DUI Defense: 20 Ways To Beat A DUI in Colorado (As Told By A DUI Lawyer)

Colorado DUI breath tests are subject to a wide range of errors. These include (but are not limited to):

• Instrument failure or malfunction
• Improper handling by law enforcement
• Physiological conditions (such as GERD or your diet, both of which are discussed below)
• Outside environmental factors (including radio frequency interference (RFI), described below)

Law enforcement most commonly uses DUI breath testing to measure BAC, but it’s not always accurate. A DUI breath test isn’t a direct measure of the level of alcohol in your blood. It calculates the level of alcohol present in your breath and then estimates the likely level of alcohol in your blood.2 Breath testing errors are a top Colorado DUI defense. DUI breath testing is often unreliable, generating erroneously high BAC readings. Understanding how this happens can be the basis of a successful DUI defense strategy.

“Mouth alcohol” is misread by DUI breath testing instruments as the presence of alcohol in lung tissue alcohol (alveolar air). This reading can occur under several circumstances:

• Alcohol trapped in food particles lodged in your dental work
• A small alcoholic drink burp leaves traces in the mouth
• Your mouthwash or breath spray contains alcohol
• Your chewing tobacco leaves traces of alcohol
• A medical condition3, such as acid reflux, increases the concentration of alcohol in the mouth (below)

You can challenge the results of a breath test as part of your DUI defense strategy.

• Heartburn
• Acid reflux
• Gastroesophageal reflux
• Disease (GERD)
• Hiatal hernia

Medical conditions may be triggered by the stressful encounter with law enforcement and being required to take a DUI breath test. The mouth alcohol levels increase due to the medical condition and are misread by breath testing instruments.

An experienced Colorado Springs DUI lawyer from our law firm will know how to leverage your medical condition to defend you in court.

Medical conditions such as GER, acid reflux, and heartburn can serve as a defense to DUI charges.

Ketosis is a chemical state where stored fat is used for energy, releasing alcohol in breath and urine. It turns to isopropyl and is picked up as high alcohol content on a DUI breath testing device. These machines do not distinguish between ethanol (alcohol in beverages) and isopropyl.

Ketosis is commonly caused by:

• Diet
  • low-carbohydrate
  • high-protein
• Diabetes

People who ascribe to keto, carnivore, or paleo diets or who have diabetes can fight DUI charges on this basis.

It takes 50 minutes to three hours for alcohol to absorb into the system.6 This phenomenon, called “rising blood alcohol,” may be leveraged as a defense regardless of how BAC levels are measured in either a DUI breath or blood test. If your blood alcohol levels were still rising at the time of your arrest, the chemical test results would show a higher degree of BAC than when you operated your vehicle.

As with DUI breath tests, the potential for error exists. Inaccuracies may be due to several factors.

• Fermentation of the blood
• Improper storage of your sample
• Contamination

Your DUI defense attorney may make what is called a “blood split motion” to learn how your blood test was conducted, and your sample was stored. Improper handling of your BAC results or blood samples will allow your attorney to have them excluded from evidence, which could lead to the dismissal of your DUI charges.

Title 17 of the Colorado Code of Regulations sets forth strict guidelines for DUI chemical test samples.

• Collecting
• Storing
• Analyzing

If there are any violations of these specific regulations and any violations of Colorado’s Title 17, BAC test results may be compromised. Your DUI blood test may be excluded from evidence if Title 17 isn’t properly handled in the following cases.

• Technician drawing DUI blood sample does not follow procedure
• The DUI breath testing instrument isn’t properly calibrated

A law enforcement officer must have reasonable suspicion or believe you are engaged in criminal activity before:

• ordering you to stop your car
• detaining you to conduct a DUI investigation
• arresting you for a Colorado DUI

It will be suppressed if “probable cause” is not supported by evidence gathered by the arresting officer.

It will not be used against you in your DUI case and may result in reduced charges or dismissal.

Miranda rights are not required in a Colorado DUI arrest. They are required, however, in the following instances:

• You have been arrested
• Your arresting officer conducts custodial interrogation

Colorado DUI law calls this custodial interrogation when the arresting officer asks questions that solicit incriminating responses after you’ve been arrested or are in custody.

The arresting officer must read you your Miranda rights if you’re in custody and the officer conducts a custodial interrogation. The officer must advise you of your Miranda rights when these conditions are met. Otherwise, any subsequent statements will be excluded from evidence upon a motion by your DUI defense attorney.

The arresting officer may claim things about your appearance at the time of the arrest. A flushed face, unsteady gait, watery eyes, slurred speech, and even the smell of alcohol on the breath do not prove impairment or indicate BAC above legal limits. Every one of these descriptions can be caused by something innocent: sunburn, fatigue, allergies, illness, and a drink within legal limits. An experienced attorney will know how to address these allegations during a hearing.

