My favorite museum in Peru is Lima’s Museum of Gold and Arms of the World. Maybe it’s an odd combination. Upstairs: guns, knives, armor. Downstairs: ancient precious artifacts covering thousands of years of Peruvian History.
The main floor is absolutely packed, floor to ceiling, with samurai swords and armor, WWII memorabilia, elephant guns, ceremonial knives, you name it. It would take hours to appreciate the breadth of the collection.
Heading downstairs, behind a three-foot-thick bank vault, is what I came to see.
On one side of the display cases sat preserved human heads from 1,500+ years ago. Some had ropes running through holes in the top of the skulls, to be used as trophies to “record the valor” of Nazca warriors. Other skulls showed evidence of trepanation, what the Museum signage describes as ancient “surgical procedures.” There is some debate on the purpose of trepanation in ancient cultures, but evidence suggests many patients(?) survived the procedure, as there are signs of healing around the wounds.
Other skulls had ornate headdresses made of feathers, gold foil and turquoise. These weren’t casualties of war displayed as trophies. The remains were clearly cared for and were likely those of revered members of their people. The juxtaposition was striking. Violence and reverence, all in one display.
Nazca Feather Headdresses
The Museum also displayed hundreds of delicate gold and precious metal ornaments. Thin sheets of hammered gold, bracelets with intricate designs, small discs that once adorned burial shrouds. The Nazca people left us no written records. Everything we know about them comes from what they left behind: lines in the desert, their pottery, textiles, and artifacts of life and death.
What Are Trophy Heads and Why Did the Nazca Take Them?
The Nazca practiced ritual decapitation regularly. A practice that lasted centuries. Archaeological research shows they prepared these severed heads in a very specific way:
They drilled a hole in the forehead and threaded a carrying rope through it
They broke open the base of the skull to extract the brain
They pinned the mouth (and sometimes the eyes) shut with cactus spines
Why go to all this trouble? The heads weren’t just battle souvenirs. They served powerful religious functions.
The Spiritual Power of Severed Heads
Much of this is historical speculation, but I will briefly cover a few common theories below.
Trophy heads appear constantly on their pottery and textiles, usually in the hands of mythical beings or shamans performing ceremonies. Early Nazca pottery even shows the “Sprouting Head” motif where plants grow from severed heads. It has been implied that these offerings were connected to fertility and agricultural renewal.
By sewing the mouth shut, it is believed that they were trapping the spirit of the victim, preventing it from escaping to seek revenge. I have seen these cactus spines used even in the bodies of the Nazca tridactyl mummies.
The ropes served as handles
Who Were the Victims?
Some of the heads turned out to belong to the Nazca’s own people, not foreign enemies.
This suggests to me one of two things: ritual sacrifice or infighting. During times of severe drought or crisis, the Nazca might have ritually sacrificed members of their own group. It could also be the result of neighboring communities fighting over limited resources. Historians believe that changing weather conditions, lack of water, deforestation, and over-cultivation led to the desertification of the Nazca’s home, and their ultimate demise.
Trophy Head Practices
The meaning and use of trophy heads changed over time. Early Nazca society seems to have used them primarily for agricultural rituals. But as centuries passed, the practice took on additional meanings.
Later Nazca art and burials show a shift toward militarism. Trophy heads became status symbols that marked a warrior’s prestige. Successful headhunters were celebrated, their gruesome trophies displayed to enhance their social rank. This is a point I often make: in a culture without a written history, we rely on the physical remains of their culture, and particularly their art, to tell us their story.
Trepanation: Were the Nazca Really Performing Brain Surgery?
The museum’s collection often includes skulls that bear telltale round or square holes of cranial trepanation, an ancient form of skull surgery. The Nazca healers actually demonstrated advanced skill at drilling or cutting into the skull. We know that, because many of their patients lived through the operation. (Many skulls show signs of healed bone growth around the trepanation holes.) The delicate nature of this procedure without anesthesia, antiseptics, antibiotics etc. is remarkable. The Nazca, like the Paracas culture before them, likely used simple tools like obsidian blades or drills made of hollow reeds.
The guy on the right has been through some things.
Why were the Nazca Performing Skull Surgery?
Probably to relieve pressure from head wounds. Nazca warriors engaged in frequent combat (as evidenced by all those trophy heads and warfare scenes on pottery). Leading to skull fractures or hematomas from slings and clubs. By carefully removing a section of bone, a Nazca healer could relieve the buildup of pressure on the brain.
Fun fact: Among hundreds of trepanned crania in museum collections, a majority have the hole on the left side of the head. Why: They were probably getting clubbed on the head by right-handed enemies.
Golden Adornments on the Dead
The Nazca weren’t as advanced in their metalwork as other ancient cultures. The Moche to the north and later the Inca created more elaborate gold work. But the Nazca had a developed craft, and what they created was meaningful.
The Nazca worked primarily with native gold nuggets, which they could hammer directly without advanced smelting. Using stone tools and hammering techniques, they thinned gold into foils, then cut and shaped it into ornaments.
Their techniques included openwork (cut-out designs) and embossing. They created tiny hummingbird shapes, human figures, and feline designs. The gold itself most likely came from alluvial sources, rivers flowing from the Andes. Nazca territory had very few metal ores, but they could pan flakes of gold from streams or obtain gold through trade with highland groups.
Golden discs
Cahuachi was a major Nazca ceremonial center, located about a 45-minute drive west from the city of Nazca. It is believed to be a site of major spiritual significance and a location for pilgrimage for the Nazca people. Of note, archaeologists only found small amounts of gold among offerings in Cahuachi. Absent huaquero looting of gold over centuries (always a problem), it would indicate that gold was relatively rare and reserved for the most important rituals and persons.
High-status Nazca mummies were wrapped in layers of fine textiles and adorned with metallic embellishments. (To date, I have not seen any historical examples of Nazca mummies that were prepared for burial or preserved with diatomaceous earth like the tridactyl mummies.)
These gold foils and sequins were sewn onto clothes or burial bundles. Many of the tridactyl mummies show very similar gold foil adornments on various parts of their bodies.
Larger pieces like bracelets and crowns were also part of Nazca burials. One of the bracelets, for example, is a broad cuff with tiny feline figures worked in relief across its surface. The choice of motif is likely significant. The feline was a sacred creature in ancient Peru, associated with power. Other metallic cuffs appear to have simple geometric shapes.
By burying gold with their loved ones, the Nazca perhaps hoped to illuminate their path in the underworld or curry favor with the gods.
I already counted his toes, they are all there
Common Nazca Burial Practices
When a Nazca elite died, the send-off was elaborate. Most bodies were wrapped in textile layers and prepared for burial with various items of importance.
The Burial Process
Mummification Bundles: The dead were placed in a fetal position or seated upright, then wrapped in multiple layers of textile to create a tight bundle. This bundle might be painted or adorned on the outside.
Grave Offerings: Buried alongside or within the mummy bundle were ceramic jars and bowls (often painted with Nazca deities or nature symbols) for food and drink, gourd canteens, weapons, and personal items.
Luxury Items for Elites: High-status burials included feather fans or plumes, shell beads, and metal ornaments. Gold nose ornaments, earrings, bracelets, pectorals (chest plates), and even silver items marked the wealthy. Headresses adorned with colorful feathers and gold were also used. (as shown on the heads at the museum.)
Ceremonial Context: Funerals and burials were likely accompanied by religious ceremonies at sites like Cahuachi. The presence of feasting remains, corn beer (chicha) vessels, and evidence of sacrifice indicates that sending off the dead was a community affair.
The Chauchilla Cemetery
Nazca cemeteries like Chauchilla (due south of Nazca) give us a window into these customs. Even today, you can see open tombs at Chauchilla with skeletons or mummies still adorned with fragments of cloth and other objects.
