Friday, September 23, 2011
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.
Friday, September 9, 2011
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.
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.
Tuesday, September 6, 2011
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.
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.
Friday, September 2, 2011
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.
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.
Thursday, September 1, 2011
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.
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.
Tuesday, August 30, 2011
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.
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.
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.
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