Family Law Attorney in Denver

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What Happens if I got a prior DUI in Another State?

Under our legal system, each state can decide how it will define drunk driving and they do not have to be the same as any other state. This has led to states having different names for drunk driving (DUI, DWI, DWAI, etc.) and different blood alcohol levels set out in their laws that will constitute drunk driving. These differences can lead to problems when one state wants to use the evidence of a conviction for drunk driving in a different state in order to “enhance” the sentencing for a subsequent drunk driving conviction in their state, but the other state has a different definition of drunk driving that would not have constituted drunk driving in their state.

If your current state wants to use your DUI conviction from another state to increase your penalties, the prior states’ DUI definitions must be similar to your current state. However, if your current state just wants to use your DUI in a prior state for drivers license revocation purposes, the similarities are not as crucial. This is true especially if the prior state and your current state have entered into an agreement of reciprocity on drivers licenses and infractions, which many have.

Out-of-State DUI Convictions and Penalties

Many states have adopted rules that allow them to increase the penalty for a DUI under certain circumstances. Usually, the first DUI is a misdemeanor. Sometimes the second or third DUI is raised to a felony. This is where your current state would use a DUI conviction in a prior state raise the penalty for a current DUI in your new state. However if the prior states DUI law does not qualify as a DUI in your current state, they may not be able to use it to increase the penalty. This can mean the difference between a misdemeanor and felony and the different level of punishment that goes with those charges. In other words, it is important that you or your attorney look closely at both states DUI laws if you are in this situation. Call us if you need to talk to an experienced DUI defense lawyer.

This analysis begins with the premise that most states believe they can use convictions in other states to increase penalties in their state. However, there are limitations to this. As stated above a close review of the out of state DUI elements as well as the current state DUI laws is very important. If the laws are not “substantially similar” too each other it may be possible to argue the out of state conviction can not be used. The question becomes what “degree of similarity” is required to allow the use. Each state will have its own rules and case law where they try to define what degree of similarity is required. Once again an experienced attorney can help you with this.

Similarities can be found in each states’ laws on the level of “intent” required; as well as how “intoxication” is defined and generally how the two states’ laws align. In order to avoid the higher penalty you will be required to convince the judge that the two states’ laws are substantially different. This will be easier if one state has added requirements or definitions to their DUI law that the other state does not have. It might be possible to argue to some states that the DUI in the other state is “too old” to be used. What constitutes “too old” is another question that will depend on the current states law if they have limitations periods that apply or if their rules allow you to argue that while some will not.

This may not be an easy exercise, but it will be worth it if you can avoid getting a higher penalty. However, if you do not raise this argument in a timely fashion, you may waive your right to bring it up later. Consulting with an experienced attorney can help with the process.

Out-of-State Convictions and Drivers License Suspensions

Whenever you get a DUI there are always two parts to the process. First there is the criminal charges for Driving under the Influence of drugs or alcohol. The second and separate part deals with your driving privileges and your license. The criminal charges are handled by the courts. The drivers license revocation is handled by the Motor Vehicle department.

With regard to your drivers license the rules are much less strict than in court. Also, most states have entered into the Interstate Driver’s License Compact. This lets the Motor Vehicle department use a DUI conviction in another state that is a signatory to the Compact as evidence in their license revocation proceeding. Even if you don’t get a DUI in your current state of residence but get one in another state and both states are members of the compact your current state can revoke your drivers license for getting the DUI in the other state.

In the case of drivers license revocations, there is no “substantially similar” rule. You still may have some appeal rights with regard to your drivers license, so it is important that you talk to an attorney experienced in these matters.

DUI convictions can cause great disruptions in your life. Having it enhanced to a felony or other penalties can make things even worse. Before accepting a plea bargain for any DUI offense that is enhanced with an out-of-state DUI conviction, or losing your license, you should talk to an experienced attorney. If we can help you with a free initial consultation, please give us a call at (720) 457-4959. www.familylawattorneyindenver.com

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Will Colorado’s Common Law Marriage Rules Apply to Gay Couples?

Colorado is one of 16 states that recognizes “common law marriage.” That means that couples that are living together but are not actually married in a civil marriage ceremony might still be considered “married” by the state of Colorado and a Colorado court would be able to enter orders dividing the property and debts between the couple and even ordering one to pay maintenance (alimony) to the other.

There are certain things that the couple may do that will lead to this kind of a common law marriage holding, like holding themselves out to others as being married, having joint accounts and filing joint tax returns, etc. So now that same sex marriage is legal, how will Colorado’s common law marriage decisions apply? The answer is, we don’t know.

Because gay marriage is so new, there are no decisions yet about this or any other marriage or divorce law as they might be applied to gay couples. However, most family law attorneys are of the opinion that the rules and laws will be applied the same to heterosexual couples and homosexual couples.
So what does that mean for the gay couple who do not want to be married, but just want to live together. And what if one of them has assets that they wish to protect? And what if the gay couple wants to marry, but one of them or both of them have separate assets that they wish to protect from the possible ravages of a gay divorce?

