Articles Posted in DUI / DWAI

Caryn J. Adams
Managing Attorney
The Gasper Law Group

There are few movies more quotable than The Princess Bride (Hmm, maybe The Godfather, but that’s a different blog). Mandy Patinkin as the master swordsman Inigo Montoya gets one of my favorites when he responds to his employer, “You keep using that word. I do not think it means what you think it means.” In the movie, the word in question is “inconceivable.” In Colorado, that word is “driving.”
“Driving,” as in “Driving” Under the Influence or “Driving” While Ability Impaired, does not mean what you think it means. Consider the following situation. You’re out on the town and have had too much to drink. You know you can’t drive home and want to do the right thing. You decide to walk a block to the parking lot and sleep it off in your car. You get in the driver’s side, recline the seat, and put your car keys in your pocket. An hour later you’re woken up by a patrol officer rapping on your window. “Bad news,” he says, “You’re under arrest for Driving Under the Influence.” In fact, even though you didn’t know it and common sense would say otherwise, and even though the car was never turned on and never moved an inch, you’ve been “driving” for the past hour.

In Colorado, the courts have determined that the terms “drive” and “drove” include “actual physical control” of a vehicle, even if the vehicle is not actually moving. Factors a judge or jury may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:
A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle’s ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.

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Caryn J. Adams
Managing Attorney
The Gasper Law Group

Driving Under the Influence (DUI) and Driving While Ability Impaired (DWAI) are what are called “strict liability” offenses. This means that the district attorney does not have to prove that you acted with a culpable (or bad) mental state. Most crimes require two components before a jury can return a verdict of guilty. These components are a voluntary act (i.e. actus reus) and a culpable mental state (i.e. mens rea) to go along with the act. “Mens rea” is often translated as “intent.” The intent to commit a crime is not, however, required in a DUI or DWAI case.

According to C.R.S. 18-1-502, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act.” The statute goes on to say, “If that conduct is all that is required for the commission of a particular offense… the offense is one of ‘strict liability.’” In DUI or DWAI cases, briefly put, that act or conduct would be getting behind the wheel of a car with too much alcohol in your system.

What does this mean in practical terms? Well, I often hear clients say things like, “I didn’t intend to drink too much,” or “I didn’t realize I’d had that much. I guess I just lost track.” I also hear, “But I was being really careful. My friends will say that I seemed fine to drive at the bar.” None of these are defenses to the crime of DUI or DWAI. There are, of course, defenses that can be raised in such cases: defenses relating to not driving, to not being over the limit, those relating to emergency situations and having to choose between two “evils,” etc. Setting aside situations in which other defenses apply for a moment, the truth is that if your BAC was tested and was over .08, your good intentions do not matter much. Only if your act was NOT voluntary (e.g. your fraternity brothers forced alcohol down your throat and then carried you to the driver’s seat and handcuffed you to the steering wheel) do you have an answer to the concept of “strict liability.”

By Allen C. Gasper
Senior Partner
The Gasper Law Group

Effective January 1, 2009, the revocation period on first offender DUI cases has changed in the State of Colorado. While the period of revocation of license for blood alcohol content in excess of .08 has increased from a three-month period to a nine-month suspension, the reinstatement process appears to have eased considerably. The following information outlines the revocation and reinstatement rules currently in effect.


REVOCATION: The first episode of driving with a B.A.C. of .08 or greater results in a nine-month revocation.
• The revocation remains in effect until you complete the reinstatement process.

• ALL excess B.A.C. reinstatements are processed by mail. You should begin the reinstatement process approximately one (1) month prior to the month you expect to reinstate.

• If you were 21 or older at the time of the violation and have no other unsatisfied license restraints, you may reinstate after only 1 month of revocation – provided you install an Ignition Interlock Device (Interlock) in every vehicle you own or may drive.

• If your B.A.C. was below 0.17, you reinstate early, drive only an Interlock vehicle and do not have any B.A.C. when you drive, you may be eligible for an unrestricted license after four (4) continuous months of successful driving.

REINSTATEMENT: (9-month revocation): You must
1. provide an SR22 from your insurance company and maintain it for 9-months following reinstatement (3-years if you were involved in an accident);
2. complete an Alcohol Certification, Form DR 2598
3. complete an Application for Reinstatement, DR 2870, and
4. mail the SR22, the Alcohol Certification and the Application along with your personal check or money order for $ 95.00 to the address provided on the Application.

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