Practice Areas: Defense of Persons Accused of Serious Felonies, Sex Assaults, Domestic Violence and DUI; Juvenile Defense; School Expulsion and Discipline Defense; Complex Civil Litigation and Personal Injury; Administrative Hearings.
Matt stays current with the frequent changes in DUI and Express Consent law in Colorado through a heavy book of DUI defense work, annual continuing legal education classes and frequent discussions with colleagues. He understands the license issues, jail alternatives, and legal issues that allow for a successful defense to minimize the consequences of the DUI charge.
Matt works to find issues — wrongful stops, poor investigations, inadequate chemical tests — that allow him to minimize the prosecution against his clients.View Profile
A typical first offense DUI charge, which attorneys often talk about as a "1DD," starts two legal processes against you. You need to think about both processes when you are charged with DUI.
Stop and take a moment to gather your thoughts. The steps you take next may be critically important for you. Please take a few moments to review this entire page of very useful information. I will try to answer some of the many questions you may have at this time.
The first legal process you will face is called the "express consent revocation." It is an administrative process run by the Department of Motor Vehicles that is designed to get drunk drivers off the road quickly.
The express consent revocation starts when a driver’s breath or blood meets or exceeds a limit of alcohol content set by law (a "per se" revocation) or when the driver refuses to take a blood or breath test (a refusal revocation). For adult drivers the per se limit is 0.08. The court process starts when you are arrested on suspicion of drinking and driving. It can result in you being convicted of a traffic misdemeanor, which can remain on your record forever. You will be fined and have to pay a number of mandatory fees. You can also be sentenced to up to a year in jail. While that is unlikely on a first offense, there is a mandatory minimum of five days in jail, which you can avoid if you start working on treatment.
The second legal process is in the El Paso County Court and is the more typical courtroom process you might think of when a person is charged with a "regular" traffic charge.
If you decide you need an attorney or just have more questons, please give me a call at (719) 471-7957, to set up a no-obligation interview. I want the chance to earn your business.
Be careful using this list. Not all of these suggestions may be applicable to you. When a lawyer writes an article like this one it is not meant to be legal advice. Also, many of the items should be done immediately and are not in any particular order. So while I do not intend to give you legal advice in this article, I will describe what I do in many first offense cases.
A good attorney will take you through the events leading up to your arrest, the circumstances of the traffic stop, your interaction with the trooper, officer or deputy who stopped you, the events of your arrest, the advisements given to you and the events of the test (or refusal). All of these events have the potential to open up defenses or motions to suppress evidence. Even if the facts are not helpful to you, you want to think about how to defend the case and show you are serious about making sure you are never in a car with alcohol in your system again.
Make sure your mailing address is up to date with the Colorado Department of Motor Vehicles (the “DMV”). DMV form DR 2285 available at: https://www.colorado.gov/pacific/sites/default/files/DR2285_0.pdf. You will not get the proper notices from the DMV if they have the wrong address. Do not forget to check your mail.
If you get notice of an “express consent revocation,” usually in the form of a yellow temporary permit you got when you were arrested or a notice by mail, do the following:
a. Request a hearing at the DMV in the time required (read your notice). The Colorado Springs office is located at 2447 Union Boulevard, Colorado Springs, Colorado 80909, at the corner of Union & Van Buren. Whether you request the DUI officer to be present is a strategic decision based on the nature of your defense. I would ask my clients not to request the trooper, officer or deputy because I will subpoena him or her later when necessary.
b. Request your express consent packet from the DMV. These are documents from the DMV that will be used at the hearing. DMV form DR 2664: https://www.colorado.gov/pacific/sites/default/files/DR2664.pdf.
c. Retest your blood sample. This has to be coordinated with the agency – State Patrol, police or sheriff – that arrested you. You hire a courier to pick up the sample and take it to the testing lab. You pay for an evidentiary retest. Colorado no longer requires that a second breath sample be preserved, so you cannot retest a breath test.
d. Obtain and serve subpoena(s) to appear at the DMV hearing on the trooper(s), officer(s) or deputy(ies) when appropriate (this must be done by the process required by the DMV using its forms). 1 C.C.R. 211-2(5.1), et seq.
e. If your hearing is set to be by phone, you need to submit your documents to the DMV ahead of time.
f. Appear at the hearing and present your defenses.
If you lose your DMV hearing, get started putting together your reinstatement requirements right away so you can get early reinstatement (after 30 days for a per se revocation and after 60 days for a refusal revocation). The reinstatement requirements for a first offense are described here: https://www.colorado.gov/pacific/dmv/about-reinstatements#Adult.08+. Generally you have to provide the DMV the reinstatement form, a reinstatement fee, proof of SR-22 insurance, and proof of a contract with an authorized interlock provider.
Order discovery from the Fourth Judicial District Attorney. That process is described here: http://www.4thjudicialda.com/aboutdiscovery.aspx. “Discovery” is the name for the documents and other written evidence the prosecutor will use to try to convict you. It includes reports, checklists, test results and other documents generated by the government agents who arrested you. It may not include photographs, physical items of evidence, recordings and other non-document evidence – you have to request such things separately.
