Colorado DUI and DWAI Defense

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How Much “Good Time” do I get in El Paso County, CO

  • How Much “Good Time” do I get in El Paso County, CO

    One question I’m frequently asked when dealing with jail or work release, is how much good time do I get? The short answer is, it depends, but I’ll break it down and try to provide a way for you to calculate the amount of time you may actually serve.

    First, we need to look at the offense that you’re going to be incarcerated for. If it’s a DUI, how many priors do you have. In Colorado, a first offense requires no mandatory jail (unless the BAC is above a .200, but that’s another post), while a second offense requires a mandatory minimum of 10 days jail or work release, and a third offense requires 60 days of jail or work release. A felony DUI requires 90 days straight jail or 120 days work release. THERE IS NO GOOD TIME CREDITED TOWARD THE MANDATORY MINIMUM TIMES ABOVE. With that said, just because an offense requires a certain amount of jail or work release, that doesn’t mean that will be the offer/sentence. For instance, the standard plea offer in El Paso County for a second offense DUI is 30 days jail or work release. Therefore, if you accept that offer, you will not get good time on the first 10 days of the sentence, but you will get good time credit for any amount of time you’re sentenced to above the mandatory minimum. Therefore, if you accept a 30 day jail sentence on a second offense, you will do 20 days of jail (50% good time credit applied to the 20 days above the mandatory minimum). This rule only applies to DUI and Felony DUI charges.

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  • How Much Does it Cost to Hire a DUI Lawyer in Colorado?

    The cost of hiring a DUI attorney in Colorado Springs can vary greatly, but the reality is that hiring the wrong attorney may actually ending up costing you far more in the long run, and may even be worse than hiring no one at all. For this reason, you should at least speak with a skilled attorney before deciding who to hire. But make no mistake, you should not base your choice of an attorney solely on price. Choosing a lawyer is a highly personal decision, and I recommend you sit down with a number of attorneys until you find the one who you’re most comfortable with.

    Legal fees can be daunting, especially when you didn’t plan on getting a criminal charge, but in the long run, the cost of hiring a skilled lawyer pales in comparison to the cost associated with a bad outcome. A DUI is a serious charge, which can impact you significantly in the future. You may be denied employment or housing, not to mention the actual costs associated with the case itself. Some attorneys charge a low fee because the will encourage you to take a plea very quickly, while others simply don’t have the experience to deal with the case.

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  • Will Your DUI Case Get Dismissed if the Cop Didn’t Read You Your Miranda Rights?

    One of the most frequent questions I’m asked is whether or not the police officer needs to read your rights to you, after they contact you for a DUI. Unfortunately, there’s not really an easy answer. The idea of “reading your rights,” or giving the Miranda warning, comes from a 1966 United States Supreme Court case called Miranda v. Arizona. I won’t bore you with the details of the case, but the ruling is important. The Court held that “the defendant must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires” Miranda v. Arizona, 384 U.S. 436, 479 (1966). In short, the police do not have to advise you of your rights unless you are in custody and being interrogated.

    What is Custodial Interrogation?

    Again, there’s no easy answer. The Colorado Supreme Court has held that “to determine whether a suspect was in custody, we ask whether a reasonable person in the suspect’s position would have felt deprived of his freedom of action to the degree associated with a formal arrest”. People v. Taylor, 41 P.3d 681, 691 (Colo.2002). But even this isn’t a clear answer. Anytime the law uses a “reasonable person” standard, things get messy. The following nine factors are considered to determine whether or not someone’s in custody for the purposes of Miranda:

    • the time, place and purpose of the encounter;
    • the persons present during the interrogation;
    • the words spoken by the officer to the defendant;
    • the officer’s tone of voice and general demeanor;
    • the length and mood of the interrogation;
    • whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;
    • the officer’s response to any questions asked by the defendant;
    • whether directions were given to the defendant during the interrogation;
    • the defendant’s verbal or nonverbal response to such directions.

    People v. Hankins, 201 P.3d 1218,1218-1219 (Colo.2009)

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  • DUI Classes in Colorado. An Overview of Level II Education and Therapy

    If you receive a DUI charge in Colorado, chances are, you’ll have to do some kind of DUI classes/therapy through a state-certified treatment provider. In fact, it’s possible to have the criminal charges outright dismissed and still have to do the DUI classes, since the DMV also requires it. So if you lose your license at DMV and you want to reinstate your license early, or if you were a high BAC offender or had a refusal, regardless of whether or not you want to early reinstate, you’ll need to do those classes. Below we offer information about how to find level 2 alcohol classes near you.

