How to Beat a DUI/DWAI in Colorado

Facing a DUI charge in Colorado can be extremely worrisome and stressful, but it doesn’t have to be. Grant Grosgebauer and the attorneys at the Tucker Legal Group have handled hundreds of DUI cases, achieving favorable results for their clients.

Our success stems from our approach - we start from the position of holding the district attorney to their burden, proving the case against you beyond a reasonable doubt at trial. When you begin with the mindset that the case is going to trial, you can evaluate it on the merits. We know every client’s situation is different, but starting in a trial mindset yields the best outcomes; be it more acceptable plea offers or acquittals.

In the below guide we will share some common themes in DUI cases and many of the strategies we use to defend our clients. There is no sure fire way to get out of or beat a DUI in Denver or other parts of Colorado, but there are pathways to victory. Other lawyers will simply recite the relevant laws, but we will tell you in relatable terms what those laws mean and how they matter to your case.

What are Colorado’s DUI Laws?

Colorado DUI laws make it a criminal offense to operate a car or some other motorized vehicle (yes, this may include those little scooters you see everywhere downtown) under the influence of alcohol, drugs, or both. Like all criminal offenses, the district attorney that files the case must prove the charges against you beyond a reasonable doubt.

“Driving under the influence” 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 affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. C.R.S. § 42-4-1301(1)(f).

That lengthy definition really boils down to being “substantially incapable” of driving your car. In short, the district attorney has to prove two things: 1) that you were driving, and 2) that you were drunk or high to the level of substantial impairment.

If the district attorney cannot prove both of the above points, the jury must render a verdict of not guilty. And thus lies the most common defenses used to beat DUI’s – either you were not actually driving, or you were not drunk to the level of being substantially incapable of driving.

1)     What does it mean to drive or operate a motor vehicle?

In Colorado, driving involves not only normal uses, like driving on the roadways, but also involves being in “actual physical control” of a vehicle. People v. Swain, 959 P.2d 426 (1998). This means simply sitting in the driver’s seat with the car on may be considered driving. Other factors may also influence the jury’s determination if you were driving: whether the keys are in the ignition and the car is running, if you were wearing a seatbelt, which seat you were in, etc. Ultimately, you could also be found to be driving based on direct or circumstantial evidence. Direct evidence is when someone sees you driving, be it a bystander or the police officer, or if you admit to driving after you’re contacted. Circumstantial evidence of driving may be found based on where you are parked (for instance if you were found asleep in the middle of the road) or if the car is parked terribly in some location.

Common defenses attacking the driving component of a DUI charge include: arguing that you were in fact not the driver. Perhaps one of the occupants switched seats with you, or perhaps someone else drove your car to where you were ultimately found. It may also be the case that no one actually saw you drive or can put you in the driver’s seat. Many people also decide to simply sit in their car with the engine on during a cold winter night with no actual plan to drive the vehicle. Many people may also have open containers in the car and choose to pull over and partake. While not advisable, it may negate any argument that a person was drinking prior to driving their vehicle.

2)     What does it mean to be “under the influence?”

More commonly, the best defense may be in attacking that you were actually impaired to a certain degree while driving. As discussed above, driving under the influence requires proof beyond a reasonable doubt that you were substantially incapable of operating a motor vehicle based on consumption of alcohol, drug, or both. Proving someone was “substantially impaired” typically requires some evidence of bad driving, be it weaving in and out of lanes, or a traffic accident.

Prosecutors will point to the totality of the evidence surrounding the traffic stop to point to elements of impairment: bad driving being a component, things called indicia of consumption (like the smell of alcohol on the breath, bloodshot and watery eyes, slurred speech, unsteady balance, etc.), any admissions you make to consuming alcohol or that you are coming from a location where alcohol consumption is ordinary (like a bar, wedding, or concert), performance on voluntary roadside maneuvers, and ultimately if you elected a blood/breath test, what the results of that showed.

Roadside maneuvers (also knows as standardized field sobriety tests or “SFSTs”) are performed with one aim in mind – to find more evidence of impairment to be used against you at trial. It’s important to note, these roadsides tests are completely voluntary and your refusal to submit to them is almost always inadmissible at trial.

