DUI Category Archives — Page 4 of 4 — Denver DUI Attorney Blog Published by Denver, Colorado DUI Lawyer

Feds won’t challenge Colorado Marijuana laws.

Published on: September 4, 2013 | by Monte J. Robbins, Esq.

CNN reports that the Federal Government won’t challenge Colorado’s marijuana legalization laws and will instead focus on serious traffic cases and preventing children from being exposed to the drug.

Marijuana is still illegal under federal law. It’s listed under the Federal Controlled Substances Act as a Schedule 1 drug. CBS News reports that Schedule 1 drugs are substances with a high potential for abuse and with no accepted medical use.

The Justice Department began relaxing its position on personal marijuana use in 2009. In that year, the Ogden memo was released by the Justice Department and basically indicated that prosecuting marijuana users was not their priority. This memo was clarified in 2011 with the caveat that the memo was just intended for marijuana users “not commercial operations for cultivating, selling, or distributing marijuana.”

However, under this new directive, federal prosecutors will have tightened prosecution standards. There are eight (8) enforcement priorities for federal prosecutors in reference to marijuana: 1) growing marijuana on public lands; 2) using or possessing marijuana on federal lands; 3) distributing marijuana to minors; 4) using legal sales to cover up trafficking operations; 5) using violence and or firearms in marijuana cultivation and distribution; 6) DUID driving under the influence of marijuana; 7) diverting marijuana from states where it is legal to those where it is not; 8) directing marijuana revenue to gangs and cartels.

This new directive is substantial progress for advocates of legal marijuana use not only in Colorado but also nationwide. Twenty (20) states and the District of Columbia permit medical marijuana use. Washington and Colorado are currently the only states who permit recreational marijuana use.

The new directive doesn’t alter federal money laundering rules. This still presents a problem for Colorado marijuana industry businesses. Many banks won’t do business with marijuana businesses in Colorado for fear of violating federal laws. Evan Perez of CNN writes that “Justice Department officials said there is some leeway for banks to provide services to such businesses, so long as they don’t violate the eight priorities being assigned to federal prosecutors”.

Many advocates of legal marijuana see the new directive as great progress for the industry, however some are still concerned and cite that the Obama administration has shut down more state-legal marijuana businesses in one term than the Bush administration did in two terms. According to an article by Nick Wing and Luke Johnson of the Huffington Post, the Obama Administration has spent nearly $300 million cracking down on medical marijuana.

Michael Roberts of Denver Westword quotes Governor Hickenlooper as reacting to the directive:

“We recognize how difficult this issue has been for the Department of Justice and we appreciate the thoughful approach it has taken. Amendment 64 put Colorado in conflict with federal law. Today’s announcement shows the federal government is respecting the will of Colorado voters.”

Only time will tell how individual Colorado’s U.S. Attorneys will interpret the new guidelines.
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NTSB wants to lower Colorado’s BAC limit to .05.

Published on: August 29, 2013 | by Monte J. Robbins, Esq.

The National Transportation Safety Board (NTSB) recently voted to lower the blood alcohol limit for alleged drunk drivers to .05 in Colorado and all other states. “The research clearly shows that drivers with a BAC above .05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured,” according to NTSB Chairman Deborah A.P. Hersman. The NTSB reports that approximately one-third of all traffic accidents are drug or alcohol-related.

The current limit in Colorado is .08 for a charge for DUI per se, and more than .05 but less than .079 for a charge of DWAI (the statute reads that there is a presumption that a driver is not DUI or DWAI if his BAC was .05 or less). However, even if a driver’s BAC is less than .08 some officers will still cite a driver for DUI, even if they are in the presumptive range for DWAI. Additionally, some officers will even cite for DWAI or DUI when a driver submits a blood or breath test below .051 and argue that the driver’s performance on the roadside maneuvers and/or her driving provide the basis (probable cause) for the charge.

According to the NTSB, alcohol levels as low as .01 have been show to impair a person’s driving and that a level of .05 has been “associated with significantly increased risk of fatal crashes.”

