• Mario Nicolais

Colorado Supreme Court gets it right on DUI laws



My blood alcohol content measured 0.086. The legal limit for driving under the influence in Colorado is 0.08. In 2010, I made a mistake and the Littleton police arrested me for DUI.


Last week the Colorado Supreme Court reviewed DUI laws in a triumvirate of cases. Each case attempted to chip away at Colorado’s DUI laws from slightly different perspectives. All revolved around the admissibility of blood alcohol content tests in court. Defendants challenged blood tests that were taken from an unconscious driver (People vs. Hyde), or given after officers read a consent advisement to the driver (People vs. Simpson), or the admissibility of a driver’s refusal to take a BAC test (Fitzgerald vs. People).


When the court wishes to deliver a broad message on a topic, it often does so by issuing multiple opinions on related cases at the same time. That’s what happened here. Justice William Hood penned all three opinions without a single dissent. Justice Allison Eid wrote a concurrence in one and simply incorporated it by reference in the other two. While the opinions each employed strong legal arguments, these cases center on the underlying message: the Supreme Court is not interested in weakening Colorado’s laws against drunk driving.


That’s the right call.


Hood pinpointed the legal foundation for the court’s message when he wrote in the Hyde opinion, “Driving in Colorado is a statutory privilege, not a right.”


Because Denver is an automobile-based city and because almost all of us drive on a daily basis, we forget that basic concept. We can drive to work, drive to school, drive to the grocery store only because we agree to abide by the rules of the road. If we don’t agree, then we have no right to be behind the wheel.


For example, most of us carry a driver’s license everywhere we go. It means we passed a test demonstrating our ability to understand and comply with the state’s laws governing operation of a motor vehicle. The Supreme Court’s decisions mean that passing a blood alcohol test is no different. As the court ruled, if you exercise the privilege to drive on Colorado’s roads, you have given implied consent to demonstrate your ability to pass that test. If you don’t comply or can’t pass the test, then your privilege to drive can and should be revoked.


Of course, drinking and driving also involves criminal charges, not just the loss of the privilege. But that makes perfect sense. The privilege to drive carries with it a responsibility to every other Coloradan. Their safety is at stake. If you abuse that privilege, there must be consequences.


After being arrested, I lost the privilege to drive for a month followed by many more months when I had to pass a sobriety test every time I started my car and as I drove. And that was in addition to the court-ordered fines and community service. But I got off easy — the police caught me for failure to signal a turn. There was no accident or physical injury to anyone else.


I share my story when I have the chance because despite the firm stance of the Colorado Supreme Court, drinking and driving will remain a problem in our state. Regardless of the law, or the ease of ordering a car service like Lyft, Uber or a taxi, people continue to make the same bad decision I did over and over. There is an entire cottage industry of defense attorneys whose livelihood is based on that assumption. It happens because people apply rules of thumb in place of the rule of law. I did. One drink an hour. Drink water. Have something to eat. I followed all those “rules” — but I still ended up over the limit.


When it comes to drinking and driving, there is only one rule that will always work: If you drink, don’t drive. Hopefully the Colorado Supreme Court’s recent decisions will help ensure more people follow that rule.



Mario Nicolais is a constitutional scholar and managing partner of KBN Law firm. Follow him on Twitter: @MarioNicolaisEsq


Read this column in The Denver Post.

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