Common Criminal law, D.U.I. / drinking and driving Questions
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Justice for All..
The secret to a criminal jury trial is “The whole secret lies in confusing the enemy, so that he cannot fathom our real intent.” Sun Tzu- The Art of War.
1. WHAT SHOULD I DO IF THE POLICE WANT TO TALK TO ME? WHAT SHOULD I SAY?
Don’t say anything. Anything you say will be used against you. If you have to open your mouth, be very polite and say:
A) I didn’t do anything.
B) I want a lawyer!
2. WHAT IS YOUR SALES PITCH?
I don’t have one. I am not going to tell you about what a “miracle worker I am,” how many cases I’ve won or how I have never lost a Court of Appeals case. If you have a criminal law problem, or a DUI, you need some straight advice, not a sales pitch.
What I can tell you is I’m a good lawyer. I know when to fight, when to settle and when to run. If you have a criminal law problem, your life and liberty are in jeopardy.
Typically, if you call ten attorneys, most of them will tell you that your case is “good.” That is because every case is a winner and every case is a loser. So the attorney is going to be optimistic. Besides, would you hire an attorney who said you had a bad case?
When you ask about the price or cost of your action, most lawyers will say “costs vary.” It depends on whether the case goes to trial, or a plea agreement is reached with the district attorney and how much work the case takes. The sales pitch concludes with, “lets start off with a $1500 retainer. I will fight like a rabid pit bull for you. I am the lawyer the other side does not want you to hire, etc. etc. etc.”
Of course, we both know what happens next.
You get the old “bait and switch.” Suddenly, the attorney is saying that there are problems with the case. Suddenly, the attorney is saying this case will cost triple what he quoted. Suddenly, you start getting bills for another $1500, then another $1500 and so on. What happened here is you fell for a sales pitch and were told some very unrealistic expectations as to price, strategy and the odds of winning. At this point, please call me for advice.
3. WHY SHOULD I HIRE A LAWYER? CAN’T A CRIMINAL DEFENDANT GET THE SAME PLEA BARGAIN AS A LAWYER?
If we are talking about a small infraction, such as shoplifting first offense, traffic tickets, and DUI with a low BAC in the .05 – 1.00 range, yes. But only a lawyer can take a case to trial, find a loophole to get the case dismissed and figure out how to get a guilty client the minimum punishment. Further, half my job is to provide you with a service. That is, walk you through the process, do your talking for you, explain to you what is going on, and making the whole crime “easy.” On any Criminal matter, call me immediately! I will do three things for you:
A) I will try to have your case dismissed, or take it to jury trial to prove your innocence.
B) If the evidence is against you, and I can’t find a loophole or technicality we can exploit, I will mitigate your damages. That means “damage control.” I will fight to get you the smallest punishment, best option, lowest sentence and fine possible.
C) I will make sure that you won’t have to go through the criminal processes, and stand before a Judge, alone. I will be there to watch your back.
NO CASE IS HOPELESS. FIGHT EVERYTHING, TAKE EVERYTHING TO TRIAL. YOU ARE INNOCENT TO PROVEN GUILTY.
“The clever combatant imposes his will on the enemy, but does not allow the enemy’s will to be imposed on him.”
– Sun Tzu, The Art of War
“In the midst of chaos, there is also opportunity.” “Quickness is the essence of the war.” – Sun Tzu, The Art of War
4. I THINK I HAVE A WARRANT FOR MY ARREST. SHOULD I CALL THE POLICE AND ASK THEM?
You can always try. Most police stations will tell you to come down in person and request a warrant search. If there is a warrant for your arrest, they arrest you on the spot. Maybe you should call a lawyer first…..
5. DO YOU HANDLE SEXUAL ASSAULT CASES?
All the time. These are the most difficult cases because they need to be handled properly. At the beginning of the case, the client and the lawyer must choose a strategy…either fight -fight -fight or take a plea bargain and do damage control. These cases are very expensive and….well, I’ll give it to you straight. It will ruin your life. You need a good lawyer who knows what he is doing.
There are no easy plea bargains with sexual assaults. The best deal you are going to get, short of a dismissal or dropping the charge to “harassment,” is no jail, probation for over three years, registering as a sexual offender (probably for 10 years to life) and years of intense probation and sexual offender classes. If you win at trial, the case will be dismissed…but if you lose….you will get jail time. For a rape case, four years to life.
