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To: Glenn Hains From: Edith Hannah Date: January 24, 2012 File: Number GH 06-1002 Re: Statutory

and Case Law Relevant to State of Colorado v. Kevin Dones You have asked me to summarize, with citations and cases, statutory and case law relevant to State of Colorado v. Kevin Dones. Facts Our client was stopped by a police officer at the bottom of a 1-mile long 10% grade hill on state Route 332 in Northhampton Township, at 3:30 p.m. on Sunday afternoon, January 15, 2006. He was riding a bicycle south on State Route 332. He was given a motor vehicle citation for speeding. They used a radar unit and claim a speed of 35 mph in a 25 mph zone. He also was administered a field sobriety test, which gave a reading over the legal limit and was given a citation for driving under the influence. Our client claims he was riding a bike because his license was suspended for having two previous DUIs Issues Was the motor vehicle speeding citation valid given that Mr. Dones was using a non-motorized vehicle and cited on the basis of radar evidence only? Was the driving under the influence (DUI) citation valid given that Mr. Dones was riding a bicycle and cited on basis of field sobriety test evidence only? Do the clients previous DUI citations have any bearing on the outcome of the case? Discussion The first question to be answered in this case is whether the speeding citation was valid. According to statute, a bicycle is defined as a vehicle for the purposes of traffic regulation (whereas, for example, a motorized wheelchair is not)1. Speed limits and the penalties associated with them apply equally to all vehicles, motorized or otherwise, so the fact that the client was on a bicycle does not automatically invalidate the speeding citation2. There is an exception in speed limit laws for exceeding posted limits in an unavoidable emergency situation where the risk of speeding is outweighed by the risk presented by the emergency, however the only enumerated example in the statute is fire engines and ambulances responding to a 911 call and the exception has been held not to apply in situations such as unavoidable lateness to a court proceeding, so any defense attempted on these grounds would have to be extremely compelling3. Colorado case law on the use of radar to establish speed requires that the radar device have been properly externally calibrated that day with at least one tuning fork which was certified as pitch-accurate within a year before or after the traffic stop in question4. If this requirement has not been met (for example if the device was only internally calibrated), the radar evidence may be thrown out as unreliable. A federal district court case that accepted the People v. Walker standard also ruled calibration with two or more uncertified tuning forks to be acceptable5. In these circumstances, the most likely avenue for advancing our clients case would seem to be investigating the calibration of the radar device.
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CRS 42-1-102(112). 42-4-1101. 3 42-4-1101(9a). People v. Dover, 790 P.2d 834 (1990). 4 People v. Walker, 199 Colo. 475 (1980); 610 P.2d 496. City of Aurora v. McIntyre, 719 P.2d 727 (Colo. 1986). 5 US v. OShea, (D.Colo. 1997) 952 F. Supp. 700.

The second issue to be addressed in this case is whether the clients DUI citation was valid under the circumstances. The drunk and drugged driving laws are the same for all vehicles subject to state traffic regulation, motorized or otherwise6. There are two primary violations under this statute: Driving While Ability Impaired (DWAI) and Driving Under the Influence (DUI), with DWAI only requiring even a slight impairment from full functioning while DUI means influenced to the point of being incapable of reasonable driving7. It is up to the judge or jury to decide which charge fits the allegations and return a verdict accordinglyboth charges may also be considered8. However, the court will presume that if the defendants blood alcohol content (BAC) was established to have been below .05% at the time of the alleged offense or within a reasonable time after, then the defendant was neither ability impaired nor under the influence9. A BAC between .05% and .08% allows presumption of impairment; BAC over .08% allows presumption of influence. The Colorado Court of Appeals has held that external signs of intoxication in conjunction with a refusal to take a field sobriety test or blood test or a failed field sobriety test are sufficient evidence to prove DUI10. Intoxilyzer tests are presumed to be admissible as evidence when the administrator is certified and follows administrative regulations11. Driving a car within the state of Colorado is presumed to imply permission to conduct blood or breath sobriety tests when there is probable cause to suspect intoxicated driving12. Since Mr. Dones failed the field sobriety test, unless we can show that the test was improperly administered or that a subsequent blood test established a legal-level BAC, the best course would likely be putting together a case for the lesser charge of DWAI, showing that he was not under the influence to the point of being incapable of driving. The third issue in the case is whether Mr. Dones previous DUI citations and the revocation of his drivers license have any bearing on the outcome of the present DUI case. The purpose of Colorados repeat offender laws for reckless driving is to remove the most dangerous drivers from public highways by revoking their drivers licenses after 3 offenses in less than 7 years; these laws have been found to provide adequate due process in order to revoke a drivers license13. Alcoholism is not an acceptable medical defense to rebut repeat offender status14. Commiting a DUI or DWAI or reckless driving offense after the revocation of a drivers license is aggravated driving with revoked license, a Class 6 felony punishable by 12-18 months in prison and a fine of $1,000 to $100,00015. Convictions that substantially conform to the Colorado traffic statutes (such as convictions in other states) may be considered for the purposes of determining habitual offender status16. Once a habitual offender is accused of aggravated driving with revoked license, he no longer has the right he otherwise would enjoy to challenge the use of convictions obtained when he did not have access to counsel, to determine his habitual status, although he may be able to challenge convictions on constitutional defects17. This is the most serious potential charge facing Mr. Dones, however it may also be the most defensible. The law that defines aggravated
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42-4-1301. 42-4-1301(1)(f-g). 8 42-4-1301(5). 9 42-4-1301(6). 10 People v. Mersman, 148 P.3d 199 (Colo.App. 2006). People v. Lowe, 687 P.2d 454 (Colo. 1984). 11 Aultman v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 5 (Colo.App. 1985); Malone v. Dept. of Rev., 707 P.2d 363 (Colo.App. 1985). 12 42-4-1301(1). 13 Crocker v. Colo. Dept. of Rev., 652 P.2d 1067 (Colo. 1982). 14 Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980). 15 42-2-206; 18-1.3-401(1)(a). 16 Kramer v. Colo. Dept. of Rev., 964 P.2d 629 (Colo. App. 1998). 17 People v. Hampton, 619 P.2d 48 (Colo. 1980); Wilson v. People, 742 P.2d 322 (Colo. 1987).

driving with revoked license specifies operation of a motor vehicle, and the operation part of the clause has been found to be relatively narrowly constructed18. If the motor vehicle specification is likewise narrowly constructedunlike most other instances of motor vehicle in the Colorado Revised Statutes, where it is followed by or vehicle to include non-motorized vehiclesthen a case could be made that Mr. Dones did not strictly violate the terms of his license revocation. He was, in fact, trying to comply with them. But it is also important to note that the court could chose to construct the statute broadly, label Mr. Dones a danger to himself and others even on a non-motorized vehicle, and move to press the aggravated driving charge all the same. Conclusion Mr. Dones best avenues of defense against the two citations are likely to be the administration of the tests entered as evidence. The much more serious charge of aggravated driving with a revoked license can be defended against on the specifics required to meet the charge, unless the court chooses to broadly construct the statute on the basis of the danger to the public Mr. Dones might present.


People v. Gregor, 26 P.3d 530 (Colo.App. 2000).