Unfortunately, many tombs were plundered over centuries by looters looking for gold. Because of huaquero (grave-robber) activity, it is difficult to know the condition of these sites as the Nazca left them. The museum’s holdings of Nazca gold are especially valuable because they represent pieces saved from looters and preserved for study.
The Tridactyl Bodies The Nazca tridactyl bodies are unique in quite a few regards, but for my closing thoughts in this blog, I’ll show some photos of burial adornments. The first thing that needs to be mentioned is the lack of a known burial site for the tridactyl bodies. Because these bodies were not found by archaeologists, the site was not secured for study. In fact, there is no location that has been identified as the true location of their discovery. Obviously, it hinders any scientific/academic study of the area and the hopes of finding additional evidence about their nature, origin, and history. The bodies themselves provide the historical evidence.
The manner in which they were buried/preserved is unlike any other mummies from any other culture or period. Interestingly, the Nazca tridactyls are better preserved than most of the other bodies I’ve seen, including the ones in the museum. So, maybe there is something to this method.
Many of the tridactyl bodies do have gold foil adornments on their bodies. The golden foil discs on the headdresses, and display cases bear a striking resemblance to the golden discs found on the bodies of Montserrat and others. Other tridactyl bodies have what appear to be tumbaga (a golden alloy) and copper adornments.
The mummy “Sebastian” has a grey metal cuff around the back of his neck. The Gold Museum features many bracelets and cuffs that appear similar to Sebastian’s neck adornment. In this image, number 19 appears to be very similar in size to Sebastian’s cuff.
Ornamental Gold Discs (Left), Tridactyl Mummies with Golden Disc Adornments in their foreheads (Right)Bracelets/Cuff in the Museum of Gold (Left) Sebastian’s cuff (Right)
Side Note: If you visit the Museum of Gold, eat next door at Fauna. Get an order of the Focacia. In a city full of great food, it is one of my favorites.
The most common form of harassment I see on a daily basis in my practice is the “strike, shove, kick” variety. This is what is often charged in physical altercations when no injuries are sustained. (Note: If there are injuries, including pain, law enforcement will typically file third-degree assault charges.)
However, harassment charges in Colorado actually cover a wide range of acts, from unwanted physical contact to online messages that cross a certain line.
These cases might seem straightforward at first, but the law around harassment is shaped by years of Colorado Supreme Court and Court of Appeals decisions. This case law protects both public safety and free speech.
If you are facing a harassment charge, it helps to understand how the law works, what the prosecution must prove, and the defenses that have succeeded in real Colorado cases.
This blog focuses on criminal harassment under Colorado law, Colorado Revised Statutes 18-9-111. We’ll cover the types of harassment, highlight important cases, and show cases where courts have limited the law to protect constitutional rights.
Finally, we’ll give some examples of defenses that have worked in appellate courts, so you can see how these cases have played out in the past.
Types of Harassment Under Colorado Law
Colorado’s harassment statute lists several “varieties” of harassment. One thing each subsection has in common, is that they all require that the act be done with the intent to harass, annoy, or alarm another person.
Here are the main categories.
1. Physical Contact
Harassment includes striking, shoving, kicking, or touching another person with the intent to harass. These cases often arise from arguments or domestic disputes.
The injury does not need to be serious, which is why harassment can be charged even when conduct falls short of assault. Remember, if there is pain or injury, it will typically be charged as third-degree assault.
Quite commonly, police will stack the charges and you’ll see harassment and assault filed on the same case.
2. Obscene Language or Gestures in Public
It is a crime to direct obscene language or an obscene gesture at someone in a public place. Obscene has a specific legal meaning. It refers to explicit sexual content, not simple profanity.
This part of the statute is narrow because courts have made clear that most rude words and gestures are protected speech.
3. Following Someone
A person commits harassment by following another person in or around a public place with intent to harass. This is a lower-level version of stalking. One incident of following can lead to a charge if the intent is proven.
4. Unwanted Phone Calls
The statute prohibits repeated telephone calls that have no legitimate purpose of conversation. Hang-up calls, repeated calls at midnight, or constant ringing designed to disrupt someone’s privacy fall into this category.
5. Electronic Harassment
Colorado added electronic harassment in 2015 under Kiana Arellano’s Law. It includes sending electronic communications that threaten injury or contain obscene sexual content.
In 2022, the Colorado Supreme Court struck down part of this law, ruling that the phrase “intended to harass” was unconstitutional when applied to online speech that was merely annoying or offensive. Threats and obscene content remain criminal. Annoying or critical messages do not.
6. Fighting Words
violent response. These are known as fighting words, a narrow category of unprotected speech. The law requires proof that the words used would provoke an immediate breach of the peace. Read more about threats vs. protected speech.
7. Penalties and Domestic Violence
Harassment charges under CRS 18-9-111 are misdemeanors. When harassment involves intimate partners, the case often receives a domestic violence tag, which triggers mandatory protection orders and other consequences.
Some harassment cases involving bias motivation or physical contact may be charged as class 1 misdemeanors with higher penalties.
Landmark Colorado Cases on Harassment and Free Speech
Harassment laws often intersect with First Amendment rights. Colorado appellate courts have repeatedly reviewed the statute and struck down sections that criminalized protected speech. These cases shape how harassment charges work today.
Bolles v. People (Colorado Supreme Court 1975)
This foundational case involved mailed anti-abortion flyers. Prosecutors charged Bolles under the section that punished communications sent in a manner likely to harass or alarm.
The court struck the statute down as overbroad because it criminalized too much protected speech. The ruling forced the legislature to rewrite the law and remains one of the most important free speech decisions in Colorado harassment jurisprudence.
People v. Weeks (Colorado Supreme Court 1979)
Weeks made a series of sexually explicit phone calls to a woman’s home. He argued that the harassment statute’s obscenity provision was unconstitutional.
The Colorado Supreme Court rejected the challenge because his speech was legally obscene. The ruling confirmed that obscene or threatening calls fall outside First Amendment protection and can be prosecuted.
People v. Smith (Colorado Supreme Court 1993)
Smith challenged a subsection that criminalized repeated communications at inconvenient hours or in offensively coarse language.
The court agreed that the statute was vague and overbroad because it swept in protected speech. After this decision, the legislature narrowed the law so that it now applies only to fighting words or true intrusions into privacy.
Fun fact: this case was appealed by my first chief at the 4th Judicial DA’s office (I was still in high school at the time this case was argued).
People v. Moreno (Colorado Supreme Court 2022)
Moreno sent repeated vulgar emails and Facebook messages to his ex-wife. He was charged under Colorado’s electronic harassment law.
The Colorado Supreme Court ruled that part of the law was unconstitutional because it allowed prosecution of online speech intended to annoy or harass, even when the speech was not threatening or obscene.
The court removed the phrase “harass or” from the statute. Today, electronic harassment in Colorado requires threats or obscene content, not merely unpleasant messages.
Counterman v. Colorado (United States Supreme Court 2023)
This case involved Colorado’s stalking statute rather than harassment, but it directly affects how courts analyze threats. The Supreme Court held that prosecutors must show a defendant acted at least recklessly regarding whether their statements would be perceived as threats.
Although Colorado’s harassment law already requires intent for threat-based subsections, this decision reinforces that courts must take a close look at a speaker’s mental state when evaluating threatening speech.
Defenses That Have Succeeded in Harassment Cases
The best defense in harassment cases involving speech is typically the First Amendment. In physical cases, the defenses are a little different.
Many defenses that appear frequently in harassment cases come directly from appellate decisions. Here are a few of the most common and effective defenses.
1. Protected Speech
If a harassment charge is based on words, gestures, posts, or messages, the first question is whether the speech is protected. Courts have repeatedly held that offensive, vulgar, or upsetting language is not enough for a conviction unless it contains threats, legal obscenity, or fighting words.
