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Know The Colorado THC Laws on Driving

Thursday, Oct. 23rd 2014

We know that drinking and driving is dangerous. In Colorado, it is illegal to drive under the influence of drugs or alcohol. Traditionally, in a prosecution for driving under the influence of any drug the government had to show that the drug impacted a person’s ability to drive as he or she normally would. Recently, Colorado has made a special exception for Marijuana and enacted a presumption that if the driver had a blood concentration of 5 ng/mL or higher of THC-COOH, a jury could presume that the driver was under influence of Marijuana. This special treatment of marijuana as compared to other drugs is mostly likely an overreaction to the de-criminalization of marijuana in Colorado by law enforcement, prosecutors, and legislatures.

VERY IMPORTANT: The marijuana presumption does not mean that you are automatically guilty. If you or a friend are accused of DUI- Marijuana, consult with a DUI attorney with specific knowledge of Marijuana before you make any permanent and damaging plea decisions.

This post seeks to explain why Colorado THC laws 5 ng/mL of THC-COOH presumption contained in C.R.S §42-4-1301(6)(a)(4) is unreliable and could result in false convictions. The idea that marijuana should be treated differently then other drugs is problematic in criminal law and DUI prosecution because all drugs, including marijuana affect individuals different. This means that there cannot be a certain blood concentrate of THC that would impair every user. The metabolic rate for all drugs can vary significantly from one person to the next and a dosage that works for one may not work for another. That is why we have different dosage of medicine for different people, it is not a one size fits all. That is why the pharmaceutical industry makes prescription drugs in varying strengths.

To further complicate the issue, THC can remain and show-up in a blood test days, weeks, even months after use. It would be like taking an alcohol test and it measured not only the alcohol that you drank that day but for the past month. It is possible that a driver would most likely NOT be under the influence of marijuana, but could still show significant THC-COOH levels.

The National Highway Safety and Traffic Administration (NHSTA) produces information for the use of the government in the prosecution of drug DUI. NHSTA admits that a person’s individual drug metabolite, overall usage, and does of marijuana can impact the blood concentration of THC. Due to these factors a person’s THC blood concentration alone cannot establish a relationship to impairment.

The current Colorado THC laws regarding marijuana presumption could lead to a false arrest or conviction for driving under the influence of marijuana. Prosecutors do not typically understand the difference between active THC and inactive THC in a blood concentrate or the length of time that THC may remain in a person’s body.

A false conviction for a Marijuana DUI could result in fines, restricted use of both alcohol and marijuana, jail time, mandatory substance abuse classes and therapies, fees, revocation of a driver’s licenses, restricted licenses uses, and increased insurance costs. In addition a person could face collateral consequences such as: job loss, and the stigma of a permanent criminal record.

This presumption for Marijuana DUI means that -you need an attorney to ensure the government can show that marijuana, not just a test resulted impaired your ability to drive and if it can’t that you have an attorney fluent with Colorado THC laws fight for you.

If you, a friend, loved-one, or someone you just met is being affected by Colorado THC laws or is facing a criminal charge for driving under the influence of marijuana, contact us today for a case evaluation at (303) 747-4686.

Posted by Laurie Schmidt | in Marijuana DUI | Comments Off on Know The Colorado THC Laws on Driving

5 Must Know Steps After Being Arrested In Colorado

Monday, Oct. 20th 2014

Being arrested in Colorado for a crime is a shocking event. Being arrested for a crime can leave bewildered, frustrated, and unsure. Many people have questions such as: What just happened?  What do I do now?  You may even be asking yourself, what did I do?  First thing first, you have been arrested for a criminal offense and there are certain steps that you should take and critical information that you need to know. This post is meant to provide information on the steps to take after contact with law enforcement or an arrest and release by either a citation or posting a bond.

Critical information after being arrested in Colorado for any criminal offense.

1. Consult and retain an attorney
This is not the time to guess and wonder what could potential happen to you.  Take the time to consult with a local criminal defense attorney about the recent arrest. Criminal defense attorneys are familiar with the typical sentence for a variety of crimes, potential defenses that might be available to you, and will be able to explain what you can expect from the court process.

