DUI 101: Law Enforcement

You’ll often hear stories about how, back in the day, if an officer pulled you over and decided you’d had one too many, they’d tell you to go straight home or even follow you there. Times have changed. Now, impaired driving is taken very seriously by law enforcement as one of the paramount threats to public safety on our nation’s roadways. According to the National Highway Traffic Safety Administration (NHTSA), in the early 70’s, there were approximately 25,000 deaths each year in the United States due to drug or alcohol related traffic accidents. So, in response to public outcry, federal pressure and lobbying campaigns, legislatures and law enforcement agencies began cracking down on impaired driving through the passage of more stringent DUI laws and providing officers with the resources and training to implement them. In furtherance of this end, NHTSA, along with other organizations and agencies, began researching and developing standardized law enforcement training materials for DUI investigations and enforcement.

NHTSA now estimates that, each year, approximately 11,000 people lose their lives due to drug or alcohol related automobile accidents. This decrease is largely attributable to law enforcement’s increased awareness and effective training on the topic of drug and alcohol related driving offenses. Even so, drug and alcohol related accidents still account for 31% of all traffic fatalities in the United States. Law enforcement agencies across the nation have taken it upon themselves to decrease this number even further, therefore, comprehensive drug and alcohol related driving offense enforcement education and training has become a focal point in almost every peace officer training and certification program in the country.

POST Certification

In the State of Colorado, every police officer, sheriff’s deputy, state trooper or other law enforcement agent must first be certified through The Colorado Peace Officer Standards and Training Board (POST).  For most, this begins at a POST approved academy. In order to successfully complete POST academy and become certified, every cadet must complete a MINIMUM of 24 hours training in DUI related materials, which include:

• Explaining the Express Consent Law and identifying the elements of DUI as contained in C.R.S. §§ 42-4-1301 and 1304;
• Recognizing typical vehicle maneuvers and human indicators symptomatic of DUI that are associated with initial observation of vehicles in operation;
• Recognizing typical reinforcing maneuvers and indicators that come to light during the stopping sequence;
• Recognizing typical clues of alcohol and drug influence during face to face contact with DUI subjects;
• Appropriately administering and interpreting divided attention psychophysical tests (i.e. roadside maneuvers) for pre-arrest screening
• Choosing appropriate descriptive terms to convey relevant observations of DUI evidence; and,
• Writing clear, descriptive narrative DUI arrest reports.

Completion of this training, and the successful passage of the Colorado POST Test, is required before any officer can put on a badge. This means that every certified peace officer in the State of Colorado is qualified to investigate drug and alcohol related driving offenses. But, the basic POST academy training standards are the absolute bare bones minimum DUI training standards that an officer must meet in order to be POST certified. Like many other professions, peace officers may have an emphasis a particular area of their field and many choose to specialize in DUI enforcement. In addition to their POST certification, officers may obtain additional certification involving drug and alcohol related driving offenses.

NHTSA Standard Field Sobriety Testing Certification

The most common of these additional certifications (I have yet to meet an officer without it) is the NHTSA Standard Field Sobriety Testing Certification. To obtain this certification, officers must complete a Colorado Department of Transportation (CDOT) approved curriculum consisting of an additional 24 hours of training in the administration of standard field sobriety tests (SFSTs) developed by NHTSA which include: Horizontal Gaze Nystagmus (HGN); Walk and Turn (WAT); and, One-Leg Stand (OLS). After completing the training, officers must complete the International Association of Chiefs of Police (IACP) approved SFST examination with a score of 80% or higher and demonstrate, in practice, the ability to administer the NHTSA SFST battery and appropriately document and interpret the results. To maintain this certification, officers must complete at least 2 hours of CDOT approved continuing education every 2 years.

SFST Instructor Certification

The next level of certification that a peace officer can achieve is certification as a SFST Instructor. Once an officer has been certified in the administration of SFSTs and has shown competency in the actual administration of SFSTs in the field and testifying to their results in court, they may, upon recommendation by their agency, apply to become certified as a SFST Instructor. The officer then must complete an additional 32 hours of CDOT approved Instructor Development Course which includes classroom and practical training. To maintain this certification, the officer must complete eight hours of CDOT approved continuing education every 2 years.

