The Law Office of Kip O'Connor

The Law Office of Kip O'Connor If you, a friend or relative have been charged with a crime, please call The Law Offices of Kip O’Connor immediately to discuss your case.

The Law Offices of Kip O’Connor is a small town law firm that provides quality legal services at a reasonable price to a diverse clientele, with concentrations in criminal defense, DUI and family law litigation. The firm’s criminal defense practice focuses primarily on DUI, traffic offenses, assault / domestic violence, drug, juvenile / minor in possession of alcohol, theft, burglary and property

crimes. The firm takes a risk management approach with our clients' criminal issues, engaging in day-to-day advice and contact with our clients and ongoing work to evaluate our clients' needs to minimize the potential harm that may result from a possible criminal conviction. You need an attorney who is prepared to effectively and aggressively defend you if you have been accused of a DUI, a felony or a misdemeanor.

06/20/2014

DUI / DWAI Myths and Facts

Myth: It is better to drink wine and or beer because they are weaker than hard liquor and contain less alcohol.

Fact: 12 ounces of beer, 5 ounces of wine and 1 ¼ ounces (shot) of liquor (80 proof) contain the same amount of alcohol.

Myth: A person can sober up and reduce his or her BAC quicker by drinking coffee and water and taking a cold shower.

Fact: While the caffeine in coffee and a cold shower may make a person feel more awake, time is the only way for a person to sober up and for the BAC to drop. The liver metabolizes the alcohol in one’s body and coverts it into a harmless substance before it is eliminated from the body. The metabolic process is the only way for a person to reduce his or her BAC and sober up.

Myth: Mouthwash or breath freshener spray will help you beat a DUI.

Fact: Using mouthwash or a breath freshener spray before you take any type of breath test is a bad idea. Mouthwash and breath freshener spray contain a significant amount of alcohol, which may become trapped in dentures pockets or cavity pockets in the mouth resulting in an artificially elevated breath test result.

Myth: The odor of alcohol on a person’s breath is an accurate and reliable indicator of intoxication.

Fact: Alcohol is actually odorless. It is the congeners (additives) that give an alcoholic beverage its odor and this is what most people perceive as the odor of alcohol on a person’s breath. Non-alcoholic beer such as O’Doul’s will produce the same smell on a person’s breath as an alcoholic beer. Scientific research has shown that there is no significant correlation between the strength of the odor of alcohol on a person’s breath and his or her blood alcohol concentration. In a controlled scientific experiment using experienced law enforcement officers, the results showed the BAC estimates made by the officers based on odor of alcohol alone were no more accurate than a random guess. See, Moscowitz, H., Burns, M. and Ferguson, S. Police Officers’ Detection of Breath Odors from Ingestion, Accident Analysis and prevention, 1999 (May), 31 (3), 175 180.

Myth: Sucking on a penny or using chewing to***co can help you beat a breath test.

Fact: There is no published scientific evidence whatsoever that indicates sucking on a penny or copper wire or chewing to***co have any effect on the results of an alcohol breath testing machine.

Myth: The standard field sobriety tests given by police are based on scientific principle and can accurately identify drunk drivers.
Fact: The three standard field sobriety tests which are the HGN test, the Walk and Turn test and the One leg Stand test were determined to be 77%, 65% and 68% reliable when performed under laboratory conditions. This means that the study took place indoors on a flat, level, dry, debris free surface and in shoes where the heels were less than two inches. The volunteers who participated in the study were under 65 years of age and in good health with no back, leg, knee, ankle, eye, inner ear or balance conditions or other medical conditions which may affect a person’s performance on theses tests. The majority of the standard field sobriety tests are given on the side of a highway at night with strobe lights flashing, no straight line to walk, sometimes in the shivering cold, and sometimes in ice or snow which means these ideal conditions are almost never met. Further, Police Officers rarely perform these tests as they are trained.

Myth: The average person can consume three to four drinks in one hour and not exceed the legal BAC limit.

Fact: The alcohol content in a person’s blood will continue to rise 1 ½ to 3 hours after drinking, which means even though a person may have stopped drinking and the level of impairment may be declining, the BAC level is still increasing. The average man who has four to five drinks in an hour will most likely exceed the legal BAC limit for an extended period of time after they have stopped drinking. The same is true for the average woman who has three to four drinks in one hour.

Myth: Blood Alcohol Content is a reliable indicator of driving impairment.

Fact: A person’s tolerance for alcohol will increase over time with consistent alcohol consumption. A person who consumes alcohol on a regular basis will most likely be less impaired at a given BAC than someone who rarely drinks.

Myth: Breath alcohol testing machines (Breathalyzers) accurately measure the concentration of alcohol in a person’s blood.

Fact: A breathalyzer machine does not actually measure the blood alcohol content in a person’s blood. This can only be accomplished with a blood test. Breathalyzers attempt to measure the alcohol v***r in the breath in order to estimate the concentration of alcohol in the blood. A Breathalyzer machine will detect any chemical compound that contains the methyl group in its molecular structure. There are thousands of such compounds such as gasoline, glue, acetone, asthma inhalers, paint, paint remover, celluloid, cleaning fluids, and many more. In order to estimate blood alcohol concentration levels, these breath alcohol machines assume as constants certain ratios within the human body that actually vary widely from person to person and within the same person over time. For example, many breath alcohol testing machines assume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. Also, most breath alcohol testing machines assume a hematocrit (blood cells as a percent of blood volume) of 47%. However, hematocrit values range from 42 to 49% in men and from 37 to 47% in women. As a result, a person with a lower hematocrit level will have an erroneously high BAC level.