Estimate your blood alcohol level and compare it to what was reported by the trooper, officer or deputy. If you find a significant difference between your estimate and the reported result, it may be a good place to find a defense.
Retest your blood sample. This has to be coordinated with the agency – State Patrol, CSPD or EPC Sheriff – that arrested you. You hire a courier to pick up the sample and take it to the testing lab. You pay for an evidentiary retest. Colorado no longer requires that a second breath sample be preserved, so you cannot retest a breath test.
Obtain the litigation packet for the testing device used to test your blood or breath. This packet is particularly helpful if you get a retest done that is significantly different that the government’s test results or if you have reason to believe the tests grossly overstated your blood alcohol content. I often hire an expert to review the packet for my clients in such circumstances.
Hire an investigator to interview key witnesses. Key witnesses can be helpful or hurtful to your defense. You have to find out what these witnesses will say ahead of time. Investigators help because they are not involved in the case, are more neutral than you or other witnesses, and can report on what they hear and see to you in a report that might help you persuade the prosecutor to give you a better result or persuade a judge or jury.
Go to the scene and see if the prosecution’s story makes sense. Hire an investigator to take pictures and to document the scene, your car, or any other relevant conditions. Issues like weather, lighting, slope, road surface issues and sight lines can create doubt that helps you defend the case.
Figure out whether you want to hire an expert. Experts can help persuade a jury or a prosecutor that your defenses have merit.
Enroll in a Level II alcohol education class now. The class helps you show you take the allegations seriously and are evaluating the role of alcohol (or drugs) in your life. It is mitigation: evidence you use to get the prosecutor to give you a better offer or that you use to allow the judge to give you a lesser sentence if you get convicted. You can find a list of providers at: http://www.colorado.gov/cs/Satellite.
If you complete Level II education, start with therapy sessions. It is the same issue as the reason to do the education. You want to show you deserve a break because you are being proactive with your decisions. The clients who never come back to me for a second DUI defense, use education and therapy to figure out why they got into a car with some alcohol in their systems and learn the tools to avoid a similar decisions in the future.
Start doing community service through a certified agency, normally Front Range Community Services, Inc., 11 East Vermijo Avenue, Colorado Springs, Colorado 80903. Do a minimum of 48 hours.
If you have a more serious alcohol issue, think about intensive outpatient treatment or inpatient treatment. This is can be a great opportunity to figure out whether you have a healthy relationship with alcohol (or drugs). Are you using alcohol to deal with a tragic event or depression? Get help. You can go have a happy life if you get treatment and medication.
File motions to limit the evidence against you. These are called motions to suppress evidence. They can be based on constitutional issues; the Fourth Amendment protection from unreasonable searches and seizures, for example. They can be based on facts; faulty testing equipment, for example. It takes years of practice to understand how motions fit in with the defense of a case, but that does not mean you cannot give a motion a try.
Organize and prepare your evidence for hearing and trial. Make sure you have multiple copies of the exhibits you want to use. Prepare your questions for each witness. Ask the court to issue subpoenas for witnesses you need at hearing or trial. This is not the same process as the DMV process so ask the judge for what you need. A jury can be persuaded with a simple and truthful argument. A jury can be persuaded with the lack of evidence. Make sure you know what you are trying to persuade someone to believe before you head to hearing or trial.
Think hard about whether to accept or reject a plea bargain offer. This is very hard to do without some experience in knowing what might happen at a hearing or trial. Generally, I want my client to analyze the risk of a conviction against the costs and benefits of a plea offer.
If you get convicted, do a good job explaining why you deserve a minimum sentence. Anything that shows you know how to or have been following the rules is helpful. Bring proof that you are in treatment. Bring proof that you are doing community service. Bring proof you have a job. Bring proof you have not been drinking. Bring such things to the probation department and to the sentencing.
If you get convicted, get started on your sentence right away. Waiting to get started can result in having too little time to get things done. Then you risk having a warrant go out for your arrest and spending the night (or longer) in jail while the court figures out why you have not completed your sentence.
When you complete the pieces of your sentence, get proof and make sure you file it with the court. Ask for a document that shows you completed Level II education. Same for therapy and community service. Keep your receipt showing you paid your fines, fees and costs. Get proof that you went to the MADD class. Keep copies of all such documents in a safe place that you can find easily in the future.
Do not get behind the wheel of a car again after you have been drinking (or using). Drinking is okay if you are not dependent on alcohol. Nothing good happens with a second offense. You face more expense, more jail and more angst. A second offense also signals a more serious issue with alcohol in your life.
I hope this information will begin answering some of the questions that you may have at this time. Do not rely on this information as specific legal advice for your case. There are too many complex and strategic things to consider in every case. A host of factors can change this analysis, for example, whether the charge is a first offense, the age of the driver, the reported test results for the driver, whether the driver is a commercial driver, whether the driver is a licensed professional, whether the driver needs a license to do his or her job, the location of the traffic stop, whether there was an accident, whether someone was hurt, and so on. What is a good strategy for one client in one situation will not be a good strategy for another client in another situation.
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