6. CAN I BE FIRED FROM MY JOB FOR SMOKING MARIJUANA?
Oh yes. Since 2009, several attorneys have tried to challenge this fact in the Colorado Court of Appeals arguing the constitutional right to smoke marijuana for medical and recreational reasons. Unfortunately, they all lost. The Court of Appeals has ruled that employers may enforce a strict “zero tolerance” policy that you consent to because you agreed to work there. So if your boss says he will fire you for any trace of booze, drugs or marijuana in your urine sample, he is telling you the truth and legally he can fire you on the spot. If you don’t like it, quit. He can also tell you not bring a gun to work, even with a permit. Remember, in Colorado employment is at will.
7. IN COLORADO, MAY I SMOKE MARIJUANA ON CRIMINAL PROBATION?
It depends on the County. Since 2009, several attorneys have tried to challenge this fact in the Colorado Court of Appeals by arguing the constitutional right to smoke marijuana for medical and recreational reasons. At first they lost, but now the issue is unclear. The general rule is if you have a medical reason, and a medical MJ card, you may smoke on probation. No MJ card, no smoking.
Why is that? Once a defendant has agreed to a plea bargain, part of that agreement is to violate “no laws” while on probation. Therefore, they may not smoke as that violates Federal laws. Further, they have consented to the jurisdiction of the probation department and therefore have contractually agreed to “use no drugs without a prescription.” Remember, no doctor may prescribe marijuana in Colorado….only certify that one may obtain a waiver and certificate decriminalizing the possession of marijuana. Lastly, any one on criminal probation has there constitutional rights curtailed. That is, you may not posses a gun, consume alcohol, violate any laws and consent to the probation department telling you what to do, whether that means classes and community service or working a job and being drug tested from time to time.
8. WHAT IS THE LEGAL LIMIT FOR MARIJUANA?
If a person’s ability to operate a vehicle is affected to the slightest degree by alcohol and/or drugs they can be arrested for a DUI or DWAI.
Delta 9-tetrahydrocannabinol (Delta 9 THC) is the psychoactive substance that creates impairment from using cannabis. Delta 9 THC becomes inactive once metabolized by the body – but that can take hours to happen and leaves you at risk for a DUI.
The limit in Colorado of active Delta 9 THC in a driver’s blood, which gives rise to a “permissible inference” that the person is under the influence of cannabis, is five (5) nanograms or more per milliliter in the whole blood.
Drivers can be arrested and cited for impaired driving if law enforcement observes and documents driver impairment to any degree, even with a blood level below 5 ng of Delta 9 THC.
9. WHAT IS OPEN CONTAINER? WHAT CAN I CARRY IN MY CAR?
No open containers OF ANY SORT!
Neither drivers nor passengers are allowed to open any cannabis packaging or use the product while in a vehicle. You can be charged with a traffic offense if the cannabis product seal has been broken, some of the product has been consumed and there’s evidence that it was used in the vehicle.
All drivers and passengers are also required to abide by the possession (quantity) limits set by the state. Adults 21 and older can have up to TWO (2) ounces of cannabis.
10. HOW MANY POINTS DO I HAVE ON MY COLORADO DRIVER’S LICENSE?
This is a tad vague…but the law book says, “In Colorado, a driver between the ages of 16 and 18 can accumulate 6 points in any 12 consecutive months, or 7 points for the period of the license, so really a driver can only accumulate 7 points between the ages of 16 and 18. Once a driver reaches age 18 but before they turn 21, they can accumulate 9 points in 12 consecutive months, 12 points in a 24 month period of time, or 14 points for the duration of the license. Finally, when a driver reaches age 21, they can accumulate 12 points in 12 months or 18 points in a 24 month period of time.”
11. HOW CAN I REINSTATE A SUSPENDED OR REVOKED COLORADO DRIVER’S LICENSE?
You are eligible to reinstate if you have served all the time that was required under restraint on all of your restraint actions. However, there are several shortcuts which will allow you to obtain a probation license allowing you to drive during your suspension period. For example, if you’re suspended for one year for a second drinking and driving offense, you could wait for 12 months or apply for interlock. The department will reinstate a driving privilege if all of the reinstatement requirements, such as SR 22’s, drinking and driving classes, reinstatement fees, etc. are met and your driving privilege is not under restraint for any other type of action (such as another case or perhaps a child support suspension).
