The Declaration of Independence begins, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the Pursuit of Happiness”.
The Constitution does not reserve or limit any of our rights because of a specific criminal charge. That means that someone accused of murder is entitled to the same rights as someone accused of writing a bad check. These rights apply to YOU as a citizen, not to a specific charge. This is the way it is ‘supposed to be’, but in the real world, IT IS NOT TRUE.
Our courts have continuously found ways to limit the rights of people accused of DUI. You will find the following statements difficult to believe, but they are true:
• If you are arrested for DUI and submit to a breath test or refuse testing, the officer will IMMEDIATELY seize your driver’s license and will not return it. This is a form of punishment and you have not even had an opportunity to talk with a lawyer, see a judge or post bail. You ARE PRESUMED GUILTY even though the Constitution guarantees that you are to be presumed innocent unless proven otherwise --- A DUI EXCEPTION.
• If you are arrested for DUI, you have to fight the same charge in both the criminal courts and at the Department of Revenue, Division of Motor Vehicles. You have the right to contest the revocation of your driver’s license at the DMV. If you win that hearing to save your license, you may think that’s it, because of double jeopardy, which does not allow the Government to place you in jeopardy twice for the same offense. Well, you will still lose your license if you are criminally convicted of a DUI --- A DUI EXCEPTION.
• If you are arrested, the officer will rarely read your Miranda rights to you, even though he will continue to question you. You have watched TV and know this is wrong --- but not for DUIs. The Court again has found --- A DUI EXCEPTION.
• If you are arrested and taken to jail for DUI, you should feel confident that you will be allowed to talk with an attorney prior to questioning or being asked to give incriminating evidence against yourself. This is true in all crimes except DUI,
where you do not have the right to speak with an attorney before deciding whether to take a test or before deciding whether to answer the officer’s questions... Again --- A DUI EXCEPTION.
• If you are arrested and refuse to take a breath test, Colorado state law says that your refusal can be admitted to a jury with a presumption of guilt. But --- what about the 5th Amendment? Don’t I have the right to remain silent and it cannot be
used against me? --- A DUI EXCEPTION.
• If you are driving and are stopped at a roadblock, then questioned about drinking, you might easily think, “Wait, you have to have a reason to stop me, this is not legal.” If they were looking for drugs, or stopping you for any other crime, you would be correct, but not if it is a DUI checkpoint, they don’t have to have a reason to stop you --- A DUI EXCEPTION.
• In most cases, if the government knowingly destroys evidence, that evidence cannot be used against you. In a DUI case, you are asked to take a breath test. The machine is capable of preserving the sample of your breath for additional testing. The government, for monetary reasons and knowing there will be no punishment for destroying that evidence has chosen not to maintain the second sample, yet they are allowed to introduce the result into evidence --- A DUI EXCEPTION.
• If you have a couple of quick drinks and are stopped within 5-10 minutes after leaving your house or a meeting, you may not be affected by the alcohol yet—but you still may be requested to take a chemical test and as long as it is taken
within 2 hours of your arrest, which is close enough for the government. It can be used against you and may show a much higher alcohol level than what you had while you were actually driving. In effect, you will be guilty of potentially committing a crime even though you were not intoxicated or even impaired when actually driving. As long as you were impaired or under the influence within two hours of driving, the state thinks that is good enough to arrest, charge and convict you --- A DUI EXCEPTION.
• The Police must have a search warrant to enter your home, even for a murder investigation. But as long as the police can
come up with an excuse or claim that they were concerned about your safety and wanted to conduct a ‘welfare check’, they may be allowed to enter your home. A recent California case allowed the police to enter a home for a misdemeanor DUI investigation without a warrant. This was based on a neighbor’s tip; that is, the police did not even see the person driving, they just entered the home without a warrant. Surely, this would not be allowed. Sorry --- A DUI EXCEPTION.
• You have heard of double jeopardy. The government will start two proceedings after a DUI arrest -- an administrative proceeding and a criminal proceeding. You will be required to respond to both and a loss at either will result in you losing your privilege to drive. That’s right - the government gets two chances to take away your license and let’s not forget that the burden of proof at the administrative proceedings is much different. The state must only prove by a preponderance of evidence that you refused to take a test or were above the legal limit to revoke your driving privileges --- A DUI EXCEPTION.
• The Constitution requires a warrant before evidence can be forcefully taken. In a nearby state, if you are stopped, asked to submit to a breath test and refuse (remember the 5th Amendment and your right not to incriminate yourself), a ‘BAT mobile’ will be called to the scene, you will be strapped down and a police officer will take your blood on the spot. Yes, this is happening in America because we have --- A DUI EXCEPTION.
• You can be convicted of DUI even if your driving was not impaired. The law has what we call a ‘per se’ provision. That means if the machine says you are .08 or more, you are presumed guilty even if your driving was not affected. The government will not have to show your driving was impaired or you were under the influence, just that a machine reached
a certain number. You thought you had a right to be presumed INNOCENT --- A DUI EXCEPTION.
• The Constitution guarantees an accused the right to face the accuser in court before a jury. This is the Right of Confrontation. In DUI cases, the accuser is most often a machine that makes mathematical conversions to calculate
a number equivalent to what it thinks is in your blood. This mathematical conversion is secret because the manufacturer
considers it ‘proprietary.’ Math is generally considered to be an absolute and no one owns it, but in DUI cases you will not know the method used to compute your number because it is the proprietary property of the manufacturer and the
state does not have to disclose how the machine reached your BrAC --- A DUI EXCEPTION.
• Simply being charged with DUI or DWAI in Colorado can create a record that cannot be sealed or expunged. Even if your case is completely dismissed, you may not be able to seal your record. That record will follow you forever and may impact you for the rest of your life. Now, had you committed a felony like stealing a car or selling cocaine, you would have the ability to seal that record. Sound fair? – Not even close, but another example of --- A DUI EXCEPTION
You get the idea. We could go on and on listing the exceptions to the constitution as they relate to DUI cases. DUI has become a social crime and no politician will speak against the charge or means of applying penalties if he wishes to remain in office. We also continue to move away from the problem -- intoxicated drivers. The limits are lower and you can be convicted for a number that has no relationship to your driving abilities. In Colorado the legal limit for people over 21 is only .05. Remember that number. When is the last time you saw that number posted in any media campaign or drunk driving prevention campaign? Oops, I guess the state forgot to mention that minor detail, but it doesn’t matter right, because ignorance is no excuse to the law?
None of this addresses the repeat offenders who are heavily intoxicated, but it does move towards a new form of prohibition in our country. One state has lowered the legal limit to .04 for repeat offenders and it is easy to envision a nationwide move to lower the number to .04 for all drivers. In addition, DUIs are the ‘cash cow’ for the court system. Court costs for a first time DUI are higher than for felony drug possession. There are numerous reasons your case is being placed on a ‘fast track.’ There are many powerful forces striving to increase the number of DUI convictions throughout the nation --- all the more reason you need an experienced DUI ATTORNEY.