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.
Tuesday, August 30, 2011
Monday, August 29, 2011
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.
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.
Sunday, August 28, 2011
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.
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.
Saturday, August 27, 2011
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.
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.
Monday, August 1, 2011
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.
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.
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