Denver DUI lawyer / just don't do it

There is a story on Bitter Lawyer today about someone who drove drunk to pick up her boyfriend from the drunk tank. He had been arrested for DUI as well. And when she got there, they noticed she was drunk. She took a breath test and failed, and was charged with DUI as well. As much as we talk about minutiae on the Denver DUI lawyer blog, stuff like what a vehicle is or the different types of DUI offenses, the real lesson is to just not do it. A taxi sounds expensive at the time. But once you've added up the cost of a Denver DUI lawyer, the possibility of a night in jail, paying the bail bondsman (even if you are not guilty that guy still gets to keep his share) the cost of fines (which can approach $2000 in some cases) the costs of probation (which you most certainly will have to foot yourself) and the cost of a potentially permanent criminal record, it's way cheaper to have planned ahead.

Denver DUI lawyer / what is a vehicle

One of the common elements to all drunk driving offense, whether it be a DUI or DWAI is it has to involve a vehicle. Whether one is intoxicated on alcohol or other drugs, you can't be convicted of drinking and driving without operating a vehicle. In most cases, your Denver DUI lawyer will not contest this element of the offense, since most people are pulled over when driving a car. As anybody can tell you a car is a vehicle. So that means you won't get much traction telling the judge that your 68 Thunderbird was not a vehicle. However, there are some cases where the issue of whether it was in fact a vehicle you were operating will make a difference.

In this case, there are two different definitions that matter. For the purpose of your driver's license, it must be a motor vehicle. That's because the Colorado DMV only cares about motor vehicles. So to save your license, your Denver DUI lawyer can argue to the Department of Revenue that you were actually driving something that was human powered, and thus not under DOR/DMV jurisdiction. A motor vehicle under the DMV regulations is otherwise pretty broad. It includes tractors operated on the highways, and scooters. For the purpose of driver's license proceedings and suspensions, then, a bicycle is not a motor vehicle. So you can't have your license suspended for drunk "driving" a bike or other human powered vehicle. You also can't have your license suspended if you refuse a breath test when driving a bike or other human powered (like a pedi-cab I suppose).

On the other hand, the definition is somewhat different for the criminal charges. In those cases, a bike can be a vehicle. So you can be convicted of DUI or DWAI for drunkenly operating a bicycle, but can't have your license taken away.

Denver DUI lawyer / elements of drunk driving offenses

In the past, I've talked about one concern of Denver DUI lawyers, which is that there is no particular number to be convicted of DUI. For both DUI and DWAI, the breath test can be used as evidence against the defendant. However, there doesn't even have to be a breath test to be convicted of either one. Instead, the way it works (as with most crimes) is that these offenses are made up of a series of elements. The prosecution has to prove these elements beyond a reasonable doubt. If your Denver DUI lawyer manages to show that any of the elements were not proven, the jury or judge must acquit.

Generally, a DUI or DWAI has a few elements. The first couple are essentially generic to every crime:

(1) This defendant (meaning the person who is charged with the crime must be the guy who did it. Showing that it was someone else who was driving drunk will get you acquitted for good reason).

(2) In this jurisdiction (meaning it happened in the county where it is charged. Typically this is not fatal to the case. A case can simply be transferred to the county where it occurred should your Denver DUI lawyer choose to contest it).

(3) Operated a vehicle. This can be somewhat complex, as the definition of vehicle can vary somewhat. Also, the definition of operating is not necessarily what you might think it is. I plan on writing about this later in this blog. Still, in most cases the person is driving a car and is pulled over. That's a fairly clear cut situation and it is difficult to contest.

(4) This is where we get to intoxicants. Essentially, there are two requirements here. First, the defendant must have consumed some intoxicants. This can be alcohol but can also be other drugs. Second, the defendant must surpass some level of intoxication. For DUIs, this means he was substantially incapable of excercising clear judgment or motor skills to competently or safely operate the vehicle. That basically means you have to be pretty damn swishy to get a DUI. For DWAIs, you only need to be impaired to the "slightest degree" so you can't operate the vehicle as well as you would if you were sober.

Usually a drunk driving charge comes down to the element in part four here. However, if you and your lawyer can prove that ANY of these elements was not present, or if the prosecution fails to prove any of them beyond a reasonable doubt, the judge or jury must acquit.

Denver DUI lawyer/ DUIs for drugs

I suppose this is sort of a series on the Denver DUI lawyer blog about reasons that the breath test and blood alcohol level aren't everything. First I talked about how you could get a DUI despite a low BAC, then the lesser offense of DWAI in Colorado. This post I'm going to talk about how you can get a DUI or DWAI conviction for drugs that aren't alcohol.

