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COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years
private practice in Colorado state and
municipal courts |
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ROBERT D. GUSTAFSON |
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ATTORNEY AT LAW
6538 Charter
Drive
Colorado Springs, CO 80918-1335 |
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Phone (719)
260-1002
Fax (719) 260-1003 *
Toll Free (800) 410-1002 |
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DUI
DEFENSE COLORADO SPRINGS
Colorado Springs, El Paso County, Colorado
Pikes Peak Region * Surrounding Colorado
Counties * Southern Colorado * Front Range *
Continental Divide * Eastern Plains |
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representation inquiries are invited & welcome
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public questions seeking free
advice or information declined
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consultation terms |
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attorney does not accept
installment payments
* full payment
is due at the time attorney is retained * major charge cards
accepted |
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DUI Colorado Springs, DUI Defense Colorado Springs, DUI DWAI DEAC Arrest - Colorado Springs Criminal & Traffic Lawyer. Driving Under the Influence of Alcohol - DUI, Driving While Impaired by Alcohol - DWAI or Driving with Excessive Alcohol Content - DEAC - Drunk Driving Defense - misdemeanor & felony traffic offenses. Colorado BAC .08 blood test or breath test legal limit. Chemical test refusal, roadside sobriety testing - roadside tests - statements, admissions & Miranda warnings. Driving under restraint - DUR and driving after revocation prohibited -
DARP. Colorado DMV driver license revocation & suspension hearings. Colorado traffic & criminal trial practice
30+ years in Colorado state courts and Colorado DOR / DMV license hearings, DUI
Teller County Colorado, Court Teller County Colorado, Woodland Park Colorado,
Cripple Creek Colorado, Teller County Colorado, Colorado, Court Teller County
Colorado, DUI Teller County Colorado, DUI Cripple Creek Colorado, DUI Woodland
Park Colorado, Court Teller County Colorado, Woodland Park Colorado, Cripple
Creek Colorado, Teller County Colorado, DUI Castle Rock Colorado, Court Castle
Rock Colorado, DUI Douglas County Colorado, Court Douglas County Colorado, DUI
Kiowa Colorado, Court Kiowa Colorado, DUI Elbert County Colorado, Court Elbert
County Colorado.
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TO REMAIN SILENT |
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NO STATEMENTS
LAW ENFORCEMENT * PROSECUTORS
* THIRD PERSONS |
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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 the police
call or drop by, don't talk to them.
Simply say at the outset that you wish to remain silent & want an
attorney.
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RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE |
NO CONSENT - NO VOLUNTARY SEARCH
NO WAIVER OF OTHER RIGHTS |
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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.
When the police drop by, don't
admit them absent a warrant. Don't consent to any search.
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CRIMINAL DEFENDANT
DEMEANOR |
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, that you exercise your right to remain silent and request presence of an attorney.
Do not agree or consent to any search or seizure.
You have the right to remain silent
in court and the right to presence of defense counsel for all court proceedings.
If you have not yet retained but plan to do so, advise prosecutors and the judge
that you exercise your right to remain silent and want an attorney present with
you. Do not discuss the facts of your case and do not make any admissions.
Ask the court for additional time
to hire counsel.
You have the right to
presence of and advice of defense counsel. Assertion of your rights may be done in a courteous
manner, but exercise your
rights. Don't cave in to your fears or to your preconceptions
of "what you are required to do."
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BAIL BOND
refer to the above link for information |
DUI DEFENSE
DEFINITIONS &
INFERENCES
TRAFFIC -
MISDEMEANOR OFFENSE
DUI
12
Points
** DEAC 12
Points
** DWAI 8
Points |
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1.
Driving under the
influence
(DUI) 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.
DUI 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 Skates" or "DUI Big Wheel" absurd
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)
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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 |
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| INFERENCES FROM
BREATH TEST OR BLOOD TEST ALCOHOL LEVELS |
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7.
Inferences:
the judge or jury may infer the following: (aka permissive presumption -
fact finder can presume or can ignore)
alcohol quantity is reported as grams of alcohol per 100 ml blood or 210
liters of breath |
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BAC below 0.050
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inference
of sobriety
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BAC 0.050 to 0.08
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inference of impaired, but can be used
as evidence of intoxication
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BAC 0.08
or above |
inference
of intoxication
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not jury inferences,
but blood alcohol content thresholds |
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BAC 0.170
or above
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persistent drunk driver
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BAC
0.200 or above
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mandatory jail first offense
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On May 5,
2004 Colorado Legislature
House
Bill 04-1021 lowered the
BAC limit from 0.10 to 0.08 regarding DUI presumption, DEAC threshold and
driver's license
excessive alcohol revocation - law effective date: July 1, 2004 |
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Senate Bill 04-159 eliminated the
requirement that a second specimen of breath, blood or urine be preserved for defense
testing by an independent laboratory. At present, a second specimen
of blood is being collected and may be tested by a state certified
independent laboratory
as a check on the accuracy of the state's lab test results. Pursuant
to the legislatively authorized Department of Health Regulation changes, local
law enforcement agencies are not collecting a silica jell second specimen
of breath. Second specimens of breath no longer exist for independent
laboratory testing. |
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Intoxilyzer testing produces two
specimen test results conducted on the same machine. The state is
purportedly being fair with drivers by producing an instantaneous
re-test to verify accuracy of the intoxilyzer breath test results.
Analogy - broken speedometer of a
car parked at the curb reads 70 mph. Look again and second check
of same faulty equipment still reads 70 mph. |
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Absent a second specimen, accuracy of the
intoxilyzer machine can not be challenged by scientific evidence of
specimen re-test results. Lack of breath silica jell tube for testing by
an independent laboratory is unfavorable to defense of alcohol charges. |
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8. 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. |
DUI DEFENSE
COURT
PROCEEDINGS
TRAFFIC - MISDEMEANOR OFFENSE
DUI
12
Points
** DEAC 12
Points
** DWAI 8
Points |
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1. First Appearance.
a. The DUI 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 DUI 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. |
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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). |
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3.
Entry of Plea &
Demand for Trial. |
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appearance hearings are held in the First Appearance Center.
The case then transfers to a judge's division. |
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speedy
trial rule, trial must be provided within 6 months from entry of not
guilty plea. |
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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 |
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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. |
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c. Demand must be made for jury
trial: |
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- not guilty plea entered |
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a. Jury trial is free if jail may be imposed in excess of
6 months upon conviction of any charge. |
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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. |
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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. |
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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 |
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Petty offense cases - not guilty plea entered |
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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) |
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b. There is no constitutional right to a jury
trial for a petty offense. |
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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.
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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. |
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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. |
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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. |
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d. The right to jury trial is an important right which
should never be waived unless for tactical reasons after
consulting with counsel. |
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4.
