I got pulled over and arrested for a DUI. What are my chances of beating the charges?
Every DUI arrest involves a number of factors that can have a direct effect on a citizen’s chances in court. From the beginning of the initial police interaction until the citizen is released from the jail, there are various considerations that can make or break a state’s case against a DUI defendant. A report published in 2022 by the Colorado Division of Criminal Justice within the Department of Public Safety examined 27,000 cases involving at least one DUI charge, and found that:
- 88% of the cases resulted in a conviction of “Guilty,” “Deferred,” or “Deferred Dismissed”
- Less than 10% of the cases resulted in an outright dismissal
- Less than 1% of cases resulted in the Defendant being found not guilty
These outcomes indicate that in Colorado, a Defendant can be fighting an uphill battle to defeat a DUI charge. And while the chances of victory are slim, it would be a mistake to have a defeatist mindset and accept the prosecution’s offers. From challenging the probable cause for the initial stop, to questioning the officer’s subjective determinations about the driver’s level of impairment and success on the roadside tests, and finally to disputing the validity of the blood or breath tests…there is room to mount a vigorous defense to make the state fully prove their case.
If I get stopped by an officer and are asked if I have been drinking, what should I say?
The 5th Amendment to the U.S. Constitution dictates that you are NEVER required to answer any questions that will incriminate you for criminal liability. In this situation, you can simply say “I’d like to speak with my lawyer before I answer any of your questions.”
Admitting you have had one beer or one glass of wine is not incriminating, as this amount will not cause most adult drivers to be intoxicated – and can be used to explain the smell of alcohol on your breath.
Do I have a right to an attorney when asked to take a roadside test?
NO, you do not. In Colorado, drivers have no right to counsel until the driver has submitted/refused a breath, blood, or urine test. You can ask for a lawyer, but officers are not required provide one at the point of the stop.
What do I do if I am asked to do a roadside sobriety test?
I cannot state more clearly – DON’T DO THEM. Taking roadside tests are completely voluntary, and there is no penalty in Colorado for refusing to take this voluntary sobriety assessment.
The reality is, if the officer has decided that you are likely intoxicated, passing every aspect of the roadside sobriety test probably will not change the officer’s mind concerning his/her intention to arrest you. On the other hand, if the officer is suspicious of your sobriety, failing any aspect of the test will provide justification for the officer’s suspicions. Failing any aspect of the test (even if you are completely sober) will simply be used as additional evidence that at best the driver was operating a motor vehicle in a careless manner, and at worse was driving while intoxicated.
Just don’t do them.
What is the point of asking a driver to follow a penlight with their eyes?
This test is called the “horizontal gaze nystagmus” test, often referred to as the HGN test. It is designed to test two things:
- The officer is trying to figure out at what degree an eye begins to “jerk” when following an object. If the ‘eye jerk’ starts sooner than 45 degrees, it can indicate that the test-taker’s blood alcohol concentration is .05% or above.
- The officer is watching to see how smoothly the eyes pan with the object (the pen or officer’s finger).
The validity of this test being indicative of intoxication are dubious, as they are vulnerable to being challenged by way of the officer’s subjective opinion about the angle when the jerking started and how smoothly the eyes moved.
Should I agree to a blood test? What happens if I say NO?
Colorado follows what is called implied consent – meaning that all person’s holding a driver’s license in the state of Colorado will be presumed to have consented to chemical tests (breath or blood) if asked to do so by an officer when the officer has probable cause to believe the driver was operating a motor vehicle under the influence. Refusing to take both of these tests WILL result in the loss of driving privileges for at least one year – NO EXCEPTIONS. Furthermore, a driver’s refusal of a blood/breath test will be introduced as evidence of the driver’s “consciousness of guilt” for any DUI charges arising from the incident.
Blood test or a Breath test -- which should I choose?
You will be asked which test you would prefer to have. However, if the test you choose is not currently available at the facility (whether because of machine malfunction or a lack of trained medical personnel) and cannot be administered in a reasonable amount of time, the other test will be given instead.
In Colorado, breath tests are administered by a machine, and blood tests are sent to a lab for analysis. Blood tests are a more accurate measurement of the driver’s level of intoxication. On the other hand, breath test machines can malfunction or produce inconsistent results, and are therefore more vulnerable to its reliability being attacked during a DUI trial.
Any questions or concerns, please ask.