Many harassment charges are dismissed once the content of the speech is reviewed. True threats and fighting words matter. Many things fall under the protected speech blanket of the First Amendment.
The First Amendment is very broad and protects many types of speech. In recent years, some countries have taken the approach of criminalizing speech (including online comments) that they find disagreeable or offensive.
In my opinion, one of the things that makes our country great is the broad protections provided by the First Amendment to allow for discourse, and even unpopular opinions, to be shared without fear of prosecution.
2. No Intent to Harass
The prosecution must prove that you acted with the purpose of harassing, annoying, or alarming the other person. If you had a legitimate purpose, such as trying to resolve a dispute, co-parent, request payment, or address an emergency, intent may not be present. Intent is the keyword here.
Were you trying to harass, annoy, alarm or intimidate the other person?
3. Legitimate Reason for the Communication
Repeated communications that serve a reasonable purpose, even if unwelcome, do not qualify as harassment. Courts have recognized that people sometimes must send messages that the recipient does not enjoy, but that still serve a lawful purpose.
Where do multiple calls cross the line? In many situations, that could be a question for a jury to decide.
4. Insufficient Evidence of Who Committed the Acts
This is the oldest defense in the book. The classic “it wasn’t me” defense as immortalized by the artist Shaggy in the song with the same title. (“But she caught me on the counter…It wasn’t me”).
In cases involving anonymous calls, unknown senders, or unclear identity, the defense may argue that the prosecution cannot prove the defendant was the person responsible. This defense is especially common in online cases. This is one of the most common defenses in criminal cases.
The “it wasn’t me” defense, or “you got the wrong guy” defense are quite common, and can be very effective without computer forensic evidence, like an IP address tying a person to the case.
5. Words Were Not Threats or Fighting Words
Threat-based harassment requires a true threat. Coarse-language harassment requires fighting words or obscene language (referring to actual sex acts, not just saying curse words).
If the alleged conduct does not meet these narrow definitions, the charge shouldn’t stick. I wrote a blog recently about fighting words and the Counterman case.
6. Self-Defense in Physical Harassment
If a harassment allegation stems from touching or pushing someone, you may assert self-defense or defense of others. Some judges have found that self-defense is not a defense to harassment, as the intent doesn’t line up with the allegations. Harassment requires intent to harass, not intent to protect yourself.
So this defense can get a little tricky because if you are defending yourself, of course the mental state (mens rea) of harassing would not be present.
Harassment in Colorado: What This Means for Anyone Facing Harassment Charges
Harassment cases are quite common in Colorado, but they’re also serious. They can be a stain on your record and send you to jail. Especially when cases involve domestic relationships or conduct that affects someone’s safety, courts have placed strong boundaries around what the government can criminalize.
Many harassment allegations fall in the gray area between free speech and abusive criminal behavior. That is why context, intent, and the content of any communication matter.
There is a reason that the Founding Fathers put freedom of speech in the very first amendment. The 1st Amendment’s protections are very strong, but certain words can cross the line into criminal behavior, like fighting words.
If you are dealing with a harassment investigation or charge, the specific facts will determine the strength of both the prosecution’s case and your defense. If you’re looking for a Colorado Springs attorney who handles harassment cases, give us a call to discuss your case.
Did your conduct meet the narrow legal definitions created by statute and shaped by the appellate courts, or was it protected by the First Amendment?
Section 18-9-111 Harassment
Kiana Arellano’s Law
(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or
(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or
(c) Follows a person in or about a public place; or
(d) Repealed.
(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or
(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another’s home or private residence or other private property; or
(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.
(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.
(2) Intentionally left blank —Ed.
(a) A person who violates subsection (1)(a) or (1)(c) of this section or violates any provision of subsection (1) of this section with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121 (5)(a); or sexual orientation, as defined in section 18-9-121 (5)(b), commits a class 1 misdemeanor.
(b) A person who violates subsection (1)(e), (1)(f), (1)(g), or (1)(h) of this section commits a class 2 misdemeanor.
(c) A person who violates subsection (1)(b) of this section commits a petty offense.
(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.
(4) to (6) Repealed.
(7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano’s Law”.
(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.
Domestic violence charges are incredibly serious. They can be career ruiners, relationship enders, and carry many unforeseen side effects (loss of gun rights, restraining orders. What does it mean to be charged with domestic violence in Colorado Springs? Maybe you’re confused about what actually “counts” as domestic violence under Colorado law.
Many people misunderstand Colorado’s domestic violence laws. Domestic violence isn’t a crime by itself. It’s a sentence enhancer added to other crimes when they occur between people in an intimate relationship. Understanding who qualifies as an intimate partner and what conduct triggers DV charges is critical to your defense.
Here’s what you need to know about domestic violence charges in Colorado.
What is Domestic Violence?
This surprises most people. You cannot be charged with “domestic violence” alone. Colorado law defines domestic violence as an act or threatened act of violence against a person with whom the defendant is or has been involved in an intimate relationship.
The key is the relationship, not the conduct. The same act might be simple assault between strangers but assault with a domestic violence sentence enhancer between intimate partners.
Who Qualifies as an Intimate Relationship Under Colorado Law
Colorado law defines intimate relationship very specifically. Not all family members or household members qualify. Here is the pertinent Colorado Stature, CRS 18-6-800.3:
(1) “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
(2) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.
Intimate Relationships Include
Current or former spouses
Current or former dating partners
People who have a child together (even if never married or dated)
The relationship must be or have been romantic or sexual in nature.
NOT Considered Intimate Relationships
Parent and child
Siblings
Roommates without romantic involvement
Extended family members (cousins, aunts, uncles)
Housemates who are just friends
The People v. Disher Case: Defining Intimate Relationships
In 2010, the Colorado Supreme Court addressed what constitutes an intimate relationship in People v. Disher, 224 P.3d 254 (Colo. 2010). This landmark case clarified that sexual relationships are not required for domestic violence charges.
The Facts of Disher
James Disher was convicted of harassing a woman he had dated. The victim testified they had “dated exclusively” for a time. However, there was no testimony about a sexual relationship.
The county court refused to order domestic violence treatment because no sexual relationship was proven.
The Supreme Court’s Ruling
The Colorado Supreme Court reversed, holding that “evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship.” The court emphasized that “intimate” is not synonymous with “sexual.” Intimacy is a broader concept that includes but is not limited to sexual intimacy.
What This Means for Your Case
After Disher, prosecutors don’t need to prove you had sex with the alleged victim. Evidence that you dated, even without sexual activity, can establish an intimate relationship. The court looks at factors including:
Nature or type of relationship
Length of time the relationship existed
Frequency of interaction between parties
Whether the relationship was romantic in nature
Why This Matters for Defense
Disher expanded what qualifies as an intimate relationship. However, it also means defense attorneys can challenge whether brief or ambiguous relationships qualify.
If you went on one or two dates with no romantic connection, your domestic violence attorney can argue no intimate relationship existed under Disher’s factors.
The “Dating Partner” Definition
Dating partner causes the most confusion. Colorado law doesn’t require a long relationship or cohabitation, it refers to an intimate relationship.
What Courts Can Consider
Nature of the relationship (romantic vs. friendship)
Frequency of interaction
Duration of the relationship
Type of interaction (dates, intimate contact)
Courts look at the totality of circumstances. Even short romantic relationships can qualify. One date might not qualify, but several dates with romantic intent could certainly be charged as DV.
Situations that could be argued were not intimate
Casual dating (case by case)
“Friends with benefits” (this one could be tough)
One-night stands
Online relationships without in-person meetings
Prosecutors must prove the intimate relationship existed. Your attorney can challenge this element if the relationship was ambiguous.