    What does Colorado’s DUI Treatment System Consist Of?

    Colorado’s DUI treatment system consists of two parts, Level II alcohol education (or in the instance of a minor charged with a DUI and the BAC is greater than a .02 but less than a .08, a level I class), followed by therapy. Generally, you will have to complete an alcohol evaluation through the probation department in your jurisdiction, where they’ll assign you a specific “track”, A-D, which corresponds to the number of hours of therapy. Track A consists of 42 hours of therapy, track B is 52 hours of therapy, track C is 68 hours of therapy, and track D is 86 hours of therapy.

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  • Arrested for a DUI in Colorado? This is what you can expect…

    You made a mistake. You’ve been arrested and charged with a DUI (or DWAI, or DUID). Here’s what you can you expect as you navigate this complex process. First, I need to state, I practice mainly in El Paso County (Colorado Springs and the surrounding areas), and while I’ve appeared in Court’s throughout the State, each Judicial District is different, especially with how they deal with the way a case works it’s way through the system. Most of the information here is general and will apply regardless of the Judicial District, but some will be more specific to a DUI in El Paso County.

    First thing first, did you do a blood test, breath test or refuse the chemical test? If you gave a blood test, you do not need to do anything within the first seven days after your arrest. Both vials of blood are sent to the Colorado Bureau of Investigation for chemical testing. One vial is tested and kept by the State, the other can be re-tested by a lab of your choosing. Once the State’s test is completed, they will notify the police officer of the results. Assuming the results are greater than a .08 (or 5 nanograms of delta-9 THC in the case of a marijuana DUI), the officer will file a document called a “Notice of Express Consent Affidavit” with the Department of Motor Vehicles (DMV). When DMV receives that document, they will send a letter to the address they have on file (or the address the officer listed on the Express Consent document), stating that they have received notice that you were contacted by a law enforcement officer and submitted to a blood test and the results were XYZ. The letter will tell you that if you do not request a hearing by the date at the top of the letter then your privileges to drive will be revoked. It is imperative that DMV has your correct address, so it may be beneficial to go to DMV ahead of time and submit a change of address if you have moved or if the Officer listed a different address on your charges, then the address where you currently reside. It is also imperative that you request a hearing prior to the date the revocation defaults (more on requesting a hearing below). Now if you did a breath test, or you refused the chemical test, the officer will give you the Notice of Express Consent Affidavit directly (only in rare circumstances, like if the breath test was completed in more than two hours after you were contacted, will you not get this document if you did a breath test). You have seven days from the date you were arrested to go to DMV and request a hearing if you did a breath test or refused. Failure to do so means the revocation will go into effect on the 8th day.

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  • Why Colorado’s Proposed Felony DUI Law is a Bad Idea

    It seems like just about every year the Colorado Legislature takes up the idea of creating a felony DUI law. Currently, Colorado joins Pennsylvania, New Jersey, Maryland, and Maine, as one of only five states that do not have some form of a felony DUI law. While most states make a third or subsequent offense a felony, there are a few, including New York, which actually make a second DUI within 10 years a felony offense.

    The problem with felony DUI laws, including Colorado’s proposed law, is that there’s no evidence they are effective in actually reducing the number of drunk drivers on the road or reducing fatal alcohol related traffic accidents. According to MADD.org, in 2013, 28.5% of fatal traffic accidents involved alcohol in Colorado. Comparatively, in New York 30.4% of fatal traffic accidents involved alcohol, in South Dakota that number is also 30.4%, in Oklahoma, 25.1% and in California, 28.1%. All four of those states have robust felony DUI laws. Moreover, MADD currently gives Colorado 5 stars for our DUI enforcement and prevention efforts, while Oklahoma, New York and California are given 4 stars, and South Dakota is only ranked 2 stars for their efforts to prevent and enforce DUI laws. While the four states listed above are only represent a sampling of DUI laws across the country, nationwide about 29% of all fatal traffic accidents involve alcohol. Clearly, robust felony DUI laws do little to lower the number of people killed by drunk drivers, which is ultimately the purpose DUI enforcement to begin with.

