Denver Bar Association
May 2010
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The Road Worrier — Part 4: Endless stream of slurred speech, red watery eyes, failed SFSTs

by Greg Rawlings

Standard Field Sobriety Tests (SFSTs), a.k.a. voluntary roadside maneuvers, horizontal gaze nystagmus (HGN), the Walk-and-Turn, One-Leg Stand, DUI, DWAI, DUI-D, DUI per se, EC, BrAC, BAC, refusal, a "soft twelve," a "wet reckless," NHTSA …

No, this isn’t some strange acronym-based sci-fi subculture. This is the world of drunken driving criminal defense (and prosecution) in Colorado, circa now.

Okay, maybe it is an acronym-based sci-fi subculture. It is a world of "pretext stops" and "indicia of alcohol consumption." A world of men and women drivers who always tell the cops they’ve had only two beers, if they admit to drinking at all. This is a world of sobriety checkpoints and cops who seem to be so jaded that they appear to me to use the exact same descriptions in their reports for every person they stop: "odor of an unknown alcoholic beverage, slurred speech, red, watery eyes."

In this world, everyone fails the SFSTs, or, in cop lingo, they "fail to perform the tests as a sober person would."

Want to have fun at your next party? Try to "pass" the roadside tests before you’ve had your first glass of that excellent Malbec you’ve been saving for a big night. Good luck.

Like many criminal defense lawyers in this state, I spend an inordinate amount of time defending drunken driving cases, with DV (domestic violence) cases a far second. Doing this work day in and day out, it seems we are a society of people who like to drink a lot and then drive after drinking, and then go home and slap around the spousal unit.

In reality, only a small percentage of Americans ever get caught and charged with DUI (DWI in many states), which in Colorado means a blood or breath test with a result of at least .08 percent blood-alcohol content. Yet the courts in this state are overflowing with drunken driving cases every day. Go to Denver County Court courtrooms 100K, or 186L, 316R or 320E on any day of the week to see what I mean. Case after case, day after day, a relentless tsunami of alcohol-related offenses.

And that’s just the criminal side. The Department of Motor Vehicles (DMV) is a special level of hell. The branch at 1881 Pierce Street — DMV’s death star for accused drunken drivers — is a rabbit warren of rooms, filled with men and women whose job is to take away the driver’s licenses of people accused of drunken driving. Don’t get me wrong, a number of them are as nice as they come. But if you refuse the chemical tests, you get an automatic one-year revocation — no driving privileges whatsoever. Try to keep a job without a license in Colorado.

Then, when you’re unemployed, try to keep your relationship with your husband or wife or significant other together. Again, good luck. And if you test over .08 BAC, you’re looking at a month without a license, then eight more months on an ignition interlock system. You know, blow a clean, alcohol-free test or Mr. Car ain’t movin’. If you test over .17, then hello to two years with that contraption. Ouch. Trust me, they’re not free, either.

Get two convictions in five years, or three in a lifetime, and it’s goodbye license for a good long while.

When I was in law school, we never studied drunken driving law. Sure, we learned enough evidence to mumble our way through a suppression hearing, maybe. But to tell if something is fishy with a blood draw or a breath test? To get a knack for these fallible machines? To learn how to cross-examine an experienced DUI cop? Well, law school has nothing to help you there. Yet, everyone has a right to make sure the system is working properly.

So, it’s CLEs in Vegas, it’s the listserve, it’s listening to Harold D. or David M. break down the weaknesses in the Deputy DA’s case. It’s trying to convince the client who pleads guilty that they could have killed someone, including themselves. It’s trying to convince 20-something DDAs that if the retest of the blood draw is 15 percent off the original test, the test isn’t dependable. The job description certainly doesn’t mention the tasks like convincing pretty 40-something suburban moms that if their darling 21-year-old daughter has a .225 BAC at 11 a.m., she probably has an honest-to-God drinking problem.

So, if you see me in the old Volvo rushing west on Sixth Avenue to JeffCo, with the latest Yo La Tengo disk cranked to 11 on the stereo, or hustling in the backdoor at 1437 Bannock wishing I’d had one more cup of Pablo’s excellent breakfast blend, I’ve more than likely got some DUI files in the Swiss Army shoulder bag. So, it’s time once again to turn down the first offer, or set a case for motions and trial, or take the hard-earned 8+3 and argue for straight probation. It’s time to wait forever to be called up to the podium, enough time, in fact, to lose at computer chess or win at solitaire. It’s time to figure out how to pass the time waiting to do something you never thought you’d have to do, not when you walked in the front door to your law school as a first-year, nor when you walked out the door for graduation.

Welcome to the machine.

By the Numbers…Drunken Driving

(courtsey of MADD — Mothers Against Drunk Driving)

1.46 million  

Number of U.S. drivers arrested in 2006 for driving under the influence of alcohol or narcotics. This is an arrest rate of 1 for every 139 licensed drivers. (National Highway Traffic Safety Administration. "Traffic Safety Facts 2006: Overview." DOT 810 809. Washington, D.C.: National Highway Traffic Safety Administration, 2008.)

3

About three in every ten Americans will be involved in an alcohol-related crash at some time in their lives. (NHTSA "The Traffic Stop and You: Improving Communications between Citizens and Law Enforcement." National Highway Traffic Safety Administration, March 2001, DOT HS 809 212.)

11,773

Estimated number of people in United States who died in drunken driving-related crashes in 2008 — a decline of 9.8 percent from the 13,041 drunken driving related fatalities of 2007. (NHTSA "Traffic Safety Facts 2007 Data: Alcohol Impaired Driving" DOT 810 985. Washington, D.C.: National Highway Traffic Safety Administration, 2008.)

50-75

Percentage of drunk drivers whose licenses are suspended who continue to drive. (Peck, R.C., Wilson, R. J., and Sutton, L. 1995. "Driver’s license strategies for controlling the persistent DUI offender, Strategies for Dealing with the intent Drinking Driver." Transportation Research Board, Transportation Research Circular No. 437. Washington, D.C. National Research Council: 48-49.)


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