If My BAC Is Less Than 0.08, Will The Charges Be Dismissed?

Not in Colorado, because the state has a lesser offense; a charge of DUI will be for anything at 0.08 BAC or above, but we also have DWAI (Driving While Ability Impaired), for which the presumption is, if your blood alcohol content is between 0.05 and 0.08, your ability is impaired. In the legal definition in Colorado, there is no per se, meaning if you’re at 0.06, for example, that’s not a per se DWAI as anything above a 0.08 is considered a per se DUI. The legal standard actually is that you consumed the alcohol and that it affected you to the slightest degree and you were less able than you normally would have been to safely operate a vehicle.

The Prosecution gets an instruction that any result from 0.05 to 0.08 allows the jury to infer that someone was impaired, but it’s not a per se DWAI; the jury can just use that inference to establish whether or not they think you were affected to the slightest degree under the standard I just mentioned. What you’re looking at in DWAI cases in Colorado is not just the BAC result, but what other indications exist, such as driving behaviors, mannerisms, performance on roadside etc., that shed light on whether your ability to safely operate a vehicle was affected to even the slightest degree.  Therefore, your case can really only be dismissed outright if your BAC was below 0.05 with no indication of any other drugs on board.

How Does a Prescription Drug DUI Differ from an Alcohol Based DUI?

In Colorado, the number of drug DUI cases are rising because Colorado has legalized recreational marijuana, meaning it’s perfectly legal to drink or smoke marijuana, but what you can’t do after either is to drive, if your ability to safely drive has been affected. We’re seeing a slight rise in what we call DUID, or driving under the influence of drug cases here in Colorado due to legalized marijuana, but we also see a lot of prescription drug cases. Most people are under a misconception that, if they are  taking their prescription medication as prescribed, there are no issues, but that’s not true.

Any substance you voluntarily ingest that affects your ability to safely operate a vehicle can subject you to a possible DUI charge, even if you’re taking it as prescribed. If it carries warnings or quite frankly, even if it doesn’t carry warnings, if it’s affecting your ability to safely operate a vehicle, you can be found guilty of driving under the influence; Colorado doesn’t differentiate between alcohol and drugs; either alcohol or drugs or a combination of the two can lead to a DUI conviction, so you must be very careful about what you’re taking; if it affects the way your motor skills react and things of that nature, you have to be really careful about taking it and then driving.

What Types of Prescription Medications are Generally Involved in a Drug Related DUI?

It will be generally more difficult for the prosecution if it’s a prescription medication which is taken as prescribed, because most prescription medications that affect your ability to safely operate a vehicle, will have all kinds of warnings associated with them, either from your doctor or the pharmacist, and the prosecution has to bring someone in who is familiar with the effects of that substance to establish how someone might react to it when they take it.

The bottom-line is, those cases do tend to be a bit more complicated for the prosecution, but I’ve represented plenty of people in prescription medication cases in which there was absolutely no warning on the label or otherwise, but there’s still an allegation that someone who took their prescription medication didn’t know that they weren’t allowed to drive, had never been given any warning.

According to the prosecution or according to the officer, and they’re responsible for what they put in their body and how it affects them, and so it’s a real slippery slope for some people who are on a lot of prescription medications. They really have to take it upon themselves to educate themselves about how those prescriptions might affect them and make sure that they’re able to safely drive a vehicle.

A lot of times, those cases require experts on both sides to talk about the therapeutic levels of those substances, whether those therapeutic levels have been exceeded and, if not, whether at normal therapeutic levels, they’re likely to affect someone’s ability to safely operate a vehicle. Often, when someone’s on a lot of prescription medications, it’s because they have a lot of other medical issues that may have contributed to an officer’s observations of roadsides or their driving behavior, and it’s not illegal certainly to drive with medical conditions that may make you not as good a driver as someone without medical issues, but it certainly is illegal to drive in a manner that makes you substantially incapable of safely operating that vehicle, when those limitations are due to the medications you’re taking, whether they’ll be prescription or illegal substances.

For more information on Multiple Charges In A DUI Arrest, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (303) 814-2600 today.

Colorado Criminal Defense Attorney Kevin Ellmann
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