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DUI / DWAI Facts 6-10

In a Continuation of our last DUI / DWAI blog:

6. Jail is Not Necessarily Mandatory for a First Time DUI Arrest:

Although Colorado DUI / DWAI law describes the minimum punishment for a first DUI as ten days in jail, it also allows a judge to suspend the jail time if you take and follow the recommendations of an alcohol evaluation. Practically speaking, many first time DUI / DWAI offenders get no jail time at sentencing for Driving Under the Influence of Alcohol.

7. A DUI / DWAI Stop Can be Beat - Even with BAC Evidence:

Colorado State Department of Health administered BAC / Express Consent test results can be beat. DUI cases with blood and/or breath tests as evidence have several vulnerabilities if a lawyer digs deep. Examples of these include: a) Was the stop legal? Many cases can be dismissed because of illegal stops which fall short of "reasonable suspicion"; b) Was there sufficient evidence to support the probable cause threshold to arrest you for DUI / DWAI?; c) Did the Denver, Lakewood or Aurora police officer correctly read you the express consent law? This is a common police officer error in Driving Under the Influence cases; d) Were the Intoxilizer 9000 breath test machine or blood testing records kept and accurate? We have had cases dismissed because key required information was lost, deleted or is found to be incomplete. e) Last, have breath tests in general been critically examined by the jury? There are some inherent problems with the science of breath testing. If thoroughly exposed, these weaknesses can create doubt for jurors.

8. Don't Help the Police and DA Convict You:

Although you need to take the Express Consent BAC test following your arrest, you don't have to do many things which can only help get you convicted:

-Don't answer questions of the officer about your recent drinking.

-Don't give the officer an opportunity to smell your breath by rolling your window completely down.

-Don't get out of the car except as ordered to be placed under arrest.

-Don't volunteer to take a Portable Breath Test (PBT).

-Don't participate in any roadside maneuvers.

-Don't talk about your level of sobriety.

-Don't talk about where you are coming from or going to.

9. Attorneys Who Are Quick to Have You Plead Guilty:

Evidence from the District Attorney can trickle in which many DUI / DWAI cases. Attorneys should avoid having their clients enter a plea until all evidence is received. In many cases, your plea agreement will improve with some delay. Dockets are very crowded and there is a good chance your case is less of a priority than other cases scheduled for trial the same day as yours. A good domestic relations case, or an assault case, will be more compelling for trial than your DUI / DWAI. Plus, with overcrowded court dockets DAs simply cannot afford the time to take a high percentage of their cases to trial.

10. Problems with the Intoxilyzer 5000 and 9000 Colorado Breath Testing:

Colorado's Intoxilyzer breath test machine has flaws. It has programmed assumptions. First, it assumes that your body temperature is at a standard reading. If you have a fever, or are cold blooded, each degree of body temperature variation from the standard will cause a percentage change in the machine's breath test result. Next, the Intoxilyzer is programmed to produce a breath alcohol reading corresponding to a simultaneous blood alcohol sample. This assumption implies that 210 liters of breath contain the identical amount of alcohol as 100 milliliters of blood. The problem for the Intoxilyzer machine / computer is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. That is, for every 2100 parts of ethanol in the blood there is one (1) part ethanol in the breath.

Yet, everyone does not partition alcohol from their blood at this same ratio. Human partition ratios can vary from a low of 834:1 to 1:3400. Men and women have different ratios. Body weight impacts the assumptions and calculations. The government's breath texting machine does not measure an individual's blood:breath partition ratio. It is programmed and calibrated with an assumed value of 2100:1. As a result, we never know what a person's actual partition ratio is at the time of a breath test. Under these assumptions, the Intoxilyzer becomes an inaccurate indicator of a subject's actual blood alcohol concentration when partitioning of alcohol from a subject's blood varies from the assumed 2100:1 standard.

If you have been contacted by police, exercise your right to remain silent and call us at 303-731-0719.  Together, we can protect your future.

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