Colorado DUI Attorney Denver DWAI Lawyer | McCluskey Law Office

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Denver DUI/DWAI Driving under the influence of alcohol or drugs or combination thereof, Driving while ability impaired
"Driving under the influence" means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which affects the person to a degree that he or she is substantially incapable, mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Section 42-4-1301(1) (f), Colorado Revised Statutes (C.R.S.).

"Driving while ability impaired" is similar, except that the person is affected to the slightest degree so that the person is less able than he or she ordinarily would have been to exercise clear judgment, etc. Section 42-4-1301(1) (g), C.R.S. Blood alcohol level is expressed in grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In Colorado it’s illegal to have a BAC - blood alcohol content, or BrAC - breath alcohol content, of the per se limit of .08 or greater, within 2 hours of driving and this can result in a DUI charge. The maximum penalty for a first DUI conviction is one year in jail. If you have a BAC of .05 you can be charged with DWAI. DWAI only requires impairment “to the slightest degree”. The maximum penalty for a DWAI is 6 months in jail.
Steps of a Colorado DUI Arrest

1. Provide officer license, registration and insurance. In addition to license, registration and insurance you are required to tell them who you are and where you live. You are NOT required to give them any further information.

2. Officer will ask if you had anything to drink. You may refuse to answer and politely inform the police you want to consult with an attorney.

3. The Officer will ask you to perform field sobriety tests. You can refuse to take the Standard Field Sobriety Tests. These tests are voluntary. Your refusal can be used against you, but if you fail these tests that too will be used against you.

4. You will be asked to take the hand-held breath test. You may politely decline. This test is not considered scientifically valid in Colorado courts and cannot be used against you at trial. It can, however be used to establish probable cause to arrest you for DUI.

5. If you are arrested you will be asked to take a test. The Express Consent law requires that you submit to chemical testing of your blood or breath to determine your BAC, blood alcohol content, or BrAC, breath alcohol content. If you refuse to cooperate, your license will be revoked for one year. The accuracy of blood and breath tests can be challenged by your attorney.

6. Once arrested you will be charged. You will be charged based on the results of the test. .08 is the per se limit in Colorado, at this level you are presumed to be under the influence.

7. Summons will be issued The citation will give you notice of the date, time and place of your court appearance to face the charges filed against you.

8. Arraignment You are informed of the charges against you and advised of your constitutional rights. You will enter your plea before a judge.

9. Pre-trial conference You can accept a plea bargain offer or set the matter for trial.

10. Suppression hearing Your attorney can file motions to exclude or suppress evidence against you and argue them in court before the judge on your behalf.

11. Trial You have the right to a trial by jury, the right to confront witnesses and evidence used against you. These are your constitutional rights. You have the right to force the prosecutor to prove each element of the crime you’re charged with beyond a reasonable doubt.
An attorney can challenge the reliability of the tests used to determine whether you were driving under the influence and/or ability impaired through drugs or alcohol or combination thereof.
A BAC of .08 or greater will result in revocation of your license. You will have 7 days to request an administrative hearing at the DMV to challenge the evidence used against you and to avoid the automatic revocation of your license. When you are stopped you will be asked to surrender your license and the officer will issue you a 7 day permit to drive. The officer will then give you a Notice of Revocation or “Express Consent Affidavit” which you take the Affidavit to the DMV and request an “Express Consent Hearing”. DMV will then issue a temporary driving permit for 60 days or until the date of your express consent hearing.

At the express consent hearing the Hearing Officer has the discretion on whether to grant a restricted or probationary drivers license (PDL), red license, work license. If you are stopped by a law enforcement officer, and you are outside of your probationary license restrictions, the officer will confiscate the license for violating the terms of the license. By law a probationary license can also be taken away from someone if they get any ticket while on the probationary license. Once the license is confiscated, or you receive a ticket, the probationary driver's license will be cancelled and you will not be able to drive for the duration of your suspension.

If you are stopped by a police officer for drunk driving you will have to go through the criminal justice system to respond to the crime you are charged with, e.g. driving under the influence of alcohol DUI, driving while ability impaired DWAI, as well as challenge the loss of your license or restraint action known as revocation through the administrative procedure (civil) at the DMV. An attorney can challenge all the evidence against you in this two-track civil and criminal system. An attorney can help you enter into a plea bargain (criminal) with the District Attorney or help you fight the charges at trial.

