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I. WHAT
MUST I DO IMMEDIATELY TO PRESERVE MY DRIVING PRIVILEGES?
If you refused to submit to a breath or blood alcohol test
or your test results showed a blood alcohol content of 0.08 or more, then the police officer should have seized your driver’s
license and given you a notice that your driver’s license will be revoked for 90 days to 1 year or more.
On the bottom
of that notice should be a permit allowing you 7 days to legally drive and notifying you that you have 7 days to request a
hearing from the Department of Motor Vehicles (DMV) to challenge the revocation of your license or to seek award of a restricted
license.
If you apply for the hearing within the 7 days, your driving privileges are extended until the DMV holds your
hearing and issues a final ruling on the revocation.
WARNING: If you delay and fail to apply for the hearing within
the 7 days, your driving privileges will be automatically revoked after the 7 day deadline lapses and you may no longer be
eligible to apply for a hearing unless you can show you were unable to apply for the hearing within 7 days. If you engage
him early enough, Mr. DePalma can assist you in applying for your DMV hearing and then represent you at the hearing.
At
the DMV revocation hearing, there are a variety of legal defenses that may be available to reverse your driver’s license revocation.
Mr. DePalma can help you identify those defenses and then argue them convincingly on your behalf at the hearing.
If
you do not have sufficient legal defenses to reverse your driver’s license revocation, then Mr. DePalma can assist you in
seeking an award of either a restricted or probationary driver’s license during the period of your revocation. Both options
have costs and limitations that you can discuss with Mr. DePalma.
II. WHAT OTHER COMMON MISTAKES SHOULD I AVOID AFTER
BEING ARRESTED FOR ONE OF THE DRIVING UNDER THE INFLUENCE CRIMES?
1) NOT TAKING YOUR DUI OR DWAI CHARGES SERIOUSLY
– DUI or DWAI are not just traffic tickets, they are criminal charges. If you are convicted, you are facing jail time, fines
and a revocation of your driver’s license. Once you get your driver’s license back, your auto insurer is likely to raise your
rates significantly. Moreover, a criminal DUI conviction will make it more difficult to get many types of jobs and nearly
impossible to get any sort of commercial driving job.
2) ACCEPTING THE DISTRICT ATTORNEY’S FIRST PLEA OFFER - The District
Attorney usually makes a standard initial plea offer which involves you pleading guilty to a DUI or DWAI charge in exchange
for something less than the maximum penalty for the DUI charge and perhaps dropping some of the additional minor charges.
These standard offers are based on what they know about your prior driving and criminal record and often NOT on the strength
or weakness of the case against you. Rather, these standard plea offers are made to save the Assistant District Attorney from
having to work to prove the case against you. Until you are able to evaluate the evidence and your legal defenses, there is
no way to tell if the DA has a solid case against you or is just bluffing.
3) DECLINING TO HIRE AN ATTORNEY TO REPRESENT
YOU – It is very difficult for a lay person to determine if the evidence against them can be excluded, whether the admissible
evidence is strong enough to lead to a criminal conviction, and how to navigate the maze of procedural rules of the criminal
court and the DMV. Attorneys are expensive. There is no way around that. However, the costs of an unnecessary criminal conviction
or revocation of your driver’s license are even higher. You have to weigh the costs and benefits of seeking counsel, but don’t
short change yourself.
4) TALKING TO ANYONE BUT YOUR ATTORNEY ABOUT THE CASE AGAINST YOU – Anything you discuss with
your attorney concerning the charges against you is almost always protected by the attorney client privilege. However, admissions
you make concerning the case to nearly all of your family and friends are discoverable by the District Attorney and can be
used against you in a court of law. Consequently, when you are acting as your own attorney, it is very difficult to safely
consult with anyone to evaluate your case.
5) FAILING TO APPEAR AT COURT – If you miss a court hearing, the court will
issue a bench warrant for your arrest and confinement in jail. As a result, you will spend some more time in jail and probably
have to pay for a more expensive bond to be released again. If you cannot pay for the bond, you stay in jail until the trial
is over and you have served any sentence imposed. If you hire an attorney, you won’t miss any deadlines or unknowingly forfeit
your legal rights in this manner.
6) DRIVING WITH A REVOKED LICENSE – If your license was seized and revoked because
you declined to take a breath or blood alcohol test or your test results were at or above 0.08, then you are committing an
additional crime every time you drive. Under this revocation, there is no exception for you to commute to work, pick up groceries
or children, or even to go to the doctor in an emergency. If you are caught and convicted of driving with a revoked license,
you are facing 45 days or more in jail! This is why it is critically important for you to get a hearing before the DMV to
either reverse the revocation or obtain a probationary or restricted driver’s license.
III. WHAT CAN MY ATTORNEY DO
TO HAVE THE COURT EXCLUDE ILLEGALLY OBTAINED EVIDENCE AGAINST ME?