Retaining a criminal defense attorney early gives the attorney a jump start into the allegations and may reveal information that was missed by the police that could be critical in your case.

2. Do not simply plea guilty at the first court appearance
An arrest for a crime is NOT the same thing as guilty of the offense. There are a lot of factors that could contribute to a better plea agreement with the prosecutor or the establishment of a lack of proof in the case that could lead to a dismissal of all of the charges.

There are consequences to pleading guilty to criminal offense that may follow you for longer than the inconvenience of going to court. You must understand potential consequences to the plea, what you are giving up, what you will be required to complete, what the effect is on your future, and the impact of a permanent criminal record prior to entering into any plea agreement.

3. Do not assume the police report contains all relevant or sufficient information
A police report is a summary of how the government will try and prove its case. That is not the sole area of evidence and is only generated once the officer makes an arrest. Often times it is necessary to conduct an investigation as to witnesses NOT interviewed by the police or NOT included in the report that may have the most information that could impact that outcome of the case.

4. Do not assume that you will be found guilty
It is impossible to determine if the government can prove its case against you based on an arrest only and without accessing all of the evidence. A skilled criminal defense attorney will be able to conduct a complete investigation of your case. During this investigation, the government’s evidence will be tested, holes developed, and innocent evidence uncovered.

After the investigation a determination of a likelihood of winning the case can be determined and if necessary plea arrangements can be discussed.

5. Do not pretend that this may go away or will simply be dropped
After and arrest and charges are filed against you, a prosecutor will not drop the case based on your explanation or even the non-participation of the victim in the case. Your case may very well have great mitigation or reasons as to why you are not guilty; this must be presented in the proper time and fashion.

If you or a loved one are arrested or face being arrested in Colorado for criminal charges, contact us today at (303) 747-4686 for a free initial consultation.

Posted by Laurie Schmidt | in arrest | Comments Off on 5 Must Know Steps After Being Arrested In Colorado

Denver DUI Penalties From Colorado DMV

Monday, Oct. 6th 2014

Loss of License in DUI or DWAI alcohol cases

If you are arrested for drinking and driving in Colorado you will face two separate actions. The first is through the criminal court and the second is through the Colorado DMV. Typically, DMV determines if you keep your licenses and if not, for how long it would be revoked. This post seeks to provide information on penalties that you may face for drinking and driving through the Colorado DMV. For more information regarding court action, please see the attached link.

Colorado DMV- Standards for Hearing

After an arrest for drinking and driving in Colorado, you have seven days to request a hearing through the DMV, unless you take a blood test, the time is extended until you receive the results of the test. A DMV hearing officer, not a judge, conducts the hearing. The hearing officer must find by a preponderance of the evidence that that officer had a legal reason to stop you, had probable cause to request you consent to either a blood or breath test, and that you were driving with a BAC of above .08. This is different then the court standard and so it is possible that you may win the DMV hearing and loose at court or win at court and loose the DMV hearing.

Denver DUI Penalties from the DMV- License penalties

The Colorado DMV will look at revoking your license after a drinking and driving arrest. How long the revocation will depend on many different factors, including past driving record, circumstances of stop and arrest, and any resulting alcohol results. This information is only for the DMV action and does not consider any court sanctions. For more information regarding your options after a Denver DUI arrest, contact DUI attorney Laurie A. Schmidt, p.c. at (303) 747-4686.

First Offense DUI with a BAC level below a .15

In this case, the Colorado DMV will revoke the license for 9 months. The driver may be eligible for a restricted license after 30 days. In order to get a restricted license the driver must complete a driver’s application, pay a $95 application fee, install an ignition interlock devise, and carry SR-22 insurance for the remaining 8 months.

First Offense DUI with a BAC level above a .15

The Denver DUI penalties from the DMV may make a finding of a persistent drunk driver (PDD) if there is credible evidence that the BAC was above a .15 within two hours of driving. If labeled a PDD, in addition to the requirements above, the driver must also enroll and complete Level II alcohol education and therapy and maintain the interlock device for two years.

