Denver DUI Attorney Blog

Can you be arrested for a DUI in Colorado even if you're not driving?

Mon, 24 Oct 2011 16:32:20 -0700

The short answer is yes. You can be charged, and you might be convicted. However, just because you may have been arrested for a DUI in Colorado, doesn't mean that the prosecution will get a conviction. The conviction is what matters. You're innocent of the DUI until they prove it.

If you go to trial on a DUI in Colorado, the jury will get an instruction as to the elements of the charge, to include that: 1) the defendant; 2) in the State of Colorado, at or about the date and place charged; 3) drove (or was in actual physical control of) any vehicle; 4) while under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].

Driving a vehicle is self-explanatory. Actual physical control is a little more subjective. This is where the "fun" starts.

The Colorado Supreme Court opinion in People v. Swain, 959 P.2d 426, 430 (Colo. 1998) is the most up-to-date case on the meaning of "actual physical control". According to the case, actual physical control is to be determined by the "totality of the circumstances". The Swain court looked to the following factors to determine if a person was in actual physical control: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor vehicle's ignition; 4) whether or not the motor vehicle was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based upon your every day experience. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle.

Thus according to Swain, a car doesn't have to actually be moving down the road for an occupant to be determined to be in actual physical control, and thereafter be convicted of DUI. On the other hand, DUI cases can be won on these factors as well. Thus, although the common sense meaning of driving has been expanded, the above-referenced factors can be very helpful at beating a case where there is no movement of the vehicle.

It is important to note that the list of factors in Swain is not exclusive. Additional factors may be considered under the blanket language of factor number 5 ("any other factor") listed above.

Whether or not the defendant allegedly drove on a public road, private road, or private property is not a factor. The Colorado Supreme Court held in Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) that Colorado's Express Consent Statute applied to private parking lots.

There have been many cases previous to Swain that have pondered unique fact patterns to determine the boundaries of actual physical control. These cases are sometimes helpful in fighting a DUI allegation where driving is not witnessed.

How many points is too many? Knowing this answer might save your Colorado driver's license from a points suspension.

Tue, 20 Sep 2011 16:06:37 -0700

In Colorado, if you get too many points on your driver's license, the Colorado Department of Revenue will send you a letter and politely let you know that they are taking away your driver's license (and quite possibly your livelihood if you heavily rely upon your license).

If you get one of these letters, you must immediately contact the Department of Revenue, Division of Motor Vehicles and request a hearing. If the Department of Revenue prevails at the hearing, you can request that the Hearing Officer consider you for a probationary driver's license "PDL" (a/k/a "red license" or "restricted license").

If you are twenty-one (21) years of age or older, twelve (12) points accumulated in a twelve (12) month period will "earn" you a suspension, or eighteen (18) points accumulated in a twenty-four (24) month period. The point totals are calculated based upon date of violation, not date of conviction.

A minor driver between the ages of eighteen (18) and twenty-one (21) will lose her license at nine (9) points in a twelve (12) month period, or twelve (12) points in a twenty-four (24) month period.

Whereas a minor driver under eighteen (18) years of age will lose his license upon the accumulation of six (6) points in a twelve (12) month period or seven (7) points in a twenty-four (24) month period.

Special consideration is given to chauffeurs who accumulate points in the course of their employment. A chauffeur will lose her license if she accumulates sixteen (16) points in a twelve (12) month period or twenty-four (24) points in a twenty-four (24) month period.

The rules and regulations regarding driver's license hearings are codified in 1 C.C.R. 211-2. The rules regarding the length of restraint and the issuance of a probationary driver's license are codified at 1 C.C.R. 211-3.

A Hearing Officer will consider a "base period" of suspension before factoring-in aggravating or mitigating factors. The aggravating factors will be balanced with the mitigating factors to determine if the base period will be upheld, reduced, or lengthened.

If you find yourself facing a points suspension in Colorado it's a good idea to get help with the underlying ticket which will trigger the suspension if the case is not resolved favorably. In other words, the best way to avoid a suspension is to not get one in the first place.

However, sometimes this may be unavoidable, or the underlying ticket may have already been pled/resolved. If that's the case, it's advisable to seek help with the points suspension hearing and potential probationary license hearing. Sometimes the suspension hearing can be won on technical grounds (i.e. DMV errors), a short suspension can be negotiated, or a probationary driver's license can be obtained. It seems that probationary driver's licenses are tougher to obtain if extensive preparation has not been done in advance of the hearing. More-favorable restrictions can also be negotiated.

Driver Beware: If you're pulled-over alongside the road in Colorado "sleeping it off", you might be fair game for the cops.

Tue, 07 Jun 2011 08:54:01 -0700

The best decision that you can make if you are impaired (even to the slightest degree) or intoxicated is to never get behind the wheel of a vehicle. Period. Because alcohol impairs judgment, sometimes a person will start to drive and later realize that he/she is not safe to drive; and pull over alongside of the road and "sleep it off" or call a sober driver for a ride. From a moral standpoint, this is the absolute best action to take. Who in their right mind would argue that an impaired or intoxicated driver should continue driving? Not me.