If the investigating officer made mistakes in investigating
the case or arresting you, then your attorney may file some or all of the following motions to exclude the illegally obtained
evidence against you:
1) MOTION FOR DISCOVERY OF EVIDENCE. This motion compels the District Attorney to produce evidence
the state plans on presenting at trial against you as well as evidence which exonerates you or mitigates the charges against
you.
2) DEPOSE THE POLICE OFFICERS. A deposition is where the officer is placed under oath and your attorney asks
the officer questions about his or her investigation and arrest of you. Depositions are very useful in discovering evidence
that the police officer intentionally left out or neglected to include in his or her report.
3) MOTION TO EXCLUDE EVIDENCE
- UNCONSTITUTIONAL SEIZURE OF YOUR PERSON. The police officer needs an articulable reasonable suspicion that you committed
or are committing a crime before he or she can stop you. If the court finds that the officer did not have reasonable suspicion
to stop you, the evidence the officer gathered after that stop can be excluded from trial. Examples of illegal stops can include:
>
Stopping your car based on an anonymous tip.
> Stopping your car just because the officer thinks you look suspicious
or for no reason at all.
> Stopping your car because you are driving slow or halted in the middle of the street. Unless
these actions are violating a traffic law, they are not legal grounds for the police officer to stop you.
> Stopping
your car because of weaving within a lane. If you are driving within a lane, you are not committing a traffic offense. However,
weaving is evidence that you may be DUI or DWAI. Even so, some cases have held that a single weave within a lane is not reasonable
grounds to believe that you are DUI or DWAI.
> Stopping your car because you did not obey a street sign or lane marking
which did not conform to the Manual for Uniform Traffic Devices.
> Stopping your car just to check your driver’s license
or registration.
> Stopping your car because the police officer mistakenly believes that you have violated the law.
The actual facts must indicate that you have or are violating the law.
> Stopping your car at an illegal roadblock.
The courts have allowed police to stop cars randomly to conduct DUI investigations if the police follow several legal requirements.
If the police have violated one or more of those requirements, the stop may be illegal and the evidence gathered after the
stop can be excluded.
The police officer then needs probable cause to believe that you have committed a crime before
he or she can arrest you. Likewise, if the court finds that the officer did not have probable cause to arrest you, the evidence
the officer gathered after that stop can be excluded from trial. Examples of illegal arrests can include:
> Stopping
your car longer than it takes to reasonably conduct an investigation. The police cannot hold you for an unlimited period of
time.
> Arresting you based on your statements without any other evidence that you are guilty of committing a crime.
This sometimes happens when the police officer did not personally see you drive a vehicle.
4) MOTION TO EXCLUDE EVIDENCE
- UNCONSTITUTIONAL SEARCH OF YOUR VEHICLE OR PERSON. The officer needs probable cause or your permission to search your vehicle
or person. If the court finds that the officer did not have probable cause or your permission to search your vehicle, the
evidence the officer gathered from that search can be excluded from trial.
5) MOTION TO EXCLUDE EVIDENCE -BREATH OR
BLOOD ALCOHOL TEST. The results of a breath or blood alcohol test are usually the most damaging evidence against you. Results
above the legal limit can be used by a jury to presume that you were DUI and can be the basis for the DMV to revoke your driving
privileges. Juries love numbers because they appear to be objective evidence of your guilt. Therefore, it is vital to your
legal defense that everything reasonable be done to exclude this evidence if possible. Examples of grounds to exclude evidence
of breath and blood alcohol test include:
> Requiring you to submit to a breath or blood alcohol test after an illegal
stop or arrest.
> Requiring you to submit to a breath or blood alcohol test without reasonable suspicion that your
driving was impaired.
> Failure to follow the rules in the Department of Health intoxilyzer operation manual.
IV.
WHAT DOES THE DISTRICT ATTORNEY HAVE TO PROVE BEYOND A REASONABLE DOUBT AT TRIAL BEFORE A JURY CAN CONVICT ME OF ONE OF THE
DRIVING UNDER THE INFLUENCE CRIMES?
Under the law, each crime is made up of smaller parts called elements. The DA has
to prove each and every element beyond a reasonable doubt. If the DA fails to prove even one element beyond a resonable doubt,
the jury is instructed to acquit the defendant of the charged crime.
For example, the crime of DUI below has five elements
that the DA has to prove beyond a reasonable doubt. If the DA can prove all of the elements below except that the defendant
was driving a vehicle, then the jury should acquit the defendant of the charge of DUI at trial.
What follows are the
elements required to prove DUI, DWAI, DIU-Drugs and DWEAC:
DUI:
1. That the defendant (you)
2. in the State
of Colorado
3. at or about the date and place in the charging documents
4. drove a vehicle
5. while under the influence
of intoxicating liquor.
