Colorado Springs Criminal Attorney Blog

Sometimes it ain't over even when the fat lady sings.

Way back when, at my old Colorado Springs criminal defense law firm, my partner had a DMV hearing for a Colorado Springs DUI in which his client took a blood test. The state tested the client's blood for alcohol and the BAC (blood alcohol content) was greater than .170. Uh oh. Why, "uh oh"? Because in Colorado, if your BAC is higher than .170, you have to install ignition interlock, enroll in and complete a Level II alcohol education and therapy program, and obtain SR-22 insurance for three years to get your license reinstated. ON A FIRST OFFENSE!

Anyway, Colorado Springs DUI law enforcement officers are required to collect a second vial of blood for the suspect to analyze. A good Colorado Springs DUI lawyer will always have the "second sample" of blood tested at an independent laboratory. Which is what we did for this particular client. Lo and behold, the client's second vial of blood came back at under .170 BAC, which should have exempted him from the mandatory ignition interlock and alcohol class requirements. This would have saved him literally thousands of dollars in out of pocket costs and future insurance costs. Except that the hearing officer at the DMV ruled that the state result (the higher one) was the one he was going to rely on.

Well, to make a long story short, I wrote an appeal that the hearing officer was required to use the lesser of the two results. The benefit of the doubt in a DUI or DMV case should go to the defendant. The District Court overturned the hearing officer and said we were correct, and that the DMV must use the lower result. The DMV got mad and appealed THAT decision up to the Court of Appeals. The Court of Appeals affirmed the District Court and, in essence, said "Hey, DMV, knock it off. You lost!" The mandate (directive) from the Court of Appeals came through today!! Yay, good job to me!

Moral of the story: sometimes it pays to appeal, but it ALWAYS pays hire a good Colorado Springs criminal defense attorney and to have your blood tested by an independent lab.

One of the least gratifying aspects of my Colorado Springs and El Paso County DUI practice is appearing at the Department of Motor Vehicles. As I am fond of saying, "It's a drag, I'd rather hit my head on the wall than go to DMV." Facing the facts, more often than not, a driver charged with a DUI will lose his or her license through the DMV. So why go in the first place?

A little background information first . . .

When you are charged with Driving Under the Influence in Colorado and your blood or breath alcohol content is .08 or greater, or if you refused a chemical test, there are two separate and independent actions taken against you--one at the court house and one at the Department of Motor Vehicles (or DMV). That DMV action determines whether your driver's privilege will be revoked--the MINIMUM revocation for an adult on a first offense is now NINE MONTHS. To get your license back after one of these revocations, or to apply for early reinstatement, you have to comply with some fairly onerous requirements including IGNITION INTERLOCK--a breath test device on your car.

At the hearing, the case the police must prove boils down to four basic elements:

1. Do the police have a legitimate reason under the Constitution to contact or stop you? This is called reasonable articulable suspicion.

2. Do the police develop enough facts to show that you were under the influence or impaired by alcohol while you were driving? This is called probable cause. For DMV purposes, this is generally just three indicators of alcohol impairment, for example: "blood shot and watery eyes, slurred speech, and an odor of alcohol."

3. Do the police properly advise you of your obligations and rights regarding chemical testing, or the ramifications of refusing a chemical test? This is called express consent.

4. Finally, was there a valid chemical test above a .08 that was collected within two hours of the time of driving or was there a refusal to take a test?

Continue reading "Colorado DUI Driver's License Revocation" »