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Elements of a DUI Offense 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.

The first element that the prosecution must prove to convict an individual of either DUI or DWAI is that the individual was driving a motor vehicle. Although the phrase driving a motor vehicle appears to unambiguously suggest movement, the phrase has been interpreted as active physical control of a motor vehicle. Motor Vehicle Div., Dep’t of Revenue v. Warman, 763 P.2d 558 (Colo. 1988). While the exact criteria necessary to satisfy this requirement are not delineated, court judgments and convictions have suggested that sitting in the driver’s seat with the keys in the ignition is sufficient to satisfy the first element. See Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo. 1986) (individual was in the driver’s seat and the engine was running). See also Smith v. Charnes, 728 P.2d 1287 (Colo. 1986) (the keys were in the ignition but the engine was not running).  If the prosecution has sufficient evidence to prove that the individual was driving a motor vehicle, they will proceed to proving the next element, otherwise the case will be dismissed.

The second element that the prosecution must prove to convict an individual of either DUI or DWAI is that the individual consumed alcohol and/or drugs. To determine and prove consumption of drugs, an individual’s blood or urine will be tested. To determine and prove consumption of alcohol, an individual’s blood alcohol content [“BAC”] must be measured by determining the mass of alcohol per volume of blood or exhaled breath. http://en.wikipedia.org/wiki/Blood_alcohol_content. In Colorado, it is a misdemeanor to operate a motor vehicle if a person’s BAC was 0.08 or more during or within two hours after driving. C.R.S. 42-4-1301 §2 (a). If an individual is under 21, it is a class A traffic infraction to operate a motor vehicle with a BAC between 0.02 and 0.05 during or within two hours after driving. C.R.S. 42-4-1301 §2 (a.5)If an individual’s BAC was 0.05 or less, it will be presumed that they were not under the influence of alcohol. C.R.S. 42-4-1301 §6 (a)(I). However, if an individual’s BAC is between 0.05 and 0.08, it will be presumed that they were impaired due to alcohol consumption. C.R.S. 42-4-1301 §6 (a)(II).And finally if an individual’s BAC was 0.08 or more, it will be presumed that they were under the influence of alcohol. C.R.S. 42-4-1301 §6 (a)(III). If the prosecution has sufficient evidence to prove that the individual was impaired or under the influence of alcohol they will proceed to proving the final element, otherwise the case will be dismissed.

The third element that the prosecution must prove to convict an individual of a DUI is that the individual was substantially less capable than a reasonable person in operating a motor vehicle and to convict an individual of a DWAI the prosecution must prove that the individual was less able than a reasonable person in operating a motor vehicle. While there is no delineated criteria to satisfy this element, the circumstances of the traffic stop and BAC will most likely be considered.

To be convicted of a DUI or a DWAI, the prosecution must prove beyond a reasonable doubt all three elements of the crime. The first element of driving a motor vehicle has been determined to be satisfied if an individual is in the driver’s seat with the keys in the ignition. The second element is satisfied if an individual’s BAC was 0.05 or more during or within two hours of driving. The final element is highly dependent on the circumstances surrounding the arrest, but it is likely to be satisfied if the other conditions of the crime are met.


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