Drug Recognition Expert Certification

Peace officers may also become certified as Drug Recognition Experts (DREs). A DRE truly is an expert in every sense of the word. As a side note, back when I was a prosecutor, if I had a case where I needed testimony to establish drug intoxication, I would rather have a DRE on the stand than any doctor or toxicologist. In order to become certified as a DRE, in addition to demonstrating practical experience and completing the above requirements for SFST and SFST Instructor certification, an officer must complete the CDOT approved DRE Program which includes a 72 hour of classroom training, a comprehensive written examination, 60 to 90 days of field training, administration of a minimum of ten supervised evaluations and a comprehensive final exam. The officer must score 80% or above on all examination.

During this program, officers are trained in the Drug Category Matrix which includes identifying the properties of the seven DRE drug classifications (central nervous system (CNS) depressants, CNS stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants and cannabinoids), their identification and symptoms of use. Additionally, officers in the DRE program are trained in the collection and interpretation of medical data as well as how to correctly draw conclusions consistent with observed physiological signs and symptoms in a subject. DREs are routinely qualified and accepted as expert witnesses by courts.

DRE Instructor Certification

Finally, an officer may become certified as a DRE Instructor. Prior to being considered for this certification, an offer must have been certified as a DRE for at least a year and recommended by at least two certified DRE Instructors from agencies other than their own. If these requirements are met, the officer must make a written application to the Colorado State DRE Coordinator and provide their last twelve months of DRE evaluations. The officer then must complete 32 hours of CDOT approved DRE Instructor training. Once this training is complete, the officer then must satisfactorily teach for a minimum of two hours in the classroom portion of a CDOT approved DRE Program and supervise the administration of not less than four drug influence evaluations performed by candidate DREs during certification training.

Upon satisfactory completion of instructor training, copies of all documentation, including instructor progress logs, examination scores, and instructor evaluations, shall be forwarded to the appropriate coordinator. The agency coordinator will forward these documents to the state coordinator who shall certify that the candidate has successfully completed all phases of DRE instructor training. The IACP will then credential and register each applicant as a certified DRE instructor.

For more information on the above materials, see our article entitled DUI 101: The Magic Book – DUI Statutes as well as our upcoming articles entitled DUI 101: Flashing Lights – The DUI Stop, DUI 101: The DUI Dance – SFSTs, DUI 101: Express Consent and Chemical Testing and DUI 101: The Drug Impaired Driver.

Next Week’s Post:

DUI 101: Flashing Lights – The DUI Stop

This article is for information purposes only.  Though all contributors to “The Williams Law Blog” are duly licensed attorneys, this article is not intended as actionable legal advice and it should not be taken as such.  If you or someone you know is or may be involved in litigation, it is important that you contact a licensed attorney in your area for advice specific to your case.

DUI 101: The Magic Book – DUI Statutes

While in law school, I had a professor that, any time a student ask a question, would ask them if they had checked “The Magic Book”. By “The Magic Book”, he was referring to the book(s) of statutes for a given jurisdiction (i.e. the Colorado Revised Statutes). Like all other criminal offenses, drug and alcohol related driving offenses are created by legislation that is codified in statutes. So long as these statutes comply with the state and federal constitution, they are the authoritative, dispositive, law of the land. (NOTE: the Colorado statutes dealing with drug and alcohol related driving offenses have been repeatedly ruled constitutional by the courts so claiming they’re not probably won’t get you very far). This means that, no matter what any other source says about drug or alcohol related driving offenses, if it conflicts with the statute, the statute controls. However, when facing a legal issue, you’d be amazed how many lay people, and even lawyers, spend a great deal of time and effort researching case law, treatises, law reviews and/or other sources because they didn’t bother looking the statute to find that it’s directly on point. For many legal issues, a lot of time, money and embarrassment can be saved by simply checking “The Magic Book” Admittedly, statutory law is dry and boring but it is essential in the understanding of any legal principle. In this article, we explore some of the Colorado Revised Statutes that control drug and alcohol related driving offenses.