We would recommend that a gay couple contact an experienced family law attorney to discuss certain asset protection vehicles such as a cohabitation agreement if they do not wish to or intend to get married. These cohabitation agreements can go a long way to protecting the parties from being considered common law married and can protect assets from being distributed to the other party in a divorce.
Likewise we would recommend that a gay couple considering same sex marriage contact an experienced family law attorney to discuss pre-nuptial agreements before marriage or post-nuptial if they are already in a marriage to protect assets and deal with distribution of those assets to avoid having a divorce court do it for them.

If you have any questions about Cohabitation Agreements, common law marriage or prenuptial or post nuptial agreements or any other family law matters and wish to discuss any of this with one of our experienced Colorado attorneys, feel free to give us a call for a referral. The initial consultation is always free. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com

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Will I be able to Get My Driver’s License Back after getting a DUI?

It is very important that if your driver’s license is suspended or revoked as a result of a DUI that you do not drive while suspended or revoked as you might receive additional charges and those could adversely affect your ongoing criminal DUI matter and your administrative law matter with the DMV over your driver’s license. You may be able to try to get your driver’s license back soon after the DUI arrest. Other times you may have to wait until the legal process has run its course or a certain period of time has lapsed.

Some states allow for provisional, conditional, hardship or temporary licenses. This varies greatly by state, judge and DMV. It will depend on many different circumstances and is often granted only with participation in an alcohol education program or by showing a serious family hardship. You will have to show proof of automobile liability insurance. Once again, because of the many variables and the fact that each circumstance is different you must talk to your DUI attorney about when to try to get your license back.

How will Getting a DUI Affect my Job or Car Insurance?

Many employers run background checks on prospective employees. Even a first time DUI will show up on these reports because it is part of your criminal history. Because a DUI conviction might affect the employer’s insurance rates or they might consider you a safety risk there is a chance that you might not be hired for some jobs. A DUI conviction might also affect your professional licensing depending on the state and the type of profession or license you have or are trying to obtain. Some states even require that you self-report the conviction or arrest to the licensing agency.

Automobile insurance companies will also consider you a higher risk once you have a DUI on your record. Insurance companies manage their perceived higher risk by raising the premiums you will have to pay or by cancelling your coverage all together. If you were in a car accident when you got your DUI and the DUI charge is raised to a felony there is a chance that the insurance company may try to avoid covering you for the accident because some insurance policies have exclusions for coverage for losses that are related to the commission of a felony.

How Long will a DUI conviction Stay on my Record?

Criminal convictions stay on a person’s record indefinitely unless they are expunged or sealed by the court or unless a state statute provides for expunction after a certain amount of time. The record of your DUI conviction is usually available to anyone who asks for it. Expungement or expunction proceedings can remove or seal a record but usually requires a separate legal proceeding and a judge’s order. Some states allow for non-disclosure proceedings which allows you to obtain an order that a government agency may not give out the information of your DUI conviction.

These types of proceedings will usually keep your DUI conviction from being disclosed to employers, landlords or credit bureaus. Some states do not allow these types of proceedings in DUI matters. You need to remember that there are two sets of records about your DUI. The criminal records in the court as well as the driver’s license suspension records at the DMV. If you seal or expunge only one of those the other might still be available to the public. Also, your fingerprint records are always sent to the FBI data base. A state judge does not have authority over a federal agency like the FBI so even if your records are sealed or expunged, your fingerprints will remain in the FBI data base. You should consult with your DUI attorney to see what types of non-disclosure proceedings are available in your state.

What if my DUI Conviction was in another State?

An out of state DUI conviction can have several effects on you. If you have a prior DUI from a different state and are facing another DUI in your state of residence the question becomes whether the prior out of state conviction can be used to enhance your penalties in the second DUI?

The problem is that each state has its own definition of what constitutes a DUI and they are not the same. There needs to be some similarity with the prior states definitions and the current states laws before the out of state conviction is allowed to be used against you in the subsequent criminal matter. However, in an administrative driver’s license suspension proceeding at the DMV the similarity requirement is much less stringent.

Some states have entered into agreements with other states to recognize the other state’s convictions if theirs are also recognized. Some states have also enacted laws describing when another state’s conviction can be used and what they can be used for. These laws usually require a “substantial similarity” between the offenses in the two states. These laws try to establish what degree of similarity is required to allow the use of the other state’s conviction. If the charges are substantially different it may be possible to keep the out of state conviction from being used.

