Criminal and Civil Penalties - Colorado DUI Law Summary Part III

Jail is required in Colorado if you are convicted of DUI, DWAI or DUID and you have prior drunk driving convictions. Call for a free telephone consultation with an experienced DUI lawyer - 1.877.362.9091.

Your Colorado drunk driving case and the penalties that may be imposed may be effected by several different factors. Some of the factors that determine how a court will treat a conviction for a drunk driving offense are: the particular fact pattern in your case (e.g., the reasons why you were stopped, was there an accident,) whether you have prior DUI arrests, your alcohol level, the county in which the offense 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. Is in-home detention an option instead of jail in your case? If you live in another state can you avoid going to court? Before you decide to go to court without the benefit of competent counsel, you should know the answers to these and other important questions. In addition to the driver's license revocation for a Colorado DUI (see Part I and II), state law also provides for criminal penalties against drivers convicted by a court of law for "driving under the influence of alcohol or drugs" or "driving while ability impaired". Colorado has made most DUI penalties separate from and independent of what happens at the DMV. Thus, case dismissal by DMV does't result in automatic dismissal of criminal charges by the county court!

Statutory penalties for a first "driving while ability impaired" (DWAI)include as much as six months in jail. A The maximum penalty for a second or subsequent Driving While Ability Impaired, "DWAI" conviction and any Driving Under the Influence of Alcohol, "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. 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 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.

DUI and a 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 need only 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.

Penalties for a First Colorado DUI or DWAI Offense

Whether actual "jail time" is imposed for any DUI or DWAI offense is determined by the judge - unless jail is required by statute. The statutory law was updated in 2010 to include mandatory jail for most repeat offenses. If your DUI occured before 2010 the law applicable at the time will govern. Jail is mandatory though for BAC levels above 0.20. The good news is that often judges and prosecutors will agree to probation without jail for a first offense with a low alcohol level. Even though jail time is a unlikely for most first offenses with alcohol levels below 0.20, fines, court costs, "alcohol education" and community service must be imposed by law in all but a few cases. It is rare to get "diversion" or a "deferred" sentence in most counties for any alcohol related offense unless the Prosecution is faced with significant problems with his or her case against you. Some examples of "problems" that can help bring about an offer for a deferred sentence are an illegal traffic stop or unavailable witness. All district attorneys know that most people cannot or will not pay an attorney to fight the case to a favorable conclusion. Thus, they have no incentive to offer you a fair plea bargain. I can think of two counties in the front range that offer deferred sentences for alcohol offenses, but these are available only to people with blood alcohol levels of less than 0.07gm/100ml. "Mothers Against Drunk Drivers" (MADD) uses pressur tactics against DAs and judges to prevent them from offering reasonable plea agreements. I have seen overbearing MADD members stand in the front of courtrooms "scoring" how a judge sentences DUI defendant's! In this climate of political intimidation, chances of a deferred or other desirable plea agreement are higher the nearer to trial, this means defendants must be willing to spend the time and money to go to trial in order to have the maximum chances of getting a desirable resolution of the case.

Jail time for a first offense is at the discretion of the judge assigned to your case and can range up to one year according to Colorado DUI Law. First time offenders rarely get jail in Colorado, however, the new law (as of July 1, 2010) 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 offender completes probation. Normally, jail time must be served in the county where the DUI occured, however, I've had success getting approval for my clients to serve jail time in other counties and even other states. Some judges, in the Clear Creek County Court for example, routinely impose some jail even if you are a first time offender. If you had an accident or a high BAC - over 0.15 - then the chance of jail time on a first offense increases dramatically. Over 0.20 BAC jail is mandatory, even for people who have never had a single traffic ticket before! Except in a few cases the court will usually impose alcohol/substance abuse treatment at the time of sentencing. Recommended alcohol education and treatment for a first DUI ranges from 12 hours to 86 hours. If you are assigned the maximum allowable alcohol education and treatment expect to invest 110 hours of your time to completing probation.

Penalties for a Second Colorado DUI or DWAI Offense

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. I recently had a fellow sentenced to jail in Denver for a second offense whose first and only other DUI occurred in 1968! Even though there is a ten day mandatory sentence, some counties, Denver for instance, have a policy of requiring 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)

After July 1, 2010 all 2nd alcohol related offenses are punishable by a minimum ten day jail sentence, with a possibility of in-home detention or weekend sentences if the offense occurred more than five years after a previous alcohol related offense. It doesn't matter whether the prior was a DUI or DWAI for the mandatory 10 day penalty to apply. Unfortunately, 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.

Penalties for a 3rd or subsequent Colorado DUI Offense

After July 1, 2010, persons charged with a third or subsequent 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.

Jail for a Colorado DUI

Depending on the facts of your case and the skill of your attorney, "jail" in this context can mean straight time behind bars or where allowed by mandatory sentencing guidelines - 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. Your attorney should be familiar with these programs and how to take advantage of them if necessary. For example Arapahoe County offers the Multiple Offender's Program. While this program started out as a preferred option to a lengthy work release program, reports suggest that the MOP may actually result in more time in jail than a 9 month jail sentence! The program begins with jail time, followed by work release and in the end in home detention. I am no longer recommending this program as I have heard from former clients that MOP is nothing more than a year long work release program with jail sponsored alcohol education! I will keep up on this issue an post more information as the situation changes. Boulder County offers the MOD program for persons with 3 or more DUI convictions. It is a year long program that includes work release and IHD.

Probation Violation for a Colorado DUI

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 have problems completing probation and are called in 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!

Colorado Underage Drivers and DUI

Alcohol offenses in the adult ranges, 0.05 and above carry the same criminal penalties as those imposed upon adults. There are additional penalties over and above those imposed upon adults 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.

Permanent Criminal Records

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. So get competent advice before you take whatever plea the DA is willing to offer you. 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. These records can be sealed only if you are acquitted of all criminal charges associated with the DUI arrest. That would include associated traffic infractions etc.

Sealing or Expungement of DUI Records In Colorado

To begin, Colorado doesn't allow "expungement" of criminal records as such. Criminal records may be "sealed," which means that access is to the records are 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. Technically, a guilty plea accompanied by a deferred judgment and sentence is a "conviction" until such time as the plea is withdrawn and the case closed. Accordingly, until the case subject to a deferred is dismissed, sealing is clearly prohibited. It is less clear whether dismissal of the deferred erases the prior conviction thereby allowing sealing!

Can records of a drunk driving arrest be sealed? The short answer is that 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. DMV records cannot be altered by sealing. The Colorado Record Sealing statute, section 24-72-308 C.R.S. explicitly exempts "convictions for crimes described in section 42-2-1301 C.R.S." from being sealed. 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.