for "Driving Under Restraint" (where the Restraint arose because of a Drunk Driving incident) regardless of whether the defendant was intoxicated when he drove under restraint. Initial sentences for Misdemeanor Drunk Driving start with probation and extend up to as much as one year in a County Jail depending upon whether a DWAI, DUI, DUI Per Se or DUID is involved and whether there were prior Drunk Driving convictions. Third or subsequent offenses carry a mandatory minimum jail sentence of sixty (60)) days plus a one year sentence that is suspended on condition that the defendant successfully complete probation. The minimum mandatory sentence must be served flat, i.e., it must be served without time off for good behavior or trusty status, the convicted person is, however, entitled to credit for time served prior to conviction. Home Detention and/or Work Release may be available under certain conditions for Misdemeanor Drunk Driving Convictions. A period of up to two years probation may be imposed for a first DWAI. The two year probation period must be imposed for Second, Third or Subsequent Drunk Driving Convictions unless the individual is sentenced to Department of Corrections for Felony DUI and therefore is required to complete parole. A court may also sentence Third or subsequent offenders to In Patient Drug and Alcohol Treatment as a condition of Probation for a period not less than the mandatory sentence of sixty days. Table One below sets forth the various penalties an individual convicted of misdemeanor drunk driving in can expect in Colorado.

A person unlucky enough to be convicted of DWAI, DUI, DUI Per Se or DUID who has three or more separate convictions for DWAI, DUI, DUI Per Se, DUID, Vehicular assault or Vehicular Homicide, can expect to be sentenced for a class 4 Felony. The Class 4 Felony Sentencing range is Two (2) to Six (6) years confinement in a State Prison or Community Corrections. The Court may sentence first time felons to probation after a period of incarceration in the County Jail, Probationary sentences, if granted, require a mandatory jail sentence of 90 or 120 days. Jail time associated with a grant of felony probation, must be served "flat" i.e. without time off for good behavior or trusty status. Credit for time served prior to conviction may be applied towards the minimum mandatory jail sentence.(see above).

The Felony DUI statute allows for non-prison sentences unless the Court finds that a Department of Corrections Sentence is the most suitable under the facts and circumstances of the case. In rare instances persons convicted of felony DUI may be allowed to participate in a private residential in-patient program after serving the mandatory period of confinement in a county jail described above. In addition, Felony probation sentences require the Court to impose a suspended one year jail sentence to be imposed if the individual fails to complete required probation requirements such as alcohol education and treatment, community service, etc. The court may impose up to two(2) years of felony probation in addition to the initial sentence for the purpose of monitoring sobriety. The Court may require the use of an ignition interlock device. A Person with two or more prior felonies in Colorado or any other state or who has been convicted of a Felony within the last ten years may not be sentenced to felony probation without the District Attorney's recommendation. Finally, Failure to successfully complete a probation sentence usually means re-sentencing to a higher level of punishment -usually community corrections or prison.

If a person convicted of felony DUI is ineligible for probation or the court otherwise deems prison sentence appropriate, that person will be sentenced to either community corrections or the Department of Corrections (prison). Community corrections is often referred to as a "halfway house." Community Corrections provides a less restrictive sentencing alternative, with limited privileges not available in Prison. In the DUI context Community Correction combines residential supervision and treatment with the expectation that the person sent to a Community Correction facility will change his or her behavior without the need for a harsher Prison sentence. Failure to abide by restrictions in Community Corrections usually mean being sent to Prison to serve out you sentence.

Sentences to Community Corrections or DOC for Felony DUI must also serve a mandatory period "Parole" upon release of up to three years. Parole is similar to Probation except that during the Parole period the Defendant is technically in "custody" of the Department of Corrections. Parole gives a parolee the chance to become accustomed life outside of Prison and prove that he or she is sufficiently reformed to be released back into society. In other words Parole allows the state to monitor the Parolee to assure that the behaviors that led to his or her incarceration have been corrected. A Parolee can be returned to prison after receiving "administrative due process" for violating the provisions of parole.

"Vehicular Assault" in the Drunk Driving Context means injuring another person, even a passenger, while Driving Drunk. A person convicted of this crime is guilty of either a class 5 Felony if the person was DWAI or a class 4 felony if the person was DUI. "Vehicular Homicide" in the Drunk Driving Context is where a person is killed in a Drunk Driving related accident. Persons convicted of Vehicular Homicide are guilty of a class 4 or class 3 felony depending upon whether they were DWAI or DUI at the time of the incident. These types of Drunk Driving convictions carry with them penalties of up to 32 years in prison with 3 years mandatory parole upon release.

Another common charge associated with Drunk Driving is Child abuse. "A person commits child abuse if such person causes an injury to a child's health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health...." The basis for a child abuse charge is usually Drunk Driving with a child in the back seat of yoru vehicle. The crime of Child Abuse is punishable as a misdemeanor where no death or injury occurs or where injury to a child does not constitute serious bodily injury. Child Abuse can be a felony where death or serious bodily injury of a child results or where there have been prior convictions for Child Abuse, in Colorado or another state. In Colorado Child Abuse is an "Extreme Risk crime." This means the misdemeanor sentence range for Child Abuse is expanded by six months. Similarly, Felony Child Abuse is subject to extended sentencing ranges based upon the level of felony.

