How we Coloradans  doing the yearly “Heat Is On” enhanced DUI checkpoint enforcement? Not well IMO (in my opinion). We are, so far, in line with or exceeding last year’s arrest numbers. Why am I doing a second blog on DUI? Because it is that important!

So far  we have over 100 arrests during the Labor Weekend alone. A total of 700 or more for the entire 20 days is in line with last year. That is the number we’re currently heading towards, and the 20 day law enforcement effort is far from over.

Ten Things That Are Not Generally Known About DUI Checkpoints and DUI Charges. This list is incomplete, and representations of the law may be wrong!

1.  An ‘escape route’ with signage must be included in the plan. The driver must be able to choose to not go through the DUI checkpoint. A U-turn or other escape route must be available and must be marked.
2. An actual written plan must exist, must be in place, and is discoverable by the defendant. The defendant can get a copy of the checkpoint plan.
3. SFT’s Simple Roadside Maneuvers, must be voluntary. The driver being investigated at the side of the road CAN say NO to performing the heel-to-toe, one-legged stand, and the rest of the SFT, or standard field sobriety testing maneuvers. They MUST be voluntary, and a refusal to participate in the roadside gymnastics cannot be used in court, and cannot be presented to a jury as evidence of guilt. That requirement of voluntariness also applies to the PBT, portable breath test. These are given at the side of the road, are not the ‘real’ breath test generally administered at the cop shop. That chemical test cannot be refused without severe consequences, and need not be voluntary, like the SFT’s. If a driver is required to elect “blood or breath,” there are severe consequences for refusing. The ‘PBT’ is a handheld device a little larger than a pack of cigarettes. While they can be accurate they crude and prone to error.
4. Contrast that with a LEO (law enforcement officer) asking you to select a breath test or a blood test, which is NOT VOLUNTARY. Refusing to take a requested chemical test IS presented to the jury as evidence of guilt. The DDA (deputy district attorney, prosecutor) can tell the jury of the refusal and can argue that refusing the chemical test is evidence of guilt. Additionally, the refusal likely will result in a one year loss of ALL driving privileges. No ‘red license’ known as a ‘probationary licens’ is possible and no time period less than the one year loss of driving privileges is possible. A one-year revocation of a driver’s license means precisely one year and no less. At the end of the year, the driver must take affirmative action to reinstate their driver’s license. If not reinstated, the revocation goes on forever. Also consider that a refusal might be the best evidence of innocence, a low test result is exculpatory. It is strong evidence that the driver is not guilty of driving under the influence of drugs, alcohol, or both. If marijuana or other drugs are suspected, the driver may be required to submit to a blood test. Since a breath test currently tests only for ETOH, ethyl alcohol, the alcohol that gets people intoxicated, it would make no sense to let drivers insist on a breath test. If legally sufficient grounds for the LEO requesting the test for suspected drugs, it makes sense that the State, the cops, are able to insist on a blood test.
5. If faced with the choice, first, be glad that you planned for, and can always pass the blood test. Electing the blood test is generally to the innocent driver’s benefit. Refusal hurts the sober driver. The blood test is far more reliable than breath testing. While many things can go wrong with a breath test, far fewer things can go wrong with a blood test. Although academically much can go wrong with a blood test, in real life, the test is usually administered with enough compliance with the law and the science to allow the results to be placed in front of the jury for their consideration.
6. Depending upon the result the test alone may be sufficient to prove the case, assuming facts like “was the defendant driving” are proven.
7. In short, it is simple. Never drive if you can’t pass a blood test, and at least for me, I’d select the more-reliable blood test instead of the breath test. A failed breath test is possible for a sober driver with little or no alcohol in their system. That is far more unlikely with blood testing.
8. A driver is generally entitled to a second sample of their forensic blood draw, blood taken by the police phlebotomist, for private confidential testing by a defense expert, or by an independent laboratory. Possible errors in the original blood test and testing might be disclosed by a second test.
9. Some issues like diabetes can interfere with a breath test. For a driver with uncontrolled diabetes, the breath may contain chemicals which fool the intoxilyzer (the breath testing machine at the police station). The machine can mistakenly identify some chemicals as ethyl alcohol, the drinking type of alcohol, even though no intoxicating beverages were consumed. Blood testing avoids that issue and is quite specific in identifying etoh, ethyl alcohol, booze, in a person’s system.
10. DMV, the Department of Motor Vehicles, decides upon license revocation. This is not up to the Judge or to the courts.

