A Boulder Lawyer Explains DUI Law in Colorado

By J. Scott McComas | Published on December 2, 2011 | 0 Comments

Whether or not you’ve been charged with a DUI, Boulder Lawyer J. Scott McComas explains what you need to know about DUI law in Colorado. While you might exercise restraint and never drive with an alcohol concentration at or above .08, you can still find yourself fighting charges if you’re not familiar with the nuances of Colorado law. McComas and his law firm, J. Scott McComas, P.C., has successfully defended driving under the influence charges in many cases as a DUI lawyer in Boulder.

Almost all states recognize a blood alcohol content of .08 as permitting an inference that the person is Driving Under the Influence (DUI). Colorado recognizes a lesser offense, Driving While Ability Impaired (DWAI) which may be permissibly inferred if your blood alcohol content is between .05 and .08. Even if you believe that you’re “drinking responsibly,” you can be charged under Colorado’s “DUI per se” law. This means that if you test above .08 within two hours after operating a vehicle, you can be hit with a DUI charge and found guilty—even if your BAC was below the legal limit while you were actually driving.

Additionally, underage drinkers can be charged with Underage Drinking and Driving (also known as a “Baby DUI”) with a blood alcohol concentration between .02 and .05. Before getting behind the wheel in Colorado after any alcohol consumption—especially if you’re a minor—this information is important to keep in mind.

Quick response to a DUI arrest is required of a defendant. If the driver’s test result is .08 or above, or if the driver refuses to submit to a test of their blood or breath when requested by an officer after an arrest, the driver’s license is retained by the officer and they are provided with a notice requiring them to request a hearing with the Division of Motor Vehicles within 7 days of the giving of the notice. Failure to request the hearing results in automatic revocation of the driver’s license. In order to know how to proceed, it is best to obtain the law enforcement records from the arresting agency. Because of the short response time required, it is often in the drivers’ best interests to make such a request themselves and have the records reviewed by an experienced DUI lawyer before making the hearing request.

In formulating a defense, the attorney will ask why the police encountered the defendant in the first place. If McComas determines that it was an unlawful encounter—that is, the driver was stopped without the officer having necessary reasonable suspicion of illegal activity—he will attack the stop on his client’s behalf. Officers can’t lawfully pull people over on “hunches;” for example, weaving within your lane is not a basis to stop a driver until they clip the right lane line at least twice.

The next question McComas addresses: is there probable cause for the person’s arrest? With this in mind, the veteran attorney strongly recommends that no one ever consent to doing a roadside evaluation, or field sobriety test. Understand that the officer has a stake in making an arrest, and these tests only serve to produce evidence that can incriminate you. However, even if a client failed a roadside test, an attorney can still use it as a point of attack; there is an extremely formulaic, specific way to conduct these tests. If the officer did not lead these tests in the appropriate manner, an experienced DUI lawyer will challenge it. Another issue that comes up in police encounters with drivers is when the officer requests the driver to provide a breath sample on the street by means of a hand-held breath measuring device called a “portable breath tester” or “PBT”. The advice McComas gives when this is offered is to decline to take any such test, as it is used by the officer to justify an arrest where there might not be any other good cause to support it. (This is not to be confused with the chemical test of blood or breath at the police station or jail, after an arrest has already taken place, which should not be refused.)

If the police officer is able to establish probable cause and the officer requests and the driver submit to a breath test, they still must conduct the station-house breath test according to fixed protocols established by the state. Additionally, breathalyzers may not be as accurate as they may claim and can be up to 20 percent off from a person’s true BAC. In a marginal case, this inaccuracy can be critical, McComas says. However, it’s important that a driver does not decline both the blood and breath test, as this will result in an immediate revocation of their license, they’ll be arrested and the refusal to take the test will be admitted as evidence against them.

This article does not cover all possible defenses that may be raised on behalf of a driver and each case presents its own opportunities for defending against the serious consequences that can attend a DUI arrest. Therefore, a detailed case review by an experienced DUI lawyer is critical to the interests of a driver faced with such a situation.

*Disclaimer: This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.

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