Common Questions About DUIs in Denver
1. What do police officers look for when searching for Colorado DUI drivers on the highways?
Most DUI arrests occur at night and on week-ends. The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated while driving at night. The list is based upon research conducted by the National Highway Traffic Administration (NHTSA):
- Turning with a wide radius
- Straddling center of lane marker
- “Appearing to be drunk”
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately (other than in lane)
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Headlights off
Interestingly, Speeding has not been identified by NHTSA as an indicator of impairment. However, it is a common prosecution tactic to argue that speeding is “risk taking” behavior suggestive of diminished judgment occasioned by alcohol consumption. In reality, most police officers will admit that totally sober persons drive 10 miles over the posted speed limit late at night when the traffic is light.
2. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath.
3. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
No. You do not have a right to counsel until you are formally placed under arrest. By this time most DUI arrestees have already said — and done — to much. In most cases, the officer has already decided to arrest you before asking you to perform the usual roadside tests. In effect, by asking you to perform these tests he is simply seeking additional evidence against you because these tests are designed, and scored, to make the subject “fail.” The most prudent course of action is to request a lawyer immediately upon being stopped. Ask the officer to note the time of your request on his or her report. Produce requested documents (driver’s license, proof of insurance and registration) and say — and do — nothing more.
4. What is the officer looking for during the initial detention at the scene?
Police officers are trained to note the following “symptoms of intoxication” on their report:
- Flushed face (How does he know your “normal” coloring?)
- Red, watery, glassy and/or bloodshot eyes (Been up 20 hours?)
- Odor of alcohol on breath (Doesn’t non-alcoholic beer smell just like Bud?)
- Slurred speech (How does he know your regular speech patterns?)
- Fumbling with wallet trying to get license
- Failure to comprehend the officer’s questions
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other “inappropriate” attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions or to “divide attention.”
5. What should I do if I’m asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including the horizontal gaze nystagmus (eye twitch) test; the walk-and-turn; the one-leg-stand; heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to six such tests.
Unlike the chemical test, where refusal to submit may have serious administrative and criminal consequences, you are not legally required to take any FSTs.
As noted earlier, the reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable “fails.” Thus, in most cases a polite refusal may be appropriate.
6. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the “horizontal gaze nystagmus” test. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to diagnose a neurological condition, recognize nystagmus and estimate the angle of onset without the aid of a precise measuring device. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states. However, the test IS admissible in Arizona to corroborate chemical test results; or, in the case of a chemical test “refusal,” as proof of a neurological disorder one cause of which may be alcohol consumption.
7. Should I agree to take a chemical test? What happens if I don’t?
If you agree to submit to a BAC / blood alcohol content test, and you are not driving a commercial vehicle or a repeat offender, your driver’s license may be suspended or restricted for a minimum of 270 days. If you refuse the BAC test, your license may be suspended for one year. This is true even if you are found not guilty of the DUI charge.
The fact of refusal can be introduced into evidence as “consciousness of guilt.” Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the administrative consequences for refusing. By refusing a BAC test, particularly when you are likely to have a high reading, you deprive the state of potentially compelling evidence against you.
8. The officer never gave me a Miranda warning: Can I get my case dismissed?
No. The officer is supposed to give a Miranda warning after he arrests you. From a practical standpoint, the police will delay the arrest decision long enough to allow you to make numerous inculpatory statements. The only consequence of a Miranda violation is that the prosecution may not use any of your answers to questions asked by the police after the arrest. Even this limitation has been eroded because statements made in violation of Miranda can be used for impeachment purposes should you testify in your own behalf at trial. Again, the wisest course of action is to say nothing regardless of whether or not you have been formally placed under arrest.
Of more consequence in most cases is the failure to advise you of the state’s “express consent” law, that is your legal obligation to take a chemical test and the consequences if you refuse. This can effect the suspension of your license.
10. Why am I being charged with TWO crimes?
The traditional offense is “driving under the influence of alcohol” (DUI) or, in some states, “driving while intoxicated” (DWI). In recent years, however, 43 states have also enacted a second, so-called “per se” offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one.
If the case involves a refusal to submit to chemical testing, of course, only the traditional offense can be charged.
11. The officer took my license and served me with a notice of suspension after the breath test. How can he do that if I’m presumed innocent?
Agreed, it is blatantly unfair. But Colorado’s express consent statute provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).
It is essential to understand that a DUI involves two independent and unrelated proceedings: Criminal proceedings on the DUI charge(s) and an administrative proceeding before the Department of Motor Vehicles against your driving privileges. Therefore, it essential for you–or your attorney–to request a D.M.V. hearing within 15 days of your arrest. The effect of such a request is to “stay,” or postpone your administrative suspension until the matter can be heard by an Administrative Law Judge.
12. Can I represent myself? What can a lawyer do for me?
You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated scientific, procedural, evidentiary, constitutional, sentencing and administrative license issues.
What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field — no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, move to suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
13. How can I find a qualified drunk driving lawyer?
The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving?
