Are DUI Checkpoints Legal in Colorado?

You were not speeding. You were not weaving. The officer has no reason to think you have been drinking.

Can police still stop you?

In Colorado, yes. Courts have upheld properly operated DUI checkpoints, even when officers have no individual reason to suspect a particular driver.

But putting up a sign does not make every stop legal. How police plan the checkpoint, select vehicles, and treat drivers matters. So does what happens after that first contact.

As a former prosecutor and a Colorado Springs criminal defense attorney, I look at both questions: Was the checkpoint lawful, and did the officer have a legal basis for what happened next?

Quick Summary

• Yes, DUI checkpoints are legal in Colorado when operated in accordance with constitutional requirements.
• Police can stop drivers without individual reasonable suspicion at a valid sobriety checkpoint.
• Checkpoint procedures matter. Police must use reasonable, neutral stopping procedures and limit the initial screening.
• Drivers can legally turn away before reaching a checkpoint, but an illegal or unsafe maneuver may give police grounds for a separate traffic stop.
• A checkpoint does not automatically authorize further detention or a vehicle search. Police need a lawful basis for extending an investigation or searching the vehicle.
• A DUI checkpoint arrest can be challenged. An attorney can review the stop, testing procedures, and available evidence for constitutional violations.

Why Police Can Stop You at a DUI Checkpoint

A checkpoint stop is a seizure. You are required to stop, and you are not free to keep driving. The Fourth Amendment and Article II, Section 7 of the Colorado Constitution protect against unreasonable seizures.

For an ordinary traffic stop, police generally need reasonable suspicion of a violation. A properly operated sobriety checkpoint is an exception to that requirement.

In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the U.S. Supreme Court upheld a sobriety checkpoint program. The Court balanced the government’s interest in preventing impaired driving, how the program advanced that interest, and the intrusion on motorists.

Colorado followed that year in People v. Rister, 803 P.2d 483 (Colo. 1990), and Orr v. People, 803 P.2d 509 (Colo. 1990). Those decisions upheld particular checkpoints under both the federal and Colorado constitutions.

The takeaway is straightforward. Police do not need to see you commit a traffic violation before stopping you at a valid sobriety checkpoint. They still have to operate it reasonably.

What Makes a Colorado DUI Checkpoint Legal?

There is no simple checklist that automatically decides every case. Colorado courts consider the circumstances as a whole. The following features helped support the checkpoints approved in Rister and Orr.

Planning and limits on officer discretion

Written instructions and supervisory decisions help keep officers from choosing whom to stop on a whim. We examine who approved the operation, how the location was selected, and what instructions officers received.

A neutral stopping procedure

The approved checkpoints generally stopped all approaching traffic in the designated direction, with procedures for letting traffic pass when it backed up. Arbitrary selection is a concern. Letting vehicles through to manage congestion is not automatically a violation.

Warning signs and a safe setup

Signs, cones, visibility, and lighting help drivers recognize an official police operation and navigate it safely.

Brief contact

Officers should keep the initial screening limited. A checkpoint does not authorize an open-ended investigation of everyone who drives through it. If their contact generates reasonable suspicion of a DUI or other crime, the stop can legally be extended. If they observe bloodshot watery eyes, odor of alcohol, slurred speech, etc. that can be a reason to investigate further.

These are factors to examine, not guarantees that any single missing detail will get a case dismissed. A policy violation and a constitutional violation are not always the same thing.

Do Police Have to Announce the Checkpoint?

Advance publicity can support a checkpoint’s deterrent purpose. Both agencies in Rister and Orr publicized their operations. Neither decision established a separate rule requiring police to publish the exact location in advance.

Can Police Use a DUI Checkpoint to Look for Other Crimes?

The checkpoint program’s primary purpose matters.

In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the U.S. Supreme Court rejected checkpoints primarily intended to find illegal drugs. General crime control does not justify that kind of suspicionless stop.

That is different from checking for impaired drivers, including drivers impaired by drugs. Drugged driving remains a road-safety concern.

Police may also act on evidence of another offense they lawfully encounter during a valid checkpoint stop. Finding another violation does not, by itself, invalidate the checkpoint. The issue is whether sobriety screening was the actual primary purpose of the program.

Can You Turn Before Reaching a DUI Checkpoint?

Generally, you can take a lawful turn before entering the checkpoint. The plans discussed in Rister and Orr allowed drivers to turn away before reaching the stop. Rister’s guidelines required something beyond merely turning around to justify pursuit.

That does not mean every maneuver is protected. An illegal U-turn, an unsafe turn, or a failure to signal when required may provide a separate reason for a stop. Other circumstances can also affect whether police have reasonable suspicion.

The distinction is between choosing another lawful route and committing a violation while trying to avoid police. Once an officer lawfully directs you to stop, comply with that direction. You can challenge the stop in court.

What Can Police Do After Stopping You?

At the initial contact, an officer may request driving documents and observe whether you show signs of impairment. Further detention or testing raises separate legal questions.

An officer does not automatically need reasonable suspicion merely to direct traffic into an adjacent screening area. The location of the contact is not the deciding factor. Its purpose, duration, and scope matter.

If the officer extends your detention to investigate suspected impairment or another offense, there must be an adequate legal basis. Unrelated questions are not automatically unconstitutional, but police generally cannot prolong a completed stop for an unrelated investigation without additional justification. Rodriguez v. United States, 575 U.S. 348 (2015), explains that distinction in the traffic-stop context.

Are Roadside Sobriety Tests Voluntary?

The walk-and-turn and one-leg stand are different from the evidentiary blood or breath test used under Colorado’s express consent law.

In People v. Carlson, 677 P.2d 310, 317–18 (Colo. 1984), the Colorado Supreme Court held that roadside sobriety testing is a search requiring probable cause to arrest for DUI or DWAI, or voluntary consent. The Court of Appeals restated that rule in People v. Young, 2024 COA 1, paragraphs 11–17.

If the officer is asking for your consent to perform roadside maneuvers, you can decline.

When consent is disputed, the officer’s words and conduct matter. We review whether the driver voluntarily agreed or submitted to coercion. Young also makes clear that a missing refusal advisement does not automatically make consent involuntary.

What About the Handheld Breath Test?

A preliminary breath test used for roadside screening is different from an evidentiary breath test requested under express consent. The preliminary-test provision is C.R.S. § 42-4-1301(6)(i).

The officer must advise the driver that the preliminary test can be refused. That choice also applies to drivers under 21 under this preliminary-screening provision. The screening result can help an officer decide whether probable cause exists. Its use in court is restricted.

Colorado enacted SB26-132 in 2026. It requires officers, subject to exceptions, to offer a voluntary preliminary alcohol screening test after collisions involving death or suspected serious bodily injury. It does not make preliminary breath testing mandatory for everyone at a sobriety checkpoint.

You can, and probably should, refuse a PBT.

What Happens If You Refuse the Express Consent Test?

Under C.R.S. § 42-4-1301.1, probable cause to believe a driver committed a qualifying impaired-driving offense can trigger an evidentiary testing request.

Refusing that request can have serious consequences. A first refusal generally carries a one-year license revocation, although qualifying drivers may have an early reinstatement option. A refusal can also be introduced at trial. Fitzgerald v. People, 2017 CO 26, upheld the admission of refusal evidence against a Fourth Amendment challenge.

If the police have probable cause to charge you with a DUI, even though you didn’t take a test, you will still be charged. Refusal to take a test doesn’t mean they can’t/won’t charge you with a DUI. I see refusal cases all the time. Probably half of my DUI cases are refusal cases.

Do not assume that completing roadside maneuvers or a preliminary breath test satisfies a later express consent request. Refusing a PBT test and an evidentiary chemical test are different. If you refuse the official blood or breath test you can have additional license consequences.

Related:

• Should You Submit to DUI Field Sobriety Tests
• Can I Refuse a Breathalyzer in Colorado

Does a Checkpoint Let Police Search Your Car?

The checkpoint alone does not authorize a vehicle search. Police need a separate lawful basis, such as valid consent, a warrant, or an applicable exception to the warrant requirement.

An officer asking permission to search is asking for consent. You can decline consent. Whether police can search anyway depends on the other facts and the legal authority they claim.

