DUI > Frequently Asked Questions


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What is a DUI/DUID?

“Driving Under the Influence” (DUI) means that your ingestion of alcohol, marijuana, other drugs or a combination, has made you substantially incapable, either mentally or physically,to safely  operate a motor vehicle.   In the State of Colorado, you are presumed to be “under the influence” of alcohol when your blood alcohol level is 0.08 or higher.  You are presumed to be “under the influence of marijuana” when you have 5 or more nanograms of active THC in your blood.  The prosecution will  also use evidence of bad driving, your performance on road side exams and your own statements to prove their case.

What is DWAI?

Driving While Ability Impaired (DWAI) is a lesser offense of DUI, with similarly harsh consequences.  DWAI means that you operated a motor vehicle while your ability to drive was impaired ‘to the slightest degree’ by drugs, alcohol or both.  In the State of Colorado, you are presumed to be ‘impaired’ when your blood alcohol level is 0.05 or higher.


Do I have to perform roadside sobriety tests?

Absolutely not!  These tests are completely VOLUNTARY.  They are not mandatory under any circumstance and you should politely DECLINE all requests to perform them.  An officer’s main purpose in having you perform these tests is to help police establish probable cause to arrest you.  These tests are designed for failure.  Not only are they very difficult to perform even when sober, government studies show that officers fail to accurately interpret your “test” results almost 30% of the time.  But they will use your performance and their opinion of your performance as evidence against you.  Do NOT help the police convict you. Exercise your rights and decline to take ANY roadside tests.

What is Portable Breath Test and am I required to take it?

The Portable Breath Test (PBT) is a test of your breath alcohol level that is usually given at the scene of your traffic stop.  This test is not considered scientifically valid in Colorado courts and cannot be used against you at trial.  However, this unscientific test can and will be used as probable cause to arrest you for Driving Under the Influence of Alcohol.

You are not required to and SHOULD NOT perform this portable breath test.  Politely decline!

Do I have to take a blood or breath test if I am asked to?

Colorado’s Express Consent Law requires that you cooperate with police to take a chemical test if the officer has probable cause to believe you are under the influence or impaired. This is different than the PBT. A test pursuant to the Express Consent law will be done at a police station, hospital or by a paramedic.  It will NOT be done at the side of the road. You know you are taking a test pursuant to the Express Consent law when the officer advises you that failure to elect a test will result in a revocation of your license. You do NOT have the right to consult with an attorney prior to choosing which test to take.

The decision to take a blood or breath test pursuant to the Express Consent law is yours. However, you should understand that either decision can have negative consequences. If you refuse a chemical test, your license will be suspended by the DMV pretty much  automatically; however, your refusal will deprive the prosecution of an actual “number” to use against you in a criminal prosecution. Taking the chemical test will give police numerical evidence that will be used against you in a criminal prosecution AND at the DMV. If the results of your chemical test show you are over the legal limit, your drivers license will be suspended. The decision whether to take a chemical test will have consequences either way. What choice you should make depends on the facts of your situation at the time you are stopped by police.

Should I request a DMV Hearing?

Yes.  And you should request that the officer appear in person. If you were arrested for a DUI and took a breath test or refused, you only have seven (7) days to request your Express Consent hearing at the DMV. If you fail to request this hearing, you lose the right to a hearing and your license will undergo automatic revocation on day eight.  It is critical that you request a hearing immediately and request that the officer appear.  

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