This series of questions and answers addresses those common issues which arise in many DUI Defense Cases. Our DUI Frequently Asked Questions and answers are intended for informational purposes only. There is no substitute for legal counsel. If you have been cited for driving while impaired, please schedule a consultation with an attorney and choose the DUI attorney you feel most comfortable working with.
DUI Frequently Asked Questions.
- How should I respond to a police officer when asked if I have been drinking?
- What if the officer asks me to take a sobriety test? Do I have to take the test? What are the consequences if I don’t?
- What is the field sobriety test? Which maneuvers will I be required to perform?
- In which court will my DUI case be handled?
- What should I wear to court?
- Which parties are typically involved in a DUI case?
- What BAC level presumes the driver is innocent of drunk driving?
- What impact will a DUI charge have on my driving privileges?
- What is a DMV hearing? Is this separate from the Court case?
- What is the difference between DUI, DWAI and DUI per se?
- How long does it take to process a DUI case through the courts? What is the process?
- Aside from losing my driving privileges, what are the fines, points and prison term?
How should I respond to a police officer who asks if I have been drinking?
- Most people will say something like, “I only had a couple of drinks tonight and the last drink was several hours ago.” Police officers hear this line all the time and will enter your response into the record either as an admission or to question your credibility. It is better to have no admission of guilt on the record even a seemingly innocent one. It is better to plead the 5th and politely refuse to answer the question. Say something like, “I remember a lawyer telling me I should not respond to questioning without an attorney present. I will gladly answer your questions after I have obtained legal counsel.” Of course refusing to answer the officer’s question may raise suspicion; however, a jury will decide your innocence or guilt not the arresting police officer.
What if the officer asks me to take a sobriety test? Do I have to take the test? What are the consequences if I don’t?
- No, you are not required to take the field sobriety test. These tests are completely voluntary despite how adamant the police officer may be that you will “lose your license if you refuse to take the test.” This statement is not entirely true. It is only if you refuse to take the chemical test that you will lose your license for one year. You may also refuse to take the road side breathalyzer test. It is only if you refuse the breathalyzer at the station or lab that you will lose your license. You can also lose your license by refusing to take the blood test. It is rarely, if ever, a good idea to refuse to take either the blood test or breathalyzer at the police station. Your refusal may be held against you (introduced at trial) and the jury may assume you refused to take the tests because you were over the limit.
- The standard field sobriety test most often consists of the following three tests in Colorado:
(HGN) Horizontal Gaze Nystagmus
The Horizontal gaze nystagmus is the rapid movement of the eye when a person is staring at something to their peripheral. Usually the shaking/jerking of the eye only happens when the person is starting to the side. However, consumption of alcohol may cause enhance HGN thereby preventing the driver from tracking an object smoothly. The officer will observe the angle at which HGN sets in (less than 45 degrees from center?), how smoothly the subject tracks a moving object and finally whether HGN is distinct at maximum deviation. This test must be conducted properly. The officer must hold your eye at maximum deviation (e.g. as far right as your eye can go) for a minimum of 4 seconds otherwise the test may be thrown out in court. There may be other reasons the test may be thrown out of court. If you have been cited with drunk driving and do not recall the conduct of the HGN test, there are other means by which your attorney will obtain this information.
This is a difficult to test to properly administer. To administer this test correctly, the officer should have you stand with your feet together and arms to the side and order the driver to maintain that position until instructed to step forward. The officer will then take a position approximately 10-15 feet in front of the driver and ask the driver to imagine a straight line between driver and the officer. The officer should get a verbal acknowledgement that the subject has in fact imagined her own line. The officer will then instruct the driver to take the first step on the imaginary line with his left foot and to continue walking on the line in a strict heal-to-toe manner until the subject reaches the ninth step. Upon reach the ninth step the subject will be required to take a 180 degree right turn by using a series of small steps. The subject will then be required to walk along the same line in the opposite direction.
The officer will observe 8 separate clues during the test such as whether the subject: failed to maintain the starting position; began stepping on the imaginary line before instructed to do so; took the incorrect number of steps; stepped outside the line one or more times because of loss of balance; failed to hold arms straight to the sides in order to maintain balance; failed to adhere to the heel to toe movement; failed to turn-around and/or lost balance while turning around.