How We Challenge a DUI Checkpoint Arrest

The review starts with the records. We want the operational plan, approval records, officer instructions, traffic logs, and available recordings. We also examine the placement of signs, the stopping procedure, and the reason for selecting the location.

Then we compare those records with your stop. How long were you detained? What did the officer observe? When did the investigation expand? What was the basis for the tests, arrest, or search?

If police violated your constitutional rights, a motion to suppress may keep resulting evidence out of the criminal case. Suppression is not automatic, and it does not always result in dismissal. The court must consider the violation, its connection to the evidence, and any applicable exceptions.

Even if the checkpoint was valid, there may still be problems with the officer’s investigation or the reliability of the testing. Those issues deserve their own review.

Do Not Miss the DMV Deadline

Your criminal case and your license case are separate proceedings.

For an express consent revocation, the hearing request generally must be made within seven days after you receive the notice of revocation or are legally deemed to have received a mailed notice. The deadline does not simply start after your license has already been revoked.

After a qualifying breath result or an alleged refusal, the officer commonly serves the notice directly. When blood results come back later, DMV may send the notice by mail. Read the deadline on the notice and act immediately. Do not wait for your first court date.

Talk With a Colorado Springs DUI Defense Attorney

If you were arrested at a sobriety checkpoint, we can review the stop, the testing, and your options in court and at DMV.

The McDowell Law Firm represents people charged with DUI and DWAI in Colorado Springs, El Paso County, Teller County, and surrounding Colorado courts.

Call 719-227-0022 for a free consultation.

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How to Seal Your Criminal Record in Colorado Springs

Your criminal case is over. You finished probation, paid what you owed, and moved on. Then you apply for a job or an apartment, and the old case shows up on a background check.

Sometimes there was no conviction at all. The prosecutor dismissed the charges, or a jury found you not guilty. The arrest still creates a problem.

Colorado law allows many criminal records to be sealed. Some qualify for automatic sealing. Others require a motion, notice to the prosecutor, and sometimes a hearing. The answer depends on what happened in your case, when it ended, and what else is on your record.

As a former El Paso County prosecutor and a Colorado Springs criminal defense attorney, I approach this by looking at the actual court records. The charge listed on a background check rarely tells the whole story.

Quick Summary: Who Is Eligible to Seal a Criminal Record in Colorado?

• Dismissed cases and acquittals: If all charges are dismissed or you are found not guilty of every count, your record may qualify for automatic sealing. Eligible completed diversion agreements and deferred judgments may also qualify, subject to statutory exceptions.
• Arrests without charges: You may qualify to seal arrest records if no charges were filed and the applicable legal requirements are met, such as the end of the investigation or expiration of the statute of limitations.
• Eligible criminal convictions: Many petty offenses, misdemeanors, and certain felony convictions may qualify for sealing after a waiting period. Depending on the offense, the general period for filing a motion is 1, 2, 3, or 5 years after the later of final disposition or release from supervision.
• Automatic sealing under Colorado’s Clean Slate process: Certain eligible convictions may be sealed automatically after 4 years for civil infractions, 7 years for eligible petty offenses and misdemeanors, or 10 years for eligible felonies. Eligibility and starting dates vary by record type.
• Offenses with restrictions: DUI/DWAI convictions, crimes of violence, certain sex offenses, child abuse offenses, and other excluded convictions generally cannot be sealed through the ordinary conviction-sealing process. Some otherwise excluded misdemeanors may qualify with prosecutor consent or a court’s specific findings.
• Other eligibility requirements: Outstanding restitution can prevent conviction sealing, and later convictions may affect eligibility. Multiple convictions may require a separate legal process. Check the applicable statute and your court records before filing.

Colorado’s sealing rules depend on the offense, case outcome, and applicable statutory exceptions. Review the current Colorado Judicial Branch sealing forms and eligibility guidance or consult a Colorado attorney to determine whether your record qualifies.

What Does Sealing a Criminal Record Actually Do?

Sealing restricts public access to the record. It does not destroy the record, overturn the conviction, or act as a pardon.

For ordinary employment and housing applications covered by Colorado’s sealing law, you generally do not have to disclose the sealed record. You may deny the sealed conviction as the statute allows. That does not permit you to deny other convictions that remain public.

There are exceptions. Courts, prosecutors, law enforcement, and certain parties or agencies legally required to conduct criminal history checks can still access and use sealed records. Professional licensing can involve separate disclosure requirements.

Sealing and expungement are also different legal processes. Most adult criminal cases involve sealing. Expungement applies in narrower circumstances, including qualifying mistaken-identity arrests under C.R.S. § 24-72-702. Juvenile records follow separate rules. [1]

Can You Seal a Dismissed Case or a Not-Guilty Verdict?

Generally, eligible cases should be sealed without a separate written request when the entire case is dismissed, you are acquitted of every count, you complete diversion after charges were filed, or you successfully complete a deferred judgment and all counts are dismissed.

Those rules come from C.R.S. § 24-72-705. They did not first begin in July 2025. The separate July 2025 provision directed the courts to identify and seal qualifying older deferred judgments, acquittals, and diversion cases resolved before August 2022. [1][2]

There are exceptions. A charge dismissed in exchange for a conviction in another case does not necessarily qualify for immediate sealing. A case containing both a completed deferred judgment and a conviction also requires closer review. Certain traffic-only cases, specified deferred judgments, and dismissals under particular competency statutes face additional restrictions.

The practical point is simple: a dismissal is a reason to check eligibility, not proof that every record has already been sealed.

A criminal charge being dismissed in Colorado does not automatically mean the record is sealed, so knowing how criminal charges can be dismissed in Colorado can help you understand what happens to your record next.

If automatic sealing should have occurred but did not, the law provides a way to request it without the usual filing charges. Confirm the order with the court and check which agencies received it.

What If You Were Arrested but Never Charged?

For arrests on or after January 1, 2022, CBI generally must seal an arrest record in its custody when no charges have been filed within one year. The statute allows another 60 days to complete that sealing.

That rule concerns CBI’s records. It does not, by itself, establish that every police report or record held elsewhere has been sealed. CBI must also unseal its record if it later receives notice that charges were filed.

Older arrests follow different schedules. A court petition may also be available when the statute of limitations has expired, the investigation has ended without charges, or you completed qualifying diversion without a filed case. C.R.S. § 24-72-704 governs these situations. [1]

How Long Do You Have to Wait to Seal a Conviction?

For the ordinary single-case process under C.R.S. § 24-72-706, these are the general waiting periods:

Eligible offense	General wait before filing
Civil infraction, petty offense, or drug petty offense	1 year
Class 2 or older class 3 misdemeanor; drug misdemeanor	2 years
Level 4 drug felony under C.R.S. § 18-18-403.5(2.5)	2 years
Class 1 misdemeanor; class 4, 5, or 6 felony; level 3 or other level 4 drug felony	3 years
Other offenses eligible under the statute	5 years

For these general categories, the clock starts at the later of final disposition of the proceedings or release from supervision. Specific offenses and other sealing statutes have different rules.

Suppose your eligible class 1 misdemeanor case ended in October 2022, but probation continued until October 2023. The ordinary three-year waiting period would run from the end of probation, making October 2026 the relevant date.

The table does not mean every offense in those classifications qualifies. A class 4 felony, for example, may still fall within an exclusion. [1]

Understanding how long a criminal charge stays on your record depends on the offense, the case’s final disposition, and when supervision ends, as these factors can affect the waiting period for record sealing.

What Else Affects Eligibility?

Outstanding restitution generally prevents conviction sealing unless the restitution order has been vacated. Unpaid fines, court costs, late fees, and other court fees are treated differently. The court cannot use those unpaid amounts to deny sealing under the general provisions.

Your later criminal history matters, too. The ordinary single-case process generally requires no intervening conviction during the applicable period. But a later conviction does not always end the inquiry.

C.R.S. § 24-72-709 provides a separate process for some people with multiple convictions who cannot qualify because of an intervening conviction. It has its own waiting periods, offense restrictions, and limits on the number of convictions. It is more than a way to combine several motions into one filing.

Older plea agreements also need review. Current law prohibits requiring a waiver of the right to file a sealing motion as a plea condition, but an older waiver may still affect eligibility. [1]

Will Colorado Seal Your Conviction Automatically?

