Charged with Colorado DUI After Causing Serious Injury

Few occurrences in life are as jarring and consequential as a serious car crash. Even if you’re not badly hurt, an accident can potentially ruin your life. You could be found at fault for causing it. Worse, you could be charged with driving under the influence after a crash that has seriously injured or killed someone. Here is what you should know if you’ve been charged in Colorado with DUI after causing serious injury.

In This Article:

• What is a DUI Vehicular Assault?
• Were You Driving Under the Influence?
• Legal Consequences of DUI Vehicular Assault or Homicide
• Defending Against a DUI Vehicular Assault or Homicide Charge

What is a DUI Vehicular Assault? 

A DUI vehicular assault is exactly what it sounds like: A car crash caused by a chemically impaired driver that results in serious injury to another. Colorado law says:

If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. — Colorado Revised Statute 18-3-205

Intent plays no part in a vehicular assault charge with a DUI enhancement. In other words, the law does not care that you did not mean to hurt anyone when you drove drunk or high and caused a crash. Vehicular assault is a strict liability crime.

A Class 4 Felony 

Vehicular assault plus a DUI charge is a Class 4 felony. This is a more serious charge with more severe punishments, including:

• 2 to 6 years in prison
• Mandatory parole for at least 2 years
• A fine of $2,000 to $500,000
• Victim restitution payments
• At least a 9-months driver’s license suspension (if granted probation), and
• 90 days of continuous alcohol monitoring (if granted probation)

Vehicular assault without a DUI enhancement is a Class 5 felony punishable by:

• 1 to 3 years in prison
• Mandatory parole for 2 years, and
• A fine ranging from a minimum of $1,000 to $100,000

Additionally, the Department of Motor Vehicles (DMV) could assess an 8-point penalty to your driver’s license for reckless driving.

‘Serious Bodily Injury’ and ‘Proximate Cause’ in Colorado

Two key terms will play a major role in your DUI vehicular assault case. These are serious bodily injury and proximate cause. In short, you cannot be charged with DUI vehicular assault just because you were driving impaired and had an accident. Two factors must be in place:

1. Another person — another driver, passenger in any car, or bystander — must have suffered ‘serious bodily injury’ and
2. Your driving must have been the ‘proximate cause’ of that injury.

Even without those factors, you still can be charged for DUI and cited for either reckless driving or careless driving.

What is ‘Serious Bodily Injury?’ 

Colorado law relies on the following statutory definition of serious bodily injury:

“Serious bodily injury” means bodily injury that, either at the time of the actual injury or at a later time, involves:

• substantial risk of death;
• substantial risk of serious permanent disfigurement;
• risk of protracted loss or impairment of the function of any body part or organ; or
• broken or fractured bones, or
• second or third degree burns.

—  Colo. Rev. Stat. 18-1-901 (3) (p)

Injuries like concussion or whiplash may have long recovery periods, but these are not typically considered permanent or life-threatening. Therefore, these likely would not meet the ‘serious bodily injury’ standard in C.R.S. 18-3-205.

What’s Considered ‘Proximate Cause?’

Someone’s serious bodily injury must be a natural and probable consequence of your conduct behind the wheel. If this standard can’t be proven, it does not rise to the level of vehicular assault.

However, vehicular assault is a strict liability crime. The prosecutor does not need to prove extra recklessness beyond the alcohol or drug’s impact in your ability to operate a vehicle. If you were:

• Impaired by drugs or alcohol, and
• Caused serious bodily injury to another person in an accident

… that’s enough to establish a DUI vehicular assault charge.

What is a DUI Vehicular Homicide? 

If someone suffers a fatal injury while you’re intoxicated and driving/operating a vehicle, and your conduct is the proximate cause of their injuries, you have committed vehicular homicide. — C.R.S 18-3-106

DUI vehicular homicide is a Class 3 felony. It’s punishable by:

• 4 to 12 years in prison, and/or
• a $3,000 to $750,000 fine

Vehicular homicide without a DUI enhancement is a Class 4 felony, bringing two to six years in prison and $2,000 to $500,000 in fines.

Felonies Are Permanent 

Unless you’re a minor, a felony conviction stays on your record permanently. This means it cannot be sealed or expunged later. This goes double for any felony conviction involving DUI — even if you’re a minor. 

Were You Driving Under the Influence? 