The officer should ask the subject “Do you understand?” several times during the test otherwise the defense counsel may argue the client did not understand the instructions.
(OLS) One-leg Stand
- The One-leg-stand (OLS) test is administered to test the subjects balance and ability to multi-task which is an important component of safe driving. The starting position is the same as for the WAT [hyperlink]. Subject must stand with arms straight down to the sides and feet together. The test should be performed on a hard, level and dry road according to the NHTSA manual [link]. The officer will usually be position about 10 feet from the subject. The officer will also demonstrate the test while providing instructions. The subject will be required to stand on one foot (of their choosing) while raising the other foot so that the raised foot is nearly parallel to the ground (toe is pointed straight ahead). The subject will then count out-loud while looking down at their raised foot until instructed to stop. The subject will be required to keep both legs straight during the test because bending makes it easier to maintain balance.
- The officer will observe whether the subject looked down at their foot throughout the test, counted out-loud, kept their arms straight to the sides, and kept the raised foot at least 6 inches from the ground. The officer will make other observations of impairment such as whether the subject: swayed while trying to balance, raised arms to maintain balance, hopped around trying to maintain balance, or put the raised foot down to regain balance.
In which court will my DUI case be handled?
All DUI/DWI offenses are charged as misdemeanors in Colorado and handled by the county court. Unless you are charged with a separate felony in conjunction with the DUI arrest, your case will be handled by the Colorado county court in which the incident took place regardless of the county you reside in. Each county in Colorado has its own county court for prosecuting misdemeanor offenses.
What should I wear to court?
Your clothing will not help you win your case, however, it may unnecessarily hurt your case. I suggest business attire. What would you wear to a job interview?You attire should not send a message and should make you look sloppy or careless. It is better to wear neutral clothing. Do not let your clothing make you stand out. People naturally judge others based on their attire. It is important to consider your court attire because the judge, jury, prosecutors and other parties involved will get an idea of how seriously you take the proceedings by your attire. If you are wearing baggy jeans and a sweatshirt it can send the wrong message.
Which parties are typically involved in a DUI case?
A typical DUI/DWI case involves the following parties: The Judge who oversees the conduct of the trial and any plea deals, the arresting police officer/s as witnesses, 3rd party witnesses if there was an accidence involved, expert witnesses, the deputy district attorney, pretrial supervision officers if you are put on pretrial supervision during case, probation officers if you receive a guilty verdict or deferred sentence, investigators working for your attorney and state investigators working for the prosecutor.
What BAC level presumes the driver is innocent of drunk driving?
BAC = .05 or less presumes that the defendant was not under the influence. If the level was .051-.079 there is a permissible inference that the driver was impaired.
What impact will a DUI charge have on my driving privileges?
Refusal- If you refuse to take the breath at the police station or blood test you will automatically lose your license for one-year and there will be no leniency for hardship (no probationary driving privileges). You will not be able to drive for any reason. If you are later convicted in court of the DUI charge the sentences will run consecutively (not concurrently). Therefore, you would have to complete the one-year DMV revocation before you could seek to reduce the court sentence.
First time DUI conviction- If you are convicted of a DUI for the first time, you will lose your driving privileges for nine months. However you may reinstate your license after one month by utilizing an interlock device on your vehicle for at least 4 months. This early reinstatement only applies if you are over the age of 21. Minors face stiffer penalties and will lose driving privileges for one year without the possibility of reinstatement.
One or More prior DUI convictions- the revocation will be imposed for at least one year. You must then carry a restricted license (interlock) for two years. Consult with an attorney for more information. There are too many variable involved for the purposes of this post.
Three or More DUI convictions: You will be labeled as an habitual offender and the revocation period could last as much as five years.
Aggravated BAC of .17 or higher Restricted driver’s license (interlock device) for two years and SR-22 rider insurance.
What is a DMV hearing? Is this separate from the Court case?
The DMV hearing, also referred to the driver’s license hearing or express consent hearing, is a separate hearing from the criminal court case. You may lose your driving privileges even before the court case is completed.
It is important to request a hearing right driver’s license hearing before the deadline shown in your Express Consent Affidavit (DMV notice) otherwise your license may automatically be revoked. If you have counsel, you are not required to attend this hearing and it is usually a good idea not to appear for this hearing to avoid having your statements used against you during the criminal DUI trial / negotiations. The burden of proof at a DMV hearing is a preponderance of the evidence which is a much lesser standard than beyond a reasonable doubt used for the court case.
