What is a DUI in Colorado?

DWAI stands for driving while ability impaired by alcohol or drugs.  When alcohol is involved, police will typically charge you with DWAI when your BAC is .05 to .079.

Can I go to Jail for DUI in Colorado?

Yes.  If this is your first DUI, typically there is no minimum amount of jail but the Court can still impose jail if they want.  However, if your blood alcohol content (BAC) is higher than .20, you face a minimum of 10 days in jail.  If this is your second DUI, there is a minimum of 10 days in jail.  However, on a second DUI, the Court has alternative options to jail including in home detention or suspending the jail time.  If this is your third DUI, there is a minimum of 60 days in jail required and the only alternative to this minimum is work release.  If you have been charged with a fourth DUI or more, you will be charged with a felony and face a minimum 90 days in jail or 120 days work release.

Is There Any Alternative to Work Release?

If you plead guilty to a DUI or DWAI that is your third or higher alcohol related driving offense, the court typically must sentence you to jail.  However, there a few alternatives in limited situations.  For a third DUI or DWAI, “[i]n a jurisdiction that does not have a work release program or other reasonable substitution for a work release program, such as an alternative sentence served in community corrections pursuant to the provisions of section 18-1.3-301 (4)(a) or (4)(b), the court may sentence the offender to home detention as provided in section 18-1.3-106 but only if the court finds that an alternative sentence of home detention is necessary to address the individual circumstances of the case and fulfill the statutory purposes of sentencing as provided in section 18-1-102.5, and when a sentence to home detention will not undermine the seriousness of the offense.”  C.R.S. § 42-4-1307(6)(a)(I.5).  On a fourth or higher DUI or DWAI, "if a judge finds there are exceptional circumstances which would make incarceration in a jail a substantial and imminent risk to the health or safety of an offender, or, when so advised by the sheriff, to the health, safety, or security of the jail operations or persons in the jail, the court shall make findings on the record of the exceptional circumstances and may employ any alternative sentences, including home detention. If an offender requests the court find exceptional circumstances based on the risk to the offender’s health or safety, the offender shall expressly waive any confidentiality as to the medical or other health information that establishes the basis for the exceptional circumstances.”  § 42-4-1307(6.7).  

What is Express Consent in Colorado?

Many people don’t understand that when they got their driver’s license or simply drove on the roads of Colorado, they consented to a chemical test of their blood or breath if a police officer has probable cause to believe they are impaired by alcohol or drugs.  See C.R.S. § 42-4-1301.1(2)(a)(I).  That is what express consent refers too.  What does all that mean?  If you are pulled over by the police and the police can articulate why they believe you are drunk or high, you must submit to a test of your blood or breath.  In fact, if the police officer believes you are impaired by drugs, you can be required to take a test of just your blood.   However, there are some rules to express consent and chemical testing.  First, the police officer must conduct a test of your blood or breath within two hours of you stopping driving.   See C.R.S. § 42-4-1301.1(2)(a)(III).  However, if you interfere so that the test can’t be completed within two hours, you will likely be deemed a refusal.  Second, the police must advise you of the express consent statute and give you the choice between a blood test, breath test, or refusal.  See People v. Null, 233 P.3d 670, 678 (Colo. 2010); Turbyne v. People, 151 P.3d 563, 568 (Colo. 2007).  This essentially goes like “by driving on the streets of Colorado you expressly consent to a chemical test of your breath or blood or you can refuse.  Which one do you choose?”  If a police officer fails to read some variation of this to you and didn’t have a really good reason, your case could result in a dismissal.  Third, once you choose to submit to a blood or breath test, the police officer must give you the test of your choice absent extraordinary circumstances.  See Null, 233 P.3d at 673.  If the police officer arbitrarily forces you to submit to a chemical test other than your choice, your case may result in dismissal or suppression of the results or refusal of a chemical test.

Do You Have to Take a Blood or Breath Test?

