Colorado DUI and DWAI Satues for Non-lawyers

The first type of Colorado dui charge under section 42-4-1301(1)(a), C.R.S., relies upon outward signs of intoxication, e.g., bad driving, poor coordination, "blood shot, watery eyes and slurred speech."

Colorado, has established two types of dui violations with which drivers can be charged and a, third, lesser charge called driving while ability impaired (dwai). Most drivers who are arrested will be charged with both types of dui violations in order to increase the chances of conviction. If you took a breath test your summons will probably contain charges under section 42-4-1301 (1)(a), C.R.S. "Drove Vehicle Under the Influence" and section 42-4-1301 (2)(a) "Drove Vehicle with Excessive Alcohol Content."

The first type of dui charge, section 42-4-1301(1)(a), C.R.S.,relies upon outward signs of intoxication, e.g., bad driving, poor coordination, "blood shot, watery eyes and slurred speech." A prosecution under this section does not require a chemical test for for conviction, although the chemical test can be used to establish a presumption of guilt. The prosecutor will usually attempt to obtain a criminal conviction under 42-4-1301(1)(a) even if the accused refused to take a chemical test when asked to provide one by the police.

The second type of dui charge, section 42-4-1301(2)(a), C.R.S., involves the use of a "blood or breath alcohol concentration" (BAC) limit. Colorado has established a "legal limit" of 0.08 BAC above which drivers are automatically considered to have been "driving under the influence" (dui). "Drove with excessive alcohol content" also called "DUI per se" refers specifically to this part of the statute. Under the "per se" concept, you can be convicted of drunk driving solely upon proof that a level of 0.08 BAC was reached within two hours of driving - regardless of whether the driver was actually drunk when behind the wheel! For this reason, a successful defense strategy often centers around getting any chemical test excluded from evidence at trial or showing that the test was flawed.

The third type of charge is not a dui charge strictly speaking. Driving while ability impaired (DWAI) applies at lower levels of intoxication, i.e., 0.05 to 0.08 BAC. See section 42-4-1301(1)(b), C.R.S. To prove DWAI the state must show that the driver was less able than he would have normally been to drive with safety to himself or others!

I haven't mentioned any limits for drugs (duid) because there are none. If a urine, saliva or blood sample comes back positive for an intoxicating drug, the police and district attorney will likely try for to convict you of duid. I have known some unscrupulous district attonreys to charge people with duid if over-the-counter drugs such as allergy medicines show up in their urine sample!

If you elected to take a breath test after early-2008, most breath test machines in Colorado were reprogramed not to take a second sample for retesting. Probably no second sample that can be tested by am independent lab was retained in your case. The good news is that Colorado requires that a second sample of any urine, saliva or blood test must be kept for one year. All persons charged with alcohol or drug related driving offenses should have their samples retested. Errors, even with blood samples are not uncommon. I routinely have every client's sample retested and have found retesting to be well worth the extra trouble and expense since between five and ten percent of police tests results are flawed. The payoff for retesting is that it can get your case dropped or result in a non-alcohol plea bargain. On rare occassions prosecutors will "dump" a dui case if you can prove serious problems with the reliability of the chemical test!

Call Attorney Cliff Hypsher today for a free telephone consultation at 1.877.362.9091. Payment plans available.