Second Offense DUI within a lifetime

A second driving under the influence of alcohol allegation will result in a license revocation for one year. A driver may apply for a restricted license after 60 days. The restricted license carries mandatory interlock, SR-22 insurance, and if the BAC or driver is determined to be a persistent drunk driver, may require completion of Level II alcohol education and therapy and an additional 2 years of the interlock requirement.

Third or more Offense DUI over a lifetime

A third driving under the influence charge will result in 2-year license revocation. The driver may be eligible for a restricted license after 60 days. This offense will result in a persistent drunk driving designation and the Denver DUI penalties from the DMV would require completion of Level II alcohol education and therapy as well as extended interlock on any vehicles.

Refusal to take or complete a test

If the Colorado DMV finds that your refused to take or complete an alcohol test on a first offense of Driving Under the Influence charge your license will be revoked for one year. The driver may be eligible to receive a restricted license after 60 days, but a designation of persistent drunk driving will extend the period of the interlock requirement.

As you can tell there are many factors that could influence how long a revocation is for and what is require to obtain a license. For information regarding your specific case, we suggest that you contact Denver DUI attorney Schmidt at (303) 747-4686.

Posted by Laurie Schmidt | in Drug DUI, DUI arrest, DUI laws, Marijuana DUI | Comments Off on Denver DUI Penalties From Colorado DMV

Denver DUI Marijuana

Wednesday, Oct. 1st 2014

Colorado DUI Marijuana Laws

Marijuana is legal according to Colorado State law, so why was I arrested for Driving Under the Influence of Marijuana (DUI Marijuana)? Although it still against the law federally – Colorado State Law allows a person to posses and use marijuana if you are over the age of 21. If you are visiting Colorado you can also possess and use recreational marijuana under Colorado State law only; but you must use it while you are in Colorado. Due to the recent legalization, the government is now on the lookout for DUI marijuana drivers then ever before.

HOW CAN THEY PROVE DRIVING UNDER THE INFLUENCE OF MARIJUANA

Officers must first have a reasonable suspicion of criminal activity to stop your car. This means that the officer must have some facts that you were, are, or about to commit a crime. Some common stops that are valid, but can turn into a DUI marijuana include being stop for expired license plate, non-working taillight, headlight, or blinkers. It is recommended to ensure that all equipment and tags are current and working. Once the officer has a reason to stop you- any observations made of you can and will be used against you.

Police officers are looking for marijuana-impaired drivers during almost any traffic stop. Routinely, officers will be looking for red, watery, eyes or droopy eyelids or if he or she can smell an odor of marijuana. Thus, a good rule of thumb is to never use smoke marijuana in your car. If the officer does or does not see these signs, he or she would most likely ask if you have used alcohol or marijuana recently. Any admission of recent use along with the signs and symptoms described above would most likely give the officer probable cause to request a blood, urine, or salve test.

An officer needs to have probable cause to believe that you are driving under the influence of marijuana (DUI Marijuana). This means that the officer must have facts to support his or her assertion that you were driving under the influence of marijuana. If there is no probable cause, any resulting TCH results may not be used against you. Officers develop probable cause by your admission of recent marijuana use, any order or marijuana, and any performance on field sobriety tests (that have not been verified by any authority). You are with in your rights to NOT answer any questions or perform any field sobriety tests. Cooperating with the officer will most likely result in more evidence for the government to use against you. Best practice would be to politely tell the officer you do not wish to answer any questions or preform any test. You are going to be arrested regardless if you participate or not.

If you or someone you know have been arrested for Driving Under the Influence of Marijuana (DUI Marijuana) click here for a free case evaluation or call us at (303) 747-4686. Denver DUI Attorney Laurie A. Schmidt will take the time to explain your options and expectations in the upcoming criminal matter.