DWAI:
1. That the defendant (you)
2. in the State of Colorado
3. at or about
the date and place in the charging documents
4. drove a vehicle
5. while his or her ability to operate a vehicle was
impaired by the consumption of alcohol.
DUI – DRUGS:
1. That the defendant (you)
2. in the State of Colorado
3.
at or about the date and place in the charging documents
4. knowingly
5. drove a vehicle
6. a) while under the influence
of a controlled substance or drug to a degree that rendered the driver incapable of safely operating a vehicle OR
b) while
the driver’s ability to operate a vehicle was impaired by the use of a controlled substance or drug.
DUI PER SE
1.
That the defendant (you)
2. in the State of Colorado
3. at or about the date and place in the charging documents
4.
drove a vehicle
5. when the amount of alcohol in the driver’s blood is 0.08 or more at the time of the commission of the
alleged offense, as shown by a chemical analysis of the driver’s blood or breath.
V. WHAT ARE THE PENALTIES I AM FACING
IF A JURY CONVICTS ME OF ONE OF THE DRIVING UNDER THE INFLUENCE CRIMES?
1) DUI OR DUI PER SE - FIRST OFFENSE
Jail:
No minimum mandatory sentence, but could receive up to one year.
Community Service: 48 hours minimum up to 96 hours.
Fines:
$300 to $1,000.
Probation: Up to two years.
Statute: C.R.S. 42-4-1302 (9)(a)(1)(2001).
2) DUI or DUI PER SE -
PRIOR CONVICTION OF DWAI
Jail: 7 day minimum mandatory sentence up to one year.
Community Service: 56 hours minimum
up to 112 hours.
Probation: Up to two years.
Fines: $450 to $1,500.
3) DUI or DUI PER SE - PRIOR CONVICTIONS
FOR DUI AND OTHER OFFENSES
Jail: 10 day minimum mandatory sentence up to one year.
Community Service: 48 hours minimum
up to 120 hours.
Probation: Up to two years.
Fines: $500 to $1,500.
Statute: C.R.S. 42-4-1301 (9)(a)(ll)(A)(2001).
4)
DUI, DUI PER SE or DWAI - BLOOD ALCOHOL 0.17 OR MORE.
Jail: 10 day minimum mandatory sentence up to one year.
Community
Service: 48 hours minimum up to 120 hours.
Probation: Up to two years.
Fines: $500 to $1,500.
Statute: C.R.S. 42-4-
1301 (9)(a)(ll)(B)(b)(IV)(2001)
Statute: C.R.S. 42-4- 1301 (9)(a)(3)(2001).
5) DWAI - FIRST OFFENSE
Jail: No
minimum mandatory sentence, but could receive up to 180 days.
Community Service: 24 hours minimum up to 48 hours.
Probation:
Up to two years.
Fines: $100 to $500
Statute: C.R.S. 42-4-1301 (9)(b)(l)(2001).
6) DWAI - PRIOR CONVICTION FOR
DWAI
Jail: 5 day minimum mandatory sentence up to one year.
Community Service: 48 hours minimum up to 86 hours.
Probation:
Up to two years.
Fines: $300 to $1,000.
Statute: C.R.S. 42-4-1301 (9)(b)(ll)(2001).
7) DWAI - PRIOR CONVICTIONS
FOR DUI AND OTHER OFFENSES
Jail: 8 day minimum mandatory sentence up to one year.
Community Service: 52 hours minimum
up to 104 hours.
Probation: Up to two years.
Fines: $400 to $1,200.
Statute: C.R.S. 42-4-1301 (9)(b)(lll)(2001).
NOTE:
These penalties are for illustrative purposes only. Recently passed laws or local court costs may vary these penalties in
your case.
VI. HOW DO I CHOOSE A DEFENSE ATTORNEY?
1) DON’T RELY ON FLASHY ADVERTISING. Paying a high priced
marketing firm to publish large yellow page ads does not mean that the attorney is experienced or right for you. The DePalma
Law Firm believes that your legal fees are better spent on your defense and not on expensive advertising.
2) MEET WITH
THE ATTORNEY IN PERSON. The only way you can truly get the measure of an attorney is to meet them in person. This is why The
DePalma Law Firm offers you a free consultation.
3) DOES THE ATTORNEY HAVE THE NECESSARY EXPERIENCE IN DUI? Beyond
the attorney’s resume, you can tell this by the questions asked by the attorney and by how the attorney answers your questions.
DUI is a complex area of the law with many potential defenses. Therefore, the attorney should be asking you most or all of
the questions you will find on the DUI Questionnaire on our website.
4) AM I COMFORTABLE WORKING WITH THIS ATTORNEY?
Being charged with a serious criminal offense is not easy. You will likely have a lot of questions or may simply need reassurance
on occasion. Mr. DePalma will be there for you. He will return your calls, answer your questions and help you through this
rough patch in your life.
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