Driving Under the Influence (DUI), C.R.S. 42-4-1301(1)(a)

In the State of Colorado, the elements for Driving Under the Influence (DUI) are laid out in Subsection (1)(a) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes.  This means that, in order to obtain a conviction for DUI, the prosecutor (usually the District Attorney’s Office) must prove ALL of the following beyond a reasonable doubt.

(1)     That the defendant;

This is generally the first element that the prosecution must prove in any criminal case.  In a DUI case, the prosecution must show that the person being charged (the defendant) is the same person that is suspected of Driving Under the Influence in violation of C.R.S. 42-4-1301(1)(a).  They must also show that the evidence they presenting in support of the charge, in fact, pertains to the defendant and not some other person.  This is commonly referred to as proving identity.

(2)     In the State of Colorado, at or about the date and place charged;

This is another element that is also present in almost every criminal offense.  For the purposes of this statute, the prosecution must specify the date and place that the defendant allegedly drove under the influence.  It is insufficient for to merely assert that, at some in time and space, the defendant drove under the influence, they must show, with reasonable clarity, when and where the alleged DUI occurred and that the indicated location is within the political boundaries of the State of Colorado.  This is commonly referred to as proving venue.

(3)     Drove a vehicle;

Once the prosecution has articulated the time and place the alleged DUI occurred, they must then prove that, at that time and place, the defendant drove a vehicle.  This where a lot of people get confused.  “Drove a vehicle,” doesn’t necessarily mean that the defendant was behind the wheel of an automobile, keys in the ignition, engine running, foot on the gas and moving down the street.  For the purposes of the DUI statute, the word “drove” means that the defendant was in actual physical control of a vehicle.  What “actual physical control” is varies based on the fact of a particular case but it is usually interpreted as the defendant being in a position to render the vehicle operable.  This means that, even if the defendant was sitting in the driver’s seat a parked car with the keys in his pocket, he still “drove” the car because he was in a position to render the vehicle operable and, therefore, in actual physical control of the vehicle.

Additionally, the term “vehicle” is not limited to an automobile.  The DUI statute’s designation of the term “vehicle” is comprehensive by design and includes, but is not limited to:

• motor vehicles, which are defined as any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle;
• low powered scooters, which are defined as self-propelled vehicle designed primarily for use on the roadways with not more than three wheels in contact with the ground, no manual clutch, and either a cylinder capacity not exceeding fifty cubic centimeters if powered by internal combustion or a wattage not exceeding four thousand four hundred seventy-six if powered by electricity;
• off-highway vehicles, which are defined as any self-propelled vehicle which is designed to travel on wheels or tracks in contact with the ground, which is designed primarily for use off of the public highways, and which is generally and commonly used to transport persons for recreational purposes, when operated on streets and highways;
• farm tractors, which are defined as every implement of husbandry designed and used primarily as a farm implement for drawing plows and mowing machines and other implements of husbandry when operated on streets and highways; and
• any device that is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks which includes, without limitation, a bicycle, electrical assisted bicycle, or electric personal assistive mobility device.

In essence, if it can be used to move you from Point A to Point B, you can get a DUI on it.

(4)     While under the influence of alcohol, drugs or a combination of alcohol and drugs.

Finally, and most importantly, the prosecution must prove that the defendant was “under this influence” of drugs, alcohol or both.  They must demonstrate that the defendant was SUBSTANTIALLY INCAPABLE, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle due to the consumption and effect of alcohol or one or more drugs, or a combination of alcohol and one or more drugs.

For the purposes of the DUI statute, “alcohol” is defined as any fermented malt beverage or malt, vinous, or spirituous liquors including, but not limited to:

• Beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description, brewed or produced from malt, wholly or in part, or from any substitute therefor;
• Wine; or
• Distilled spirits which is that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever process produced).