Posted by Laurie Schmidt | in Drug DUI | Comments Off on Denver DUI Marijuana

Penalties for Domestic Violence Convictions

Thursday, Sep. 25th 2014

Possible Penalties For Domestic Violence Convictions

Penalties for domestic violence convictions vary. Often times, being accused of a domestic violence crime is stressful, scary, and confusing. Everyone that you encounter in the court system and jail are uncaring as to your specific situation. Often times, the only question that you have is what is the worse possible scenario I am facing, if I am convicted. As domestic violence attorney the main concern I hear from my clients is the threat of additional jail time and/or a potential loss of a job. This post seeks to provide information on the potential penalties for domestic violence convictions in Colorado.

Mandatory Provisions

There are some penalties for domestic violence convictions that are the same regardless of the severity of the crime. These mandatory provisions come into effect if you receive probation. It does not matter if you receive felony, misdemeanor, or municipal court probation.

Mandatory Domestic Violence Evaluation and Treatment

If you receive probation, you will be ordered to complete a mandatory domestic violence evaluation and do all recommended treatments, classes, and therapies. The evaluation will rank you as an A, B or C. “A” being the shortest amount of treatment and C being the longest amount of treatment. There is no evaluation that does not include at least the “A” track for education and therapies.

Mandatory Protection Order

There will be a mandatory protection order in place. The terms of the protection order can very widely in each case. You can be ordered to vacate your home, have not or limited contact with your children, not be allowed to drink alcohol if you are over the legal age, and you may not have a firearm.

Fines / Fees

In addition to the treatment costs, you face additional court fines and fees and the cost of probation. These are assessed to you and must be paid prior to the completion of probation.

Gun Rights

In Colorado, if you are under a mandatory protective order, you are NOT allowed to possess, own, carry, or have any firearms or ammunition. This is a federal as well as state ban and a violation of such could result in additional criminal charges.

Sentencing to Jail or Prison

If and how much jail time you may face depends on if you are convicted of a felony, misdemeanor, or municipal court domestic violence crime. If you are charged with a felony domestic violence crime, you may face time in prison or the county jail. The amount of time you face depends on the level of felony offense and if you have any prior convictions for crimes of violence or domestic violence related crimes. Prison time can range from one year to life in prison. This is a large range because Colorado has six classifications of felony offenses with a wide range of potential felony prison sentences. Discuss the possible penalties for domestic violence convictions with a domestic violence attorney as soon as possible.

Many domestic violence charges may be eligible for felony probation. If eligible for felony probation, you could face up to 90 days in jail. After which, you would be placed under the supervision of the probation department for two to five years.

A charge of a domestic violence crime as a misdemeanor may carry up to two years in the county jail. Most of these crimes are probation eligible which can reduce the jail time to sixty days plus mandatory probation terms.

Finally, a domestic violence crime as a municipal code violation or a petty offense can carry up to one year in the county jail. These offenses are the maximum period of incarceration and many factors and defense may be available to reduce the amount of jail time or exclude it in its entirety. It is best to contact a domestic violence attorney to review your defense options and possible penalties for domestic violence convictions.

If you, a friend, or family member are being accused of a domestic violence related crime, don’t wait, contact us today for a free consultation to learn the possible penalties for domestic violence convictions. Our law firm number is (303) 747-4686. We are here to help and guide you through a stressful and often unfair process. Penalties for domestic violence convictions

Posted by Laurie Schmidt | in Domestic violence | Comments Off on Penalties for Domestic Violence Convictions

NFL Domestic Violence In Colorado

Tuesday, Sep. 23rd 2014

NFL Domestic Violence Policy Considerations

This post does not condone or explain the Ray Rice video or his actions as seen on that video.  We have domestic violence laws to prevent the type of violence that we saw in that video. This posts seeks to provide information regarding domestic violence charges in Colorado and some potential differences with other states.

The NFL’s new penalties for any person convicted of a domestic violence crime marks a growing shift in how our society sees domestic violence related crimes. The NFL has the right to take whatever stances it would like, as it is a private organization. One thing that should be considered is the lack of consistency in domestic violence laws across the states that could lead to unequal enforcement of these penalties. One state may criminalize the same act as a felony, a different state may classify it as a misdemeanor, and another state may not criminalize it at all.

This post seeks to education you on the various levels of domestic violence charges in Colorado. In Colorado, there are three domestic violence charge classifications, each is very broad and are prosecuted with or without the victim’s willing cooperation. No matter the level of domestic violence charge that you may face, you need the help of an experienced domestic violence attorney.