I have argued for years that a person gets a better deal with a DUI then a DUR or DUS because you can obtain a probation license and reinstate early with a drinking and driving offense but the Government won’t allow you to drive at all for at least a year if you’re caught driving on a revoked or suspended license. For years, Criminal Defense Attorneys have argued that this is manifest unfair. Because most people need to drive for employment, school or simply getting food from King Soopers, having your drivers license revoked is worse than serving a jail sentence. The law makes good citizens who are not drunk drivers into criminals because they drive on a suspended license. The good news is that the Colorado Legislature is seriously thinking about changing the law and allowing people with DUR and DUS to drive with the interlock device as if they were drunk drivers. Therefore, all you people out there with suspended or revoked licenses don’t have to commit the offense of DUI just so you can drive! For more information please see C.R.S. §42-2-138.
12. HOW DO I DRIVE IN COLORADO IF MY OUT OF STATE LICENSE IS SUSPENDED?
Let me be the first person to tell you that this is a real “pain in the rear end.” Driving Privilege Under Restraint in Another State? Perhaps you did not show up to court or showed up but failed to pay the fine on a few speeding tickets? You have to call that state, clear up the traffic infractions, and obtain a “Letter of Clearance.” Take the Letter of Clearance to Colorado DMV and they will allow you to apply for a new Colorado drivers license. Also make sure that DMV clears your name from the National Driver Register (NDR). You can click on my DMV link on the Home Page for more information.
13. **NEW LAWS BEGINNING JANUARY 1, 2014 HAVE CHANGED MOST OF THE OLD DUI AND DMV DRIVER’S LICENSE LAWS TO THE BENEFIT OF YOU AND ME!
The Government as of January 1, 2014 has significantly changed several laws involving alcohol and drug violations, Persistent Drunk Drivers (PDD) and the Ignition Interlock program. Those changes include:
-The reduction of the Blood Alcohol Content (BAC) on a chemical test from 0.17 to 0.15 results in a Persistent Drunk Driver designation. See C.R.S. 42-1-102 (68.5) and C.R.S. 42-2-132.5 (1)(b).
-The refusal of a chemical test at a traffic stop on or after January 1, 2014 will now result in a Persistent Drunk Driver designation. Basically this increases your jail time and punishment.
-If you have refused a chemical test prior to January 1, 2014 and were previously ineligible to reinstate early with Interlock, you may now either finish serving the remainder of your revocation and reinstate with full driving privileges, or serve at least two months and apply for early reinstatement with Interlock for one year. You are not eligible for Financial Assistance in this case.
-If you have multiple alcohol violations or refusals on your record, the wait time for early reinstatement with Interlock has been reduced to one or two months, respectively.
14. WHAT HAPPENED TO PLEADING A DUI TO A RECKLESS DRIVING?
While this was a common plea-bargain 10 years ago, reducing a DUI to a reckless driving has become rare because the Colorado legislature has closed the “loophole” which allowed us Defense Attorneys to get these great plea bargains. C.R.S. § 42-4-1301 (4) prohibits the Judge from accepting any non–alcohol related plea bargains, such as reducing a DUI to a Reckless driving or some other traffic ticket, unless the District Attorney stands up in court and admits to the Judge that a prima facie case cannot be established if the defendant was brought to trial. So basically, the District Attorney has to admit to the entire court room that he doesn’t have a case and the defendant was unjustly charged with DUI. This rarely happens because what District Attorney wants to make a fool of himself in open court?
15. IS DUI A STRICT LIABILITY CRIME?
Sadly, yes. C.R.S. § 42-4-1301 (3) states that DUI and DWAI are both strict liability. That means, if alcohol is found in your system and you are driving a car, you are automatically guilty no matter the circumstances. Therefore, you cannot claim that someone “put something in your drink,” or that you blacked out and had no idea what you are doing, through no fault of your own.
16. COLORADO DUI and DWAI QUESTIONS
As of July 2010, the Colorado Legislature enacted the harshest DUI law I have seen in 20 years. Basically, the Government thinks that if you don’t see the inside of a jail cell, you won’t learn your “lesson.”
Why did the legislature change the law? Because the insurance companies paid the lobbyist who paid the politicians to “crack down on drunk drivers.”