Do what is needed to never need these suggestions! A DUI charge will ruin more than just your night. Uber is CHEAP compared to a DUI charge. All the Ubers in your life will likely cost less than $10,000 and will likely include no additional penalties like job loss, arrest and jail. The Uber can take you back to your car in the morning. AND I HAVE HAD cases in which an erstwhile driver is still legally intoxicated in the morning. I had one client whose blood test result was inexplicable until I learned that the driver had consumed a case of beer the night before. When that extra ethyl alcohol was factored in, the otherwise puzzling test result was clearly explained. For this list for #11, I’ll point out that while many believe that they can metabolize, or burn, a drink an hour, and while that might be true for the first hour or two, the longer one is drinking, the more that becomes misleading. We do not really burn off a drink an hour. This scientific fact fools people who are at a BBQ for the entire day, drinking beer throughout the day. At the end of the Labor Day BBQ, the defendant-to-be might feel fine, and might have a BAC (blood alcohol content) which is way above the legal limit. And finally consider that for a lightweight, they might be legally intoxicated for driving laws at lower blood alcohol levels regardless the numbers in the DUI statutes.

This Labor Day, and forever in the future, make sure you can keep your focus on statues in museums and not on statutes in court! Leonardo DaVinci and not Leonardo The Lawyer.

WARNING!!! While I am an attorney in the State of Colorado, and while I do have extensive experience in handling DUI and DUID cases (alcohol or drug impairment or combinations), every case really IS different. The facts are never identical and the law is applied to the facts of the specific case. Consult with an attorney who knows the field, has experience in the field, and who can gather the information needed to put the test and the result into perspective. Even the law as I explain it here might have changed!  I intend to give NO LEGAL ADVICE in this blog. To give legal advice in a blog would be nonsense, since every case truly is different and since the law is constantly changing. Parts of what I write in this blog may have changed since I last looked at it. Trying to turn a 1700 word article into a legal opinion or advice is downright unhealthy, and simply put, wrong, stupid, and a really bad thing to do. Sorry about the name calling, but I am trying to stress the point.

Get a lawyer! If you are innocent, get TWO! As an attorney who has worked in Colorado courtrooms for over 48 years doing DUI cases and other criminal defense cases, I can report that for lawyers, it is painful to watch a civilian who is representing him or herself in a DUI case. As the DDA rolls over the unfortunate defendant, the defendant frequently does not even know that they have been run over by the system. Their smiling face is rolling down the courtroom aisle, having been severed from their head. Not even knowing that their head is rolling down the aisle, they are still smiling. Not for long.

The lawyer in a DUI case is part lawyer, part chemist, part teacher, part mathematician, and part magician. The deck is stacked, and NOT in favor of the driver.

Ironically, and worthy of its own blog, is that an innocent person likely needs a lawyer MORE than a guilty driver. Civilians frequently have this backwards. The system is designed to protect the rights of the guilty. It is not designed to protect the innocent, nor does it! Guilty is easy compared to innocent, at least for the law and for the lawyer. Many DUI cases end up being sentencing cases and not jury trials. Only 5% or less of all DUI cases go to trial. DUI marijuana cases are even more complex, if that is possible.

Be safe out there and do not spend the rest of your Labor Day or any time for the rest of your life in a jail cell waiting to post bond. Getting arrested is merely the beginning of a long and tortuous journey that would give the voyages of Ulysses a run for their money. As to cost, I estimate that a first offense DUI can easily cost in excess of $25,000, not including collateral consequences like the driver’s license loss. Additional potential consequences are too numerous to enumerate, and too severe to ponder over this otherwise happy holiday hoedown, summer’s last hurrah! If you get drunk, you’ll likely sleep it off. WHERE you sleep it off is usually up to you.

Lenny Lensworth Frieling

Shared Knowledge Is Power!

Leonard Frieling Pen Of Justice

• Multi-published and syndicated blogger and author.
• University lectures at University. of Colorado, Boulder, Denver University Law School, Univ. of New Mexico, Las Vegas NM, and many other schools at all levels. Numerous lectures for the NORML Legal Committee
• Former Judge
• Media work, including episodes of Fox’s Power of Attorney, well in excess of many hundreds media interviews, appearances, articles, and podcasts, including co-hosting Time For Hemp for two years.
• Life Member, NORML Legal Committee, Distinguished Counsel Circle.
• Photographer of the Year, AboutBoulder 2023
• First Chair and Originator of the Colorado Bar Association’s Cannabis Law Committee, a National first.
• Previous Chair, Boulder Criminal Defense Bar (8 years)
• Twice chair Executive Counsel, Colorado Bar Association Criminal Law Section
• Life Member, Colorado Criminal Defense Bar
• Board Member Emeritus, Colorado NORML, and prior chair during legalization, as well as pre and post legalization
• Chair, Colorado NORML, 7 years including during the successful effort to legalize recreational pot in Colorado
• Senior Counsel Emeritus to the Boulder Law firm Dolan + Zimmerman LLP : (720)-610-0951
• Board member, Author, and Editor for Criminal Law Articles for the Colorado Lawyer, primary publication of the Colorado Bar Assoc. 7 Years, in addition to having 2 Colorado Lawyer cover photos, and numerous articles for the Colorado Lawyer monthly publication.
• http://www.Lfrieling.com