Felony Domestic Violence Charges

A felony domestic violence charge typically involves substantial violence or injury to the alleged victim or the “use of a deadly weapon”. A deadly weapon is broadly interpreted to include any object that causes another person to fear immediate and serious bodily harm. This can include objects that may not be thought of as traditional weapons, such as a glass vase. It can also be charged as a felony if there are NO injuries or NO allegations that you touched or made any contact with the other person. It is very important that you seek the assistance of a domestic violence attorney before you make any statements to an officer.

Misdemeanor Domestic Violence Charges

A misdemeanor domestic violence charge is usually one in which a person is accused of causing a small injury or no injury at all to the other party. This could result from an allegation that a person was shoved or kicked. Misdemeanor Domestic Violence Charges can be boosted to a felony charge after three separate domestic violence charges.

Municipal or City Domestic Violence Charges.

Finally, a municipal or city code domestic violence charge is typically alleged conduct that is similar or less substantial then a misdemeanor domestic violence charge. The main difference is that it is prosecuted in city court instead of county court. This type of conviction may be sealable after three years, where as a misdemeanor or felony domestic violence convictions are not sealable or expugnable in Colorado.

As the new NFL policy has just been enacted for Domestic Violence convictions, it is unknown how each level of crime in Colorado would be judged. It appears that the penalties would not be enforced until the criminal case has concluded. This is the best policy because it protects the due process rights of the accused and allows for the assertion of any potential defenses to a charge.

It is unknown if the NFL domestic violence penalties would be assessed on any level of domestic violence conviction or if it will require the conduct have the elements of violence and injury. It is suspected that the NFL would look at the facts and circumstances surrounding the conduct and not the level of conviction to determine its enforcement. If the enforcement of an NFL domestic violence policy is triggered solely upon a conviction, it could result in grossly unfair enforcing of the penalties as some states do not prosecute cases in which there are no injuries, unlike Colorado.

If you, a family, or friend are currently being charged with any level of domestic violence crime, contact us today for a free case evaluation. Don’t get caught up in a system that is complicated and unforgiving, contact us today at (303) 747-4686.

Posted by Laurie Schmidt | in Domestic violence | Comments Off on NFL Domestic Violence In Colorado

If You Are Stopped By Police – The Law Student Knows Series

Friday, Aug. 29th 2014

If you are stopped by police, you need to know you rights and what you can and cannot do. Try to remain calm during the entire contact with officers. The calmer that you are the more reasonable you actions will be. Be polite to the officers. If you are cussing or screaming at officers you will get arrested. The officers conduct may not be reasonable in the end, but you will have to go through the process of proving the officer acted illegally. Finally KNOW and STATE your rights. Officers are trained to get you to give up information without you even realizing it. Here are four main types of contacts with officers:

Stopped While Walking in Public

If you are stopped while walking or in a public area. You do not have to answer any of the officers questions, nor do you have to consent to a search of your property. You may need to provide an identification to the officers, depending on the reason that the officer contacted you

Stopped While Driving

If you are stopped in your car. If the stop was for any traffic violation you must provide your insurance, registration, and driver’s license. You do not need to provide any additional information, you do not need to answer any questions, or allow the officer to search your car. If the officer threats to go get a warrant, let them. The officer may not have probable cause necessary to get a warrant and is just trying to scare you into allowing the officer to search the car.

Officer Goes to Your Home

If you are contacted at your home. Here, you have a higher degree of privacy. You can tell the officers that they may not enter your home. You can tell the officers that you do not want to talk to the officer. If the officer threats to “go get a warrant,” let them. If there is probable cause to enter your home, it needs to be reviewed by a judge.

Knock and Talk

If an officer leaves a card or calls you to come in for an interview. You are under no obligation to contact the officer. It would be best in this situation to consult with a local Denver criminal defense attorney. You want to ensure that you have an attorney with you prior to contacting the officer. Most times the officer has identified you in a criminal activity and is looking to make the case stronger against you, not try to clear up any misunderstandings.