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  • Preparing for an Alcohol Evaluation in Colorado

    In Colorado, most jurisdictions use the alcohol evaluation to determine the treatment/classes you’ll be required to complete as part of any sentence in a DUI/DWAI case. Generally, the evaluation is completed through the probation department in the jurisdiction where the case is charged, but there are ways to get another jurisdiction to complete a “courtesy evaluation” in the event you live in a different county. Take the evaluation seriously. Show up 15 minutes before your scheduled appointment, dress nicely, and by all means, don’t be impaired when you go. Although this sounds like a no brainer, it happens so frequently that I now warn every client about this. And when I say don’t be impaired, do not have anything to drink in the 24 hours leading up to the evaluation. All to often someone drinks the night before and a probation officer smells it.

    The probation department will likely use the Adult Substance Use and Driving Survey, or ASUDS for short to score you on various factors, prior substance use, prior impaired driving, demographics, defensiveness, BAC in the present case, etc. By no means should you attempt to game the assessment. While I certainly cannot tell someone how to answer the questions or what to say, I advise my clients on a number of areas prior to the evaluation. First, be honest. Don’t go to the evaluation and say you had two beers when your BAC is a .200. Next, don’t minimize. Ultimately, you are at the evaluation because you have been charged with, and likely are receiving a sentence for a very serious crime. So its important to reflect on that and let the evaluator know that you are well aware of how serious this is and let them know how you’re taking it seriously. Next, and this needs to be accomplished long before the evaluation, but immediately upon being charged, you must stop drinking. Someone who is able to abstain from alcohol from the date they were charged until the evaluation is completed is certainly less of a risk than someone who has continued to drink, even in light of being charged with an alcohol related offense. The latter will almost certainly be required to complete more treatment than the former. Finally, get a head start. Once I know that a client is going to be pleading guilty and receive classes/treatment as part of their sentence, I advise them to begin immediately. This way, you’re not just going to the evaluation and telling them that you take this seriously, but you’ve demonstrated that you are in fact taking it seriously.

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  • DUI Classes in Colorado

    Many people charged with a DUI are surprised to learn that as part of their sentence in the criminal side of the case, they have to undergo mandatory classes. Moreover, depending on an individual’s situation, they may be forced to undergo the same classes in order to receive or maintain their drivers license. Under Colorado law, an individual convicted of DUI faces five days to one year in the county jail, even for a first offense. However, Colorado law also always the mandatory five days jail to be waived if the defendant agrees to complete a drug/alcohol treatment program. In an effort to avoid a one-size fits all approach, most individuals must complete an alcohol evaluation and follow the recommendations that the evaluator sets forth. For the most part, the Judge will simply adopt the recommendations and make that part of your sentence. Throughout the State, and especially in Colorado Springs, the recommendations of the evaluator will be based on the reported BAC, the defendant’s attitude/honesty at the evaluation, and the number of prior alcohol related offenses that the defendant has on their criminal history. The alcohol evaluation is normally completed through the probation department.

    Generally speaking, an individual charged with a first offense DUI in Colorado will be forced to undergo level II alcohol education, and between 42 and 52 hours of therapy, depending on the factors I mentioned above. This is called track A and track B, respectively, on a second offense, level II and 68 hours of therapy (track C), and on a third offense, its generally level II and 86 hours of therapy (track D). Keep in mind that there is no hard and fast rule regarding the assignment of the various tracks, but generally speaking, the above holds true more often than not. As far as level II education is concerned, level II is simply 12 two-hour classes, geared toward educating the defendant, rather than correcting the behavior.

    The cost of classes varies widely depending on the treatment provider; however, any treatment provider used must be approved through the state. Keep in mind that the classes are only one small part of a DUI conviction, so it’s important to seek competent legal representation if charged with a DUI in Colorado.

     

  • Should I Take a Blood Test or a Breath Test if I’m Stopped for a DUI?

    Colorado DUI laws are complicated and when you’re being pulled over is no time to try and figure them out. One of the questions we get asked most often is, “what test should I take, or should I even take a test?” First, remember, one of the most important things you can do when being investigated for any crime is make sure you give the State as little evidence as possible. For example, the first thing an officer is looking for is an odor of alcohol. Don’t roll your window down all the way, rather, crack the window enough to hear the officer and for them to hear you and for you to provide the requested documents. Use mints or gum, and for god sake, never smoke marijuana in your car. Next, if you are asked to do a voluntary field sobriety test, remember, the test is voluntary. You have no obligation to complete them, and regardless of your level of sobriety, you are going to fail. According to one study from Clemson University, officers trained in DUI detection failed to correctly identify those subjects in the study were to drunk to drive and who was sober 47% of the time.[1] Basically, flipping a coin is as accurate as the state’s tests. In short, they are designed for you to fail.