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 changed
policy. Several judges have subsequently changed policy again.
Docket management is a fluid ongoing problem for courts. |
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In some court divisions DUI,
traffic offense and misdemeanor cases are set pre-trial
conference (PTC); the division judge likely found immediate trial settings
resulted in a clogged trial docket. PTC is an uncontested court date
without witnesses or contested hearing - 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. 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. Refer to
factors which attorney uses in determining whether
a case is likely to settle or proceed to trial. Locally the courts may
waive a defendant's presence
at PTC upon motion requesting permission for counsel to appear with
defendant availability by phone. |
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In other court divisions DUI,
traffic offense and misdemeanor cases are no longer set for pre-trial
conference. At the time of first appearance, attorney cases are 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. Refer to plea bargaining above. 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 in the interim which is acceptable to the client, the case
proceeds to motion
hearings or trial, or both. Locally the courts require a defendant's presence
at motions hearing, readiness hearing and trial. |
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a. Many local judges 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. |
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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. |
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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. |
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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. |
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5.
Motions Hearings.
Counsel may file any of several motions available. DUI most common
motions:
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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 DUI 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 DUI 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 DUI cases. With limited exceptions, defendant must
be present in court for motion hearings. |
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6.
Trial.
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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 DUI 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 DUI 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.
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Trial is necessary to avoid mandatory
jail
required by Colorado law -
circumstances
1. BAC is 0.20+
first offense or subsequent offense
2. Second or
subsequent alcohol related traffic offense
BAC = first or subsequent offenses.
Prior DUI offenses include out of state
convictions.
Jail alternatives
may include GPS, ankle bracelet or day reporting if negotiated
Work release would likely be granted
Defendant pays daily fee for alternatives & work release |
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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. |
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7. Sentencing:
DUI can carry
jail. DUI 1st with BAC in excess of 0.20 and 2nd /
subsequent offenses carry mandatory
jail.
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At DUI 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 unless he /
she resides out of state or a significant distance in another Colorado county
and the defense attorney has procured the court's permission for appearance by
counsel only.
A DUI 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.
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When making
DUI 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 42-4-1307
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.
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grids |
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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 |
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Each case is different;
judges impose sentence based upon the facts of each case.
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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. |
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On a DUI
second offense
or
BAC .20+
it is common for a sentence of 30+ days
jail
to be imposed.
The
El Paso County District Attorney Office
has adopted a policy in DUI cases that second offenders should spend at
least 30-60 days straight
jail
time or 1.5 - 2 times the number of days with
work release
or some other combination with
day reporting.
Attorney has seen occasion where only straight
jail
was offered -
work release
or
day reporting
was excluded by the DDA in negotiations.
Mandatory minimum
jail
sentences imposed by state law (statute)
On September 25, 2001 Colorado law
changed significantly.
Jail
is now mandatory if the BAC is above 0.20, and changes were made regarding
second or subsequent offenses.
For several years, Judge Peters
in Teller County has incarcerated on a first offense if the BAC was 0.20 or
greater. In cases with extenuating circumstances, the Judge Peters may
not have imposed
jail, but effective Sept. 25, 2001 all judges are required by
statute to incarcerate for a minimum of 10 days. |
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A
third offense can
draw 4-9 months
jail. |
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When
a defendant is charged with DUI
4th offense
and above, take a look at maximum
jail
under the statutes - the
defendant best think
about winning at motions hearing or trial. |
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Bear in mind these are generalizations, and
may change in any case based upon the facts and circumstances surrounding
the DUI case. |
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Prior Offenses
- link to definitions and information.
CRS 42-4-1307
- statutory provisions. In times past, prior DUI convictions were
facts which the prosecutor was required to establish beyond a reasonable
doubt at trial. To avoid prejudice, defense counsel would move for a
bifurcated trial. Trial was held on the issue of guilt without
mention of any prior offense(s) or conviction(s). If convicted of an
alcohol offense, a "mini trial" would then be held on the issue of prior conviction(s). As with so many issues in DUI
cases,
that has changed unfavorably against the defendant. Prior convictions are
now deemed a
sentencing enhancer and determined by the judge at sentencing hearing.
Additionally,
DUR
and aggravated
DARP
have been added as qualifying prior convictions for sentencing
enhancement. |
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MISDEMEANOR & TRAFFIC CASES -
JAIL
SENTENCE |
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A defendant may qualify for
work
release.
That means the defendant would be released from custody in time to go to work and would
be due back to the detention facility shortly after finishing work.
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Work
Release |
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Defendant must provide a letter on company letterhead verifying days and hours of
employment.
The
local jail
(CJC) has a maximum release policy - 12 hours per day, 6 days
per week.
COMCOR
work
release facility did not have a
maximum release policy the last I checked. Call the
jail for specific information.
To
verify employment status defendant must be available by land line telephone -
not cell phone.
To
be able to drive to and from work, defendant must provide a current driving record
reflecting valid driving privileges plus insurance currently in effect.
The cost is approximately $20 per
day |
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Home
Detention - Ankle Bracelet |
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A DUI defendant may qualify for
home
detention - also known as
ankle
bracelet.
Courts generally leave
ankle
bracelet determination to the sheriff's office or
COMCOR. However, courts are becoming more involved in
home
detention orders due to mandatory
jail
time and over-crowding. |
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Day
Reporting |
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A DUI defendant may qualify for
day
reporting. That means defendant would report between 1 - 5 times per week to
an agency which monitors compliance with conditions of probation and may
request random breath, blood or urine samples to check for alcohol or drugs.
The cost is approximately $6 per day report. |
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To verify employment status a
defendant must be available by land line telephone - not cell
phone.
To be able to drive to and from
work, a defendant must provide a current driving record
reflecting valid driving privileges plus insurance currently in
effect. |
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8.
Preparation
for Sentencing.
In a DUI criminal case, counsel
looks for facts which may lead to dismissal of charges or not guilty
verdict. Plea negotiations are affected by weaknesses in the
DA's case.
