In the State of Colorado, the legal limit is 0.08. That means that you cannot have more than 0.08 grams of alcohol in 100 milliliters of your blood (while you are driving, or within two hours of driving). This is called your "BAC" or "blood alcohol content." If your blood or breath is tested by law enforcement, and your BAC is between 0.05 and 0.08, then you'll still be charged with the lesser offense of DWAI (Driving While Ability Impaired). Be aware that DWAI, in reality, is not that much "lesser" in Colorado. Being convicted of DWAI may result in you receiving a sentence that is similar to that for a DUI.
The DWAI statute makes it a crime for you to drive when your ability is "impaired to the slightest degree." At trial, a jury would have to use those words to determine whether you are guilty or not. If your blood alcohol content is 0.05 or higher, the district attorney is allowed to tell the jury that you are presumed guilty. A skilled Colorado DUI attorney can effectively challenge that presumption. The case against you may include
- your BAC; or
- other "evidence of impairment;" or both. Depending on the facts of your case, your lawyer can effectively defend against both types of evidence.
The equipment that is used to test your BAC is not perfectly accurate. The machines that are used commit errors, and sometimes they are not maintained properly. The officer that gives the test can make mistakes in following the proper procedure. This is why Colorado DUI law gives your defense lawyer the right to obtain and retest your breath or blood sample. This means that if the officer does not save and properly preserve your sample, so that you may retest it, the BAC evidence may be thrown out. If retesting your sample produces a result that is very different from your result at the police station, this will call the reliability of your test into question. Your blood alcohol content is only relevant while you are driving. Because alcohol takes time to absorb into your blood, your pattern of drinking on the day you are pulled over may raise doubts about the validity of your test. If the chemical test is given too long after your vehicle was stopped, the BAC evidence may not be admissible against you. Your attorney will analyze this and other evidence in order to determine if the District Attorney can successfully prosecute your DUI case.
Other Evidence of Impairment
If your case were to go to trial, the BAC evidence will be only part of the District Attorney’s case against you. The officer will also testify about his observations of you, including how you performed on the roadside tests. After reading hundreds of DUI police reports, I can't recall a single case where the officer hadn't written "the driver had slurred speech, and bloodshot watery eyes, and an unknown smell of alcoholic beverage on his breath." Yet we know from personal experience that sometimes a drunk person has bloodshot watery eyes and sometimes they don't. Sometimes they have slurred speech, and sometimes they don't. While it is true that police officers are doing the important job of keeping our roads safe, if they accuse you of DUI, they will use the words that are calculated to convict you at trial. The impairment evidence in your case may include:
- The statements you made to the officer
- Mistakes you made while driving
- Your "bloodshot watery eyes, and slurred speech"
- Your performance on the field sobriety tests
Field sobriety tests, commonly called "roadside tests," include a walk and turn, balancing on 1 foot, counting backwards, and so on. The horizontal gaze nystagmus test is where officer asks you to follow the tip of a pen with your eyes as it is moved from side to side. Your performance on these tests is a subjective determination, and the jury in your case may not agree with the officer's conclusions. Further, these tests are supposed to be performed using very specific guidelines, and many times the officer does not follow the proper procedure. This leaves a lot of room for effective cross examination, should your case go to trial. If the officer can not say that you're driving was bad, this may call the results of the roadside tests into question.
The sentences given for DUI have become harsher over the years. Today in Colorado, even your first DUI can land you in jail if your BAC is high enough. Second or third offenses can lead to serious jail sentences. You may even be charged with a felony if you have previously been designated a Habitual Traffic Offender (HTO). You are considered a Habitual Traffic Offender if you've received three convictions for either driving under suspension, DUI or any combination, within 7 years.