By Cliff Hypsher
Colorado DUI Law underwent a major revision in 2010 to include mandatory jail for most repeat offenses. (If your DUI occurred before July 2010 the law applicable at the time will govern.) Any experienced DUI attorney will tell you that the penalties ultimately imposed for an a DUI are influenced by several factors. Some of these factors are: the particular fact pattern in your case (e.g., was there an accident) whether there are prior DUI arrests, your alcohol level, the county in which the incident occurred and how you defend or don't defend yourself against the charges. Jail is mandatory for DUI in Colorado if you have prior alcohol related offenses. Jail is also mandatory above a certain BAC level.Arapahoe County Courts - Centennial Colorado
Whether actual "time in jail" is imposed for any DUI or DWAI offense is normally determined first by how good your DUI attorney is, and second by the judge. If jail is required by statute, the only way to avoid jail is for your DUI lawyer to mount a successful defense. For example actual time in jail is mandatory for BAC levels above 0.20 even for a first offense. If you are given a jail sentence time must usually be served in the county where the DUI occurred, however, I've had success getting approval for my clients to serve jail time in other counties and even other states.
Regardless of whether jail is imposed, fines, court costs, "alcohol education" and "community service" must be imposed by law in all but a few cases. Required alcohol education and treatment for a Colorado DUI or DWAI ranges from 12 hours to 110 hours. Community-service can be given in the range of twenty-four to one hundred twenty hours.
"Driving Under the Influence" (DUI) and "Driving While Ability Impaired" (DWAI) involve different degrees of intoxication. The difference between the two charges is that an "impaired" driver is "less able than normal to drive safely." A driver who is "under the influence" is "unable to drive safely." Based upon the differences in degree, the Colorado General Assembly has provided for lower penalties for a first time DWAI compared to a first time DUI as explained below.
"DUI per se" means that the driver was at or over a 0.08 blood alcohol level. To prove DUI per se the state needs to present credible evidence that the accused person had a blood (or breath) alcohol level over 0.08 within two hours of the time of driving.
Statutory penalties for a first DWAI include as much as six months in jail. The maximum penalty for a second or subsequent DWAI conviction and any DUI conviction is a year in jail. Courts usually combine a jail sentence with probation afterwards. If a person put on probation for a drunk driving offense violates that probation, even after a jail sentence, an additional year in jail can be added to the original sentence.
Jail time for a first offense is at the discretion of the judge (unless you had a BAC over 0.2) and can range up to one year in the case of a first DUI. First time offenders rarely get jail in Colorado, however, as of July 1, 2010 the law calls for a minimum of two days in jail for a first DWAI and five days jail for a first DUI. See Penalties After July 1, 2010 The minimums may be excused or electronic home monitoring allowed if the first time offender completes probation.
Jail is mandatory upon receipt of a second drunk driving conviction for incidents that happen after July 1, 2010. People often believe that because their last prior offense was twenty years ago they can avoid a jail sentence. The truth is that there is no limit on how far back the court may look in considering prior offenses for application of the mandatory sentencing rules. Arapahoe County Court Main Entrance Even though only ten days in jail are mandatory, some counties require longer sentences. For example in Denver you can expect up to 45 days on a second offense - either as jail time or a mixture of jail and in home detention.
For DUI arrests that occurred prior to July 1, 2010, a five day minimum jail term applies to those drivers who are convictioned of DWAI and who have a previous conviction for DWAI. A driving under the influence conviction with a previous DWAI is punishable by a minimum jail sentence of six days and so forth. To view the minimum pre-July 1, 2010 sentences set forth by Colorado Law please review the Criminal Penalty Table I. Go to Criminal Penalty Table (For offenses before July 1, 2010)
If the prior offense occurred within five years of the current offense the court cannot allow an in-home detention or electronic (ankle) monitor sentence, i.e., any sentence must be served in jail. Work release is a possibility. A new feature of the 2010 DUI law is that repeat offenders must serve the entire minimum mandatory jail sentence. There is no time off the sentence for good time, time served or trustee status - ten days jail now means you'll do the whole 10 days for second time offenders.
After July 1, 2010, persons charged with a third or subsequent DUI offense in Colorado are liable for at least sixty consecutive days in jail. In home detention is not allow for this class of offender. Because good time is also not allowed during the mandatory sixty day period, the whole sentence must be served. Credit for pre-sentence confinement is available however. Offenders falling under this provision of the law may or may not be allowed work release.