As the billboards around town have doubtless reminded you, drivers can get a drunk driving conviction for being intoxicated on any drug. That could be cocaine, marijuana, codeine or oxycodone. The standard is exactly the same as it is for alcohol. If you lack the basic capacity to operate the vehicle safely, that is sufficient to convict you of DUI. If your ability is impaired to the slightest extent, you can be convicted of DWAI. If you are pulled over by a police officer and suspected or charged with either, you need to call a Denver DUI lawyer right away.

Drinking and driving charges for drugs other than alcohol are quite a bit more complicated than those simply for alcohol. There is not a particularly reliable test to see if somebody has been consuming marijuana. Marijuana collects in the fat cells, and is only purged over a course of days or weeks. Alcohol is metabolized in a matter of hours, and the amount of alcohol in the body gives a good estimate as to how intoxicated a person is. A marijuana test does no such thing.

Other drug tests are similar. They can detect traces of the drug in a person's body, but cannot really tell if you are intoxicated at the time. Because of this, there is no concrete score on a blood test for DUIs for drugs other than alcohol. Also because of this, the case is much more complex.

Your Denver DUI lawyer cannot focus merely on the breath test. The evidence against you is likely to include road side sobriety tests, the cop's initial observations of your behavior, and anything you tell the police. So if you are suspected of DUI for alcohol or another drug, don't give them anything that can be used against you. Politely decline to answer questions or take a portable breath test or roadside sobriety tests.

Denver DUI lawyer / is it a felony?

One of the most common queries people use to find my Denver DUI lawyer website is "is a DUI a felony" or some variation of that. The short answer to that is "no." A DUI is a misdemeanor. The longer answer to that is "why does it matter?" As any Denver DUI lawyer will tell you, the distinction between a felony and a misdemeanor is pretty arbitrary. Under the United States Constitution, any crime punishable by more than a year in prison is considered a "felony." This matters in terms of certain constitutional rights, like your right to a jury and right to have an attorney provided. In terms of what actually happens in the end, it means very little.

In many cases, even with felonies, the jail sentence is "suspended." That means the defendant only serves part of it or no time at all. The rest of it is waived if he fulfills certain conditions of probation. So for certain felonies, especially when non-violent in nature, could have minimal or no jail time.

By contrast, certain misdemeanors can carry more severe consequences than felonies. That's particularly the case where drugs or alcohol are involved. Some misdemeanors for disorderly conduct can even result in sex offender punishment, but that's a different story! DUIs fall within this category. Additionally, DUIs have more severe consequences because they involve cars. Cars are pretty dangerous in any case, and cause a large number of deaths nationally. That danger is made worse by the presence of alcohol. A third issue making DUIs particularly severe, and particularly difficult for Denver DUI lawyers to fight, is that they are a recent priority of prosecutor's offices. The plea bargaining policy of prosecutors makes it very difficult to
get the deputy district attorney on your case to agree to a more favorable plea than a DWAI (in Colorado anyway.

On top of the prison and fine sanctions, the impact on your license makes DUIs even more severe than many other misdemeanors. Your license can be immediately suspended, in certain cases for up to a year. Additionally, there is the cost of the SR-22 license, the increased cost of insurance, and possibly points that will go toward an additional suspension for further citations. So if your question is whether a DUI is a felony, the short answer is no (at least in Colorado). The long answer is it's still pretty damn serious.

Denver DUI lawyer / the chemistry of PBTs

I've written here before about portable breath tests. These tests serve an important role in establishing probable cause for a police officer to arrest a suspect. The other day while researching an issue unrelated to being a Denver DUI lawyer (I swear!) I found an interesting piece on the chemistry that goes in to these portable breath tests. Denver DUI lawyers generally know that these roadside handheld tests are bunk. Even the more accurate Intoxylizer that is used at police stations in Colorado has a fairly decent margin of error. However, here's further evidence that the portable breath tests are fairly unreliable (the whole thing on hangover chemistry is fairly interesting, though they get into the part about PBTs somewhere in the middle of the second video.

The essence of the good professor's point is this. Basically even though the PBT is able to spit out a number for an estimated BAC, there are a ton of different things going on to get that number. First, the alcohol in the breath combines with a chemical in the PBT tube to form a compound. This chemical creates some sort of orange hue on a cotton swab inside the the tube. Theoretically, the "oranger" the hue the more concentrated the alcohol in the breath. However, a burp, mouthwash, recently consumed alcohol and other things can throw off the reading. These are all places a good Denver DUI attorney can attack the probable cause from the PBT and possibly get the case thrown out.

