In the last blog post, we addressed the first case against a driver accused of DUI or DWAI, which is conducted by the Department of Revenue and involves the revocation of a driver’s license. However, simultaneous to that administrative case is a criminal case through the county courts where the driver was alleged to have driven under the influence.
In the criminal case, the district attorney’s office, or prosecutor, must prove beyond a reasonable doubt that the driver was impaired while driving. The criminal charge will be either DWAI (driving while ability impaired) or DUI (driving under the influence). DWAI applies for BAC levels between 0.05 and under 0.08. DUI applies for BAC levels 0.08 and above. The Express Consent Law affects a criminal case because whether or not a person submits to a chemical test can have a huge impact on his or her criminal case. As with the administrative case, a chemical test result makes prosecuting a criminal case much easier. But, refusing a chemical test has no direct penalty in a criminal case – just less evidence for the prosecution to use against the driver and possibly fewer charges that can be brought against the driver.
To understand how a chemical test impacts a DUI or DWAI criminal case it is important to understand the possible charges against a suspected impaired driver. DWAI (42-4-1301(1)(g); section 42-4-1301(1)(b)) requires the prosecutor to prove that a driver was driving while ability impaired. Having a chemical test that shows that a driver had a BAC between 0.05 and 0.079 is invaluable evidence to the prosecution. For DUI, a prosecutor can charge a driver with two separate charges – DUI (42-4-1301(1)(f); section 42-4-1301(1)(a)) and/or DUI per se (section 42-4-1301(2)(a)). DUI requires the prosecutor to prove that a driver was driving impaired and under the influence of alcohol. DUI per se requires the prosecutor to prove that a driver’s BAC was 0.08 or above. Thus, a chemical test is required to charge a person with DUI per se but not DUI or DWAI. No chemical test – no charge of DUI per se. Note that a prosecutor can, and will, charge a driver with both DUI and DUI per se if a chemical test reveals a BAC of 0.08 or above because the results of the chemical test can be used as evidence of impairment under the DUI charge as well as the per se charge. Usually, it is much easier to prosecute, and thus convict, a person of DUI, DUI per se or DWAI with favorable results from a chemical test, although DUI and DWAI may be prosecuted without such test results.
Again there are no criminal penalties for failure to consent to a chemical test, only administrative (revocation of your license). Although the courts cannot revoke your driving privileges, that is the job of the Department of Revenue, consequences from a criminal conviction of DWAI or DUI can include probation, fines, fees, community service and even jail time. These criminal charges are complex and require the experience and understanding of a skilled attorney in order to get the best possible outcome. Therefore, we recommend that you contact an attorney as soon as possible after a DUI or DWAI charge in order to limit the damage a DUI or DWAI can have on your life. Attorneys at Peter Loyd Weber & Associates have successfully defended countless DUI and DWAI clients and will work diligently to assist you in your case. Contact us at (720) 863-7755 today to see how we can help you.