Colorado DUI Traffic Stops: What To Know
Unfortunately, an attorney or lawyer that practices in DUI, DWAI, drunk driving, drinking and driving, or criminal defense is not able to provide legal advice during the traffic stop conducted by law enforcement. But see below where our attorneys discuss the various phases of the DUI stop process.
- DUI Phase 1 – Observe Driving
- DUI Phase 2 – Driver Contact
- DUI Phase 3 – Driver Removal
- DUI Phase 4 – Investigation
- DUI Phase 5 – Field Sobriety
If you’ve been arrested for DUI, reach out to the attorneys of Black, Blink, & Associates LLC. We have years of experience in DUI defense and defend those in Colorado Springs, Denver, and Littleton. Call us today at 719-694-0578 and let us evaluate your case.
DUI Phase 1 – Observe Driving
A driver or motorist is usually stopped by a law enforcement officer for a minor traffic infraction. These traffic infractions can vary from weaving, speeding, failure to use a turn signal, running a red light, expired license plates. There can also be vehicle safety issues that are the basis for pulling the driver over. These can range from a cracked windshield; lights not working on the headlights, taillights, and license plates. As most DUI attorneys and DUI lawyers will agree, the purpose for stopping the car is actually the start of a DUI investigation. If the basis of the stop is based on a violation of the driver, this is considered the initial indicator that the driver might be DUI, DWAI, driving drunk, all by alcohol or drugs or both alcohol and drugs. If the driver requests an attorney or lawyer during the stop, the cop will inform the driver that they do not call attorneys or lawyers to the location where the driver was pulled over.
DUI Phase 2 – Driver Contact
Once the police officer has pulled the driver over, the officer will most likely approach the vehicle to explain the purpose of the stop, request the driver’s license, registration and proof of insurance. The police officer is immediately looking for any signs there may be that the driver is DUI, DWAI, driving drunk, or otherwise driving under the influence of alcohol and/or drugs. The police officer is looking for signs of drunk driving by attempting to smell an odor of an alcoholic beverage, looking at the driver’s eyes to see if they are bloodshot and/or watery, and also that the driver’s speech is slow or slurred. These are all considered signs that the driver might have been driving drunk. Police officers are trained to distract the person that they believe is driving drunk. For example, the cops will look for signs of drunk driving by dividing the attention of the driver they suspect of DUI or DWAI. Once cops have requested the driver’s license, registration, and proof of insurance, the cop will then start asking other questions before the driver has had a chance to retrieve these documents. Police will ask questions like “where are you coming from,” or “where are you going to.”
If the driver gets confused, distracted by these questions, or stops searching for the documents to answer the question, police will take this as a sign that the driver may be driving drunk, DUI, or DWAI. The officer will then ask the driver how much they have had to drink. As an attorney / lawyer, that has done countless DUI cases, the most common answers are 2 drinks or a couple of drinks. Although DUI attorneys and DUI lawyers are not able to assist at the scene, the best advice a DUI attorney or DUI lawyer can give is to politely decline to answer. Each answer a person gives can be used as evidence against them in a court of law.
DUI Phase 3 – Driver Removal
If the officer suspects the driver is driving drunk, driving under the influence (DUI) or driving while ability impaired (DWAI, DWI) the officer will ask the person suspected of driving drunk, DUI , DWAIto step out of the vehicle. The officer is constantly looking for any signs the driver is driving drunk. The officer will watch how the driver exits the vehicle. If the driver is holding on to the vehicle, unsteady, stumbles, sways or anything similar, the cop will consider this a sign that the driver has been driving drunk.
Once out of the vehicle, the officer will ask the suspected drunk driver if he/she would be willing to perform voluntary roadside tests. Some cops will not inform the suspected drunk driver that these roadside tests are voluntary, but in the state of Colorado they are deemed voluntary. Unfortunately, DUI attorneys and DUI lawyers are not invited to the scene. If a DUI attorney or DUI lawyer could be called to the scene, the advice would be to politely decline the roadside tests regardless if the person is driving drunk, DUI, DWAI or completely sober. If the person that is suspected of drunk driving requests an attorney or lawyer, the officer will inform the suspected drunk driver that attorneys and lawyers are not brought to the DUI stop.
