Robert D. Gustafson, Attorney At Law COLORADO SPRINGS TRIAL LAWYER
6538 Charter Drive Colorado Springs, CO 80918-1335 Phone (719) 260-1002 Toll Free (800) 410-1002 E-MAIL    ATTORNEY	FREE INITIAL CONSULTATION Fax (719) 260-1003
DRUNK DRIVING DEFENSE COLORADO SPRINGS DUI  DWAI  DEAC
WELCOME I appreciate your interest perhaps I will become your attorney   ARRESTED? drunk driving defense has constituted the majority of my practice since 1983

        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

        When a criminal suspect voluntarily gives permission for police or law enforcement to search, items found in that search will likely be admissible as evidence.  Conversely, searches without a warrant are presumed unlawful with some exceptions.  Evidence found as a result of an unlawful search may be suppressed (excluded from admission) as a fruit of the poisonous tree.

        Every citizen has the constitutional right to be free from unreasonable search and seizure.  Never consent to a search or seizure without advice of legal counsel.  Let law enforcement procure a warrant or face possible constitutional challenge to the evidence.  Roadside sobriety testing is a search which can and should be refused whether drunk or sober as a church mouse.  Police officers have no legal obligation to advise you of your right to refuse, but it exists - exercise your right - a polite but simple no works quite well.

        Similarly, no other rights should be waived by any criminal suspect or defendant without advice from counsel.  If you aren't certain what your rights are at the time of the police request, simply say no - I need to speak to an attorney.

        Defense attorneys frequently see the police report phrase: "suspect was cooperative."  Law enforcement officers will do what they will do regardless of your cooperation - it won't help and may likely hurt your court case defense.  This attorney advises clients to remain silent and be courteous, calm and in control of your emotions.  Politely decline any police requests, making the statement you need to consult with legal counsel before giving a response, and request presence of an attorney.  You have the right to presence of and advice of defense counsel.  Exercise your rights.

DRUNK DRIVING DEFENSE   DEFINITIONS & INFERENCES   TRAFFIC - MISDEMEANOR OFFENSE DUI 12 Points  **  DEAC 12 Points  **  DWAI 8 Points COLORADO STATE COURTS County Court  *  El Paso County Colorado License Defense DMV Forms DMV Addresses  Proceedings Alcohol Offenses Sentencing Client Fact Sheets Driving Records Legal Research Selected Statutes Travel Time & Mileage Attorney Fees & Costs

1. Driving under the influence (DUI or drunk driving) 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.  CRS 42-4-1301(1)(f)

2. 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.  CRS 42-4-1301(1)(g)

3.  a.  Driving with excessive alcohol content (DEAC) means driving a vehicle when blood or breath alcohol concentration is .08 or more grams of alcohol per 100 ml of blood or 210 liters of breath; tested within 2 hours from time of driving.  CRS 42-4-1301(2)(a)
    b.  "Baby DUI" is a term commonly used for underage drivers with a limited BAC.  It means driving a vehicle when blood or breath alcohol concentration is at least .02 but not more than .05 grams of alcohol per 100 ml of blood or 210 liters of breath; tested within 2 hours from time of driving.  CRS 42-4-1301(2)(a.5)  "Baby DUI" is a class A traffic infraction with adverse license consequences.  Refer also to vehicle forfeiture - legislative debate.

4.  Vehicle means any device which is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks; but such term shall not include any farm tractor or any implement of husbandry designed primarily or exclusively for use and used in agricultural operations or any device moved by muscular power, or moved exclusively over stationary rails or tracks, or designed to move primarily through the air.  Source: COLJI 37(10) - that's a jury instruction.

The law has changed from operating a motor vehicle to operating a vehicle.
Prosecutors are charging "DUI Bicycle"   What's next?  "DUI Skateboard" or "DUI Roller Blades" or "DUI Big Wheel"   ludicrous

5.  Driver means every person, including a minor driver under the age of twenty-one years, who drives or is in actual physical control of a vehicle.  CRS 42-1-102(27)

6. Operating a motorboat or sailboat while under the influence means operating a motorboat or sailboat or being in actual physical control when the operator is substantially incapable of safely operating the boat due to being under the influence of alcohol or drugs, or a combination thereof or have a blood alcohol concentration of .08 grams of alcohol per 100 ml of blood or per 210 liters of breath or greater.  CRS 33-13-108.1

7. Inferences: the judge or jury may infer the following:  (aka permissive presumption - fact finder can presume or can ignore)

5.  Prima facie case. The District Attorney Office may not dismiss a DUI, DEAC or DWAI charge or reduce the charge to a non-alcohol offense unless a good faith representation is made by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.  That means the prosecutor represents to the Court that the state could not produce sufficient evidence to withstand a motion for judgment of acquittal at the end of the prosecution's case in chief.