Colorado’s Clean Slate process can seal eligible convictions without an individual motion. The general automatic waiting periods are:

Eligible record	General automatic waiting period
Civil infraction	4 years
Petty offense or misdemeanor, including eligible drug offenses	7 years
Eligible felony, including eligible drug felonies	10 years

The starting date is not identical for every category. Civil infractions and petty or misdemeanor cases generally use final disposition. Eligible non-drug felonies use the later of final disposition or release from supervision. The drug-conviction provision uses disposition of the case.

Automatic sealing also has narrower eligibility rules than an individual motion. For example, the non-drug automatic process excludes offenses covered by the Victim Rights Act, including misdemeanors that might qualify through a court motion.

Pending charges, intervening convictions, other statutory exclusions, and some older plea agreements can prevent automatic sealing. For eligible non-drug felonies, the district attorney can also raise a supported public-interest or public-safety objection.

You do not have to wait seven or ten years if you already qualify to file a motion. Filing may allow you to seal the record years earlier. [2]

How Do You Check Whether Your Record Is Sealed?

The Colorado Judicial Branch offers a Sealed Case Search. Read its limits before relying on the result.

The search is intended to confirm convictions automatically sealed under C.R.S. § 13-3-117. It does not confirm every sealing order. The Judicial Branch specifically excludes cases sealed through an individual motion and eligible non-conviction cases sealed automatically.

A missing result does not establish that your case remains public. You may need to contact the court and obtain the sealing order.

The tool is also restricted to the defendant. If you are checking your own record, follow the site’s identity requirements. Automatic conviction sealing orders are not routinely mailed to defendants, so checking can matter. [2][3]

Which Convictions Are Excluded?

The ordinary conviction-sealing statute excludes several categories, including DUI and DWAI convictions, specified traffic offenses and infractions, offenses involving unlawful sexual behavior, child abuse, and convictions whose underlying facts involve domestic violence.

It also excludes crimes of violence, specified aggravated or extraordinary-risk felony sentences, felony Victim Rights Act offenses, and most class 1, 2, and 3 felonies and level 1 drug felonies. Other exclusions apply. The complete statute matters more than a short online list. [1]

There is a potential exception for otherwise excluded misdemeanor and petty offenses under C.R.S. § 24-72-706(2)(b). Relief may be available if the district attorney consents or the judge finds, by clear and convincing evidence, that your need for sealing is significant and substantial, enough time has passed that you are no longer a public-safety threat, and public disclosure is no longer needed to protect or inform the public.

That exception can matter in a misdemeanor domestic violence case. It requires a case-specific review and does not override every separate statutory restriction, including restrictions governing traffic-only cases. It is not a reason to assume a DUI conviction can be sealed.

For a contested request, documentation of denied employment, housing problems, or licensing consequences can help explain why sealing matters.

What Happens When You File a Motion?

For an ordinary state conviction in El Paso County, you generally file in the existing criminal case. Colorado Springs Municipal Court convictions use a separate statute, C.R.S. § 24-72-708, with different requirements.

Start by confirming eligibility and obtaining a current criminal history. For the ordinary conviction process, the report must be current through at least 20 days before filing. The Judicial Branch’s instructions tell applicants to begin filing within 20 days of obtaining the report.

Use the current Seal My Case forms, including JDF 612 for a single county or district court conviction case. Identify the agencies holding your records and provide accurate addresses. Send the prosecutor a copy.

The statutory processing fee under § 24-72-706 is $65. The court must waive it if you qualify as indigent or establish that the records should already have been automatically sealed. Criminal-history and other applicable costs may be separate.

A hearing is not required in every case. The offense, the prosecutor’s position, and applicable victim rights affect the procedure. When the judge must weigh the competing interests, the question is whether the harm to your privacy or the danger of unwarranted adverse consequences outweighs the public interest in access.

If the request is granted, the court sends the order to the listed custodians. Keep a copy and follow up if records continue to appear. [1][4]

Does Sealing Remove Old Background-Check Reports?

An order does not make every previously collected copy disappear immediately.

Colorado law allows you to provide the sealing order to a private records custodian. A private custodian receiving the order must remove the covered records from its database and keep any retained records confidential as the statute requires.

If a background-check company continues reporting a sealed case, obtain the report, identify the source, and provide the order. The court’s order and compliance with that order are separate things.

Sealed conviction records can also be unsealed. Under the general rule, a new criminal conviction requires the court to unseal previously sealed conviction records. That is not a blanket rule for every sealed arrest or dismissal. Special provisions also create exceptions, including records sealed because a statutory change made the conduct lawful. [1]

Talk with a Colorado Springs Record-Sealing Attorney

Before you pay to file anything, find out whether your case is already sealed, whether it qualifies now, and which process applies.

We can review the charges, final disposition, supervision dates, restitution, and later criminal history. If a hearing is needed, we can explain the evidence the court will consider and prepare the request.

An old case may be eligible even if someone told you years ago that it could never be sealed. Colorado’s law has changed. The current rules and your actual record should determine the answer.

Contact McDowell Law Firm at 719-227-0022 to discuss sealing a criminal record in Colorado Springs or El Paso County.

Sources

[1] Colorado Revised Statutes 2026, Title 24, §§ 24-72-702 through 24-72-711. See especially § 24-72-703 for disclosure, access, exclusions, and unsealing; § 24-72-704 for uncharged arrests; § 24-72-705 for non-convictions; § 24-72-706 for single-case convictions; and §§ 24-72-708 and 24-72-709 for municipal and multiple-conviction cases.

[2] Colorado Revised Statutes 2026, Title 13, § 13-3-117.

[3] Colorado Judicial Branch, Sealed Case Search.

[4] Colorado Judicial Branch, JDF 611: Guide to Sealing Conviction Records, revised July 1, 2025.

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Arrested Off Base in Colorado Springs: What Service Members Need to Know

October 8, 2026 | Josh McDowell

You get stopped on Academy Boulevard. Or police show up at your off-post apartment after an argument. Now you have a criminal charge, a court date, and a question that may worry you more than either one: What happens to your military career?

An off-base arrest can create problems in civilian court and with your command. A plea that avoids jail can still affect your clearance, your ability to carry a firearm, or your future in the military.

As a former El Paso County prosecutor and a Colorado Springs criminal defense attorney, I look at more than the sentence attached to a plea offer. For a service member, the consequences outside the courtroom may be just as serious.

Who handles an off-base arrest?

For a Colorado state charge filed in El Paso County, the Fourth Judicial District Attorney’s Office prosecutes the case in county or district court. A municipal ordinance violation goes through the municipal court. Conduct that violates federal law, or happens on federal property, can also involve federal authorities. The charge and the applicable jurisdiction determine where the case goes, not simply which agency made the arrest.

Being off duty or off the installation does not put an active-duty service member outside the Uniform Code of Military Justice. For Guard and Reserve members, military jurisdiction depends on service status and other facts.

A state prosecution also does not automatically prevent a court-martial over the same conduct. State and federal governments are separate sovereigns for double-jeopardy purposes. Military rules and service policies can limit successive prosecutions, so the answer in a particular case requires more than a general statement about double jeopardy.[1]

Your command may also consider administrative action, such as a reprimand, restrictions on favorable personnel actions, or separation proceedings. Article 15 is different: it is nonjudicial punishment, a disciplinary process under the UCMJ.

Do not assume the command must wait until your civilian case ends. And do not assume a dismissal or acquittal automatically ends every military concern. The military may evaluate the underlying conduct under rules and standards that differ from those in civilian criminal court.

Will your command find out?

Plan on it. Local authorities may communicate with the installation, and criminal-history information can surface through military and security screening. You may also have an independent duty to report.

The reporting rule depends on your branch, rank, status, clearance, and applicable orders. A conviction-reporting deadline does not necessarily tell you when you must report an arrest.