The roadside tests for a person suspected of drunk driving are divided attention tests and are not required by Colorado law. In Colorado, a driver may refuse to perform the tests. The DUI attorneys in this law firm have completed legal education classes on DUI, DWAI, drunk driving, driving under the influence of alcohol and/or drugs. As such, and as most DUI defense attorneys and DUI defense lawyers will agree, many people cannot satisfactory complete the roadside tests even if they have not been drinking and driving or are on drugs. Nonetheless, the results of the roadside tests will be used against the driving suspected of drunk driving in a criminal prosecution.
If the officer reasonably suspects the person stopped has been driving a motor vehicle while drunk, driving under the influence (DUI) or driving while impaired (DWAI) by alcohol, the officer may attempt to conduct a preliminary breath test (PBT). The driver may either refuse or agree to provide a sample of the driver’s breath. This portable breath test device is not scientifically reliable. However, the cops use it to help determine if the driver is driving drunk, DUI, or DWAI. Because this device is not reliable, the results cannot be used in a criminal court during prosecution for drunk driving, DUI, or DWAI. The purpose is to justify the DUI arrest, and justify having the driver accused of drunk driving to complete a blood test or breath test. However, if the driver suspect of driving drunk, DUI or DWAI is under twenty-one years of age, the officer may require a portable breath test (PBT). The officer may use the results of the PBT to determine whether probable cause exists that a person has been driving under the influence (DUI) or is driving while ability impaired (DWAI,) by alcohol. Neither the results of the test or a person’s refusal may be used against the driver in front of a jury.
A person who drives a motor vehicle on the streets and highways of Colorado has given give expressed consent for a police officer to take a blood, breath, or urine sample when requested and directed by an officer who has probable cause to believe the person is driving drunk, driving under the influence, DUI, DWAI by alcohol or drugs or both alcohol and drugs.
If the driver is suspected of drunk driving, DUI for alcohol, DWAI for alcohol, the driver has the choice between a blood or breath test. In Colorado, if the officer has probable cause to believe the driver is DUI for drugs (DUID), DWAI for drugs, under the influence of or impaired by one or more drugs, controlled substances or combination of alcohol, drugs and/or controlled substances the officer may require a test of such person’s blood or urine, the officer’s choice.
The driver suspected of DUI or DWAI must cooperate with the officer’s request for a breath or blood sample so that the sample may be obtained within two hours of the person’s suspected drunk driving unless extraordinary circumstances are met. Any failure of the driver suspected of drunk driving to take and complete, and cooperate in the completing of, the breath or blood test shall be deemed a refusal to submit to testing.
DUI Phase 4 – Investigation
Once the police officer has made contact with a driver, the police officer may then start investigating the possibility the driver is drunk, DUI, DWAI or under the influence of alcohol or drugs.
Generally, the first clues after the traffic stop that an officer looks for is the odor of alcohol, red and/or watery eyes, slurred speech, thick tongue, and flushed face. The officer will also be observing the driver’s motor skills while the driver is retrieving his / her driver’s license, proof of insurance, and registration. An officer may then ask the driver if they have been drinking. The most common answers drivers will provide if they have been drinking is “2 beers / drinks,” or “a couple”, or “a few.”
A person is not required to answer incriminating questions and defense attorneys, defense lawyers, DUI attorneys, DUI lawyers would prefer that their clients not answer these types of questions by politely declining to answer. Once a police officer suspects the driver has been drinking, is drink driving, DUI, DWAIor is under the influence of drugs while driving, the officer is likely to request the driver to perform standard field sobriety tests (In many jurisdictions, including Colorado Springs, a DUI enforcement officer may be requested). These tests are voluntary. Although cops will not call attorneys and lawyers during the investigation for DUI, DUI attorneys and DUI lawyers would advise clients to politely decline the roadside field sobriety tests, including a hand held breath test device.
DUI Phase 5 – Field Sobriety
Standard Field Sobriety Tests: The Standard Field Sobriety tests are a series of mental and physical tests that determine the driver’s ability to follow instructions, maintain balance and coordination. Basically, these tests require the suspected DUI driver to concentrate on more than one thing at the same time. Also called divided attention tests.