No, you always have the option of refusing.  However, refusing comes with consequences.  First, you will lose your license immediately.  See C.R.S. § 42-2-126(3(c)(I).  If it’s your first refusal, you will lose your license for one year.  If it’s your second, two years.  If it’s your third or more, three years.  Second, you will still be charged with DUI and the district attorney can use your refusal against you, meaning they can say you refused because you had been drinking. 

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Another thing you should keep in mind is the difference between refusing to do a chemical test of your blood or breath and refusing standard field sobriety tests (SFST’s).  SFST’s are tests police officers conduct to determine if you are under the influence of alcohol or drugs.  These include walk the line, follow the finger/pen/light, one legged stand, even the handheld preliminary breath test police use to test your breath at the scene is included here.  A refusal to these tests is not a refusal to take a chemical test.  If you refuse to do SFST’s, the district attorney cannot use that against you.  These tests are usually used to build evidence that you are driving under the influence of alcohol or drugs, especially when the driver later refuses to do a chemical test of their blood or breath.  Another thing to keep in mind when considering whether to take SFST’s, the tests are hard, even for sober people.  Who remembers, similar to walking a straight line, walking the balance beam in high school gym class.  Not everyone could do it and you could even raise your arms.  In some cases, drivers who fail SFST’s pass a chemical test of their blood.

How Will a DUI Conviction Affect My License in Colorado?

If you are convicted of a DUI, you will lose your license in Colorado.  A DUI conviction carries 12 points, enough to revoke or suspend your license.  In fact, the DMV will revoke or suspend your license prior to a DUI conviction under the following circumstances:

• The officer who arrested you over had probable cause to stop you and request a blood or a breath test and you submitted to a chemical test and:

  • your BAC was 0.08 or higher; or

  • you refused to take a blood or breath test.

However, be aware that in the above circumstances, you are entitled to a hearing with the DMV prior to a suspension or revocation of your license.  You must request the hearing yourself or through your attorney, and you must request the hearing within 7 days of your arrest. At the hearing, if you prove that the officer did not have probable cause to stop you or request a blood or breath test or that you did not have a BAC of 0.08 or higher or did not refuse a blood or breath test, you will get to keep your license.  Additionally, it is always the best practice to require the police officer's presence at the hearing and to request the DMV subpoena the officer. This forces the DMV to prove the case according to the rules of evidence and protects your right to confront the officer. At the Law Office of Michael Swink, representation at the DMV hearing is included with your fee so long as you retain our office prior to the 7 day deadline after arrest or request the DMV hearing yourself.        

Is There Any Way I Can Keep My License with a DUI in Colorado?

Yes.  During negotiations, the Law Office of Michael Swink fights to get the best possible result for your case.  One option is a plea to a DWAI.  Because a DWAI only carries 8 points on your license, your license will not be suspended if you are convicted of DWAI unless you have other traffic violations within the last 18 months.  However, be aware you could lose your license for some of the reasons mentioned in the previous section.  Another option is a deferred judgment.  With a deferred judgment, you plead guilty but the Court defers judgment for a period of time where you are required to complete probation and treatment.  If you successfully complete probation and treatment, your guilty plea is withdrawn and the case dismissed and sealed.  In addition, the Court does not certify the 12 points to the DMV and you will not lose your license based on the 12 points a DUI carries. A third option is called a wet reckless.  This is where you plead guilty to reckless driving and only receive the 8 points on your license that reckless driving carries.  However, as part of the plea, you are usually required to complete alcohol and drug treatment. At the Law Office of Michael Swink, we are experts in negotiating the best possible plea offer in your case.  

What to do if You are Charged with DUI in Colorado?

If you have been charged with DUI or DWAI, you should consult with an attorney who understands how DUI cases work.  DUI cases can be complicated and involve many different defenses sometimes requiring the use of medical experts and evidence.  When choosing an attorney for a DUI case, make sure the attorney is competent with express consent.

Call the Law Office of Michael Swink today and speak with an attorney experienced and knowledgeable with DUI laws and express consent.