The New Colorado Per Se Dui Law
| Publication year | 1983 |
| Pages | 1451 |
| Citation | Vol. 12 No. 9 Pg. 1451 |
1983, September, Pg. 1451. The New Colorado Per Se DUI Law
On July 1, 1983, H.B. 1287 became law in Colorado. This legislation creates a new offense of driving with a "BAC" (blood alcohol content) of 0.15 or more, replaces "implied consent" with "express consent" and changes the Motor Vehicle Department ("MVD") procedures for alcohol-related license revocations. This article highlights H.B. 1287 for the practitioner.
As a result of the new legislation, Colorado joins a growing number of states that have adopted an absolute type violation or so-called "per se" law. The legislation amends C.R.S. 1973, § 42-4-1202(1) and (2). Rather than presuming the influence of alcohol from a chemical test result, as do subsection (1)(a), Driving Under the Influence ("DUI"), and (1)(b), Driving While Ability Impaired ("DWAI"), new subsection (1.5)(a) criminalizes the level itself. The subsection makes it an offense to drive a vehicle in this state when the amount of alcohol in a person's blood is 0.15 or more grams of alcohol per 100 milliliters of blood or 0.15 or more grams of alcohol per 210 liters of breath, as shown by chemical analysis of such person's blood or breath.
In a prosecution for "per se," the state must prove only that the defendant was driving a vehicle and that his BAC was 0.15 or more. The state need not prove that the BAC affected the defendant's ability to operate a vehicle safely. Unlike subsection (2), however, which gives rise to certain presumptions based on chemical analysis at the time of the offense or within a reasonable time thereafter, the "per se" law requires proof of the BAC at the time of the commission of the alleged offense as an element of the charge. Expert testimony to extrapolate test results back to the time of the driving is necessary to prove the "per se" offense.
Pursuant to subsection (1.5)(b), the defendant is permitted to offer direct and circumstantial evidence to show that there is a disparity between what the chemical test shows and other facts so that the trier of fact could infer that the test was in some way defective or inaccurate. Non-expert witnesses may still testify to the absence of the common signs of intoxication. It is likely that testimony by the state's witnesses regarding a person's driving and performance on sobriety tests will also be admissible as relevant to the issue of the accuracy of the chemical test.(fn1)
The provisions of subsections (1)(a) [DUI] and (1)(b) [DWAI] and the related presumptions of subsections (2)(a)--(d) are not affected by the new legislation.
An analysis based on the statutory test set forth in People v. Rivera(fn2) for determining whether one offense is a lesser included offense of another would indicate that "per se" is not a lesser included offense of DUI, nor is DUI a lesser included offense of "per se." The "statutory test" mandates that the greater offense must establish every essential element of the lesser included offense.
Comparing the charges of DUI and "per se," it is readily apparent that both charges contain the element of driving a vehicle in this state. The additional element to be proven in a "per se" case is that a person had a BAC of 0.15 or more at the time of the commission of the alleged offense as shown by chemical analysis of such person's blood or breath. The additional element in a DUI case, by contrast, is that a person was under the influence of intoxicating liquor(fn3) at the time he drove the motor vehicle. Proof of a person's BAC at the time of the driving is not an element of DUI. The Courts of Appeals in Oregon, Missouri and New York have reached this conclusion.(fn4)
"Per se" laws have been attacked as unconstitutional for a variety of reasons. The constitutionality of Florida's "per se" law, which makes it a violation to drive with a BAC of .10 percent or above, was attacked as not being reasonably...
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