A) FIRST DUI: If your blood alcohol was over 0.08, you can do 5- 365 days in jail with a fine of $600 – $1000, 48-96 hours of useful public service, up to 2 years of probation and costs and surcharges of over a $1000! All that for your first DUI!
B) FIRST DUI and BAC OVER 0.20: If your blood alcohol level was over .20, guess what? More jail time! Now the Judge MUST put you in jail for 10-365 days. The new law indicates that the Judge must give you at least 10 days in jail. However, I can argue that your time should be spent on work release or in home detention with an ankle monitor.
C) FIRST DWAI: If your blood alcohol if over 0.05 – 0.08, you will be charged with driving while ability impaired. You will be imprisoned in the county jail for 2-180 days, fined $200-$500 dollars, put on probation for up to 2 years and required to perform 24-48 hours of useful community service. Costs and surcharges will be over $750.
D) FIRST DWAI and BAC OVER 0.20: Basically, the same punishment as a first DWAI but the jail is increased to 10-365 days. Very similar to First DUI with BAC over .20. I will ask the Judge to have your sentence served via work release or in home detention with an ankle monitor. Remember, you have to do jail. It is Mandatory.
E) SECOND OFFENSE OF EITHER DUI OR DWAI WITH A PRIOR DUI, DWAI OR DRIVING UNDER RESTRAINT:
You must go to jail for 10-365 days. If the last offense was over five years ago, work release or in home detention with an ankle monitor may be authorized, but the Sheriff will not allow you to earn “good time” or “earned time” or “trustee status” credit. You have to do at least 10 days. The Sheriff may let you out to work, seek medical treatment or attend educational classes.
If the last offense was within five years, you cannot get in home detention. No ankle monitor and serving your sentence at home! You must do 10 days. The Sheriff may let you out to work, seek medical treatment or attend educational classes.
The fines are increased to $600-$1500 with costs and surcharges of over $1000. Useful public service increases to 48-120 hours.
As you can see, this new law is harsh! You’ll do more time on a DUI then most felonies!
F) THIRD OR MORE OFFENSES OF EITHER DUI OR DWAI WITH A PRIOR DUI, DWAI OR DRIVING UNDER RESTRAINT:
Just call me. These are the types of cases that you just take to jury trial because the plea bargains are not satisfactory. The new law states that the Judge MUST incarcerate you for 60-365 days. You must go to jail for at least 60 days, and around the metro area most Judges sentence five times the minimum! For the 60 day minimum, the Sheriff will not award you any good time, earned time or trustee status. The Judge will not allow you to serve your sentence at home with “in home detention” with an ankle monitor The Sheriff may let you out to work, seek medical treatment or attend educational classes.
Fines are $600-$1500 with 48-120 hours of useful public service. You can expect 2 years of probation with extensive alcohol classes and alcohol monitoring.
17. IF YOU HAVE THREE PRIOR DUI CONVICTIONS, CAN YOU BE CHARGED WITH A FELONY DUI?
Sadly, yes. In 2015, the Colorado legislature enacted a “four strikes, you are out!” DUI law which makes your fourth DUI a class IV felony if you have three prior DUI or DWAIs in your life.
The felony DUI law essentially amended C.R.S. § 42-4-1301(1)(a) and (b) (Colorado’s DUI and DWAI law) to read as follows:
(1) (a) A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1) (b), C.R.S.; vehicular assault, as described in section 18-3-205 (1) (b), C.R.S.; or any combination thereof.
(1) (b) A person who drives a motor vehicle or vehicle while impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs commits driving while ability impaired. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1) (b), C.R.S.; vehicular assault, as described in section 18-3-205 (1) (b), C.R.S.; or any combination thereof.
And that includes out-of-state convictions. C.R.S. § 42-4-1301(1)(j), states prior out-of-state convictions for a DUI, DWI, DWAI, and OUI offense also qualify…the Court reviews the FBI and Homeland Security data base for convictions.
Sentencing shall be in accordance with C.R.S. § 18-1.3-401(1)(a)(V)(A). A class 4 felony carries a presumptive penalty range of two to six years imprisonment, followed by three years of mandatory parole. The court may also impose a fine between two thousand and five hundred thousand dollars. The two to six year presumptive range for imprisonment may be increased or decreased on the basis of “discretionary” aggravating or mitigating circumstances.
but….. there exists a loophole to reduce one’s jail time. Under § 42-4-1307 (1) (b) the Court must consider a defendant’s willingness to participate in alcohol treatment and the statute allows the defendant to argue the facts and circumstances of the charge and that rehabilitation is a better option than jail.