A first DUI conviction can be costly and can result in increased insurance premiums as well as other fines and penalties such as being required to install an Ignition Interlock Device in every vehicle you own or may drive, providing an SR22 from your insurance company, being sentenced to UPS, useful public service, Alcohol Education and Therapy, court costs and fines, and probation. These consequences increase in severity if more than one DUI is recorded on a person’s driving record and criminal record. While most DUI related offenses are misdemeanors, repeated alcohol related offenses can result in felony Habitual Traffic Offender charges being filed against you. An attorney can challenge the reliability of the tests used as evidence to convict you.

First Time Offenses of a BAC between .08-.169 will result in a 9 month revocation. After 30 days you may reinstate early with an 8 month Interlock restricted license. A BAC of .170 will result in 9 month revocation. After 30 days you may reinstate early with a minimum 2 year Interlock restricted license. Interlock may be removed if there are 4 consecutive monthly reporting periods that show the Interlock device did not prevent the operation of the vehicle due to excess alcohol.

Second Administrative Revocation will result in a 1 year revocation with no early reinstatement.

Third Administrative Revocation will result in a 2 year revocation with eligibility for early reinstatement after 1 year with an Interlock requirement for 2 years.

If during any 3 months the monthly monitoring reports show that excessive breath alcohol content prevented operation of the vehicle then the Interlock requirement may be extended for up to one year.
Refusals The first time you’re stopped for driving under the influence and you refuse to take a blood or breath test will result in a 1 year revocation and you will not be eligible for a probationary drivers license.
The second time you’re stopped for driving under the influence and you refuse to take a blood or breath test will result in a 2 year revocation. You are eligible for early reinstatement of your driving privilege with Interlock after one year.
The third time you’re stopped for driving under the influence and you refuse to take a blood or breath test will result in a 3 year revocation. You are eligible for early reinstatement of your driving privilege with Interlock after one year and must have the Interlock for the remaining 2 years.

ADMINISTRATIVE PENALTIES

Violation       License
Suspension
Points
     
BAC test of at least 0.08    9 months
     
2nd BAC test of at least 0.08   1 year
     
3rd or subsequent BAC test
of at least 0.08
2 years
     
DWAI   None    8 points
     
1st DUI  9 months  12 points
     
2nd DUI or DWAI   12 months DWAI 8 points
DUI 12 points
     
3rd DUI or DWAI  24 months

DWAI 8 points
DUI 12 points

     
1st Under 21 drinking and
driving (BAC of at least 0.02
but less than 0.05) 
3 months - 1st offense  4 points
6 months - 2nd offense
1 year - 3rd or subsequent 

 

CRIMINAL PENALTIES

Offense   Jail Fine  Public Service
       
1st DWAI 2 days -180 days $200-$500 24 hrs - 48 hrs
       
2nd DWAI   45 days -1 year  $600-$1000 48 hrs - 96 hrs
       
DWAI with
previous DUI
60 days - 1 year $800-$1200 52 hrs - 104 hrs
       
1st DUI  5 days - 1 year $600-$1000 48 hrs - 96 hrs

 

Administrative penalties for the same incident are not consecutive. For example, if a person whose license was suspended for a BAC test of at least 0.08 is subsequently convicted of DUI arising out of the same incident, the person's license is only suspended once.

In some cases, a portion of the minimum mandatory jail sentence can be suspended if the
person agrees to undergo an alcohol treatment program.  In addition, persons who violate the state's drunk driving laws may have to pay court costs, penalty surcharges of up to $500 to help pay for programs to address persistent drunk drivers, surcharges to benefit the crime victim compensation fund, fees to reinstate a driver's license after suspension or revocation, and other fees, charges, and penalties.  Other consequences may follow. If alcohol or drugs are involved in an accident causing injury or death, the penalties for vehicular assault or vehicular homicide are more stringent. Persons convicted of a third DUI or DWAI offense within 7 years also face a mandatory 5-year license revocation under the "habitual traffic offender" statute.

The summaries on this website do not include all the details contained in state law and regulations and are not meant as a substitute for consulting with a criminal defense lawyer.

DUR Driving Under Restraint  If your driver’s license is under restraint due to an alcohol conviction and you’re convicted for DUR, the minimum mandatory jail sentence for a is 30 days.

