This site is not intended as a substitute for legal advice. DUI law is extensive and complicated. If you desire legal advice related to a DUI or DWAI, contact Attorney Adam Mayo at 970-879-6060.
What Is DUI?
DUI is defined as 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 affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. A person may also be DUI if their blood alcohol content is .08 or higher at the time of driving, or within 2 hours of driving.
A conviction for DUI carries 12 points. Your license will be revoked if you receive 12 points in one year. A conviction for DUI will cause a license revocation.
What Is DWAI?
DWAI is defined as driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
A conviction for DWAI carries 8 points. Your license will be revoked if you get 12 points in one year or 18 points in two years.
What Constitutes Driving?
Driving is defined as having actual physical control over a motor vehicle. Being asleep in the driver seat of a vehicle, with the keys in your pocket, can constitute actual physical control over a motor vehicle. Factors to consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:
A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle's ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.
Do You Have To Take A Test?
You never have to perform the roadside maneuvers (examples: walk the line, reciting the alphabet, watching the pen, etc). You never have to perform a portable/preliminary breath test (PBT). The officer will ask you to voluntarily perform them. He may ask several times. You do not have to perform these two tests.
Colorado is an express consent state. This means any person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person's consent to take and complete, and to cooperate in the taking and completing of, any test or tests of such person's breath or blood for the purpose of determining the alcoholic content, or blood, saliva, and urine for the purpose of determining the drug content, when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI or DWAI.
It is important to distinguish the portable/preliminary breath test (PBT) machine from an intoxilyzer. A driver does not provide express consent to take a "voluntary" PBT prior to an officer obtaining probable cause. PBT results are not admissible at trial. The PBT results may, however, provide an officer with probable cause to arrest, thus triggering your express consent to perform an intoxilyzer test. Intoxilyzer test results are admissible at trial. Typically, the voluntary PBT helps provide an officer with probable cause to arrest.
What If I Refuse To Give A Sample Of Breath, Blood, Urine Or Saliva?
Failing to perform a test when so required under the express consent statute is not a crime. Rather, there is a civil penalty: revocation of driver license. If you do perform the test, the results could also cause a revocation of driver license. The period of license revocation depends on the specifics of your case, but ranging from 30 days to life.
What Is The "Notice of Revocation" Form?
If your license is revoked, you should receive a "Notice of Revocation" document from an officer. You will have seven(7) days from the date of the Notice to request a hearing on the revocation. If you fail to request the hearing within those seven(7) days, you will lose your license. The hearing is winnable. Do not miss your opportunity!
What Are The Penalties If Convicted For DUI/DWAI:
1st DWAI:
Imprisonment in the county jail for not less than two days nor more than one hundred eighty days, the minimum period of which shall be mandatory except as provided in of C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than one hundred dollars nor more than five hundred dollars; and, not less than twenty-four hours nor more than forty-eight hours of useful public service, and probation for up to two years.
1st DUI (B.A.C. under .20):
Imprisonment in the county jail for not less than five days nor more than one year, the minimum period of which shall be mandatory except as otherwise provided in C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than three hundred dollars nor more than one thousand dollars; and, not less than forty-eight hours nor more than ninety-six hours of useful public service, and probation for up to two years.
2nd or subsequent DUI (or 1st DUI if B.A.C. is over .20):
Imprisonment in the county jail for not less than ninety days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to eighty days of the period of imprisonment if the offender complies with the provisions of C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than five hundred dollars nor more than one thousand five hundred dollars; and, not less than sixty hours nor more than one hundred twenty hours of useful public service, and probation for up to 4 years.
2nd or subsequent DWAI:
Imprisonment in the county jail for not less than forty-five days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to forty days of the period of imprisonment if the offender complies with the provisions of C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than three hundred dollars nor more than one thousand dollars; and, not less than forty-eight hours nor more than ninety-six hours of useful public service, and probation for up to 4 years.
DUI after prior DWAI:
Imprisonment in the county jail for not less than seventy days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to sixty-three days of the period of imprisonment if the offender complies with the provisions of C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than four hundred fifty dollars nor more than one thousand five hundred dollars; and, not less than fifty-six hours nor more than one hundred twelve hours of useful public service, and probation for up to 4 years.
DWAI after prior DUI:
Imprisonment in the county jail for not less than sixty days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to fifty-four days of the period of imprisonment if the offender complies with the provisions of C.R.S. § 42-4-1301.3; and, in the court's discretion, a fine of not less than four hundred dollars nor more than one thousand two hundred dollars; and, not less than fifty-two hours nor more than one hundred four hours of useful public service, and probation for up to 4 years.
Also, persons convicted of DUI or DWAI are subject to the following costs:
Victim compensation fund
Persistent drunk driver surcharge
Traumatic brain injury trust fund
Alcohol and drug evaluation and supervision services
Attendance at a victim impact panel
Public service supervision fees
