Almost everyone has been stopped by law enforcement at one time or another for a traffic violation. Whether the stop is for something as simple as a burned out headlamp, or for speeding, we all know that feeling when we see the flashing lights in our rear-view mirror. Imagine how much worse that feeling is when you have had a little too much to drink. Every day I meet with people who have been charged with traffic violations and drunk driving offenses. As I explain to a client their rights, one of the comments I hear most is, I wish I had known that when I was stopped.
Many people are under-educated about their rights, or even misinformed about the law and what decisions they should make when they are stopped for a traffic offense. Many people think they should just do whatever the police officer tells them to do because they don’t have any other options. Below is a basic list of things to keep in mind when you are stopped for drunk driving or driving under the influence of drugs. Laws will vary from state to state, and the following list is Colorado specific. Please check with a local attorney about the laws in your state.
1. You have the right to remain silent. You don’t need to answer any questions the police ask you about where you were going, why they stopped you, or how much you have had to drink. Even from their very first contact, the police are trying to build a case against you. Always be polite with the officer, but do not make any statements about what happened, how much you have had to drink, or any other violation they are investigating.
After you provide the officer your drivers license, proof of insurance and registration, your best advice is to keep your mouth shut. When the officer stops you he is looking for any clue that you may be under the influence of drugs or alcohol. Even if you answer innocuous questions, the officer is looking for clues when you talk such as the smell of alcohol on your breath, or slow/slurred speech.
One of the officers first questions is almost always, How much have you had to drink tonight? Some of the most common answers to this question are, two beers, or, I had a couple with dinner. Many people erroneously think that if they minimize their use it wont look as bad, but by admitting to alcohol use you are helping law enforcement build a case against you.
2. Do not take any roadside sobriety tests. Roadside tests are voluntary. These tests are used to help the officer determine if you are under the influence and can also be used at trial and at the Department of Revenue/Motor Vehicle hearing against you. Do not provide the police with any additional evidence that can bolster their case. These tests often include eye tests, walk and turn, one leg stand, alphabet or counting tests.
This includes any preliminary breath tests (PBT) at the scene of the stop. The results of the PBT are not admissible in Court in Colorado because they are not as accurate as other chemical tests. However, the police use these tests to confirm their suspicion that you are under the influence of alcohol or drugs, and to build their case against you for further tests that are admissible in Court.
3. If you do not take the mandatory chemical test, you could lose your license. In Colorado, if you do not take the mandatory chemical test of your breath or blood as is required under express consent laws, you will lose your license for a year in addition to any other license suspension imposed. The mandatory chemical tests include a blood test, a breath test or urinalysis. The mandatory breath test is different from the PBT, and is typically done on a large machine at the police station after an observation period is completed under strict regulations. If you don’t know if a test is required under the law, ask the officer. In many cases you would be best advised to submit to a chemical test of your blood. In Colorado, a second sample will be taken of your blood. This second sample is available to you to be tested at an independent lab. In many cases this retest can come back lower, or so different from the first test as to cast doubt onto the result of either test. These results can be used to your advantage in plea negotiations and at trial.
If you refuse chemical testing you can still be charged with drunk driving. Many people believe that if they don’t submit to a test, then the government will not be able to pursue a case against you for drunk driving. Prosecutors may still use all other evidence they obtained against you such as bad driving, smell of alcohol, visual clues of intoxication, roadsides tests, and even the fact that you refused the test can be used against you in Court.
4. You have a limited time to request a Department of Motor Vehicles/Department of Revenue hearing. If you are above the legal limit of a .08 BAC in Colorado two proceedings will begin against you, 1) the criminal process, and 2) the DMV/DOR process. Although the criminal process can carry hefty penalties such as fines, jail, community service, and alcohol classes, the DMV only has the power to suspend or revoke your driving privileges. You may say, Only? My ability to drive is a huge deal. That is why it is so important to request a DMV hearing before the time runs and the suspension automatically goes into effect.
In Colorado, you have seven days from the date of the results of the breath test to request a hearing or your license will automatically be revoked. For a blood test, the procedure is a little different. Whereas the results of a breath test are immediate it often takes a few weeks for blood results to come back from the lab. If you were above a .08 law enforcement will forward your results to the DMV, and you will receive a notice via mail. This letter will have all instructions on how to request a hearing and a deadline by which the hearing must be requested. Whether you chose a breath test or blood test, you should request a hearing as soon as possible so you can explore all legal and factual defenses at the DMV/DOR hearing to protect your driving privileges.
When you request the hearing you will receive a temporary permit that is valid until the date of the hearing. Remember, if you don’t request the hearing you will automatically lose your license. In many situations there is a legal or factual defense that can save your license if the proper arguments are presented at the hearing.
5. Hire an experienced Drunk Driving attorney as soon as possible. A drunk driving case presents many highly complex legal and procedural issues. A plea or a conviction to a drunk driving charge can have lasting implications on your life, your license, and your freedom. It can also have many unforeseen consequences as well. An experienced drunk driving defense attorney will advise you at all stages of your case of potential pitfalls and other issues as they may arise in your case.
A DUI attorney will review your case for all legal and factual deficiencies in the governments case against you to help you present your best defense. The old saying that only a fool represents himself could not be more true. The earlier you hire an attorney, the better, so as to avoid making any costly mistakes early in the case.
Josh McDowell is a Colorado Springs DUI Attorney practicing all criminal matters including, DUI defense, theft, felonies, and misdemeanors. Colorado DUI laws are complicated and is a criminal field that requires a very specialized knowledge of the law and it’s application to a criminal case.
