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10th Circuit Oks filing DUI charges before BAC tests are even in

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The Tenth Circuit Court of Appeals, which covers Colorado and several other western states, has ruled against a woman who was sober when she was arrested for DUI in Utah. She contended that, without a breathalyzer or blood-alcohol test showing she was under the influence, the state had insufficient evidence to charge her with DUI. Nevertheless, she was forced to defend herself from DUI charges for two-and-a-half months even though her blood-alcohol test would ultimately show a 0.01.

Given that precedent, Colorado state courts would likely resolve a similar case in the same way.

Traffic stop for expired plate ends in DUI arrest

The woman was pulled over in 2016 for an expired license plate. She resolved that issue, but the traffic stop did not end there. Although she apparently exhibited normal balance, speech and eye appearance, the two officers said they smelled alcohol and concluded she was drunk. She admitted having a single beer over lunch, three hours before.

The officers made the woman perform roadside sobriety tests and claimed that she failed them. She contends that the instructions were unclear. The officers arrested her, handcuffed her and transported her to county jail where a blood sample was taken. She was never offered a breathalyzer test, which could have given a preliminary result right away. Instead, she was charged with DUI.

Arrestee sues, claiming blood-alcohol level needed for DUI charge

The woman sued the county that arrested her, claiming that the DUI charges should not have been filed until the blood-alcohol test results were in. She had been forced to retain a defense attorney at significant expense and had to live with criminal charges until her blood test was complete and the charges were dropped.

Did charging this woman without a positive breathalyzer or blood test violate her rights?

Not according to the Tenth Circuit.

Before they can charge someone, police need probable cause to believe that the person committed a crime. Essentially, probable cause is the degree of belief a prudent and cautious person would have based on the circumstances and available evidence.

Here, the county had statements from the officers that the woman had admitted having had a drink, that she smelled of alcohol, and that she failed field sobriety tests. That was sufficient for probable cause to believe she was over the legal limit -- which means they had enough to charge her without a breathalyzer or blood test.

A Colorado court would likely make the same determination. While a blood-alcohol test can be crucial evidence, the observations of an officer are generally considered sufficient to support not only a DUI charge but even a conviction.

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