    Now, turning to the issue of the chemical test. If an officer has probable cause to believe you are to impaired to drive, they will request that you complete a chemical test of your blood or breath. Remember, the standard for an officer to ask you to take a chemical test is that they have probable cause to believe you are to impaired to safely operate a vehicle, not that they think you have been drinking. We represent a large number of clients who simply had a drink or two at dinner and are on their way home, when they’re stopped for some minor violation. They complete a blood test and are arrested for DUI, and now they must defend themselves against very serious charges. If you only had a drink or two and are certain you aren’t impaired, it may be wise to explain it to the officer, but only if you can prove it. For instance, if you just left the restaurant and have the receipt in your pocket, explain that yes, you did have a drink with dinner, but that was all and show him the receipt. At the very least the officer must include in the report that you showed that only had one drink with dinner. If you can’t provide any proof, than this shouldn’t be attempted, as now there is an admission that you were drinking.

    In Colorado, the rules governing an officer requesting a chemical test are governed by C.R.S. 42-4-1301.1, or what’s referred to as Colorado’s Express Consent statute. This law states that by virtue of the fact that you have obtained a Colorado driver license, or are operating a vehicle on Colorado’s roadways, you have consented to taking a chemical test in the event an officer believes you are too impaired to safely drive. Failure to comply with this request can result in a 1-year revocation of your privilege to drive.

    So what test should you complete? I recommend that my client’s complete a blood test in nearly every situation. I’ll explain. Certainly, refusing to complete a test will derive the state of evidence that is very helpful in convicting you, namely your blood alcohol level (BAC). You will still be prosecuted and can be convicted. Remember, the state doesn’t have to prove your blood alcohol content for you to be found guilty of DUI. Rather, they have to prove that you are substantially incapable of operating a motor vehicle safely because of the consumption of alcohol, drugs, or a combination of both. There’s no number. Moreover, the consequences of a refusal at DMV are severe. Generally, if the revocation is upheld, you will loose your privileges to drive for 1 year, and there is no early reinstatement. With a breath test, we have a much more difficult time disputing the accuracy of the test and the accuracy of the machine. You are not given a second sample to retest at your own laboratory, and we’re forced to rely on the validity of the state’s test. There are also inherent flaws with the principles behind the breath test. The old adage “the harder you blow, the higher you go” has some truth to it. A blood test is superior for several reasons. First, two vials of blood are collected, one for the state, and one for you. This is important, because unlike a breath test, we can and do re-test your blood at our own independent laboratory. It is not uncommon for the two samples to have very different results. Next, you are making the case more difficult for the state to prosecute. Rather than calling only the two police officers involved in a case with a breath test, the state needs to get the person who tested your blood in Denver to attend the trial. They also attempt to get the head of laboratory to testify and explain the complicated scientific processes that make up gas chromatograph testing. There are very few people working as blood testers and only one head of the lab. Consequently, orchestrating trials with these individuals is difficult to say the least. Many cases have received very favorable outcomes due to their unavailability. Finally, there is strong evidence that the blood test is more accurate than the breath test. The process to test blood uses very complicated and expensive equipment, which is very accurate. The breath test uses a relatively inexpensive machine found in every police station in the state.  Obviously, a blood test is superior.

    So remember, while the best way to avoid a DUI is simply not to drink and drive, if you ever find yourself being pulled over, give the state as little evidence as you can, the voluntary roadside tests are voluntary and you will fail them, and finally, complete a blood test.

    [1] Nowacyk, R. H., Dr. and Cole, S., Dr., Separating Myth from Fact: A Review of Research on the Field Sobriety Tests (The Champion, August 1995).

    Steven Rodemer is a criminal defense attorney in Colorado Springs at The Law Office of Steven Rodemer, LLC. Steve has been named for three years as on of the “Top 40 Attorneys Under 40” by the National Trial Lawyers, a “Top 100” DUI Attorney by the National Advocacy for DUI Defense and was named as a “Rising Star” by Super Lawyers in 2014.

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