Frequently, when someone learns that I’m a criminal defense attorney with extensive experience in defense of Driving Under the Influence (DUI) cases, I’m asked a many questions about all aspects of DUI cases including: arrests, prosecutions, defense and sentences.  Very often, I’m asked about what type of evidence leads to people getting convicted of DUI or DWAI.   People ask me questions about stops by the police,  what suspects say that harm their case, what they should not have said, the arrest, roadsides, PBT’s, blood tests, breath tests, DMV consequences and, of course, the process in criminal court and possible sentences.   There are a wide variety of issues to consider in DUI and DWAI cases and each case has its own unique set of variables. This blog will address what leads to people getting convicted of DUI cases in criminal court.

One of the main things I see that leads to DUI or DWAI convictions, is that Defendants, after they have been pulled over, either through their words or physical conduct or both, turn themselves into the District Attorney’s best evidence.  The DA is frequently in the advantageous position of using the Defendants words and conduct against themselves.  In defending people against DUI charges, often the biggest problem we have to deal with in a case is the Defendant’s own words of physical actions.

What evidence do people commonly create to be used against themselves after they have been pulled over by the police on suspicion of DUI? It almost always starts with people making the decision to ignore their right to remain silent and talk to the police.  On many, if not most cases, Defendants reportedly decide to make statements to the police officers that come back to haunt them.  The right to remain silent is a right that each and every one of us has under the United States Constitution. You are allowed to exercise that right!  When a suspect decides to talk to the police about their predicament after being pulled over, those words they speak can be used against them in Court (Issues surrounding Miranda advisements in this traffic stop context will be addressed in a forthcoming blog post).  Defendants should keep quiet. It’s a Constitutional right to do so.  The examples of people ignoring this advice are plentiful.  First, on almost every single case we see in our office, the Police Officer reports that a suspect had “bloodshot, watery eyes, slurred speech and an odor of an alcoholic beverage”.  I think it’s fair to say that phrase appears in 99% of all DUI police reports. So when a Defendant speaks to the police, they can almost be guaranteed that the Officer’s report will say that they did so with “slurred speech” and, that while they were speaking the Officer could “smell the odor of an alcoholic beverage”.  In addition, on too many occasions to count, Defendants are reported to have said, “I only had two (or three, or four) drinks tonight”.  I once had a case in which a defendant was stopped while driving and the police suspected he may have been drinking. They asked him to perform roadside sobriety maneuvers, which he refused.  He also refused to answer the officer’s insistent questions about whether he had consumed alcoholic beverages.  He was subsequently arrested and asked to complete a chemical test of his blood.  He agreed and as the EMT was preparing to draw his blood for a chemical analysis he exclaimed “you all are going to find out that Budweiser comes in red.”  From the DA’s perspective, that’s the best confession ever.  Most cases don’t have such colorful and unique confessions, but many if not most have statements by the accused which are detrimental to their cases.  These statements are almost always used in Court by the DA. What could these Defendants have said instead that would not have created evidence against themselves?  They could have simply said, “Respectfully, I’m electing to remain silent” or “I’m not willing to answer your questions.” Those statements cannot be used against a criminal defendant and no judge will let those statements be used against a criminal defendant charged with DUI. 

As criminal defense attorneys, the second area we almost always see in which Defendants frequently give the police and prosecutors evidence to use against them is when suspects decide to voluntarily try to complete roadside sobriety maneuvers.  In Colorado, roadside sobriety maneuvers are considered a search.  Because they are a search, they can only be performed upon probable cause (which doesn’t make practical sense in the roadside circumstance – the officers are unlikely to MAKE a suspect attempt roadsides involuntarily)  or upon a suspect voluntarily consenting to the search and attempting the roadside maneuvers.  That’s why in nearly every case the officer will ask “Sir, would you voluntarily agree to the performance of some roadside maneuvers so I can make sure you’re safe to drive home?”  The officer may have already decided that a suspect is going to be arrested for DUI, but before doing so, he wants to gather more evidence to be used in the prosecution.  If the officer gains voluntary consent from a suspect, and the suspect tries to do the roadsides, that is very likely to result in evidence to be used against the Defendant it Court.  To make matters worse, it is evidence that is based on the officer’s subjective evaluation of the Defendant’s performance on the roadsides and only in rare circumstances is there video evidence available to evaluate the officers’ subjective judging of the suspect’s performance.  Suspects do not have to consent to doing the roadside maneuvers and most would be better off if they had not done so.  Remember, the whole purpose of the roadsides is to gain evidence against  a suspect. Suspect’s have a choice and do not have to consent to this search.