"Shoot for the
best - plan for the worst." It is also wise to plan for
other contingencies; conviction of an alcohol offense. Anticipating you may
subsequently face a judge, to prepare for the most favorable sentencing
result a defendant should immediately commence minimums of useful public service
(aka
community service) plus an
alcohol education class at a Colorado certified program. Level 2 is usually
recommended by probation department; Level 1 recommendations are generally
received only if the BAC is below 0.08. |
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DUI
SENTENCING * ALCOHOL EDUCATION
USEFUL PUBLIC
SERVICE * VICTIM IMPACT PANEL |
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Grid pages provide a quick summary of
jail
(some mandatory), alcohol education & public service
Please refer to DUI DUI defense at a glance
for grids, alcohol education & public service self help
¶ 6 above |
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If a
DUI defendant has an alcohol or drug problem, he /
she should also
immediately commence attending at least 1 AA
or NA meeting per week. Support is available. |
COMPLETION
CERTIFICATE FORMS
Alcohol Education * Alcohol
Therapy * Public Service * AA Meetings * Antabuse - disulfirum
deferred sentence * probation
Colorado trial practice 30+ years - Colorado State Courts
& Colorado Springs Municipal Court
DUI - DWAI - DEAC * *
Driving
Under Restraint * *
Speeding
Tickets |
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** NOTE:
Effective December, 2004 public service in El Paso County must be completed under supervision of an
approved
agency with insurance on the worker. The court will not give credit for
public service completed outside supervision and will not accept verification
other than through the supervision agency. Chief judges of other
counties may have instituted similar blanket orders. |
Adobe Acrobat Reader
version 5 or later is required to view .pdf files 
Free Download |
-
Current
Clients will be provided with verification forms containing
name and case number.
Current clients may print any
above linked form for individual but not commercial or law office use.
Files are password restricted.
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Former
Clients and Non-Clients may
print and use any linked verification form identified
in blue.
Former & non-clients do
not have permission to print or otherwise use any linked
verification form identified in red.
This restriction is not any inconvenience - it merely removes my name from
the caption of pleadings and thereby avoids any possible confusion to the
court or prosecutors. Otherwise, the Current
Client or Former Client and Non-Client
forms are the same.
Former & Non-Client limited
permission to forms identified in blue
extends to individual but not commercial or law office use.
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Use of any form shall
not constitute representation, nor shall it be considered an
appearance of counsel in any litigation
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Under Colorado law, if the insurance information
of a driver was not included in a law enforcement traffic accident report,
an on-line State of Colorado Accident Report must be submitted to the
Colorado DMV
within 10 days of an accident. CRS 42-4-1609 If the accident occurs
within the City of Colorado Springs and an officer does not respond or
complete an accident report, a
CSPD
Accident Cold Report is due
within 72 hours. Also by statute, statements by a
driver in the accident report may not be used in conjunction with any court
proceedings, criminal or civil, except that the DMV may disclose the identity of a person involved in an accident when such identity
is not otherwise known or when such person denies his or her presence at such
accident. CRS 42-4-1610, CRS 42-7-504. Refer to link in above box for DMV
on-line accident report and Colorado DMV forms. The primary
purpose of filing the accident report is to comply with state law, and to
provide evidence of insurance on the vehicle - thereby avoiding an
FRA
suspension. If
hit & run,
an
alcohol traffic offense
such as DUI, DEAC, DWAI or MIP or
driving under restraint charges are alleged, a driver should consult with his or her defense attorney
regarding exercise of constitutional privileges before making any oral or
written statement. |
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LOSS OF COLORADO
DRIVING PRIVILEGES |
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Driving in Colorado is
a constitutionally protected privilege, but nevertheless a privilege
which may be lost. Multiple statutes can cause loss of driving
privileges for different driver behavior. Drivers are entitled
to a
DMV hearing. In some circumstances the right to hearing
precedes potential DMV adverse action; under other Colorado traffic
laws the adverse order is entered, then the driver is provided notice
of the adverse action and right to request subsequent hearing.
If hearing has been held or a DMV final order has otherwise
entered and the Colorado driver's license or Colorado driving privileges have
been suspended, revoked or denied, the driver's remaining recourse is appeal to
the District
Court.
DMV appeal is subject to a
statute of limitations. Right to
appeal may be lost if the driver delays. Upon final order in the District
Court, either party make take the case on appeal to the
Colorado Court of
Appeals. |
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1.
DRIVER'S LICENSE ACTIONS
Quick summary of actions the DMV may take against driver's
licenses or privileges to drive in Colorado.
Not intended to be all inclusive, however does contain external links where
a website visitor may read statutes verbatim
which may impact your case.
DMV
Addresses and Links - DOR & DMV Offices
DMV Colorado Springs Regional
Service Center
SR-22 INSURANCE PAGE - What is this thing? - and
- What does it mean to me?
2.
DMV - Address Change
If any driver has not given the DMV
your current address, do immediately. The DMV is only required to provide
notices to the last address in their records. Drivers may request a hearing or
provide a change of address to any DMV office.
In Colorado Springs
area:
DMV Colorado Springs Regional
Service Center
3.
Excessive Alcohol
Content - Regular Driver's License
Revocation or denial CRS
42-2-126
4.
Excessive
Alcohol Content - Commercial Driver's License - CDL
Revocation
or denial CRS 42-2-126
5.
Refusal to Submit to
Blood or Breath Testing
revocation or denial. CRS 42-2-126
- no time limit
6.
Penalties
and Procedure
Regular license excessive BAC, CDL excessive
BAC, BAC refusal
7.
State
of Driver's License Issuance - Colorado DUI Stop - Seizure.
Colorado License
Most likely the driver's license was physically seized by the arresting officer
at the time of DUI arrest if the driver refused chemical testing or had a breath test.
If the driver elected
and completed a DUI blood test, the license probably was not seized as the officer did not know
the results, but will be seized at the revocation hearing if adverse ruling
enters.
If the driver wins the
DMV hearing, the license will be returned with no adverse consequences
If the driver loses the
DMV hearing, unless in possession of a valid out of state driver's license prior to
revocation of the Colorado license, he / she may not drive anywhere in the U.S.
Refer to
DMV
adverse action Out of State
License
Colorado law provides that an out of state license be seized by Colorado
DMV. But see State v. Kivell, 463 N.E.2d 52, 55 (Ohio App. 1983) and Commonwealth
v. Levy, 194 Pa.Super. 390, 169 A.2d 596, 598 (1961) - deciding
whether a trial judge could seize an out of state license pursuant to
DWI state law, ruling entered that a license issued by another state can
only be suspended or revoked by it. Put another way - a state can
deny privileges within it's boundaries and send notice to the home
state, but what a state didn't grant, the state can't take away.
The license can not be seized because it is valid in the home state and
other states absent adverse action by the home state. This issue has not yet been tested at the
Colorado appellate level. Hmmm.... but none of my clients have
wanted to spend the money on an appeal - so.... police and the DMV
continue to seize out of state licenses. Every attorney is awaiting a
client with the resources and resolve to test the law on appeal.
Most likely the driver's license was physically seized by the arresting officer
at the time of DUI arrest if the driver refused chemical testing or had a breath test.
If the driver elected
and completed a DUI blood test, the license probably was not seized as the officer did not know
the results, but will be seized at the revocation hearing if adverse ruling
enters.
A Colorado
revocation or denial will prevent the driver from lawfully driving in Colorado on
an out of state license.
Regarding possibility of
a duplicate foreign license which may be valid outside Colorado, please
refer to the
Interstate
Compact page
Refer to
DMV
hearings - adverse action
8.