Key to determining whether a DUI vehicular assault is warranted is if you were “under the influence.” In Colorado, if you have consumed alcohol, drugs, or a combination of both, and they impair your:

• ability to think clearly,
• physical control, or
• care in operating a vehicle safely,

… then the prosecution can add DUI to your charges.

—  C.R.S. 42-4-1301 (1) (f) 

There are several ways to tell whether you were driving impaired at the time of the accident. These include:

• Visible signs of erratic driving
• Observable indications of intoxication
• Field sobriety tests, and
• Chemical tests, such as blood and breath tests

The last one — chemical tests — is most crucial to finding out if you were legally impaired while driving. We will discuss that in greater detail now.

How Colorado Determines DUI 

Law enforcement officials at the scene will try to determine how the accident occurred. They will talk to drivers and/or passengers who do not need immediate medical attention. Police will look for signs of intoxication, such as:

• Slurred speech
• Unfocused eyes
• The scent of alcohol or marijuana on your person, breath, or in your car
• The presence of alcohol or drugs in your car

Given enough suspicion, police can arrest you for DUI regardless if you take a roadside sobriety test. People who are arrested for DUI must take an evidentiary chemical test. That could be a blood or breath test.

Colorado’s express consent statute gives law enforcement the power to administer a chemical test. They can even do this against your will — as long as they have a court order — after a crash where DUI is suspected. 

Blood Alcohol Content BAC

You can be charged with DUI per se if your blood alcohol content is measured at more than .08 grams of alcohol per one hundred milliliters of blood. You can be charged with DUI vehicular assault if your BAC is greater than .05.

The DUI enhancement is quite damaging. First, it kicks a Class 5 vehicular assault felony up to Class 4 (see above). Second, it gives victims ample opportunity to file a personal injury lawsuit against you — even if you escape criminal conviction.

A BAC measurement of .04 grams or lower cannot support a theory of driving under the influence. — C.R.S § 18-3-205.

THC Blood Content 

If your blood or urine contained five or more nanograms per milliliter of delta 9-tetrahydrocannabinol (THC), a jury can presume DUI. THC is the psychoactive ingredient in marijuana.

A urine test can only detect the presence of other drugs in your system, such as:

• Opioids (oxycodone, heroin)
• Stimulants (cocaine, crack, methamphetamine)
• Barbiturates (sleep aids, “downers”)
• Benzodiazepines (Valium, Ativan, Xanax, Klonopin) 

A blood test, however, can ascertain the amount of active parts of a drug (in this case, nanograms) are in your system at the time of the accident and/or DUI.

Legal Prescription Drugs

Under C.R.S. 42-4-1301 (1) (d), you can also be charged with a DUI for using your own legally prescribed medications if they cause you to drive in an unsafe way. These include medicines such as:

• cold medicines
• common pain medicines
• allergy medications
• inhaled vapors
• medical marijuana

For an extensive list of prescription drugs and ingredients that can support a DUI finding, see C.R.S. 18-18-102.

If you want even more information about BAC, including testing methods and factors which can affect the amount of BAC, I have put together a far more detailed DUI article.

Legal Consequences of DUI Vehicular Assault or Homicide 

A DUI-related accident that causes injury or death is a felony.

As I discussed earlier, the criminal consequences for a DUI vehicular assault conviction are:

• 2 to 6 years prison time
• up to a $500,000 fine
• Criminal restitution payments to the injured victim
• Three years of mandatory parole

Even if you avoid a prison sentence, other DUI consequences could apply, including:

• Having your license revoked for at least 1 year
• Three years of probation
• 90 days of continuous alcohol monitoring
• Having an ignition interlock device (IID) installed in your car (if you’re allowed to drive)

Continuous alcohol monitoring uses a trans-dermal ankle bracelet, worn 24 hours a day, to detect alcohol consumption. You risk violating probation and being sent to prison if you drink alcohol during this time.

An ignition interlock device is a breathalyzer wired to your car’s ignition. You blow into it before starting your car. If your BAC is too high, the device locks your car’s ignition, and it won’t start.

Don’t Disregard Restitution 

Criminal restitution compensates victims for financial harm due to a crime. For example, victims of theft and arson can recover lost damages from the perpetrator. The same goes for victims injured by a drunk or stoned driver.

