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DUI/DWAI FAQs

Have a legal question about a DUI or DWAI? Check out our frequently asked questions below.

Do you have the right to refuse Standard Field Sobriety Tests (SFSTs)?

Yes. These tests are voluntary. Field Sobriety Tests claim to check your balance and coordination to help an officer determine if you are impaired or not. Every driver has the right to refuse to take these tests and the officers will then have to make an arrest determination based on the other information and observations available to them at the time.

When an officer asks me to follow a penlight, what are they doing?

The penlight test is actually called the Horizontal Gaze Nystagmus (HGN) test. Nystagmus is a medical term which describes a certain eye oscillation, essentially looking at the movement of the eye. Arguably, for an unimpaired person taking the test, the eye will follow the pen back and forth with only a minor jerking motion.

For an intoxicated person taking the test, the eye will move with a more pronounced and erratic motion as it tries to follow the pen. In general, the way the eyes move determines whether a person will appear to be impaired or not. There is however, debate regarding the value of this test as there are many causes for erratic eye movement other than alcohol.

Do I have the right to remain silent?

Yes. When pulled over, you need to provide license, registration, and proof of insurance. Once an officer starts asking questions, such as what you’ve been doing, where you’re going, or whether you’ve had anything to drink, they are simply prodding for incriminating information and checking for the smell of alcohol or marijuana on your breath.

You are not required to answer these questions and can tell the officer that you are exercising your right to remain silent or that you want an attorney before answering or that you simply have nothing to say. It is your choice whether to speak at all.

Does your Blood or Breath Alcohol Concentration (BAC) change when drinking at high altitude?

No. Regardless of the elevation at which you are drinking, in general your blood alcohol concentration will always be the same. Dehydration can potentially affect your blood alcohol concentration but, in general, it simply takes more from your body to perform any activity at higher elevation. As a result, you may feel more intoxicated when drinking in Colorado than say Florida after consuming the same number and types of drinks.

If I eat a lot before drinking, will I become less intoxicated?

No. Drinking alcohol on an empty stomach will impair your ability to drive quicker. Alcohol is not digested and is rather absorbed into your system. Food helps prevent you from absorbing the alcohol into your system as quickly as it delays the absorption process briefly.

Your body will still be absorbing the same amount of alcohol only it will be doing it over a different time period. As such, you may think you can drink more as you won’t feel intoxicated as quickly but it will eventually catch up with you.

Can I speed up the sobering up process?

No. There are those that believe that you can drink a lot of water to dilute the alcohol, or drink a lot of coffee to negate its effects, or even attempt to sweat the alcohol out by dancing hard. In the end, however, there is little that can sober up an intoxicated person in any significant way except time and the natural course of your bodily processes.

Can I receive a DUI the day after I’ve been drinking?

Yes. If your BAC is high enough you can receive a DUI the next morning. This is a common problem for people who stay out late drinking and have to get up early the next day whether to go home or to work. If you drank the night before, it can take a long time for your body to work the alcohol out of your system.

You may think 5 or 6 hours is long enough to wait, especially with sleep. If you drank enough, you may need longer. Many people don’t even realize alcohol remains in their system, or that they’re still impaired, the next morning. They chalk the sluggish feeling up to waking up early, a lack of sleep, and a hard night before. This conclusion is probably not accurate.

Don’t fool yourself. If you plan on having a heavy night drinking or did in spite of your best intentions, you should also plan on not driving for some time afterwards.

Can I plead ignorance for driving impaired?

No. Often times officers will hear people plead that they didn’t know the drinks they had earlier were alcoholic or that the percentage of alcohol in the drink was higher than they realized. Drivers may say that they didn’t realize they were impaired. You don’t necessarily have to realize that you’re over the limit established by law to be arrested and charged with DUI.

How long will a DUI stay on my record?

The answer depends on the state in which you’ve received your DUI conviction. In Florida it remains on your record for 75 years, while Tennessee it remains for life. Other states may have shorter durations. In Colorado, a DUI/DWAI conviction stays on your record for life and therefore subjects you to the greater penalties associated with additional DUI/DWAI convictions.

What if I am convicted of Underage Drinking and Driving (UDD)?

If you are driving under the age of 21 and have a BAC between .02 and .05, you likely will be charged with underage drinking and driving (UDD). This may result in a conviction at court and an adverse finding at a motor vehicle hearing. If your BAC is higher than .05, you can be charged with a normal DUI or DWAI.

A first time UDD conviction in court and an adverse motor vehicle finding at a hearing will generally result in the revocation of your driver’s license for 3 months, up to a $100 fine, and time owed to community service.

A second UDD conviction in court and adverse motor vehicle finding at a hearing will result in up to 90 days in jail, potentially larger fines, and the revocation of your driver’s license for 6 months.

Finally, if you are convicted in court for a third (or more) UDD and have an adverse finding at a motor vehicle hearing, your license will be revoked for one year, with up to 90 days in jail and potential fines. Other sentencing requirements may also be imposed such as alcohol education and treatment classes.

