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Blk97F150

Regular Member
Joined
Dec 21, 2010
Messages
1,179
Location
Virginia
I'm wondering if they can still charge him with that violation?

The police can, and usually do, charge people with as many things as they can.... the courts decide if the charge is accurate or not.

Your friend needs a good lawyer..... good luck to him.
 

Gunslinger

Regular Member
Joined
Mar 6, 2008
Messages
3,853
Location
Free, Colorado, USA
If the DWI is dropped, so will the other charge. If not, they'll go after him with both. I was not aware that DWI was solely dependent on BAL. You're BAL can be zero while high on drugs--legal or illegal, and DWI will stick with other evidence. Colorado DWAI (driving while ability impaired) is similar to Colorado DUI, except that to be convicted of Colorado DWAI, the prosecution is only required to prove that the defendant was affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment. DWAI is considered a lesser charge than DUI, but is also easier to prove.
 

PikesPeakMtnMan

Regular Member
Joined
Oct 16, 2008
Messages
425
Location
Colorado Springs, Colorado, USA
If the DWI is dropped, so will the other charge. If not, they'll go after him with both. I was not aware that DWI was solely dependent on BAL. You're BAL can be zero while high on drugs--legal or illegal, and DWI will stick with other evidence. Colorado DWAI (driving while ability impaired) is similar to Colorado DUI, except that to be convicted of Colorado DWAI, the prosecution is only required to prove that the defendant was affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment. DWAI is considered a lesser charge than DUI, but is also easier to prove.

DWAI is a BAC of .06 to .07 and DUI is .08+....but if I'm reading the law right, Gunslinger is correct that other factors, aside from BAC, can be presented in court to prove that the driver was too impaired to drive (or not).



42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties - repeal.





(6) (a) In any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:








(I) If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.








(II) 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.








(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.








(b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.
 

ColoradoFlyer

Regular Member
Joined
Aug 24, 2009
Messages
83
Location
Douglas County, CO.
I was told that a BAC of .04 or greater while also possessing a gun is a misdemeanor and is chargable. Whether operating a car or sitting at home having a beers. Something happens and you end up on the outside of your home holding your gun and the cops show up and you blow .04 or greater, expect a trip to the pokey. As someone else mentioned, a good lawyer is in the cards. Pony up the $5,000 and get a good one...
 

since9

Campaign Veteran
Joined
Jan 14, 2010
Messages
6,964
Location
Colorado Springs, Colorado, USA
C.R.S. 18-12-106. Prohibited use of weapons.

...

(d) The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 12-22-303 (7), C.R.S.

...

I'm wondering if they can still charge him with that violation? Does having the weapon in possession mean literally on him or close to him where he could reach it? Also since his BAC was below 0.05 the DWAI would be dropped, that makes it ok for the weapon to be there correct? Any insight will be appreciated. Thanks

The C.R.S. you cited with respect to "under the influence of intoxicating liquor" is not specified in state law as are the BALs for DWAI and DWI. The law leaves it up to the LEOs as a judgement call as to whether or not your friend was "under the influence of intoxicating liquor." Thus, your friend could blow a 0.01 and still be cited under the law.

On the other hand, a good lawyer should be able to argue the longevity of widely accepted BALs with respect to the safe operation of a motor vehicle (a dangerous endeavor, as proved by 30,000+ annual deaths a year), and sway the court to applying the same standard.

As for the weapon, even though there wasn't a round in the chamber, it was still loaded, was it not? Had it been locked in the trunk, it could easily be argued that's not "possession" by way of federal interstate transport regulations. Locked in the glovebox, possibly, but it may be a stretch.

Get the lawyer, and make it a good one.
 

JamesB

Regular Member
Joined
Jan 13, 2010
Messages
703
Location
Lakewood, Colorado, USA
I have a "friend" who faced this before.
yes, he paid a lawyer.
yes, the charge was dropped.
yes, he got the gun back.

lawyer for the case was Doc Miller 720-422-6502
 
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