Colorado Springs Criminal Attorney Blog

While I was reading about the recent DUI arrest of David Cassidy, I got to thinking about some common mistakes that clients make when they are contacted by the police for suspicion of Driving Under The Influence.

This blog should not be a substitution for legal advice in a particular case. For that, contact a Colorado Springs Criminal DUI Defense Attorney.

Most DUI clients have never been on the wrong side of the law before. They are surprised to learn that when they are being investigated for a Colorado Springs DUI or DWAI, the police are NOT their friends. During the DUI investigation, the police are NOT trying to find a reason to let the client go--quite the contrary is true--the police are scrutinizing every move a client makes, every statement a client utters, every roadside test a client takes, the quality of the client's speech, the color of the client's face, the condition of the client's eyes, and the odor client's breath. And they aren't making those observations for their health; make no mistake about it, they are doing it to charge the client into court, take the client's driver's license, convict the client, and label the client a DUI offender.

So, if you are pulled over after having a few drinks, how can you make the best of a bad situation? Here is the first half of a seven point list.

1. Immediately pull over. Have your documents ready. Don't fumble for them. Be polite, but brief. Speak as little as possible. Don't make any admissions about traffic violations or drinking.

2. DON'T make any statements. Politely decline to answer any questions. Don't apologize. Don't cry. Don't try to explain your way out of the situation. Keep your mouth shut! Literally, keep it shut--the police can't make observations about your breath and quality of speech when your mouth is closed and not saying anything. Don't tell the police what you had to drink or any drugs you may have taken. You have a Fifth Amendment right. Use it!

3. DON'T do roadside tests. In Colorado, they are strictly voluntary. They can't be used against you in court if you don't do them, so don't do them. Why, you ask? They aren't fair. You aren't "scored" for the things you do right, only the things you do poorly on. For instance, the "walk and turn" maneuver where the officer has you take 9 steps, turn around, and take 9 steps back? That test has over 80 separate components that the officer observes, and if you miss just one component--you fail! To repeat, DON'T do roadsides. You have a Fourth Amendment right. Use it!

4. In Colorado, the preliminary test breath test on the side of the road is also strictly voluntary. They can't use it if you don't take it. Again, excercise your Fourth Amendment right!

We will finish the list tomorrow and find out if David did a good job protecting his rights or if he should get used to being behind bars. And if so, "Could It Be Forever"?

I caught this story on KXRM last week. While it mildly surprises me that a bar would install this type of device (not so much because it would discourage patrons from buying more drinks, but I can imagine that if someone forensically demonstrates his intoxication and then the bar lets him drive anyway, civil liability could follow), it does not surprise me at all that the volunteer in the story didn't realize he was over the legal limit.

Colorado law defines two kinds of DUI (and two types of lesser offenses called Driving While Ability Impaired or DWAI).

The first is called Driving Under the Influence. That is the classic "too drunk to drive safe, hit a curb, get pulled over and vomit on the cops shoes" type of DUI charge. The legal definition boils down to being substantially incapable of operating a motor vehicle safety due to the consumption of alcohol or drugs. The lesser offense of DWAI means that your ability to operate a vehicle is "impaired to the slightest degreee" by alcohol or drugs (you don't vomit on the cop).

The second type of DUI, and where most people get in trouble, is based on the "legal limit". This is called "Driving With Excessive Alcohol" or "DUI Per Se". That limit is .08 grams of alcohol per 100 milliliters of blood for DUI (.05 for DWAI). Why people get into trouble with this law is that doesn't need to be any visible sign of impairment to sustain a conviction. This is how someone who demonstrates no "bad driving" (ie, gets pulled over for a plate violation or the like) and isn't stumbling around gets charged with DUI. A jury can convict without any evidence of impairment; rather, it can rely on the results of the test alone allow for to convict. So, even though the volunteer in the above story might not have felt or acted drunk, for driving purposes he was drunk just the same.

I read an article recently on reason.com by Radley Balko that argued we should throw out "legal limits" and prosecute based on "impairment"; whether that impairment is caused by alcohol, drugs, cell phones, texting, etc. I don't think our legislature would ever go down that road, but it is a more logical approach. I also see that Colorado is more "progressive" than Texas because we've already codified "Driving While Ability Impaired."

Anyway, the best way to avoid a DUI is to not drive after drinking. Absent that, you place yourself at risk. Best to call a cab or sober friend when in doubt.