If you get a DUI in a state other than the one in which you presently live or in which your driver’s license is issued from, the out of state DUI will always notify your home state and you will not only have to deal with the criminal matter in the other state, but will also have to deal with your home state regarding the administrative driver’s license suspension or revocation. Almost all states report your conviction in their state to your home state DMV because they have joined the Interstate Driver’s License Compact.

All of these out of state issues can be very complicated. You will need to consult with your DUI defense attorney when you have these issues.

What other Consequences can there be from a DUI?

A DUI conviction can also affect your immigration status and might even keep you from traveling to another country. Foreign countries have the right to establish rules about who can come into their country. Some countries, like Canada have established rules that someone with a misdemeanor on their record are not allowed into their country.

The United States has its own immigration laws that deal with things like DUI convictions. If you are in the process of dealing with your immigration status when you get a DUI it can affect your status and might even lead to deportation.

As you can see, a DUI is a very serious criminal charge. There are many different variables in each DUI case. Each state’s laws are a little different. Even though there are sentencing guidelines that a court must follow, an attorney can help you to get the best possible outcome on your penalties. It is very important that you get help from an experienced DUI defense lawyer to help you through this process. If we can help you with a free initial consultation, please give us a call at (720) 457-4959. www.familylawattorneyindenver.com

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What will Happen to Me After my DUI Stop?

If the blood or breath test shows that you are over the blood alcohol limit for your state you will be arrested and taken to the police station for booking on the crime of DUI. You will be processed into the criminal justice system by having your picture taken (your “mug shot”), having your finger prints taken and you will then be placed in a holding cell in the jail until you are able to post bail or someone posts your bail for you. A licensed bail bondsman can post bail for you for a fee. Your driver’s license may also be temporarily suspended.

If on the other hand you refused to take the blood or breath test, you will usually have to surrender your driver’s license immediately and you will be taken to the police station for booking anyway. You will be held until you or someone else bails you out of jail. There may be additional fines or fees for refusing the test.

There is also the matter of the car you were driving when you got stopped. Since you were taken to jail, your car will towed and impounded by the police. This will require that you pay the towing company the fee for towing the car and also the impound fee (based on the number of days the car was in the impound lot) before you can recover your car. If you were driving someone else’s car, they will have to pay the towing and impound fees to get their car back even though they were not driving drunk.

There will usually be two different legal proceedings coming out of a DUI arrest. First there will be the administrative proceeding with the Department of Motor Vehicles (DMV) regarding your driver’s license suspension. Some states schedule these hearings very quickly within 5 to 10 days. Other states it takes longer to get a hearing.

In these proceedings they are determining if your license should continue to be suspended or revoked and if so for how long (unless you refused to take the test and then the suspension is automatic and usually for at least a year). There is also the possibility of getting a limited use license for you to get to work, etc. The criminal court also has the right to deal with suspending your driver’s license. Because every situation is different you should talk to your DUI attorney about what you might expect to happen in these hearings.

The second legal proceeding will be your criminal case in a county or district court. Although most states still categorize a first DUI as a misdemeanor it is still a very serious matter because of the many consequences that go along with a DUI that do not go along with other misdemeanors. There are many mandatory sentences and punishments for DUI that are not attached to other misdemeanors.

If you already have one or more DUI’s in your past many states now treat additional DUI’s as a felony which can send you to jail for an extended period of time. Some states have laws that your second or third DUI is a felony and some say you’re fourth. Some states have the option to treat a DUI as a felony if there was an accident that caused serious bodily injury or if there is a child in the vehicle while you were driving intoxicated. The difference between a misdemeanor and a felony are obviously the amount of jail time that can be given. Jail time from a misdemeanor is usually served in a county jail but a felony conviction is usually sent to a state prison.

As with all criminal matters, you will have the right to trial by jury. This means that the prosecuting attorney will have to prove beyond a reasonable doubt that you are guilty of the crime of DUI and the jury will have to find that you are guilty. The judge will then sentence you for the crime convicted. There are a lot of variables involved in every phase of this criminal proceeding. Your DUI attorney will help you navigate all of these variables and help you decide if you should go to trial or try to get some kind of plea agreement.

Many states now have mandatory sentencing guidelines in DUI cases. This means that the judge may not have much discretion in sentencing you after the jury verdict or after a plea agreement. Also, the “per se” laws make it a little easier for the prosecuting attorney to get a conviction if they can prove your blood alcohol level from the breath or blood test. That is why those tests are so important to a DUI defense lawyer. Your DUI defense lawyer can try to attack the validity of the test, how it was administered, the reliability of the testing method or testing device, etc. Your lawyer can do discovery about your charges, offer defense expert evidence about your charges, seek to discredit the test for lack of proper calibration of the testing equipment, testing protocols and training and other defense tactics.

