Colorado DUI Sobriety Checkpoints

Updated December 30, 2019

Sobriety checkpoints are roadblocks in Colorado where police check drivers for DUI or DWAI. Every motorist that goes through checkpoints can get stopped and questioned. But only those who seem intoxicated get tested and possibly arrested.

The Colorado Department of Transportation posts advance notice of upcoming sobriety checkpoints. They often occur during times of high alcohol consumption. Examples are:

• St. Patrick’s Day,
• The Fourth of July,
• New Year’s Eve,
• Super Bowl Sunday, and
• Any holiday weekend

DUIs and DWAIs are not the only offenses police look out for at checkpoints. They also routinely issue citations for:

• Driving with an open container of alcohol (42-4-1305 C.R.S.),
• Driving with an open container of marijuana (42-4-1305.5 C.R.S.)
• Driving without a seat belt

To help you better understand your rights before, during and after a Colorado DUI checkpoint, our Colorado DUI defense lawyers discuss the following:

• 1. Are sobriety checkpoints legal?
• 2. When is a Colorado sobriety checkpoint illegal?
• 3. What happens at a DUI checkpoint?
• 4. What happens if the police suspect DUI?
• 5. Can I turn around to avoid a Colorado sobriety checkpoint?

1. Are sobriety checkpoints legal?

Yes, if they are fair and not overly intrusive.

The United States Constitution requires law enforcement to have probable cause to stop a motorist. Otherwise, the traffic stop is an unreasonable “seizure.” This is prohibited by the Fourth Amendment to the U.S. Constitution.

Probable cause for a traffic stop exists when an officer observes:

• A traffic violation,
• A defect in the vehicle that affects safety, or
• A driving pattern that indicates that the driver may be intoxicated

However, the United States Supreme Court has recognized that drunk and drugged driving are significant threats to public safety. As a result, the Court ruled that DUI checkpoints are an exception to the probable cause rule.¹

2. When is a Colorado sobriety checkpoint illegal?

DUI checkpoints are unlawful if they violate the Colorado Department of Transportation (CDOT) guidelines for sobriety checkpoints. DUI roadblocks should:

• Pose as little inconvenience as possible to drivers,
• Have a consistent, non-discriminatory procedure for choosing which vehicles to stop – for example, every third car,
• Give adequate warning that a driver is approaching a checkpoint,
• Be adequately staffed and supervised,
• Be in a safe location, and
• Be publicized in advance

The failure to comply strictly with CDOT guidelines does not automatically make a sobriety checkpoint illegal. It all depends on the number of guidelines violated and the seriousness of the non-compliance.

Nine possible violations that could make a DUI roadblock unconstitutional include:

1. The department had no official procedures for roadblocks.
2. The roadblock created a traffic hazard.
3. The method for selecting which cars to stop was not neutral.
4. There was inadequate advance warning of the mobile checkpoint.
5. There were inadequate signs of official authority (uniformed officers, marked police vehicles, etc).
6. There was no convenient and reasonable procedure for DUI breath testing.
7. There was no drug recognition expert (DRE) on site.
8. The officers supervising the checkpoint were not adequately trained.
9. There was not enough advance publicity of the checkpoint.

3. What happens at a Colorado DUI checkpoint?

First, drivers should be given plenty of advance warning when they approach a sobriety roadblock. The warning usually takes the form of:

• Signs,
• Lights,
• Uniformed officers, and
• Marked police cars

The agency operating the checkpoint will usually cordon off part of the road. This will force traffic to merge into one or two lanes. An officer will ask drivers to roll down the window. The officer will then ask to see a license and registration, which drivers are legally required to produce.

The check will then proceed like an ordinary traffic stop. The officer will try to engage drivers to see whether:

• They have difficulty producing their driver’s license and registration,
• They smell of alcohol or marijuana,
• There is alcohol, drugs or drug paraphernalia in the vehicle, or
• They show physical signs of intoxication – such as slurred speech, red eyes

If the officer suspects a driver is inebriated or stoned, a standard DUI investigation may follow.

4. What happens if the police suspect DUI?

If officers suspect DUI, they can ask the driver to step out of the vehicle. Then they can ask the driver to take the following tests:

• Field sobriety tests (FSTs), and/or
• Preliminary alcohol screening (“PAS”) breath test

The FSTs and PAS breath tests are optional. Suspects may decline to take them without legal consequence.

If suspects do take them, the FST results can come into court as evidence of impairment. For drivers 21 or over, PAS results are admissible to prove the officers had probable cause. (People under 21 facing only a UDD charge must take the roadside breath test.)

Officers that believe a suspect is intoxicated may arrest him/her for either:

• Driving under the influence (DUI) of alcohol and/or drugs – 42-4-1301 (1)(a), C.R.S.;
• DUI “per se” (driving with a BAC of .08% or higher) – 42-4-13-1 (2)(a), C.R.S.;
• Driving while ability impaired (DWAI) by alcohol and/or drugs – 42-4-1301 (1)(b), C.R.S.; or
• Underage drinking and driving (UDD) – 42-4-1301 (2)(d)(I), C.R.S.

Upon arrest, the driver must take an evidentiary breath alcohol test (EBAT) or blood test. Normally, arrestees are allowed to choose which test. But if the police suspect drug use, the arrestee must take a blood, urine, or saliva test.

Refusing to take a chemical test after an arrest has consequences. Two include:

1. Automatic revocation of the Colorado driver’s license, and
2. Designation as a Colorado “persistent drunk driver” (even if it is a first arrest)

Also, the refusal can be used as evidence of guilt if the case goes to trial.

5. Can I turn around to avoid a sobriety checkpoint?

Yes, drivers have the legal right to turn around and avoid a DUI roadblock. But they may not violate any traffic laws in the process. Otherwise, they can be cited for the violation. Then they could also be questioned about drinking as if it were any other traffic stop.

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