Army conviction reporting

The April 15, 2026 version of AR 600-20 places this rule in paragraph 4-20. Army commissioned officers, warrant officers, and enlisted Soldiers in grades E-7 and above must report covered criminal convictions in writing. For those on active duty, the deadline is 15 days after the conviction is announced, even if sentencing or an appeal remains pending. Different timing rules apply to certain Reserve statuses.[2]

The regulation uses a broad definition of conviction. It includes guilty and no-contest pleas, withheld adjudications, deferred prosecutions, and certain pretrial intervention programs. Do not assume that a deferred judgment or a deal described as “no conviction” avoids this reporting requirement.

That definition serves this particular Army reporting rule. It does not decide whether the same disposition counts as a conviction under federal firearms law or another legal rule.

Clearance and other reporting duties

SEAD 3 reporting requirements reach arrests and other criminal involvement, not just convictions. If the rule applies to you, do not wait for a dismissal before reporting the event through the required channel.[3]

Soldiers below E-7 can still have reporting duties. So can members of every other branch. Get advice from an attorney and/or military defense counsel about what applies to you, and meet the deadline. Reporting required information does not mean you should volunteer a detailed account of the incident without legal advice.

DUI and DWAI: more than one driving problem

An off-post DUI can affect your ability to drive on the installation before the criminal case is resolved. But an arrest does not produce the same automatic result in every case.

Military traffic regulations provide for suspension based on specified grounds and review of reliable evidence. Test results, a refusal, police reports, and other evidence can matter. The regulations also provide procedures for notice and review. Your installation’s rules need to be checked.[4]

Keep three issues separate: the criminal charge, any Colorado DMV action, and your installation driving privileges. A favorable result in one does not necessarily resolve the others. Tell your lawyer about every notice you receive, including paperwork from the DMV or the installation.

The incident can also raise military discipline and clearance concerns. If your installation privileges are suspended, do not drive there just because you still have a Colorado license.

Domestic violence and firearms

A misdemeanor plea deserves close attention when your job requires a firearm.

Under 18 U.S.C. § 922(g)(9), a qualifying misdemeanor domestic violence conviction prohibits firearm and ammunition possession. There is no military-duty exception to that prohibition.[5]

But not every Colorado case marked “DV” meets the federal definition. The offense must have the required force or deadly-weapon element, involve a qualifying relationship, and satisfy the other federal requirements. Those relationships include certain dating relationships as well as spouses and other specified family or household relationships. Your lawyer must examine the actual offense and the applicable legal requirements.

A deferred judgment and other plea arrangements also need specific analysis from qualified legal counsel. It should never be sold as a blanket solution to firearms, reporting, and military consequences. These systems do not all define a conviction the same way. Nor should every federal firearms prohibition be described as automatically permanent; limited relief provisions and exceptions require their own review.

Protection orders can create immediate restrictions

Firearms restrictions can begin before any conviction. Colorado’s criminal protection-order statute requires firearm and ammunition restrictions when the court makes the specified findings about domestic violence involving actual, attempted, or threatened physical force.[6]

Read the order itself. Your command may issue a separate military protective order. You must follow both. Permission from a spouse or partner does not change a court order, and your commander cannot authorize you to violate it.

Tell your counsel immediately if an order affects your housing, contact with your children, or access to a duty weapon.

Drug allegations and security clearances

Colorado’s marijuana laws do not authorize military marijuana use. Article 112a of the UCMJ specifically addresses wrongful marijuana use and other controlled-substance offenses. State permission to use a substance does not, by itself, make that use permissible in the military.[7]

A drug allegation can create military consequences even when there is no Colorado prosecution. The evidence and applicable military rules determine what disciplinary or administrative action may follow.

Clearance decisions also reach beyond the name of the charge. Adjudicators consider criminal conduct, alcohol and drug involvement, candor, and other relevant circumstances. SEAD 4 calls for an assessment of the whole person. An arrest does not automatically mean you lose your clearance, and a dismissal does not automatically eliminate the concern.[8]

For a job that requires classified access, a clearance problem can affect your duties and career. A separation proceeding presents another set of issues. Get advice about the proposed basis for separation, the possible discharge characterization, and the benefits at stake.

Is Veterans Trauma Court an option?

The Fourth Judicial District’s Veterans Trauma Court accepts eligible veterans and active-duty service members. Military service alone does not establish eligibility. Screening considers the charge, treatment needs, military-related trauma or other qualifying conditions, and their connection to the alleged conduct.[9]

The January 2026 participant guide describes a program that requires a guilty plea or an admission to a probation or deferred-sentence violation. Participants face regular court appearances, treatment, testing, and close supervision. The program takes at least a year, and the guide reports an average of about 18 months.

The district attorney decides what plea offer to make after the screening process. Some agreements may include a deferred sentence or reduced jail exposure. Graduation does not automatically dismiss every participant’s case. The agreement and sentence control the result.

For the right person, this can be a useful option. It is also a substantial commitment. Discuss reporting, firearms, clearance, and military consequences before agreeing to the plea. If a PCS move or deployment is approaching, raise that during screening.

What to do after an off-base arrest

1. Get advice before discussing the facts. You have a right to remain silent during civilian police questioning. Article 31 also provides protections in qualifying military questioning about suspected misconduct. Ask to speak with defense counsel before giving a statement.

2. Find out what you must report. Confirm the rule, deadline, and recipient. Do not confuse an obligation to report an arrest or disposition with a request for a detailed narrative. Do not make a false statement or conceal information you are required to report.

3. Give your lawyer all the paperwork. That includes the summons, bond conditions, protection orders, DMV notices, installation restrictions, and documents from your command.

4. Follow the orders currently in effect. If a condition creates a problem with work or housing, ask your lawyer to seek a change. Do not treat an inconvenient condition as optional.

5. Raise military scheduling conflicts early. Training, deployments, and PCS orders do not cancel a criminal court date. Your lawyer can request scheduling relief, but the court must approve it.[10]

6. Review military consequences before accepting a plea. A deal that avoids jail may still create serious problems with your command, clearance, or firearms eligibility.

Your civilian and military lawyers should work together

Trial Defense Service and Area Defense Counsel handle military defense matters. They generally do not represent you in Colorado state court. Fort Carson’s TDS office provides advice and representation for matters including courts-martial, Article 15 proceedings, administrative separation, and suspect rights.[11]

Your civilian case needs its own defense. That may involve retained counsel or a public defender if you qualify. Your civilian and military defense counsel should coordinate, with your authorization, before a decision in one system creates a problem in the other.

The work starts with the criminal charge. Was the stop lawful? What does the video show? Can the prosecution prove the allegation? Are the test results reliable? Military consequences matter, but they do not replace a careful review of the evidence.

If a plea is worth considering, we also need to know what it means outside the courtroom. Changing the charge name or avoiding jail does not answer that question.

Talk to a lawyer before your first court date

If you were arrested in Colorado Springs or El Paso County, get advice on the civilian charge and your military obligations early. Do not wait until a plea offer is on the table to mention that you serve.

At McDowell Law Firm, we defend service members facing DUI, domestic violence, assault, drug, and other criminal charges. Call 719-227-0022 or visit mcdowellfirm.com to discuss your case.

This article provides general information. The rules and consequences depend on your case, branch, service status, and applicable orders.

Sources

1. Congressional Research Service, Constitution Annotated: Dual Sovereignty Doctrine.
2. Army Regulation 600-20, April 15, 2026, paragraph 4-20.
3. NIH, SEAD 3 reporting requirements.
4. 32 C.F.R. § 634.11, administrative procedures for installation driving suspensions and revocations.
5. ATF, misdemeanor crimes of domestic violence and federal firearms restrictions.
6. Colorado Revised Statutes, Title 18, § 18-1-1001, especially subsection (9).
7. 10 U.S.C. § 912a, UCMJ Article 112a.
8. SEAD 4, National Security Adjudicative Guidelines; DCSA, adjudication and the whole-person concept.
9. Fourth Judicial District Veterans Trauma Court participant guide, January 2026; Fourth Judicial District Attorney’s Office, Veterans Trauma Court.
10. Utah State Courts, SCRA scope and civil proceedings.
11. Fort Carson Trial Defense Service.

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Can You Avoid Jail on a Second DUI in Colorado?

Sometimes. But if you are convicted of a second DUI or DWAI in Colorado, the judge generally must impose at least 10 consecutive days of incarceration. Whether you can serve that sentence at home or through another program depends on the dates of your offenses, your circumstances, and the court’s decision.