Because of this, I have witnessed a wide range of sentences from 10 – 30 days for a second DUI, 90 days to nine months for third DUIs, and 9 months to 1 year for fourth DUIs that are plead down to a misdemeanor. The few people who have received a one-year sentence are mainly in Jefferson and Arapahoe counties. I always try to get my clients work release, community corrections, in/out program, or some other alternative.
DUI FINES AND PENALTY CHART:
A first-offense DUI, or DUI per se, is a misdemeanor and can be punished by:
Between 5 days and 12 months in jail
Suspension of your driver’s license for nine months
A maximum of $1,000 in fines
As many as 96 hours of community service
A second-offense DUI, or DUI per se, is also a misdemeanor, but carries more severe penalties:
Between 10 days and 12 months in jail
Suspension of your driver’s license for one year
A maximum of $1,500 in fines
As many as 120 hours of community service
Installation of an ignition interlock device for up to 2 years
A third-offense DUI, or DUI per se, is the last misdemeanor charge BEFORE it becomes a Felony. It carries the heaviest of misdemeanor penalties:
Between 60 days and 12 months in jail – usually 8-10 months!
Suspension of your driver’s license for two years
A maximum of $1,500 in fines
As many as 120 hours of community service
Installation of an ignition interlock device for up to 2 years
A fourth-offense DUI, or DUI per se, is charged as a Class 4 felony:
Up to six years in state prison with three years of parole
Fines of up to $500,000
Suspension of your driver’s license for two years
If the DUI or DUI per se results in the serious injury or death of another, there are two felonies that can be additionally charged: vehicular assault and vehicular homicide. The Courts have zero tolerance for fourth DUIs, and think that they have a mandate from the People to impose harsh punishment on offenders. Just call…some jurisdictions will offer 1-2 years, but with work release, or community corrections, or an in / out program through the county jail.
18. COLORADO DUI AND CRIMINAL SENTENCING RANGES
I am getting a lot of calls asking about DUI and criminal sentences. How much jail will I get? In my experience, criminal sentences depend on the county and the Judge. There is no “standard” sentence and they seem to be all over the place depending on how the Judge was feeling that day.
– A mother of two children with her first DUI and a .15 BAC was sentenced in Denver to probation if she pled guilty to DWAI and a three-point weaving ticket.
– In Arapahoe County, the same fact pattern would result in a straight DWAI disposition without adding any extra points.
-In Arapahoe county, the same circumstances, third DUI, but a different Judge, got 6 months in jail, 2 years supervised probation, 48 UPS, $2500 in fines and costs. But the 6 months was spent 60 days on work release, 120 days in home detention with an ankle monitor.
– In Arapahoe county, the Judge stated that all felony DUI (fourth) would get one year straight jail. And any third DUIs would all get 9- 11 months in jail. I was able to get 6 months for my client, with maximum fines and 2 years probation. But we had a strong case.
– A Denver prosecutor told me that a defendant will receive 30 days in jail for a BAC over .19, another 30 days if there was an accident, another 30 days if a child was involved, and another 30 days for any aggravation.
– On one case, a defendant was forced to accept a disposition in Denver of 10 days behind bars, 30 days work release, and 30 days in home detention for a second DUI within 10 years and a BAC of a .18.
– In Jefferson County, a first time DUI defendant with a .11 BAC took a disposition for DWAI, but had to agree to double the useful public service.
– In Denver, reckless driving usually requires a few days in jail. However, my client was able to avoid all jail if he agreed to pay over $500 in fines and costs. Another defendant pled guilty to reckless driving, paid $480 in fines and costs, and was sentenced to 52 hours of useful public service instead of jail.
– Weld county claims they have no in home detention. As of 2022, the Sheriff claims all DUIs can only do straight jail, or work release. So a second DUI resulted in 10 days straight jail, or in another case of DUI second, 30 days work release with $2900 in fines and costs.
– Adams county, fourth DUI, will result in a felony conviction. At least 120 days in work release, and max fines, two years probation. And that is considered a great deal!