Category Archives: Misdemeanor criminal procedure

DUI Breath Test, Blood test, or Refusal?

DUI Breath Test, Blood test, or Refusal?

DUI Breath Test, Blood Test, or Refuse all tests?
DUI Breath Test, Blood Test, or Refuse all tests?

An officer begins a DUI investigation on you. He asks you how much have you had to drink. He asks you to perform roadside sobriety tests. Then he arrests you for DUI. He is required to give you a “express consent” advisory where you must choose a dui breath test or a blood test. You have a very short time to decide.

DUI Blood Test

The officer will take you to detox or the jail where a medical professional, usually a nurse or EMT, will draw two vials of blood from your arm. Either the police crime lab or a private lab will conduct a test on the blood they receive and give the police the results.

If the result is 0.08 or above, the police will forward that result to the Department of Revenue (DMV) which will send you a suspension letter that will be effective one week later. You have a right to a suspension hearing and SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. See the Department of Revenue site for more information.

Unlike a DUI breath test, a second sample exists for independent testing. We will be sending the second vial to another lab for verification that the two vials of blood came from the same person, and that the result is similar to the vial tested by the crime lab. Some of the ways we attempt to get your case dismissed or reduced include blood draw problems, lab errors, blood storage problems, chain of evidence problems, etc.

If the suspension is sustained, and you have a Colorado drivers license, you will be eligible for a restricted license with interlock after 30 days of no driving.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

DUI Breath Test

The officer will take you to jail or detox and have you wait for 20 minutes while he completes paperwork. This 20 minute observation period is required in a DUI breath test to ensure you did not burp, vomit, belch, drink more alcohol, etc. The officer will have you blow into a mouthpiece two times and the machine will record the lower of the two results.

Currently in Colorado, no facility exists to make an independent test of your DUI breath test. What the machine says will be the only test result in your case. Some of the ways we attempt to get your case dismissed or reduced include problems with the machine, problems with the certification process of the facility to conduct breath tests, etc. We are able to aggressively attack the ability of Colorado to use the Intoxilyer-9000 results of the DUI breath test in your case.

If the result of you DUI breath test is 0.08 or above, the police officer will immediately issue you an “express consent” notice of revocation, and forward it to the Department of Revenue (DMV). This notice of suspension is effective within 7 days. You have a right to a suspension hearing and SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. See the Department of Revenue site for more information.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges involving a DUI breath test and can help you decide what is best for you in your case.

Refusal

If you refuse any chemical testing of your blood or breath, this will be used against you at trial. The officer will be able to testify to the things he saw, smelled, and heard you say. However, the state’s case is usually weaker without a level of your blood or breath alcohol.

The police officer will issue you an “express consent” notice of revocation for the refusal. He will forward it to the Department of Revenue (DMV). This notice of suspension is effective within 7 days. You have a right to a refusal suspension hearing. You SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. If the suspension is sustained, and you have a Colorado drivers license, you will be eligible for a restricted license with interlock after 60 days of no driving.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

Advice

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

 

DUI Minimum Jail Sentences

DUI Minimum Jail Sentences

DUI and DWAI cases in Colorado require DUI minimum jail sentences in many cases. When trying to understand when these minimum jail sentences apply, two facts are the main factors to know about your case. First, if the new case is an alcohol based DUI, what was the alleged blood alcohol content? Second, do you have any prior lifetime DUI/DWAI convictions?

DUI Minimum Jail Sentences in Colorado
Let Mark Solomon help with your DUI – don’t go to court without alone

 

Blood Alcohol Content and DUI Minimum Jail Sentences

In Colorado, DUI Minimum Jail Sentences apply when the blood alcohol is “high” according to statute: 0.20 or higher. If the BAC is 0.20 or higher on a first offense, the law requires a person to be sentenced to at least 10 days in jail. However, if the person is working at the time, a good chance exists that those 10 days of jail can be served on in-home-detention with an ankle monitor. In home detention allows a person to go to work and medical appointments, but nowhere else. Courts can also allow a person to spend those days serving a DUI minimum jail sentence on work-release, where the person spends nights at the jail, but is allowed to leave for the day to work. The determination of whether a person is allowed either of these two alternative sentences is up to the judge. Having a good DUI defense attorney may make the difference in spending time in jail or being allowed one of these sentences that allows you to keep your job.

Prior convictions and DUI Minimum Jail Sentences

Any prior lifetime alcohol or drug driving conviction is considered a “prior offense” in Colorado, with no time cutoffs at all. So, a 20 year old DUI conviction would trigger a DUI minimum jail sentence in Colorado if charged with a new DUI/DWAI offense.

SECOND OFFENSE DUI MINIMUM JAIL SENTENCES

A second offense requires a 10 day minimum jail sentence. If the prior offense is more than five years old, the law allows alternative sentencing like in a first offense with a high blood alcohol content. The law requires a person to be sentenced to at least 10 days in jail. However, if the person is working at the time, a good chance exists that those 10 days of jail can be served on in-home-detention with an ankle monitor. In home detention allows a person to go to work and medical appointments, but nowhere else. Courts can also allow a person to spend those days serving a DUI minimum jail sentence on work-release, where the person spends nights at the jail, but is allowed to leave for the day to work. The determination of whether a person is allowed either of these two alternative sentences is up to the judge. Having a good DUI defense attorney may make the difference in spending time in jail or being allowed one of these sentences that allows you to keep your job.