According to a an article by CNN, an 180 pound male will reach a BAC of .08 after consuming four (4) drinks over a one (1) hour period. It may take only two (2) to three (3) drinks for that same male to reach a BAC of .05 over a one (1) hour period. Thus, the proposed change could certainly increase the number of drivers who are charged with DUI in Colorado.

Studies show that a woman weighing less than 120 pounds can reach a BAC limit of .05 after just one (1) drink.

There are many factors that determine a person’s blood alcohol content beyond just weight and gender. Various blood alcohol calculators online will attempt to calculate a person’s BAC for them based upon factors they input into the program. However, these calculators should not be used to determine whether or not a person should get behind the wheel, because they are not precise and other factors will influence a person’s actual BAC.

According to the NTSB, the change in the BAC limit would save 500 to 800 lives per year. The NTSB report sites the BAC limit in Queensland, Australia that was lowered from .08 to .05 and resulted in a decrease of fatalities by 18%.

The NTSB does not have the authority to make laws, however its recommendations are very seriously considered. It may be years before Colorado implements a .05 BAC limit but it appears that Colorado and all other states are likely to lower their BAC.
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What is the benefit of a deferred sentence in a DUI case if you can’t seal it?

Published on: April 10, 2013 | by Monte J. Robbins, Esq.

The Colorado Court of Appeals recently announced that you can’t seal a successfully completed deferred judgment and sentence for a DUI offense. In the Matter of the Petition of Paige Harte, the Court found that Ms. Harte successfully completed a deferred judgment for her alcohol-related driving offense, but was not eligible to seal her record. The record sealing statute excludes convictions for alcohol-related driving offenses from eligibility. Therefore, the Court reasoned that the term “conviction” in the record sealing statute also applied to a successfully completed deferred sentence, even though Ms. Harte’s case was dismissed and she ultimately was not convicted. If you’re confused about this reasoning, you’re not alone.

Due to this recent ruling, the benefits of a deferred judgment in the DUI context are minimal.

One of the “selling points” of a deferred judgment and sentence in any criminal case is the ability of a defendant to get the case off their record at the end of the deferred period by sealing all the records. It’s another chance at a “clean slate”.

The way a deferred works is that a defendant pleads guilty to a criminal charge, but the judgment of conviction is deferred for a set time period. During the set time period, the defendant complies with probation and stays out of trouble. If the defendant completes all the terms and conditions of the deferred judgment, his case will be dismissed with prejudice at the end of the deferred period. A defendant will typically want to seal all of the records associated with his case at the end of the deferred period. It essentially gives a defendant a “fresh start” or a second chance at life with a clean and clear criminal history. Once the records are sealed, Colorado law provides that a defendant can also deny the record and indicate that no such record exists.

A dismissal is a great result in any criminal case because the percentage of cases that result in a dismissal are low. However, a dismissal should also come with the benefit of a defendant being able to seal his or her record.

In today’s competitive job market, the majority of companies run some sort of a criminal background check on prospective applicants. According to the National Consumer Law Center, 93% of employers run criminal background checks on some applicants and 73% of employers run criminal background checks on all applicants.If an applicant has a record that has been properly sealed, the company should not be able to find the record and the applicant can lawfully state, under Colorado law, that he/she has not been arrested and no such record exists. Essentially, the applicant can answer “no” to a criminal background question (assuming that he/she has no other criminal history records).

On the other hand, if an applicant has a record that has been dismissed, all of the records will likely still appear in a person’s background. And often times, even though no conviction enters on a dismissed case, many potential employers are reluctant to hire an applicant with a “criminal history”. It seems that often times employers do not distinguish between an arrest, charge, and a conviction. Thus any record of criminal activity, regardless of the actual outcome, may negatively impact a job applicant. Thus it is unfortunate to see that the Colorado Court of Appeals has determined that the benefits of a record seal do not apply to those who have successfully completed a deferred sentence in a DUI case.
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Should “Drunk Driving. Over the Limit. Under Arrest.” be changed to “Drunk Driving. Under the Limit…still Under Arrest”!?

