The DUI treadmill: what happens after you get stopped

ASPEN ” You’ve just finished dinner in Aspen and you’re driving out of town along West Main Street when you see the flashing red and blue lights of a police cruiser.

Sure, you’ve had a few drinks ” just a few, mind you ” but what if the cop smells booze on you?

You play it cool, pull over and wait as the officer sidles up to the window of your car.

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This could be the beginning of a long and costly process. A drunk driving charge starts with an embarrassing arrest and the potential publication of your name in the Friday cop blotter in local papers. Next is an appearance in court and, if you’re convicted, hefty fines, legal expenses and plenty of time spent clearing your good name.

But that doesn’t stop many drunk drivers.

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In 2007 alone, Pitkin County saw 177 driving under the influence charges out of a total of 488 traffic infractions heard in Pitkin County Court, according to statistics with the Colorado Judicial Branch.

Police, sheriff’s deputies and local prosecutors throw lots of resources at drunk drivers, and say that strict laws, enforcement and growing awareness all help save lives.

Still, three out of every 10 Americans will be involved in an alcohol-related car crash in their lives, according to statistics with the National Highway Traffic Safety Administration.

“Statistically the highest threat to your life in the city of Aspen or Pitkin County is a drunk driver in your lane,” said Sheriff Bob Braudis.

There were 226 alcohol-related driving fatalities in Colorado in 2006, making up 42 percent of the state total driving deaths, statistics that align with the national average (nationwide 17,602 people died in alcohol-related crashes, making up 41 percent of highway fatalities).

“Every deputy knows that a big part of their job is patrolling and pulling over any vehicle with probable cause,” Braudis said, and that includes anything from weaving and speeding to a broken headlight.

Aspen officer Rick Magnuson, who regularly patrols Main Street in Aspen ” mainly after the dinner hour or after the bars close ” said the DUI process usually starts with a basic traffic stop. The moment Magnuson or any other police officer approach your car window, they’re looking for signs that you’ve been drinking, he said.

Red, watery eyes, admission that you’ve “had a few,” or fumbling when reaching for your license and registration are all signs that you might be impaired, Magnuson said.

If he detects probable cause, then Magnuson will ask you to step out of the car and perform a roadside test. If you fail, he’ll slap on the cuffs, put you in the cruiser and read you the “express consent” form giving you the choice of a blood test or breathalyzer test to determine if you are intoxicated.

If you refuse the test, you lose your license for one year.

Driving with a blood alcohol content (BAC) of 0.08 percent or more earns a drunk driving charge and likely loss of your driver’s license, a standard that federal legislators changed from 0.15 BAC in recent years. Colorado also has a lesser charge of “driving while ability impaired” at 0.05 BAC.

For a typical 180-pound man, drinking 4.5 regular-sized (12-ounce) beers in one hour means you’re a DUI candidate; 2.5 beers in an hour and you’re eligible for a DWAI, according to experts.

A petite woman weighing 110 pounds would be illegal to drive at a little more than one beer and a half per hour.

After your arrest (you’ll likely be released into the custody of a friend unless you have prior arrests), you’ll enter the court system.

It all might sound like a witch hunt, but deputy district attorney Gail Nichols said the laws are strict for a reason.

The drivers in two recent vehicular homicide cases in Pitkin County, for example, had clean driving records. But their first brush with drunk driving, Nichols said, ended in someone else’s death.

But what are your rights and what should you do if you’re ever pulled over?

Just ask Dan Shipp, a Basalt-based attorney who specializes in drunk driving charges.

“It’s not against the law to drink and drive,” Shipp said. “It’s against the law to drive when your ability is impaired.”

With his deep Mississippi accent untouched by years living in Colorado, the barrel-chested Shipp dresses sharp on court days, wearing a shirt with cufflinks, suit jacket, cowboy boots and carrying a wide-brim cowboy hat he hangs in the corner of the courtroom.

But the flamboyant attorney rarely takes cases to trial (usually just four or five cases out of more than 120 statewide each year), he said. Instead, he fights the minutia of any DUI case, often earning his clients plea deals on lesser charges or getting charges dismissed on technicalities.

“Cops get sloppy,” Shipp said. And often officers haven’t performed required recertifications for DUI investigation or operating a breathalyzer.

And that’s where he goes for the jugular, saying that, for many people, the loss of a license means the loss of a livelihood or even family.

Shipp recently took a DUI to trial and won on a technicality, earning his client, an Idaho man, a guilty plea on a lesser alcohol-related charge because the district attorney failed to provide a certification form for a police officer testifying.

Shipp tells his clients to be polite and respectful if ever pulled over ” “if you’ve been a jerk with the cops, they’ll keep you” ” but not to give police any evidence and to remove any probable cause by being better drivers and ensuring their vehicle is registered and that the headlights and taillights work.

If you have been drinking, brush your teeth or eat some peanut butter, Shipp said. Police are looking for real drunk drivers, the kind who shouldn’t be on the road, Shipp added, not someone who’s just had a couple of drinks with dinner.

“You are not required to participate in any field sobriety test,” Shipp said. “And about 30 percent of the population is not going to pass the field sobriety test on their best day.”

Blowing a roadside breathalyzer, standing to allow officers to check for nystagmus ” a shaking of the eyes indicative of drunkenness ” or doing the one-leg stand or the “walk-and-turn” is only giving evidence to police, Shipp said.

Shipp said nystagmus, for example, can be caused by any of 39 conditions ” from head injury to syphilis ” and that most people can’t stand on one leg or walk a line regardless of their alcohol intake.