DUS Driving Under Suspension If your driver’s license is under suspension due to an alcohol conviction and you’re convicted of DUS, you are looking at a mandatory minimum 30 days in jail.

COMMERCIAL DRIVERS LICENSE
Commercial Drivers License CDL  For a first offense BAC .08-169 CDL is revoked for 1 year.
BAC greater than .170 you will not be able to obtain CDL until after 2 years and 1 month of driving with Interlock installed.
Second offense will result in lifetime disqualification of CDL if both offenses occurred after the driver obtained the CDL and offenses occurred after October 1, 2005.

Minors – UDD – Underage Drinking and Driving
The law requires a person to be at least 21 years of age to consume alcohol.  Anyone under this age cannot legally drink. An underage driver can be convicted of a DUI (“baby DUI”) when BAC is lower than the adult per se limit of BAC .08 .  At BAC .02 a minor can incur penalties including revocation of the driver’s license. Multiple “baby DUIs” can result in losing your license and jail time.

When BAC is  .02 - .049
The first offense results in a 3 month revocation.  You can request a probationary driver’s license after 30 days. You must have PDL for the remaining 2 months revocation.

The second offense results in a 6 month revocation and no PDL is granted.

Three or more offenses by a minor results in a 1 year revocation.

When BAC is greater than the per se limit of .08 the minor is treated the same as an adult but there is no early reinstatement with interlock device on the first offense. 

Repeat Offenders/Multiple Convictions If you sustain 2 (DUI or DWAI or combination of) convictions in a 5 year period your driver’s license will be revoked for 1 year with no early reinstatement.  When you do reinstate after a year you will be required to drive with Interlock installed for 2 years.

If you sustain 3 or more convictions (any combination of DUI or DWAI) will result in a 2 year revocation followed by 2 years on Interlock.  You may reinstate early after 1 year of revocation followed by Interlock installed for 3 years.

DUI and DWAI list of possible penalties

Offense

 Aggravators

 Jail

 Mandatory

 Fines

 UPS

 DUI

 None

 5 d. to 1 yr.

 None

 $600 to $1000
plus costs

 48-96 hrs

 DUI

 BAC > .2

 90 d. to 1 yr.

 10 d.

 $100 to $1500
plus costs

 60-120 hrs

 DUI

 Prior DWAI

 70 d. to 1 yr.

 7 d.

 $900 to $1500
plus costs

 56-112 hrs

 DUI

 Prior DUI

 90 d. to 1 yr.

 10 d.

 $1000 to $1500
plus costs

 60-120 hrs

 DWAI

 None

 2 to 180 d.

 None

 $200 to $500
plus costs

 24-48 hrs

 DWAI

 BAC > .2

 90 d. to 1 yr.

 10 d.

 $1000 to $1500
plus costs

 60-120 hrs

 DWAI

 Prior DWAI

 45 d. to 1 yr.

 5 d.

 $600 to $1000
plus costs

 48-96 hrs

 DWAI

 Prior DUI

 60 d. to 1 yr.

 6 d.

 $800 to $1200
plus costs

 52-104 hrs

Blood or breath tests play are used in the enforcement of drunk driving laws, although DUI or DWAI can be proved by other means. A person is presumed to be DWAI if the test shows a blood alcohol level of more than 0.05 but less than 0.08.  A person is presumed to be DUI if the test shows a blood alcohol level of at least 0.08. A person may be classified as a persistent drunk driver and subject to greater penalties if the test shows a blood alcohol level of at least 0.17.

There are both criminal penalties (fines, imprisonment, and required public service) and administrative penalties for drunk driving. Courts impose criminal penalties, while the Colorado Department of Revenue (the Department) imposes the administrative penalties.

Administrative penalties include the suspension or revocation of a license due to the commission of certain offenses or the accumulation of sufficient points assessed for violations. Sometimes a driver may reduce his or her criminal penalties through a plea bargain in court or by undergoing alcohol or drug treatment, but he or she must still face administrative penalties assessed by the Department. In most cases the Department does not have the authority to reduce or bargain away these penalties.

If you are stopped for DUI or DWAI you should seek councel immediately, these charges can carry heavey fines & punishment. The McCluckey Law firm would love to defend you as your choice for your Colorado DUI Attorney Denver DWAI Lawyer