Published on: September 12, 2012 | by Monte J. Robbins, Esq.

The National Highway Transportation Administration (NHTSA) sponsors various national campaigns throughout the year to promote safety on the roadways. One of the campaigns indicates that if you are driving “over the limit”, that you will be placed “under arrest”. The message is seemingly simple and clear. And in many cases this message holds true. If a driver is driving with an alcohol content (BAC) which exceeds “the limit” and is stopped, he will be placed under arrest. On the other hand, in many cases, this message does not hold true and does not reflect what is happening in our court system.

Specifically, the message infers that the converse is true: that if you are driving “under the limit”, that you will not be placed “under arrest”. As a Colorado DUI lawyer, I’ve seen many cases where this does not happen. Drivers are routinely arrested when their BAC is below “the limit”.

In Colorado, and all 50 states, the commonly referred to “limit” is .08 grams of ethyl alcohol per one hundred (100) milliliters of blood or .08 grams of alcohol per two hundred ten (210) liters of breath. The public knows “the limit” is .08. All states have passed legislation making .08 the per se limit.

But what about the other limits in Colorado? In Colorado, it is assumed (“permissible inference”) that you are driving while ability impaired (DWAI) if you have a BAC (blood or breath) of .05 to .079. As a Colorado DWAI defense lawyer, I regularly see people who have been charged with DWAI who have a BAC under the limit of .08.

DWAI is a serious offense with serious consequences. It is an alcohol-related (also can be drug-related) traffic offense that carries the majority of the same penalties as the greater offense of DUI. It also carries most, if not all, of the collateral consequences associated with a DUI offense.

And as shocking as it may seem, I’ve seen cases where law enforcement have charged drivers with DWAI or DUI even if their BAC is below .05! In Colorado, the law reads that you are presumed to not be under the influence and not impaired by alcohol if your BAC is below .05, but some officers ignore that law and charge the offense anyway.

In other cases, if a driver refuses a blood or breath test, he will be arrested anyway. Thus, even though no chemical test has shown that he is “over the limit”, he is still “under arrest”.

Although the intent of the message “over the limit, under arrest” is to curb drunk driving, Colorado drivers need to be aware that they can be charged with DUI or DWAI even if they haven’t reached any statutory numerical “limit”. If an officer has probable cause to believe that a driver is impaired to the slightest degree (DWAI) or substantially incapable of safely operating a motor vehicle (DUI), the driver will likely be charged regardless if she is “over” or “under” “the limit”.
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Can you be arrested for a DUI in Colorado even if you’re not driving?

Published on: October 24, 2011 | by Monte J. Robbins, Esq.

The short answer is yes. You can be charged, and you might be convicted. However, just because you may have been arrested for a DUI in Colorado, doesn’t mean that the prosecution will get a conviction. The conviction is what matters. You’re innocent of the DUI until they prove it.

If you go to trial on a DUI in Colorado, the jury will get an instruction as to the elements of the charge, to include that: 1) the defendant; 2) in the State of Colorado, at or about the date and place charged; 3) drove (or was in actual physical control of) any vehicle; 4) while under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].

Driving a vehicle is self-explanatory. Actual physical control is a little more subjective. This is where the “fun” starts.

The Colorado Supreme Court opinion in People v. Swain, 959 P.2d 426, 430 (Colo. 1998) is the most up-to-date case on the meaning of “actual physical control”. According to the case, actual physical control is to be determined by the “totality of the circumstances”. The Swain court looked to the following factors to determine if a person was in actual physical control: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor vehicle’s ignition; 4) whether or not the motor vehicle was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based upon your every day experience. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle.

Thus according to Swain, a car doesn’t have to actually be moving down the road for an occupant to be determined to be in actual physical control, and thereafter be convicted of DUI. On the other hand, DUI cases can be won on these factors as well. Thus, although the common sense meaning of driving has been expanded, the above-referenced factors can be very helpful at beating a case where there is no movement of the vehicle.

It is important to note that the list of factors in Swain is not exclusive. Additional factors may be considered under the blanket language of factor number 5 (“any other factor”) listed above.

