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DUI, DWAI, and Other Alcohol-Related Traffic Offenses in Denver and Colorado Courts
In Colorado and Denver courts, there are 4 basic alcohol-related traffic offenses that an individual may be charged with:
–Driving Under the Influence (“DUI”)
–Driving While Ability Impaired (“DWAI”)
–Driving with Excessive Alcohol Content (“DUI per se”)
–Underage Drinking and Driving (“UDD”)
See C.R.S. § 42-4-1301(1)(f) (statutory definition of DUI); C.R. S. § 42-4-1301(1)(g) (statutory definition of DWAI); C.R.S. § 42-4–1301(2)(a); C.R.S. § 42-4-1301(2)(d)(I) (statutory definition of UDD); Colorado DUI Benchbook, 2015-2016 Ed., at p. 6 (Ann England ed., CLE in Colo., Inc.) (hereinafter “Colorado DUI Benchbook”).
Further, the statutory definitions of DUI and DWAI are inclusive of drugs meaning that a person can be charged with a DUI or DWAI for being under the influence of drugs – DUI and DWAI offenses are not solely limited to alcohol.
Common Elements to Alcohol-Related Traffic Offenses
Two common required elements common to alcohol-related traffic offenses in Denver and Colorado are that the defendant be (1) “driving” a (2) “vehicle.” Importantly, since the word “driving” is not defined by statute, Colorado courts have had to interpret the meaning of the word through case law, which is discussed in further detail below. In contrast, “vehicle” is defined by statute; however, there are different statutes in Colorado defining what qualifies as a “vehicle” for purposes of an alcohol-related traffic offense. This is also discussed further below.
First, the word “driving” has been found by Colorado courts to mean that the driver is exercising “physical control over the vehicle.” What constitutes “physical control over the vehicle” is a factually dependent question for the jury to decide in light of the circumstances surrounding the charged offense. Where a police officer witnessed the defendant physically driving the vehicle there is no question that this meets the requirements of the “driving” element. However, questions arise where the vehicle may not be moving, the vehicle may not be started, or the vehicle may not physically be capable of being moved – for example, if the car has a flat tire or dead battery.
Importantly, Colorado courts have found that the vehicle does not actually need to be moving in order for a person to be exercising physical control over it and be considered to be “driving” the vehicle. In particular, multiple convictions have occurred where the defendant was found either passed out or asleep in the car, with the car either parked or not moving, and the keys in the ignition. Under these circumstances, the defendants were found to have exercised sufficient physical control over the vehicle and, thus, were found guilty of an alcohol-related traffic offense. See People v. Swain, 959 P.2d 426 (Colo. 1998); Smith v. Charnes, 728 P.2d 1287 (Colo. 1986). Accordingly, a person cannot protect themselves from a DUI conviction simply by making sure the car is parked or not moving; if the keys are in the ignition that may be a sufficient exercise of physical control over the vehicle for the defendant to be found to be “driving” it.
Additionally, for “vehicle,” there is a statutory distinction between “motor vehicle” and a general “vehicle.” More specifically, the general “vehicle” definition is used for the criminal alcohol-related traffic offense statutes while the “motor vehicle” definition is used for related Department of Motor Vehicle (“DMV”). Generally speaking criminal and DMV proceedings for DUI, DWAI, and other alcohol-related traffic offense are separate procedures with separate requirements. Criminal proceedings are just that, proceedings where criminal punishments can be imposed. In contrast, DMV proceedings relate only to your driver’s license and your right to drive; they are also civil in nature and have a different standard of proof than criminal proceedings.
For criminal proceedings, Colorado statutes governing alcohol-related traffic offense laws require only the operation of a general “vehicle” as opposed to a “motor vehicle.” Under the criminal statutes, C.R.S. § 42-1-102(112), a “vehicle” is defined as:
[A] device that is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks. “Vehicle” includes, without limitation, a bicycle, electrical assisted bicycle, or [electronic personal assistive mobility device], but does not include a wheelchair, off-highway vehicle, snowmobile, farm tractor, or implement of husbandry designed primarily or exclusively for use and used in agricultural operations or any device moved exclusively over stationary rails or tracks or designed to move primarily through the air.
In contrast, the express consent statute, which applies to DMV proceedings requires operation of a “motor vehicle.” See C.R.S. § 42-4-1301.1 (express consent statute). Under C.R.S. § 42-1-102(58), a “motor vehicle” is defined as:
[A]ny self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include low-power scooters, wheelchairs, or vehicles moved solely by human power. For the purposes of the offenses described in sections 42-2-128, 42-4-1301, 42-4-1301.1, and 42-4-1401 for farm tractors and off-highway vehicles, as defined in section 33-14.5-101(3), C.R.S., operated on streets and highways, “motor vehicle” includes a farm tractor or an off-highway vehicle that is not otherwise classified as a motor vehicle. For the purposes of sections 42-2-127, 42-2-127.7, 42-2-128, 42-2-138, 42-2-206, 42-4-1301, and 42-4-1301.1, “motor vehicle” includes a low-power scooter.
A major distinction between the two is whether or not vehicles moved solely by human power – for example, bicycles and skateboards – qualify as a “vehicle” under the applicable statute. Since the criminal statutes use the broader, general “vehicle” definition, a person could potentially be found criminally liable of an alcohol-related traffic offense for operating a bicycle, skateboard, or other vehicle while intoxicated on alcohol or drugs.
