Driving Under the Influence Per Se (“DUI Per Se”)

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  6. Open Container
  7. Driving Under the Influence (DUI)
  8. Driving Under the Influence Per Se (“DUI Per Se”)
  9. Driving While Ability Impaired (DWAI)
  10. Second and Subsequent Offenses
  11. Underage Drinking and Driving (“UDD” or “Baby DUI”)
  12. Strict Liability
  13. Juveniles and Minors
  14. Evidence of Impairment
  15. Standardized Field Sobriety Tests (SFSTs)
  16. Drug Recognition Experts (DREs)
  17. Expressed Consent
  18. Breath Tests
  19. Blood Tests
  20. Prima Facie Case Requirement
  21. Preparing for Trial
  22. Voir Dire
  23. Expert Testimony
  24. Proving Chain of Custody
  25. Double-Refusals

A person commits Driving Under the Influence Per Se, sometimes called Driving with Excessive Alcohol Content, when that person:

      1. drives,
      2. a motor vehicle or vehicle,
      3. when the person’s BAC is 0.08 or more at the time of driving or within two hours after driving.

§ 42-4-1301(2)(a). See also COLJI 42:13 “Driving With Excessive Alcohol Content.”

Unlike DUI, DUI Per Se does not require proof that the person drove “Under the Influence.” That means, with DUI Per Se, there is no need to prove a defendant was substantially incapable of exercising:

      1. clear judgment,
      2. sufficient physical control, or
      3. due care in the safe operation of a vehicle.

A person need only drive a vehicle and have a BAC of .08 or higher within two hours of driving.

“Drink After Drive” Affirmative Defense

Unlike with DUI, however, DUI Per Se defendants enjoy an affirmative defense particular to DUI Per Se:

The defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred.

§ 42-4-1301(2)(a).

This is colloquially called the “drink after drive” defense.

If a defendant provides “credible evidence,” also known as a “scintilla of evidence,” that they should receive this affirmative defense instruction, then “the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content . . . was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.” Id.

This “drink after drive” affirmative defense exists only for DUI Per Se because DUI Per Se does not require proof the defendant drove while under the influence. Although not an affirmative defense for other impaired driving charges, “drink after drive” is a common defense in impaired driving cases because it creates reasonable doubt that the defendant was under the influence at the time the defendant drove, which the prosecution must prove in all other impaired driving cases.

Test Result vs. Absence-of-Impairment Disparity Evidence

At trial, a defendant is statutorily permitted to elicit evidence and argue that the absence of indicia that the defendant was under the influence is evidence the chemical test was inaccurate or defective:

In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what any tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person’s blood or breath.

§ 42-4-1301(2)(b).

Such evidence would also be admissible in a DUI and DWAI case to not only to show the chemical test was inaccurate but, most directly, to contradict the prosecution’s claim the defendant drove while under the influence.

First-Offense Sentencing

Punishment Range Discretionary Caveats
Jail 5 days – 1 year No May be suspended upon completion of an alcohol and drug evaluation created pursuant to § 42-4-1301.3 and any treatment recommended by it.
Fine $600 – $1,000 Yes  
Useful Public Service 48 – 96 hours No  
Probation Up to 2 years Yes  

§ 42-4-1307(3).

If BAC > .2 while driving or within 2 hours of driving:

Punishment Range Discretionary Caveats
Jail 10 days – 1 year No Jail alternatives permitted pursuant to § 18-1.3-106
Fine $600 – $1,000 Yes  
Useful Public Service 48 – 96 hours No  
Probation Up to 2 years Yes  

§ 42-4-1307(3), (3)(b).

Resources

Colorado Resources

Impaired Driving Penalties

Example DUI Rule 11