There is another question to answer first: Does the prosecution have a case it can prove?

An arrest does not mean you have to plead guilty. And a prior DUI does not prove that you were impaired this time.

I served as a Deputy District Attorney in El Paso County from 2004 to 2007. I have practiced criminal defense since 2007. When someone comes to me after a second DUI arrest, we need to examine the evidence, the prior court record, and the available sentencing options before deciding what to do.

Quick Summary: Can You Avoid Jail on a Second DUI in Colorado

• Yes, but avoiding all jail time after a second DUI in Colorado is generally difficult.
• A second DUI, DUI per se, or DWAI conviction carries 10 consecutive days to 1 year in county jail under C.R.S. § 42-4-1307(5)(a).
• The court may use certain sentencing alternatives authorized under C.R.S. § 18-1.3-106, depending on the circumstances of the case.
• Colorado law also provides for $600–$1,500 in fines, 48–120 hours of useful public service, and at least 2 years of probation for a second offense.
• The specific sentence can depend on the prior conviction, the circumstances of the new DUI, and the sentencing options available to the court.
• Bottom line: A second DUI does not automatically mean you must serve the full one-year maximum, but Colorado law imposes a 10-day mandatory jail minimum for a standard second offense, subject to the statutory sentencing alternatives.

What Is the Mandatory Jail Sentence for a Second DUI?

C.R.S. § 42-4-1307(5) sets the jail range at 10 consecutive days to one year. The minimum cannot simply be suspended because you completed treatment or have a job. The statute does, however, allow sentencing alternatives in certain circumstances.

You do not receive good-time deductions during the mandatory 10 days. You receive credit for time already spent in custody for this offense before conviction. That credit should be checked against the actual custody record.

A second offense also carries a $600 to $1,500 fine, although the judge may suspend the fine; 48 to 120 hours of community service, with no authority to suspend the minimum; and a probation sentence of at least two years.

The court must also impose a separate, suspended one-year jail sentence that can be activated, in whole or in part, for probation violations.

Level II alcohol and drug education or treatment is required as a probation condition. Monitoring, interlock requirements, court costs, and other conditions can add to the burden. Driver’s license consequences must be evaluated separately from the criminal sentence.

Remember: Ten days’ incarceration is the minimum on a second drunk driving conviction in Colorado. It is not a prediction of what a judge will impose in your case.

Does a DWAI Count as a Prior Drunk Driving Conviction?

Yes, for these sentencing purposes. The second-offense statute covers DUI, DUI per se, and DWAI. A prior DWAI followed by a new DWAI can trigger the same 10-day minimum.

That matters during plea negotiations. Reducing a second DUI to DWAI does not eliminate the mandatory minimum or change the basic second-offense sentencing range under this statute.

The difference may matter for other reasons, but you should understand exactly what the proposed plea accomplishes.

Colorado does not have a time limit after which a qualifying prior conviction stops counting for this purpose. A conviction from 20 years ago can still count.

Out-of-state convictions can also count when the underlying conduct would qualify under Colorado law. Certain other convictions, including alcohol- or drug-related vehicular assault and vehicular homicide, also appear in the statute as priors.

What If Your First Case Was a Deferred Judgment?

This is a reason to get the actual court records.

Under C.R.S. § 42-4-1307(2)(b), a deferred judgment can count as a conviction for sentencing under that section. A successfully completed deferred judgment does not.

If your only earlier qualifying case ended in a successfully completed deferred judgment, you may be sentenced under the first-offense provisions. If the deferred judgment remains open at the time of sentencing, it ordinarily counts.

Alleged new criminal conduct can also threaten the deferred judgment in the earlier case, subject to the required proceedings.

First-offense sentencing does not guarantee that you will avoid jail. A judge can still impose jail within the applicable range. And a BAC of 0.20 or higher at the time of driving or within two hours afterward triggers a 10-day minimum even for a first DUI or DWAI, although sentencing alternatives remain available.

Note: There is a difference between mandatory minimums and the actual sentence imposed by the court. In theory, you could serve a lot more than 10 days in jail on a first conviction, even where there is no mandatory sentence.

On a second offense, the court must sentence to at least 10 days, but in practice they have the entire sentencing range available to them.

The completed-deferred exception is specific to this sentencing statute. Do not assume that it erases the case for DMV purposes or every other legal purpose.

The Five-Year Rule: When Is Home Detention Available?

The age of your prior offense affects how you may serve the mandatory sentence.

Under § 42-4-1307(5)(b), the stricter rule applies when the new violation occurred less than five years after the prior violation. The statute measures offense date to offense date. It does not measure from the date of conviction or the date probation ended.

For example, a prior offense in March 2021 and a new offense in April 2026 fall outside that restriction, even if the first case remained open until 2022.

If the offenses are at least five years apart, the court may use the alternatives authorized by C.R.S. § 18-1.3-106. Depending on eligibility and program availability, that can include home detention or work release.

Home detention is still a sentence with enforceable restrictions. The court and supervising program determine where you must remain, how you are monitored, and whether you may leave for approved purposes. Do not assume you will receive home detention or that the judge will impose only 10 days.

If the offenses are less than five years apart, ordinary home detention is generally unavailable during the mandatory minimum.

The statute allows certain county programs for continuing employment held at sentencing, continuing enrollment at an educational institution, or attending court-ordered Level II education or treatment.

Work release may let you continue working while returning to custody outside approved hours. The county must offer an eligible program, and the court must authorize it.

Your lawyer should check those requirements before sentencing. Keep in mind, not every county in Colorado currently has work release programs available.

Is There an Exception for Serious Health or Safety Risks?

Yes. C.R.S. § 42-4-1307(6.7) allows alternative sentencing, including home detention, when exceptional circumstances would make jail a substantial and imminent risk to the person’s health or safety.

The provision also addresses risks to jail operations or people in the jail when the sheriff advises the court of those risks. The judge must make findings on the record.

If your request relies on your own health or safety, you must expressly waive confidentiality for the medical or other health information supporting it.

This is a narrow exception. Ordinary work disruption or family hardship does not, by itself, meet that standard.

Can You Challenge the Stop, Arrest, or Chemical Test?

Yes. Before discussing how you might serve a sentence, we need to determine whether the evidence supports a conviction.

For an ordinary investigative traffic stop, police need reasonable suspicion supported by specific facts. An arrest requires probable cause. The officer’s report is one source of information. Video, dispatch recordings, witness accounts, and the timing of the investigation may show something different.

Was there an actual traffic violation? What did a caller report? Was the tip reliable? Did the officer develop a lawful basis to extend the stop? Were medical conditions or physical limitations mistaken for impairment?

Those questions require facts. Touching a lane line once does not automatically make a stop illegal. An anonymous report does not automatically make it valid or invalid. The circumstances matter.

If police violated your rights, a suppression motion may keep evidence out of court. Whether that ends the prosecution depends on the ruling, any applicable exceptions, and the evidence that remains.

A Breath or Blood Result Deserves Scrutiny

A BAC number does not answer every question about the test that produced it.

For breath testing, the review should include the instrument’s certification and records, the operator’s qualifications, the test sequence, and compliance with the required deprivation period.

Colorado’s testing regulations require a 20-minute deprivation period with specified observation procedures before an evidential breath test.

For blood testing, the questions include who collected the sample, how it was preserved and stored, its chain of custody, and the laboratory’s procedures and underlying records.

However, a procedural error does not automatically exclude the result. C.R.S. § 42-4-1301(6)(f) distinguishes errors that make a test unreliable enough to be inadmissible from errors that affect how much weight the fact finder should give it.

Timing matters, too. DUI per se requires proof of a BAC of at least 0.08 at the time of driving or within two hours afterward. The express consent statute also requires cooperation so that a sample can be obtained within two hours.

A late sample is not an automatic dismissal of a criminal DUI case. Its admissibility and what it can establish require separate analysis. The prosecution may also pursue impairment-based DUI or DWAI using other evidence.

Understand the difference between DUI and DWAI.

Blood draws raise constitutional questions as well. In Missouri v. McNeely, the Supreme Court rejected the claim that alcohol’s natural dissipation always justifies a warrantless blood draw. In Birchfield v. North Dakota, the Court distinguished breath testing from blood testing under the search-incident-to-arrest exception.