DRUNK DRIVING DEFENSE   COURT PROCEEDINGS   TRAFFIC - MISDEMEANOR OFFENSE DUI 12 Points  **  DEAC 12 Points  **  DWAI 8 Points COLORADO STATE COURTS County Court  *  El Paso County Colorado License Defense DMV Forms DMV Addresses  Proceedings Alcohol Offenses Sentencing Client Fact Sheets Driving Records Legal Research Selected Statutes Travel Time & Mileage Attorney Fees & Costs
1. First Appearance.         a.  The ticket is the charging document and advises defendant of the charges filed. The ticket contains a date and time defendant must appear in Court for first appearance, where defendant will be advised of the nature of the charges and possible penalties. At that time defendant will also be asked how he / she wishes to proceed with his / her case. If defendant fails to appear, a warrant will be issued for his / her arrest. If this office has been hired, I will take care of the first appearance for the client, and the client need not appear in Court unless I notify you.         b.  We are all human - periodically the law enforcement officer(s) make(s) an error on the summons.  Some errors are sufficient to deprive the court of jurisdiction to hear the case.  If an error exists, it may be worth making a big ta-do because it may result in dismissal or a more favorable plea offer.
refer to jurisdictional attack page Officer Failure to Issue (Sign) Failure to Serve Summons Identification Error Arrest or Obtain Promise to Appear Failure to Timely File Statutory Citation Error 20 Days Notice - Alcohol Offenses 30 Days Notice - Infractions Appearance Date When Court Not Open Appearance Date - Year Blank Appearance Precedes Summons In Futuro - Offense Alleged Future Date No Date of Offense Failure to Join in Single Prosecution Statute of Limitations Alleged Offense within Venue Other Jurisdictional Arguments Other Arguments
OTHER CHARGES COMMONLY FILED WITH DUI - DEAC -  DWAI Careless Driving Reckless Driving Speeding Hit & Run Driving Under Restraint No Operator's License Eluding Police Vehicular Eluding Stop Sign - Stop Light School Bus Stop Compulsory Insurance Indecent Exposure Speed Contest - Drag Racing Exhibition of Speed or Acceleration Contest Child Abuse Vehicular Assault or Vehicular Homicide Weaving (roadways laned for traffic)
2. Court Appointed Counsel         a.  If jail may be imposed for any period, including offenses less than 6 months jail, the state has an obligation to appoint an attorney for an indigent (poor) defendant.  An indigent defendant has a constitutional right to appointed counsel "only when, if he loses, he may be deprived of his physical liberty."  Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972 (petty offense case); see also Stern v. County Court, 773 P.2d 1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of crimes if imprisonment may be imposed).         b.  The defendant may not choose his / her own lawyer.  When an appointment is made, the court appoints the Public Defender's Office and if there is a conflict due to multiple defendants, the court a member of the private defense bar who has contracted with the state for court appointments.         c.  If the prosecutor waives jail, the state's obligation to provide counsel is negated.  When an indigent defendant is not actually sentenced to a term of imprisonment, due process does not require the appointment of counsel.  See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
3.  Entry of Plea & Demand for Trial.
a.  In El Paso County, initial appearance hearings are held in the First Appearance Center.  The case then transfers to a judge's division.         b.  Under the speedy trial rule, trial must be provided within 6 months from entry of not guilty plea.         Speedy & Public Trial: C.R.Crim.P. 48(b), CRS 18-1-405, Article II Section 16 of the Colorado Constitution and Amendment 6 to the U.S. Constitution.  See also 4th, 5th & 14th Amendments to the U.S. Constitution, and Article II, Sections 7, 18 & 25 of the Colorado Constitution         Speedy trial commences on the date of filing the not guilty plea. Harrison v. District Court, 192 Colo. 351, 559 P.2d 225 (1977), Rodman v. Adams County Court, 694 P.2d 871 (Colo. App. 1984).  This can become important as to speedy trial expiration if the case is transferred to division and advisement + oral not guilty plea is delayed.         c.  Demand must be made for jury trial: 1.  Misdemeanor offense cases - not guilty plea entered         a.  Jury trial is free if jail may be imposed in excess of 6 months upon conviction of any charge.         b.  If potential jail is limited to 6 months or less for each charge, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Although local county court judges will likely grant a jury demand without payment of the jury deposit, absent timely jury deposit payment,  prosecutors may take the issue to the district court seeking a writ of prohibition.  In the likely event of adverse ruling, subsequent jury deposit payment would be outside the 10 day limitation and jury trial right would be lost.  This attorney will timely pay the jury deposit to avoid the issue and preserve the client's right to jury trial.         c.  Driving While Ability Impaired, CRS 42-4-1302(1)(b) has been determined not a petty offense and no jury deposit is required under CRS 16-10-109, C.R.Crim.P. 23.  Refer to Byrd v. Stavely, 113 P.3d 1273 (Colo. App 2005)  This is the exception to the 6+ month potential jail jury deposit rule.         d.  Standard number of jurors is 6, defendant may request 3 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406 2.  Petty offense cases - not guilty plea entered         a.  Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. Robran v. People, 173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (Colo. 1969)         b.  There is no constitutional right to a jury trial for a petty offense.         c.  The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine.          d.  Based upon statutory limitations of potential jail not more than 6 months, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Refer to ¶3(c)(1) above regarding timely payment.        e.  Standard number of jurors is 3, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406  Counsel requests 6 jurors.         f.  An El Paso County Court case appealed to the District Court resulted in a ruling that jury trial is a right in an MIP prosecution (underage possession / consumption) which does not fit the statutory definition of petty offense for purpose of jury trial right, however counsel would argue that right.         d.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.
4. No Pre-Trial Conference.  Pursuant to Colorado Supreme Court Chief Justice Directive 08-05 (benchmarks) which pertains to delay prevention, performance review of judges and retention (judge's jobs), in May, 2008 the courts in El Paso County again changed policy.  Drunk driving, traffic offense and misdemeanor cases are no longer set for pre-trial conference.  At the time of first appearance, attorney cases are now set for contested proceedings - subpoena duces tecum return, motion hearing, readiness hearing and jury trial.  Courts will not set motions hearing absent filing of a motion, therefore an initial motion to suppress will be filed with entry of appearance.  Prior to contested hearing dates, the defense attorney may negotiate with prosecutors to discuss possible alternatives and attempt to reach an agreement to dispose of the case.  This is called plea bargaining. Clients have inquired "What's a deferred sentence?"  Refer to the link for information.  Are prosecutors concerned with their statistics? If a plea bargain is obtained which is acceptable to the client, the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case is set for motion hearings or trial, or both. Locally the courts require a defendant's presence unless an out of state resident.  Offer of flat dismissal is unlikely in most cases.  The goal is to procure a disposition with which the defendant can live, e.g. not going to jail or not losing the driver's license, or perhaps a deferred sentence to a lesser charge which would not be reflected on the consumer driving abstract.  If a plea bargain is obtained which is acceptable to the client, contested hearings are vacated and the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case continues to contested hearings and trial.  Locally the courts require a defendant's presence unless an out of state resident.  Refer to factors which attorney uses in determining whether a case is likely to settle or proceed to trial.
a.  Local courts are setting trial dates 60 days out from initial appearance - similar to domestic violence fast track.  This is a form of docket control for the courts.  Convenient for those who set policy, but in fairness, El Paso County Court is inundated with cases.         b.  This court policy places a heavy burden upon defense counsel and defendants.  Plea negotiations should not take place until the attorney has an understanding of the case - receipt of a copy of the DA Office file (which includes summons & complaint(s) law enforcement officer notes and reports, accident report, Colorado driving record & witness list), plus client factual interview and receipt of driving records.  If an alcohol charge is alleged, discovery to be procured includes roadside sobriety checklist, lab reports, DOH lab certifications and defense counsel blood BAC re-test by independent laboratory.  If a driving under restraint charge is included, discovery to be procured includes a DMV discovery packet & file.  This takes time.  If the case can not be settled, a very short window exists for investigator interviews and for counsel to file supplemental motions & briefs, witness endorsements, exhibit endorsements, jury instructions, and theory of defense.  The court may not grant continuance of hearings.         c.  Even though contested proceedings are set, attorney settlement fees may be quoted.  If the client rejects the plea offer, trial fees and costs will be due at the time client elects to proceed to trial - no exceptions.  Cases will proceed to jury trial within 2 months from initial court appearance.  Be aware of this very short window of time.  Counsel will approach cases outside of El Paso County similarly.         d.  Given the short amount of time between initial appearance and trial setting, this attorney would prefer to prepare each case for trial at the outset.  Since this is a new policy, counsel will give it an opportunity to see how timing works, but the court policy may simply result in the need for trial preparation in each case at the time of representation commencement.  Settlement fees may become a thing of the past.
5. Motions Hearings.  Counsel may file any of several motions available.  Drunk driving most common motions:
