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CHAPTER 6: SELECTED CRIMINAL OFFENSES - Table of Contents

6.1 - Overview6.2 - Inchoate Offenses6.3 - Homicide6.4 - Assault6.5 - Domestic Violence6.6 - Other Unlawful Offenses against the person6.7 - Unlawful Sexual Behavior6.8 - Offenses against Property6.9 - Tresspass, Tampering and Mischief6.10 - Offenses involving Fraud6.11 - Offenses involving Family Relations6.12 - Offenses relating to Morals6.13 - Offenses against Government Operations and Public Order6.14 - Offenses relating to Weapons6.15 - Offenses relating to Controlled Substances6.16 - Alcohol/Drug related Traffic Incidents6.17 - Crimes Against Vulnerable Victims6.18 - Computer Crimes6.19 - Identity Theft

6.16 ALCOHOL/DRUG RELATED TRAFFIC OFFENSES

A typical DUI case unfolds in the following fashion. A police officer observes some sort of bad driving and effects a stop of the vehicle in order to investigate this traffic offense. While getting driver's license, insurance and registration, and otherwise investigating this offense, the officer notes indicia of intoxication. These indicia are usually such things as slurred speech, red and bloodshot eyes and/or an odor of an alcoholic beverage. The officer then begins to investigate the possibility that the driver is under the influence.

The DUI investigation usually takes the form of questioning about alcohol use and of a request for the driver to perform roadside sobriety maneuvers. Often, the officer will ask the driver to blow into a portable breath test machine. Based on the results of this investigation, the officer decides that there is probable cause to arrest the driver for DUI.

The roadside sobriety tests may or may not help detect drug use. Certain police officers have received additional training in the detection of drug use. These so-called drug recognition expert (DRE officers) are generally allowed, after the proper foundation has been laid, to testify about the drug tests which they administer, in much the same fashion that officers are allowed to testify about roadside sobriety tests in DUI cases.

Once an arrest is made, the requirements of Colorado's express consent law kick in, and the driver is asked to take either a breath or blood test to determine the level of alcohol in his or her system. After this testing is complete, the officer decides what charges to file.

Various terms are used in the statutes relating to the investigation and prosecution of alcohol and drug related traffic offenses. The more important terms include:

To drive means to be in actual physical control of a vehicle. Court decisions interpreting this term make it clear that a vehicle need not actually be in motion for the person behind the wheel to be 'driving' for the purposes of the DUI statutes. The answer turns on the totality of the circumstances, including whether there was actual physical control, where the vehicle was found, where in the vehicle the person was found, whether or not the keys were in the ignition, whether or not the vehicle was running, and other factors which tends to indicate that the person exercised bodily influence or direction over a motor vehicle based on everyday experience.

"Driving Under the Influence" (DUI) means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

"Driving While Ability Impaired" (DWAI) means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

"Driving With Excessive Alcohol Content" (Dui Per Se or DWEAC) means driving with a blood or breath alcohol content of .10 or more. A variation of this charge makes it a crime for a person who is under twenty-one to drive at a time when his or her blood or breath alcohol content is greater than .02 but less than .05. A person can be convicted of both DUI (or DWAI) and DWEAC, but the sentences imposed for the two offenses must run concurrently.

Colorado law provides that in any prosecution for DUI or DWAI, a presumption arises based on the amount of alcohol in a defendant's blood or breath at the time of the offense or within a reasonable time thereafter. If the alcohol level is .05% or less, the defendant is presumed to be neither under the influence nor impaired. If the amount of alcohol is greater than .05%, but less than .10%, the defendant is presumed to be impaired. If the blood alcohol content is .10% or more, the defendant is presumed to be under the influence.

"Vehicle" means any device that is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks. "Vehicle" includes any bicycle, but such term does not include a wheelchair or any off-highway vehicle, snowmobile, or any farm tractor.

The possible penalties that may be imposed upon a person who is convicted of DUI or DWAI include jail, probation, fines and costs, useful public service and alcohol or drug treatment. The penalties for DUI or DWAI increase when the person has a prior alcohol or drug related traffic conviction.

A conviction for DUI carries up to one year in jail. A DWAI conviction carries up to six months in jail. Persons who have prior convictions face mandatory minimum sentences, depending on the type and age of the prior. At the time of this writing, all of the judges in Boulder County impose sentences on repeat offenders that are more than the mandatory minimum called for by the sentencing scheme. A second offender can generally expect to do between twenty and forty days in some form of detention, a third offender will generally receive a sentence of six months and subsequent convictions will bring even more time.

An alcohol evaluation, and compliance with any treatment recommended by the evaluation, is required as part of every sentence. The evaluation and treatment are monitored by the probation department. A defendant who fails to comply with these requirements will face a revocation hearing and will almost always be sentenced to jail for the failure to comply.

All defendants are required to do community service. Usually, 24 hours is required upon a first conviction, with the amount increasing for subsequent convictions. The performance of useful public service is administered by the Community Corrections program at the Boulder County Justice Center, which has a list of organizations at which the service can be performed.

It is important to remember that the Motor Vehicle Division (DMV) is the governmental agency that issues and regulates drivers' licenses. When a court clerk informs the DMV that a person has sustained a conviction, the DMV enters that information into its computer and determines whether the person is subject to a restraint on his or her license. When the DMV is informed that a person has either refused to take a chemical test to determine blood/alcohol content, or that a person has taken such a test, buy failed it (by having a blood/alcohol content greater than .10%) the DMV will determine whether the person is subject to a restraint on his or her license under the express consent law.

DMV proceedings are civil in nature, and are governed by their own set of rules and regulations. The proceedings do not take place in court. A person who wishes to appeal a determination made by the DMV may do so by filing an appeal in District Court.

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