Colorado Driver License Point Structure & Driving
Privilege Suspension
Point
system
- adult, provisional, minor and chauffeur (CDL)
How
many point do I have and at what number will I be suspended?
Points
assessed for common tickets
Point
suspension - base periods of license loss
Points
- out of state license - Colorado conviction
Points
- Colorado license - out of state conviction
9.
Application for
Driver's License in Another State
10.
Other License
Proceedings
a. Insurance related statutes
Numerous
traffic problems which require SR-22 insurance
Colorado law requires
insurance companies to report all vehicle policies. If a vehicle becomes
uninsured, the owner will receive a notice and must provide evidence of
insurance to the DMV with 45 days or the vehicle license plates will be
seized.
Each above DMV
proceeding is independent of the other and can be entered simultaneously.
b. Driving privileges may be
lost for multiple alcohol or other major offenses
2 alcohol convictions
within a period of 5 years
1 year loss.
3 alcohol convictions in
your lifetime
2 year loss.
Habitual offender
proceedings (3 major offenses within 7 years)
5 year license loss
c.
INTERLOCK
DEVICE - refer to link for additional information
Breath testing equipment
installed in your vehicle at your expense
Voluntary Installation -
drivers losing their license re excessive alcohol or one year +
Involuntary Installation -
2nd / subsequent offenders or habitual offender
DMV
- Restricted Interlock License Agreement Form
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$10,000
bail bond
not to be released while the case is pending
plus mandatory
jail
sentence if convicted |
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If that catches your attention, follow the above title link to a summary of criminal actions,
defenses and penalties which may
result from continued operation of a vehicle after loss of driver's license or privileges to drive in Colorado.
Driving without getting caught? refer to Murphy's law. Timing?
refer to Mrs. Murphy. |
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Southern Colorado law
enforcement linked in sophisticated equipment picture |
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VEHICLE
FORFEITURE
legislative debate |
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If relevant, refer to the below links. Such charges are indeed filed in
conjunction with DUI when law enforcement alleges
the defendant was urinating - aka "draining the radiator,"
masturbating in a parked car or engaged in sex in secluded, yet public
place. Such charges have consequences which can be quite serious. If
patronizing a prostitute or "lady of the evening" when apprehended,
prostitution
may also be charged in conjunction with
DUI.
For all practical purposes, if charged in the same criminal prosecution as
DUI,
DEAC or
DWAI, public
urination, public masturbation, public intercourse, public fellatio or public
cunnilingus allegations necessitate jury trial due to potential long term
consequences. Refer to the links if this is relevant to your case. |
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Indecency
webpage
Indecent
exposure
Public
indecency
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Sex
offender webpage
Statutorily defined
sex
offenses
indecent exposure is included, public indecency is not
Registered
sex offender
overkill in this type of circumstance, but very real
Special
rules -
sex
offense
charged
and conviction or
deferred
sentence enters to any offense
Sex
offender registry |
DUI DEFENSE
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CHILD ABUSE |
IN THE CONTEXT OF A DUI STOP
MISDEMEANOR OR FELONY |
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CHILD
ABUSE CRIMINAL
CHARGES
Law enforcement officers are now charging
child abuse when a
minor child is in
the vehicle and the driver is charged with
DUI,
DEAC or
DWAI. If the law
enforcement officer fails to charge, the District
Attorney office will likely file a motion to amend and add the charge pursuant
to C.R.Crim.P. 7(e). Prosecutors view this as a serious criminal charge. Having a child or
children in the vehicle is a serious complication to a drunk driving case even if no accident or injury
is involved.
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CRS
18-6-401. Child Abuse. |
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(1) (a) A person commits child abuse if such person causes an injury to a
child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or
engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an
accumulation of injuries that ultimately results in the death of a child or
serious bodily injury to a child.
(b) intentionally omitted
(c) A person commits child abuse if, in the presence of a child, or on
the premises where a child is found, or where a child resides, the person engages in the manufacture or attempted manufacture of a controlled
substance, as defined by section 18-18-102(5), or possesses ephedrine,
pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts
of isomers, with the intent to use the product as an immediate precursor in the manufacture of a controlled substance.
(2) In this section, "child" means a person under the age of sixteen
years.
(3) The statutory privilege between patient and physician and between
husband and wife shall not be available for excluding or refusing testimony
in any prosecution for a violation of this section.
(4) No person, other than the perpetrator,
complicitor, coconspirator, or accessory, who reports an instance of child abuse to law enforcement
officials shall be subjected to criminal or civil liability for any consequence of making such report unless he knows at the time of making it
that it is untrue.
(5) Deferred prosecution is authorized for a first offense under this
section unless the provisions of subsection (7.5) of this section or section 18-6-401.2 apply.
(6) Repealed.
(7) (a) Where death or injury results, the following shall apply:
(I) When a person acts knowingly or recklessly and the child abuse
results in death to the child, it is a class 2 felony except as provided in paragraph (c) of this subsection (7).
(II) When a person acts with criminal negligence and the child abuse
results in death to the child, it is a class 3 felony.
(III) When a person acts knowingly or recklessly and the child abuse
results in serious bodily injury to the child, it is a class 3 felony.
(IV) When a person acts with criminal negligence and the child abuse
results in serious bodily injury to the child, it is a class 4 felony.
(V) When a person acts knowingly or recklessly and the child abuse
results in any injury other than serious bodily injury, it is a class 1 misdemeanor.
(VI) When a person acts with criminal negligence and the child abuse
results in any injury other than serious bodily injury to the child, it is
a class 2 misdemeanor.
(b) Where no death or injury results, the following shall apply:
(I) An act of child abuse when a person acts knowingly or recklessly is a
class 2 misdemeanor.
(II) An act of child abuse when a person acts with criminal negligence is
a class 3 misdemeanor.
(c) When a person knowingly causes the death of a child who has not yet
attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child, such person commits the
crime of murder in the first degree as described in section 18-3-102(1)(f).
(d) When a person commits child abuse as described in paragraph (c) of
subsection (1) of this section, it is a class 3 felony.
(7.3) Felony child abuse is an extraordinary risk crime that is subject
to the modified presumptive sentencing range specified in section 18-1.3-401 (10). Misdemeanor child abuse is an extraordinary risk crime
that is subject to the modified sentencing range specified in section
18-1.3-501 (3).
(7.5) If a defendant is convicted of the class 2 or class 3 felony of
child abuse under subparagraph (I) or (III) of paragraph (a) of subsection
(7) of this section, the court shall sentence the defendant in accordance with section 18-1.3-401(8)(d).
(8) Repealed.
