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Frequently Asked Questions about DUI in Colorado

When you can be arrested for DUI in Colorado?

In Colorado an individual can be arrested for driving under the influence based upon their blood alcohol content [“BAC”] or their driving ability. If an individual’s BAC is 0.08 or higher an individual can be arrested for driving under the influence [“DUI”]. However, if an individual has a BAC between 0.05 and 0.08 they may still be arrested for driving while ability impaired. Finally if an individual is believed to be driving erratically due to alcohol or drug consumption, they may be arrested independent of their BAC.

What are lawful/unlawful vehicle stops in Colorado?

As prescribed by Colorado statute, a police officer may stop any person that he “reasonably suspects” has operated a motor vehicle while under the influence or operated a motor vehicle while ability is impaired. This reasonable person standard gives law enforcement a large amount of flexibility and makes it extremely difficult to contest the legality of a vehicle stop.

Can a DUI be expunged in Colorado?

In Colorado, it is not possible to expunge a DUI conviction from your record.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

To be stopped and arrested for a DUI/DWAI in Colorado an individual must be 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).

Do I have the right to talk to an attorney before I give a sample?

In Colorado you do not have the right to speak to an attorney before giving a breath, blood, or urine sample. The request may be seen as a refusal to comply.

Do I have to give a blood or urine sample?

Colorado law states that all individuals that drive a motor vehicle upon the streets/highways of Colorado have consented to having their blood alcohol content [“BAC”] tested when directed by a law enforcement officer with probable suspicion of driving under the influence [“DUI”] or driving while ability impaired [“DWAI”]. If an individual does not cooperate in giving a sample (blood, breath, saliva, or urine), it will be considered refusal to submit to testing.

Do I have to submit to a field sobriety test?

In Colorado, field sobriety tests are voluntary, so an individual does not have to submit to them.

What are the laws regarding Enhanced Penalty Blood-Alcohol Concentration in the Colorado?

An individual’s blood alcohol content [“BAC”] enables the prosecution to determine whether a crime has been committed by establishing the legal limit, but it is also determinative of an individual’s punishment. In Colorado, the general penalty for an individual convicted of either driving under the influence [“DUI”] or driving while ability impaired [“DWAI”] will consist of a period of imprisonment and a period or probation. However, if an individual’s BAC was at 0.20 or higher within two hours after being stopped upon suspicion of committing DUI or DWAI; the period of imprisonment will increase if it is the individual’s first offense. If convicted of DUI the minimum period of imprisonment will increase from 5 days to 10 days. If convicted of DWAI the minimum period of imprisonment will increase from 2 days to 10 days. BAC in and of itself is not sufficient evidence to convict an individual of DUI or DWAI, but if the other elements of the crime are met, it alone is determinative of significantly increasing the sentence.

What are the laws regarding Prescription Drugs and DUI in Colorado?

In Colorado, the law prohibits individuals from operating a motor vehicle while under the influence of prescription drugs. However, unlike alcohol “objective indications of drug intoxication are less apparent than some external suggestions of drunkenness.” Due to lack of law enforcement capabilities to quantify the amount of the substance consumed, the cases are “often more dependent on an officer’s subjective observations of the driver’s condition.” Since the evidence is highly subjective, it is possible that a defense attorney may convince the court that an individual’s ability was not impaired by the consumption of prescription drugs especially if they were legally prescribed.


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