Under C.R.S. 18-1.3-602, restitution can help make victims whole from losses “reasonably calculated and recompensed by money.” This can include, but is not limited to:

• Out-of-pocket medical expenses
• Lost wages due to injury and recovery
• Anticipated future expenses

Restitution does not include punitive damages or compensation for “pain and suffering,” “loss of enjoyment of life,” or “mental anguish.” The victim can recover these types of damages by filing a civil lawsuit against you.

Consequences of Non-Payment 

Restitution is a penalty imposed by the criminal justice system. That makes it a debt you can’t ignore, and one that increases at a rate of 8 percent annually. You will not be able to get it discharged in bankruptcy. Unpaid restitution can also keep you from getting a Colorado driver’s license.

Aggravating Factors in DUI Vehicular Assault

Any DUI-related accident causing injury or death is technically an “aggravated” DUI. That does not mean that more charges can’t be piled on. Other “aggravating” factors can include:

• High BAC: If your BAC comes back higher than .20, even if it’s a first-time offense, the court can treat you as a persistent drunk driver. That would not help your defense in any way. It’s also not a fun label to show to prospective employers or your auto insurance carrier after you’ve served your time.
• Prior DUI or DWAI convictions: Subsequent DUI vehicular assault charges may incur stricter penalties and more court skepticism in your current case.
• DUI with a minor in the car: A regular DUI with a child under the age of 16 in your vehicle will lead to a negligent child abuse charge. This can add another 3 months to 1 year in prison to your sentence, plus more fines. It will also hurt you in any future custody dispute. If a child in your vehicle is injured or killed in a crash, you could face anywhere from 2 to 12 years in prison, and up to $1 million in fines.
• Reckless driving: If reckless driving contributed to the accident, it can be an additional charge. For example: You get pulled over because you are driving recklessly, and then the police find cause to suspect DUI.
• Hit-and-Run: Leaving the scene of an accident you caused is a separate serious crime all its own, and will be added to the charges against you.
• Driving on a suspended, revoked, or restricted license: By itself, this is either a Class A traffic infraction, or a Class 2 misdemeanor. However, looking like a repeat offender can seriously jeopardize your DUI vehicular assault case since you weren’t supposed to be driving. 

Any of these can add to the original charges and increase the severity of your punishment if you’re convicted.

Mitigating Factors in DUI Vehicular Assault 

Aggravating factors work against you. However, the system can work for you if you’ve kept a relatively clean record prior to these charges. Mitigating factors in a DUI case cannot negate minimum penalties. However, they can prompt plea bargains for lesser charges or result in probation over jail time.

Mitigating factors can include:

• A clean driving record
• No prior criminal history
• Voluntarily seeking therapy and treatment for substance abuse

Of course, getting the system to be more lenient also requires the assistance of an experienced criminal defense attorney. 

Defending Against a DUI Vehicular Assault or Homicide Charge 

Hire a Criminal Defense Lawyer

An automobile accident causing serious bodily injury can be traumatic. Facing a vehicular assault charge afterward can make the situation far worse.

Your first smart move is to consult a criminal defense attorney for expert guidance. You’ll gain considerable peace of mind working with an attorney who has been down this road before. You’ll feel a lot of emotions during the process. You don’t want to feel alone.

Never admit guilt before talking to a lawyer.

Private Lawyer or Public Defender? 

Your best bet is a private defense attorney. If you qualify for a public defender, he or she could be quite overworked and may not be able to offer your case the attention it deserves. A good private criminal defense attorney can uncover convincing arguments you haven’t considered. A personally-detailed, robust defense can lead to a more favorable outcome such as dismissal, reduced charges, or a plea deal.

Common defenses include:

Challenging the Chemical Test Results 

Blood alcohol content (BAC) is not infallible evidence of impaired driving. Neither is the presence of certain drugs in the system. In fact, many variables can invalidate chemical test results. For example:

• Rising BAC: Alcohol takes time to absorb, potentially increasing after driving but before testing.
• Test Errors: Potential blood sample contamination or fermentation could be contested.
• Varying Results: Significant differences in separate tests may undermine the prosecution.
• Testing Protocol: Tests must conform to rigid standards. Laboratory errors in procedure or record-keeping can be critical.
• Diet/Health Impact: Medical conditions may compromise BAC test accuracy.
• Mouth Alcohol: Residual alcohol in your mouth can skew breath test results.
• Breath Test Flaws: Factors like body temperature or external interference may affect breathalyzer readings.
• Officer Errors: Improper administration of the breath test by the officer can be challenged.