These relationships above are not necessarily clear-cut intimate relations and leave room to argue that it was not intimate. Speak to your attorney to discuss whether your relationship may not be considered an intimate one for DV purposes.
Common Crimes Charged as Domestic Violence
Domestic violence enhances many different underlying crimes. Here are the most common:
1. Third Degree Assault (Probably the Most Common DV Charge)
Third degree assault is knowingly or recklessly causing bodily injury to another person. This is a Class 1 misdemeanor.
Common Scenarios:
Pushing or shoving during an argument
Slapping or hitting
Grabbing that causes bruising
Throwing objects that strike the victim
Bodily Injury Means:
Physical pain, illness, or impairment. Visible injuries aren’t required. The victim’s testimony about pain can be enough. As long as the person felt pain, it can be charged as assault.
2. Harassment
Harassment involves striking, shoving, kicking, or otherwise touching someone in a manner to harass, annoy, or alarm them. This is a Class 3 misdemeanor, but becomes Class 1 misdemeanor when domestic violence is involved.
Common Scenarios
Pushing without causing injury
Grabbing someone’s arm
Blocking someone from leaving
Throwing objects at someone (even if they miss)
Key Difference from Assault
Harassment requires intent to harass, annoy, or alarm. Assault requires causing bodily injury. Harassment is often charged when there’s physical contact but no provable injury.
There are many types of harassment that don’t require physical contact. These can include telephone/computer harassment, or even verbal harassment.
3. Menacing
Menacing is placing someone in fear of imminent serious bodily injury through threats, actions, or weapons. This is a Class 3 misdemeanor, or Class 5 felony if a weapon is involved.
Common Scenarios
Threatening to hit or hurt someone
Raising a fist in a threatening manner
Displaying a weapon during an argument
Threatening with an object (bat, knife, etc.)
What “Imminent” Means
The threat must be immediate, not future. “I’m going to hurt you right now” can be menacing. “I’ll get you someday” probably isn’t.
Criminal mischief is damaging someone else’s property. When done to intimidate/retaliate/coerce/control an intimate partner, it becomes a domestic violence offense.
Common Scenarios
Breaking a phone during an argument
Damaging a car
Punching holes in walls
Breaking dishes or furniture
Why This Is Domestic Violence:
The conduct must be intended to intimidate, coerce, or control the intimate partner. Simply breaking things in anger may not qualify.
5. Violation of a Protection Order
If a protection order exists and you contact the protected person, you can be charged with violation. This is a Class 2 misdemeanor for first offense, Class 1 misdemeanor for subsequent violations.
Common Scenarios
Texting or calling the protected person
Going to their home or workplace
Contacting through third parties
Social media contact
This charge doesn’t require proof of an intimate relationship because the protection order already establishes it.
Other Charges Sometimes Enhanced by DV
False imprisonment (preventing someone from leaving)
Stalking (repeated unwanted contact)
Sexual assault between intimate partners
Child abuse (when perpetrator is intimate partner of parent)
Trespassing (entering home of former intimate partner)
What Makes Something “Domestic Violence”
For any crime to be enhanced as domestic violence, prosecutors must prove:
An underlying crime occurred
The victim was an intimate partner
The act was intended to intimidate, coerce, control, punish, or revenge
The Third Element Is Critical: Not every crime between intimate partners is domestic violence. If you accidentally injure your spouse in a car accident, that’s not domestic violence. The conduct must be intentional and meant to control or punish.
Consequences of Domestic Violence Conviction in Colorado
Domestic violence convictions carry severe consequences beyond the underlying crime:
1. Mandatory Domestic Violence Treatment
2. Protective Orders
3. Loss of Gun Rights
Federal law prohibits gun possession after DV conviction
Must surrender all firearms
Cannot possess guns even for work
Lifetime ban in most cases
4. Immigration Consequences
Deportation for non-citizens
Denial of citizenship applications
Inadmissibility for visa applications
5. Custody and Visitation Issues
DV convictions heavily impact custody decisions
May require supervised visitation only
Can lose parental rights in extreme cases
6. Employment Impact
Professional licenses may be revoked
Many employers fire after DV convictions
Background checks reveal DV convictions
Security clearances often revoked
7. Housing Consequences
Difficulty renting apartments
Possible eviction from current housing
Public housing denials
Why Relationship Status Matters for Your Defense
Challenging whether an intimate relationship existed is a valid defense strategy.
If You Were Just Roommates: No intimate relationship means no domestic violence enhancer. The charge becomes simple assault or harassment with lesser penalties and no DV consequences. Still a serious crime, but it won’t have the DV enhancer.
If You Were Acquaintances: Even if you knew each other well, friendship alone doesn’t create an intimate relationship.
If the Relationship Was Ambiguous: Your attorney can argue insufficient evidence of an intimate relationship. Prosecutors must prove it beyond a reasonable doubt.
Why This Defense Matters: Removing the DV enhancer means:
Self-Defense You were protecting yourself from the alleged victim’s aggression. Colorado allows reasonable force in self-defense.
Defense of Others You were protecting your children or others in the home from the alleged victim.
False Accusations The alleged victim fabricated or exaggerated claims, often during custody disputes or breakups.
Lack of Intent The contact was accidental, not intended to harm or intimidate.
No Intimate Relationship You were roommates, friends, or family members, not intimate partners.
Insufficient Evidence No visible injuries, no witnesses, conflicting statements.
What Happens if Someone is Arrested for Domestic violence
Mandatory Arrest Policy Colorado has mandatory arrest laws. If police respond to a DV call and find probable cause, they must arrest someone. They cannot simply separate you and leave.
Mandatory Protection Order The court issues a mandatory protection order at your first appearance. This prohibits contact with the alleged victim even if they want contact.
No Contact Means No Contact You cannot call, text, email, or contact the victim through others. You cannot go to shared residences. Violations result in new charges.
Child Custody Issues If you share children, the protection order affects your parenting time. You may get supervised visitation only until the case resolves.
Why You Need an Attorney for DV Charges
Domestic violence charges are different from other criminal cases:
Mandatory minimum penalties
Lengthy treatment requirements
Permanent loss of gun rights
Automatic protective orders
Severe collateral consequences
Immigration issues
An Experienced Attorney Can
Challenge whether an intimate relationship existed
Present self-defense or defense of others claims
Negotiate for non-DV plea agreements
Fight for dismissal based on insufficient evidence
Protect your parenting time and custody rights
Early Attorney Involvement Matters: Domestic violence cases move quickly. Protection orders are issued immediately. Treatment requirements begin early.
Frequently Asked Questions
1. Is it domestic violence if we’re just dating?
Yes, dating partners can be considered intimate relationships under Colorado law. The relationship doesn’t need to be long-term or exclusive.
2. Is fighting with my adult child considered domestic violence?
No. Parent-child relationships are not intimate relationships under Colorado DV law. Charges would be assault or harassment without the DV enhancer.
3. Is it domestic violence if we never lived together?
It can be. Cohabitation is not required. Current or former dating partners can qualify regardless of living arrangements.
4. What if my roommate and I got into a fight?
If you’re just roommates without a romantic relationship, it’s not domestic violence. The charges would be simple assault or harassment.
5.Can domestic violence charges be dropped if the victim wants them dropped?
The victim cannot drop charges. Only the prosecutor can dismiss charges. Many DV cases proceed even when victims don’t want to prosecute.
6. Will I lose my gun rights for a domestic violence conviction?
Yes. Federal law prohibits gun possession after many domestic violence convictions. This is a lifetime ban in most cases.
7. What if we were only together one time?
One date or encounter may not establish an intimate relationship. Courts look at the totality of circumstances. Your attorney can challenge whether the relationship qualifies. Every case is different, and an experienced Colorado criminal defense lawyer can help you navigate this issue.