Field sobriety tests In Colorado are voluntary (this does not include blood or breath tests, Colorado requires a driver to complete a blood or breath test when a cop has probable cause to believe the driver has been drinking). Often a driver will decide to perform the tests in the hopes that if they do “OK” the cop will let them go. However, it is more likely the police officer is attempting to gather evidence for probable cause to request a chemical test (blood or breath test) and to build a stronger criminal case.
The Sixth Amendment right from the United States Constitution does not raise the right to have an attorney called out to the scene or the place of the stop. This basically means that the driver does not have opportunity to have legal advice regarding the field sobriety tests. The best advice an attorney or lawyer would provide is to politely decline the field sobriety tests including any hand held breath testing devices (portable breath test). An officer can still require a blood test or a breath test from a scientifically reliable breathalyzer, which is a breath test machine at a police station or sub-station. In Colorado Springs, breath test machines can be found on military bases and colleges.
NHTSA Field Sobriety Tests
The standard field sobriety tests recommended by the National Highway Traffic Safety Administration (NHTSA) are:
- Horizontal Gaze Nystagmus (HGN or eye test):
In this test the police officer has the suspected DUI driver stand still. The officer will then take a stimulus (pen, penlight, flashlight, finger, object etc.) and hold it out in front of the driver’s eyes. The officer will ask the driver to follow the object with their eyes without moving their head. The police office is looking for 3 clues; lack of smooth pursuit, distinct jerkiness at maximum deviation, and angle of onset. Many officers do not know the proper way to conduct this test. The officer can be questioned by a DUI attorney or DUI lawyer whether at a DMV hearing or in a trial. The attorney or lawyer may ask the officer to conduct the test in front of the hearing officer, judge, or jury. The attorney or lawyer will be able to identify if the officer does not hold the stimulus at the appropriate height, or the proper distance from the eyes of the person accused of drunk driving, DUI, DWAI. The attorney or lawyer can also observed the officers movement of the stimulus that the officer is requiring the suspected drunk driver, person that is DUI or DWA. Moving the stimulus too fast can result in a false test which causes the person to be charged with a drinking and driving offense.
- Walk & Turn
In the walk and turn test the officer is observing the DUI suspect’s ability to listen to instructions and follow those instructions while demonstrating balance and coordination.
The driver is given a set of instructions that require him / her to stand still until told to start, then using a real or imaginary line, walk nine steps forward touching heel to toe, turn around, walk nine steps back heel to toe.
The officer is specifically looking to see if the suspected DUI driver can keep balance while listening to instructions, starts the test too soon, stops in the middle of the test, does not touch the heel to toe, walks a straight line, raises arms for balance, looses balance while turning, or steps off the line.
An experienced DUI attorney or DUI lawyer will be able to review the tests and insure that only actual clues are being reported as clues that indicated the driver may be driving while drunk, DUI or DWAI.
- One Leg Stand (balancing test)
In the balancing test the DUI suspect is instructed to stand still, raise one foot approximately 6 inches of the ground and count to 30 or 30 seconds.
The officer is looking to see if the DUI suspect sways while balancing, uses arms for balance, puts the raised foot down, or hops on one foot. Many people cannot hold their foot for 30 seconds and a police officer will take this as a clue that the driver is drunk, DUI or DWAI. However, the test does not require the driver to hold the foot out for 30 seconds. An attorney or lawyer that handles drinking and driving cases will be able to evaluate the results and determine if the test was conducted properly.
- Other Field Sobriety Tests: Although not standard DUI intoxication tests, police officers will occasionally use the following tests.
- Alphabet: On the rare occasions this test is used (in Colorado), the DUI suspect is asked to recite the alphabet (without singing it), and may be told to stop at a certain letter. The officer is checking to see if the DUI suspect can remember the alphabet, not sing, and remember to stop at a certain letter. Although some people that have been charged with DUI tell their attorney or lawyer that they were asked to recite the alphabet backwards, this would be an inappropriate request by the cop. An experienced DUI attorney or DUI lawyer would love an opportunity to cross examine the police officer that asked a suspected drunk driver to complete this test.
- Counting (backwards): In this test the police officer is asking the DUI suspect to count backwards from, for example, 22 to 11. The officer is checking to see if the DUI suspect can successfully count backwards and remember to stop at 11.