Also, the presence of a drug in your system doesn’t mean you were ‘high’ at the time of the accident. Drugs like heroin or cocaine remain detectable in the bloodstream for up to three days — longer than their ‘high’ lasts. Marijuana and many benzodiazepines such as valium, Xanax, and Klonopin, are detectable for six days.

Challenging the Accident 

It’s easy to blame an accident on the driver who had alcohol or drugs in their system. Sure, alcohol or drugs can impair one’s ability to drive. However, you should not automatically get blamed for causing an accident when other factors could have contributed.

Here are some ways to challenge the accident:

• You Weren’t Driving: There’s no DUI without the ‘D.’ The prosecution has the burden of proof to show that you were in control of the vehicle when the accident occurred.
• Witness Statements Don’t Add Up: Inconsistent statements and testimony will cast reasonable doubt over the evidence being used against you.
• Your Driving Wasn’t Reckless: Absent a reliable BAC test, the prosecution must show that your handling of the vehicle was reckless enough to cause the accident. If you were neither impaired nor driving recklessly, then ‘vehicular assault’ becomes an accident.
• Not Your Fault: Despite driving while legally impaired (if they can prove that), you were not more than 50 percent at fault. Providing counter evidence that you did not cause the accident leading to the victim’s injuries will help your case.
• The Other Driver was Impaired: Did evidentiary tests rule out the possibility that the other driver was DUI? If not, a reasonable doubt may be built upon the fact that only one driver was suspected, especially if your driving was not in itself reckless.
• No ‘Serious Injury’ Occurred: Remember, many common injuries associated with automobile accidents do not meet the statutory definition of serious bodily injury. A good defense lawyer will subpoena medical records and gather other information to undermine ‘serious injury’ claims.

Challenging the Arrest 

Did you know you have rights when being arrested?  The U.S. Constitution says you do — and so will the court, if police abused your rights.

First, the responding officers must have probable cause to arrest you for DUI or vehicular assault. They cannot follow a ‘hunch’ based on certain biases or other unrelated factors. A charge of DUI vehicular assault is quite serious. Therefore, ample probable cause for the arrest must be present. Such as:

1. Your driving was the most likely cause of the crash, and
2. Signs of possible intoxication/drinking/taking drugs were present when officers contacted you after the accident.

For example: If you were hit while stopped at a light, even with a BAC of .08, you can’t be faulted for the accident, nor charged with vehicular assault. The police can only charge you for the DUI.

Other Ways to Challenge an Arrest 

Sometimes during an arrest, the police get ahead of themselves and miss a crucial step. When they do, it can completely unravel any case they’ve made against you. For example:

• You Were Never Advised of Your Rights: Police must advise you of your constitutional rights during your arrest, and before subjecting you to any chemical test. If they don’t, then none of the evidence collected against you can be admitted in court.
• Your Rights Were Abused: You have the right to remain silent, the right to an attorney, and so forth. Law enforcement must observe those rights while arresting you. If they violate your rights through intimidation, coercion, refusing to give you access to an attorney, or by conducting an illegal search, it can be used to dismiss their case.
• Police or Prosecutorial Misconduct: If any type of police or prosecutorial misconduct played a role in your case, and you can show it, their argument against you could fall apart.

More Benefits of Hiring a Skilled Criminal Defense Attorney 

Car accidents are distressing, and DUI vehicular assault charges can add weight to the trauma. This is why it’s imperative that you speak with a criminal defense lawyer. Good counsel takes the time to get to know you, and to understand every angle of your case.

Unique defenses may exist in your case. A diligent attorney will work to identify and utilize these for reduced charges or even a complete dismissal.

For example, a skilled private lawyer can:

Reconstruct the accident with expert analysis and precise accident scene measurements

Subpoena nearby traffic or security cameras to obtain footage countering the prosecution’s claims.

Investigate the alleged victim’s motives for potential injury exaggeration to maximize their insurance payout.

Let Us Come to Your Defense

Keep in mind that you are innocent until proven guilty, and every criminal case is a marathon. At Robinson & Henry, we have experienced defense attorneys who will run that marathon beside you. We know this is a stressful time for you and we’ll work for the best possible outcome. If you’ve been arrested and charged, take a big positive step now, and let us represent you. Call 303-688-0944 for your case assessment.