When alcohol is involved officers will typically rely on three different types of tests: 1) Horizontal Gaze Nystagmus Test or “HGN”, 2) Walk and Turn, and 3) One Leg Stand. These tests are used all across the country and they purport to test someone’s level of impairment. The HGN test involves an officer holding out a light and asking you to track it as it is passed in front of your face several times. The walk and turn test involves taking a certain amount of steps on an imaginary line, turning and the end, and walking back on the same line. The one leg stand is self-explanatory, you are asked to pick a leg to balance on for a certain amount of time, any swaying or falling from this position is mark against you. There is no certain amount of points that will result in an arrest, rather these tests are taken together with other pieces of indicia to form the basis of a DUI charge.

You may also be asked to take a portable breathalyzer test, these are also completely voluntary. The results of this test is inadmissible at a trial for DUI because it is well accepted that they produce inaccurate results. That said, officers may still use the results of this test to establish probable cause for arrest.

Colorado is an express consent state when it comes to DUI laws. That means if you are arrested for DUI, you have already expressly consented to submitting to a blood or a breath test by driving on the roadways. You also have the option of refusing a test, unless there is evidence that raises to the level of vehicular assault or vehicular homicide, in which case you will be forced to submit to several blood draws. If you elected to take a test and your BAC was over .08, there is a permissible inference that you were driving under the influence. What does that actually mean? Not much it seems. A permissive inference “allows, but does not require, you to find a fact from proof of another fact or facts, if that conclusion is justified by the evidence as a whole.” Ultimately, the jury is free to use the fact of your BAC in whatever way they would like.

If you refuse to take a chemical test, the jury may use your refusal to provide a test against you at trial, with the obvious inference being that you refused a test because you knew the results would show that you were intoxicated.

Prosecutors have a built-in fall back if they cannot prove that you were “substantially incapable” of operating your vehicle under the DUI statute. They often will argue the lesser offense of DUI, Driving While Ability Impaired or “DWAI.” DWAI only requires proof that you were impaired to the “slightest degree” such that you were unable to operate your vehicle as you normally would. While this offense requires less proof, it also carries less consequences, specifically less points towards a driver's license suspension.

What Defenses are available? In other words, how to get out of a DUI in Colorado?

Defenses to the intoxication elements of DUI are numerous. The most obvious is that you were not in fact drunk or high, that the officer was mistaken in what he was seeing. Perhaps the indicia the officer saw can be explained by some other factor, a medical episode for instance. You can also attack the roadside maneuvers as generally unreliable. Finally, you can attack certain elements of the blood or breath test.

There are also ways to beat a DUI case even before trial. The reasonable suspicion, or the reason for the stop may be challenged. The lack of probable cause to arrest or invoke express consent may also be challenged.

Ultimately, precedent surrounding DUI laws is extensive, and you need an experienced DUI lawyer in your corner to take on the prosecution and police.

What are the penalties for a DUI?

Colorado’s criminal sentencing and administrative penalties for DUI and the lesser included charge of DWAI become more severe with each successive conviction:

For a first time DUI or DWAI, court’s mostly sentence offenders to probation, but are required by statute to impose probationary conditions like alcohol classes, community service, and a victim impact panel. A county jail sentence will also be imposed in addition to potential fines and court costs.

A second offense carries a minimum 10 day jail sentence and also requires a lengthier probationary period and a longer suspended jail sentence depending on your successful completion of probation.

A third offense requires a mandatory minimum 60 days jail, again with lengthy and stringent probationary terms.

A fourth and subsequent DUI is upgraded to a class 4 felony, where the presumptive sentencing range is between 2 and 6 years in the department of corrections, but may also be eligible for lesser sentences like probation with a mandatory jail sentence attached.

No matter the number of priors, every DUI matters, as the consequences of a conviction may follow you for the rest of your life. Grant Grosgebauer and the attorneys at the Tucker Legal Group have handled hundreds of DUI cases, and successfully tried dozens throughout our careers. When it matters most to you, trust our team to help you beat your DUI.