In Colorado, a person is guilty of a DUI if he or she operates a motor vehicle while under the influence of alcohol and/or one or more drugs, OR he or she operates a motor vehicle as an habitual user of any controlled substance. Colo. Rev. Stat. Ann. § 42-4-1301(1)(a)-(c) (West 2010).
The law states that in instances where THC is identified in a driver’s blood in quantities of 5ng/ml or higher, “such fact gives rise to permissible inference that the defendant was under the influence.”
Affirmative Defense
The fact that any person charged is or has been entitled to use one or more drugs under the laws of this state, including, but not limited to, the legal or medical use of marijuana shall not constitute a defense against any charge of violating this subsection. Id. § 42-4-1301(1)(e).
Implied Consent
- A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person’s breath or blood 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, habitual user, or UDD. Id. § 42-4-1301.1(2)(a)(I).
- If a person refuses to take or to complete any test or tests and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial. Id. § 42-4-1301(6)(a)(III)(d).
- Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver’s attorney on request. Id. § 42-4-1301 (6)(h)(i)(III).
- The department shall revoke the license of a person for refusal of test for one year for a first refusal, two years for a second refusal of test and three years for a third or subsequent refusal. Id. § 42-2-126(3)(c)(I).
- Generally, an arrested person has no right to consult with an attorney before taking a chemical test. Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984).
- When an arresting officer invokes the sanctions of the implied consent law by requesting the driver to submit to chemical testing, the officer has a corresponding duty to comply with the driver’s request for a blood test. People v. Gillett, 629 P.2d 613 (1981).
Penalties
- First offense (DUI, DUI per se, or habitual user) – imprisonment in the county jail for a mandatory minimum of five days but no more than one year; fine of at least six hundred dollars, but no more than one thousand dollars; at least forty-eight hours but no more than ninety-six hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.Id. § 42-4-1307(3).
- First offense (DWAI)* – imprisonment in the county jail for a mandatory minimum of two days but no more than one hundred eighty days; fine of at least two hundred dollars but no more than five hundred dollars; at least twenty-four hours but no more than forty-eight hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law. Id. § 42-4-1307(4).
- * “Driving while ability impaired” or “DWAI” means driving a motor vehicle when a person has consumed alcohol, one or more drugs, or a combination of both, that affects the person to the slightest degree which fails to meet the level for DUI impairment. There is only a sentencing disparity when it comes to the first offense. After the first DUI or DWAI each subsequent DUI or DWAI is punished without distinction.
- Second offense – imprisonment in the county jail for a mandatory minimum ten consecutive days but no more than one year; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(5).
- Third and subsequent offense – imprisonment in the county jail for a mandatory minimum of sixty consecutive days but no more than one year; mandatory participation in a court-ordered alcohol and drug driving safety education or treatment program; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(6).
Sobriety Checkpoints
Sobriety checkpoints are permissible in Colorado under both the state and federal Constitution.
- In light of the state’s substantial interest in combating drunk driving, sobriety checkpoint was not “unreasonable” under Fourth Amendment. The stops averaged no longer than three minutes and were found to be a relatively minor burden on motorists. Checkpoint was held permissible when officer did not stop vehicles that turned around to avoid checkpoint. People v. Rister, 803 P.2d 483 (Col. 1990).
Case Law
Stanger v. Colorado Dept. of Revenue, Motor Vehicle Div., State of Colo., 780 P.2d 64 (1989) — An arresting officer has the discretion to demand a driver to submit to tests in order to reveal the presence of drugs if driver is suspected of DUI-drug offense. The driver has no right to choose which test.
Cox v. People, 735 P.2d 153 (1987) — Since driver may have reason for refusing to submit to test that is unrelated to consciousness of guilt, inference of intoxication that is permissible from evidence of driver’s refusal to take blood or breath test is rebuttable.
Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984) — Generally, an arrested person has no right to consult with an attorney before taking a chemical test. If a defendant refuses to consent to testing before talking to an attorney, such behavior will generally be deemed a refusal.
Halter v. Department of Revenue of State of Colo., Motor Vehicle Div., 857 P.2d 535 (1993) – Officers’ request that driver undergo drug testing was reasonable where breath test showed no presence of alcohol but driver displayed various indications of intoxication. If an officer has probable cause to supported arrest and breath alcohol test, officer also may request that driver submit to drug test. If driver passes the breath test, drug use is a reasonable explanation for driver’s intoxication regardless of whether other evidence existed to support search for drugs.
Dayhoff v. State, Motor Vehicle Division, 595 P.2d 1051 (1979) — Driver not driving on public highway is not controlled by implied consent statute. Driver may refuse test without license suspension.
Thompson v. People, 510 P.2d 311 (1979) — Standard of proof for DUI is “substantially under the influence,” rather than intoxication to the “slightest degree”. The degree of intoxication must be substantial so as to render one incapable of safely operating a vehicle.