Finally, if you have one or more prior DUI convictions, that will also affect your sentencing. Depending on how many prior DUI’s you have and how long it has been since the last one, the punishments will become progressively more severe. Some states have instituted felony charges after so many DUI’s and some have mandatory jail time.
If you’re found guilty or enter into a plea agreement, most courts in most states will:
• impose fines (and some add on an additional driver responsibility tax)
• suspend or revoke your license (Motor Vehicle Departments may do so even if a court does not)
• require participation in a drunk driver education program
• add points to your license (and your insurance will most likely increase)
• sentence you to jail or require community service work as an alternative
• put you on parole (called “probation” in some states)
• impose various statutory fees intended to offset the state’s budget expenses on DUI/DWAI cases

If you are required to take an alcohol treatment program you must pay the costs of that program yourself. If you do not complete the program in the time required your probation can be revoked and you can be sent to jail. Some courts also require an ignition interlock system to be installed in your car which prevents the car from starting unless you breathe into a tester and your blood alcohol is below a certain level. You will be required to pay for that expense also which can be as much as $200 a month. The costs and fees and fines associated with a DUI can quickly add up to thousands of dollars. The court may also require that you do not drink any alcohol during your probation and can require periodic tests. Failure to comply with any of these requirements can result in a revocation of your bond, revocation of your probation and you’re being sent to jail.

As you can see, a DUI is a very serious criminal charge. There are many different variables in each DUI case. Each state’s laws are a little different. Even though there are sentencing guidelines that a court must follow, an attorney can help you to get the best possible outcome on your penalties. It is very important that you get help from an experienced DUI defense lawyer to help you through this process. If we can help you with a free initial consultation, please give us a call at (720) 457-4959. www.familylawattorneyindenver.com

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What Happens When I Get Stopped for Drunk Driving?

When you get pulled over by the police for drunk driving (usually referred to as a DUI for “driving under the influence”; or a DWAI “driving while ability impaired”) your life has just changed substantially. A DUI is a very serious offence in all 50 states. Each state has its own DUI “per se” law which defines what constitutes the crime of DUI. If you have a blood alcohol content (BAC) over a certain level (usually 0.08 percent blood alcohol) the law says that you will be found guilty of the crime of DUI. If you are under 0.08 percent blood alcohol but above another amount (usually 0.05 percent) then you are guilty of a DWAI.

Some states have even enacted what they call zero tolerance laws for underage drinkers and drivers that reduce the “per se” threshold to an even lower blood alcohol percentage for those under age drivers. Other states have also enacted much harsher penalties for drivers with very high blood alcohol levels. The few states that have legalized marijuana, like Colorado and Washington, have also set standards for driving while high based on the THC content of the blood.
You may be stopped by a police officer because he has reason to believe you are driving your car while drunk or you may be stopped for some other vehicular infraction which then leads the officer to believe you have been drinking. The officer will then require you to take some kind of roadside sobriety test. This can start with some physical dexterity tests, but will usually end with the officer seeking a breath, blood or urine sample for testing of your blood alcohol level.

Almost all states now have “implied consent” laws which means that if you have a driver’s license you are deemed to have consented to be tested and are therefore required to comply with whatever test the officer requests you to take or be subject to fines and/or license suspension – sometimes right on the spot – for refusing to take the test. Sometimes the officer will give the driver a choice of breath test or blood test, but they can require whatever test the state statute allows. If they give you a choice of tests is one better than the other for your case going forward?

Some DUI criminal defense attorneys suggest taking the breath test, if given the choice, as they seem to think that they can argue the breath test is not as accurate as the blood test. Also, a breath test does not test for any other drugs other than alcohol like a blood test does.
On the other hand, some other defense attorneys suggest taking the blood test as it will usually take some time to get that test done as you have to be transported to a facility where blood can be drawn and the test ran in a laboratory as opposed to a breath test which can usually be administered immediately at the roadside stop. Their thinking is that the time taken (which can be a long time if you are a long way from a hospital) may allow your blood alcohol level to drop depending on when you had the last drink and how much you had to drink.

You do have the right to refuse to take any test. However, your license will be immediately revoked and you will still be charged with a DUI and additional fines imposed. In some states your license can be immediately revoked even if you take the test.

As you can see, a DUI is a very serious criminal charge. There are many different variables in each DUI case. Each state’s laws are a little different. Even though there are sentencing guidelines that a court must follow, an attorney can help you to get the best possible outcome on your penalties. It is very important that you get help from an experienced DUI defense lawyer to help you through this process. If we can help you with a free initial consultation, please give us a call at (720) 457-4959. www.familylawattorneyindenver.com

Company Profile

The Kay Law Firm, LLC is a full-service law firm providing you or your small business with superb legal services.

Gregg E. Kay has been an attorney in Colorado for over 33 years. He has extensive experience as General counsel for a local Mortgage Bank, private practice and 13 years in the Colorado Attorney General’s office.

The Kay Law Firm, LLC


8123 S Interport Blvd, Suite A
Englewood, CO 80112

Gregg Kay