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Colorado DUI Laws: Ongoing Changes

Denver, CO Criminal Trial Top Defense Attorneys– Graf Law Offices

Colorado DUI Laws:  Ongoing Changes

Colorado DUI laws are constantly changing based on federal mandates as well as national and local changes in political sentiment.  The most noteworthy change was the lowering of the Blood Alcohol Content (BAC), from 0.1 to 0.08 BAC several years ago.  With the legalization of marijuana, the legislature struggled with issues concerning the amount of THC in a person’s bloodstream that was acceptable for the operation of a motor vehicle.

was passed by the Colorado Senate and signed into law by the Governor on May 28, 2013.  Six previous attempts to set a THC limit failed to pass the legislature.   The commission recommended setting the THC level at 5 nanograms per milliliter of blood despite concerns the level is too restrictive.  The legislature accepted the 5-nanogram limit for driving under the influence of drugs.  Driving with this level of THC in your system is referred to as DUI “per se.”  Simply put, there is a presumption that a person with 5 nanograms or more of the THC metabolite in their bloodstream is driving under the influence.

Affirmative Defense

It is NOT a defense to a DUI charge that you have a doctor’s prescription for medications including medical marijuana; the legislature specifically considered this issue.  Prescription medications such as Xanax, Ambien and narcotic pain relievers can affect your ability to drive safely.  As a result, the legislature specifically stated that a prescription does not result in an “affirmative defense” to a DUI/DWAI charge.  C.R.S. § 42-4-1301(1)(e).  Make sure you tell your attorney about any prescription medications that may have affected your diving.  While not an affirmative defense, the prescription may be a “mitigating factor” during plea bargaining or sentencing.

Implied Consent

 There have been recent changes to the Colorado Implied Consent Law.  These changes include restoration of a driver’s right to challenge the initial police contact and lowering the BAC down from 0.17 to 0.15 for the instillation of an ignition interlock for two-years.

The Colorado Implied Consent Law requires a driver to take a breath or blood when a police officer has “probable cause” to believe the driver was under the influence or impaired by drugs or alcohol.  The refusal to take a test can result in the administrative suspension of your license for one year WITHOUT the right to early reinstatement or issuance of a probationary or restricted license.  In addition, the refusal can be used as evidence against you at your criminal DUI/DWAI trial.  The jury may be given an instruction that it may consider your refusal to take the test as an inference of guilt.  C.R.S. § 42-4-1301(6)(a)(III)(d).

Refusing a test or taking a test that results in a BAC of 0.2 or higher results in a minimum one-year .  Likewise, test results above 0.8 BAC also result in the revocation of your driving privileges for a shorter period of time with the opportunity for a probationary license.  The Colorado Implied Consent Law also applies to driving with 9 nanograms or more of THC in your bloodstream

There is some good news for drivers undergoing an administrative revocation of their driving privileges.  Recent legislation (HB 1077) restored a defendant’s right at a Department of Motor Vehicles (DMV) hearing to challenge the legality of the police contact that resulted in the testing or the refusal.  A driver may contest whether the police officer had a “reasonable suspicion” to pull you over when conducting a DUI arrest.  The testing procedures themself may also be challenged.

Your driving privileges are not automatically reinstated at the end of any administrative revocation period. First time offenders with a BAC of 0.08 – 0.169 can reinstate with a restricted license after one month.   The restricted license requires the instillation of an ignition interlock in your car for one year.

A driver that has their driving privileges revoked due to a drunk driving arrest with a BAC of 0.17 or more is currently required to install an ignition interlock for two-years upon reinstatement.  HB 1240 has lowered the limit to 0.15 BAC resulting in a 2-year ignition interlock requirement.

The at Graf & Associates can defend you at the administrative DMV revocation hearing and your criminal DUI/DWAI charges in Court.  We analyze, investigate and defend cases with the following in mind:

  • Was their reasonable suspicion to stop you in the first place?
  • Did the officer have reasonable suspicion or probable cause to request a roadside sobriety test?
  • Was the officer properly trained to perform the roadside tests?
  •             Was the roadside test videotaped?
  • Was there probable cause to arrest you and require a breath or blood test?
  •  Was the test performed properly?
  •             Within 2 hours of the stop?
  •             Machine certified and calibrated?
  •              Officer trained?
  •             Appropriate observation period?
  •             Was the person taking the blood sample trained and certified?
  •             Was there a proper chain of custody of the blood sample?
  •  We also retest blood samples for accuracy.

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