Written by attorney Linda Marie Lee

DUI and DUID (Marijuana) - The Basic Tips That the DA Doesn't Want You to Know

In Colorado, a person driving with a BAC (blood alcohol content) of .05 to .08 is considered to be driving while ability impaired by alcohol ("DWAI"). A DWAI conviction is punishable by a maximum fine of $500 and 6 months jail. In terms of your license, 8 points will be assessed on your license. A person is considered to be driving under the influence of alcohol and/or drugs if his/her BAC is at .08 to .20. Driving Under the Influence carries with it a maximum penalty of 1 year jail, $1000 fine and 12 points on your license (which is an automatic suspension for 1 year). If a person is driving under the influence with a BAC of .2 or above or has a prior, there is a mandatory jail sentence.

Depending on which county you are in, generally speaking, your first alcohol-related offense will be punished by probation. However, some jurisdictions (judges) give jail on the first offense. Your sentence is generally determined by how many prior alcohol-related driving offenses you have received and statutory guidelines.

TIPS: SILENCE IS GOLDEN! You are not required to admit whether you've been drinking or not, so don't! If you are driving under the influence of marijuana, you are also not required to admit whether you've been smoking. Here's a tip that the prosecutor doesn't want you to know: ask for a urine test! If you receive a urine test if accused of driving under the influence of marijuana, the prosecution's expert witness will not be able to tell when you consumed the marijuana since it stays in your system for 30 days. Therefore, she will not be able to testify as to whether you were actually under the influence or not. A urine test may come back with a positive result for THC but only a blood test can reveal whether you are really under the influence of marijuana and when you consumed the marijuana. However, Denver police will most likely require a blood test. Yet, not all jurisdictions have caught on to this loophole.

Moreover, if you retain an expert witness they can test the urine for "active" THC. Whereas, the State will test for "inactive" THC. According to the expert I use, the period of "influence" lasts on 2 hours after consumption of marijuana. Thus, if you consumed marijuana earlier in the day, the expert can re-test your urine for "active" THC and will see if you consumed within 2 hours of the stop or not.

If you are pulled over for driving under the influence of alcohol, you can refuse the roadside test and your license will not be suspended!! Under the Colorado Express Consent Law, your license can only be revoked for refusing a chemical test (blood or breath test- not the roadside tests). So after refusing the roadside testing, call my office immediately and I will provide you with advice about the chemical test.

Also, if all the officer observed is a traffic infraction and maybe smelled odor of alcohol, but has no admission that you were drinking and no roadside tests, there is an argument to be made that he had no probable cause to arrest and any subsequent tests could potentially be dismissed.

If you take the roadside test, Ms. Lee received training on the roadside tests and learned how to argue against such tests in trial regarding their reliability. She was trained on the U.S. Department of Transportation National Highway Traffic Safety Administration Driving While Intoxicated Detection & Standardized Field Sobriety Testing. This is the same training the police receive with advice from seasoned lawyers specializing in DUI defense on how to beat the tests at trial. There are 3 roadside maneuvers given in Colorado: Horizontal Gaze Nystagmus Test (HGN)- tests for involuntary jerking of the eye as the eye gazes to one side, One-Leg Stand Test (divided- attention test), and the Walk and Turn Test (divided-attention tests). Each test attempts to test your sobriety. However, the tests are not 100% accurate!!! THE HGN test is 77% accurate with 4 or more clues, so if less clues less accurate, and 23% of the time this test is wrong. The Walk and Turn Test is only 68% accurate, which means it is wrong 32% of the time. The One-Leg Stand Test is only 65% accurate, which means it is wrong 35% of the time. Also many things other than alcohol can contribute to failing these tests. For example, the test can be deemed less valid if there is any motion which can distract the person taking the test. The manual is clear: police are instructed to remain motionless as possible during the test so as not to interfere. Thus, visual distractions- such as cars moving on the road and light emitting from passing cars- can affect the reliability of the test! Also, people over the age of 65, with back or leg problems, 50 lbs. overweight, and those with ear infections are likely to have a more difficult time with these sorts of tests.

If the officer tries to give you a portable breath test (PBT) on the side of the road, such test results are not admissible at trial. However, such results can establish probable cause to arrest. Refusal of the PBT cannot be held against you since the roadside testing is voluntary. Now, refusal of a chemical test (breath or blood) can be used against you as evidence of guilt at trial. Call my office before agreeing to take or refusing the chemical test!

A person with diabetes can exhibit the same symptoms as a person who is intoxicated if his/her sugar is low. Often cops forget to look at the whole picture. Rather, they assume they know why your breath smells like alcohol but, at trial, evidence of diabetes can help raise reasonable doubt.

While there is no guarantee, an expert witness can help seal the deal on a not guilty verdict in driving under the influence cases. Having an expert witness testify on your behalf at trial is extremely effective and should be seriously considered if proceeding to trial.

Also, just because you are licensed to consume medical marijuana that does NOT mean you are licensed to consume that marijuana and then drive!

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