The DUI Definition: the Importance of a 0.08% Breath or Blood Test?

A DUI Definition is something that many people come into the office not knowing exactly what a DUI is. They realize that DUI stands for ‘driving under the influence,’ but they don’t know the nuances of what that means.

We all seem to have heard or read that if your BAC is over .08, you are a DUI.  The BAC number simply indicates grams of alcohol per volume of breath (or blood if blood test). It is stated as a percentage, which simply tells us how many grams per every 100 milliliters of blood (g/100 ml of blood) or grams per every 210 liters of breath (g/210 l of breath).

Bieber’s Blood Alcohol Content was below .08%

Some people bring a printout of the Blood Alcohol Content entry from Wikipedia.

When it comes to Colorado law, the DUI definition ed as over or under .08%.  The language of Colorado Revised Statute 14-4-1301 (1)(f) states:

(f) “Driving under the influence” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

In Colorado we also have a DWAI, Driving While Ability Impaired Statute found at Colorado Revised Statute 14-4-1301 (1)(g):

(g) “Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”

SO… what does “substantially incapable” as defined in the Colorado DUI definition relates to the 0.08% I keep reading about?  The answer is also found in the Statute.  Colorado Revised Statute 42-4-1301 goes on to give us the answer.  The law permits a jury to infer that if you are over .08%, that you were DUI, under CRS 42-4-1301 (6)(III).

“If at such time the defendant’s BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.”  

The Statute explains that it is a misdemeanor for any person to drive a motor vehicle or vehicle when the person’s BAC is 0.08 or more at the time of driving or within two hours after driving.

For a DWAI, if at such time the defendant’s BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant’s ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

.08 BAC Driving Offenses – DUI Definition

(After 1/1/2009)  – what NOW APPLIES to allegations after January 2009

First Excess B.A.C. 0.08 Driving Offenses, DUI Definition, Effective 1/1/09

CALL DRIVER SERVICES AT 303-205-5613 TO CONFIRM THE SPECIFIC REQUIREMENTS FOR REINSTATING YOUR DRIVING PRIVILEGE

REVOCATION:  

Your first episode of driving with a B.A.C. of 0.08 or greater results in a 9-month revocation.

• The revocation remains in effect until you complete the reinstatement process.
  ALL Excess B.A.C. reinstatements are processed by mail.  You should begin the reinstatement process approximately 1 month before you expect to reinstate.
• If you were 21 or older at the time of the violation, are a Colorado resident, and have no other unsatisfied license restraints, you may reinstate after only 1 month of revocation provided you install an Ignition Interlock Device (Interlock) in every vehicle you own or may drive.
• If your B.A.C. was below 0.17, you reinstate early, drive only an Interlock vehicle and do not have any B.A.C. when you drive, you may be eligible for an unrestricted license after 4 consecutive months of successful Interlock driving.

REINSTATEMENT (9-month revocation):  

You must:

1.      provide an SR22 from your insurance company and maintain it for 9 months following reinstatement (3 years if you were involved in an accident);

2.      complete an Alcohol Certification, Form DR2598;

3.      complete an Application for Reinstatement, DR2870; and,

4.      mail the SR22, the Alcohol Certification and the Application along with your personal check or money order for $95 to the address provided on the Application.

EARLY REINSTATEMENT (1-month revocation plus 8-month Interlock):  

In addition to items 1-4, you must maintain the SR22 for a minimum of 3 years regardless of whether there was an accident and

5.      have an Interlock installed in every vehicle you either own or may drive (call any provider for appt.);

• include the notarized Restricted License Ignition Interlock Agreement Affidavit, DR2058, and
• include a signed copy of each interlock lease agreement and of each installation certificate.

DUI Definition HIGH B.A.C. OFFENDER:  

In addition to items 1, 3, 4 & 5, if your B.A.C. was 0.17 or more, whether or not you reinstate early, you must

6.      enroll in and complete Level II Alcohol Education and Therapy;

• include the Affidavit of Enrollment, DR 2643.  (Omit Item 2 above.)

7.      have an Interlock restricted license for at least 2 years following reinstatement.

• Approximately 3 weeks after we receive your Application with ALL required documents, we will send you a Letter of Clearance.  You MUST then apply for a license at any Colorado Driver License Office.  Only after you have the license in hand is it lawful for you to drive.  For further assistance, call Driver Services at 303-205-5613.

COLORADO’S ONLY AUTHORIZED INTERLOCK PROVIDERS

#1 A LifeSafer of CO          800-475-5490          www.lifesafer.com

1A Smart Start, Inc.            800-880-3394          www.smartstartinc.com

Draeger                              800-332-6858          www.draeger.com

Guardian                             800-499-0994         www.guardianinterlock.com

Intoxalock®                         877-777-5020         www.intoxalock.com

While your privilege to drive is Interlock restricted:

• Your Interlock restriction may be extended if you on 3 or more occasions drink ANY alcohol before you attempt to drive – even if you drink the night before you attempt to drive.
• Your privilege to drive will be revoked for at least 1 year if even once you drive a non-equipped vehicle or try to circumvent or bypass the Interlock under any circumstances.

See Statute: DUI Statute: CRS 42-4-1301

Facing DUI Charges? Here’s What’s Next

Now that you better understand how .08% works in the eye of the law, let’s talk about what to do if you’re facing DUI charges.

If you are charged with a DUI, you should contact a qualified lawyer immediately. I can help defend your DUI arrest, thanks to my years of experience as a criminal defense lawyer in Colorado, and can explain the DUI definition. Contact me right away — I’ll work with you to help fight your case.