Richard Nedlin: Guest Opinion

In this first installment of a series of articles, I will take you inside the mind set of law enforcement and behind the scenes of what occurs during a stop, arrest and blood or breath test for an alcohol- or drug-related driving offense.

In Colorado, there are two types of alcohol- and drug-related driving offenses. There is driving under the influence and the lesser offense of driving while ability impaired.

The difference between the two is based largely on the degree of impairment. In Colorado, it is not illegal to drink and drive. However, if you do operate a motor vehicle when your blood- or breath-alcohol content is .05 or more, you have committed a DWAI; if it reaches .08 or more, you are then facing a DUI charge.

As for operating a vehicle while on drugs, if you are found to be impaired, regardless if the drugs are prescribed or not, you still can be arrested for either a DWAI or DUI. There is not yet a quantitative value for drugs that allows for the presumption of impairment, but that is something that is currently being discussed by legislation, especially regarding marijuana. Therefore, if law enforcement determines that you are unable to operate a motor vehicle in the slightest degree due to either drug or alcohol consumption, you may be placed under arrest.

The stop of your automobile by law enforcement will commence an investigation on all alcohol-related driving offenses. In order for law enforcement to stop your car, it must have reasonable suspicion that some traffic offense or other crime was committed.

In most cases, this usually takes the form of speeding, careless driving, weaving or an equipment malfunction of one’s car. However, there is also something called a “report every drunk driver immediately”. In this scenario, an individual usually calls law enforcement stating they have observed a driver who is “all over the road” or driving in an unsafe manner. If that individual leaves contact information, law enforcement then might rely on that information and pull over that reported car without having to observe the bad driving personally.

Once a car stop is initiated, the officer will make contact with the driver just as in any routine stop. However, officers are very well-trained and conscious of the fact that when they make a stop late at night, they need to be looking for particular clues and signs of impairment.

When the officer approaches the vehicle, he first will explain why you were stopped and then ask for your insurance, license and registration. As you are looking for those items, the officer will be assessing your dexterity closely to determine if you have any difficulties obtaining these documents. You also will be asked questions about where you were coming from and whom you were with, among other inquiries.

The purpose of these questions is not as much to get information as to listen to your speech and test your divided-attention skills; in other words, can you answer the questions asked and still perform other tasks at the same time? If an officer does smell alcohol on your breath, he will ask how much alcohol you have had to drink and might even ask what kind.

While all of this is going on, you are being watched closely for any obvious signs of intoxication or impairment (difficulty concentrating, slurred speech, watery eyes, etc.). Officers are trained to gain as much information in as short amount of time as possible in order to determine if there is probable cause to make an arrest; or in other words, that it is more likely than not that you are impaired or under the influence of alcohol, drugs or both.

The officer then will take your information and go back to his patrol car in order to run your name and license to see if it is valid and if you have any “wants or warrants” outstanding. At this point, in most cases, the officer already has made a determination of whether he will ask you out of the car for further investigation, or perhaps he might have already determined to place you under arrest.

If you happened to find yourself sitting in the car for a rather long period of time, it is usually for one of two reasons: First, it might take a while for dispatch to return with the information on your name and license. Second, the officer is waiting for a backup officer because they plan on asking you to exit the car to perform additional tests.

Stay tuned for next time, when I will discuss what happens during those infamous standard field-sobriety tests, whether you have to take them and what they really mean.

Richard Nedlin is a former prosecutor who currently practices defense law in Aspen. His column runs monthly in The Aspen Times.