For the purposes of the DUI statute, a “drug” is defined as any substance:

• Included in schedules I through V of Title 18, Article 18, Part 2 of the Colorado Revised Statutes (C.R.S. §§ 18-18-203 through 207).  This includes, but is not limited to, cocaine, marijuana, marijuana concentrate, cathinone, any synthetic cannabinoid, and salvia divinorum;
• With a chemical structure substantially similar to the chemical structure of a controlled substance included in schedules I or II (C.R.S. §§ 18-18-203 or 204);
• Recognized as a drug in the official United States pharmacopoeia, national formulary, or the official homeopathic pharmacopoeia of the United States, or a supplement thereof;
• Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals;
• Other than food, intended to affect the structure or any function of the body of individuals or animals;
• Intended for use as a component of any substance specified above.

Driving While Ability Impaired (DWAI), C.R.S. 42-4-1301(1)(b)

Driving While Ability Impaired, or DWAI, is another common drug or alcohol related driving offense that is commonly considered less aggravated than Driving Under the Influence.  Nonetheless, it can still carry serious consequences. Many of the elements that a prosecutor must prove to sustain a DWAI conviction are the same as the elements necessary to sustain a DUI conviction with a few key differences.  To further illustrate this, the elements of Driving While Ability Impaired, as set forth in Subsection (1)(b) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes, are described as follows:

(1)     That the defendant;

This element is the same for both DWAI and DUI. See above explanation.

(2)     In the State of Colorado, at or about the date and place charged;

This element is the same for both DWAI and DUI. See above explanation.

(3)     Drove a vehicle;

This element is the same for both DWAI and DUI. See above explanation.

(4)     While their ability to do so was impaired by alcohol, drugs or a combination of alcohol and drugs.

This is the element that distinguishes a DWAI.  While the definitions of alcohol and drugs is the same for both DUI and DWAI, the prosecutor need only prove that the defendant’s ability, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle the defendant’s ability to operate a vehicle was affected TO THE SLIGHTEST DEGREE due to the consumption and effect of alcohol or one or more drugs, or a combination of alcohol and one or more drugs to prove a DWAI.

Therein lies the difference between the two charges.  To prove a DWAI, the prosecutor must show that a defendant’s ability to operate a vehicle was impaired to the slightest degree by drugs/alcohol while, in order to prove a DUI, they must prove that a defendant was substantially incapable of safely operating a vehicle due to drugs/alcohol.

DWAI as a Lesser Included Offense

Though a DWAI can be, and is, charged by itself, it is routinely charged as “lesser included offense” to a DUI.  A “lesser included offense” is a charge in which ALL of the elements that a prosecutor must prove to obtain a conviction are also SOME of the elements found in a more serious offence.  In other words, if a prosecutor proves all of the elements for a DUI described above, they will have also proven all of the elements of a DWAI, however, if a prosecutor proves all of the elements of a DWAI, they haven’t necessarily proven all of the elements of a DUI.  That being said, in the event that a person is convicted of both the more serious charge (DUI) and the lesser included offense (DWAI), the more serious charge is said to absorb the lesser included offense and, therefore, only one conviction for DUI conviction will enter rather than two convictions for both DUI and DWAI.  Alternatively, if a person is convicted of the DWAI but found not guilty of the DUI, only a conviction for the DWAI will enter and the more serious charge of Driving Under the Influence will be dismissed.  Note: Although a defendant may be found guilty of a DUI but not guilty of the DWAI, this is what is called an “inconsistent verdict” and may or may not be upheld depending on your jurisdiction.

Driving with Excessive Alcohol Content (DUI Per Se), 42-4-1301(2)(a)

You may have noticed that nowhere in the above elements of DUI described above does the number .08 come up. This is because, in order to convict a defendant of a DUI, the prosecution does not have to prove that the person had consumed a specific amount of alcohol, just that the alcohol they did consume rendered them substantially incapable of safely operating a vehicle. This means that a person could be convicted of a DUI even if they only had a Blood Alcohol Content (BAC) of .01 so long as the prosecution shows that what little alcohol they did consume rendered them incapable of safely operating a vehicle. This is not to say that the public perception that a BAC of over a .08 constitutes being under the influence is erroneous, it’s just a separate charge known as “DUI Per Se”. The elements for DUI Per Se are laid out in Subsection (2)(a) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes and are as follows:

(1)     That the defendant;

This element is the same as DWAI and DUI. See above explanation.