Be aware that the minimum mandatory jail sentences reflect minimums only! While minimum sentences are common, most judges in the Colorado Front Range impose sentences of at least two weeks to one month on a second offense. A third offense will net you anywhere from the mandatory minimum sixty days up to a year in jail depending on the facts of your case, your criminal history and the judge's policy - unless you fight the case and win. On a third offense expect to serve at least a month in jail in most jurisdictions if your offense was prior to July 1, 2010. Many judges are now leaning toward longer sentences of incarceration of nine months to one year for third time offenders.
Depending on the facts of your case and the skill of your attorney, "jail" in the DUI context can mean straight time behind bars or home detention, weekend jail or a work program. Your chances of serving actual time in jail increase with the number of prior offenses and with the severity of any traffic\criminal offenses associated with your DUI, e.g., reckless driving, an accident or resisting arrest. Currently, there are several programs in various counties that allow alternatives to straight jail time. For example Arapahoe County offers the Multiple Offender's Program, Weekend Jail and Work release.
Driving under the influence of drugs, "DUID" and Driving While Ability Impaired by Drugs "DWAID" carry the same criminal penalties as an alcohol related DUI and DWAI. Driver's license consequences are at the current time are different for drug related offenses. Because there are no "per se" levels set at which one is considered intoxicated on drugs as there are for alcohol so there are no license revocations unless there is a conviction. The Colorado Legislature has considered setting drug per se levels, but, so far none have been established (there is however a permissible inference of marijuana intoxication at 5ng/ml blood).
Prior to July 1, 2010 there was no uniform procedure for dealing with probation violations. Some courts would impose the remainder of any jail sentence already imposed and suspended - other courts would add up to one year to any sentence already imposed. Section 42-4-1307(7) C.R.S. now requires that persons receiving probation for an alcohol related driving offenses also receive a suspended sentence of one year jail in addition to any other jail term that is required by law. In the event that the person violates probation all or part of this suspended one year jail term may be imposed! If you are having problems completing probation and are called to court for a "probation violation" we strongly recommend that you call an attorney prior to going to court. If a warrant has been issued you could be arrested and taken jail prior to even seeing a judge e.g., this is common in Denver and Adams. Once you are taken before a judge the penalty for violation could be a year in jail even though the original sentence did not include any jail time at all!
Alcohol offenses in the adult ranges, 0.05 and above carry the same criminal penalties as those imposed upon adults. There are additional penalties for underage "drunk driving." The threshold for alcohol related offenses for minor drivers is 0.02 BAC rather than 0.05 BAC. An alcohol driving offense in the range of 0.02 to 0.05 is often called a "baby DUI." On the criminal side of the DUI process, a first baby DUI carries fines, points and community service. A second or subsequent "baby" can be punished as a class 2 misdemeanor traffic offense i.e., up to 90 days in jail, fines, court costs and community service.
Unfortunately, employment applications often ask whether you have been convicted of any "crime." In Colorado alcohol related driving offenses are considered "misdemeanor criminal offenses" - not just traffic infractions. Pleading guilty to a any alcohol related driving offense can lessen your chances of getting some jobs and can preclude or end a military or law enforcement career. The Colorado Bureau of Investigation keeps permanent computer records of all drunk driving convictions. These records are available to anybody, online, including prospective employers - for just less than a $20 fee at the CBI web site.
To begin, Colorado doesn't allow "expungement" of criminal records as such. Criminal records may be "sealed," which means that access to the records is limited to the courts and prosecutors, the actual records are not erased or destroyed. Sealed records can be "unsealed" by a district court if so requested by a district attorney.
Section 42-72-308 C.R.S. expressly prohibits sealing of "convictions" for offenses under the DUI law. Can records of a drunk driving arrest be sealed if no conviction occurred? In order to have record of a DUI or DWAI sealed, the accused person must either have the charges dismissed or be acquitted at trial. A court hearing may be required to seal records in some counties. Whether your local district court will agree to seal a DUI case is a combination of the particular judge's interpretation of section 24-72-308 C.R.S., any objections made by the DA and the judge's policy on sealing cases. Regardless, DMV records showing administrative determinations of dui cannot be removed even if the criminal part of your case is sealed.
Attorney Cliff Hypsher
3780 South Broadway
Englewood, CO 80113