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.
Regarding the hearing request, you must make this request in writing, but its best to take the Express Consent Affidavit, or, in the case of a blood test, the letter you received, with you to the DMV and they have a form you will fill out. Now, the regulations say that this request can be made at any DMV branch, but in practice, I advise my clients to go to the main DMV office for their city, or county, because I have found many of the smaller offices turn people away. When you fill out the hearing request form, one of the questions they will ask is whether or not you want the officer present at the hearing. If you talk to a hundred DUI attorneys, chances are 70 will tell you to say yes and 30 will tell you to say no. I’m in the minority. I tell clients to request the officer not be present at the hearing, and the reason for this is that we want to see what the reports say first. You can always subpoena the officer later on, but once you say yes, that can’t be changed. The reason this is important is that sometimes the officer’s reports will not be sufficient to justify a revocation, and if the officer isn’t there, the only evidence they have are the reports. I don’t want to afford the officer the opportunity to show up at the hearing and correct or supplement the reports, whereby they provide enough additional evidence to justify the revocation. If you plan on hiring an attorney, you will want to discuss this with your counsel.
The hearing must be held within 60 days of the request being made (absent the officer or DMV changing the date for “good cause”), but you will be permitted to continue driving until the hearing date. Generally, about a 21 days after the request is made, you will receive a packet of police reports and other documents in the mail, and then about a week later, you’ll receive a second letter which has the date, time and location of the hearing on it. If you’ve hired an attorney, let them know as soon as you receive either letter, but especially the one with the hearing date and time on it, so they can get the hearing on their calendar.
I won’t go into what needs to be proven at the specific hearing, but I will say that on a first offense, if you did a blood or breath test and the results were above a .08, if you lose the hearing, you cannot drive for 30 days, then you must submit the Application for Reinstatement, the Alcohol Certification Form, the Affidavit of Enrollment, the Restricted License Agreement (interlock), a check for $95.00 and proof of SR-22. If your BAC was under a .150, you are considered a “low BAC offender” and must have interlock for 9 months, but if your BAC is .150 or greater, you are considered a “high BAC offender” and must have interlock for 24 months. If you refused the chemical test, and you lose the hearing, you cannot drive for 60 days, then must comply with the same reinstatement process, however, you must have interlock for 24 months. Because it takes DMV 20 days to process the reinstatement packet, I make sure my clients have gotten those forms out no less than 20 days prior to the date they are eligible for early reinstatement.
As for what happens in Court, you will be given a date for a first appearance on your ticket. Failure to appear at that date will result in a warrant being issued for your arrest. At that hearing you will be advised of the charges against you and the possible penalties (most likely through a video), and then you may or may not have the opportunity to meet with a DA to hear their offer. Some jurisdictions (especially the smaller ones) do this differently, but generally this is what you can expect. From there if you take the offer, the case may be set for sentencing, at which point you will need to complete an alcohol evaluation through the probation department, or you may go to immediate sentencing and complete the evaluation through probation at a later date. If you reject the offer, the case will likely be set for trial.
I’m often asked if someone really needs an attorney for a DUI charge, and my answer is always a resounding “YES, whether you hire me, or someone else who does a good job and has a good reputation, hire someone”. DUI cases are complex, and the consequences are severe. After handling literally thousands of DUI’s as a prosecutor and now as a defense attorney, I can tell you that no two cases are the same. Sometimes people think that the prosecution has them dead to rights and there’s no reason to spend the money on an attorney. While it’s true that there are cases that are very easy for a DA to prove at trial, that doesn’t mean you shouldn’t have representation. There’s still many things a good attorney can do to mitigate the consequences, resulting in a reduced plea and costs, or lesser treatment or jail time, all the way down to the costs of the case. Most people find that they actually spend less money overall by hiring an attorney, than they would without the attorney. Other times, people will question the need for an attorney because they have a minimal criminal history, or their BAC wasn’t that high, or whatever. The DA’s office doesn’t give deals because your nice and they certainly don’t dismiss cases for that reason. They find; however; that they’re treated just like everyone else and that this is very serious. Again, while I’m happy to represent you, whether you choose me to represent you, or someone else, don’t make the mistake of not having a competent attorney with a proven history of good results. Don’t be afraid to ask about the attorney’s experience, but more importantly recent trial outcomes. Don’t expect to hear the attorney wins every case, because no one does, but you want someone who’s regularly in trial (trying 10 to 15 cases per year at a minimum). You’ll find that good representation will make all the difference in the outcome.
Steve Rodemer is a criminal defense attorney and dui defense lawyer in Colorado Springs at The Law Office of Steven Rodemer, LLC. Steve is a former prosecutor and has been named as one of the “Top 40 Attorneys Under 40” by the National Trial Lawyers for the past four years, a “Top 100” DUI Attorney by the National Advocacy for DUI Defense for the past three years, and named as a “Rising Star” by SuperLawyers in 2014 and 2015. Steve has been selected by the Denver Post as one of the Top Attorneys in Colorado in 2014 and 2015 and holds the rating of “10/10 Superb” from Avvo.com. More information can be found at www.coloradospringscriminaldefense.net.
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