(9) If a parent is charged with permitting a child to be unreasonably
placed in a situation that poses a threat of injury to the child's life or
health, pursuant to paragraph (a) of subsection (1) of this section, and the child was seventy-two hours old or younger at the time of the alleged
offense, it shall be an affirmative defense to such charge that the parent
safely, reasonably, and knowingly handed the child over to a firefighter, as defined in section 18-3-201(1), or to a hospital staff member who
engages in the admission, care, or treatment of patients, when such firefighter is at a fire station or such hospital staff member is at a
hospital. |
CHILD
ABUSE JUVENILE COURT
DEPENDENCY AND NEGLECT ACTION
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In addition to the criminal charge, at minimum the driver and his or her family
will be visited by a DHS caseworker to determine whether the child involved or
any other children in the family are at risk and dependent and neglected. In the discretion of the DHS caseworker, the child(ren) may be removed from the
home, and a juvenile dependency and neglect lawsuit may be initiated. Alternatively, the caseworker may leave the child(ren) in the home, but will
make a finding regarding the report of child abuse.
The immediate concern of any assessment or investigation shall be the protection of the child, and, where possible,
the preservation of the family unit. |
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CRS 19-3-308 |
DHS Investigation and
Findings |
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CRS 19-3-401 and CRS
19-3-408 |
Removal of Child(ren) from
Home |
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CRS 19-3-308 |
Retention of Child(ren) in
Home |
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CRS 19-3-312 |
Juvenile Court Dependency
& Neglect Action |
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CRS 19-3-304 |
Persons Required to Report
Child Abuse or Neglect |
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CRS 19-3-311 |
Privileged Communications
Abrogated (do not exist) |
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CRS 19-3-102. Neglected or dependent
child.
(1) A child is neglected or dependent if:
(a) A parent, guardian, or legal custodian has abandoned the child or has
subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the
child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring;
(b) The child lacks proper parental care through the actions or omissions
of the parent, guardian, or legal custodian;
(c) The child's environment is injurious to his or her welfare;
(d) A parent, guardian, or legal custodian fails or refuses to provide
the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or
well-being;
(e) The child is homeless, without proper care, or not domiciled with his
or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian;
(f) The child has run away from home or is otherwise beyond the control
of his or her parent, guardian, or legal custodian;
(g) The child tests positive at birth for either a schedule-I controlled
substance, as defined in section 18-18-203, C.R.S., or a schedule-II controlled substance, as defined in section 18-18-204,
C.R.S., unless the child tests positive for a schedule-II controlled substance as a result of
the mother's lawful intake of such substance as prescribed.
(2) A child is neglected or dependent if:
(a) A parent, guardian, or legal custodian has subjected another child or
children to an identifiable pattern of habitual abuse; and
(b) Such parent, guardian, or legal custodian has been the respondent in
another proceeding under this article in which a court has adjudicated another child to be neglected or dependent based upon allegations of sexual
or physical abuse, or a court of competent jurisdiction has determined that
such parent's, guardian's, or legal custodian's abuse or neglect has caused
the death of another child; and
(c) The pattern of habitual abuse described in paragraph (a) of this
subsection (2) and the type of abuse described in the allegations specified
in paragraph (b) of this subsection (2) pose a current threat to the child. |
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CRS 19-1-103. Definitions.
As used in this title or in the specified portion of this title, unless
the context otherwise requires:
(1) (a) "Abuse" or "child abuse or neglect", as used in part 3 of article
3 of this title, means an act or omission in one of the following categories that threatens the health or welfare of a child:
(I) Any case in which a child exhibits evidence of skin bruising,
bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, or death and either: Such
condition or death is not justifiably explained; the history given concerning such condition is at variance with the degree or type of such
condition or death; or the circumstances indicate that such condition may not be the product of an accidental occurrence;
(II) Any case in which a child is subjected to unlawful sexual behavior
as defined in section 16-22-102(9), C.R.S.;
(III) Any case in which a child is a child in need of services because
the child's parents, legal guardian, or custodian fails to take the same actions to provide adequate food, clothing, shelter, medical care, or
supervision that a prudent parent would take. The requirements of this subparagraph (III) shall be subject to the provisions of section 19-3-103.
(IV) Any case in which a child is subjected to emotional abuse. As used
in this subparagraph (IV), "emotional abuse" means an identifiable and substantial impairment of the child's intellectual or psychological
functioning or development or a substantial risk of impairment of the child's intellectual or psychological functioning or development.
(V) Any act or omission described in section 19-3-102(1)(a), (1)(b), or
(1)(c);
(VI) Any case in which, in the presence of a child, or on the premises
where a child is found, or where a child resides, a controlled substance, as defined in section 18-18-102(5), C.R.S., is manufactured or attempted
to be manufactured;
(VII) Any case in which a child tests positive at birth for either a
schedule-I controlled substance, as defined in section 18-18-203, C.R.S., or a schedule-II controlled substance, as defined in section 18-18-204,
C.R.S., unless the child tests positive for a schedule-II controlled substance as a result of the mother's lawful intake of such substance as
prescribed.
(b) In all cases, those investigating reports of child abuse shall take
into account accepted child-rearing practices of the culture in which the child participates including, but not limited to, accepted work-related
practices of agricultural communities. Nothing in this subsection (1) shall refer to acts that could be construed to be a reasonable exercise of
parental discipline or to acts reasonably necessary to subdue a child being taken into custody pursuant to section 19-2-502 that are performed by a
peace officer, as described in section 16-2.5-101, C.R.S., acting in the good faith performance of the officer's duties. |
CHILD ABUSE
CENTRAL REGISTRY
The DHS will consider the breath alcohol concentration or blood alcohol
concentration
and the state's evidence in the criminal case. The DHS caseworker will
likely conduct independent
investigation interviews and submit findings. In determining whether to consider the child abuse
report to be true, the DHS will use preponderance of the evidence as the
standard of proof - more likely than not.
If the DHS determines that the allegation is a confirmed report of child abuse
or neglect, a report will be made to the statewide
DHS central registry identifying the driver as a child abuser. CRS
19-3-307. The person
who is the subject of the confirmed report may request a hearing under the administrative procedures act
(APA) before an
administrative law judge to challenge the confirmed report finding and inclusion in the DHS child abuse central
registry. The subject of the report may file a petition for exclusion (expungement
or sealing) under the APA.
CRS 24-4-105. The hearing officer's findings are subject to judicial
review under the APA. CRS 24-4-106.