Get Legal Help for Domestic Violence Charges in Colorado Springs
Domestic violence charges carry consequences that last years beyond your sentence. Loss of gun rights, mandatory treatment, protective orders, and employment impacts make these cases serious even for first-time offenders.
Understanding what qualifies as an intimate relationship and what conduct triggers DV charges is the first step in your defense. Challenging these elements can result in reduced charges without DV consequences.
McDowell Firm handles domestic violence cases in Colorado Springs Municipal Court and El Paso County Court. Attorney Joshua McDowell is a former prosecutor who understands how DV cases are prosecuted and how to defend them effectively.
We offer free consultations to discuss your charges, explain your options, and develop a defense strategy. Don’t face domestic violence charges without experienced legal representation.
Contact McDowell Firm today to protect your rights and your future.
When facing DUI charges, most defendants rely on standard legal defenses: challenging breathalyzer accuracy, questioning the traffic stop’s legality, or disputing field sobriety test results.
But some cases have featured defenses so unusual, so unexpected, that they’ve made legal history, and in some cases, headlines. Some of these bizarre DUI defense strategies showcase creative legal thinking, and I appreciate it when lawyers think outside the box.
Cases like these also provide insight into how the law handles impairment, consent, and criminal responsibility.
I would wager any experienced DUI defense lawyer has heard some excuses/defenses/explanations for drunk driving arrests that seem stranger than fiction.
I can certainly attest that in my time as a DUI defense attorney in Colorado Springs, I have seen my fair share of interesting cases. I’ve also effectively used some pretty unique defense strategies at trial. Today’s article will cover some of the more unconventional DUI defense strategies that have actually been argued in courtrooms.
Top 10 Weird DUI Defenses
The Auto-Brewery Syndrome Defense: “My Body Makes Its Own Alcohol”
The “It Sucks to Be Pretty” Defense: Stopped for being Hot.
The Rising Blood Alcohol Defense: “I Got Drunker After I Stopped Driving”
The Fever Defense: “High Body Temperature Inflated My Breathalyzer Results”
The Sleepwalking/Ambien Defense: “I Was Unconscious”
The Tesla Autopilot Defense: “The Car Was Driving Itself”
The Barbie Car Defense: “This Isn’t a Real Vehicle”
The “Someone Else Was Driving” Defense: Challenging Actual Physical Control
The “I Only Had One Beer” Defense (With GERD or Diabetes Twist)
The Faulty Video Evidence Defense: “The Recording Doesn’t Show What You Claim”
1. The Auto-Brewery Syndrome Defense: “My Body Makes Its Own Alcohol”
The Defense: Auto-brewery syndrome, medically known as gut fermentation syndrome, is a rare condition where excessive yeast in the digestive system converts carbohydrates into ethanol. Defendants claim their elevated blood alcohol content came from internal fermentation, not from drinking.
Real Case: In 2015, a New York woman was arrested after registering a breathalyzer reading of 0.40% BAC (note: This is 8 times the legal limit in Colorado). Despite this extraordinarily high reading, hospital staff noticed she showed minimal signs of intoxication.
Her lawyer investigated and discovered she suffered from auto-brewery syndrome. The woman’s husband reported she had only consumed four drinks over six hours, which would produce a BAC between 0.01 and 0.05%. Medical testing revealed her body was producing alcohol internally from ordinary food consumption.
After her defense team spent $7,000 on specialist testing to document the condition, the judge dismissed the DUI charge in December 2015. The district attorney initially planned to appeal but ultimately dropped the case.
Did It Work? Yes, but with significant limitations. The defense succeeded because the defendant obtained a professional medical diagnosis confirming the condition existed before the arrest. Additionally, if defendants admit to drinking alcohol before driving, as is common, the defense becomes nearly impossible to assert credibly.
The Takeaway: Auto-brewery syndrome represents a legitimate medical condition, but it’s extremely rare. Successful use requires comprehensive medical documentation, including controlled glucose challenge tests under clinical supervision. Most importantly, defendants cannot have admitted to consuming alcohol before driving.
2. The “It Sucks to Be Pretty” Defense: Stopped for being Hot.
The Defense: A defendant claimed that being attractive led to unfair targeting by police officers who wouldn’t have stopped a less attractive driver under the same circumstances.
Real Case: In St. Augustine, Florida, a woman was pulled over for driving 15 miles per hour over the speed limit. During the stop, she forgot that the officer had asked for her registration and license, claimed she’d only had two drinks, and provided inconsistent statements about why she was speeding. On the way to jail, she told officers, “It sucks to be pretty.”
The implication appeared to be that officers targeted her because of her appearance rather than legitimate probable cause for the DUI investigation.
Did It Work? No. The court found the statement irrelevant to whether the defendant was driving under the influence. Her actual impairment, which was demonstrated through field sobriety tests, breathalyzer results, and officer observations, provided clear grounds for the DUI charge regardless of physical appearance.
The Takeaway: Physical attractiveness is not a legally recognized defense to DUI charges. Officers may stop any driver who commits traffic violations or displays signs of impairment, regardless of appearance. This case highlights how some defendants make statements that actually damage their defense rather than help it.
Remember police have to have a valid legal reason to stop you. Driving while being the wrong race in the wrong neighborhood is a common complaint for improper stops. Undoubtedly, there are bad cops out there who would pull someone over for the way they look.
In court, law enforcement must establish that they had reasonable suspicion that a violation was occurring before they legally effectuate a traffic stop. No reasonable suspicion is a great defense for an illegal search and seizure.
3. The Rising Blood Alcohol Defense: “I Got Drunker After I Stopped Driving”
The Defense: Alcohol takes time to metabolize, typically 60 to 90 minutes from consumption to peak blood alcohol concentration. Defense lawyers argue that defendants’ BAC was below the legal limit while actually driving but rose above the limit during the time police conducted field sobriety tests and administered breathalyzer tests.
Real Case: This defense has been attempted in numerous jurisdictions with varying success. The theory holds that if someone drinks immediately before driving, their BAC could be rising during the traffic stop, meaning they were technically legal while operating the vehicle even though they later tested over the limit.
In Colorado, the statute allows for a BAC at the time of driving or within 2 hours of the time of driving, which is a way for a DA to effectively argue against this defense.
Did It Work? Sometimes. Courts acknowledge the scientific validity that BAC rises after alcohol consumption. However, prosecutors effectively counter this defense by arguing that even if BAC was lower while driving, the defendant likely would have continued driving with an elevated BAC had police not intervened.
The defense works best when defendants can prove they consumed alcohol immediately before driving (within 15-20 minutes) and that substantial time elapsed during the traffic stop before testing. Remember, in Colorado this is a tough defense with the way the statute is worded.
The Takeaway: This defense requires precise timeline documentation and expert toxicologist testimony. Success depends on demonstrating exactly when alcohol was consumed relative to when driving occurred and when tests were administered.
4. The Fever Defense: “High Body Temperature Inflated My Breathalyzer Results”
The Defense: Studies show that elevated body temperature directly correlates with higher BAC readings on breathalyzer devices. Defendants argue that fever caused artificially inflated results, making them appear more intoxicated than they actually were.
Real Case: Multiple defendants have argued that illness-related fever caused faulty breathalyzer readings. Additionally, the defense points out that fever symptoms: flushed face, red eyes, and haggard appearance. These symptoms mirror common indicators that lead officers to suspect DUI.
Did It Work? Mixed results. While scientific research supports the connection between body temperature and breathalyzer accuracy, defendants must present medical documentation of fever at the time of arrest.
The defense works best when combined with evidence that the defendant appeared impaired due to illness symptoms rather than alcohol consumption. However, prosecutors can counter by requesting blood tests, which are less susceptible to temperature variations than breath tests.
