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?