Gill, CO DUI and DWAI Law Firms & Lawyers

Your analysis is correct, and it will be a matter of presentation. You may consider hiring an attorney to assist you with this defense. You should not reveal this strategy to the Prosecutor, as they will simply be better prepared to address this in front of the jury.

Probable cause is a very easy standard. From what you say, PC is established. You are right in that submitting to a BAC is not mandatory; however, if you refuse to do so, the Department of Licensing will suspend your license for a minimum of one year, even if you were found not guilty of the DUI. This is what is called the "Implied Consent Law", which means that if an officer has reason to believe you were drinking, which appears to be the case, and you refuse, DOL can suspend your license. That is a civil proceeding. This is based upon the fact that a drivers license is not a right, it is a privilege and in exchange for a license to drive on the roads of the state, you agree to submit to a BAC test, if requested by an officer.

The prosecutor has to prove that you had prior offenses.  Sometimes your own lawyer woudl choose to get the records to correct what the prosecutor thinks.  You definitely need to hire a lawyer for a third DUI offense as the jail time, etc. are quite substantial.