DUI field sobriety tests are notoriously unreliable. Colorado standardized field sobriety tests (SFSTs) are only 65-77 percent accurate indicators of alcohol and/or drug impairment. Data shows that accurate readings only happen if they are administered and scored (which is rarely the case). Other factors contribute to the unreliability of SFSTs and make it difficult for sober people to pass sobriety these tests:

• Intimidation tactics
• Weather conditions
• Poor lighting
• Uneven road surfaces
• Awkward footwear, such as boots, dress shoes, or high heels

Your DUI defense attorney will ensure the prosecutor is not able to present SFST results as reliable evidence in your DUI case.

Erratic driving, such as weaving and speeding, is often due to inattention or distraction and has nothing to do with DUI. Police may assume bad driving is DUI related. Not all bad or distracted driving results from DUI. It’s not unusual to drop something while driving and try to pick it up. Perhaps you were trying to change a CD, or your passengers distracted you. Eating or entering an address into your GPS is just as likely to cause a moment of poor driving. Any of these activities are something sober drivers do every day and are effective strategies for building a successful DUI defense.

Blood alcohol concentration (BAC) readings can be affected by factors other than the actual amount of alcohol in your body. Examples of factors when DUI Test devices don’t tell the whole story are:

• The time you finished drinking alcohol and how much is absorbed into your system.
• Test equipment errors in Colorado DUI chemical testing.
• Process errors in obtaining your DUI blood, breath, or urine sample.
• Your medical condition.

People tend to assume that DUI chemical test readings of BAC “over the legal limit” equate to DUI. This assumption is wrong, and your DUI defense attorney will let the prosecution know the reality of your situation.

Assuming DUI Chemical testing conditions are perfect, there is still an inherent +/- error rate of between 0.005 percent and 0.02 percent with all Colorado DUI chemical testing equipment. With that in mind, your DUI defense attorney may challenge the results of your BAC test when BAC levels are between 0.08 percent and 0.10 percent.

Colorado DUI checkpoints must comply with strict legal requirements. In Colorado, DUI sobriety checkpoints must comply with strict legal standards. This means:

• Supervising officers must organize and oversee each checkpoint.
• Field officers stop cars according to a predetermined formula.
• DUI roadblocks must be publicly advertised.

Your Colorado DUI defense attorney can challenge your arrest and fight the DUI charges whenever these requirements aren’t satisfied.

A Colorado DUI chemical blood or breath testing device can produce erroneously high BAC readings due to Radio Frequency Interference (“RFI”). That’s because electromagnetic static produced by high wires or even buildup on people can interfere with DUI blood and breath device function and produce an erroneously high BAC. RFI or EMI (electromagnetic interference) may be caused by the following:

• Vehicles such as patrol cars
• Fluorescent light fixtures
• Crime lab equipment including automatic door-unlocking devices
• Cell phones
• Microwaves

An RFI or EMI disturbances can devalue or even invalidate your DUI blood and breath testing results and are a strong DUI defense strategy (42-4-1301 (6) (IV)(II) C.R.S.), (42-4-1301 (6) (IV)(f) C.R.S.).

The State of Colorado distinguishes between two types of impairment: mental impairment and physical impairment. No sign of mental impairment at the time of your DUI arrest could be a defense to your DUI charges. Law enforcement officers most frequently cite physical impairment as evidence of DUI during Colorado DUI investigations.

Physical impairment might include:

• An unsteady gait.
• Slurred speech.
• Awkward movement and poor coordination.
• Red or watery eyes.

However, medical and legal experts agree that alcohol and/or drug-related impairment always displays itself in the form of mental impairment first. If an officer testifies against you, citing behavior that does not display mental impairment, you may be able to challenge the allegations you were DUI under (42-4-1301 (1) (g) C.R.S.) Colorado’s DUI law.

There’s something wrong when there’s a discrepancy between your BAC and your alleged impairment. When you reportedly exhibited no impairment or slight impairment but had a high BAC, this is called a disconnect DUI case. If the evidence seems untrustworthy, you and your DUI defense attorney should challenge the results of your DUI blood or breath test as part of your DUI defense strategy. A “disconnect” between evident impairment and BAC results is a red flag that can point to a successful DUI defense strategy.

If the police or witnesses did not see you driving, they can’t prove you were guilty of driving under the influence. Some examples might be:

• No one saw you driving your car in an accident
• The police find you in your parked car

A “no driving” DUI defense should be considered when the police didn’t see you operating the vehicle.

Law enforcement must follow proper police procedures. If you have experienced or witnessed misconduct while dealing with police and can support your claims with evidence, your DUI charges may be dismissed despite being guilty of DUI! Examples of irregular procedures may include:

• Inaccuracies in DUI police reports
• Failure to comply with Title 17 procedures
• Perjured testimony

Improperly obtained evidence or manipulations will be suppressed during court testimony.

The prosecution may even reduce or even dismiss DUI charges depending on the severity of the misconduct.

Wondering How To Beat A DUI? Talk To A DUI Lawyer

If you are facing DUI charges in Colorado, don’t go through it alone. Facing DUI charges can be overwhelming. The consequences of a DUI conviction can be life-changing. Take the first step and contact our legal team today to speak with a DUI lawyer about your charges.

If you have been charged with a DUI, contact our offices in Colorado Springs, Highlands Ranch, or Castle Rock to get a FREE consultation.