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
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
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.
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
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.
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
Jail for a Colorado DUI
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
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
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.