New Regs Require Formal Advisement on Test Choice

New Colorado Department of Revenue Regulations pertaining to Express Consent revocations now require officers who invoke the Express Consent law to specifically advise drivers that (1) they may elect either a blood or breath test; (2) that if they choose a breath test a second sample for independent chemical testing will NOT be preserved; and (3) failure to take and/or complete a blood or breath test will result in a one-year revocation of the driver's license.

This is an important regulation that overrules decades of legal precedent which held that there was no requirement for an officer to offer a choice of chemical tests under the Express Consent law. Now, failure to specifically offer a choice of tests is in direct contravention of Colorado Department of Revenue Regulations.

Note the other new regulation mentioned above--second breath samples for independent chemcial testing will no longer be preserved. Drivers who submit to a breath test must now submit two separate breath samples, which will be measured and recorded, with the lowest of the two measurements determining BrAC. Blood tests will continue to draw two blood samples, with one held for independent testing.

DUI Test Bill Going to Governor

Senate Bill 154, which will require drivers suspected of DUI to take a different chemical test from the one they choose if an officer is unable to administer the original choice of test, has been approved by the General Assembly and is expected to be signed by Governor Ritter. Current Colorado law requires that, if a driver suspected of DUI elects a specific chemical test of his/her blood or breath, then that test must be administered. Under the new law, if a driver elects a specific test that cannot be administered through no fault of law enforcement, an officer can require the driver to complete a different type of test--refusal to complete the substitute test would result in a one-year suspension of the driver's license. This bill was introduced following the Supreme Court's ruling earlier this year in Turbyne v. People, discussed below.

DUI Bill Rejected by House Judiciary Committee

HB1189, discussed below, was defeated in the House Judiciary Committee March 7. The bill, which would have mandated interlock devices on vehicles driven by those convicted of DUI/DWAI and greatly increased driver's license suspensions following such convictions, lost on a 7-4 vote. The failure of this bill does not spell the end of the effort to change Colorado's DUI laws--a state "DUI Task Force" commissioned by the General Assembly is expected to make recommendations later this year on how to improve the current DUI statutes, most of which have been in place for over twenty years.

DUI Bill Would Mandate Interlock Devices

Colorado House Bill 1189, sponsored by Rep. Joel Judd (D-Denver), would limit first-time DUI offenders to restricted licenses requiring ignition interlock devices on the vehicles they drive for five years following conviction. Offenders with prior convictions would be required to maintain a restricted interlock license for twenty years. Current law mandates a one-year suspension without probationary or restricted licenses for first-time DUI offenders and a two-year suspension with eligibility for a restricted license after one year for offenders with a prior conviction. The 5- and 20-year suspension periods set forth in HB1189 do not include revocations under the Express Consent law, which mandates a three-month revocation for failing a blood/breath alcohol test in conjunction with driving, and a one-year revocation for refusing such a test.

Ignition interlock devices require that a driver submit an alcohol-free breath sample before the automobile can be started.

CO Supreme Court Rules on Express Consent

The Colorado Supreme Court recently ruled that failure to administer the form of alcohol test requested by an accused drunk driver will not automatically result in dismissal of the charges. In Turbyne v. People, a suspected drunk driver requested a blood test. Due to weather, volume of police calls and other uncontrollable factors, a blood test was not available and the arresting officer offered a breath test instead. The driver initially refused the breath test, but later agreed when the officer told him refusal to take a test would result in the loss of his driver's license for one year. The test result showed a BrAC more than twice the legal limit. At trial, the driver moved to dismiss the charges on the grounds that the requested form of test was not administered. The trial court dismissed the charges, but the DA appealed to the District Court, which reversed the trial court and remanded the case.

The Supreme Court held that, although the results of the breath test were inadmissible because the requested form of test was not administered and the breath test was the product of unfair coercion, the failure to administer the requested form of alcohol test did not constitute bad faith on the part of the arresting officer and thus dismissal of the charge was not justified.

