Articles Posted in DUI

Colorado’s Felony DUI law is relatively new and went into effect on August 5, 2015.  In Colorado, driving under the influence (DUI), driving under the influence per se (DUI per se) and driving while ability impaired (DWAI) offenses are misdemeanors.  However, under the new law, a fourth offense (of DUI, DUI per se, or DWAI) is now a Class 4 Felony if the current offense occurred after three or more prior convictions arising out of separate cases for DUI, DUI per se, vehicular homicide, DWAI, or vehicular assault.  These five offenses are considered “priors” if they are convictions under the laws of Colorado, the U.S., any state in the U.S., and any territory under the jurisdiction of the U.S.

Some previous offenses do not result in convictions.  Thus if a person is facing a potential Felony DUI, it’s critical to determine whether or not a previous offense actually resulted in a “conviction”.  An example of a DUI charge not resulting in a conviction would be a case that was dismissed.  Another example of a DUI charge that does not result in a conviction would be a successfully completed deferred judgment and sentence.  Under a deferred judgment and sentence a guilty plea to a charge enters, however if the defendant complies 100% with the terms and conditions of the deferred and successfully completes it then the plea is withdrawn and the case is dismissed.  An additional example of a DUI charge not resulting in a conviction is through the trial process whereby a defendant is found not guilty.  Thus, every case that is charged as a DUI or DWAI under Colorado law or the laws of another state does not necessarily result in a conviction.

The punishment for a Class 4 Felony DUI is 2-6 years in prison (exceptional circumstances may lower this presumptive range to 1 year or increase the range to 12 years) if incarceration is the most suitable option in light of the facts of the case.  A fine of $2000 to $500,000 may also be imposed.  A defendant will also be subject to 3 years of mandatory parole.  By law, the Court  must consider the defendant’s willingness to participate in treatment, whether all reasonable and appropriate sanctions have been exhausted, do not appear likely to be successful, or there is an unacceptable risk to public safety.  Thus, in light of the provisions of the new law a defendant may avoid prison time, however the discretion is left in the hands of the Court.

Clearly multiple offense DUIs in Colorado are extremely serious.

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As the holidays are quickly approaching, police agencies are out in full force looking for impaired drivers. Colorado law enforcement agencies typically expect more motorists to be on the road traveling to grandma’s house, meeting up with friends, or perhaps attending an office party or other holiday party. It’s important that drivers in Colorado take precautionary measures to avoid driving under the influence. The following is a list of tips that I have gathered during my experience defending many drivers in Colorado accused of driving under the influence.

Tip 1. Don’t drink and drive. In fact, don’t drink any alcohol and then drive. Don’t rely upon the “system” to avoid a DUI. The DUI prosecution system is not designed to protect you. Officers can come to the wrong conclusion about who is DUI and who is not. Portable breath tests, Intoxilyzer machines, and Blood tests can give erroneous results. Often times the people conducting these tests don’t conduct the tests correctly. People make mistakes and machines are not infallible. In Colorado, you can be charged with a DUI with any trace amount of alcohol in your system. Thus, it’s best not to put yourself in that position.

Tip 2. If you decide to sleep it off and spend the night in your car on the side of the road, think again. You’re better off spending a few bucks and staying at a motel. A DUI will cost you much more than one night’s stay at a motel. In Colorado, you can be charged with a DUI if you’re sleeping it off in your car, thus it’s not worth the risk.

Tip 3. Take a cab. A cab ride is cheaper than a DUI. Store taxi cab numbers in your cell phone or information for RTD routes and times from your location.

Tip 4. Have a designated driver that doesn’t drink any alcohol. A designated driver doesn’t do anyone any good if he or she starts drinking. If a designated driver starts drinking as well, it’s best to have a back-up plan such as taking a cab or calling a sober friend.

Tip 5. Call a sober friend for a ride.

Tip 6. If you insist on drinking and then driving, know that you’re playing Russian Roulette regardless of how much you’ve had to drink. Eat enough food and hearty food to have a full stomach. These foods slow down the absorption rate in your stomach.

Tip 7. Avoid carbonated mixers and sparkling wines. These drinks speed the absorption of alcohol.

