DUI Arrest and Charging Process

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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