Rights of the Accused
DUI & DWAI
What Are a DUI and DWAI Crimes?
The Colorado DUI law prohibits people from driving a car, bike, boat, or other vehicle under the influence of alcohol, drugs, or a combination of both. A driver is presumed to be under the influence of alcohol if their blood alcohol concentration is above a .08 at the time they were driving or within two hours after driving. A DUI can be a misdemeanor or felony offense. First, second, and third offenses are misdemeanors, and a fourth offense DUI is a felony. No matter what type DUI offense it is, the driver will also be facing revocation of their driving privileges after the arrest.
Driving while Ability Impaired (DWAI) is also a driving offense when the driver has consumed alcohol, drugs, or a combination of both. However, the driver does not have to be impaired as required for a DUI. The driver only has to be that affected to the slightest degree by the substance or substances they consumed. The law also presumes that a person’s ability to operate a vehicle is affected if their blood alcohol concentration is above a .05 but less than .08. A DWAI offense has a lesser penalty than a DUI, but a DWAI offense can still affect one’s driving privileges. A DWAI conviction can also be used to enhance a subsequent DUI offense to second, third, or felony fourth offense.
Can Someone Be Convicted if There Is no Test?
The DUI and DWAI laws do not require that the prosecution have test results for drugs or alcohol to secure a conviction. It can often make it more difficult to prosecute a case for DUI or DWAI if there is no test, but the prosecution can submit other evidence to help show the level of impairment. The prosecutor can use police video, results from the officer’s field sobriety test, the officer’s personal observations of the driver, and any other relevant evidence that supports impairment.
Police video of the arrest can either help or hurt the defendant’s case. If there is police video that captured the driver’s interaction with the police, it may help support a conviction even if there is no test. When the video shows that the driver had poor balance, slurred speech, and acted erratically, it will hurt the defendant’s case even if there is no test. However, often times the video may help the defendant’s case if it shows normal behavior and that the police officer exaggerated his observations, which they often do.
Police are trained to conduct Standardized Field Sobriety Test (SFST’s) as part of every DUI investigation. SFST’s are roadside test which officers believe can show signs of impairment. If the driver refused to take a blood or breath test, the prosecutor will rely on the SFST’s to support a conviction. These tests involve the officer waiving a pen in front of a suspect’s eyes, standing on one leg, and walking a straight line. SFST’s are often performed improperly by police, and even if they are properly conducted, SFST’s are not very reliable. There are also many factors such as age, medical conditions, and road conditions that can make these test unreliable. While the court will typically allow SFST evidence to be introduced at trial, juries will often discredit it at trial if a good lawyer exposes the flaws associated with these tests.
Can Someone Get a DUI or DWAI if They Have Not Had Anything to Drink?
DUI and DWAI laws not only apply to alcohol use. They apply to drug use or even a combination of drugs and alcohol. They type of drug also does not matter. It can be a drug they have a prescription for or an illegal drug. A person can be arrested a DUI or DWAI if they have used cocaine, heroin, or marijuana. They can also be arrested if they had very little to drink if they have also used drugs. For instance, if a driver’s blood alcohol level is only .04, there is a presumption that they are not intoxicated or ability impaired. However, if the driver’s blood alcohol level is .04, and the driver also consumed drugs, the law allows the prosecution to use to the combination substances to try prove guilt.
Can I Get a DUI or DWAI if I Have a Medical Marijuana Card or Other Prescription?
A driver can still be arrested for taking their own prescription drugs and driving. The issue for the court to consider is if there was any impairment, and the prescription does not matter. However, if a person did not know that their medication caused impairment or had side effects that affected their driving, that could be a defense. When dealing with marijuana cases, there is also a per se limit that will give rise to a presumption that the driver is under the influence of marijuana. In Colorado a driver with 5 nanograms of delta-9 tetrahydrocannabinol (THC) per milliliter of whole blood is presumed to be under the influence of marijuana. This amount is very low for regular or medical users who may have developed a high tolerance to marijuana, and they may not be impaired at this level.
Should I Refuse to Take a Blood or Breath Test?
In Colorado, a driver does not have to voluntarily take a blood or breath test if one is offered by police during a DUI arrest. However, the failure to take a test can be used against the driver in both the criminal case and at any related DMV hearing. Also, a driver cannot refuse if the police have obtained a warrant for such testing.
A DMV hearing is an administrative hearing that is separate from the criminal case. In Colorado, the suspect’s driver’s license can be revoked at a DMV hearing if the test shows impairment at certain levels, and there are also license penalties for refusing the test. Even if the driver is sober and refuses the test, they will face revocation of their license. The penalties for refusing can also be harsher than if the driver “failed” the test. If a driver is facing revocation for failing or refusing a test, they still get a DMV hearing where they can contest the revocation.
If there is no blood or breath test, it could make the criminal and case more difficult for the prosecution to prove. Without a test, the prosecution will have to rely on video, the officer’s testimony, and the field sobriety test all of which are usually favorable to the defense unless the driver is extremely impaired. They driver must take into consideration that a refusal may help their criminal case, but it may cause their license to be revoked for a longer period of time than if they took and failed the test.
Contact Ben LaBranche if You Have Been Arrested for DUI or DWAI.
DUI or DWAI cases can be very complex since they involve blood, breath, and roadside tests. Each case is different and there are many possible ways to challenge the evidence. Ben has handled hundreds these cases and has obtained multiple acquittals in drunk driving cases. He is also certified by the U.S. National Highway Traffic Safety Administration (NHTSA) in standardized filed sobriety testing, which has been helpful in challenging standardized field sobriety tests performed by police.
Ben LaBranche is an experienced DUI lawyer. If you have been charged with a DUI or DWAI, call Ben LaBranche at (225) 927-5495 for help with your case.
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