DUI / DWAI

Kishbaugh Law Firm, LLC believes that you have the right to personal and effective legal representation. We advocate aggressively for every client. You can mitigate the mistake you may have made. If you were wrongly arrested, you can defend your rights. The consequences of a DUI or DWAI can be very serious – loss of your driver’s license, jail, probation, fines, alcohol education classes, alcohol therapy, community service, monitored sobriety, and perhaps implications to your professional license. The process can be overwhelming, scary, complex and expensive.

What should you do if you are charged
with a DUI or DWAI?

  1. Consult with an experienced DUI attorney. Don’t just assume that you will have to plead guilty to your charges. The laws are always changing, and many attorneys believe that the DUI process is simple, but it is not. An experienced attorney understands what is at stake and the complexities involved in a DUI case. It is important to consult with an attorney immediately after your arrest so that they can help you avoid missing critical deadlines. A good attorney will analyze your case and determine a strategy for your defense, both in court and at the DMV. A good DUI attorney understands the standardized field sobriety tests, the complicated chemical testing procedures, and how to challenge  the results and your arrest.
  2. Request a hearing at the Colorado Department of Revenue, Division of Motor Vehicles. If you took a breath test that resulted in a blood alcohol level (BAC) of .08 or more, or refused to take a chemical test, you most likely have only seven days to request a driver’s license revocation hearing – if you fail to timely request this hearing, you will lose your license and the right to a hearing. If you took a blood test, you have ten days from the date their Order of Revocation letter was postmarked to surrender your license and request a hearing. It is important that you consult with your attorney prior to requesting this hearing so that you do it properly for your individual circumstances. After you request your hearing, the DMV will send you a Notice of Hearing, which will tell you the location, date and time of your hearing. It is important to provide this letter to your attorney immediately; the DMV will not send it to your attorney. When you request your hearing, you may apply for a Colorado Photo ID card. You do not have a second chance at this hearing. It is important that you consult an attorney as soon as possible after being arrested for a DUI or DWAI.
  3. Consider enrolling in alcohol education or therapy classes. Level I Education, Level II Education and Level II Therapy programs may help mitigate your case. They are licensed by the State of Colorado and are accepted by the probation department where your case is pending and at the DMV.

DUI Laws in Colorado

DUI stands for Driving Under the Influence. In Colorado, you are presumed to be DUI if you operate a vehicle with a blood alcohol content (BAC) at or above 0.08, and/or have consumed alcohol or drugs to a degree that you are substantially incapable, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. DWAI stands for Driving While Ability Impaired, and you can be arrested for this if you have been drinking and/or taking drugs that affects you, to even the slightest degree, such that you are less able than you ordinarily would be, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. You are presumed to be impaired by alcohol if your blood alcohol level is between .05 and .08. A lower blood alcohol lever, however, can result in criminal charges.

In Colorado, there are two separate systems involved in a DUI or DWAI charge: the court system and the Division of Motor Vehicles (DMV). Do not confuse the two – they are separate and independent.

  • At the DMV, a hearing officer determines penalties against your driver’s license. This may include loss of your driving privileges. You have the right to request a hearing to oppose these punishments, but you must request this hearing within seven days of your initial stop. If you took a blood test, you may be waiting for the results.
  • The court system determines whether the driver is guilty of a DUI, a DWAI, or a lesser charge, and imposes sentences including jail time, probation, fines, public service, or participation in educational classes. If you fail to appear for Court, a bench warrant will be issued for your arrest. The next time you are stopped by the police you will be arrested and required to post bond.

Division of Motor Vehicles and the DMV Hearing

If you are charged with an alcohol-related offense in Colorado, you must face consequences from the Colorado Department of Revenue, Division of Motor Vehicles (DMV), in addition to your charges in court. The hearing at the DMV is also known as an administrative hearing or an Express Consent hearing. The DMV can suspend or revoke your driving privileges, whether or not you have a Colorado driver’s license.

If you were given a blood or breath test and your test result was .08 or greater, or if you refused or were deemed to have refused testing, you will have received an Order of Revocation, and you must surrender your license and request a hearing within seven days of your arrest in order to preserve your right to a hearing, and to receive a temporary sixty-day driving permit. If you do not, your driving privileges will automatically be revoked without a hearing and you will not be eligible for a temporary driving permit. If you took a blood test, you must make sure that the DMV has your correct mailing address (by filing a change of address form if necessary), whether or not you gave the police officer your correct address. They will send an Order of Revocation to the address they have on file, and you have ten days from the date their letter was postmarked to surrender your license and request a hearing. If you do not, your license will automatically be revoked without a hearing and you will not be eligible for a temporary driving permit.

When you request your Express Consent hearing, you will need to decide if you want the police officer to be present at the hearing. You should consult with an attorney before making this important decision.

After you request your hearing, the DMV will send you a Notice of Hearing, which will tell you the location, date and time of your hearing. It is important to provide this letter to your attorney immediately.

At the Express Consent hearing, a hearing officer will determine whether your blood alcohol content (BAC) was .08 at the time you were driving or within two hours after driving, or whether you refused to take, complete or cooperate in the taking of, a blood or breath test as required by the Express Consent Law. Whether you were guilty is determined by a preponderance standard. The hearing officer must make a determination, based on the facts presented at the hearing that it was more likely than not that (1) you were in actual physical control of a motor vehicle in the state of Colorado; (2) the officer had reasonable suspicion to contact you; (3) the officer observed indicia of impairment and had probable cause to require you to take a chemical test; and that a (blood or breath) chemical test was completed within substantial compliance of the CDPHE rules and regulations and that the test was failed, or the test was refused.

You do not have a second chance at this hearing. It is important that you consult an attorney as soon as possible after being arrested for a DUI or DWAI.