If you or a loved one have been contacted by law enforcement or are currently being charged with a crime, contact us today at (303) 747-4686.

Posted by Laurie Schmidt | in arrest | Comments Off on If You Are Stopped By Police – The Law Student Knows Series

Law enforcement contacts

Wednesday, Aug. 27th 2014

This is part two of the three part series “The Law Student Knows – Now You Know Too.” Law enforcements ability to stop you is limited. An officer can only act within the protections of the Fourth Amendment. It protects you from unreasonable governmental contact, not all contact. To better understand your rights and how to act in certain situations, this post explains the different types of contacts with officers.

There are three basic levels of contact with officers: consensual encounters, detentions, and arrests.

CONSENSUAL ENCOUNTERS

Anytime an officer asks you to do something and you do it that will be considered a consensual encounter. You are agreeing to talk with the officer, let him search you, a backpack, or your car. There are no Fourth Amendment issues with this type of contact because you are agreeing to the contact.

To know if this would be a consensual encounter, listen to what the officer is saying. If he is saying things like “could you please”, “may I have”, or “would you mind” these are all questions. If you say yes then it is consensual. There is an almost programmed response that we must say yes and answer the officers questions. This is not the case. You have a right to say no or not answer the officers questions. If you say no and the officer makes you stay then the contact is elevated to a detention.

DETENTIONS

Detentions are limited in time and scope, meaning that the contact with an officer does not last very long. The officer needs a reasonable suspicion that you are committing a crime, have committed a crime, or are about to commit a crime. It has to be something more than a hunch or a gut feeling.

Traffic stops are considered detentions. During a traffic stop for a violation of a traffic law, you must provide proof of insurance, registration and your identification to the officer. That is ALL you have to do. You do not have to tell the officer anything else.

If the officer does have reasonable suspicion to detain you, you more than likely would have to provide identification, if asked. There is no set time for a detention, but generally if it last too long or you are removed from the area, it could turn the contact into an arrest.

ARRESTS

Arrests must be supported by probable cause, this is higher than the standard for a detention. If an officer arrests you and there is no probable cause it is an illegal arrest. Probable cause means that there are facts to support a belief that you committed the crime. This does not mean that you are guilty of the crime, it only means that the police have enough facts or statements (not all facts or statements) to believe that a crime may have been committed.

If you, a friend, or family member need additional information or believe that you have been the victim of illegal police contact or are being accused of a crime, contact us at (303) 747-4686 or click FREE CONSULATION.

Posted by Laurie Schmidt | in arrest | Comments Off on Law enforcement contacts

The Law Student Knows – Now You Know Too

Monday, Aug. 25th 2014

Recently, there was a video posted about a law student that refused to talk with officers, refused to give him an ID, and refused to allow them to search his person. The law student did one thing correctly – he asserted his right to be free from unreasonable police conduct. This blog will be a three-part series about how the law student was correct. This first series will focus on what the law student did right. The next post will address the different types of contacts that you may have with law enforcement and finally what to do if you are stopped by an officer.

Law Student Disobeyed the Officer. He would not give the officer his name or identification and this was legal for the law student to do. An officer has the right to come up to you and ask you questions, including your name. This is the same as any other person walking down the street. If a stranger came up to you and asked you for identification, would you feel that you needed to give it to them? The same is true in this situation. You do not have to talk with the officers.

Law Student asked if he was suspected of criminal activity. An officer may stop you if he or she believes that you have, are, or had committed a crime. This belief has to be based on a reasonable suspicion. This means the officer must have some facts, other than “I don’t know you” to support a reason for stopping you. In the video, the officer admitted that under the laws of that state, it was not illegal for the law student to possess the gun and the officer could not provide any facts that would support a reasonable suspicion of criminal activity. Basically, a law enforcement officer cannot just walk up to you because you are doing something that you are legally entitled to do and demand you to show proof that you are legally able as in this case possess a gun.

Another example would be, if you are drinking a beer at a bar, an officer cannot walk up to you and demand to know if you are on probation that would prohibit you from drinking alcohol, such is the case for many DUI convictions. There would be no bases for that question and this conduct by law enforcement is unreasonable and illegal.