An excellent indication of quality and experience is membership in the National College for DUI Defense. The National College provides the best advanced-level training to the DUI practitioner.
When you meet with the attorney, make sure of three things:
- They have extensive experience in DUI/DWI litigation.
- They have a reputation for going to trial in appropriate cases, rather than just “pleading out” their clients.
- The financial terms of representation are clear and documented.
Some DUI arrestees consider hiring an ex-cop or an ex-prosecutor to represent them. Many attorneys start off their legal careers working for the government to gain experience. Those who stay with a prosecutorial agency for more that a year or two often do so because they believe they cannot succeed in the competitive world of private practice. You must ask yourself, “Why did this person initially seek to put people like me behind bars?” Some attorneys make the ex-cop or ex-prosecutor angle a major selling point in their marketing efforts. If prior governmental service appears to be the attorney’s number one claim to fame, consider your choice very carefully. ROSENTHAL LAW EMPLOYS NO FORMER COPS AND NO FORMER PROSECUTORS. Cops and prosecutors are not our friends and they are not your friends.
14. What will it cost to get a lawyer?
This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.
The range of fees is huge. A general practitioner in a small community may charge only $300; a DUI practitioner with a national reputation may charge up to $15,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:
- Is the offense a misdemeanor or felony?
- If prior convictions are alleged, the procedures for attacking them may add to the cost.
- The fee may or may not include trial or appeals.
- Administrative license suspension procedures may also be extra.
- The lawyer may charge a fixed fee, or he may ask for a retainer in advance — to be applied against hourly charges.
- Costs such as witness fees, independent blood analysis, service of subpoenas, etc., may be extra.
Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.
15. What is the punishment for drunk driving?
As noted above, a conviction for a first offense will involve some jail time, a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for 1-3 years. Additional jail time and more substantial fines will be required for subsequent convictions. Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle.
16. What is a sentence “enhancement”?
Arizona, like most states, increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense — usually within five years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
- A child was in the car at the time.
- There was property damage or injury.
- The blood-alcohol concentration was over .15%.
The Arizona courts have held that an automobile is a dangerous instrumentality. Accordingly, it is not uncommon for the state to charge an aggravated assault or manslaughter when an DUI involves an accident or injury.
17. What is “mouth alcohol”?
“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high.
This is because the breath machine assumes that the breath is from the alveolar region of the lungs. For complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. This multiplier is known as the “partition ratio.” Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results.
The Intoxilyzer 5000, the most commonly used evidential breath testing device in Arizona, has a “slope detector.” The purpose of this slope detector is to detect mouth alcohol and abort the test sequence. The slope detector is never tested or calibrated on drinking subjects. It is well known by both defense attorneys as well as state criminalists that the slope detector can be “fooled” by a drinking subject.
18. What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
1. Lack of Driving or Actual Physical Control. Intoxication is not enough: the prosecution must also prove that the defendant was driving or in actual physical control of a vehicle while impaired to the slightest degree for reason of alcohol consumption or with a BAC of .10 or more within two hours of driving. This may be difficult if, as in the case of accidents, there are no witnesses to his or her being the driver of the vehicle.
2. Lack of Reasonable Suspicion to Stop or Probable Cause to Arrest. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
3. Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
4. Deficient “Implied Consent” warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave the prescribed instructions incorrectly, this may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.
5. Subjective Nature of the Offense/Erroneous Nature of the Evidence. Most crimes involve tangible evidence — a quantity of illegal drugs, a body, a gun, a knife, etc. An alleged violation of 28-1381(A)(1), Driving while impaired to the slightest degree, relies almost exclusively on the subjective and unverifiable impressions of the arresting officer. The officer’s observations and opinions as to impairment can be questioned. The circumstances and procedures of the Field Sobriety Tests can also be called into question. The strong tendency of the police officer to reinforce his arrest decision with “facts” conveniently corroborative of that decision can be attacked. Also, DUI arrests translate to thousands of overtime dollars for the involved officers. This fact is relevant to a motive on the part of the officer to err on the side of arrest in close cases and should be brought to the jury’s attention. Furthermore, an alleged violation of 28-1381(A)(2), having an unlawful BAC within two hours of driving, will also rely an test results that are highly questionable. A breath test has one compelling — and erroneous — assumption: That all test subjects are “average.” The only truly “average” person is a woman, Chinese and dead.
6. Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing.
A. Inherent Margin of Error. The Intoxilyzer 5000 has an acknowledged 10% margin of error — that is a twenty percent range of error. In other words, on its best day, when the device is calibrated and deemed to be operating properly, it will have a 10% +/- margin of error.
B. Core Body Temperature Variation. The Intoxilyzer 5000 assumes that every test subject has a core body temperature of 37 degrees C. and an expired breath temperature of 34 degrees C. For each degree above this assumed average, test results will be 6.8% higher than the subject’s actual blood alcohol level as measured by the breath reading. This problem tends to be exaggerated by the circadian effect — the later after rising that one is tested, the higher their core body temperature will be. Given that most DUI arrests occur after midnight, this is a substantial factor. State witnesses will be forced to admit they don’t have the slightest idea of what a given test subject’s body temperature might have been at the time of the test.