The Takeaway: This defense challenges the reliability of breathalyzer technology rather than denying alcohol consumption. It requires medical evidence and often expert witness testimony about breathalyzer mechanics.
The defense is stronger when prosecutors relied exclusively on breath tests without confirming results through blood analysis. The “I was sick defense” will work better in a refusal scenario. If the person refuses roadsides and chemical tests, it may be easier to argue that what appeared to be intoxication, was the effects of an illness.
5. The Sleepwalking/Ambien Defense: “I Was Unconscious”
The Defense: Defendants claim they were in an automatism state, that they were unconscious or semi-conscious, while driving due to sleepwalking or side effects from sleep medications like Ambien (zolpidem). They argue they lacked the voluntary control and criminal intent necessary for DUI conviction.
Real Case: Multiple defendants have attempted this defense, though more successfully in other criminal contexts than DUI cases. The most famous non-DUI case involved Kenneth Parks in Canada, who drove 14 miles to his in-laws’ home while sleepwalking and killed his mother-in-law. He was acquitted because experts testified he was genuinely unconscious during the act.
For DUI specifically, defendants have claimed that Ambien caused “sleep-driving” episodes where they operated vehicles without awareness. In People v. Mathson (2012), a California appeals court addressed this defense. The defendant argued Ambien caused an unconscious state, but the court ruled against him, classifying his condition as voluntary intoxication since he knowingly took the medication.
Did It Work? Rarely for DUI charges. Courts distinguish between voluntary and involuntary intoxication. Because defendants knowingly take Ambien (with warning labels advising against driving), courts typically classify resulting impairment as voluntary intoxication, which is not a valid DUI defense.
The defense might work for truly involuntary circumstances, such as being unknowingly drugged, but knowingly taking prescription medication doesn’t qualify.
The Takeaway: The Ambien defense faces significant legal hurdles because defendants voluntarily consumed the substance. Even if the medication caused unexpected side effects, the act of taking it knowingly undermines claims of involuntary intoxication. Additionally, repeat incidents destroy credibility. If you’ve sleep-driven before while on Ambien, you can’t claim ignorance of the risk.
I have had multiple Ambien cases where I legitimately believe my client took their prescription, went to bed, and then ended up driving their car into a ditch. It’s a very tough defense that may be better suited as a mitigating factor, than an affirmative defense, such as an involuntary intoxication.
Cases where a defendant has been drugged (GHB, “roofies”, etc) is a different defense, and would be a true involuntary intoxication.
6. The Tesla Autopilot Defense: “The Car Was Driving Itself”
The Defense: With autonomous vehicle technology advancing rapidly, some defendants have argued they weren’t “operating” or “driving” their vehicles because autopilot features were engaged. They claim that sitting in a self-driving car while intoxicated doesn’t constitute DUI since they weren’t actively controlling the vehicle.
Real Case: A California woman was charged with DUI after police found her behind the wheel of her Tesla with the autopilot feature engaged while she was visibly intoxicated. Her defense team argued that she wasn’t technically driving because the vehicle’s autonomous features were controlling acceleration, braking, and steering.
Did It Work? No. Courts determined that being behind the wheel of a vehicle—even with autonomous features engaged—still constitutes “operating” a motor vehicle under DUI statutes. Current Tesla autopilot technology requires driver supervision and the ability to take manual control at any moment.
Since the defendant maintained the ability to disengage autopilot and control the vehicle, courts ruled she was operating the vehicle for DUI purposes.
The Takeaway: As long as you’re in the driver’s seat of a vehicle capable of being manually controlled, you’re considered to be operating it under Colorado DUI laws (and most other locations, check your local laws). This area of law will likely evolve as fully autonomous vehicles without manual controls become available, but for now, autonomous features don’t exempt drivers from DUI liability.
In Colorado, we call this “actual physical control” of the vehicle. Blaming a crash on Elon Musk isn’t the strongest defense if you happen to be drunk or high behind the wheel. Some people may have valid complaints on autopilot accidents, but drunk driving is never a good idea, even if a computer is doing the steering.
7. The Barbie Car Defense: “This Isn’t a Real Vehicle”
The Defense: Defendants argue that unconventional vehicles, motorized toys, electric scooters, motorized coolers, don’t qualify as “motor vehicles” under DUI statutes, which were designed to address cars, trucks, and motorcycles.
Real Case: In the United Kingdom, a 40-year-old man received a DUI conviction for operating a modified pink Barbie electric car at 4 miles per hour while intoxicated. Despite the vehicle’s toy origins and extremely low speed, the court ruled it qualified as a motorized vehicle subject to DUI laws.
Due to a previous DUI offense within ten years, the defendant lost his driver’s license. This will come down to the laws of your state and what is considered a vehicle for drunk driving purposes.
In a separate Australian case, a 21-year-old man was charged with DUI for operating a motorized cooler with a BAC four times the legal limit. The incident gained viral attention on social media but resulted in serious legal consequences.
Did It Work? Not in these cases. Most jurisdictions broadly interpret “motor vehicle” to include any motorized conveyance operated on public roads or areas accessible to the public. Speed and vehicle classification don’t matter, if it’s motorized and you’re operating it while impaired in a public space, DUI laws likely apply.
The definition can extends to electric scooters, golf carts, riding lawnmowers, motorized wheelchairs, and yes, even modified Barbie cars. Check your local laws on what is considered a “vehicle” or “motor vehicle” and what will get you in trouble for drunk driving.
The Takeaway: In most jurisdictions, DUI laws apply to virtually all motorized vehicles, not just traditional automobiles. If you’re impaired, don’t assume that riding an unconventional vehicle keeps you safe from DUI prosecution. Many defendants have learned this lesson the hard/expensive way.
8. The “Someone Else Was Driving” Defense: Challenging Actual Physical Control
The Defense: DUI statutes often prohibit being in “actual physical control” of a vehicle while impaired, not just actively driving. Defendants found passed out in parked vehicles argue they never actually drove anywhere and weren’t in control of the vehicle.
Real Case: This defense strategy appears in countless DUI cases nationwide. A common scenario involves someone sleeping in their parked car with the keys nearby or in the ignition (but the engine off). Police arrive, find them intoxicated in the driver’s seat, and charge them with DUI based on “actual physical control” rather than actual observed driving.
The success of this defense depends heavily on specific facts: Where were the keys? Was the engine running? Was the person in the driver’s seat or passenger seat? Was the vehicle legally parked or blocking traffic?
Did It Work? Sometimes. Courts look at multiple factors to determine actual physical control: location of keys, whether the engine was running, where the person was sitting, whether the vehicle could be readily driven, and the person’s explanation for being in the vehicle.
Defendants who wisely put keys in the trunk, sat in the back seat, and parked in a safe location have better chances of avoiding conviction than those found in the driver’s seat with keys in the ignition.
The Takeaway: If you’re too intoxicated to drive, the safest approach is calling a rideshare service or taxi. If you must sleep in your vehicle, remove yourself from the driver’s seat, put keys out of reach (ideally out of reach, like the trunk), and park legally in a safe location.
Even these precautions don’t guarantee avoiding charges, but they significantly strengthen your defense. Every case is different and is based on the totality of the circumstances.
If you park your car in the middle of Academy Blvd and hop in the back seat, it may be a tough sell on how the car got there. This would be need to closer to an “alien abduction” defense (I’m joking, but I’ve actually seen even weirder).
9. The “I Only Had One Beer” Defense (With GERD or Diabetes Twist)
The Defense: Defendants claim impossibly low alcohol consumption that couldn’t possibly produce their measured BAC, but the investigation reveals underlying medical conditions explain the difference.