What is the difference between DUI, DWAI and DUI per se?
DUI- A charge for Driving under the influence (DUI) results when the driver has consumed alcohol and/or drugs to such an extent that the driver is substantially incapable (mentally and/or physically) from exercising clear judgment, physical control and due care in the operation of a vehicle. It is important to note that the DA is not required to establish a certain BAC level to obtain a guilty verdict for a DUI.
DWAI- Is the lesser and included charge or a DUI. The criteria are the same as a DUI above with the exception that the driver’s ability to operate a vehicle must have been impaired to the slightest degree. You cannot be guilty of both a DUI and a DWAI. A jury which finds you not guilty of a DUI may find you guilty of a DWAI.
DUI per se – result when the driver was driving with excessive alcohol content which is a BAC at or above .08 measured within 2 hours of driving. You can be convicted of both a DUI and a DUI per se, however, the sentences must run concurrently.
How long does it take to process a DUI case through the courts? What is the process?
Every county has a slightly different way of handling DUI cases however most cases involve the following general timeline.
First appearance: Also referred to as a bond hearing or return date the first court appearance may be waived if you were not required to post bond to leave jail after your DUI arrest. It is during this court proceeding that you should have hired an attorney if you are going to hire one, however, in most cases nothing substantial takes place during this hearing. The judge will read you your rights and may impose pretrial conditions depending on the severity of the charge and your criminal history. Such conditions may prevent you from consuming alcohol and/or leaving the county amongst other possible restrictions. If this is your first offense and you have no prior DUI related charges it is unlikely the judge will impose any restrictions on you.
Prior to this hearing your attorney and the deputy district attorney should have discussed the merits of your case. Your attorney may use this hearing to negotiate an outcome of the case with the prosecutor and if all parties agree on a disposition, a guilty plea for the lesser charge may be entered. Your attorney will keep you duly informed of the terms of any negotiations before a plea is entered. Otherwise, the accused will enter a not-guilty plea and your attorney will advise the court on the status of the case. Your attorney and/or the prosecutor may ask the court to continue the conference to allow more time for evidence gathering or negotiations. If no continuance is requested and a not-guilty please is entered, the court will schedule the case for trial. Keep in mind that many prosecutors will not accept a plea deal if the case has been set for trial.
The judge will only schedule a motions hearing if the parties have entered pre-trial motions. In many cases your attorney will seek to have some (or all) of the evidence in the case thrown-out. The judge will consider the merits of each side’s arguments and allow police officers, investigators, technicians to provide sworn statements about their evidence gathering activities. The judge will then make a ruling on what evidence may not be entered at trial.
If the parties fail to reach a settlement agreement the case will proceed to either a jury trial (most cases) or a bench trial. In a bench trial, also referred to as a court trial, the judge alone decides the outcome of the case. Most cases are jury trials in which a panel of 6 jurors must unanimously find the defendant guilty on all charges beyond a reasonable doubt.
If you are found guilty or plea to a lesser charge, each side is allowed to enter statements intended to sway the judge in considering the terms and duration of the sentence.
Aside from losing my driving privileges, what are the fines, points and prison term?
|BAC test of at least 0.08||9 months||n/a (unless convicted)|
|2nd BAC test of at least 0.08||1 year||Same as above|
|3rd or subsequent BAC test of at least 0.08||2 years||Same as above|
|1st DUI||12 months||12 points|
|2nd DUI or DWAI||1 year||DWAI 8 pointsDUI 12 points|
|3rd DUI or DWAI||2 years||DWAI 8 pointsDUI 12 points|
|Under 21 years of age.BAC level of at least .02 but less than .05||1st offense – 3 months2nd offense – 6 months3rd offense – 1 year||4 Points|
|1st DWAI||2 days to 180 days||$200 to $500||24hrs to 48hrs
|1st DUI||5 days to 1 year||$600 to $1000||48 hrs to 96 hrs
|DWAI or DUI with any previous drunk driving conviction||10 days to 1 year||$600 to $1500||48 hrs to 120 hrs
|1st under 21 drunk driving offense (BAC of at least .02 but less than .05)||None||$100||Up to 24 hours|