Q:The police officer didn't read me my Miranda rights. Will I win my case?
A:Generally speaking, no. But you could win your case because of this. When the officer first pulls you over, he can ask you questions without giving you your rights. But once you are handcuffed he must read you your rights if he is going to ask you any more questions. But keep in mind, Miranda rights only apply to your statements. They do not prevent the officer from testifying against you about his observations. If you made incriminating statements after you are formally arrested, your defense attorney may be able to have those statements suppressed.
Q:Do I have the right to challenge my license suspension?
A:Yes. You may request a hearing on your license suspension by taking your notice of revocation to the DMV. If you request a hearing, you'll be given a temporary permit that will allow you to drive until the date of the hearing.
Q:Is it mandatory that I do the roadside tests?
A:No. These field sobriety tests are voluntary. The officer may not tell you this. He or she may instruct you to get out of the car and tell you to start doing the tests. You have a right to decline them, however, and should. You do not have to offer an explanation, and should not make any statements other than that you are politely declining to take the tests.
Q:Why did the officer make me follow the tip of a pen with my eyes?
A:He or she was performing what is called the "horizontal gaze nystagmus test." The theory behind this test is that when a person has a high enough BAC, their eyes will vibrate slightly — and not follow the moving pen smoothly. However, there are many reasons that this phenomenon known as nystagmus occurs — reasons other than alcohol impairment. It can occur simply as a result of being tired, for example, and should not be considered conclusive evidence of drunk driving.
Q:Do I have to answer the officer's questions?
A:No – and this is very important. You do have to identify who you are, but that's about all. Otherwise, you have a right to remain silent, and you should, because anything you say will be used against you if it helps the case of the Colorado District Attorney. You should politely decline to respond to any of the police officer's questions.
Q:Can I insist upon speaking to a lawyer before taking the blood alcohol test?
A:No. You are not legally entitled to a DUI lawyer before you must choose whether to take the test. Further, anything that you do to make it impossible for the officer to administer the test, such as insisting on speaking to an attorney, will be considered a "refusal."
Q:Am I required to take a blood or breath test?
A:You have a right to refuse the test. However, if your case were to go to trial, the District Attorney would be able to talk about how you refused the test. In the eyes of the jury, this is not good. Juries will tend to assume that because you refused the test that you had something to hide. And keep in mind, if you refuse the test your driver’s license will be suspended for 12 months, instead of 90 days on a first offense. The hand-held breath test that the officer gives you on the roadside can't be used against you in court. Only the test given on the table-top machine at the station is admissible. Likewise, your license will not be suspended because you refused the hand-held test. This small roadside breathalyzer is called a preliminary breath test or a "PBT." The results are not admissible for the District Attorney’s case or your defense case.
Q:What happens if I refuse the blood or breath test?
A:As mentioned above, a refusal is not very good evidence for the jury to hear. They will likely assume that you had something to hide. However, the criminal law does not impose harsher penalties if you refuse. In fact, you have a constitutional right not to incriminate yourself by taking the test. At the DMV, on the other hand, you will likely experience a longer license suspension if you refuse the test. The reason is because Colorado Express Consent law considers you to have automatically consented to a blood or breath test if you are driving. And this gives the DMV the power to take your license away if you don't take the test. The DMV can take away your license for refusing the chemical test even if you have not committed a crime (a DUI). Having a defense lawyer at the DMV hearing will help improve your chances of keeping your license.
Q:Should I choose the blood test or the breath test?
A:You should choose the breath test. Breath tests are generally the less reliable of the two tests. Many factors can result in the breath test being inaccurate. Your Fort Collins criminal defense lawyer can also have your breath sample retested in Colorado, and the retest often produces a different result.
Q:What does BAC mean?
A:BAC stands for blood-alcohol content. It is a measure of the amount of alcohol that you have in your blood. For example, a BAC of .08 is reached if you have .08 g of alcohol in 100 mL (Milliliters) of your blood. For breath tests, it means .08 g of alcohol in 210 liters of breath.