(2)     In the State of Colorado, at or about the date and place charged;

This element is the same as DWAI and DUI. See above explanation.

(3)     Drove a vehicle;

This element is the same as DWAI and DUI. See above explanation.

(4)     When the amount of alcohol in his/her blood was 0.08 or more grams of alcohol per hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath, as shown by chemical analysis of such person’s blood or breath within two hours after driving.

You will notice that this element doesn’t say anything about a person’s ability to operate a vehicle. Even if a person’s driving was exemplary and the prosecution falls flat on its face in attempting to prove that they were incapable of safely operating a vehicle or that they’re ability to do so was even impaired to the slightest degree, they can succeed in proving a violation of this statute by merely presenting a credible chemical test that shows the person’s BAC was over a .08.

Again, this offense can be charged independently but it is often found charged alongside a DUI when a chemical test is available. However, unlike a DWAI, a DUI Per Se is not a lesser included offense to a DUI due to the fact that it contains an element not present in a DUI (i.e the element of a BAC of 0.08 or more grams of alcohol per hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath).

It is also important to note that the Colorado Legislature has recently approved a similar statute that creates a per se charge for driving with marijuana content of 5 nanograms per hundred milliliters of blood (marijuana cannot be detected by a breath test). For more information about marijuana related driving offenses, see our upcoming article entitled DUI 101: Amendment 64 and You.

Minor Driving with Excessive Alcohol Content (Baby DUI), C.R.S. 42-4-1301(2)(a.5)(I)

This one’s for the kiddies. As we all know, the legal drinking age is 21 and, while minors can still be prosecuted under the above statutes, the legislature has seen it fit to craft a statute expanding culpability for persons under the age of 21. Informally referred to as a “Baby DUI”, the elements can be found in Subsection (2)(a.5)(I) of Title 42, Article 4, Part 13 of the Colorado Revised Statutes and are as follows:

(1)     That the defendant;

This element is the same as DWAI and DUI. See above explanation.

(2)     In the State of Colorado, at or about the date and place charged;

This element is the same as DWAI and DUI. See above explanation.

(3)     Drove a vehicle;

This element is the same as DWAI and DUI. See above explanation.

(4)     While under twenty one years of age;

This element is pretty self-explanatory. In order to sustain a conviction for a Baby DUI, the prosecution must show that the defendant was under 21 at the time of the offence.

(5)     When his/her BAC is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving.

This element is substantially similar to element four of DUI Per Se except it allows persons under the age of 21 to be convicted under this statute for a BAC below a .08. If a person under 21 has a BAC above a .05, they are generally charged and prosecuted under the DUI, DWAI and/or DUI Per Se Statutes.

A baby DUI is a less sever charge than a DUI, DWAI or DUI Per Se and can be a lesser included charge to DUI Per Se.

Inferences Which May be Drawn from Evidence of Blood Alcohol Content

                Now it’s time for me to backpedal a little bit. Though BAC is not an element of DUI or DWAI, it does not mean that it is not evidence that can be used against a DUI/DWAI defendant notwithstanding a DUI Per Se charge. In fact, the jury may draw certain inferences from any BAC evidence and will be given the following instructions by the court:

In any prosecution in which the defendant is charged with driving under the influence of alcohol or driving while ability impaired by alcohol, the amount of alcohol in the defendant’s blood at the time of the commission of the alleged offense, or with a reasonable time thereafter, as shown by chemical analysis of the defendant’s blood or breath, gives rise to the following inferences:

(a) If there was at such time 0.05 or less grams of alcohol per [one hundred milliliters of blood as shown by chemical analysis of such person’s blood two hundred ten liters of breath as shown by chemical analysis of such person’s breath], it shall be presumed that the defendant was not under the influence of alcohol and that his ability to operate a vehicle was not impaired by the consumption of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per [one hundred milliliters of blood as shown by chemical analysis of such person’s blood two hundred ten liters of breath as shown by chemical analysis of such person’s breath, it may be inferred that the defendant’s ability to operate a vehicle was impaired by the consumption of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood as shown by chemical analysis of such person’s blood two hundred ten liters of breath, as shown by chemical analysis of such person’s breath, it may be inferred that the defendant was under the influence of alcohol.