The machine then automatically has to figure out how "orange" the cotton swab has turned. It then gives the operator a number down to the nth decimal. Now how exactly a machine that fits in your back pocket is supposed to look at a piece of cotton and decide how orange it is, then give a number down to the 100th of a percent or something is something of a mystery for lay-people and Denver criminal defense lawyers alike. But somehow the machine does it. And somehow this method gets a lot of people arrested, along with the roadside sobriety tests, which I'll talk more about later.

In any case, the PBTs are an unfortunate fact of life for people charged with DUI.

Denver DUI lawyer / DWAIs

Yesterday I mentioned that there is no magic number to be convicted of DUI in Colorado. Even a Intoxylizer or portable breath test that is below .08 or any other number can result in a conviction for DUI. That's because the BAC is not mentioned in the statute. All the state has to do is prove you were incapable of operating the vehicle at the time you were stopped.

This post is about another bugaboo for Denver DUI lawyers. And like DUI, BAC and others, it's another alphabet soup entry: DWAI. DWAI stands for driving with ability impaired. The Colorado Revised Statutes define this as operating a motor vehicle where your ability to do so is impaired to even the slightest degree, in comparison to what it otherwise would be. I know that sounds pretty confusing, you'd probably have to be a Denver DUI lawyer to figure it out. However, maybe you did catch the key part: "to the slightest degree." That means even the tiniest bit of intoxication can render you guilty of DWAI.

The guidelines mention that a blood alcohol content between .05 and .08 may establish a presumption that the driver was impaired. Of course, as I mentioned previously, there is no such thing as a magic number in these cases. And this is particularly the case with DWAIs, because to the slightest degree is much easier to prove than "substantially incapable." So even a slightly sub-par (in the cop's opinion) on a roadside test, or some observations of less than perfect motor skills may be enough to get somebody convicted of DWAI. Because DWAIs can be such difficult charges to fight, and because they, like DUIs, can have serious and lasting consequences, it's important to call a Denver DUI lawyer as soon in the traffic stop as reasonably possible.

Denver DUI lawyer / there is no magic number

Yesterday I talked about a common misconception for laypeople about traffic stops: that the police need a warrant to search or arrest a suspect. Today I'll talk about another mistaken belief people hold: that they can "blow" their way out of a drunk driving conviction. Most of the cases that come to me as a Denver DUI lawyer are going to have a breath test as part of the evidence. A big part of my job is dealing with this: either trying to have it thrown out, or getting people to believe it is not important.

However, some people seem to think that because the breath or blood test is important, it is everything. The bottom line is you do not need to test over a .08 to get a drunk driving conviction. Your Denver DUI lawyer will have a much easier time arguing for an acquittal if that's the case, but it isn't everything. In fact, the number .08 is nowhere in the statute for DUI. What the Colorado Revised Statutes say is you have to have consumed alcohol or drugs, such that you are substantially incapable of exercising clear judgment, sufficient physical control or due care in safe operation of the vehicle.

The .08 number is simply designed to make it easier and more digestable for juries to understand. If you are at or above a .08, the jury is allowed to make the presumption that you were incapable of driving safely. However, a Denver DUI lawyer can still argue against that presumption, though they probably won't be betting their house on the outcome (not that any lawyer should be trying to guarantee results).

Likewise, a test under .08 does not guarantee the defendant anything. The prosecution can still introduce a variety of different pieces of evidence showing you may have violated the statute despite your BAC. They can argue that based on the field sobriety tests and the officer's observations that you were in violation of the statute. That means there is no silver bullet to get DUI charges dropped. If you get in trouble, don't hope to beat it like that. Don't submit to tests and call a lawyer right away.

Denver DUI lawyer / don't they need a warrant?

One of the most common misconceptions that I hear as a Denver DUI lawyer is that people think police officers need a warrant to search or arrest you. Having already talked about reasons the police can arrest you, I'm going to zero in a little bit more on warrants.

There are two types of warrants: a search warrant and an arrest warrant. In the case of a DUI or any other traffic offense, it is very unlikely that the lack of an arrest warrant will be a problem. You Denver DUI lawyer is very unlikely to contest that there was no arrest warrant. That's because a police officer can arrest someone if they have probable cause that a misdemeanor was committed in their presence, with or without a warrant. A DUI is a misdemeanor. If they establish through their roadside sobriety tests and observations that there was probable cause you were driving under the influence, the arrest is probably OK. Thus, you Denver DUI lawyer will be more likely to contest the lack of probable cause rather than lack of a warrant.

