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Defenses to DUI in Colorado

According to Colorado Statute C.R.S. 42-4-1301: To be convicted of driving under the influence [“DUI”] the prosecution must prove beyond a reasonable doubt, that an  individual (1) was driving a motor vehicle, (2) had consumed alcohol and/or drugs, and (3) was substantially less capable than a reasonable person in operating a motor vehicle. However, if the evidence presented is inadequate to prove the third element of substantially incapable, one may still be convicted of driving while ability impaired [“DWAI”]. To be convicted of DWAI, the third element the prosecution must prove beyond a reasonable doubt is that one was (3) less able than a reasonable person in operating a motor vehicle. In addition to proving these elements the prosecution must show that the arrest/stop was legal, that the individual was advised of his rights, that the equipment/test was properly utilized, and that the person operating the equipment was certified.

To disprove or cast reasonable doubt on the first element an individual’s defense attorney must prove that the individual was not in control of the car. While the exact argument will vary from case to case, the essential argument should be that the individual was not in control of the motor vehicle due to the location of the keys in relation to the person

To disprove or cast reasonable doubt on the second element, an individual’s defense attorney must show that the test utilized at the time of arrest did not accurately test BAC or was unreliable. For instance, “breath testing is not as reliable as blood testing, and a failure to adhere to the proper procedures for testing and maintenance of the machine will compromise the reliability of the test and may help in the attempts to suppress the test result from coming into evidence at trial.”

To disprove or cast reasonable doubt on the final element, an individual’s defense attorney can cross-examine the officer that conducted the standard field sobriety test. By examining the officer, the reliability of the test can be doubted if the officer conducted the test improperly, which most officers do.


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