10/05/2013

WHAT YOU NEED TO KNOW ABOUT DUI SOBRIERTY CHECKPOINTS

DUI sobriety checkpoints or roadblocks are become more and more popular in Colorado as a way for police to make DUI arrests, especially during weekends and holidays. You may have seen road signs that read “The Heat is On” or “100 Days of Heat”. This is a campaign used by the Colorado State Highway Patrol throughout the year and in conjunction with the local law enforcement and CDOT to target drunk drivers. The majority of the enforcement is conducted during the holidays and weekends and usually involves DUI sobriety checkpoint or roadblocks.

The United States Supreme Court has deemed DUI checkpoints to be a legal method for screening drivers for possible signs of intoxication. The Supreme Court also said, however, that strict procedural guidelines must be followed by the police in order to make the roadblock legal. If the police fail to operate the DUI sobriety checkpoint in accordance with the legal standards set forth by the Supreme Court in the case of Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), any DUI arrests made while conducting an illegal DUI checkpoint can result in the DUI charges eventually being dismissed.

At a DUI checkpoint, drivers are forced to come to a stop and briefly speak with police on the scene. If the police detect any signs of intoxication, such as slurred speech, slow motor skills, or the smell of alcohol, then the driver will be asked to exit the vehicle and perform field sobriety tests and a blood alcohol test. At this point, the police officer may arrest a driver for DUI if he or she believes the driver is under the influence of alcohol.

When operating a DUI checkpoint, the police are required, at a minimum, to adhere to the follow procedures:

• The DUI checkpoint must be conducted at a specific location for a limited amount of time so as to impose minimal inconvenience to drivers.

• All vehicles must be stopped in a consistent and non-discriminatory manner. For example, the police must choose whether they want to stop every car, every other car or every third car, etc. Once the police choose their method, they must document the system for stopping the vehicles and speaking with the drivers. The police may only change their system when there is a legitimate reason to do so such as a change in weather conditions or a significant build up in traffic. If the police do change the stopping method, they must document the time and reason for the change and they must specify the new method for stopping vehicles.

• The DUI checkpoint should be adequately marked and a signs or devices should be placed to provide advance warning of the DUI checkpoint and they should also advise drivers of why they are being stopped.

• A sworn, uniformed officer should be assigned to provide on-site supervision of the checkpoint operation and the checkpoint should be staffed by a sufficient number of uniformed police officers to assure a safe and efficient operation, based on traffic volume, roadway size and the type of location.

• The police should not attempt to stop a driver who lawfully attempts to avoid the DUI checkpoint by turning around or turning off the highway prior to reaching the checkpoint, unless that driver commits a traffic infraction by doing so.

If police fail to comply with any of the above-listed checkpoint rules, the courts will find that the checkpoint was illegally operated, and DUI charges related to the sobriety checkpoint may be reduced, if not thrown out of court altogether.

09/06/2013

WHAT YOU NEED TO KNOW ABOUT THE STANDARD FIELD SOBRIETY TESTS

If you are stopped by a police officer and detained for suspicion of DUI, DWAI or DUID, you will most assuredly be asked by that officer to perform the standard field sobriety tests (SFSTs) or roadside maneuvers. In the state of Colorado, the standard field sobriety tests are a search, which is protected by the 4th Amendment. The arresting officer needs probable cause to believe that you have been drinking and driving to ask you to perform the SFSTs and then he needs your voluntary consent to administer the SFSTs to you. Many people find it difficult to tell a police officer “NO” when he or she is asked to perform the standard field sobriety tests; however, it is always in a person’s best interest to refuse to perform the SFSTs when asked to do so. The SFSTs are strictly voluntary and there is NO PENALTY if a person refuses to perform the tests.

There are three standardized field sobriety tests that are recognized by NHTSA (National Highway Traffic Safety Administration). The tests are the Horizontal Gaze Nystagmus test, the Walk and Turn test and the One Leg Stand test. These standard field sobriety tests are supposed to give the officer clues as to whether a person is or is not under the influence of alcohol. The tests are supposed to require a person to complete different divided attention tasks at the same time and each test has a certain number of clues or indicators that the officer is taught to look for. Developed in the 1970s, these tests are scientifically validated, and are admissible as evidence in court against any person accused of DUI, if that person decides to take the tests.

The Horizontal Gaze Nystagmus Test (HGN).

Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An impaired person will also often have difficulty smoothly tracking a moving object with his or her eyes. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The officer looks for three indicators of impairment in each eye: 1) if the eye cannot follow a moving object smoothly; 2) if the jerking is distinct when the eye is at maximum deviation; and 3) if the angle of onset of the jerking is within 45 degrees of center. Studies have shown that a person is likely to have a blood alcohol content (BAC) of 0.08 or greater if, between the two eyes, the officer detects four or more clues. NHTSA research indicates that this test allows proper classification of approximately 77 percent of subjects. However, there are numerous other conditions and substances besides alcohol that may cause exaggerated HGN in a person, such as chronic head trauma, problems with the inner ear labyrinth, chronic eye strain, influenza, vertigo, seizures and the consumption of seizure medications motion sickness, the consumption of excessive amounts of caffeine, phencyclidine, a variety of inhalants, barbiturates, depressants and others.

The Walk and Turn Test.

In the walk and turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The arresting officer looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps, a clue for intoxication is added. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater.

The One Leg Stand Test

In the one-leg stand test, the subject is instructed to stand with one foot approximately six inches off the ground and count aloud by ones beginning with one thousand (one thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for about 30 seconds. The officer looks for four indicators of impairment including: swaying while balancing, raising the arms above six inches from the side for balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater.

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