“Stand up to your obstacles and do something about them. You will
find that they haven't half the strength you think they have.”
-Norman Vincent Peale
The Colorado Department of Transportation reports over 1,160 Driving Under
the Influence (DUI) and Driving While Intoxicated (DWI) citations issued
so far for the year 2016 - a 5% increase from last year, and we are only
halfway through. After being faced with such charges, many people feel
helpless and uncertain about their future. What they often don’t
realize is that there are several ways to fight the charges, and it is
crucial to take immediate action. The time between receiving the initial
citation and facing the charges against you in court will probably pass
by more quickly than you’d expect, and it is therefore critical
to immediately analyze the arrest to determine whether grounds exist to
challenge its legality. To assist with this analysis, we have put together
several questions to consider after being charged and/or arrested for
Driving Under the Influence.
Questions to Ask in the Aftermath of a DUI ARREST
1. Was the Stop Legal?
Most DUI Citations are a direct result of a lesser traffic infraction,
such as speeding, following too closely, expired license plate, missing
headlight, driving very slowly, or swerving between lanes. After pulling
someone over, the police must be able to clearly identify the reason behind
the traffic stop. This reason must also be documented in the subsequent
arrest incident report. If the stop that resulted in your arrest for driving
under the influence was illegal, then any evidence collected in the police’s
investigation will not be able to be used against you in court and the
charges will likely be dismissed.
2. Was the Field Sobriety Test Flawed?
Several field sobriety tests, such as the ability to recite the alphabet
backwards or the walk-and-turn, have been successfully proven to be flawed
in their ability to determine the level of a person’s impairment.
Several factors can influence the reliability of such tests, such as being
overweight, icy weather conditions, poor coordination, physical disability,
or unstable shoes. With this degree of unreliability, it may be possible
for you to discredit any evidence collected during these field sobriety tests.
3. Is there any available footage of the incident?
Sometimes the footage from a police officer’s dashboard contradicts
the facts stated in the officer’s arrest report. Obtain any footage
available from the scene of the arrest and the police holding area. If
the events from the videotape do not match up with those accounted for
in the police report, you may be able to contest the legality of the arrest.
4. Were the breathalyzer results accurate?
While a breathalyzer test results are often a more reliable indicator of
a person’s level of intoxication than field sobriety tests, they
too have their flaws. There are several variable independent to the amount
of alcohol a person consumes that can affect the reading of a breath test, such as:
Improper Calibration and Maintenance: Without proper calibration and regular maintenance, breath tests readings
may artificially heighten a person’s actual level of intoxication.
Malfunction: The equipment used for breath testing is not infallible. While it is admittedly
rare, studies have shown that this equipment can be defective and provide
Human Error: Incorrect administration of breath tests lead to incorrect readings. Carelessness,
distraction or inexperience on the part of the administrating officer
could result in defective readings.
Medical Conditions: Certain health conditions and body traits sometimes cause people to naturally
produce body fluids that breath tests mistake for ingested alcohol.
Over-the-Counter Medicines: Since most breath tests are unable to distinguish between different types
of alcohol, the consumption of mouthwash or other hygienic products can
also produce heightened BAC test results.
5. Was the blood test properly administrated?
Blood alcohol content (BAC) tests are generally considered to be the most
reliable indicator of a person’s level of intoxication; however,
this method is also not infallible. There are several possible errors
that can skew the results of a BAC into a false positive, which will often
cause the case to be dismissed.
Lack of experience or training in administering the blood test. Colorado requires people who draw and analyze the blood of others to receive
proper training and licensure. If the person administering the blood test
has not completed the prerequisite courses or has an expired license,
you may be able to challenge the credibility of the test results.
Old or Ill-Maintained Equipment. Given the nature of blood work, precision throughout the testing process
is critical for accurate results. Just as with breathalyzer equipment,
ill-maintained equipment may produce artificially heightened readings.
Breaking the Chain-of-Custody. Once your blood is drawn, it will undergo several storage transfers. Any
unaccounted break in the chain of custody could compromise the accuracy
of the test results.
6. Were You Read Your Rights?
If an officer fails to read you your rights during the course of a driving
under the influence arrest, any evidence obtained during the arrest will
not be able to be used against you in court.
7. Did You Receive an Implied Consent Warning?
Although you may risk license suspension if you refuse to undergo a breathalyzer
test, it is your right to do so and an officer may not demand, threaten
or coerce you to consent to taking the test.
8. Were you arrested at a DUI checkpoint?
Colorado is one of thirty states that regularly employ sobriety checkpoints.
While the Supreme Court has upheld the constitutionality of such checkpoints,
the Supreme Court also prescribed several protocols that law enforcement
officials must follow in order for the checkpoints to be considered legal.
For instance, police are not allowed to pull a motorist over for evading
the checkpoint by turning around or exiting the highway, as long as the
means of doing so is not a traffic infraction in and of itself.
If any one of the mandated procedures goes unobserved, you may be able
to argue that the stop was illegal. Additional protocols include:
Pre-Planning - Law enforcement officials are not allowed to conduct DUI
checkpoints impulsively. The checkpoint site location and the specific
protocols to be followed must first be reviewed by a judge and approved
through an administrative order.
Uniformity - Each stop must be conducted according to the agency’s
predetermined plan. The protocol will vary depending factors such as traffic
volume, visibility, and the anticipated effect on traffic flow. If the
protocol does not require every car to be stopped, it must provide for
a non discretionary means of conducting the checkpoint, such as pulling
over every tenth car.
High Visibility - Motorists must receive advance notice that they are entering
a DUI checkpoint area through the visible presence of uniformed officers
and their marked vehicles, portable or permanent lighting, safety cones
and/or warning signs.
Alternative Plan - If variables such as inclement weather or traffic congestion
make the preplanned method of conducting traffic stops impossible, the
officers are allowed to use an alternative method so long as the reason
is well-documented and the contingency method is preplanned.
Investigation Techniques - The uniformed officers involved in the checkpoint’s
operation should be selected based on experience and training. It is important
for the officers to follow prescribed investigation techniques, such as
asking uniform questions aimed at dividing your attention by requiring
you to do two things at once, i.e. retrieving your license and registration,
or perform standard field sobriety tests.
If you find yourself overwhelmed in the aftermath of a DUI/DWI arrest,
take comfort in the fact that you do not have to go through the process
alone. The experienced and knowledgeable attorneys at Clawson & Clawson
are here to aggressively defend your rights and help you obtain the most
favorable possible outcome. Call (719) 634-1848 to schedule a free initial
consultation with a DUI defense attorney today.
Action is a great restorer and builder of confidence. Inaction is not only
the result, but the cause, of fear. Perhaps the action you take will be
successful; perhaps different action or adjustments will have to follow.
But any action is better than no action at all.
– Norman Vincent Peale