Whether or not the defendant allegedly drove on a public road, private road, or private property is not a factor. The Colorado Supreme Court held in Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) that Colorado’s Express Consent Statute applied to private parking lots.

There have been many cases previous to Swain that have pondered unique fact patterns to determine the boundaries of actual physical control. These cases are sometimes helpful in fighting a DUI allegation where driving is not witnessed.
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Driver Beware: If you’re pulled-over alongside the road in Colorado “sleeping it off”, you might be fair game for the cops.

Published on: June 7, 2011 | by Monte J. Robbins, Esq.

The best decision that you can make if you are impaired (even to the slightest degree) or intoxicated is to never get behind the wheel of a vehicle. Period. Because alcohol impairs judgment, sometimes a person will start to drive and later realize that he/she is not safe to drive; and pull over alongside of the road and “sleep it off” or call a sober driver for a ride. From a moral standpoint, this is the absolute best action to take. Who in their right mind would argue that an impaired or intoxicated driver should continue driving? Not me.

Unfortunately, it’s not a good idea from a DUI defense standpoint to stop along side the road if you’re intoxicated or impaired. A couple of cases always seem to rear their ugly heads in this situation. Firstly, in Colorado, you don’t have to be “driving” a vehicle (in motion) to be convicted of a DUI. You simply need to be in “actual physical control”. Actual physical control is determined by the totality of the circumstances to include: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor’s ignition; 4) whether or not the motor was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle, or not, based upon your everyday experience. The jury will get this instruction if it is relevant to the case and the Court lets it in. These factors come from the Colorado Supreme Court’s decision in People v. Swain, 959 P.2d 426 (Colo. 1998).

Secondly, you don’t actually have to commit a major traffic offense or minor traffic infraction to be contacted by the police in your car. If you’re already stopped, the Court says that the police can “request your voluntary cooperation”. Make no mistake about it, an experienced police officer is well-versed in how to shake you down a/k/a “initiate a consensual encounter” when you are already stopped. I find this phrase rather amusing. When a citizen is contacted by the police, it doesn’t seem like there is ever anything “consensual” about it. However, the Colorado Supreme Court indicates that there are situations when a citizen is voluntarily cooperating with the police when the police questions start to fly.

According to the Court, not all police-citizen encounters implicate the Fourth Amendment. It held in People v. Marujo, 192 P.3d 1003 (Colo. 2008) that a “consensual encounter” is not a seizure, but rather a request for cooperation that does not implicate the Fourth Amendment. The Court held that there are three general categories of police-citizen encounters: 1) arrest; 2) investigatory stop; 3) consensual interview. The first two categories implicate the Fourth Amendment, whereas the latter does not.

The Court goes on to enumerate the following factors in an attempt to distinguish an investigatory stop, which requires reasonable suspicion of criminal activity, from a consensual encounter: 1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; 2) the number of officers present; 3) whether the officer approaches in a non-threatening manner; 4) whether the officer displays a weapon; 5) whether the officer requests or demands information; 6) whether the officer’s tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; 7) whether the officer physically touches the person of the citizen; 8) whether an officer’s show of authority or exercise of control over an individual impedes that individual’s ability to terminate the encounter; 9) the duration of the encounter; 10) whether the officer retains the citizen’s identification or travel documents. The Court further held that in order for the police-citizen interaction to rise to the level of seizure with Fourth Amendment protections, the obligation to comply must exceed the obligation an innocent citizen would normally feel to cooperate.

If you were trying to do the right thing and pulled-over to sober-up, but are now charged with a DUI, it’s a good idea to get help from an experienced DUI attorney. How you are initially contacted may be crucial to your defense. Even though the Marujo case makes it easy for police to initiate contact with a parked motorist, they still need to follow a very specific protocol, otherwise, their request for cooperation quickly becomes a seizure within the Fourth Amendment. Thus, the bright side of the Marujo case for a defendant is that it gives a knowledgeable DUI defense attorney a lot of issues to argue to the prosecutor and the Court.
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