IF CHARGED WITH DUI OR DWAI:

  1. If you need to know what you face in a DUI case . . .
  2. If you've taken a breath or blood test . . .
  3. If you've refused a breath or blood test . . .
  4. If you want to take your case to trial . . .
  5. If you want your driving privileges reinstated . . .

1. When should I call a lawyer if arrested for DUI or DWAI?
If you need to know what you face in a DUI or DWAI case, call an experienced criminal defense attorney immediately! He can advise you of your legal rights and responsibilities and strengthen your chances of winning your case and restoring your driving privileges. Even a first offense DUI or DWAI conviction can have serious consequences. If your blood or breath alcohol level (BAC) was over .20, you face a mandatory jail sentence. Additionally, in any first offense DUI case you face 48 hours of Public Service and a up to a $1000.00 fine, and in any first offense DWAI case you face 24 hours of Public Service and up to a $500.00 fine. Moreover, with any DUI or DWAI case, the judge will require you to undergo an alcohol evaluation and follow through with recommended treatment at your own expense, unless you live out of state.

Does a second drunk driving charge carry a mandatory jail sentence?
A second offense DUI or DWAI carries a mandatory minimum jail sentence of between 5 and 10 days, a possible maximum one year jail sentence and a $1500.00 fine. Often this jail sentence can be served on weekends, on a work release program, or via home detention with electronic monitoring via an ankle bracelet, so that you can go to work and classes. A first offense DWAI carries 8 traffic penalty points instead of 12 for a DUI, so if you have fewer than 4 traffic points over the past year, you will usually not lose your right to drive, unless you are under 16 years old. However, a second conviction for either DUI or DWAI will cause a one year license revocation, with additional years added if you have more prior convictions. And if you are under the age of 21 you will also face the loss of your license for one year if your BAC was over .02.

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2. What should I know about breath or blood tests for drunk driving?
If you've taken a breath or blood test, and the results were above a BAC of .10, the DMV will try to revoke your driving privileges for at least 90 days, or one year if you are under age 21 and the BAC was over .02. During this period of revocation you cannot drive for any purpose. However, you have a right to challenge this revocation at an administrative hearing, but you must comply with strict time limits. An experienced defense attorney can help you protect your rights and win a DMV hearing.

Can a good attorney get DUI tests excluded in court?
If you've taken a breath or blood test, you also may be able to exclude the results in court. One defense in your case is to attack the actual chemical test results. The law enforcement agency that extracted your breath or blood was required by law to preserve a second sample for testing by your defense attorney, who can retain a private laboratory so that the second sample can be independently tested. While it is not likely that this retest will be significantly different than the first test, this effort can sometimes be worthwhile, especially in close cases. And even if the test results are admissable, they are not binding on a jury's determination of guilt.

What can get a drunk driving blood or breath test excluded?
Additionally, the results of a breath or blood test can be excluded from evidence if the law enforcement agency did not collect it within two hours of your last driving a motor vehicle, or if there was insufficient probable cause to arrest you in the first place. For example, the general rule is that you cannot be stopped by an officer unless you clearly committed a traffic or other offense, and if there was no reasonable suspicion to stop you, any test results must be excluded from evidence. This includes an officer's visual observations of you. Since you are not required by law to take so-called "roadside tests" like walking a line or reciting the alphabet, your performance on these "tests" is not admissable unless you voluntarily consented to take them.

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3. What happens if you refuse the blood or breath tests?
If you've "refused" a breath or blood test, Colorado law requires that your driving privileges must be revoked for at least one year, and more if it is not the first such refusal. During this time you cannot drive for any reason. However, an experienced defense attorney can help you protect your rights and even win a DMV hearing for refusing to take a chemical test. For example, sometimes a citizen will simply be unsure of which kind of chemical test to take, blood or breath, for a brief time. They may ask to talk to an attorney. Since they don't have that right, when they inform the officer of their choice, their opportunity to take any test is improperly denied to them.

How do I challenge an alleged refusal to take a chemical test?
In order to challenge an alleged refusal to take a chemical test, you need to demand an administrative hearing before the DMV, at the office closest to your arrest, but you must comply with strict time limits. You will have the option of demanding that the arresting officer attend this hearing, either by noting this on your request or by serving a subpoena on the officer at a later date. An experienced defense attorney can evaluate the best course of action, and can sometimes establish at the hearing that you should not have been required to take any test at all, so you did not actually "refuse" to do so.

What can my lawyer do in court about DUI test refusal
In Colorado a jury can be informed at your trial that you "refused" to take a test. However, your attorney can present evidence that this "refusal" itself was not a sign of guilt, and that without any chemical test, there is reasonable doubt you broke any law.

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4. Do I need an attorney if my DUI or DWAI case goes to court?
If you want to take your case to trial, you will need an experienced defense attorney by your side. Any trial, no matter what the evidence, is quite complicated and has the possibility for an aquittal. Court docket congestion sometimes causes prosecutors to offer very favorable plea bargains at the last minute to drivers who insist on a trial. Because continuances are sought by prosecutors, DUI cases are sometimes dismissed because their case did not get to trial within strict "speedy trial" limits.

What's better: a jury trial or having a judge hear the case?
Generally, it is better to demand a jury trial, rather than have a judge hear your case. But judges may deny you a jury trial unless a timely demand and a jury fee is paid in DWAI cases. Jurors generally take their responsibilities very seriously and will insist that the prosecutor present them with compelling evidence before finding a driver guilty. They may compromise on finding you guilty of a lessor offense. Even if you are convicted at a trial, you will have the right to appeal to a higher court.

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5. Can I appeal losing my driving privileges?
If you want your driving privileges reinstated, you will need to take affirmative action. If you lose a DMV case because of a high BAC or a refusal, you can appeal this decision to a District Court Judge. An experienced defense attorney should be at your side, since such an appeal is complicated and there are strict procedural deadlines. Sometimes the Judge may order the DMV to return your drivers license while your appeal is pending. And if you win the appeal, you will retain your right to drive.

What happens if I don't appeal losing my driving privileges?
If you do not appeal, the DMV revocation will remain in effect forever, unless you take steps to get your driving privileges reinstated after the period of revocation has run. Generally, you can do this by presenting the DMV with proof that you have current motor vehicle insurance coverage and paying a restoration fee. Sometimes you will also have to submit proof you completed alcohol classes. However, this process is more complicated if this was not your first license revocation. Then, you may first have a period of no driving, followed by a period where you can drive to work or school, perhaps using an "interlock" device on your car to make sure you are not drinking when you drive.

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Contact Information
Peter Schild
Phone (303) 444-8720
Toll Free (866) 444-8720
FAX (303) 444-8730
Offices at:
255 Canyon Blvd., Suite 201
Boulder, CO 80302
Mailing Address:
243 Kelly Road East
Boulder, CO 80302

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