DUI charges are a serious problem that can have lifelong consequences that impact your future, rights and freedom. The punishment for a DUI conviction increases with each offense, building up to a fourth offense being a felony that carries a possible prison sentence.
While it may seem impossible to convince a jury that the police are wrong about a DUI arrest, there are actually many ways to defend against drunk driving charges.
Drinking but not impaired
Colorado allows a person to drink alcohol and drive a car, so long as they are not impaired by alcohol. Even a small amount of alcohol can result in things like a smell of alcohol on your breath or glassy eyes. These are the things that the police look for during a DUI investigation and are often more than enough for them to request field sobriety tests.
Field sobriety tests are largely based on balance. Many of us have poor balance in even the best of circumstances, let alone in a stressful situation on the side of a highway. Someone who has truly had just one drink may be hard to tell apart from someone who has had five, leading to an incorrect arrest and charge.
Police error and evidence errors
Conducting a DUI investigation takes precise training and practice. If parts of a DUI investigation such as field sobriety tests are done wrong, the results are invalid. Police officers may look for the wrong clues, give poor instructions or simply fail to properly interpret the results of such tests.
To make matters worse, blood and breath tests are fraught with problems. Test results can be affected by operator error and failure to follow Department of Health regulations.
Problems also occur on an even larger scale, such as the recent discovery of pervasive forgery of certificates certifying breath alcohol testing machines in Colorado by government employees. There have also been discoveries of batches of blood alcohol test-tubes missing. These devices are necessary preservatives for accurate results.
Conditions that mimic intoxication
A DUI charge requires proof of impairment, but there are many other things that can also cause impaired driving or appear like intoxications during a DUI investigation. These conditions include but are not limited to:
- Medical conditions
- Head injury
“Mimics” can be things like a back or knee injury that cause poor performance on balance-based field sobriety tests or a head injury after an accident that causes a person to behave in a way that appears like being intoxicated. Diabetes can cause a breath odor that smells similar to alcohol, and people with anxiety may appear impaired under high-stress conditions.
Actual physical control
A DUI charge requires proof that you were driving. That is, that you were in actual physical control of a vehicle while impaired by drugs and/or alcohol.
But “actual physical control” can – at least for the purpose of an arrest—be as little as sitting in the driver’s seat with the keys in the ignition. Police officers will often give DUI charges to people who are in a car and intoxicated, but not “driving” in the sense that the car is traveling down the road, such as someone who has left a bar at closing time and decided to sleep it off in their car with the heat running before driving home.
If you’ve been charged with a DUI in a situation where you were not actually driving, it is important to hire an attorney who understands the nuances of what it means to legally be in actual physical control of a motor vehicle.
Drinking after driving
Police also often charge people for DUI in situations where the contact with police does not occur until some point after they are no longer driving. Most commonly, this occurs when a person calls in a suspicious driver and license plate and police then go to their residence and find the car parked and contact the owner.
In these situations that the police must prove that you were impaired at the time of driving, not that you drank alcohol and became impaired after you stopped driving.
No probable cause
Police need reasonable suspicion to pull you over or otherwise contact you for an investigation. If the police cannot explain a valid reason to have made the traffic stop or other contact in the first place, you can challenge the validity of the entire contact as a violation of your constitutional rights.
If the initial reason to contact you is not sufficient, anything that came after the initial contact is suppressed and cannot be used against you. This leaves the prosecution without any evidence that can be used at trial and typically forced them to dismiss the case.