Unfortunately, it's not a good idea from a DUI defense standpoint to stop along side the road if you're intoxicated or impaired. A couple of cases always seem to rear their ugly heads in this situation. Firstly, in Colorado, you don't have to be "driving" a vehicle (in motion) to be convicted of a DUI. You simply need to be in "actual physical control". Actual physical control is determined by the totality of the circumstances to include: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor's ignition; 4) whether or not the motor was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle, or not, based upon your everyday experience. The jury will get this instruction if it is relevant to the case and the Court lets it in. These factors come from the Colorado Supreme Court's decision in People v. Swain, 959 P.2d 426 (Colo. 1998).

Secondly, you don't actually have to commit a major traffic offense or minor traffic infraction to be contacted by the police in your car. If you're already stopped, the Court says that the police can "request your voluntary cooperation". Make no mistake about it, an experienced police officer is well-versed in how to shake you down a/k/a "initiate a consensual encounter" when you are already stopped. I find this phrase rather amusing. When a citizen is contacted by the police, it doesn't seem like there is ever anything "consensual" about it. However, the Colorado Supreme Court indicates that there are situations when a citizen is voluntarily cooperating with the police when the police questions start to fly.

According to the Court, not all police-citizen encounters implicate the Fourth Amendment. It held in People v. Marujo, 192 P.3d 1003 (Colo. 2008) that a "consensual encounter" is not a seizure, but rather a request for cooperation that does not implicate the Fourth Amendment. The Court held that there are three general categories of police-citizen encounters: 1) arrest; 2) investigatory stop; 3) consensual interview. The first two categories implicate the Fourth Amendment, whereas the latter does not.

The Court goes on to enumerate the following factors in an attempt to distinguish an investigatory stop, which requires reasonable suspicion of criminal activity, from a consensual encounter: 1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; 2) the number of officers present; 3) whether the officer approaches in a non-threatening manner; 4) whether the officer displays a weapon; 5) whether the officer requests or demands information; 6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; 7) whether the officer physically touches the person of the citizen; 8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter; 9) the duration of the encounter; 10) whether the officer retains the citizen's identification or travel documents. The Court further held that in order for the police-citizen interaction to rise to the level of seizure with Fourth Amendment protections, the obligation to comply must exceed the obligation an innocent citizen would normally feel to cooperate.

If you were trying to do the right thing and pulled-over to sober-up, but are now charged with a DUI, it's a good idea to get help from an experienced DUI attorney. How you are initially contacted may be crucial to your defense. Even though the Marujo case makes it easy for police to initiate contact with a parked motorist, they still need to follow a very specific protocol, otherwise, their request for cooperation quickly becomes a seizure within the Fourth Amendment. Thus, the bright side of the Marujo case for a defendant is that it gives a knowledgeable DUI defense attorney a lot of issues to argue to the prosecutor and the Court.

You can't seal criminal conviction records in Colorado. Or can you?

Thu, 26 May 2011 09:02:43 -0700

As more and more people are heading back to work in the recovering economy, I find my office inundated with calls for help in sealing criminal records. Open records of an arrest, criminal court proceeding, police records, sheriff's department records, and probation records can be devastating to an applicant seeking employment in a competitive marketplace. Many applicants with criminal records report passing through the interview and hiring process, but subsequently being rejected as a result of a "final step" background check. Some employers are now running background checks before an applicant will even be considered for a position.

Over 90 percent of employers now run background checks on applicants. In Colorado, one of the quickest ways to access anyone's up-to-the-minute court information can be obtained for the small price of six dollars ($6.00) and an internet connection at the Colorado court database. A Colorado Bureau of Investigation (CBI) official arrest record will cost you six dollars and eight-five cents ($6.85). Criminal background information may also be obtained at any of the plethora of third-party background check companies found on the internet. Just Google "criminal background check".

In Colorado, the record sealing statute applies to adult records, whereas the expungement statute applies to juvenile records. Thus, in determining what can or cannot be sealed or expunged, the inquiry starts here: is it a juvenile or adult record that we're trying to clean-up. Adult records can be sealed if the case was dismissed or the Defendant was acquitted at trial. Convictions cannot be sealed. However, there is a recent exception to this bright-line test. Certain drug (controlled substance) convictions may now be sealed including petty offenses, misdemeanors, and certain Class 5 and Class 6 felony offenses. Different provisions of this statute apply, depending upon whether or not the conviction was entered on or after July 1, 2008. At a hearing on the petition to seal records, the Court makes a determination as to whether or not the petitioner has essentially shown that her interest in sealing the records outweighs the public's interest in retaining the records.

Thus, the answer as to whether or not you can seal criminal conviction records in Colorado is both "yes" and "no". You can now seal criminal conviction records, but only if the records pertain to certain controlled substance offenses. Otherwise, other adult criminal records may be sealed only if the case was dismissed (all charges) or the Defendant was acquitted (all charges) at trial. There are many avenues that may lead to a dismissal. A dismissal sometimes occurs by the Court dismissing a case outright. Other avenues include a dismissal through a successfully completed deferred judgment and sentence, a successfully completed diversion program, or deferred prosecution.

Without a doubt, the record sealing statutes are complex, and many times the issues that arise in sealing the records become extremely complex. Unfortunately, even though a record may be eligible to be sealed, the District Attorney's Office (or any other entity listed on the petition) may object to a petitioner's sealing on various grounds. If a petitioner is not properly prepared, she may be denied the benefit of sealing her records.