Point of law — Vehicular Assault-DUI

In Colorado, § 18-3-205(1)(b)(I), C.R.S. 2013 provides:

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. This is a strict liability crime.

Conviction under this statute is a class 4 felony.

Having a blood alcohol of .08*** does not strictly establish “under the influence,” but neither does a blood alcohol of between .05 and .08 strictly rule out a finding that a defendant was “under the influence.” A .08 or greater BAC constitutes a “permissible inference” that the defendant was under the influence, and presumably the defendant is allowed to introduce evidence of not being under the influence, and the jury will decide. A BAC greater than .05 but less than .08 does not get the defendant off the hook. That level of BAC constitutes a fact to be considered with other competent evidence in the jury’s determination of whether the defendant was under the influence.

So the good news for a defendant charged with vehicular assault-DUI is that even with a .08 or higher BAC he may be able to prove to the jury he was not under the influence. The bad news is that even with a BAC lower than .08 but more than .05 the prosecution may be able to prove the defendant was under the influence.

The really bad news for the defendant is that vehicular assault-DUI is a strict liability crime. What this means may not be readily apparent to anyone who has not read the relevant court cases and related statutes. It means that in any vehicle accident in which someone in either vehicle suffers “serious bodily injury” a driver that is found to have been under the influence is strictly liable and will not be able to argue that the accident was due to some intervening cause, such as the negligence of the other driver, and not due to the defendant’s driving under the influence.

Suppose the defendant was driving Northbound on a two-lane road with a BAC of .08 or greater. Further suppose a Southbound vehicle veered into defendant’s lane causing the vehicles to collide head on. Defendant would not be able to argue that the victim’s negligence was the actual cause of the crash (even though it certainly was) and not the defendant’s driving under the influence. If the jury decides to exercise its “permissible inference”that the defendant was driving under the influence (or if the prosecution proves it by other evidence) the jury instructions will direct them to find the defendant guilty of vehicular assault-DUI, a class 4 felony.

Many people are not actually impaired with a BAC of .08 and may feel quite safe to drive, and probably do drive safely without harming anyone. They are taking an enormous risk in doing so because if another driver causes an accident in which someone suffers serious bodily injury, the driver with a .08 BAC driver can nonetheless end up with a class 4 felony conviction and all that entails.

This is a trap for the unwary because it is quite possible to have a .08 BAC without knowing it.  For some people, having just two glasses of wine with dinner at a gourmet restaurant to celebrate a special occasion can end in disaster.  By having those two glasses of wine and then driving you could be subjecting yourself to a possible life-changing event all caused by the negligence of some other driver, over whom you have no control.

That’s the law in Colorado. It might be different in other states, but not much I’d bet.

*”Drugs” in this context includes legal drugs for which you have a prescription. Also includes anything you might sniff or inhale to get high.
**”Serious bodily injury” means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
***Under this statute you don’t have the right to refuse to be tested.  If you don’t cooperate they’ll hold you down and take your blood.