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For additional information
refer to: |
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Investigation & report of
child
abuse or neglect |
CRS 19-3-307, 12 CCR 2509-3
§ 7.202.5 |
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Confirmed reports of child
abuse or neglect |
CRS 19-3-313.5, 12 CCR
2509-3 § 7.202.6 |
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Access to confirmed reports
of child abuse or neglect |
CRS 19-1-307, 12 CCR 2509-1
§ 7.000.72 |
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County DHS - conflict
resolution |
CRS 19-3-211, 12 CCR 2509-3
§ 7.200.3 |
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State reviews of county
records & state level hearing |
CRS 19-3-313.5, 12 CCR
2509-3 § 7.202.6 |
DUI DEFENSE
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NOTICE - FELONY
SERIOUS BODILY
INJURY OR DEATH |
IN THE CONTEXT OF DUI |
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In Colorado, if a driver is under
the influence of alcohol or any drug (prescription or illicit) and serious
bodily injury or death results to any person in an accident, the driver may be
charged with and found guilty of vehicular assault CRS
18-3-205 or vehicular
homicide CRS
18-3-106. The defendant's intoxication and impaired driving must
be the proximate (legal) cause, however all that is required of the drinking
driver is simple negligence or carelessness if the driver's actions or conduct
contributed to the injury or death.
Contributory negligence of the
victim is not a defense. The injured person or a third person may be the
primary cause; this does not affect criminal liability. If a driver were to be
involved in such an accident, the
District Attorney Office
would likely charge the felony if
a driver's BAC is 0.08 or greater, and the driver could be charged on a lower BAC or
without a chemical test.
Felony conviction may result in
sentence to the Colorado Department of Corrections - state penitentiary.
Every
person has the potential to be charged with either of these felonies any time
he / she drives a motor vehicle after consuming alcohol. No warning alarms
sound nor do lights flash when a driver's BAC reaches 0.05 or 0.08 grams of alcohol
per 210 liters of breath or per 100 ml of blood. No defendant has the right to
refuse a chemical test when charged with a felony; blood will be drawn
involuntarily if need be.
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CRS
18-3-205 Vehicular Assault (F-4) or (F-5) depending upon facts |
Refer to: |
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CRS
18-3-106 Vehicular Homicide (F-3) |
CRS 18-1.3-401
Felony Sentencing |
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ATTORNEY'S
ROLE AND ASSISTANCE |
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DUI DEFENSE
COLORADO SPRINGS
DEFENSE ATTORNEY |
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To learn the facts from the client's
viewpoint, the attorney conducts a factual interview. The interview frequently takes 1 - 11/2 hours. To glean evidence of which
the client may not be aware, I will investigate each DUI case prior to
pre-trial conference negotiation or contested proceedings of motions hearing and
trial.
During investigation in a
criminal case, counsel looks for evidence:
exculpatory evidence tends to
negate guilt or to reduce punishment
inculpatory evidence tends to establish or support guilt or to increase punishment
investigation preceding
contested proceedings is more in-depth, which may involve a
private
investigator
While most evidence
can be discovered at nominal cost, re-testing DUI breath or blood alcohol and drug
screening or toxicology by
an
independent laboratory requires out of pocket expense.
Re-testing is not
required, but strongly advised - the attorney seeks to uncover any
weakness in the state's case. No attorney can manufacture or
destroy evidence, but a competent attorney certainly can discover.
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ATTORNEY'S
ROLE AND ASSISTANCE
First
Offense - Known BAC 0.169 or Less |
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Pre-trail conference proceedings (plea negotiations) are set in first offense
DUI cases where the BAC is 0.169 or below. After investigating the case,
determining the evidence and facts, and applying relevant law, I plea
bargain with prosecutors to obtain the most favorable offer possible. I ask
that clients be present in the courthouse to discuss the plea negotiation
offer, consequences of acceptance, possible alternatives, facts and law
applicable to
trial. The attorney makes recommendations if requested. After
receiving sufficient information to make an intelligent decision, the client
is asked whether to accept the plea
offer, or proceed to trial. It is the client's DUI case and consequences - the client will be
able to decide freely, voluntarily and intelligently. After the client's decision,
if settled I set a sentencing hearing, or if unresolved - I schedule motions
hearing, readiness hearing and trial.
The attorney's role in this type of DUI case is fact finder and negotiator -
hopefully trial will not be required. A difficulty with blood test DUI cases is that the BAC is generally not known at
the time of hire.
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ATTORNEY'S
ROLE AND ASSISTANCE
First
Offense - BAC 0.17+ * BAC Unknown * BAC Refusal * CDL
or
Second or Subsequent Offense |
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If a blood test was conducted, the results will not be known to the driver
or state for a period of time. Under Department of Heatlh
Regulation
5 CCR 1005-2, the state lab has 15 days
in which to test the blood. A defendant may appear at the
Colorado Springs Police Department POC
and request blood test results. A small fee may be assessed by the
CSPD Crime Lab. Defense counsel will obtain discovery from the DA
Office during the course of investigation which will include BAC test
results, gas chromatograph charts, chain of custody, lab certification &
documentary certification. Similarly, if a breath test was taken,
defense counsel will request and receive the intoxilyzer printout evidencing
BAC result, intoxilyzer certification, operator certification, instructor
certification, and documentary certification. The BAC test results
will in large part determine the course of defense of defense strategy.
First offense unknown BAC which is
determined to be 0.169 or less will result in attorney flat fee
adjustment. |
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Sharp teeth have been added to Colorado law regarding DUI first offense cases
involving BAC of 0.17+, BAC 0.2+, BAC refusal, second / subsequent offense, Adult CDL or Minor CDL.
These consequences take the
the form of mandatory minimum
jail sentences, DMV license loss or restrictions, persistent drunk driver,
mandatory interlock and
SR-22 Insurance plus the
El Paso County District Attorney Office
policies. Refer to defense
criteria & considerations below. An attorney's role in
this type of DUI case is trial attorney - not negotiator. Attorney now
agrees to provide representation in most of these cases on a trial fee basis
due to the fact settlement within parameters acceptable to the client is not
possible.
Numerous trials were required
in the early 1980's when DUI law was forming, a "designer crime"
or a "hot ticket item"
Much of the DUI caselaw
was decided, from the late 1970's - mid 1980's. From the late 1980's - 2002 it was my belief that a ballpark of
reason existed for each case, and settlement could be found in nearly every
DUI - whether first offense or multiple offender, or whether aggravated or mitigated
in BAC level, accident or other facts.
Settlement negotiations are no longer worthwhile in DUI case
involving a BAC of 0.17+, BAC refusal, second / subsequent offense,
Adult CDL or
Minor CDL unless conducted within the context of motion and
trial settings. The only settlement alternatives are to negotiate toward
work release, home detention - ankle bracelet or day reporting. This is based upon:
Shift in
El Paso County District Attorney Office
settlement policy to mandatory imposition of
jail, sometimes straight
jail
without
work
release. and
Mandatory minimum
jail
sentences imposed by state statutes for cases involving BAC 0.20+ or second /
subsequent offense, and
Bear in mind settlement will likely
not solve
DMV license loss or restrictions
DUI cases
involving a BAC of 0.17+, BAC 0.20, BAC refusal, CDL or second / subsequent offense
should be
investigated and prepared for trial. This is unfortunate as trial posture increases fees and
costs, but unavoidable.
