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FORMER DEPUTY DISTRICT ATTORNEY
Do you need a Licensed Attorney?
Most legal cases would be better served by an experienced defense attorney. If cost is a concern, you will have to carefully consider whether your case is serious enough to merit retaining an attorney. Simple traffic cases might not warrant hiring a defense attorney, but a DUI charge, a violent crime charge or a parole violation are all examples of cases that can be time consuming, difficult to win and carry serious consequences.
What do I do if my car is stopped and I have been drinking?
It is not illegal to drink and drive. It is illegal to drink too much
and drive. Like it or not, alcohol is a part of our culture and society.
Every important ceremony and rite of passage we celebrate includes,
at least in part, alcohol. We tried to outlaw it, which seemed logical at the time: this led to disastrous results. We prefer to consider the reality. Alcohol, with moderation, is not a bad thing unless we make it a bad thing. If it negatively affects our behavior, or creates some risk to ourselves or others, it is a bad thing. So don’t make it a bad thing, and take a cab home.
If you are stopped, and you have been drinking, and you’re not sure how much you’ve had, there are some things you can do. First, the law states that you have to provide a license and registration to a police officer upon request, and you have to get out of the car if they ask. However, you do not need to perform roadside maneuvers, you do not need to recite the alphabet, and you do not need to walk down an imaginary line. You should ask the officer if the roadsides are voluntary (they must answer that they are). You should never blow into the hand held breath testing devices that police officers carry in their cars if you are worried about the result. The results of that test can be used against you in a hearing prior to trial, though it is inadmissible in the actual trial. And you don’t have to answer questions about whether you have been drinking, how long you have been drinking, or how much you have had to drink. If you make any admission to drinking any amount of alcohol, you will be asked to step out of the car and asked to perform voluntary roadside maneuvers. If you do not wish to perform the roadside maneuvers or answer questions about drinking, it will be difficult to do so without frustrating the investigating police officer. Many people say words to the effect of: "I’d like to help you out, officer, but a good friend of mine is a lawyer, and he told me he wanted me to call him if anything like this occurs" (believe me, you will not be allowed to call an attorney). If the officer asks if you have been drinking, they have probably already smelled alcohol: at this point it is unlikely that you going to be allowed to drive home. So why provide an officer with additional evidence to use against you if he is going to arrest you anyway?
If you are not sure if you’ve had too much to drink, and an officer is asking you pointed questions about alcohol use, you should accept the fact that you are probably going to be arrested. After you are arrested, you will be advised of Colorado’s express consent law, which gives you the right to choose between a blood test and a breath test. If you refuse to take any test, you will have your license revoked for one full year at the least and perhaps longer. If you choose to take a test, we recommend a blood test to our clients. The chain of custody on a blood test is really shaky. First of all, they send the blood sample through US mail, and there is no way the postal service knows about this process. The results will not be available for at least two weeks, and the officer will take a second sample that can be retested by the defense attorney. A breath test, with the current testing instruments, provides no retest, gives immediate results, and does not actually test the amount of alcohol in your blood. Rather, it utilizes a spectrophotometer that measures refraction in expired CO2, which it then attributes to blood alcohol via some complex formulas that we believe can be questionable. How you are tested and what happens before, during and after that test can mean the difference between a positive and a negative outcome in court.
The best decision is to make plans for returning home safely prior to drinking, but we understand that you may end up driving with alcohol in your system. DUI convictions become more expensive each year and the punishments become more severe. If you find yourself in need of a DUI defense attorney, please contact us as soon as possible.
What should I do if someone I care about is arrested?
Find out what their bond is set at, and either post the bond, or contact a bonding agent (also known as a professional surety), who for a fee can help post the bond. Most bondsmen charge 15% of the bond amount, which they keep as their fee. If it is a higher bond amount, they may be willing to reduce this amount to 10%. In some cases, the bondsman may want to hold a lien on a house or a car. Some may agree to graduated payments over time. We cannot recommend any specific bondsman, though there are hundreds listed in the Denver metro area. A judge may be willing to reduce bond upon request, however, your loved one will have to wait until a judge reviews the case, which will require time in jail. If the person you care about has been arrested on a crime of domestic violence, they cannot be released until a judge has issued a protective order, the terms of which may prevent the arrestee from returning home. Orders of protection have become more common as time goes by, and judges sometimes require a no contact order to remain in place even if the victim appears in court and asks that the order be dropped.
What if I am the victim and I want to drop the charges?
In the eyes of the court, the victim doesn’t file charges. Charges are brought to the district attorney upon recommendation of a police officer. Therefore, you have no power to have charges dropped. A prosecutor may respect your wishes to have charges dropped, but it is an extremely rare result, especially in a crime of domestic violence. Unless you are prepared to tell a prosecutor that you lied to the police (which would itself be an admission of a crime), they will likely use your presence to serve you with a subpoena, which will force your attendance at future court appearances. If you are conflicted about how to handle an upcoming trial, you should consult with an attorney about what options you have. You are not obliged to waive personal service of subpoena. Many witnesses don’t realize they are waiving their right to insist on personal service of trial subpoenas by signing and returning a waiver card. If you have been subpoenaed, and your testimony under oath will be different than what you told the police, you may be entitled to refuse to testify due your 5th amendment right not to incriminate yourself: however, you will definitely need an attorney to determine whether you are entitled to claim such a right, and how that right can effectively be asserted the constitutional protection under the 5th amendment applies in your case.
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