1972, May, Pg. 17. Defending the Client Charged with DUI.

• Author: by Robert G. Busch

1 Colo.Law. 17

Colorado Lawyer

1972.

1972, May, Pg. 17.

Defending the Client Charged with DUI

17Vol. 1, No. 7, Pg. 17Defending the Client Charged with DUIby Robert G. BuschRobert G. Busch, Lakewood, is an associate with the firm of Alperstein, Plaut and Barnes, P.C.In recent years, there has been increasing emphasis on the relationship between the drinking driver and automobile highway accidents, and the Colorado legislature has manifested its concern over the problem by enacting legislation designed to crack down on the drinking driver. Driving under the influence (DUI) was originally defined in 1935.(fn1) In 1939, the legislature imposed a minimum 90-day jail sentence for a second or subsequent conviction.(fn2) In 1955, statutory presumptions relating to the level of blood alcohol sufficient to establish a prima facie case of DUI were promulgated, and the provision relating to the minimum sentence for a second conviction was modified to include only those cases where the second conviction occurred within five years of the prior conviction.(fn3) In 1967, the legislature adopted the implied consent law, pursuant to which an individual's driving privilege was revoked if he refused a chemical test of his blood, breath or urine, providing the officer had reasonable grounds for believing he was operating a motor vehicle while under the influence of intoxicating liquor. Under the 1967 law, the defendant's license was reinstated if the charge of DUI was dismissed or the defendant was found not guilty.(fn4) In 1969, the legislature reduced the concentration of alcohol presumptive of intoxication, and defined a new crime: driving while ability is impaired by consumption of alcohol (DWAI).(fn5) In 1971, the legislature modified the implied consent law, deleting the provision for the reinstatement of the defendant's driving privilege upon dismissal or acquittal of the charge.(fn6)

As the legislature's concern has increased, prosecuting authorities in Colorado have substantially increased their efforts to prosecute drinking drivers. The Colorado State Patrol now uses gas chromatograph equipment for the purpose of testing alcohol concentrations in the driver's breath. Other police authorities have started keeping records of the number of drunk driving arrests, and, judging from the figures reported therein, are making efforts to increase the number of arrests made for this offense. In addition, various prosecutors have instituted "get tough" policies relating to plea bargaining on DUI cases.

As a result of the foregoing activity, most practitioners can expect to be confronted with clients wishing representation in a DUI case. It is the purpose of this article to provide the practitioner who is

18unfamiliar with cases of this type with a concise summary of practice techniques. This subject is exhaustively covered in Defense of Drunk Driving Cases, Criminal---Civil, by Richard E. Erwin.(fn7) The Erwin book is indispensable for anyone who handles DUI cases on more than an occasional basis.

Interview with Client

At the first client interview, attempt to determine your client's activities on the day of his arrest, the identity of witnesses to the incident, the details of the arrest, the nature of the charges against the client and the dates of the required court appearances.

Ask the client to recount his activities on the day of his arrest, beginning with the time he awoke and continuing through the day until his final incarceration. In this way you can determine what the client had to drink, when he drank it and how much he drank. Also determine the amount of sleep the client had and what he had to eat. From this information, with the aid of expert assistance or with various tables and formulae (Erwin, supra, Ch. 15), you can form a rough opinion of the client's actual state of intoxication.

When questioning the client about his activities on the day of arrest, determine whom the client saw and when he saw that individual. Presumably, each person who saw the defendant on the day of his arrest will be able to testify to his condition at the time of their meeting. Particular attention should be given to those persons who saw the client near the time of his arrest. Often, the client will be acquainted with a bartender or waitress who will have seen him almost immediately before his arrest. In other cases, he will have been arrested shortly after leaving the residence of some friends, and they will be available to attest to his sobriety. It is sometimes possible to locate witnesses who actually saw the defendant's arrest. These will include passengers in defendant's car, passers-by and persons involved in an automobile accident with defendant. Less frequently, the defendant will encounter one or more persons known to him after he has been arrested. Efforts should be made to determine the names of other people who were held with him at the jail or who had an opportunity to observe him after his arrest.

You should inquire about the details of the defendant's arrest to determine whether moving pictures were taken of the client, whether a chemical test was taken of his breath, blood or urine, whether he made any statements to the police and whether he received the necessary advisements under the implied consent law(fn8) and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). If you are familiar with the arrest procedures followed by a particular police department this inquiry can often assist you in assessing your client's sobriety at the time of his arrest. Clients who fail to recall the details of their arrest are often found to have a suspiciously high blood alcohol content.

Finally, you should determine whether your client has been before a court, whether he is on bond, whether he had been arraigned, the date of his next court appearance and the nature of that court appearance. Many persons charged with DUI show a proclivity to neglect contacting counsel until a few hours prior to their trial. Prudence would dictate that you ascertain the stage of the proceedings against the defendant at your first meeting.

Investigation

After you have interviewed the client, you should examine a number of helpful public records available to you. Obtain a copy of the defendant's driving record, showing points, from the Motor Vehicle Division of the Colorado Department of Revenue. These records are available at a cost of $1.25 from:Department of Revenue

Motor Vehicle Division140 West 6th Avenue

Denver, Colorado 80204

Attention: Master Files

19The driving record is essential to plea negotiation, since in most cases the critical determination is whether the proposed plea will result in the loss of the client's driving privilege.

If the incident giving rise to the charges against the client involved an accident, you should obtain a copy of the accident report prepared by the local police authority pursuant to C.R.S. 1963, 13-5-22(4). This document provides the names of all persons who were driving motor vehicles involved in the accident as well as any persons who were injured in the accident. Thus, it can be helpful in locating defense witnesses. The accident report usually contains the arresting officer's version of the facts of the alleged offense, and by reviewing the accident report you can anticipate the testimony of the chief prosecution witness. Finally, the accident report contains much objective information which should be compared with other sources for inconsistencies which might be useful in cross-examination.

Review the court file in the client's case prior to arraignment. Not infrequently, DUI clients lose one or more of the court papers with which they are served, and to be fully apprised of the client's status with the court you should review the court file. Many county courts include evidentiary matter in the court file prior to arraignment, so that in the event of a guilty plea at arraignment the judge will have sufficient facts before him to allow him to impose immediate sentence. The officer's notes, written on the back of the summons and complaint, frequently appear in the court file, and often the accident report and the defendant's driving record also appear therein. In some jurisdictions every shred of documentary evidence available to the prosecution is placed in the court file prior to arraignment. Many judges do not allow discovery of the arresting officer's notes, so it is usually well worth the effort to review the court file prior to arraignment.

Since certain documents are prepared pursuant to the implied consent law which relate to the officer's observations of the defendant, it is occasionally fruitful to review the client's file at the Motor Vehicle Division of the Department of Revenue. These files are usually made available to attorneys upon request at the office of the Motor Vehicle Division, 140 West 6th Avenue, Denver, Colorado 80204. Frequently, however, the copy of the implied consent advisement which is given to the defendant contains as much information about the officer's observations as the documents in the Motor Vehicle file, and in those circumstances a review of the client's file is unnecessary.

Investigation in addition to matters disclosed in public information sources is often fruitful. Visit the scene of the alleged offense with your client, and carefully note the physical features of that location. It may be useful to photograph and take measurements of various features...