El Paso County District Attorney Office
policy,
DMV license or driving privilege consequences and
current statutes leave no alternative. Put another way - why pay an attorney to negotiate when
this has become a non-negotiable circumstance? Knowing this, If a
prospective client requested defense on a negotiation toward
jail,
work
release,
day
reporting or
ankle
bracelet, and understands the
license problems of
persistent drunk driver,
mandatory interlock and
SR-22 Insurance, I would likely consider
representation on that basis.
Most settlement DUI cases do not require a
subpoena duces tecum upon the
law enforcement agency
to obtain 911 or dispatch
tapes, but trial cases do. If required, an expense will be incurred to
serve the subpoena
duces tecum as well as an expense to the
law enforcement agency
for research
and duplication of the calls on a CD, and preparation of a hardcopy
call screen,
otherwise known as CAD - computer assisted dispatch.
Similar to subpoena above, most
settlement DUI cases do not require the services of a
private
investigator, but trial cases do.
If so, an expense would be incurred to the
investigator. I always obtain
client authorization prior to utilizing such services. Witness statements may
be taken from any law enforcement officer, medical or paramedic or lay witnesses who
may testify. A synopsis or transcript of the witness' statement is useful in trial
preparation, as well as for impeachment purpose at trial or hearing. Counsel
can not testify in any case in which representation is provided. It is also
common for the
investigator to photograph the scene. An
investigator looks for
all evidence - favorable and unfavorable. This attorney does not wish to be
surprised at trial. If investigation is merited, I
request a trust deposit to cover expenses for a
private
investigator
If a DMV revocation hearing is
held, a DMV transcript of the officer's testimony can be obtained whether the
ruling is taken on appeal or not. This is beneficial at motion hearing
and trial: it may be used for impeachment of officer prior inconsistent
statement or lack of recollection. The
DMV transcriptionist will require a transcript deposit.
If a favorable settlement offer is made, it is usually on the eve of trial or as
the jury panel is being brought to the courtroom from the jury commissioner. Chances
are very slim that a DUI case of this nature will settle within parameters
acceptable to the client unless he / she favors the idea of
jail, significant public
service and alcohol education + therapy as well as monitored Rx disulfiram (antabuse)
and monitored abstinence. Don't
expect negotiation to disposition - trial is likely. It is likely the
Deputy DA will not have authority or ability to negotiate a settlement which
will avoid
DMV license loss or restrictions. Even if
negotiated, multiple offense cases and BAC 0.20+ cases carry mandatory
jail.
Judges may inquire whether the parties have attempted negotiation. The
court can not and will not attempt to force a settlement, but judges like to
know that settlement options have been explored prior to expending valuable
court time. It is this attorney's policy to call the Deputy DA shortly
before contested proceedings to discuss potential settlement, even if
unlikely.
Plea negotiations are impacted by evidentiary or legal weaknesses. At
any time a settlement offer is received, the client is advised of the offer,
facts, applicable law, consequences and options in order that he / she may make
intelligent decisions. It is the client's case and consequences, therefore
he / she must always be able to decide freely, voluntarily and intelligently.
The client's decision is always honored, even if counsel recommends otherwise.
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FACTORS - INITIAL DEFENSE POSTURE &
FEES / COSTS
criteria upon which
attorney & client decide how to proceed in a DUI case
jail & license restrictions are foremost concerns to most clients
bear in mind this crystal ball tends to be a bit hazy - predicting
the future is best left to fortune tellers & soothsayers |
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* First DUI Offense - BAC 0.169 or
Less. If retained,
attorney will likely schedule a pre-trial conference.
Settlement would be anticipated. |
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* First DUI Offense - BAC 0.17 or Greater or
2nd / Subsequent Offenses. If retained,
attorney will likely not set a
pre-trial conference, but instead set subpoena return dates, motions
hearing, readiness hearing, and trial.
Jury trial would be anticipated. |
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CDL - Commercial Driver License. If retained,
attorney will likely not set a
pre-trial conference, but instead set subpoena return dates, motions
hearing, readiness hearing, and trial. Jury trial would be
anticipated. |
Adult CDL - any
BAC or refusal
First offense
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refer to
DMV proceedings - out of service order, disqualification, reinstatement
refer to
DA policy
refer to
potential quote for
criminal case fees and costs
refer to
potential quote for DMV hearing fees and costs |
Minor
CDL - any BAC or refusal
First offense
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refer to
DMV proceedings - out of service order, disqualification, reinstatement
refer to
DA policy
refer to
potential
quote for criminal case fees and costs
refer to
potential quote for DMV hearing fees and costs |
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Second or subsequent offense |
consult the attorney |
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Minors Involved in Alcohol Related Cases - First Offense.
If retained, attorney will likely schedule a pre-trial conference.
Settlement would be anticipated. |
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Minors Involved in Alcohol Related Cases - Second Offense.
If retained, attorney will likely not set a pre-trial conference,
but instead set subpoena return dates, motions hearing, readiness
hearing, and trial. Jury trial would be
anticipated. |
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DUI DEFENSE
POTENTIAL
DEFENSES
caveat - more law is applicable - just a brief overview here
MISDEMEANOR OR FELONY OFFENSE |
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When a defendant is presented with some of the evidence of probable
cause or intoxication on the merits, a DUI case can appear indefensible.
Regarding officer credibility. some law enforcement officers are
overly concerned with conviction
statistics.
Think they don't want a conviction? - refer to the link. And, Roadside sobriety testing -
was it truly "voluntary?" what was advisement which was given - it a search
within the meaning of constitutional protections. Was there probable
cause for roadsides or blood testing or breath testing? - was it reasonable? Were there legitimate reasons other than alcohol
for poor performance? Was horizontal gaze nystagmus (HGN) properly
conducted or could an eye doctor discredit the test as conducted? Was
HGN conducted after midnight - HGN onsought effect. What tests didn't
the negligent officer conduct?
Some DUI cases are indefensible at trial, however most are defensible.
there are a myriad of defenses available depending upon the facts of the
particular case. Defense preparation should fit the facts, not the client
making the facts fit potential defenses. Short, non-inclusive list below.
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Jurisdictional
attack - refer to link for information re DUI case
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Attack the jurisdiction (power)
of the court in the pending criminal case
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Jurisdictional attack may be an
important concept in defense of any given DUI case
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Lack of reasonable suspicion for
initial contact by the law enforcement officer
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Law enforcement officers belong
at an accident scene and officers find it impolite when a driver runs the
light. Weaving is a common reason for initial stop - nearly impossible
to defend reasonable suspicion because there is seldom a windmill witness to
the initial driving pattern.