The practical question is whether police had a warrant, valid consent, or another recognized exception to the warrant requirement. The absence of a warrant alone does not resolve every case.

Refusing a test does not make the prosecution disappear. In Fitzgerald v. People, 2017 CO 26, the Colorado Supreme Court upheld the use of chemical-test refusal evidence against a Fourth Amendment challenge. Refusal can also create separate driver’s license consequences.

Will the Jury Hear About Your Prior DUI?

In an ordinary misdemeanor second-DUI case, the prior conviction is a sentencing issue. Under § 42-4-1307(9)(b)(II), the prosecutor is not required to plead or prove it at trial to obtain the enhanced misdemeanor sentence.

That does not create an absolute guarantee that a prior incident can never become admissible for another legally permitted purpose. Evidentiary issues need to be addressed before trial. Generally, the answer is no; it won’t be admissible at trial.

The prosecution still must prove the current charge beyond a reasonable doubt. Your prior record does not relieve it of that burden.

An acquittal on the DUI-related charges avoids the mandatory sentence. A negotiated resolution to a non-DUI offense may also avoid that particular minimum, although the new charge can carry its own penalties.

Neither outcome is something a lawyer can promise. A DWAI conviction, meanwhile, still triggers the second-offense minimum when there is a qualifying prior.

What Can You Do Before Sentencing?

If a conviction is likely, preparation can support a request for an available sentencing alternative or a shorter sentence within the lawful range.

Follow your bond conditions. Get the required evaluation and discuss appropriate treatment with your lawyer. Document compliance with sobriety monitoring.

Gather employment records and information about caregiving duties. Before starting community service, confirm that the court will accept the program and hours.

These steps do not cancel mandatory penalties. They give the judge specific information about your circumstances and what you are doing to prevent another offense.

Talk With a Colorado Springs DUI Lawyer

A second DUI charge deserves a careful review before you decide how to resolve it. We need the prior case disposition, the dates of both offenses, and the evidence from the new investigation. Then we can discuss the defenses and sentencing options that actually apply to you.

The McDowell Law Firm represents people facing DUI charges in Colorado Springs, El Paso County, and Teller County. Call 719-227-0022 for a free consultation by phone, Zoom, or in person.

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Can You Get a DUI in a Self-Driving Car in Colorado? Know the Law

The year is 2031, you’ve had a few too many, and you’re being responsible. You’ll just hop in your flying Tesla and tell it to take you home. Is that considered drunk driving?

How about you call a robotaxi instead? It picks you up, you get in the backseat, and sleep the whole way home. Is that a legal move?

In 2026, we’re not that far off from these scenarios. Tesla’s FSD (supervised) is incredibly sophisticated. Waymo taxis are actively operating in 14 US cities. Tesla robotaxis are rolling out this month.

If your car can steer, brake, and take you home, can you still get a DUI?

These questions would’ve been laughable a decade ago, but at the rate technology is improving, I expect to see issues about actual physical control of a vehicle, man vs. machine, becoming more relevant.

A recent Florida arrest shows why this issue isn’t going away.

“My car was driving itself”

In September 2026, Leesburg police arrested a Cybertruck driver who reportedly insisted he wasn’t driving because his Tesla could drive itself.

According to Leesburg-News, citing the arrest report, a witness said the truck crossed into his lane and forced him off the road. Officers later encountered the driver outside his residence and reported signs of impairment.

He was charged with DUI and refusal to submit to testing.

There have been similar reports elsewhere. In March 2026, the San Francisco Chronicle reported that Vacaville police stopped a moving Tesla whose driver appeared to be asleep. Police alleged impairment from alcohol and marijuana and arrested him on suspicion of DUI.

These are reported arrests, not appellate decisions establishing a new rule. But they illustrate the problem with treating a driver-assistance feature as permission to drink and get behind the wheel.

The word “supervised” matters

Tesla describes Full Self-Driving (Supervised) as driver assistance. It requires active supervision and does not make the vehicle autonomous (yet), but it’s getting pretty darn close. You can verbally give the address to Grok, and you are on the way. It’ll even park for you.

You might ask, “But Josh, what if the car handled every turn and I never touched the wheel?”

That doesn’t resolve the legal question. In Colorado, the prosecution does not necessarily have to prove that you personally steered a moving vehicle. It can establish driving through actual physical control.

The word “control” matters too-You don’t have to be moving to get a Colorado DUI

This surprises people. A parked car can still be the basis of a DUI or DWAI case.

In People v. Swain, 959 P.2d 426 (Colo. 1998), deputies found a pickup parked just off the highway. Swain was lying across the front seat, apparently asleep or passed out. The keys were in the ignition, the radio was playing, and the engine was off.

The Colorado Supreme Court held that actual physical control was sufficient to establish driving under the DUI and DWAI statute. It reinstated his convictions for DWAI and driving without a license.

So “the engine was off” and “I wasn’t moving” do not automatically end the case.

Courts look at the circumstances, including where you were sitting, where the vehicle was located, whether it could be operated, and your access to the controls. The analysis concerns your relationship to the vehicle, not simply whether an officer saw it move.

There are limits to actual physical control

The prosecution still has to prove its case. Being intoxicated somewhere inside a vehicle does not automatically make you its driver.

In People v. VanMatre, 190 P.3d 770 (Colo. App. 2008), the court addressed a vehicle that allegedly had run out of gas and needed a jump-start. The decision explains why operability matters and why the jury must consider the whole situation.

People v. Valdez, 2014 COA 125, further addressed that distinction. Evidence that a vehicle cannot operate, cannot readily be made operable, and is neither moving nor at risk of coasting can negate the driving element.

These are some classic Colorado DUI cases involving conventional vehicles. Applying them to automation requires analysis, not an assumption that every occupant is a driver. The big issue here is actual physical control of the vehicle.

Colorado already allows truly automated driving

Colorado addressed automated vehicles in 2017. C.R.S. § 42-4-242 permits an automated driving system to perform driving functions if it can comply with the state and federal laws applicable to those functions.

The statute also provides that certain laws directed at human drivers do not apply to the automated system itself. That is not a blanket exemption for an impaired human occupant.

CDOT explains that Colorado’s automated-driving category covers SAE Levels 4 and 5. These systems differ from assistance features that require an engaged human driver. Level 4 automation can operate without human supervision within its intended operating conditions. It does not mean the vehicle can drive everywhere in every situation.

This is already relevant in Colorado. Reuters reported on September 1, 2026 that Waymo was beginning to welcome public riders in Denver, with access expanding gradually.

There are still a few kinks that need to be worked out with self-driving. How about a street that is closed off for a specific time period? Like a farmers’ market?

https://www.msn.com/en-us/autos/self-driving-cars/waymo-drives-through-farmers-market-in-denver/ar-AA2cQF21?ocid=BingNewsSerp

What does that mean for DUI cases?

I looked for any published Colorado appellate decision squarely deciding DUI liability for an occupant while a fully autonomous system does the driving, and couldn’t find any applicable case law. Let’s consider the current DUI law to see how that might apply.

Start with an impaired person supervising a Tesla.

This presents a strong prosecution argument on the driving element. The person occupies the driver’s position, has access to the controls, and is expected to intervene. Activating driver assistance does not erase those facts.

That still doesn’t make every arrest a conviction. The prosecution must prove the charged offense, including the applicable impairment or alcohol-concentration requirements. But “I turned on FSD” is not a sound plan for avoiding DUI liability.

Now consider a privately owned autonomous car with a steering wheel and pedals.

Suppose the vehicle operates in a genuinely driverless mode, but its owner sits behind the wheel and can override the system. These issues are going to be very common in the not-so-distant future.

A prosecutor could argue that the owner retained actual physical control. A defense attorney could argue that the authorized system performed the driving, and the owner had no supervisory role.

The details would matter. Was the autonomous mode actually engaged? Was the car within the conditions that allowed that mode? Did the person have to take over if something went wrong? Could the person access or activate the driving controls? The Swain factors of actual physical control will be contested by both sides.

I wager that the Colorado legislature will enact statutory language that deals with these issues in the near future. I would further wager that the legislature will err on the side of finding the operator is in actual physical control unless very specific criteria are met and may even expand on the Swain factors of actual physical control.