Q:Why am I charged with two DUI's for only one incident?
A:There are two different laws that make drunk driving a crime in Colorado. The prosecutor is allowed to use both against you at the same time. However, you can only be convicted of a single offense. For example, if a jury in a DUI case were to return a verdict of guilty to both DUI counts, only one conviction would be entered against you.
Q:For how long will I lose my license?
A:If you took a BAC test, your license will be suspended for 90 days in Colorado - if it is your first offense. If you refused the blood or breath test, your license will be suspended for one year. You may request a provisional license, sometimes called a "red license," if your license is suspended. Say you are suspended for 90 days, and you request a provisional license. If your request is granted, the three-month suspension will turn into a six-month suspension. However, only the first month of the six months will be no driving at all. This will be followed by five months of limited driving (for things like going to work, etc.) A provisional license is valid in Colorado only, and cannot be used outside of the State.
Q:What should I do to prevent losing my license?
A:You can request a DMV hearing to challenge your license suspension. You must do this within seven days from the time that you are arrested and receive your notice of revocation, which is a yellow piece of paper. Take this notice to the DMV within seven days and your driving privileges will be extended at least until the date of your hearing. In cases where you took a blood test, you may not receive this notice until you get your blood results in the mail, which can take several weeks.
Q:What should I expect at the DMV hearing?
A:At the DMV, the Colorado DMV hearing officer must decide whether there's probable cause that you committed a DUI offense. That is, whether there was a valid reason to stop your vehicle and whether there was probable cause to believe that you were under the influence. The hearing officer may also have to determine whether the blood or breath test evidence is reliable enough to suspend your license, or whether you were fully advised of your rights before submitting to a test.
Q:Is going to court like going to the DMV?
A:No. In fact, they have nothing to do with each other. In court, you are charged with a crime, and face consequences like jail or probation or both. At the Colorado DMV, the only issue in question is whether you get to keep your license.
Q:How many points can I get on my license before I get suspended?
A:The answer will depend on your age:
- 16 to 17 years old: You will be suspended if you get six points within 12 months, or seven points since you've had your license
- 18 to 20 years old: You will be suspended if you get nine points within 12 months, 12 points within 24 months, or 14 points since you've had your license
- 21 years old and older: You will be suspended if you get 12 points within 12 months, or 18 points within 24 months
The points are counted as of the day of the offense, not when you appear in court or plead guilty.
Q:The prosecutor is offering to drop it to a DWAI and promised no jail. Should I just accept the offer?
A:There are a number of questions that should be answered by your defense lawyer before you plead guilty, even to the lesser offense of DWAI. This is true in any criminal case, but especially in a DUI case. Many people incorrectly assume that they are caught, that they are guilty, and they just want to get it over with. What is important to remember is that the District Attorney must be able to prove that you are guilty in court. For many of the reasons discussed above, this may be harder for them than you think. You shouldn't just assume that you have no choice other than pleading guilty. Additionally, if you are on probation or a deferred sentence at the time of your arrest, your guilty plea may result in your probation or deferred sentence being revoked. Your lawyer can try to work the resolution of these other cases into the resolution of your DUI case, and possibly keep you from going to jail.
Q:If I get a DUI in Colorado, is jail mandatory?
A:Sometimes. To see if your case involves a mandatory jail sentence, take a look at the page regarding Colorado DUI penalties.
Q:Do I need a DUI lawyer?
A:Yes. DUI cases involve legal and scientific complexities that even many attorneys do not understand. The evidence against you may look solid and unbeatable - and yet be completely false due to police mistakes, BAC testing errors, and a rush to judgment. In the event the case against you cannot be defeated, we will effectively represent you in court and work to minimize the consequences that you will face. For further information about your options, contact the Law Office of Kevin R. Churchill today.