A search is more an issue where law enforcement decides to search your car. Sometimes, in looking for more probable cause to base an arrest on, the police will order a search of your car. Again, however, it is very unlikely that the lack of a warrant will be a problem. That's because of some very old, and very strange, reasoning from the Supreme Court. Law enforcement does not need a warrant where it would be hard to get one. Back during prohibition, the United States Supreme Court ruled that essentially every case with a car made it difficult to get a warrant. In those cases the police stopped suspected bootleggers. Because it would have taken several hours to drive and see a judge to get a search warrant, the court said the police did not need a warrant. That's because the cops would either have to let the bad guys drive away (and presumably dispose of the evidence) or arrest them.

Now this reasoning makes almost no sense. It is possible to get a warrant by phone, and many states have judges on duty all night long. So there is really no reason that it has to be hard to get a warrant to search somebody's car. Of course, with the Supreme Court going on 30 years of rolling back instead of extending rights for criminal defendants, it's unlikely this outdated rule will change. The upshot is the police essentially never need a warrant to search your car.

Denver DUI Lawyer / don't talk to your friends either

I've written here and elsewhere about why it is crucial to not talk to the police if you have been charged with a crime, and think you might be put on trial. This is also true specifically in DUI cases. If you are pulled over and feel uncomfortable with the questions being asked, tell the law enforcement officer you want a Denver DUI lawyer. It doesn't matter who you say, or if you even know a lawyer personally or know an attorney's name. Although the most important thing to remember off the bat is to not talk to the police, there are other ways you can significantly hurt your case.

One of those is talking to anybody but your Denver DUI lawyer about the case. Anything you tell your attorney is confidential. There are laws and rules of evidence and even a constitutional aspect to the idea that you can't be forced to talk about anything, and your attorney can't be forced to testify against you. In fact, you can prevent your attorney from saying anything. The information you tell your lawyer is protected by your attorney client privilege, and ancient right. However, there are plenty of ways you can screw it up.

The attorney client privilege is your privilege. If you go off and blab to other people who are not your lawyer, the privilege does not protect that conversation. Also, there are rules that make it so that the fifth amendment does not protect what you said to them. So in the end, your friends could be subpoenaed (forced to come to court) to talk about your conversation with them. I know it seems unlikely; you think a DUI is pretty minor and there is no reason the District Attorney would be subpoenaing friends of the defendant. Yes, it's unlikely to happen. However,
stay in the habit of only talking to your Denver DUI lawyer about your case.

Denver DUI lawyer / consequences matter

As has been detailed elsewhere, the a freak incident can mean the difference between assault and manslaughter. The same applies to DUI and traffic cases. Although most DUI cases just involve something like the Colorado summer crackdown, where the police find the driver weaving around (or at least say they do), pull the driver over and charge him with a DUI. At this point, the Denver DUI lawyer who gets the case has to decide how to either show the jury that the charges are bogus, take a plea, or get some of the evidence thrown out. However, a whole class of DUIs and DUI related cases also involves aggravating circumstances.

The first level of consequences involves the amount of damage caused by the crash. Obviously for an incident with more minor consequences, it's fairly likely the officer will simply let you go. However, if the consequences are more severe, your Denver DUI lawyer could be facing a tough case. In certain circumstances, a crash caused by drinking and driving could even be grounds for a murder conviction. That's because the only real difference between murder and manslaughter is state of mind. The courts have ruled that driving while really, really, really, really drunk constitutes a state of mind so reckless, that there is no real difference between that much recklessness and killing somebody intentionally. That said, the guy in the most read case who was convicted for murder was driving the wrong way on a divided interstate highway.

That said, if you are even slightly impaired and somebody ends up dead, a conviction for manslaughter is fairly likely. That's because the standard for a conviction for manslaughter requires much less proof in terms of intent. It is much more like a showing of liability under civil law. So if you end up in a car crash after having a drink, you will badly need a Denver DUI lawyer on your side.

Denver DUI lawyer / be courteous to cops

As a Denver DUI lawyer, I know how difficult police officers can be for those who they detain. Even if they are just trying to do their jobs, their job basically involves getting information out of you that you don't want to disclose, and probably get you in trouble for it. Even for an innocent suspect, just the efforts to get incriminating evidence from them is intrusive and obnoxious, and can result in time spent in a holding cell or other unpleasantries. So when I say be nice to police officers, I know how difficult that can be. However, it's one of the most important things you can do to make sure your trip through the criminal justice system does not turn disastrous.

