A driver cannot be convicted or punished for both offenses.
The Colorado Express Consent law requires every driver to participate in a test of blood, breath or urine when arrested for DUI. If the test result is .080 or greater, then the charge is DUI per se since .080 is the maximum legal limit. However, there is usually a second charge of DUI based upon the opinion of the arresting officer that the driver was substantially incapable of safely driving a vehicle.
A driver cannot be convicted or punished for both offenses. Both charges are filed in case the blood alcohol level of more than .080 is reduced by the results of an independent blood test by a private lab or the test result is excluded from the evidence based on a legal reason.
A test result can be excluded if the testing procedure is not followed or if the equipment is not functioning properly or has not been maintained as required. The test result may not be reliable or trustworthy for a number of reasons. The test sample may be tainted or contaminated.
If for any reason, the test result is excluded, then the prosecutor will rely on the officer's opinion which is subject to attack. It is a challenge to beat the test result number. It is easier to overcome the officer's opinion.
If you have been charged, don't delay, call me immediately (970-871-7400).
"Over the last fourteen years, I have tried more jury trials than any practicing attorney in the 14th Judicial District (Routt County, Moffat County, and Grand County Colorado including Steamboat Springs, Craig, and Hot Sulphur Springs) with consistent success."
-- Larry D. Combs