Do I need an attorney?
Most legal cases would be better served by an attorney who knew what he or she was doing. But unless you are made out of money, you will have to carefully consider whether your case is serious enough to merit retaining an attorney. Routine traffic cases, when the status of your license is not in question, and when you are not in danger of losing too many points? That is one thing. But traffic can also be serious: if there has been an accident, or an excessive number of points charged, or if you been charged with a DUI or driving under suspension, you risk jail and further suspension or revocation of our license. Any misdemeanor charge carries the risk of jail, and serious and sometimes onerous terms of probation. Despite what you may think, the prosecution is not in the business of dismissing cases when asked to do so.
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 right 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 effects 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.
But 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 he asks. However, you do not need to perform roadside maneuvers, you do not need to recite the alphabet, you do not need to walk down an imaginary line. You should ask the officer if the roadsides are voluntary (he 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: that 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 affect 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, he will not allow you to call an attorney). But if he asks you if you have been drinking, he has already smelled alcohol: it seems very 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?
So, if you are not sure if you’ve had too much to drink, and you are in this situation, 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 a right to take your choice between a blood or a breath test. If you refuse to take any test, you will have your license revoked for one entire year, at least, perhaps more. If you do choose to take a test, we prefer a blood test for my clients. The chain of custody on a blood test is really shaky, first of all (they actually send the blood sample through the 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 we can have retested. 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 actually measures refraction in expired CO2, which it then attributes to blood alcohol via some complex formulas that we believe can be questionable There are virtually a million different circumstances that can effect the best strategy to employ, both before and after being charged with DUI. As we said, the best decision is to make plans for how you will return home prior to drinking, but we understand that this will not always be the case. Each year, the DUI laws have become more expensive, and the ramifications have become more severe; if you find yourself facing such a charge, 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 phone book. A judge may be willing to reduce bond. 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. Judges seem to be much more likely to require such things now in the current political climate, and may require a no contact order to remain in place even when 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?
You did not bring charges: those are brought by 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 we am afraid that is an extremely unlikely result, especially in a crime of domestic violence. Unless you are going to tell a prosecutor that you lied to the police (which would itself be an admission of a crime), they may very likely utilize your presence as a means of serving you with a subpoena, which will force your attendance at future court appearances. You should consult with an attorney about what options you may 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 such a right may be effectively asserted if this constitutional protection applies in your case.