Blood alcohol content is the main determinant in both alcohol-related offenses in Colorado: DWAI and DUI.
There are two different offenses for which a person can be charged: driving while ability is impaired (DWAI) and driving while under the influence of alcohol or drugs (DUI).
However, before we get there, we should back up and cover the main ground.
Blood alcohol content (also known as blood ethanol concentration, blood alcohol concentration and blood alcohol level) is the percentage of alcohol in your bloodstream. BAC testing lets law enforcement and medical professionals objectively test how much alcohol is present in your body.
This is what happens at various levels of blood alcohol content:
Alcohol seeps into the bloodstream through your small intestine and stomach in as little as 15 minutes. You’ll become drunker as your BAC rises. Variables that can affect your BAC include weight, gender, age, water intake and food intake.
BAC levels can be tested by breath, urine or blood. Blood testing is especially troublesome. People don’t like needles; some people have infections or blood diseases. Police officers need to bring suspects to phlebotomists at hospitals or clinics, and then wait for the results, which can take weeks or months.
Breath testing is the easiest, though attorneys argue in court that it isn’t accurate. Blood testing is the best, but as mentioned above, it requires a trained professional and is time-consuming; urinalysis is not as accurate as the blood testing and breath tests and is only used as a last resort.
Breathalyzers are portable and quick with results.
Blood is more accurate but time-consuming.
People go for the path of convenience.
What about those adults who have more than 0.08 g/dL in their bloodstreams (or those youths with more than 0.02 g/dL)?
All states have laws that deem any driver “per se intoxicated” with a BAC of 0.08 g/dL or higher. This means that the cops don’t need to find any additional evidence. Even if that person has developed a tolerance and is functioning well at 0.08%, he will still be convicted of driving while intoxicated.
These laws work slightly differently in Colorado. If a driver is found to have a BAC between 0.05-0.79%, it’s a DWAI per se charge. If his BAC is 0.08% or more, it’s a DUI per se charge.
In terms of zero tolerance, these laws penalize anyone under the age of 21 who uses a vehicle with any alcohol in his or her system. These are meant to protect younger drivers and to keep them off the roads. This means that if his or her BAC is above 0.02%, that kid could be arrested, face fines, probation, community service and even jail time.
When a car has been pulled over (which is known as a “Terry stop” – legally this is a short detention of a suspect so that police can investigate), the police will ask that person to step out of the vehicle and breathe into a Breathalyzer. This measures breath alcohol content. From this device, officers will be able to determine whether that driver is intoxicated.
That driver has a couple of options. He can breathe into the device, after which he’ll most likely be arrested and arraigned for driving while under the influence of alcohol. He can refuse to submit to the chemical test, but under the laws of express consent, this means that it will trigger some automatic penalties under Colorado law.
When you’re a spunky teenager applying for a Colorado driver’s license, you don’t really read the fine print of applications.
But there is a part of the forms that state if you are pulled over by law enforcement, you agree in advance to submit to chemical tests like Breathalyzers or roadside sobriety exams. Colorado’s express consent law is very short:
“Colorado’s Express Consent Law requires any driver to consent to a chemical test if a police officer has reasonable grounds to believe the person is driving under the influence or their ability to operate a motor vehicle is impaired because of alcohol, drugs or both.”
If you decide not to comply, there are harsh penalties that can include jail, fines and suspension of driving privileges.
Colorado also has a designation called “persistent drunk driver.” This is bestowed upon the following individuals:
What is unique about the PPD designation is how the driver has to restore his driving privileges.
He’ll have to install an interlock device on his vehicle for two years, provide proof of financial responsibility for two years, and complete a level II drug and alcohol education and treatment program before the PPD designation will be removed.
Drivers have the right to challenge this, but they must do it within seven days of their drunk driving arrest.
A lawyer would need to examine the underlying drunk driving violation in order to fight the designation itself. Many attorneys argue that this is a significant impingement upon a driver’s rights that lasts for far too long; two years is a lengthy chunk of time, and an interlock device is a huge barrier between a driver and his car that requires installation, maintenance and upkeep.
Let’s say you’re on the other side of the equation. What happens if you have been hit by a drunk driver?
Colorado became a fault state in 2003, which means that individuals have multiple ways they can pursue compensation. They can try the insurance system, the other party directly, or the courts. Claimants have three years to file, which gives them ample time to build a case. However, Colorado is a comparative fault state that follows the 50% rule – meaning if a jury or judge finds the plaintiff to be more than 50% at fault in the accident, he or she cannot recover any damages.
The legal system is split into the criminal and civil sides. The district attorney in Colorado would pursue criminal charges against the drunk driver, while you would pursue your own case in the civil court for damages. This is where you’d receive compensation in the form of special damages, which are out-of-pocket expenses like medical bills, child care, transportation costs and lost income. Then there are general damages, which include non-tangible items like pain and suffering, loss of consortium and mental anguish.
There is also the possibility of pursuing a dram shop case if the driver was served alcohol at a tavern or bar prior to swerving his way through the streets. If the bartender could see the driver was visibly intoxicated and served him despite that fact, the tavern could be held liable under the Colorado Revised Statutes. The injuries caused to others don’t even need to be a foreseeable consequence; the Colorado Supreme Court ruled that in 2011 that the bartender just needs to have served a visibly drunk person more alcohol.
The driver’s insurance company will likely try to settle with you for far less than what your case is worth, but stick with it. A case like this can potentially be worth a lot, and a good attorney can help you significantly.
If you’ve lost someone or been hurt in a drunk driving accident in Colorado, you’ll want an accident attorney who can make sure responsibility falls on the right shoulders. Consider speaking with an Enjuris Colorado law firm member! We invite you to also read up on how to hire a good Colorado law firm for your case.