a. Discovery Motion. This is a request to discover information in order to prepare an adequate defense         b. Motion in Limine. This is a motion to exclude evidence from a drunk driving trial on the basis of evidentiary or statutory grounds.  An example would be a breath or blood test which is not defendant's but mislabeled; and which could prejudice the jury without having any importance on the issue of guilt or innocence.         c. Motion to Suppress. This is a motion to exclude evidence from drunk driving trial on the basis of violation of constitutional rights.  An example would be a random stop for the purpose of an evidentiary fishing expedition.  Absent probable cause (reason to believe defendant engaged in a crime) for the stop or arrest, evidence obtained therefrom may not be used against defendant.  Similarly, forced confessions or statements may not be used.  There are many other arguments which may be available in drunk driving cases.  With limited exceptions, defendant must be present in court for motion hearings.
6. Trial.
At a trial, guilt or innocence will be determined, and it must be decided unanimously (all jurors agree).  Every defendant has the right to a trial by jury of 6 persons, or to the judge alone.  The right to trial by jury should never be waived (given away) without advice of counsel; it is an important right.  At drunk driving trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt.  Every defendant is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt.  Every defendant may remain silent, or may testify if he / she chooses. Defense may call witnesses and make them come to court by subpoena.  Every defendant may confront and cross-examine witnesses against him / her.  A trial on a drunk driving charge is a criminal trial with all rights attached. If defendant is found not guilty, the case is concluded.  If defendant is found guilty of any charge, including a lesser charge of DWAI, the case is set for sentencing.  Defendant must be present in court for a trial.  Under some circumstances, the court may proceed to trial without the presence of the defendant, but that's a bad idea from defense perspective.
IMPORTANT KNOWLEDGE If BAC is 0.20+ or if this is a second / subsequent offense,  trial is necessary to avoid mandatory jail required by Colorado law.                         BAC = first or subsequent offenses.                          Prior offenses include out of state convictions. BAC 0.17  =  persistent drunk driver mandatory interlock For additional information regarding mandatory minimum + presumptive maximum sentencing, please refer to the grid & agency links in ¶6 immediately below - sentencing.
7. Sentencing:  Drunk driving can carry jail.  Drunk driving 1st with BAC in excess of 0.20 and 2nd / subsequent offenses carry mandatory jail.           At sentencing, the Court has the options of imposing a fine, court costs, jail, alcohol education or therapy, public service, alcohol anonymous meetings, or any other condition reasonably related to rehabilitation. Defendant must be present in court for sentencing.           An evaluation is conducted by the probation department before sentencing to determine the influence of alcohol in defendant's life, and a report is made to the court. The judge is free to accept or reject the recommendations when imposing the sentence.
When making drunk driving sentencing recommendations, the probation department has become highly reliant upon the Department of Health Regulation 6 CCR 1008-1(8.4)  (Code of Colorado Regulations) which recommends alcohol education and therapy based upon BAC and offender status (first or multiple).  This DOH regulation can now be reduced to a grid - to view please refer to the Alcohol Education & Therapy Grid         As with alcohol education, useful public service - aka community service - can now be reduced to a grid based upon Colorado statutes.  CRS 42-4-1301(9)  Statutory Public Service Grid         Unfortunately, courts today are more likely to follow the probation department's recommendations than in times past.  It seems the larger the county, the less individual discretion is exercised.  This concept is otherwise known as a grist mill.
DOH regulations and statutory schemes  can now be reduced to grids
DRUNK DRIVING DEFENSE AT A GLANCE ALCOHOL SENTENCING * ALCOHOL EDUCATION USEFUL PUBLIC SERVICE * VICTIM IMPACT PANEL Grid pages provide a quick summary of jail (some mandatory), alcohol education & public service 2008 Pending Drunk Driving License & Interlock Legislation  House Bill 08-1194         DUI and DEAC Sentencing DWAI Sentencing DMV License Loss or Restrictions Sentencing Grid Deferred Sentencing Vehicle Forfeiture - legislative debate Relevant Statutes & Regulations Synopsis - BAC 0.20+ Victim Impact Panel - Colorado Springs MADD Alcohol Education Sentencing Grid Alcohol Education & Therapy Alcohol Education - Non Driving - MIP Public Service Sentencing Grid Public Service Supervision Agencies Traffic Safety Classes Petty Theft Classes Alcoholics Anonymous In Patient Treatment Domestic Violence Classes & Anger Management McMaster Clinic Detox Facility DMV Accident Reports & Forms Mental Health Completion Forms
Alcohol Education Sentencing Grid based upon Department of Health Regulations 6 CCR 1008-1(8.4)  (Code of Colorado Regulations) Guidelines adopted by probation department alcohol evaluators
Each case is different; judges impose sentence based upon the facts of each case.
	In El Paso County, jail can be but is not usually imposed on a DUI first offense if the case is properly presented, the blood or breath alcohol concentration is below 0.20 and the facts are not aggravated.  If the driver refused a chemical test, the El Paso County District Attorney Office policy tends to be inflexible treating the case as a non-negotiable DUI.  Commercial Driver License - CDL - would complicate negotiations.
Statutory Sentencing - Grids - First Offense DUI * DEAC First Offense BAC Below 0.20 DUI * DEAC First Offense BAC 0.20 or Greater DWAI First Offense BAC Below 0.20