However, if the prior offense is within five years of the new charge, the 10 day minimum jail sentence must be served in jail, as 10 consecutive days without any time off for good behavior.

THIRD OR MORE OFFENSE DUI MINIMUM JAIL SENTENCES

A third offense requires a 60 day minimum jail sentence. However, many judges and prosecutors will want far more jail time under a plea agreement or if you are convicted at trial. Once a person has is facing his fourth conviction, he should expect the judge to sentence him to the full 365 days in jail. Time off for good behavior does not apply to the first 60 days of such a jail sentence and must be served as consecutive days in jail.

This is why many people decide to go to trial when facing a DUI charge with three or more prior DUI convictions. The minimum jail sentence is enough to cause a person to lose their job and possibly their home, so trial becomes the only way to have a chance of keeping the DUI case from starting their life over when they are released from jail.

Plea bargain or take my case to trial? (Plea offer)

Should I plea bargain or take my case to trial?

In every criminal case, the defendant is faced with the question: Should I plead bargain or go to trial? This question is very broad, so will be my answer. A defendant’s ability to plea bargain is controlled by his knowledge of the government’s case compared to the strength of his own case. A plea bargain is giving up your right to go to trial in exchange for something in return, usually a known sentence to a known charge. Plea bargaining exists in almost every criminal at some point. Some write about pros and cons of plea bargaining.

Should I plead guilty at arraignment? Probably not.

Should a defendant plead guilty at their first appearance or arraignment? Some courts have a prosecutor at arraignment dockets for plea bargaining. However, while sometimes this is the best time to make a deal, most times, arraignment is not the best time to enter a plea agreement.

Defendants rarely get to see their discovery at arraignment, so their ability to plea bargain is weak

A few questions to decide whether you should accept a plea agreement are the following: (1) have you seen the evidence against you? (2) does the evidence against you have weak points? (3) can you counter the evidence against you with your own evidence? (4) and so on.

These and other questions help you determine whether the plea offer is good or bad as compared to your chances of acquittal at trial. At arraignment, because you know so little about these risks for trial, you are best to hire an attorney to help you make the correct choices from the beginning.

At arraignment, especially if you do not have a lawyer, you will not have even reviewed the evidence against you. As such, pleading guilty is “roll of the wheel” and might be a good deal, and might not. Without the assistance of an criminal defense attorney, you will be guessing as to what is your best course of action.

Should I plead guilty or go to trial?

Whether to hire a criminal defense attorney to defend you against a criminal charge is the first, most important decision in your case. Who will be your criminal defense attorney is your second, most important decision in your case. You must hire an attorney with whom you are comfortable communicating and trusting.

Whether to plead guilty or go to trial is one of the next, most important decisions in your case. This is one of your criminal defense attorney’s first main mission: helping to negotiate a plea offer or plea bargain that is at least as attractive as going to trial. When your criminal defense attorney negotiates a plea bargain or plea offer like this, he has given the defendant a true, meaningful choice.

Statue of limitations – So long ago, but charging me now

Statue of limitations

Statue of limitations are the time required to bring charges or “commence the prosecution.”  The criminal prosecutor must bring charges within that time limit. If they try, any competent attorney should be able to help get the case dismissed. On the other hand, for the government to satisfy this requirement, the government must “commence a prosecution” within the time limit. Commencing the prosecution is usually as simple as law enforcement or the prosecutors getting the court to issue a warrant.

Statue of limitations in Kentucky

MISDEMEANORS. In Kentucky, for misdemeanors, the warrant must be issued within one calendar year of the alleged offense. If the warrant was issued one year of the offense 17 years ago, that it would be a valid warrant, and the statue limitations would not apply. The governing statute is “§ 500.050. Time limitations.”

FELONIES: In Kentucky, no statute of limitations exists for felonies, so a new charge today from twenty years ago is valid under the Statue of limitations for criminal charges. However, in such a case, other procedural defenses might be available, such as a Due Process violation, but speak to a lawyer to help you with any felony charge.

Statue of limitations in Colorado

In Colorado, a statute of limitation exist for every crime, based on the classification of the offense. This is governed by CRS 16-5-401. To summarize this statute: one year for traffic offenses, 18 months for misdemeanors, three years for most felonies, five years for “Vehicular homicide and leaving the scene of an accident that resulted in the death of a person,” and no limit on the most serious of felonies.

Practical Defenses when Statutes of limitations are at play

When the offense happened so long ago, many cases fall apart because of the lack of memory on the part of the witnesses. As such, you should probably talk to an attorney to go over the discovery in your case. And do an investigation to see if the witnesses are still around and still remember anything.

A statute of limitations on criminal charges is meant to prevent old, stale cases from haunting a defendant. Memory and age of the case always effects the outcome. Generally speaking, the worse the memories of the witnesses, the better the outcome.