Tip 8. Check your car to make sure everything is in working order. Especially check all lights including license plate light bulbs and brake lights. Headlamp, tail lamp, valid registration stickers, and turn signal functions should also be checked. Take the plastic clear or smoke covers off your license plates! Many DUI cases start with something simple as a “license plate bulb out”.

Tip 9. If you drive, pay attention to all highway regulation signs. Drive the speed limit. Not over, not under. Use your turn signal. Dim your high beams. Stop at stop signs. Don’t weave between the lines.

Tip 10.Have your driver’s license, registration, and insurance documents readily available and current. Don’t fumble around in your car to find them. Know where they are and be able to confidently access them in the event you get stopped. Fumbling around trying to find documents can be an indicia of impairment.

Tip 11.Avoid DUI checkpoints. Search online and in the newspaper to find out where the DUI checkpoints will be before you go out.

Tip 12.Stay off your cell phone when driving. It’s a distraction. Leave the radio tuned where it is.

Tip 13. Wear your seatbelt for obvious reasons.

Tip 14. Don’t rely upon “one drink per hour and I’m ok” rule. Unfortunately, I’ve had many clients who have relied upon this rule and have ended up with a DUI. How the body processes alcohol is a little more complex than just one drink per hour. It depends upon a number of factors including, food in the stomach, body weight, hydration, gender, the strength of the drink, etc.

Tip 15. Driving to locations close to your home doesn’t ensure that you’ll escape a DUI. Here again, I’ve had many clients who have been stopped close to their home and some even as they are turning into their driveway and charged with DUI. Law enforcement in Colorado won’t give you a “pass” simply because you are “almost home” or your house is “right around the corner”.

Tip 16. If you get a DUI, get a lawyer to represent you that has experience defending clients accused of DUI. Shy away from lawyers who handle every type of case under the sun such as “divorces, wills, personal injury, workers comp….and DUI cases”. Look for lawyers who dedicate a significant portion of their practice to DUI defense. DUI defense is a complicated area. Make sure the lawyer answers all your questions, that you are comfortable with the lawyer, and can effectively communicate with him about your goals regarding the case.

It’s important to remember that the penalties in Colorado for drinking and driving are severe. DUI drivers face jail time, loss of driver’s license, and many collateral consequences as a result of a DUI charge. A little common sense and planning can go a long way towards a safe and happy holiday season.
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An Upper Darby Pennsylvania man was recently arrested for his 11th DUI in Delaware after being released on another DUI two days previously. Cindy Scharr of the Delaware County News Network writes that:

“James John Duggan, 54, posted $1,000 bail on July 9 and walked out of Delaware County prison, where he had been incarcerated since March on charges stemming from a DUI arrest in Tinicum, according to court records.”

Under Delaware law, a third offense is a Felony according to Mothers Against Drunk Driving.

In comparison, a second offense within 5 years is a Felony in Indiana. A second offense depending upon the circumstances is a Felony in Minnesota. Both New York and Oklahoma classify a second offense as a Felony if the prior was within 10 years.

If the driver has a previous offense within the past 10 years, a third offense is a Felony in the following states: Alaska, Connecticut, Florida, Michigan, South Dakota, Utah, and Virginia.

Arizona, Delaware, Idaho, Illinois, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Nevada, North Carolina, Texas, Vermont, and West Virgina classify a third offense as a Felony, regardless of when the prior offenses occurred.

A fourth offense is a Felony in the following states if a prior offense occurred within the previous five years: Alabama, Arkansas, Wisconsin, and Wyoming. Ohio utilizes a six year look back period for a fourth offense Felony determination.

A fourth offense is a Felony in the following states regardless of when the prior offense occurred: California, Hawaii, Kentucky, Louisiana, Montana, New Hampshire, New Mexico, and Oregon. Georgia and Tennessee look back ten years to determine if the fourth offense charged will be a Felony. North Dakota looks back seven years and Nebraska twelve years.

A fifth offense is a Felony in Washington state. The District of Columbia, Colorado, Maryland, Maine, and Rhode Island do not have a Felony DUI offense based upon the number of priors a driver has.

In Colorado, prior offenses unfortunately are a common occurrence and the penalties rapidly increase for drivers who have a prior conviction anywhere in the United States. However in Colorado, the prior offense has to be a conviction to be a “prior”. Sometimes a prosecutor will try to argue that a prior offense should be treated as a conviction, even when it is not. Thus, it’s important to secure the court records for any prior offense that is not actually a conviction.