In contrast, DMV proceedings require that the defendant be a “motor vehicle” and, thus, is exclusive of bicycles and other human powered vehicles. However, the DMV proceedings only affect driving rights. Accordingly, while a person could be criminally convicted of operating a bicycle or other human powered vehicle under the influence of alcohol, the conviction would not affect their driving rights since a bicycle is not a “motor vehicle” as required by the statute governing DMV proceedings.
Roadside Sobriety Tests
Under Colorado law, there are three types of police-citizen contacts in order of increasing intrusiveness:
–Consensual encounters;
–Investigatory stops; and
–Arrests
See People v. Walters, 249 P.3d 805 (Colo. 2011). Generally speaking, when a police officer pulls over an individual for suspicion of a DUI or other alcohol-related traffic offense, the police officer is in initially engaging in an investigatory stop. While an investigatory stop may later escalate into an arrest, under C.R.S. § 42-4-1302,
A law enforcement officer may stop any person who the officer reasonably suspects is committing or has committed a [DUI, DWAI, DUI per se, or UDD violation], may require the person to give such person’s name, address, and an explanation of his or her actions. The stopping shall not constitute an arrest.
Accordingly, for an officer to lawfully perform an investigatory stop and pull somebody over, he or she must have an articulable and specific basis for suspecting that a violation of a law has occurred. Terry v. Ohio, 392 U.S. 1, 21-29 (1968); Stone v. People, 485 P.2d 495, 509 (Colo. 1971). See Colorado DUI Benchbook, at 193-202.
If an officer has a reasonable and articulable basis that an alcohol-related traffic offense is being committed – for example, aberrant driving or violation of a different traffic offense – the officer may pull the individual over and, as indicated by the above statute, require that person to give his name, address, and an explanation of his or her actions. However, the investigatory stop is limited to just this information. The driver need not provide any other information unless there is subsequent, sufficient information to generate probable cause that the driver is committing a criminal offense and to escalate the situation into an arrest.
Once an investigatory stop has occurred, if there is sufficient information to establish probable cause that the driver is intoxicated or otherwise committing an alcohol-related traffic offense the police officer may administer road side sobriety tests. See People v. Carlson, 677 P.2d 310 (Colo. 1984) (indicating that roadside sobriety tests are considered a “full search” within the meaning of the Constitution and, accordingly, require probable cause or voluntary consent in order to be administered). But see C.R.S. § 16-3-310 (requiring police officers obtaining pre-arrest voluntary consent to articulate to the person that the search is voluntary and that the person has a right to refuse the search). Notably, if there isn’t sufficient probable cause the driver may voluntary consent to sobriety tests but has no obligation to do so.
Traditional factors that can establish probable cause for administering roadside sobriety tests are: slurred speech, smell of alcohol, bloodshot eyes, unsteady balance, and lack of coordination. If the officer conducting the investigation determines that there is sufficient probable cause that a DUI, DWAI, or another alcohol-related traffic offense is being committed, the driver can be, and likely will be arrested for that offense.
The Arrest
Once arrested, Colorado’s express consent statute kicks in along with the statute’s mandatory testing requirements. , C.R.S. § 42-4-1301.1. Additionally, at this point traditional Miranda rights must be read to the defendant so that he is informed of his constitutional rights before an interrogation takes place.
Under Colorado’s express consent statute, any driver who drives a motor vehicle on the “streets and highways and elsewhere throughout this state shall be required to take and complete . . . any test or tests of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD.” C.R.S. § 42-4-1301.1(2).
In essence, the express consent statute provides that by driving on the streets of Colorado, that person is expressly consenting to providing tests of his breath or blood where an officer has determined there is probable cause that he or she has committed an alcohol-related traffic offense. Notably, the express consent statute gives individuals over 21 the right to choose between a blood or breath test, while individuals under 21 must perform a breath test. C.R.S. § 42-3-1301(2). Additionally, the statute requires the driver to give a breath or blood sample within “two hours of the time of driving.” C.R.S. §§ 42-4-1301.1(2)(a)(III) and (2)(b)(II).
If an individual refuses to comply with the statute and give a breath or blood sample, that refusal may be admitted in evidence at trial for any reason, including as proof that he or she is guilty of the charged offense. Cox v. People, 735 P.2d 153, 155 (Colo. 1987). Along these same lines, for DMV proceeding purposes, a refusal is considered a per se violation and results in an automatic revocation of the individuals driver’s license for 1 year to 3 years depending on the circumstances and the individual’s prior record. C.R.S. § 42-2-126.
Importantly, a person refusing to comply with the express consent statute may subsequently withdraw that refusal and perform the required test. Zahtila v. Department of Revenue, 560 P.2d 847 (Colo. App. 1977). However, a refusal must be recanted within sufficient time to allow the test to be completed within two hours of driving as required by statute. See Gallion v. Department of Revenue, 171 P.3d 217 (Colo. 2007).
Lastly, the express consent statute has separate provisions regarding a person suspected of driving under the influence of drugs as opposed to alcohol. Specifically, a driver suspected of driving under the influence of drugs must cooperate in the taking of a blood, urine, or saliva test; breath tests are currently of no use in determining drug level. C.R.S. § 42-4-1301.1(2)(b)(I). Additionally, unlike alcohol-related offenses, the arresting officer has sole discretion in determining what test the driver must submit to; the driver has not right to choose.
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.