How about a passenger in a driverless taxi?

When you’ve had a few too many, isn’t calling a taxi the right thing to do? Does a person need to consider what type of taxi they call? An impaired person who orders a ride, sits in the passenger area/backseat, and does not operate the vehicle, presents a much stronger argument that there was no driving at all.

In my view, entering a destination and requesting transportation should not, by themselves, make that rider a driver. The absence of a human chauffeur does not automatically transfer control to the passenger. The prosecution has to establish driving or actual physical control.

A future Colorado decision, or legislation, could clarify the details, but current uncertainty is not a reason to equate riding with driving. Especially if the passenger does not or cannot exercise physical control over the vehicle.

The UK offers a useful distinction

The United Kingdom’s Automated Vehicles Act 2024 explanatory notes distinguish between vehicles that require a “user-in-charge” and those that can carry passengers without one.

The law creates protections for certain offenses arising from how an authorized automated vehicle drives. But a user-in-charge still must be qualified and fit to drive, and may have to take control.

That point matters. This is not general permission to get drunk behind the wheel. The UK Highway Code also expressly tells drivers using qualifying self-driving functions that they must remain fit to drive and ready to take over when prompted.

Colorado can learn from that distinction without copying every part of the UK approach.

What Colorado should clarify

I do believe that Colorado lawmakers will address the occupant’s role directly as self-driving vehicles gain popularity.

If a system requires human supervision or a takeover-ready human, the law should clearly state that automation does not excuse impairment.

One potential legislative clarification could be additional language on robotaxis. For example, if a vehicle lawfully completes the trip without a human driver or supervisor, the law should make clear that merely riding, choosing a destination, or requesting a stop does not establish actual physical control.

For vehicles with both manual and autonomous modes, lawmakers could also define when the occupant becomes responsible for driving. That rule should account for the mode actually in use, the occupant’s responsibilities, and access to the controls.

The mere presence of a steering wheel should not be a substitute for that analysis. Clear lines on what determines actual physical control and rider vs. passenger status may be helpful in future statutory language.

I think there is a strong public policy argument to be made that the State should encourage people who have been drinking to arrange safe transportation. Clear rules help them make that choice.

For now, my advice is straightforward: if the vehicle requires you to supervise or take over, don’t use it as your ride home after drinking.

The current status of FSD (Level 2) in Teslas still has the words “supervised” after the FSD. The system is truly incredible, and probably better and safer than the majority of drivers on the road. However, many jurors will likely find that you were in actual physical control of the vehicle while you sat behind the wheel.

Arrange a ride in which you are genuinely a passenger, or get a designated driver.

And if you face a DUI or other traffic allegations involving automated driving, the investigation needs to go beyond what the vehicle is called.

Who controlled it, what the system required, and what the records show could determine the outcome. If you find yourself charged with a DUI in Colorado Springs in a Tesla with FSD, or another self-driving car, give me a call to discuss your defenses.

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Police Surveillance, Predictive Policing and Your Constitutional Rights

You drive through a neighborhood on your way to an appointment. A camera records your license plate. A few days later, an officer shows up at your house and says you committed a theft.

You know you did nothing wrong. The officer is convinced otherwise.

How does that happen? And what can you do when the police put more confidence in a camera record than the evidence explaining why you were there?

I have handled criminal cases in Colorado Springs for more than 20 years, first as a Deputy District Attorney and since 2007 as a criminal defense attorney. Technology can help investigators find evidence. But the questions an attorney needs to ask remain familiar: What does the evidence actually show? How did police obtain it? What did they overlook?

License plate readers, facial recognition and predictive policing raise different legal issues. They also create a common concern. Are increased surveillance techniques and computer algorithms infringing on our constitutional rights and protections?

A Colorado Woman Accused of a Theft She Did Not Commit

In September 2025, a Columbine Valley police officer accused Denver resident Chrisanna Elser of stealing a package in nearby Bow Mar. According to The Colorado Sun’s reporting, the officer relied on Flock camera records showing her Rivian in town and his claimed identification of her in doorbell footage.

Elser offered to show him video from her truck. He issued a summons anyway.

She then assembled location records, vehicle video, and surveillance images from her tailor, where she had an appointment. On October 15, the police chief told her the summons had been voided. Great work by Chrisanna, but an ounce of police work would have saved an innocent woman from effectively having to prove her innocence for the police to realize their error.

This distinction matters: the camera recorded her vehicle in the area. A blond woman was on a ring camera (that frankly didn’t look much like her). That did not establish that she stole a package. The problem was what the officer concluded from the evidence and his response when she disputed it.

Denverite later reported that the officer would face discipline. The town defended his initial belief that a summons was justified, while Elser said she had spent days trying to get police to review her evidence.

An accusation like this creates problems even when it eventually goes away. You may have a court date, concerns about your job and the expense of defending yourself. Elser had records that helped establish where she was. Another person might have far less available.

When Facial Recognition Identifies the Wrong Person

Robert Williams experienced a more serious consequence. In 2020, Detroit police arrested him at his home in front of his family after a false facial recognition match connected him to a shoplifting investigation. He was not the person in the surveillance image.

His lawsuit resulted in a 2024 settlement requiring changes to Detroit’s use of facial recognition. Those changes included restrictions on arrests and photo lineups based on facial recognition leads.

Police must have independent, reliable evidence linking a person to the crime before placing that person in a lineup based on such a lead.

That requirement addresses a basic investigative problem. If software identifies the wrong person, putting that person into a photo lineup does not necessarily correct the mistake. It can create another identification built on the same flawed starting point.

An attorney reviewing the case needs to examine how police selected the suspect in the first place, as well as what happened afterward.

I’ve personally handled shoplifting cases where police charged the wrong person based on mistaken identity. The city attorney sent me video of a gentleman stealing from Sears. This was 15 years ago, and the camera quality wasn’t great, but I could tell immediately that the person on camera wasn’t my client.

It’s a long story as to how/why they fingered my client as the perpetrator, but ultimately it boiled down to lazy police work. It took the city attorney being willing to watch the video with my client sitting in front of him. I told the prosecutor, “It’ll take 5 minutes. That’s better than doing it in front of a jury…” He started writing up the dismissal 10 seconds into the video.

Predictive Policing in Pasco County

The Pasco County, Florida, litigation involved a different use of technology: identifying people considered likely to commit future crimes and repeatedly visiting them and their families.

According to the Institute for Justice, which represented the residents, deputies used these visits to pursue violations involving matters such as tall grass and missing house numbers. Children were among those placed on the agency’s list.

The December 2024 settlement provided $105,000 for four plaintiffs and a commitment not to resume the discontinued program or a substantially similar process of designation and repeated, suspicionless visits.

The legal result requires some care. The agreement acknowledged visits that exceeded officers’ implied permission to approach a home and interfered with family association and liberty interests. It also expressly denied liability and noted that the court had not found the written policies unconstitutional on their face.

This was a settlement addressing a particular program and its application to these families. It was not a nationwide ruling that every form of predictive policing violates the Constitution.

The concern is still substantial. Predicting that someone might commit a crime does not give police unlimited authority to intrude on that person’s home or family.

When Officers Misuse Surveillance Records

Sometimes the concern is deliberate misuse of a system that recorded the information correctly.

In March 2026, The Marshall Project reported that former Milwaukee officer Josue Ayala had pleaded not guilty to attempted misconduct in public office. Prosecutors alleged that he used a license plate reader system more than 170 times over roughly two months to look up a woman he was dating and her former boyfriend.

This reported conduct illustrates why access controls matter. A database created for criminal investigations can also reveal information about someone’s personal life.

In the same report, Flock said its audit logs cannot be altered and can help establish when officers misuse the system. That is a useful safeguard. Departments still need to review those records and act on unauthorized searches.

The public should be able to ask who has access, what justifies a search and how violations are detected.

What Does the Fourth Amendment Protect?

The Fourth Amendment protects against unreasonable searches and seizures. Applying that protection to location databases requires courts to examine how the government obtained the information and what the technology reveals.

In Carpenter v. United States, 585 U.S. 296 (2018), the Supreme Court held that obtaining the historical cell-site location records at issue was a search. The government generally needed a warrant supported by probable cause.

