Strict Liability

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  1. Introduction
  2. “Vehicle” and “Motor Vehicle”
  3. “Drive”
  4. “Drugs”
  5. “Legal Limit”
  6. Open Container
  7. Driving Under the Influence (DUI)
  8. Driving Under the Influence Per Se (“DUI Per Se”)
  9. Driving While Ability Impaired (DWAI)
  10. Second and Subsequent Offenses
  11. Underage Drinking and Driving (“UDD” or “Baby DUI”)
  12. Strict Liability
  13. Juveniles and Minors
  14. Evidence of Impairment
  15. Standardized Field Sobriety Tests (SFSTs)
  16. Drug Recognition Experts (DREs)
  17. Expressed Consent
  18. Breath Tests
  19. Blood Tests
  20. Prima Facie Case Requirement
  21. Preparing for Trial
  22. Voir Dire
  23. Expert Testimony
  24. Proving Chain of Custody
  25. Double-Refusals

In DUI, DUI Per Se, DWAI, and UDD cases, defense attorneys will sometimes insinuate that the prosecution must prove that the defendant intended to drive under the influence. This is especially true in “no drive” or “drink after drive” impaired driving cases. If, however, you read the jury instructions and the elements of impaired driving offenses, you will notice the absence of any elements requiring the prosecution to prove the defendant intended to drive under the influence or even knew they were driving under the influence. The omission of any mens rea elements in these offenses is purposeful and critical.  

In Colorado DUI and DWAI are strict liability offenses. § 42-4-1301(3). A strict liability offense is one that does not require any proof of a culpable mental state. § 18-1-502. That means the prosecution need only prove the criminal act itself. Id. This makes sense for a variety of reasons, including that voluntary intoxication can negate intent in general intent crimes. Indeed, if the prosecution had to prove intent in a DUI case, the more intoxicated a driver was, the harder it would be to prove DUI or DWAI.

Do not allow a defense attorney to misrepresent the elements of DUI or DWAI crime at trial. Object if a defense attorney suggests the jury must find the defendant had the intent to drive, and consider asking for a curative jury instruction. During closing arguments, be sure to clarify for the jury that you are not required to prove the defendant intended to drive, only that the defendant was in actual physical control of the vehicle while under the influence.

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