Can I be charged with a DUI if I wasn’t driving when the police contacted me?
Yes, you can be charged with a DUI or DWAI so long as you were in “actual physical control” of the car. This means the car does not have to be moving in order for an officer to arrest you and charge you with a DUI or DWAI. Under the law, there are many factors that may be considered when determining whether you were in “actual physical control” of the car, such as the location of the car, your location in the car, whether the keys were in the ignition, and whether the engine was running. This list is not an exhaustive list of all factors to be considered. The general idea is whether, with minimal effort, you could have put the car into motion.
If you have been charged with a DUI or DWAI and you were not driving when you were contacted by the police, it is important to contact an attorney to review the facts if your case because you may have been improperly charged.
Can I be charged with a DUI if the officer did not know my blood alcohol level?
Yes, even if you refuse to take a blood or breath test, you can be charged with a DUI. In Colorado, there are two different types of DUI charges: DUI and DUI per se. In order to be charged with DUI per se, the officer must know your blood alcohol level and it must exceed the legal limit of 0.08. However, to be charged with DUI, the officer need only have probable cause to believe you consumed alcohol or drugs or both which affected you to the degree that you were substantially incapable of safely operating a motor vehicle. The officer will likely rely on his initial observations, such as odor of alcohol, bloodshot eyes and slurred speech, as well as your performance on roadside tests, such as the walk and turn and one legged stand, to decide whether to charge you.
If you refuse a test of your blood or breath, that refusal may be evidence that can be used against you. Under the law, your refusal to cooperate with testing, must be clear to the officer in order for it to be used against you. If you are alleged to have refused the blood or breath test, it is important to contact an attorney who can analyze the circumstances surrounding your situation because it may be that you did not refuse the test under the law.
Can I be charged with a DUI if I only took prescription medications?
Yes, you can be charged with DUI or DWAI if you consumed any drug, whether prescription or otherwise, and that drug affected your ability to safely operate a motor vehicle. Prescription medication includes medical marijuana, so proper possession of a medical marijuana card is not a complete defense.
However, just like a DUI or DWAI involving alcohol, the drugs, whether prescription or non-prescription, must affect your ability to drive to the degree that you are substantially incapable of safely operating a motor vehicle (DUI) or impaired your ability to safely operate a motor vehicle to the slightest degree (DWAI). In Colorado, while the police may ask you for a blood or urine test in order to determine whether there are drugs in your system, Colorado does not currently have a legal limit for drugs in the same way there is a legal limit for alcohol.
Because there is no per se legal limit when it comes to drugs, it is important if you are charged with a DUI or DWAI for drugs that you contact an attorney. These types of DUI cases require a specialized type of defense and, depending on the facts and circumstances of the case, can be difficult for the prosecution to prove.
Can I be charged with DUI and DUI per se in the same case?
Yes, you can be charged with both DUI and DUI per se in one case, but you cannot be punished twice. There is a legal principle called “merger” that prevents a person from being punished twice for the same conduct. Even though you can be charged with both DUI and DUI per se for only one act of driving under the influence, if you were to be convicted of both, your sentence on each of those charges would merge and become one sentence, so you are only punished once for the single act.
Can I be charged with DUI and DWAI in the same case?
No, you cannot be convicted of DUI and DWAI in the same case. DWAI is a lesser included offense of DUI. While the prosecution may ask to add a DWAI charge for purposes of plea bargaining or in trial, you cannot plead guilty to or otherwise be convicted of both DUI and DWAI. If the prosecution asks for an added DWAI charge at trial, the judge will tell the jury they cannot convict on both DUI and DWAI; the jury may convict of one or the other or neither, but not both.