The Court recognized that a detailed record of your movements can reveal private information about your life. Keeping that information with a wireless carrier did not eliminate the constitutional protection. Are we all carrying around little snitches in our pockets that keep track of more information than we think about? Are police going to try and collect that information? You better believe it.

Our phones are not only internally tracking our movement, they are also sending information out to that is being collected. Quick defense attorney note: If you’re out committing crimes, leave your phone at home.

Carpenter was also a limited decision. It did not resolve every question involving cameras, public movements or digital records.

In Chatrie v. United States, decided June 29, 2026, the Court addressed Google location data obtained through a geofence warrant. That process began with an area and time near a robbery, then narrowed the users whose information police sought.

The Court held that obtaining Chatrie’s location data was a Fourth Amendment search. It rejected the argument that his use of Google’s Location History eliminated his reasonable expectation of privacy.

But finding a search is only part of the analysis. The Court returned the case for consideration of whether the warrant met probable cause and particularity requirements.

It also left the good-faith exception unresolved.

The decision did not declare every geofence warrant unconstitutional or automatically exclude the evidence against Chatrie.

Are License Plate Readers Unconstitutional?

There is no single answer that covers every camera network and every use of its records.

In Schmidt v. City of Norfolk, a federal district court ruled for the city on January 27, 2026. The opinion stated that the plaintiffs’ vehicles had been photographed approximately 475 and 325 times during four and a half months in early 2025.

The court concluded that the record did not establish that Norfolk’s system captured the whole, or nearly the whole, of a person’s movements. The litigation concerned the collection and retention of the plaintiffs’ vehicle data; police had not queried their vehicles in the system.

The plaintiffs appealed. Their briefs and the district court’s decision are available on the case’s document page.

This Virginia district court decision does not bind Colorado courts. It also does not establish that every search of a license plate database is lawful. The system, the search and the governing law all matter.

Can a Risk Score Affect Sentencing?

In State v. Loomis, 2016 WI 68, the Wisconsin Supreme Court considered a challenge to COMPAS, a proprietary risk assessment used during sentencing.

Loomis argued, in part, that the confidential scoring method prevented him from evaluating its accuracy. The court allowed consideration of the assessment subject to restrictions and written cautions.

Those restrictions were more than a suggestion to be careful. The court said the risk scores could not determine whether the defendant was incarcerated or the severity of the sentence. Other factors had to independently support the sentence.

Loomis was a Wisconsin sentencing case involving someone already convicted. Admittedly, this is very different from authorizing police to arrest people for predicted future crimes, but it feels like a pinky toe in the shallow end of predictive crimestopping.

Even with that distinction, the practical concern remains: how effectively can you challenge a conclusion when you cannot examine how it was calculated?

What the UK and China Show About Government Surveillance

In the United Kingdom, police use CCTV footage, automatic license plate readers and facial recognition to investigate crimes and identify suspects. The UK Home Office explains that officers can compare faces recorded on CCTV against police photographs.

Live facial recognition goes further, scanning people passing a camera and comparing their faces against a watchlist. You do not have to be suspected of a crime for your face to be scanned. The Home Office says biometric data is immediately deleted when there is no match, and an alert alone does not justify an arrest. Those safeguards matter. So does the question of whether they are followed.

China shows how surveillance can reach into ordinary daily behavior. In Xinjiang, Human Rights Watch documented a police system that combined information from surveillance cameras and other sources to identify people for investigation.

Authorities treated lawful conduct, including avoiding the front door or not socializing with neighbors, as suspicious. The concern was what the government decided that information meant and what happened to the people it flagged.

China’s “social credit” system raises related concerns, but it requires an accurate description. As MERICS explains, China does not operate the single nationwide score for every citizen often described in popular accounts. Its system includes different regulatory records, blacklists and local initiatives. The consequences can still be significant. China’s own Supreme People’s Court reports that court-imposed restrictions on judgment can prevent purchases of airline and high-speed rail tickets.

Are we headed towards this big-brother-esque system where constant surveillance yields judgments by an AI system that says whether a person is likely to commit crimes? Or is a higher risk to board a plane? Traditional credit scores tell lenders whether an individual is a good credit risk to repay their loan; is a social credit system reliable to tell us whether an individual is more or less likely to commit a crime?

The UK and China have very different legal systems and protections. But both examples give us concrete questions to ask about surveillance here: What information is collected? Who can search it? What consequences follow? And if the government gets it wrong, how do you challenge it?

We aren’t just talking about foreign governments; we also have our own history of expanding surveillance in the name of national security. After September 11, Congress passed the USA PATRIOT Act, broadening the government’s ability to obtain personal records, including information about U.S. citizens.

The government used Section 215 as authority to collect telephone records in bulk, including records of Americans who were not suspected of terrorism. These were records about calls, rather than recordings of the conversations, but information about whom you call and when can still reveal private relationships.

The USA FREEDOM Act ended that bulk collection program in 2015. The Patriot Act also expanded the FBI’s use of national security letters to obtain certain telephone, financial and credit records without prior court approval. Those requests could reach people who were not themselves the subjects of an investigation, provided their records met the applicable national security relevance standard.

A Justice Department inspector general review documented serious misuse of that authority. That history matters when we discuss surveillance today. A national security purpose does not guarantee that only dangerous people will be monitored, that information will be collected lawfully, or that oversight will catch mistakes before someone is harmed.

What Should Happen When Technology Points at You?

Technology is improving so quickly that the courts will be required to keep up with new (and often devious) methods of data collection. Cameras with facial recognition and license plate readers are becoming increasingly common. There are 15 Flock cameras in a shopping center I frequent. I know because I looked it up for this post.
https://deflock.org/

That’s staggering to think about the amount of data they are collecting on visitors to the area. Who is putting these cameras up? Law enforcement, municipalities, and even HOAs are installing these cameras to track and record information about residents.

You might ask, “But Josh, why are you worried about cameras if your clients aren’t doing anything wrong?” If you’re asking that, go back and read this post again. Innocent people have been wrongly accused because officers misidentified them or drew the wrong conclusions from surveillance records. Your car being near a crime does not mean you committed it. Your face resembling a suspect does not make you that person.

There is also the issue of privacy. Where you worship, which doctor you visit and who you spend time with can reveal personal information you have every reason to keep private. These systems can also be abused by officers tracking someone for personal reasons.

And when police get it wrong, you may face an arrest, legal bills and damage to your reputation before the mistake is corrected. You should not have to wait until you are falsely accused to care about how the government collects and uses information about you.

As a defense attorney, I would want to examine the original images and records, their timestamps, how investigators identified the suspect, and any evidence that contradicts their theory. I would also want to determine whether police obtained the information lawfully.

If you believe location records or video could help your defense, preserve what you have promptly. Keep the original files. An attorney can help identify other records to request and address retention deadlines. Elser’s case shows why evidence that explains your movements can matter.

For a broader discussion of searches and police authority, see my article on Colorado search, arrest and warrant laws.

I also favor stronger limits on access to surveillance databases, documented reasons for searches, meaningful audits, and procedures that allow defendants to examine technology used against them.

Police should verify an identification and investigate evidence accordingly. A prosecutor should ask whether the evidence supports the charge. A defense attorney should challenge both the reliability of the evidence and the way it was obtained. Did law enforcement use information from a camera to develop probable cause? Or did an algorithm review movements and patterns to invent it?

AI video creation is getting so good that sometimes I have to really pay attention and consider what I’m seeing on a screen to determine if it’s real. Social media is a cesspool of AI slop that is getting more realistic/believable every day. Five years from now? I doubt even a trained eye will be able to tell the difference.

Today I have constitutional concerns about the government keeping track of its citizens’ movements, the potential to unlawfully search and seize information from our cars and phones, and abuse of collected information. Tomorrow it might become predictive policing.

Are we on the slippery slope of Minority Report, where instead of psychic “precogs”, we have AI and algorithms determining who has committed, or even will commit, a crime? Ask Chrisanna Elser, Robert Williams, or the people of Pasco about how this future looks. It’s here, and it’s happening.

The post Police Surveillance, Predictive Policing and Your Constitutional Rights first appeared on McDowell Law Firm.

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