Real Case: Building on the auto-brewery syndrome cases discussed earlier, defendants have successfully argued that conditions like gastroesophageal reflux disease (GERD), diabetes, and certain medications can cause false breathalyzer readings. Someone with diabetes may have high acetone levels in their breath, which breathalyzer devices cannot distinguish from ethanol, potentially causing false positive results.
Did It Work? Sometimes. Medical defenses challenging breathalyzer accuracy have succeeded when defendants present compelling medical evidence. GERD can cause “mouth alcohol” by bringing stomach contents (containing alcohol) into the mouth and throat, inflating breathalyzer readings.
Diabetes-related acetone can trigger false positives. However, these defenses require expert testimony and medical documentation. Defendants can’t simply claim medical conditions without proof.
The Takeaway: Breathalyzer devices, while widely used, have known limitations. Medical conditions can affect results, but proving this requires immediate medical documentation, expert witness testimony, and often demonstrating that police should have administered blood tests rather than relying solely on breath tests.
10. The Faulty Video Evidence Defense: “The Recording Doesn’t Show What You Claim”
The Defense: Some states require law enforcement to video record all traffic stops and field sobriety tests. When officers fail to properly record these interactions, or when video contradicts their testimony, defense lawyers argue for case dismissal based on incomplete evidence.
Real Case: In South Carolina and other states with mandatory video recording requirements, numerous DUI cases have been dismissed because officers failed to properly film the encounter. In some instances, video evidence directly contradicted officers’ written reports or testimony about defendants’ level of impairment or behavior during field sobriety tests.
Defense attorneys have successfully argued that without proper video documentation, courts cannot verify the accuracy of officer observations, creating reasonable doubt about whether defendants were actually impaired.
Did It Work? Yes, in jurisdictions with mandatory recording requirements. When officers fail to follow evidence preservation requirements, courts may exclude improperly documented evidence or dismiss charges entirely. Even in states without mandatory recording, defense lawyers use missing video evidence to create reasonable doubt. If police cruisers have cameras but footage is mysteriously unavailable, juries may question the prosecution’s case.
The Takeaway: Video evidence cuts both ways. While it often incriminates defendants, it also protects against false or exaggerated charges. If the video shows you performed field sobriety tests better than the officer’s report suggests, or if your demeanor appeared less impaired than described, this evidence can significantly strengthen your defense.
What These Crazy Defenses Teach Us About DUI Law
These unusual defense strategies reveal several important truths about DUI prosecution and defense:
1. Medical Conditions Matter
Legitimate medical conditions can affect breathalyzer results, create symptoms that mimic intoxication, or even produce alcohol internally. However, defendants must provide credible medical documentation, courts won’t accept unsubstantiated claims.
2. Scientific Evidence Can Be Challenged
Breathalyzer devices, while generally reliable, have limitations. Temperature, medical conditions, environmental factors, and improper calibration can all affect results. Experienced DUI defense lawyers know how to challenge this evidence effectively.
3. Intent and Voluntariness Are Critical
Many defenses hinge on whether defendants acted voluntarily and with criminal intent. Truly involuntary intoxication (being drugged without knowledge) can provide a defense, but knowingly consuming substances, even prescription medications, typically won’t.
4. Vehicle Definition Is Broad
Don’t assume that operating an unconventional motorized vehicle while impaired avoids DUI liability. In most jurisdictions, DUI Laws apply to virtually anything motorized, from Teslas to Barbie cars.
5. Documentation Is Everything
Whether it’s medical records proving auto-brewery syndrome or video footage contradicting officer testimony, documentation can make or break DUI defenses. Always seek medical attention if you have health concerns that might explain test results.
As with all criminal matters, speak to a licensed attorney in your area about DUI laws in your state. What may be true in Colorado may not hold true in Kansas. Legal defenses are case and law-specific.
The Bottom Line: Creative Doesn’t Mean Effective
While these bizarre DUI defenses make interesting reading, most criminal defense lawyers rely on more conventional and more consistently successful strategies:
Challenging the legality of the traffic stop
Questioning breathalyzer calibration and administration
Proving violations of constitutional rights during arrest
Negotiating plea agreements to reduced charges
If you’re facing DUI charges, the most important step is hiring an experienced DUI defense lawyer who understands both conventional and unconventional defense strategies.
While you probably don’t have auto-brewery syndrome or weren’t driving a Barbie car, your case likely has weaknesses that a skilled lawyer can identify and exploit.
Facing DUI Charges in Colorado Springs? Get Experienced Legal Representation
At McDowell Law Firm, we’ve seen just about every DUI defense strategy imaginable. While we appreciate creative legal thinking, we focus on proven defense tactics that actually work in Colorado courts.
Attorney Josh McDowell’s experience as a former prosecutor gives him unique insight into how the state builds DUI cases, and how to defend them.
Whether your case involves:
Breathalyzer challenges
Field sobriety test accuracy
Traffic stop legality
Constitutional rights violations
Medical conditions affecting test results
Rising blood alcohol defenses
We have the knowledge, experience, and local courtroom relationships to fight effectively for your rights.
Remember: just because a defense sounds crazy doesn’t mean your case is hopeless. Even the most serious DUI charges can be challenged effectively with the right lawyer and the right strategy.
While these cases demonstrate creative legal strategies, they are not legal advice. Every DUI case is unique and requires individualized analysis by a qualified attorney. If you’re facing DUI charges in Colorado, contact an experienced DUI defense lawyer immediately to discuss your specific situation.
from McDowell Law Firm https://mcdowellfirm.com/craziest-dui-defenses-that-have-actually-been-used-in-court/
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When searching for legal help in Colorado Springs, you’ll notice some professionals advertise as “lawyers” while others use “attorney.” Are these simply two names for the same profession, or does the distinction carry meaning?
The answer reveals a fascinating journey through legal history, language evolution, and international legal systems.
The Historical Origins: Two Words, Two Different Meanings
These terms emerged from different linguistic roots, each reflecting a distinct aspect of legal practice.
The Word “Lawyer” and Its Academic Roots
The term “lawyer” entered English vocabulary during medieval times, evolving from words meaning “one learned in law.” Its etymology emphasizes education and knowledge—someone who has studied legal principles and can interpret them for others. The word fundamentally describes a person with legal training and expertise, focusing on their scholarly understanding of legal doctrine.
“Attorney” and the Concept of Representation
In contrast, “attorney” developed from a concept meaning to act on someone else’s behalf. The word’s origins relate to appointing someone to represent your interests or conduct business in your name.
This representational foundation explains why we still use “power of attorney” to describe authorization for someone to manage another person’s affairs—even when that person has no legal training whatsoever.
The linguistic origins reveal an important historical distinction: one word emphasized legal knowledge while the other emphasized advocacy and representation.
England’s Split Role Legal System
To understand why English-speaking nations developed different terminology, we must examine how the British organized their legal profession—a structure that profoundly influenced legal systems worldwide.
The Division Between Solicitors and Barristers
England and Wales developed a split legal profession with two distinct roles. Solicitors served as the primary contact point for clients, handling document preparation, legal advice, transaction work, and case preparation.
Barristers, conversely, specialized exclusively in courtroom advocacy, particularly in higher courts. Clients hired solicitors, who then engaged barristers when courtroom representation became necessary.
This division created geographical patterns as well. Superior courts historically operated primarily in London, concentrating barristers in the capital while solicitors served communities throughout the country.
The system required extensive training for each role, with barristers typically working from shared offices called “chambers” and solicitors operating traditional law offices.
Why Britain Stopped Using “Attorney”
Interestingly, British legal professionals once commonly used “attorney” to describe what are now called solicitors. During the late 1700s, practicing attorneys were excluded from certain legal societies, gradually shifting the profession toward the term “solicitor” instead.
Today in Britain, “attorney” appears almost exclusively in governmental titles like Attorney General, while practicing legal professionals identify as solicitors or barristers.