Finally, towards the beginning of the video the officer conducted what is commonly called a “Terry Pat Down”. This is quick search of a person to ensure that he or she does not have any weapons on him or her. The courts allow this conduct to protect officers. The search is to be limited to the outer portions, no squeezing areas and only for weapons. The law student correctly told the officers that he would not consent to this search. If the officer has no reasonable belief that the person is a danger and there was nothing that the law student did to support the belief, this is an illegal search.

The officers was trying to get the law student to consent to the search and answering his questions. If you talk to the officer or allow the search the courts will find that the conduct was consensual. If you tell the officer that you do NOT consent to the search or DO NOT want to talk with him, this more than likely is an illegal detention. The next post in this series will talk about the different types of law enforcement contact that you could face.

Video link https://www.youtube.com/watch?v=pAlRDGUx-B8
Next, Part Two of The Law Student Knows – Now You Know Too.

If you need additional information or believe that you have been the victim of illegal police contact or are being accused of a crime, contact us at (303) 747-4686 or click FREE CONSULATION.

Posted by Laurie Schmidt | in arrest | Comments Off on The Law Student Knows – Now You Know Too

DUI REFUSAL Should You Take the Test

Wednesday, Jul. 30th 2014

Should you Refuse a Blood or Breath Test and Be Considered a DUI Refusal?

Arguably the most important piece of information in a Colorado DUI case for the prosecution is the blood alcohol content (BAC) or the drug levels. If you are arrested for Driving Under the Influence of Alcohol or Drugs you have three options:

Option 1:       You can consent to test of your blood for alcohol content

Option 2:       You can consent to a test of your breath for alcohol content

**If drug DUI you an consent to the test of the officers choice

Option 3:       You can refuse all tests (this will be called a DUI refusal)

 ** Unlike with alcohol, if you are suspected of DUI of drugs the officer will ask you to take a test of your blood, urine, or saliva. You do not get to choose the test, the officer does.

EFFECT OF A DUI REFUSAL ON DMV

 The Colorado DMV revokes licenses for one year, if the DMV finds by a preponderance of the evidence that the officer had probable cause to request the test and that you refused such a test (often times this is called a DUI refusal). The preponderance of the evidence standard is considerable less that beyond a reasonable doubt. It means more likely or at least 51%.

The DMV has the ability to revoke your licenses because it is an administrative action, not a criminal court action. This means that the DMV action is separate and apart from any potential court case that you may have from a DUI refusal of a blood or breath test.

EFFECT OF A DUI REFUSAL ON YOUR COURT CASE

 A DUI charge is more difficult for the government to prosecute without a BAC or drug level. This is not to say that the case would not go forward with prosecution, it is just a harder case.   According to our laws, if you refused a test then the jury can consider the fact that you refused the test as evidence that you were driving under the influence of alcohol or drugs. Typically, in these cases the manner of driving and reason for the stop become very important.

I AGREED TO TAKE THE TEST, WHY AM I STILL A DUI REFUSAL

Colorado’s Express Consent Law makes you do two things, if you agree to take the test. First, submit to the test and second corporate in the administration of the test. The following situations can result in the officer accusing you of a DUI refusal:

  1. For alcohol DUI only, you have a right to choose either a blood or breath test. You may not change the test that you selected. If you choose blood you may not switch to a breath test and vice versa.
  2. You must cooperate in the performance of the test.
  3. You do not have a right to talk to an attorney before deciding what, if any, test to take.
  4. For a blood test, you must agree to release of blood to the police officer, if it is drawn at a hospital.

If you, a friend, or family member is accused of DUI or a DUI refusal contact us today for a free case evaluation at (303) 747-4686 or by clicking here.  Don’t assume that you have no defense, don’t pled guilty or listen to the prosecution before you call us.  We will take the time to explain the process an any potential defenses that you may have.

 

 

Posted by Laurie Schmidt | in arrest, DUI arrest, DUI laws, DUI Post | Comments Off on DUI REFUSAL Should You Take the Test
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