A study by the Denver Post found that one in three drivers arrested for DUI in Colorado had a prior offense. Kevin Vaughan and David Olinger of the Post report:

“From 2005 to 2007, an average of 31,011 alleged drunken drivers were arrested each year in Colorado, according to statistics compiled by the Colorado Bureau of Investigation. During that same three-year span, an average of 10,835 drunken drivers each year had at least one prior DUI arrest, according to Division of Behavioral Health data from probation-department evaluations of drivers facing DUI charges.”

The penalty for a first offense DUI is 5 days to one year in jail. The jail can be suspended. A second offense brings a minimum of 10 days to one year in jail. A third or more offense calls for a sentence of 60 days to one year in jail. Actual sentences vary greatly depending upon the facts of the case, the jurisdiction, the position of the district attorney, and how the driver is presented to the Court by experienced counsel.
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This figure is down approximately 100 arrests from the similar period in 2012 from August 17, 2012 through September 4, 2012, according to an article by Andy Koen of KOAA News.

1442 was the estimated number of DUI arrests over the similar period in 2011 according to an article by Michael Roberts of Westword.

By comparison, California reported 2313 arrests during the similar time period this year according to an article by the Antelope Valley Times: “During the 18-day campaign, 100 county law enforcement agencies conducted sobriety checkpoints, special saturation patrols and routine patrols, which resulted in 2,313 arrests countywide for driving under the influence of alcohol or drugs.”

However, California’s population in 2012 is reported at 38.04 million people. Whereas Colorado’s population in 2012 is reported at 5.188 million people. Thus, Colorado’s DUI arrest rate over the same time period is about 7.5 times that of California’s.

A DUI arrest can be a startling event in a person’s life. There are many consequences beyond the court case which should be considered while the case is still pending in the courts. A DUI conviction in Colorado will stay on a person’s criminal and motor vehicle record forever. A DUI conviction can have a severe impact upon a person’s driver’s license, insurance rates, schooling, social consequences, employment, future employment, and a host of other issues.
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According to an article by Matt Farley of KDVR, “Witnesses Monday said the man hit the horse hard enough that it reared up on its hind legs.” “Officers observed that the rider was slumped to his right side as he crossed streets and forced pedestrians off the sidewalk.”

The Salt Lake Tribune, Matthew Piper, reports that the rider was arrested for suspicion of “animal cruelty, prohibited weapons use, riding a horse while under the influence of alcohol, and reckless endangerment.”

The DUI laws in Colorado state that it is illegal for a person who is under the influence of alcohol or one or more drugs (or a combination) to drive a motor vehicle or vehicle. Obviously a horse is not a motor vehicle. However, is it a vehicle? The statutes read that a vehicle is a bicycle, an EPAMD, or an electrical assisted bicycle. The statutes also indicate that a vehicle is not a wheelchair, a snowmobile, a farm tractor, off highway vehicle, or an implement of husbandry designed primarily or exclusively for use is agricultural operations, or a device designed to move through the air or stationary rails or tracks.

Thus, the short answer is no. A horse is not a vehicle. There is no DUI case here. A bicycle can get you a DUI, but a horse can’t.

There is however, a charge of animal rider on highway under the influence of alcohol/controlled substance. The penalty for this charge is a small fine only. It is a class B traffic infraction. The maximum penalty is $100.00 and no points on a driver’s license. This charge is small potatoes. The other charges for the rider are of much more concern.

To prove the possession of a weapon while intoxicated charge, the prosecutor will have to show that the rider had in his possession a firearm while under the influence of an intoxicating liquor or a controlled substance. If found guilty, the charge is a Class 2 Misdemeanor that carries the possible penalty of 3 months to 12 months in jail.

To prove the reckless endangerment charge, the prosecutor will have to show that the rider engaged in conduct which creates a substantial risk of serious bodily injury to another person. This offense is a Class 3 Misdemeanor which carries a possible penalty of 6 months in jail.

In order to prove animal cruelty, the prosecutor will have to prove, in summary, that the rider knowingly, recklessly, or with criminal negligence overdrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, or protection from the weather consistent with the species, breed, and type of animal involved, or abandons an animal. Cruelty to animals is a Class 1 Misdemeanor punishable by 6 months to 18 months in jail.
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