Someone might ask whether there are circumstances where a person suspected of DUI elects to consent to the roadside maneuvers and passes them, thereby avoiding arrest and criminal prosecution.  I’m sure there are instances out there were individuals have done well on their roadsides and been allowed to drive home, but I’d wager they are very few and far between. Anecdotally,  I’ve only heard of this occurring a couple of times during the last 17 years. On the other hand,  I’ve seen roadside sobriety maneuvers used as evidence against a Defendant thousands of times. 

What about providing the police evidence by taking the blood or breath test? Testing can become an issue twice in a person’s encounter with the police investigating a DUI or DWAI.  The first time is on scene when officers may ask a suspect to take a Preliminary Breath Test (PBT).  The PBT is a little device about the size of a cell-phone.  A Defendant is not required to take this test – it is voluntary.  Unfortunately, suspects often don’t understand that it is voluntary and take it thinking they have no choice.  The other test is the test that is required under the Express Consent Statute.  This test is almost never taken at the scene of the stop.  It is taken at a secondary location.  If it is a breath test that is chosen, it will be conducted on a device about the size of an old typewriter.  If it is a blood test that is chosen, it will be conducted either at a hospital, fire station, or some other location to which a phlebotomist can respond.  It is almost always ill advised for Defendants’ to consent to the completion of a portable breath test (PBT) of breath alcohol during the roadside maneuvers.  Frequently, clients will tell me that they thought they had to take the PBT test. They don’t.  However, with the evidential breath or blood test which Colorado law says you are obligated to complete when an officer has probable cause to believe you are DUI or DWAI, refusing to take that test brings possible severe consequences through the Department of Motor Vehicles (also known as the Department of Revenue).   If a suspect refuses that test, and loses the DMV hearing on the matter, they will be subject to a one year loss of license without any provision for driving during that year on their first refusal.  It gets longer if it is a second or third refusal. 

While taking the evidential breath or blood test is, technically speaking, another example of Defendants providing evidence against them, in this case, it is most always better that they did take the test given the severe consequences for refusing the test.  The consequences of refusing are so severe, that taking the test is almost always the better decision.  However, under Colorado law, if a suspect takes a test and the result is above a .170 the law requires that driver have an interlock or blow device on their vehicle for two years after reinstatement of the license.  In addition, if you BAC is at or above a .200 you will have to serve a mandatory 10 day jail sentence if convicted. 

While both tests provide evidence against a Defendant, which test should a suspect take?  It is almost always better to take a blood test.   In Colorado, law enforcement is required to take two vials of your blood – one for the Department of Health to test and one for you to submit to your own independent lab for testing.  So you get a second opinion of the testing procedure, which you do not get with a breath test.   Also, with a blood test, it takes several weeks for the results to come back giving you precious time to figure out how you are going to fight the loss of your license with the DMV. 

If you have any questions concerning a DUI or DWAI, please don’t hesitate to contact the Denver Criminal Attorneys at Seawell and Buckmelter, PC.  We will aggressively represent you in your DUI or DWAI case. 

Vince Buckmelter

Seawell & Buckmelter, P.C.

7887 East Belleview, Suite 820

Englewood, Colorado 80111-6023

Office (303) 297-3200

Cell (303) 881-6426

www.seawellbuckmelter.com

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), a drug case out of Massachusetts, the Court addressed the issue in a distribution of cocaine case of whether the prosecution could prove results of forensic testing showing the presence of cocaine through “certificates of analysis” notarized by the analysts at the Department of Public Health.  Over the Defendant’s objection to the evidence on the grounds that admission of the certificates would deny his constitutional right to confrontation of a witness as that right has been expounded by the Court in its seminal case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the trial court admitted the certificates of analysis.  In a 5 to 4 decision, the United States Supreme Court reversed the Defendant’s conviction.    The Court held that under it’s analysis in Crawford, which was a domestic violence case murder case but had applicability to this drug case, the “Certificates” or affidavits were testimonial statements and that as a consequence the Defendant had the right to confront at trial the analyst making the statement that the substance seized was cocaine.