C. Non-specific and Cumulative Analysis. The Intoxilyzer 5000 is an Infrared Spectrophotometer utilizing a process which measures the methyl “tail” of any hydro-carbon molecule detectable at the 3.39 to 3.48 infrared micron wavelength or “stretch”. The device is NOT specific for ethyl alcohol. There are hundreds of these hydro-carbon compounds on the breath of an alcohol free subject. Not only does the machine not differentiate between these compounds, it reads them cumulatively as ethyl alcohol.
D. Partition Ratio Variation. As mentioned earlier, the Intoxilyzer 5000 assumes a 2100-to-1 ratio in converting alcohol in the breath to alcohol in the blood. As in the case of core body temperature, the machine assumes that all test subjects are “average.” In fact, this ratio varies widely from person to person (and within a person from one moment to another). By way of illustration, if a person blows a .10 test result, and that person’s actual partition ratio at the time of testing is 1500-to-1 rather than the presumed 2100-to-1, their actual blood alcohol level will be closer to .06 — a level below the legal limit.
State “experts” will argue that, given the so called “breath standard” of “1 gram of alcohol per 210 liters of breath,” the partition ratio is “irrelevant” because the state need no longer prove blood alcohol content of “1 gram of alcohol per 100 liters of blood.” This argument can be easily attacked because alcohol on the breath can not impair a person. Alcohol can only impair a person after it reaches the central nervous system through the blood. Accordingly, with respect to the issue of impairment, breath alcohol is only “relevant” to the extent that it purports to be an indication of alcohol in the blood. Fortunately, while the legislature is free to manipulate the law, they are limited in their ability to manipulate science!
E. Linearity Problems. By it’s very nature, infrared spectrophotometry will have problems with linear validity. In other words, the machine will not be as accurate at extremely low blood alcohol levels as it might be as one approaches the legal limit of .10%. This problem is illustrated by the fact that Arizona Department of Health Services regulations allow for a measurable volume (.01 grams) of alcohol to be detected in a subject known to be alcohol free!
F. Radio frequency interference. Radio Frequency Interference or “R.F.I.” can result in inaccurate readings. While the Intoxilyzer 5000 purports to have an “R.F.I. Detector” that will void a test subject to radio frequency interference, these detectors are not tested and calibrated at commonly used frequencies nor are they tested on varying horizontal and vertical planes.
G. Testing during the absorptive phase. This is a corollary of the rising alcohol defense. Alcohol can not effect or impair a person until it reaches the central nervous system — the brain. Alcohol can not begin the process of reaching the brain until it is absorbed into the bloodstream. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, alcohol consumed within forty-five minutes before driving might be reflected in a BAC test performed an hour or so after driving is concluded. But, those “last drinks” could not have effected your driving because they were unabsorbed at the time of driving.
H. Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the time of the test to the time of driving and relates to the absorptive phase/rising alcohol defense referred to in 19(6)(G) above. Again, a number of complex physiological problems are involved here including gender, body weight, what alcoholic beverages were consumed and when.
7. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc., and was in proper operating condition at the time of the test. Through the proper use of discovery, the defense can often unearth “foundational” deficiencies with respect to the state’s chemical evidence. What doesn’t get into evidence can’t hurt you at trial.
8. License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles. Most importantly, given the limitations imposed on a defendant’s right to engage in pre-trial discovery, the D.M.V. hearing is an excellent discovery tool and allows the defendant an opportunity to commit state witnesses to a “story” under oath.
However, from a practical standpoint, a defendant (“Petitioner” in the administrative proceeding) will almost invariably lose at the D.M.V. hearing.
There are many reasons for this: The same Administrative Law Judge sits as both judge and prosecutor — his or her inclination is to always uphold the suspension/revocation of your license.
Furthermore, a D.M.V. hearing is a civil, rather than a criminal, proceeding. Accordingly, the procedural safeguards inherent in a criminal proceeding (e.g., burden of proof, ability to “retro” test results, reliance on the inherent margin of error, etc.) are unavailable in a D.M.V. hearing. Nonetheless, D.M.V. hearing should be insisted upon because they are valuable discovery tools.
19. As a DUI lawyer, what would YOU do if you were stopped for DUI?
- Immediately request an attorney — Ask officer to note time of my request.
- Refuse to answer ANY questions (Other than name and address).
- Produce requested documents … be polite even if the officer isn’t.
- Refuse ALL field sobriety tests.
- Refuse a breath/blood/urine test (Unless I was sure I was under the legal limit)
I have some questions about my DUI case. Where can I go for answers?
When you’ve got a strong, effective defense, you’ve got options. For a free consultation with The Law Firm of Jeremy Rosenthal, call (303) 573-0543 or contact the firm online.
Denver DUI and Criminal Defense Attorney, Jeremy Rosenthal aggressively defends DUI cases, medical marijuana related legal issues, and criminal defense cases. The Law Firm of Jeremy Rosenthal - Denver, Colo