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Robert
D. Gustafson, Attorney At Law
COLORADO SPRINGS TRIAL LAWYER
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6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719) 260-1002
Toll Free (800) 410-1002
E-MAIL
ATTORNEY
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Attorney
Business Hours
Attorney
Availability Status
FREE
INITIAL CONSULTATION
Fax (719) 260-1003
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DUI DEFENSE
COLORADO SPRINGS
DRUNK DRIVING DEFENSE
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WELCOME
I appreciate your interest
perhaps I will become your attorney |
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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
25+ 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 DUI 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.
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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. DUI roadside sobriety testing is a
search in the constitutional sense which can and should be refused whether
intoxicated or stone cold sober. Law enforcement officers have no
obligation to advise you of your right to refuse, but it exists - exercise your
rights and politely decline with a simple no.
Similarly, no other rights should be waived by any DUI 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.
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DEFENDANT DEMEANOR
refer to above link for information |
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 DUI clients to remain silent and be courteous, calm and in
control of your emotions. Politely decline any police requests,
making the statement you need to consult with legal counsel before giving
a response, and request presence of an attorney. You have the right to
presence of and advice of defense counsel. Exercise your
rights.
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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)
6. Operating a motorboat or
sailboat while under the influence means operating a motorboat or
sailboat or being in actual physical control when the operator is substantially
incapable of safely operating the boat due to being under the influence of
alcohol or drugs, or a combination thereof or have a blood alcohol
concentration of .08 grams of alcohol per 100 ml of blood or per 210 liters of
breath or greater. CRS 33-13-108.1
7.
Inferences:
the judge or jury may infer the following: (aka permissive presumption -
fact finder can presume or can ignore)
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BAC below 0 .050
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inference
of sobriety
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BAC of 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 above 0 .08
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inference
of intoxication - DUI
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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
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. 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. |
5. Prima facie case.
The
District Attorney Office may not dismiss a DUI, DEAC or DWAI charge or reduce the charge to
a non-alcohol offense unless a good faith representation
is made by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.
That means the prosecutor represents to the Court that the state could not
produce sufficient evidence to withstand a motion for judgment of acquittal at
the end of the prosecution's case in chief.
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. |
| a. In El Paso County, initial
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.
No Pre-Trial Conference.
Pursuant to Colorado Supreme Court Chief Justice Directive 08-05 (benchmarks)
which pertains to delay prevention, performance review of judges and
retention (judge's jobs), in May, 2008 the courts in El Paso County again changed policy. DUI,
traffic offense and misdemeanor cases are no longer set for pre-trial
conference. At the time of first appearance, attorney cases are now
set for contested proceedings - subpoena duces tecum return, motion hearing,
readiness hearing and jury trial. Courts will not set motions hearing
absent filing of a motion, therefore an initial motion to suppress will be
filed with entry of appearance. Prior to contested hearing dates, the
defense attorney may negotiate with prosecutors to discuss possible alternatives and attempt to reach an
agreement to dispose of the case. This is called plea bargaining. Clients have inquired "What's a
deferred sentence?" Refer to the link for information.
Are prosecutors concerned with their
statistics? If a plea bargain is obtained which is
acceptable to the client, the case is dismissed or set for sentencing. If a plea
bargain is not obtained which is acceptable to the client, the case is set for motion
hearings or trial, or both. Locally the courts require a defendant's presence
unless an out of state resident. Offer of flat dismissal is unlikely in
most cases. The goal
is to procure a disposition with which the defendant can live, e.g. not going
to
jail or not
losing
the driver's license, or perhaps a
deferred sentence to a lesser charge which would not be reflected on the consumer
driving
abstract. If a plea bargain is obtained which is acceptable to the client, contested
hearings are vacated and the case is
dismissed or set for sentencing. If a plea bargain is not obtained
which is acceptable to the client, the case continues to contested hearings
and trial. Locally the courts require a defendant's presence unless an
out of state resident. Refer to
factors which attorney uses in determining whether
a case is likely to settle or proceed to trial. |
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a. Local courts are setting trial dates 60 days out from
initial appearance - similar to
domestic violence fast track.
This is a form of docket control for the courts.
Convenient for those who set policy, but in fairness, El Paso
County Court is inundated with cases. |
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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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If BAC is 0.20+ or if this is a second / subsequent
DUI offense,
trial is necessary to avoid mandatory
jail
required by Colorado law.
BAC = first or subsequent offenses.
Prior DUI offenses include out of state
convictions. |
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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.
At DUI sentencing, the Court has the options of imposing a fine, court costs,
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