LEGAL GUIDE
Written by attorney Sean Stephen Williams | Sep 26, 2013

Colorado DUI Statutes Part 2

Driving with Excessive Alcohol Content (DUI Per Se), C.R.S. 42-4-1301(2)(a)

You may have noticed that nowhere in the elements of DUI described in Colorado DUI Statutes Part 1 does the number .08 come up. This is because, in order to convict a defendant of a DUI, the prosecution does not have to prove that the person had consumed a specific amount of alcohol, just that the alcohol they did consume rendered them substantially incapable of safely operating a vehicle. This means that a person could be convicted of a DUI even if they only had a Blood Alcohol Content (BAC) of .01 so long as the prosecution shows that what little alcohol they did consume rendered them incapable of safely operating a vehicle. This is not to say that the public perception that a BAC of over a .08 constitutes being under the influence is erroneous, it’s just a separate charge known as “DUI Per Se". The elements for DUI Per Se are laid out in Subsection (2)(a) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes and are as follows:

  1. That the defendant; This element is the same as DWAI and DUI. See Colorado DUI Statutes Part 1.
  2. In the State of Colorado, at or about the date and place charged; This element is the same as DWAI and DUI. See Colorado DUI Statutes Part 1.
  3. Drove a vehicle; This element is the same as DWAI and DUI. See Colorado DUI Statutes Part 1.
  4. When the amount of alcohol in his/her blood was 0.08 or more grams of alcohol per hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath, as shown by chemical analysis of such person's blood or breath within two hours after driving. You will notice that this element doesn’t say anything about a person’s ability to operate a vehicle. Even if a person’s driving was exemplary and the prosecution falls flat on its face in attempting to prove that they were incapable of safely operating a vehicle or that they’re ability to do so was even impaired to the slightest degree, they can succeed in proving a violation of this statute by merely presenting a credible chemical test that shows the person’s BAC was over a .08.

Again, this offense can be charged independently but it is often found charged alongside a DUI when a chemical test is available. However, unlike a DWAI, a DUI Per Se is not a lesser included offense to a DUI due to the fact that it contains an element not present in a DUI (i.e the element of a BAC of 0.08 or more grams of alcohol per hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath).

It is also important to note that the Colorado Legislature has recently approved a similar statute that creates a per se charge for driving with marijuana content of 5 nanograms per hundred milliliters of blood (marijuana cannot be detected by a breath test).

Minor Driving with Excessive Alcohol Content (Baby DUI), C.R.S. 42-4-1301(2)(a.5)(I)

This one’s for the kiddies. As we all know, the legal drinking age is 21 and, while minors can still be prosecuted under the above statutes, the legislature has seen it fit to craft a statute expanding culpability for persons under the age of 21. Informally referred to as a “Baby DUI", the elements can be found in Subsection (2)(a.5)(I) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes and are as follows:

  1. That the defendant; This element is the same as DWAI and DUI. See above explanation.
  2. In the State of Colorado, at or about the date and place charged; This element is the same as DWAI and DUI. See Colorado DUI Statutes Part 1.
  3. Drove a vehicle; This element is the same as DWAI and DUI. See Colorado DUI Statutes Part 1.
  4. While under twenty one years of age; This element is pretty self-explanatory. In order to sustain a conviction for a Baby DUI, the prosecution must show that the defendant was under 21 at the time of the offence.
  5. When his/her BAC is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving. This element is substantially similar to element four of DUI Per Se except it allows persons under the age of 21 to be convicted under this statute for a BAC below a .08. If a person under 21 has a BAC above a .05, they are generally charged and prosecuted under the DUI, DWAI and/or DUI Per Se Statutes.

A baby DUI is a less sever charge than a DUI, DWAI or DUI Per Se and can be a lesser included charge to DUI Per Se.

Inferences Which May be Drawn from Evidence of Blood Alcohol Content

Now it’s time for me to backpedal a little bit. Though BAC is not an element of DUI or DWAI, it does not mean that it is not evidence that can be used against a DUI/DWAI defendant notwithstanding a DUI Per Se charge. In fact, the jury may draw certain inferences from any BAC evidence and will be given the following instructions by the court:

In any prosecution in which the defendant is charged with driving under the influence of alcohol or driving while ability impaired by alcohol, the amount of alcohol in the defendant's blood at the time of the commission of the alleged offense, or with a reasonable time thereafter, as shown by chemical analysis of the defendant's blood or breath, gives rise to the following inferences:

(a) If there was at such time 0.05 or less grams of alcohol per [one hundred milliliters of blood as shown by chemical analysis of such person's blood two hundred ten liters of breath as shown by chemical analysis of such person's breath], it shall be presumed that the defendant was not under the influence of alcohol and that his ability to operate a vehicle was not impaired by the consumption of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per [one hundred milliliters of blood as shown by chemical analysis of such person's blood two hundred ten liters of breath as shown by chemical analysis of such person's breath, it may be inferred that the defendant's ability to operate a vehicle was impaired by the consumption of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood as shown by chemical analysis of such person's blood two hundred ten liters of breath, as shown by chemical analysis of such person's breath, it may be inferred that the defendant was under the influence of alcohol.

This article is for information purposes only. Though all contributors are duly licensed attorneys, th is article is not intende d as actionable legal advice and it should not be taken as such. If you or someone you know is or may be involved in litigation, it is important that you contact a licensed attorney in your area for advice specific to your case.

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