DUI
Arrest and Charging Process
(from
a June 2019 Colorado Division of Criminal Justice report per Colorado House
Bill 17-1315, pp. 22-24)
“Generally, an individual is stopped by a [police]
officer for a traffic infraction and the officer [claims he/she] observes signs
of impairment or recent substance use. Examples of initial observations can
include the smell of alcohol or cannabis, the sight of open containers, slurred
speech, slowed reaction, or failure to follow instructions.
Once an officer notices an initial sign of
impairment and [believes he/she] has probable cause to suspect impairment, then
he/she may ask the individual to voluntarily perform a battery of
psychophysical tests and, potentially, a preliminary breath alcohol test (PBAT)
if alcohol is the suspected substance of impairment. If other drug impairment
is suspected, then the arresting officer may call a [so called] Drug
Recognition Expert (DRE) to assist or proceed with toxicological exams.
Under Colorado’s Expressed Consent law, “any person
who drives any motor vehicle upon the streets and highways and elsewhere
throughout this state” is required to provide a chemical sample or lose their
license upon refusal if the arresting officer has reasonable grounds to suspect
impairment. The arresting officer will
provide the person with a choice of a breath or blood test if alcohol is the
suspected impairing substance. Once the choice is made, the person cannot
renege and choose the other test.
If the individual has a breath alcohol test result
at or above 0.08 or refuses the test, the person’s license is surrendered to
law enforcement and the individual has seven days to request a hearing by the
Division of Motor Vehicles. However, if the driver chooses a blood test or the
officer has reasonable grounds to suspect drug-related impairment and requires
a blood test, then the license is not automatically surrendered because the
results of a blood test are not readily available. Generally, if the PBAT
result is above the per se limit [0.08%), the officer may choose not to
test for additional drugs as this is costly [and they likely have enough information
for a conviction anyway].
Two possible paths exist when a legal case is
initiated.
Misdemeanor.
When the case is being charged as a
misdemeanor, the arresting officer completes the Uniform Summons and Complaint
form that is generated by the law enforcement agency when the defendant is
arrested. The original copy is filed with the court, and copies are given to
both the defendant and the district attorney’s (DA’s) office.
[As in any prosecution] [t]he DA can add, amend or
dismiss charges, either as part of plea agreement or because such actions
better reflect the facts of the case. Because the case is a misdemeanor, the
defendant is not entitled to a preliminary hearing. Rather, the defendant will
be advised of his/her rights by the judge either while in jail or, if he/she is
released on bond before seeing a judge, when he/she returns to court.
Thereafter, the case will be set for either an appearance of counsel (for the
defendant to hire a lawyer or apply for the services of a public defender) or
an arraignment (where the defendant will enter a plea of guilty or not guilty).
If the defendant enters a “not guilty” plea, a trial
date will be set and, most of the time, a date to litigate constitutional
and/or evidentiary motions will be set prior to trial. If the defendant enters
a guilty plea (usually as part of a plea agreement), the court may sentence the
defendant immediately or, more likely, will set the case for a sentencing
hearing and direct the probation department to meet with the defendant and
prepare a pre-sentence investigation report [known as a PSI] in time for the
sentencing hearing [usually at least 6 weeks later].
Felony. If the case is
being charged as a felony, the law enforcement officer will arrest the
defendant and submit a Warrantless Arrest affidavit to the court and to the
DA’s office. The judge will advise the defendant of his/her rights, set a bond,
and set a return date for filing of charges. If the defendant is unable to post
bond, this date will be within three working days. If the defendant is able to
post bond, a later date may be set.
If the DA determines that misdemeanor charges are
appropriate, a misdemeanor complaint will be filed, and the case will
thereafter be treated as a misdemeanor. Otherwise, the case will continue to be
treated as a felony.
Once the defendant obtains or waives counsel, the
case will be set for a preliminary hearing in the county court. Meanwhile, the
DA and the defense attorney may negotiate an agreement. If they agree to a
misdemeanor, the preliminary hearing will likely be vacated and a date(s) for
entering a plea and sentencing will likely be set in the county court. If they
agree to a felony, the case will be bound over to the district court for an
arraignment where the defendant will enter a plea.”
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