“The burden is on the state to prove the person was intoxicated,” Shipp said, and he does anything he can to poke holes in the credibility of police allegations.

Shipp claims that law enforcement officers often make drivers feel that roadside sobriety tests are required and are aggressive with defendants. He tells clients to insist on a blood test if arrested ” something Shipp can later challenge ” but never a breathalyzer.

“Don’t ever blow in anything,” Shipp said.

Blowing a breathalyzer gives police an immediate indication of how intoxicated you are and an unscrupulous cop might write a police report to match the machine reading. If you give blood, however, police must wait for the lab results and Shipp said they are more likely to write a report based solely on their observations.

If you agree to the test, your license will be returned to you, and if you’ve got a sober friend to pick you up, you’re free.

Shipp estimated the cost of a first DUI at more than $8,800, including court costs, an attorney and higher insurance premiums.

Taking a case to trial can cost from $19,000 to $25,000, money that many people are willing to pay to hang on to their driver’s licenses.

Weeks after a local DUI arrest, you’ll face Judge Erin Fernandez Ely in county court.

Ely knows a lot about substance abuse; she sees it in her court in cases ranging from straight DUI to domestic violence or assault ” all connected to drinking and drugs.

“Forty percent of fatal accidents are with drunk drivers,” Ely told the court recently, something she called an “overwhelming statistic.”

To the judge, it’s about treating the problem and not the symptoms; she estimated that about 15 percent of cases in front of her are “chronic” cases of repeat offenders. The rest she sees only one time.

On your first day in court, deputy district attorney Richard Nedlin will offer you a plea deal ” often to a lesser charge of DWAI from a DUI ” and you can be sentenced on the spot, or ask for a continuance and appear later with an attorney.

Ely relies on a handful of creative sentencing options, she said, doling out both punishment and a chance for people to change for the better through community service. She can also mandate drug and alcohol education classes.

She sends both first-timers with a high BAC (above 2.0) and second offenders to a drug and alcohol evaluation, and relies on the Right Door, a local nonprofit that fights substance abuse, to help people who need it. Many repeat offenders sign a contract with the Right Door and agree to a set of actions, including counseling sessions, regular calls to check-in with case managers, required proof of attendance at 12-step meetings and compliance with random urinary analysis tests.

A representative of the Right Door attends county court sessions and testifies about defendants’ performance on drug and alcohol tests and court-mandated appointments.

During a recent session, one woman had completed her requirements and asked to be removed from Right Door supervision.

“Can I be released from the Right Door?” asked Ashley Ondo, who’d answered to drunk driving charges.

“She’s been compliant,” said Mike Seery of the Right Door.

On the same day, Judge Ely directed a handful of other defendants to the Right Door, and Seery handed out business cards.

“They’re a great resource and they’re free,” Judge Ely told one defendant, a first-time drunk driver who was sent to an alcohol evaluator and given 18 months of unsupervised probation.

Judge Ely also sends many defendants to Alcoholics Anonymous and asks how they liked the AA meetings when they report back to court.

“They come back and tell me what it’s like,” Ely said. “It may enlighten them. They seem to get a lot out of it.”

“I’m digging a bigger hole,” admitted one young defendant, Kevin Johnson, during a recent court hearing.

“And it’s filled with alcohol,” Ely replied, before sentencing Johnson to a three-meeting assessment with the Right Door and compliance with a sobriety contract.

“The Right Door may have a better solution” than the standard classes and probation, Ely added.

At the same May hearing, Ely sentenced Todd Lee Shipley, who was coming off more than a year of work-release after a string of drunk driving and other drinking-related charges, to work with the Right Door.

“The structure of jail may be why you’re succeeding,” Ely told Shipley.

She suggested he find new habits, new friends and a new life, and said the Right Door would be an important piece for the “habitual traffic offender” with four DUIs.

“At some point ” and this is that point ” I give you this chance,” Ely told Shipley.

“There’s no question that alcohol consumption is out for you.”

Shipley agreed to an evaluation and recommendation from the Right Door.

“I hope I’m doing the right thing,” Ely said. “Good luck.”

Ely said later that she believes in the Golden Rule (as in “do unto others”) and restorative justice, trying rehabilitate the victim, the community and the offender.

Ely said “community participation” is the key.

Fines for a first DUI range from $300 to $1,000, plus typically 48 hours of public service, and fines for subsequent offenses start at $500.

A second conviction or a charge with a BAC of 0.20 or greater means mandatory time in jail (often work release or “day reporting,” where offenders must physically appear at the jail each day). Ely routinely waives or reduces the jail time, but often uses it as a tool to get people help or show them where they’re headed if they continue drinking and driving.

Also, she asks many defendants to donate to the Right Door and sentences them to prove attendance at Alcoholics Anonymous meetings.

So, a few drinks with dinner caused you embarrassment, wasted your time and cost you thousands of dollars. But area law enforcement officials say it just doesn’t have to be that way.

“The alternatives to driving here are broader than anywhere,” Sheriff Braudis said.

Anyone who thinks they’ve had too much to drink can get a ride on a Roaring Fork Transportation Authority bus or take a free ride with Tipsy Taxi.

Education in recent years, however, has been successful, Braudis said. And he’s seen a decrease in drunk drivers on area roads, particularly among teens. Braudis chalks it up to strict punishments and fear of losing a license.

Aspen might be known as a party town, Braudis said, but it doesn’t have to be a DUI town. That’s up to people making intelligent choices.

cagar@aspentimes.com.