Except in the case of willful violations of probation such as driving under restrain, I have a nearly perfect record of helping my clients avoid jail time for probation violations. I therefore recommend that you give me a call if you are charged with violating your probation.

Misdemeanor DUI sentences also carry either a permissible two (2) year period of probation for DWAI First or a mandatory two year probation period for second offenses onward. The stated purpose of these lengthy probation periods is to allow for supervision of the Defendant to insure his or her alcohol or drug use are being addressed. The mechanisms used are alcohol /drug education and treatment, community service and in most cases mandatory sobriety. All of these "remedial steps" are monitored by the Court's Probation Department or by private contractors who report to the Court. During the period of probation the defendant may be subject to "Monitored Sobriety". Monitored sobriety may consist of electronic alcohol monitoring or random urine samples (UAs) that are tested for drugs, alcohol or both. Current ankle monitors continuously sniff the probationer's sweat and will raise an alarm if alcohol is detected. If there isn't sufficient progress towards finishing probation in a reasonable time, or if violations occur such as, drinking, drug use or new criminal cases, the Probation Officer may file a complaint with the Court. The Defendant is then summoned to return to Court and after an opportunity for a hearing before the Court, if the probation violation is sustained, sanctions may be imposed. Such sanctions include incarceration, posting of bonds, increased supervision etc. Failure to abide by the probation conditions imposed by the Court can result in an additional year in jail with no credit given for time served as a result of any initial sentence sentence. Some of the ways that person can violate probation include, but are not limited to:

• Being charged with a new criminal offense
• Driving under restraint
• Failing to provide required UAs or BAs.
• Tampering with or removing an ankle monitor
• Testing positive for drugs or alcohol during Monitored Sobriety
• Failing to complete or being expelled from Alcohol Education and Treatment
• Failing to attend probation Appointments or Court dates
• Failing to perform community service
• Failing to pay Fines and Court fees

In addition to any sentence of probation or incarceration, whether in County Jail, Community Corrections or DOC facility, Drunk Driving Defendants lose all driver's license "privileges" for period of at least Nine (9) months if you are convicted of DUI or one (1) year if convicted of DUID. Subsequent convictions can result in longer licene revocations depending on the timing and driving history of he Defendant. The period of license loss can be longer when combined with other statutory driver's license penalties, for example, three Drunk Driving Convictions in a lifetime will extend the minimum period of license revocation to two years. A person may also lose driver's license privileges if DMV makes an administrative determination that they drove with an alcohol level in excess of 0.80 BAC or refused testing. During the period of Driver's License revocation, Colorado will place a hold on the person's Driver's License that other states can access by computer. Most states will then deny that person a driver's base upon Colorado's hold. This system is administered by the American Association of Motor Vehichle Administrators (AAMVA). The amount of time the Colorado Department of Revenue, Motore Vehicle Division(DMV) will enforce a hold on a person's driving privileges can be much longer depending upon other statutory factors that DMV is required to consider. A non-exhaustive list of factors control the length of your driver's license restraint include, but are not limited to the following:

• Whether you were under 21 when the Drunk Driving offense occurred;
• The number of prior drink driving offenses;
• The period over which any prior offenses occurred;
• Whether you are enrolled in or have completed an "approved" alcohol Education and Treatment program;
• whether you refused testing;
• Other restraints against your driving privilege.

Suppose you leave a night club and realize that you're too drunk to drive. Is it safe in Colorado to start you car so that you can stay warm and listen the radio while you're taking a nap s in order to sober up a bit? The answer is a definite NO! Section C.R.S. 42-4-1301 makes it a crime in Colorado to drive while impaired or intoxicated. While the statute does not define driving, the Colorado Supreme Court clarified this issue in Brewer v. Motor Vehicle Division, Department of Revenue, 720 P.2d 564(Colo. 1986). In that case, the Court found that "Driving" for the purposes of the DUI Driver's License Revocation Statute meant "actual physical control of a motor vehicle upon a highway." Later in People v. Swain, 959 P.2d 426, (Colo. 1998) the Court dispelled any doubt about the meaning of "driving" after Swain was convicted of DWAI after police found him sleeping in his pickup on the side of the highway. While his truck was not running, the keys were in the ignition and the radio was playing. The Supreme Court reversed a lower court ruling that Swain had not been driving by stating: Actual Physical Control" is present when a person exercises bodily influence or direction over a motor vehicle; which is to be decided by a "totality of the circumstances." The Swain court gave a list of five factors that a jury may use to decide whether a person was in actual physical control.