Although you have a variety of rights protecting you against search and seizure, those rights are not practicably enforced on the spot of the search. Instead, under a legal rule called the "fruit of the poisonous tree," any evidence gathered because of an illegal search can not be allowed as evidence in a trial. Unfortunately there's nothing you can do about that at the scene of a traffic stop All you can do is voice your objection politely and let your Denver DUI lawyer fight it in court.

So being rude at the scene of the stop will get you nowhere in a DUI case. There are two key reasons to be nice to the police. First, because that is how a judge and jury expect folks to act around cops. If the officer testifies at trial that you were disrespectful or belligerent, the jury may see that as the actions of a guilty person, or simply take a dimmer view of your case for being disrespectful. Second, police officers are people too and do not like being disrespected. Because of their position of power in a traffic stop, officers can make your life much, much worse right away if they think you are acting sour towards them. They can put you in jail for a period of time, perform a bunch of searches you will not enjoy, and ask many questions you have little interest in answering. So make sure to be nice to the police officers no matter how frustrating it can be to be stopped. Politely inform them you do not want to answer questions and ask for a Denver DUI lawyer right away.

Denver DUI lawyer / reasons to arrest you

As I stated in my blog post about handheld breath tests, one of the best ways a Denver DUI lawyer can get a case dismissed or charges reduced is by proving that the police officer did not have a reason to arrest you. In that post, I said the officer needs "probable cause," or basically needs to observe something that shows a pretty fair chance that a crime was committed. So if you were pulled over for a broken tail light then arrested for a DUI, does that mean your Denver DUI lawyer has no chance of winning with this argument? Not exactly. And this is where it gets complicated.

Basically, you can't be arrested for a broken tail light. The officer can pull you over and ask you a few questions, then write you a ticket, but since it is a regulatory offense (really it is more civil than criminal) he can't arrest you without something more. This goes back to an interesting divergence in the law: the Supreme Court created something called a "stop" which requires less evidence of a crime having been committed than an arrest. So if the cop sees you with a tail light out, or swerving slightly in your lane, or pretty much anything else he thinks is "suspicious," you can be stopped. All the stop does though is give the officer a quick opportunity to look for probable cause. What this essentially means is looking at your license and registration, checking to see if you "look drunk," and looking inside the car to see if there are beer bottles or something. He can also ask you to get out of the car. Beyond that, you have no obligation to answer questions, or perform roadside sobriety tests. So don't do either. If you feel the officer is fishing for a reason to arrest you, you can either ask if you are free to go (with a possible violation ticket) or ask for a Denver DUI lawyer. That makes your situation crystal clear:
to keep you longer, the officer needs to arrest you. For the arrest, probable cause is required. Although he'll probably arrest you now, it gives your Denver DUI lawyer a chance to argue that the arrest violated your constitutional rights. There's a good chance you'll win too, since the officer has very little in the way of evidence except for possible "bloodshot eyes" and "slurred speech" which is something they'll always say you have.

Denver DUI lawyer / handheld breath tests

The first experience many people have with the DUI arrest process is the handheld breathalyzer. Sometimes teachers will bring a unit like this into health class just to show how they work, and show that they can trigger a positive test result simply with Listrene. However, the handheld breath tests are no novelty: they can singlehandedly ruin the case your Denver DUI lawyer is trying to put together.

The first crucial thing to know about the mobile units is that you do not have to take the test. The readings the police get from them are so variable, they are not even admissible in a court of law. Similarly, it is not admissible evidence for the state to say you refused to take the test. You literally have nothing to lose by refusing to take a roadside breath test. The police will say that you can clear yourself with the test, or that innocent people would take it. However, even if you haven't been drinking, it's unlikely to clear you on the spot. They pulled you over, they will probably find something to charge you with. If you feel uncomfortably pressured, tell the officer you want to talk to a Denver DUI attorney.

The second thing to remember is that by submitting to the portable test, you are providing more reason for arrest. Frequently your Denver DUI lawyer will rely basically on trying to exclude evidence. One way evidence can be excluded from court is by demonstrating the officer did not have a reason to arrest you and perform a blood or breath test at the station. This is called lack of probable cause. By submitting to a portable breath test, you are giving the officer basically free probable cause. A judge will never rule an officer did not have good reason to arrest you if you blew too high a number on the portable machine, no matter how unreliable those machines may be. Blowing a higher number on the portable test doesn't ruing your case, but it does make things significantly harder.

The police can get a blood alcohol test under punishment of license suspension. However, it is not a portable test. You have the choice of a blood test or a more accurate breath test at the station. The test in the field is purely voluntary. Do not volunteer to harm your case. Fighting a DUI is hard enough.