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Lack of probable cause for
warrantless arrest or seizure of the defendant's person
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Roadside sobriety testing
unreasonable search unsupported by warrant
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Chemical testing unreasonable
search unsupported by warrant
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Unreliable chemical testing
violative of due process
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Unlawful extra-jurisdictional
arrest
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Defendant's admissions the
result of undue influence, duress and coercion - due process violation
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Defendant's admissions taken in
violation of
5th Amendment privilege against
self incrimination
6th Amendment right to legal
counsel
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Chemical testing failed to
comply with Colorado law & Dept. of Health regulations
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Alleged offense did not occur on
public roadway or highway? - sorry, won't work in DUI cases
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Driving
A third person, not defendant,
was driving a motor vehicle
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Defendant's action's did not
constitute driving as defined by Colorado law
42-1-102(27) "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
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Officer observations - what
didn't he observe which a jury member might expect? What was the
officer's opportunity to observe? - lighting, time spent, temperature, etc.
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Officer credibility.
Experience with DUI enforcement and training, over concern with conviction
statistics,
a cop's cop or an average Joe doing a job, would the jury members want this
particular officer stopping him / her? Has the officer overstated his
/ her observations in relation to the BAC? How well was the stop and
investigation conducted?
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Roadside sobriety testing - was
it truly "voluntary," advisement which was given, it a search
within the meaning of constitutional protections - was there probable cause,
was it reasonable? Were there legitimate reasons other than alcohol
for poor performance? Was horizontal gaze nystagmus (HGN) properly
conducted or could an eye doctor discredit the test as conducted? Was
HGN conducted after midnight - HGN onsought effect. What tests didn't
the negligent officer conduct?
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Breath BAC. Consent
"voluntary?" Did the officer observe the defendant for a full 20
minutes to avoid residual mouth alcohol? Dentures, plates or
periodontal pockets? Certification of the intoxilyzer operator,
instructor and machine? Spiking, malfunction, blood-gas ratio average
not particularized to defendant, physical inability to cycle, retention of a
silica jell tube, specimen re-test results & variance, standard solution
- time used, date of preparation, number of times used, standard solution
results from other tests, ambient air alcohol, radio wave interference.
How long from time of driving, how was the time of driving established?
Cycle sequence, etc.
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Blood BAC. Voluntary
consent? Vial 1.0+% NaFl as anti-coagulent and preservative?
Sterility in vial and skin? Was ethanol based sterilant used to swab
skin? Specimen re-test results & variance, is BAC result highest
of multiple state tests or average or low test result? Refridgeration,
officer presence at the time of the draw, time between blood draw and
testing, chain of custody and witnesses thereto, vial identification,
phlebotomist / lab tech / toxicologist / pathologist, lab certification,
vial serial number matches - ID, etc.
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Reasonable doubt - state proof
beyond a reasonable doubt
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Cloak of innocence and burden of
proof upon state - beyond a reasonable doubt. A defendant is not
required to prove innocence - the state must prove guilt.
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Voluntary
Intoxication is an affirmative defense to criminal charges requiring
scienter (specific intent), but DUI,
DEAC or
DWAI are
strict liability crimes and the defense is not available. If it were,
voluntary intoxication would probably not be the best defense to the charge
of intoxication.
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Involuntary
Intoxication (i.e.: spiked punch - consumption of alcohol without
knowledge) would be an affirmative defense to
DUI,
DEAC or
DWAI charges.
A jury returned a not guilty verdict for one of my clients on the spiked
punch issue - the state failed to prove knowing consumption.
Knowing consumption argument -
vodka spiked punch unbeknownst to "victimized" defendant
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I could ramble on, but it should
be clear a multitude of facts are available for cross examination. An
example of a couple unusual, but available defenses may be accessed:
Sample
Defenses page.
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When all else fails:
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Trial lawyer's adage:
If the facts are on your side -
pound the facts.
If the law is on your side -
pound the law.
If neither the facts nor the law
are on your side - pound the table !
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And if that fails ----
quote to the jury what one of my 1982 western slope DUI trial clients said
to the state trooper in response to the trooper's question: "Doin'
a little weaving there, weren't ya fella?"
Client: Whaddaya schpect? I'm drrrrunk !!
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INDEPENDENT SERVICE PROVIDERS |
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Where relevant, attorney utilizes
the services of independent professionals. Rates of independent
providers of professional services change periodically and billings are not
controlled by counsel. |
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If retained by counsel as an
agent of the attorney, such independent service providers are protected and bound by the
attorney-client privilege and the attorney work product doctrine. If retained privately by the client, no such
agency or confidentiality exists. |
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ATTORNEY'S FEES AND COSTS
DUI DEFENSE
**
DWAI DEFENSE
**
DEAC DEFENSE
Colorado DUI Defense and Criminal
Defense Trial Practice 30+ Years |
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At the time of the first visit, a prospective
client will be given a quote for fees and estimated costs. The quote will
be honored for a period of seven (7) days, after which quotes are subject to change
without notice if this office has not been retained. Fee quote and costs
trust deposit is dependent upon the facts and circumstances of each individual
case. Attorney fee options + litigation costs: 1)
hourly attorney fees only 2)
settlement flat fee with trailing trial flat fee 3) trial flat fee only
4) hourly fees or flat fee at client's discretion. Attorney determines
options to be offered. Litigation costs are not included in fees -
client's obligation. Fee & cost estimates herein do not include
jurisdictional attack or
collateral attack. Attorney is a sole
practitioner with need to manage his caseload. Pending proposed client
acceptance and payment, retainer agreement proposals are subject to
withdrawal. Attorney reserves the right to decline any case. Refer to:
a)
first
consultation b)
attorney fees * costs * billings page
c) additional
information.
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POTENTIAL FEE
QUOTE
DUI DEFENSE
**
DWAI DEFENSE
**
DEAC DEFENSE
FIRST OFFENSE -
KNOWN BAC 0.169 OR LESS - NO
CDL |
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SETTLEMENT
FLAT FEE |
$1,650 |
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most DUI first offense 0.169
or lower cases plea
bargain - not trial |
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TRIAL
FLAT FEE |
$6,500 |
| settlement fee
previously paid would be
deducted |
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*estimates
not applicable to /a
child abuse
or
indecent exposure
charges - consult
attorney |
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hourly fees may be less than offered flat fees, however are not
capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of
flat fee + estimated costs total trust deposit required to retain
trust deposit overage -
refunded at case conclusion ** undercapitalization - immediate
trust deposit required
CLIENT'S INITIAL ELECTION RE FLAT FEE
OR HOURLY FEES SHALL BE BINDING AND FINAL |
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attorney does not accept
installment payments * full payment is
due at the time attorney is retained *
major charge cards accepted |
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