Because a jury gets to determine "Actual Physical Control" it is possible to beat a DUI charge by convincing six people that the defendant did exercise control of the vehicle under the "totality of the "totality of the circumstances" test. For example I was able to convince a jury that included a Colorado State Patrol Trooper that my client was the victim of a practical joke when he was found sleep in his truck, parked in the middle of Hwy 119 with the keys in the ignition and the vehicle's lights on. In another instance I successfully argued to the jury that the fact that the keys turned to the ACCESSORY ignition position of my client's modified camping van while he listened to the radio was not indicative of "Driving" because the van was being used as a his domicile while he was at a lake fishing. Thus, while it is possible to disprove actual physical control, the outcome of any argument on this subject is greatly dependent upon the individual facts of the case and the skill of your attorney.

In order to answer this question one must first understand the "Fifth Amendment Privilege Against Self Incrimination." The "Miranda Warning" arose from two United Supreme Court cases, Escobedo v. State of Illinois, 378 U.S. 478 (1964) and Miranda v. Arizona, 384 U.S. 436(1966). In both cases, the court observed:

"The prosecution may not use statements...stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprive of his freedom of action in a significant way."

In order to give effect to the Privilege the Supreme Court went on to fashion the advisement seen in countless TV shows and movies since the 1950s, "You have a right to remain silent...etc. Miranda applies only if two conditions are met: First, the defendant must have been in custody or significantly deprived of freedom of action; second, there must be "interrogation" i.e., formal questioning. In Colorado drivers are required by C.R.S. Section 42-4-1301.1 to provide a blood or breath sample when requested by a police officer with probable cause to believe that the person is Drunk Driving. In People v. Brown the Defendant urged that the requirement was unconstitutional because it violated his right against self incrimination. The Court held that providing a chemical sample (blood or breath) did not implicate the 5th Amendement. The Court reasoned that merely providing a chemical test is non-testimonial, and so does not trigger rights under Miranda. The ruling in Brown does not mean that the fact that a defendant was not given Miranda warning is not useful. Most Americans expect Police to give defendants a Miranda Warning when they are arrested. Regardless of whether the Police are required to give the warning it is the Jurors' expectations that are important; failing to provide a Miranda wWrning creates an appearance of unfairness that a skill attorney may be exploited at trial. However, the fact that Police did not give you a Miranda warning will not usually get your case automatically dismissed!

Colorado's "Drunk Driving" laws are contained in various sections of Title 42 of the Colorado Revised Statutes. Part 4 of Title 42 contains the Criminal drunk driving provisions. Section 42-4-1301 defines behavior that constitutes Drunk Driving in Colorado. Section 42-4-1301.1 contains Colorado's Express Consent Statute that mandates testing of suspected Drunk Drivers. Section 42-4-1307 sets forth the penalties the Court may impose upon conviction for the offenses described in section 42-4-1301. Driver's license consequences can generally be found in part two of Title 42 e.g., section 42-2-126 describes the DMV administrative driver's license revocation process. Sections 42-2-132 and 42-2-132.5 describe the length of license restrains and interlock requirements after reinstatement. The Colorado General assembly is responsible for enacting the Colorado Drunk Driving statutes, however, the Colorado legislature cannot anticipate every situation that may arise in the Drunk Driving context. Accordingly, both the Courts and DMV have interpreted the legislative framework with caselaw, Rules and Regulations that expand on the work of the Legislature. DMV's regulations can be found on the Colorado Secretary of State's Website in 1 CCR 204.

In addition to Colorado State Government agencies such as the Courts and DMV, numerous Federal and nongovernmental organizations (NGOs) author and contribute many of the provisions contained in Colorado DUI Law. For example. the actual level at which a person is considered to be "Intoxicated," 0.08 BAC, is mandated by the Federal Government via the Federal Department of Transportation's National Highway Traffic Safety Administration (NHTSA). Similarly, the field sobriety tests that police officers administer to suspected Drunk Drivers are the result of studies directly funded by the U.S. Government. The requirement that repeat Drunk Driving Offenders and Offenders with high alcohol levels install Ignition interlock devices on their vehicles comes from the Federal Government. Victim Impact Panels that every convicted drunk driver must pay for and attend are administered by Mother's Against Drunk Driving (MADD). A person convicted of a Drunk Driving Offense in Colorado will likely attend alcohol classes and treatment at a private "DUI School" licensed by the Colorado Division of Behavioral Health. Finally, the the American Association of Motor Vehicle Administrators (AAMVA) is a Non-Governmental-Agency that maintains computerized data bases of persons under driver's license restraints in the United States. This data base is used to deny licensing of anyone "on hold" by another state for Drunk Driving related offenses. These are only a few of the entities who determine the content of the content of Drunk Driving Laws and the consequences for persons who violate those laws.

Did you know that by law a Colorado DUI, DUID or DWAI cannot be dismissed if there is a chance that the DA can obtain a conviction?

Call us for a free consultation before your court date or DMV hearing! Remember, the Government wants to convict you, place you on restrictive probation and revoke your driver's license - the DMV and DA are not your friends!