Colorado criminal law has a statute similar to the statute ruled unconstitutional in Melendez-Diaz.  This Colorado statute is used routinely by Colorado prosecutors to avoid the requirement of producing the live testimony of forensic analysts in many types of cases including drug or controlled substance violations, Driving Under the Influence of Alcohol or Drugs (DUI), Crimes of Violence, and any offense when the state relies upon forensic analysis to prove their case, including domestic violence or assault cases.   It is imperative that Defendants object to the introduction of such evidence through the use of affidavits or certificates in order to protect their Constitutional Right to Confrontation of a witness.  The failure to contest this type of evidence during a criminal trial could mean the difference between acquittal and conviction.  The attorneys at Seawell and Buckmelter, PC, the Denver Criminal Defense Attorneys, are well versed in the impact of the Melendez-Diaz decision and will use that decision to protect its clients’ Confrontation rights.

     Another significant decision was issued by the Supreme Court in Herring v. United States, 129 S.Ct. 695 (2009).  In Herring, the Court addressed the issue of whether evidence seized in that case (drugs and a handgun) by the police from an individual incident to his arrest on an erroneously  issued warrant could be used against him at trial.  The court reasoned that it could be used even though the search and arrest were “unreasonable.”  The Defendant was arrested on a warrant that had been recalled some five months earlier.  However, due to a “bookkeeping” error the warrant erroneously showed that it was “active.”  The Court reasoned that the error at issue was due to an isolated incident of “bookkeeping negligence” and that to justify exclusion of the evidence police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system [in letting guilty individuals go free].

     Herring has significant implications in criminal defense cases of many different types – be it domestic violence cases, assault cases or drug cases.  It is becoming more common for police to make stops, contact and arrest individuals on the basis of the existence of warrants on computerized databases or systems.  Our office has noticed that many traffic stops are routinely being justified on the basis of an automated license plate reader determining that the registered owner of the vehicle has a revoked or suspended license or revealing the existence of an active warrant for vehicle owner’s arrest.  It is also the experience of this office that these computerized records are routinely inacurate  or outdated. If a search is conducted based on the erroneous warrant and drugs or evidence of any other crime is found, invariably, prosecutors will attempt to rely on the Supreme Court’s reasoning in Herring argue that their cases based upon unlawful searches and seizures should not be thrown out as such errors were simply “isolated bookkeeping errors.”  In such instances, it is imperative that the accused be able to show that such errors are not isolated, but happen routinely and that the courts must exclude the illegally seized evidence to deter such shoddy police work in the future.   At Seawell and Buckmelter, PC, Colorado Criminal Defense Attorneys, we will never have our clients settle for the proposition that such errors, which result in the violation of their Fourth Amendment right to be free from unreasonable searches and seizures are isolated or justifiable on the basis that it is “close enough for government work.”

     Finally in Arizona v. Gant, 129 S.Ct. 1710 (2009), a controlled substance case out of Arizona, the United States Supreme Court made a very significant decision which greatly limits the scope of the police’s authority to search vehicles incident to the arrest of an occupant of the vehicle.  Prior to Gant, police had authority incident to the arrest of an occupant of a motor vehicle to search the passenger compartment of the vehicle (See, New York v. Belton, 453 U.S. 454 (1981).  The authority to search the passenger compartment extended to closed containers within the vehicle within the reach of the person arrested.  The court noted that in the last nearly 30 years since Belton was decided “countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result . . .”  The court then limited such blanket authority to search a vehicle incident to arrest by holding that the police may search a vehicle incident to an occupant’s arrest only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest.