The Division of Motor Vehicles (DMV) also has a substantial list of requirements for reinstatement of your license along with other considerations not set forth here. Finally, the refusal to take an alcohol/drug test will result in the imposition at DMV of a license revocation independent from the court process.

What do police officers look for when suspicious that a driver is intoxicated?

The following list includes some of the things police officers typically look for as a sign that a driver is potentially driving while impaired. Obviously, erratic driving could be the result of any number of things, error included. The law allows a police officer to arrest a driver based on probable cause to believe that person is impaired by alcohol or drugs or both.

This takes place before any blood test or formal breath test at the police facility and signs noted by an officer include:

  • Taking excessively wide turns
  • Riding along the center marker between lanes
  • Nearly missing or hitting other drivers or objects
  • Weaving, swerving, and drifting
  • Driving outside of lane
  • Speeding
  • Odd stops in traffic lanes or excessively braking
  • Driving too closely to another vehicle or tailgating
  • Driving in oncoming traffic lanes
  • Improper signaling or failure to signal
  • Delayed reaction time at traffic lights or stop signs
  • Driving without headlights on at night
  • Erratic acceleration and slowing down

What do police officers look for in a drunk driver after they’ve pulled someone over?

Police officers are trained to a degree in detecting the physical and behavioral symptoms of someone who is impaired. They may also have personal experience with the subject based on time on the job.

Many of these symptoms may suggest that a person is impaired, though they do not determine definitively that they actually are. Officers are permitted to draw reasonable conclusions from appearances when deciding to arrest someone but these conclusions may also be challenged later in court.

The following signs are among the things that officers look for:

  • A red or flushed face
  • Eyes that are glassy, bloodshot, or watery
  • A smell of alcohol or marijuana on the breath or in the car
  • Incoherent  or slurred speech
  • Difficulty in retrieving license, registration, or insurance
  • Difficulty when exiting the vehicle
  • Inability to remain balanced while standing or walking or taking roadside tests
  • Difficulty in understanding conversation, answering questions or following directions precisely
  • An aggressive demeanor or an unduly emotional demeanor
  • Difficulty in stating the date, time, or in knowing the current location

Before taking a sobriety test, do I have a right to an attorney?

No. You do not have the right to an attorney when asked to take a field sobriety test although you can refuse to take field sobriety tests. You also do not have the right to an attorney before taking a formal blood or breath test and refusing to take one of these tests because you wish to speak to an attorney will generally result in the revocation of your driver’s license.

Please note that a field alcohol screening test (which looks like an over-sized inhaler and is usually administered at the car) is a field sobriety test, not a formal breath test (which is performed on a device that looks like a computer and is usually administered at a police facility).

If I decide to take a test, should I choose a blood or formal breath test?

Each choice has pros and cons. A blood test can include testing for drugs as well as alcohol. This may not be desirable and may suggest a breath test.  In Colorado however, your defense lawyer can have the blood sample retested, the results of which may offer some help in your defense. A breath test cannot be retested.

Both breath tests and blood tests have a laundry list of potential defects in their ability to produce an accurate result. Note that when an officer has probable cause to believe that the driver is impaired by drugs, a blood or urine test may be required without a choice given.

Can I receive A DUI without actually driving or moving in my vehicle?

Yes. If you are in “actual physical control” of your vehicle you can receive a DUI/DWAI citation. The vehicle need not be running and the keys need not be turned so that the dash lights illuminate or the radio and heater work.

The law is so broad in this regard that in some cases the suspect does not need to be in the front seat and the keys do not necessarily need to be in the ignition at all. It is also possible for the officer to articulate circumstantial reasons, such as a warm hood, why he or she believes that the suspect drove recently even if driving was never witnessed. The subject of “actual physical control” carries with it a wide variety of potential arguments in defense.

Will receiving a DUI increase my insurance rates?

Yes. Most likely if you receive a DUI your insurance rates will rise. Insurance companies determine rates based on potential risk including a history of driving under the influence of alcohol or drugs.

What is a hardship license?

In Colorado, there is no such thing as a hardship license. There are a handful of situations in which a person may qualify for a limited probationary driver’s license with driving allowed for work, school or certain essential needs. A probationary driver’s license is generally not available in the case of a drug or alcohol revocation.

If I receive a DUI and have a commercial truck license, are there special consequences?

Yes. Commercial truck drivers are subject to higher standards and greater punishment. A listing of the special standards is beyond the scope of this article.

What is the best way to avoid a DUI?

The best way to prevent a DUI is obviously to not drink or drug and drive under any circumstances. Even a single drink or small quantity of marijuana can impair a person’s driving ability to some degree although it may not be illegal.

Deciding whether you’re safe to drive after you’ve been drinking or drugging is problematic at best as alcohol or drugs not only inhibit your driving ability but your judgment as well. Many people who know they may be driving home try to limit themselves to a pre-determined and clearly safe amount. Pay attention, know your safe limit, and if all else fails… call a cab or a friend.