To summarize the law on this subject, Colorado law sets forth that drivers in this state, by virtue of their sanctioned driving privilege, have expressed consent to complete a chemical test of their blood or breath when requested by a law enforcement officer who has probable cause that the driver is driving impaired or under the influence. An officer is NOT required to offer a choice of test, but a driver can elect either blood or breath and whichever choice he/she selects must be administered. Refusal or failure to satisfactorily complete the test will result in a one-year suspension of the driver's license. As per above, if an officer fails to administer the form of test requested, the driver cannot be penalized at trial for failing to take the test and, if bad faith in failing to administer the test is found by the court, the charge can be fully dismissed.

Facts & Questions Regarding DUI in The State Of Colorado

Why are Colorado DUI laws so vigorously enforced?

There are tremendous societal pressures to make DUI arrests. MADD puts a great deal of pressure on the General Assembly, District Attorneys and Police Departments to get “tough” on people that drink and drive.

When should I hire a criminal defense attorney?

Immediately. Colorado law requires that a request for a hearing to keep your license must be made within 7 days from the date of your DUI arrest. If you fail to hire an attorney, and a hearing is not requested, you waive the opportunity to fight the license suspension. In short, the sooner you act the better chance I will have in providing the best criminal DUI defense you need.

I was arrested for DUI in Colorado. Is my license automatically suspended?

No. However, if you refused to provide a sample of your breath or blood, or if you provided a sample and they say it had an alcohol concentration of .08 or greater, and a hearing is not requested to fight the DUI suspension, it will be suspended.

Is there any benefit in requesting an Administrative License Revocation (ALR) Hearing?

Absolutely. We have been able to keep a number of our clients here in Colorado from ever having their license suspended. Even if your license is suspended, there may be other options for a limited driving privilege.

If my license is suspended for a DUI, can I get a license to drive to work?

It depends. Suspensions for refusal of tests and DUI convictions do not allow for a probationary license. Suspensions for driving with excessive alcohol content (over .08%) carry the possibility of obtaining a probationary license after one month of no driving. Suspensions of more than twelve months may allow for restricted licenses after one year if an intoxilizer interlock device is installed in your car.

I got a Colorado DUI and I have never been in trouble before. Am I going to jail?

Probably not. All cases are different, and I will have to look at your specific facts, but in most cases, I can successfully fight to keep you out of jail.

What part of your practice is devoted to defending Colorado DUI cases?

A substantial part of my practice involves handling DUI cases. Colorado DUI laws and techniques in defending DUI are constantly changing. What worked yesterday may not be the best approach today. It is important to find a lawyer who stays on top of the current Colorado DUI laws, trends, and what occurs in Courts everyday. I am such a lawyer. Also, I attend many Continuing Legal Education on DUI-specific seminars in addition to other criminal law areas of practice.

Are you familiar with the breath test machine, the Intoxilyzer 5000, used in Colorado?

Yes. To the average criminal defense attorney, a breath test above the legal limit means "plead guilty" from the beginning, even though they will not tell you this until after the fee has been paid. To a true DUI defense attorney, a failed breath test in no way means you are guilty. I understand how the breath test machine works, what can cause you to submit an erroneously high reading, the philosophy behind breath testing, and how alcohol is absorbed and eliminated from the body. This is often the difference between a guilty and Not Guilty verdict. If you are serious about being found Not Guilty, it is a must that your lawyer be very knowledgeable about alcohol and the human body and its affect on breath testing.

Can you get my DUI case dismissed?

It would be unethical for me to promise that I will get your DUI case dismissed, and the plain truth is that these types of cases are almost never dismissed outright. That being said, my goal will be to explore every option available at law, including getting your case dismissed if possible, to keep your record clean and prevent you from losing your freedom, dignity, and license to drive.

We hope that you will find this information helpful in answering your questions about selecting a lawyer. If you have any further questions, please contact us by calling 303.663.9339