     Police are routinely trained that they may engage in seemingly limitless searches of vehicles and closed containers within them anytime they arrest an occupant of the vehicle.  There is every reason to believe that police will continue to engage in such limitless searches despite the Supreme Court’s ruling in Gant.  It is therefore incumbent upon individuals charged with drug offenses or any other offenses stemming from searches of their vehicles and contents incident to arrest to challenge such searches based on the new limits placed on police by the Supreme Court in Gant.  At Seawell and Buckmelter, PC, the Denver, Colorado Criminal Defense Attorneys, we will ensure that our client’s right to be free from unlawful searches of their vehicle and contents incident to their arrest are protected.

Given the increased use of marijuana, it is becoming more common for the police to charge individuals with driving under the influence of marijuana.  Unlike in driving under the influence of alcohol cases, specific standards or quantification of levels of intoxication have not been formulated in the law for driving under the influence of marijuana.  As a consequence, the prosecution of such cases is much more difficult than with alcohol impairment.  In the DUI — alcohol case, nearly all toxicologists agree that at a .08 Blood Alcohol Concentration one’s ability to safely operation a motor vehicle is impaired.  In the DUI — marijuana case, there is no such consensus among toxicologists as to what level of THC concentration in one’s blood constitutes impairment such that one is unsafe to operate a motor vehicle. http://www.icadts.org/T2004/pdfs/94.pdf

In Colorado, many law enforcement agencies attempt to prove marijuana  impaired driving by the use of urine tests.  As most of us know, marijuana may be detected in urine up to about a month after last use for a chronic user.  Even those that use only rarely may still have THC metabolites in their urine  or blood days following their last use.  More significantly, the presence of THC metabolites in one’s urine or blood in no way proves impairment.  At most, such evidence establishes that the individual consumed marijuana at some point in the past.

Given the long shelf life of THC in urine and because the impairment effects of marijuana typically subside three to four hours after last use, the continued use of urine to “prove” impairment is just simply absurd.  If you are charged with Driving Under the Influence of Cannabis or Marijuana based on urine or blood test results, it is critically important that such results be independently examined by qualified forensic toxicologists to ensure accurate testing and interpretation.   At Seawell and Buckmelter, PC, the Denver, Colorado Criminal Defense Attorneys we will aggressively defend your rights in Driving Under the Influence of Marijuana or Cannabis cases.

Alarmingly, the new approach will give substantial power to the “approved provider” as one of the three (3) members of this MTT to make specific recommendations as to the level of treatment, the need for continued treatment and the successfulness of treatment.  As the approved provider or therapist has a significant financial interest in continued treatment of the offender, their objectivity to make decisions unimpaired by their financial interest is at best questionable.  While moving away from a “one size fits all” approach is welcomed, empowering therapist to inflate their paychecks by recommending lengthy terms of treatment is indefensible.  With evaluations expected to cost around $500 and sessions averaging $30 per session, the amount of money at stake is enormous.

The new guidelines also prohibit an offender from seeking his own counseling with his spouse or significant other.  In the past, someone involved in court order domestic violence counseling could also seek privately to address their relationship issues in couple’s or marriage counseling.  The new guidelines flatly prohibit couple’s or marriage counseling during the period of domestic violence treatment. 

Under the new guidelines, to be successfully terminated from treatment the offender must demonstrate certain progress in treatment to established criteria or “competencies.”  Significantly such criteria includes full acceptance of responsibility or accountability for their behavior.   As a practitioner who has counseled hundreds of  clients charged with acts of domestic violence, there is practically no case in which the accused does not dispute some aspect of the alleged victim’s story or the allegations made by an aggressive cop seeking to justify an arrest.  We all know in such circumstances the truth is usually somewhere in the middle.   As such, many individuals charged with domestic violence will have to critically assess whether they can stomach ”admitting” acts they didn’t commit just to avoid the label of being in denial so they can progress through their treatment. 

If you have recently been charged with an act of domestic violence it is critically important that you discuss these new developments and the effect such changes will have on your case and your ability to successfully complete probation before you enter into any plea agreement waiving all your rights to defend against the charge.  At Seawell and Buckmelter, PC, the Denver Metro area criminal defense attorneys, we have studied these new laws and will fight zealously to protect your interests

Thank you for visiting, and please feel free to comment on our blog posts as well as ask questions or make note of items you may be interested in learning more about.