For more information regarding chemical testing in drug/alcohol related driving offenses see our upcoming article entitled DUI 101: Express Consent.

Next Week’s Post:

DUI 101: Law Enforcement

This article is for information purposes only.  Though all contributors to “The Williams Law Blog” are duly licensed attorneys, this article is not intended as actionable legal advice and it should not be taken as such.  If you or someone you know is or may be involved in litigation, it is important that you contact a licensed attorney in your area for advice specific to your case.

DUI 101: Introduction

DUI, DWI, OWI, DWAI… the big “whoops”… Call them what you will, aside from minor traffic infractions, drug and alcohol related driving offenses are the most common ways ordinary people find themselves with a court date. We are all well aware of the harms caused by driving under the influence and it’s no secret that law enforcement is constantly on the lookout for impaired drivers. Yet, despite the fact that you can barely through an hour of prime time television without seeing a public service announcement warning of the dangers and consequences of a DUI, over 10,000 Coloradans are charged with a drug or alcohol related driving offense each year and hundreds of thousands more cited nationally. These aren’t bad or unintelligent people, for the most part, they’re every day, law-abiding folks that made a mistake. Regrettably, it’s a mistake that can have serious and lasting consequences.

Due to the omnipresence of intoxicated drivers in the public consciousness, legislatures, courts and administrative agencies across the nation have gone hog wild in crafting rules, statutes and regulations relating to DUI/DWAIs. The result has been a convoluted, voluminous and constantly changing cannon of DUI law capable of confusing even a seasoned attorney that doesn’t specialize in its practice. DUIs can be some of the most intricate cases on a court’s docket with legal, factual and forensic issues that rival more serious crimes. So, it’s okay if you don’t know the first thing about DUIs, most people don’t know how to perform orthopedic surgery either.

That being said, it’s not okay to face a DUI/DWAI without the appropriate information, understanding and representation. The internet is bursting at the seams with bad advice regarding drug and alcohol related driving offenses and everyone has a well-meaning friend or relative more than eager to pave the road to hell with good intentions, thus, hardly a day goes by in any given courtroom where a DUI defendant doesn’t tie their own noose by implementing advice taken from a source without an attorney regulation number. The bottom line is that, if you’re facing a DUI/DWAI (or any criminal charge for that matter), you need to contact an attorney licensed in your jurisdiction that specializes in criminal defense. It doesn’t matter if you have a friend, brother, cousin, uncle, etc… that got a DUI and “knows” how to beat it without a lawyer, the facts of every case are different so what worked for them might not work for you and, more importantly (and more than likely), they probably ended up getting screwed by the prosecution without even knowing it.

Still, a DUI is seldom planned and most people don’t have a DUI attorney on speed dial, so, for those of you that want to know more about your charges before hiring a lawyer, what to expect if you ever find yourself facing a DUI or if you just have a curious mind, The Williams Law Blog brings you DUI 101. Each week, we will be posting an article on a topic relating to DUI/DWAIs to help our readers become more informed citizens. Though much of the information contained in these posts will be reaped from Colorado law governing DUI/DWAIs, it is designed to be informative and useful regardless of your jurisdiction. Remember, these articles are a brief overview of an expansive topic and a blog post is a poor substitution for a trained, flesh and blood professional.

Next Week’s Post:

DUI 101: The Magic Book – DUI Statutes

This article is for information purposes only.  Though all contributors to “The Williams Law Blog” are duly licensed attorneys, this article is not intended as actionable legal advice and it should not be taken as such.  If you or someone you know is or may be involved in litigation, it is important that you contact a licensed attorney in your area for advice specific to your case.