Administrative Law vs. Criminal Law
In every DUI case in Colorado, there are actually two separate proceedings or cases involved. These cases run at the same time. The administrative case is handled and initiated by the Colorado Department of Revenue, Division of Motor Vehicles. The administrative case of a DUI focuses exclusively on your privilege to drive. The decision on whether to revoke your driving privileges is made on a preponderance standard by a hearing officer that works for the DMV. You’re naïve if you think these hearings are fair and unbiased. Understand the hearing officer is paid to revoke your driving privileges.
The administrative case begins on the day you are stopped and charged. If you refuse to take a test or take a breath test and you BrAC is .080 or higher, you only have seven (7) days to request a hearing or the Department of Revenue will automatically revoke your license without a hearing. If you took a blood test, once the state tests your sample, the results will be sent to the DMV and they will mail you an Order of Revocation which initiates the administrative process at that point.
The State of Colorado will revoke your license for a minimum of 9 months for failing a chemical test and for one year if you refused to submit to a chemical test of your blood or breath. The revocation is automatic and begins 8 days after you are served the affidavit of express consent, unless you request a hearing within the seven day timeframe. If you performed a blood test, the Order of Revocation will be mailed to the address the DMV has on record for you if the blood test shows a blood alcohol content of .080 or greater. On a blood test you only have 10 days to request your hearing from the date the Order was mailed.
This hearing is called an Express Consent Hearing and if you fail to request the hearing, there is nothing that can be done to prevent your license from being revoked. Once the hearing is requested, it will put on hold any revocation action until the hearing is held and a ruling is made. If you had valid driving privileges as of the date you request your hearing, you will be issued a temporary 60 day driving permit. The hearing is required to be scheduled within that 60-day timeframe. The actual proceedings of the Department of Revenue and appeal rights are covered separately.
The other case deals with the criminal proceedings. This will take place in the criminal courts and the proceedings will be conducted in the county where you were arrested. This is the portion of the DUI case where the state authorities are trying to take a way your liberty and possibly, in some circumstances, place you in jail for up to a year. The criminal portion drives itself, in that the court will set mandatory court dates and notify the defendant when they must appear. This will happen regardless of any action taken by the defendant.
County Court of Colorado
In Colorado, your driving under the influence charges are prosecuted in county court. The county court is determined by where the officer said the violation occurred.
The first step is an arraignment where in many cases you show up to court and you are advised by an officer of the court (usually a Judge or Magistrate) of your rights and the possible penalties. Once you are advised, in many cases, the District Attorney, or one of their interns, will try and meet with you to make an offer to plead guilty to some or all of the charges. It is recommended that you speak to an experienced and reputable DUI attorney before your arraignment date. In many cases, the attorney can advise you of your rights and the possible penalty. In some jurisdictions, your attorney can request the court to vacate the arraignment date. This course of action has many advantages. First, you do not need to take a day off work or school. Secondly, it does not put the defendant in the uncomfortable position of speaking to the District Attorney without competent counsel present.
District Attorneys will spend very little time reviewing your case before deciding to make a plea bargain offer. In fact, their initial offers are based on a formula that evaluates simplistic factors, such as BAC, prior convictions, and whether there was an accident. It has been said that it is harder to get District Attorneys to change their offers once they are written on the file. This is true because many Deputy District Attorneys (DDAs) don’t want to step on the toes of the DDA who wrote the first offer. Many times there is no rhyme or reason for the first offer, but once it is made no one handling that file wants to offend the author of the first offer. This is another reason to have an experienced DUI attorney speaking to the District Attorney’s Office on your behalf. If your attorney does not understand the science behind your case, how can he explain to the DAs why their conclusions are wrong?
The next stage in the criminal case is the pretrial conference (PTC). The pretrial conference stage is the longest stage as you will generally have several PTCs before your attorney has enough discovery to make an educated strategic decision in your case. The DA’s office will take months to turn over the requested discovery and often times evidence needs to be subpoenaed or argued for at a hearing before the DA is obligated to disclose the requested information. This frequently causes there to be several additional hearings and for this stage to be prolonged.
The next phase is the motions hearing. This is when your attorney argues legal issues to the court in the form of motions to dismiss, motions for suppression of evidence, motions for specific discovery, and many other matters that the court needs to hear. The Judge will make a determination in the ‘light most favorable to the prosecution’ when deciding on suppression.
The next stage is the trial stage. In a DUI case in Colorado, we are only allowed a panel of six jurors. The defendant has a right to a speedy trial and must be tried within six months of pleading not guilty. Ideally, this will be the last stage in the process as you will hope to be found not guilty. However, if you are convicted at trial or if you decide to enter a plea and waive your right to a trial, you will have a sentencing hearing.
The sentencing hearing is the final stage in the county court process and is the process in which the Judge makes a final order or determination as to what your penalties are going to be.
Upon plea or conviction, you have the right to appeal the county court’s decision to a district court. It is important to have an experienced DUI attorney to explain your options.