Attorney vs. Lawyer: America’s Simplified Approach
American colonists imported English common law traditions but adapted them significantly to create a fundamentally different legal structure.
No Professional Split
Unlike Britain, the United States never established formal divisions between different types of legal professionals. American lawyers trained to handle both transactional work and courtroom advocacy.
A single attorney might draft contracts in the morning and argue motions in the afternoon—something impossible under the British system where these functions belonged to different professions entirely.
This merger meant American lawyers could call themselves either “lawyer” or “attorney” because they performed all legal functions. The representational aspect inherent in “attorney” and the knowledge aspect of “lawyer” both applied equally to American legal practitioners.
Historical Nuance: Attorneys-in-Fact
One historical distinction did exist: “attorneys-in-fact” versus “attorneys at law.” The former were individuals authorized to handle someone’s affairs through power of attorney, requiring no legal training.
The latter were formally educated legal professionals. However, this distinction relates to different types of authorization, not to whether one should say “lawyer” or “attorney” when referring to legal professionals.
Modern American Practice: Are They Really the Same?
This question generates surprising debate, even among legal professionals themselves.
The Regulatory Reality
American state bar associations—the bodies that license and regulate legal professionals—make absolutely no distinction between these terms. Colorado’s Supreme Court, which oversees attorney licensing, uses both words interchangeably in its rules and regulations. The American Bar Association similarly treats them as equivalents.
When you verify someone’s credentials through the Colorado State Bar website, you won’t find separate categories. You’re either licensed to practice law or you’re not. If licensed, you may accurately describe yourself using either term without restriction or qualification.
Standard dictionaries, including specialized legal dictionaries, define these words as synonyms. The U.S. Department of Labor’s occupational classifications don’t distinguish between them.
The Claimed Technical Difference
Despite official equivalence, some sources argue for a subtle distinction: all attorneys are lawyers, but not all lawyers are attorneys. Under this interpretation, “lawyer” broadly encompasses anyone with legal education, while “attorney” specifically denotes someone actively representing clients.
This would suggest that a law school graduate who never passed the bar exam might call themselves a “lawyer” but not an “attorney.” Similarly, a licensed professional working as a legal consultant or professor without representing clients might be a “lawyer” but not technically an “attorney.”
Why This Distinction Lacks Practical Meaning
Several factors undermine this claimed lawyer vs attorney difference. First, nearly every state now requires attorneys to have graduated from law school, eliminating any meaningful category of “lawyers” without bar admission. Only California, Vermont, Virginia, and Washington still permit alternative paths to bar admission.
Second, unauthorized practice of law statutes strictly regulate who can describe themselves as legal professionals. Paralegals, legal assistants, and notaries face severe penalties for representing themselves as lawyers or attorneys.
But these statutes don’t distinguish between the two terms for licensed professionals—you either have authorization to practice law or you don’t.
Third, professional responsibility rules govern how attorneys describe their services and credentials. These ethics codes make no distinction between using “lawyer” versus “attorney” in advertising or communications.
Most tellingly, legal professionals themselves don’t perceive any meaningful difference. Many use the terms interchangeably within the same conversation, selecting whichever word feels natural in context.
Understanding Related Legal Titles
While we’re clarifying terminology, several related titles deserve explanation:
1. Esquire
The designation “Esq.” after someone’s name indicates they’re a licensed attorney. Originally referring to assistants to English knights, the title evolved into an honorary designation for American lawyers. Its use is entirely optional and carries no legal significance—it’s purely stylistic convention.
2. Counsel
“Counsel” generally refers to legal advisors, often specifically describing attorneys employed directly by organizations rather than hired from external firms. Companies have “general counsel” or “in-house counsel”—full-time employee attorneys. However, “counsel” also appears in phrases like “legal counsel” as a general term for legal representation.
3. Counselor or Counselor-at-Law
Some attorneys prefer this designation because it emphasizes their advisory role rather than adversarial litigation. The term highlights problem-solving and guidance rather than courtroom combat.
4. Advocate
In American usage, “advocate” informally describes someone who advocates for clients’ interests. However, in Scotland, India, and South Africa, “advocate” serves as the formal title for courtroom lawyers, equivalent to English barristers.
International Variations Matter
If you’re working with legal professionals internationally, terminology becomes critically important:
Canada typically uses “lawyer” rather than “attorney,” except in specific governmental titles.
United Kingdom uses “solicitor” for transactional work and client advice, “barrister” for courtroom advocacy, with “attorney” rarely appearing except in official government positions.
Australia maintains the solicitor/barrister split in some states while other jurisdictions have merged the professions, allowing individual lawyers to perform both functions.
Ireland preserves both solicitors and barristers, though solicitors have gained expanded courtroom rights over recent decades.
South Africa calls transactional lawyers “attorneys” and courtroom specialists “advocates.”
Understanding these international differences prevents confusion when dealing with foreign legal systems or international legal matters.
What Really Matters When Choosing Legal Representation
For Colorado Springs residents seeking legal help, the lawyer-versus-attorney debate is essentially irrelevant. Focus instead on factors that actually impact your legal outcome:
1. Licensing and Good Standing
Verify through the Colorado State Bar that your potential attorney holds an active license with no disciplinary issues. This matters infinitely more than which word they prefer.
2. Relevant Experience
A criminal defense attorney, family law attorney, and real estate attorney each possess dramatically different expertise. Ensure your attorney regularly handles cases like yours.
3. Local Knowledge
An attorney practicing regularly in Colorado Springs understands local court procedures, knows the judges and prosecutors, and can navigate the El Paso County legal system efficiently.
4. Specialized Background
Former prosecutors bring unique insights to criminal defense. Attorneys who’ve worked for insurance companies understand how insurers evaluate claims. This insider knowledge often proves more valuable than years of general practice.
5. Communication Style
Your attorney should explain legal concepts clearly without excessive jargon, return calls promptly, and keep you informed throughout your case.
6. Realistic Assessments
The best attorneys honestly evaluate your case’s strengths and weaknesses. Be wary of anyone guaranteeing specific outcomes—ethical attorneys can’t make such promises.
7. Manageable Caseload
An attorney handling fifty cases can provide more attention than one juggling two hundred. Ask about current caseload and how much time they’ll personally devote to your matter.
The Verdict on Lawyer vs. Attorney
In modern American legal practice, “lawyer” and “attorney” function as complete synonyms. Both describe someone who has completed law school, passed the bar examination, and holds a license to practice law in their jurisdiction. Any claimed distinction lacks regulatory recognition, professional consensus, or practical significance.
The historical origins differ, and international usage varies considerably, but within the United States these words are genuinely interchangeable. Choose your legal representative based on qualifications, experience, and compatibility—not on whether their business card says “lawyer” or “attorney.”
Expert Legal Representation in Colorado Springs
At McDowell Law Firm, we focus on results rather than titles. Attorney (or “lawyer” is fine too) Joshua McDowell combines former prosecutor experience with dedicated defense representation, providing clients the strategic advantage of understanding both sides of criminal cases.
Local Colorado Springs expertise in Municipal Court, El Paso County Court, and throughout the 4th Judicial District
Clear, jargon-free communication ensuring you understand your options and case status
Focused attention through manageable caseloads that prioritize quality over quantity
Insider knowledge from prosecutorial experience that strengthens defense strategies
Whether you need criminal defense representation, personal injury advocacy, or guidance through complex legal challenges, we provide experienced counsel tailored to your specific circumstances.
Don’t let confusion about legal terminology delay getting help you need. Call McDowell Law Firm today for a free, confidential consultation. We’ll explain your situation in plain language and outline realistic paths forward. 719-227-0022. Or email Attorney Josh McDowell directly at josh@pikespeaklaw.com
Your legal challenge deserves experienced, local representation. Contact us now to get started.
