Driving Under the Influence

In Colorado drivers licenses can be revoked through either the court system through convictions or by the department of motor vehicles through an administrative process. The DMV administrative process is especially important to be aware of when it comes to accusations of DUI involving alcohol. Under the Colorado Express Consent Law a person can have their license revoked from refusing to take a chemical test. An adult Driver's License can also be revoked if a person has a breath alcohol content .08 or above within two hours of driving or a blood alcohol content of .08 or above within two hours of driving.

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What do I need to know if I pulled over and cited for DUI?

• If you refused to talk a chemical test you have seven days to ask for a hearing from the DMV to ensure that law enforcement followed procedures and that evidence supports a revocation. The officer would have taken your driver's license and given you a notice of revocation.
• If you took a breath test and blew above a .08 you have seven days to ask for a hearing from the DMV to ensure law enforcement followed procedures and that evidence supports a revocation. The officer would have taken your driver's license and given you a notice of revocation.
• If you took a blood test the results will not be known for weeks or months. Therefore you would have been able to keep a valid driver's license. It is vital that the Colorado DMV has your accurate address on record. That way you will receive a letter notifying you if you were above a .08 BAC and given seven days to ask for a hearing to keep your license.
• This a website that explains the process in greater depth: https://noduicolorado.org/

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Can I drive while awaiting my hearing?

• Typically if you had a valid driver's license you are able to drive legally while awaiting your administrative hearing. Check with the DMV to ensure you have a valid driver's license status at https://dmv.colorado.gov/purchase-motor-vehicle-record-mvr-letter-clearance
• After your hearing you will either be able to keep your license if you win or you will be given requirements for reinstatement if it is suspended.

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Do I lose anything by asking for a hearing?

• Absolutely not. The hearing officer cannot make a suspension more severe if you contest it at a hearing. It is essentially a free swing at potentially keeping your license. Even when the evidence is strong sometimes a technicality or failure of a law enforcement officer to show up can result in a citizen keeping their license.

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What is a DMV revocation hearing like?

• It is somewhat similar to a court hearing with some key difference. There is no prosecutor. Only a hearings officer from the DMV. They preside over the hearing and render a decision. They keep a formal record by audio should there be an appeal. You are given the option to have the officer who wrote the ticket appear or not. If you elect to have them not appear then the officer can render a decision based on the police reports. The evidentiary standard is by preponderance. So they simply have to show that a person either refused to take a chemical test when the officer had legal authority to ask for one. Or in the case of a test that there is enough evidence to show that you were driving within two hours of the test and that it was reliably done. Preponderance roughly means a 51% likelihood that something occurred. So that is much lower than a trial where the jury must decide issues by a standard of beyond a reasonable doubt.

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Can you have a lawyer represent you at a DMV hearing?

• Absolutely. Smith & Weidinger provide representation at DMV hearings at no additional cost as part of the flat fee in any DUI retainer. You can always chose to represent yourself in DMV hearings just as you could in a court of law. Unlike in a court of law, you are unable to get a public defender to appear at a DMV hearing since it is administrative in nature.

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Even if I win the DMV hearing can I still lose my driver's license?

• Unfortunately yes. Even if you win a DMV hearing, you can still lose your driver's license if you are convicted of DUI or any other combination of traffic offenses that put you over 12 points in a year or 18 points in two years. That said, winning a DMV hearing could provide you leverage to get a better plea offer from a prosecutor that could help you keep your license. Each case is different and it is important to have a strong advocate at your side.

Colorado has some very severe laws against driving under the influence. Even for a first offense you can face up to a year in jail and revocation of your driver's license. It is vital to have strong legal representation at every stage of the process. Whether you were just pulled over last night or you're headed to court in a couple days it is important to know your rights and your options.

What is a DUI in Colorado?

“Driving under the influence” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

What is a DWAI in Colorado?

“Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person tot he slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

What is a DUI Per Se (aka Driving with Excessive Alcohol Content) in Colorado?

That a person drove a motor vehicle or vehicle and that at the time of driving, or within two hours after driving he or she had a blood or breath alcohol content of 0.08.

Can I be charged with DUI, DUI Per Se, and/or DWAI for the same event?

Yes, prosecutors can proceed on all three charges in the same case. Typically those charges would merge if you were convicted of more than one, resulting in a single punishment.

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Driving Under Restraint, 42-2-138: if you drive without a suspended driver's license in Colorado you can face the charge of driving under restraint. For a non-alcohol revocation this is usually handled as a fine though jail could be involved. For those revoked due a violation of Express Consent through DMV (either a refusal or having over an .08 BAC), a conviction for DUI or other similar offense the penalty for "DUR-Alc" could be a mandatory minimum 30 days in jail. It is therefore important to know the status of your driver's license. You can check the status of your Colorado Driver's License at https://mydmv.colorado.gov/_/#2

• Can you avoid the mandatory jail for DUR-Alc? - it is possible under certain circumstances to negotiate a plea agreement to a lesser charge or another form of DUR that allows a Defendant to avoid jail. However, much depends on the driver's record and details of the individual case.
• What if I was never notified that my license was suspended? - it is up to the prosecutor to prove you had legal notice of your revocation. This may be an element that can be disputed in negotiations with the prosecutor or even at trial.

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Driving After Revocation Prohibited, 42-2-206: is charged when someone designated as a habitual traffic offender is is caught driving on a revoked license. There is a possible mandatory minimum term of 30 days in jail and/or a $3000 fine. The jail can sometimes be avoided by the performance of Useful Public (Community) Service.

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Criminal Penalties for DUI/DUID/DWAI/UDD can vary widely based on the severity of the incident and number of prior alcohol related driving offenses an individual may have. It is important to consult a knowledgeable attorney about your particular situation.

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DUI or DUI Per Se - First Offense C.R.S. 42-4-1307(3)

1.) Jail

a.) the court must impose a minimum of days in the county jail, and may impose a maximum of up to one year.

b.) the minimum can be suspended, if, as a condition of the suspended sentence, the offender undergoes an alcohol or drug evaluation and successfully completes a Level I or II program directed by that evaluation.

c.) except when there is a BAC of .200 or more, which then requires a mandatory minimum of jail of 10 days, none of which can be suspended. Sentencing alternatives may be available.

2.) Fine: the court must impose a minimum fine of $600 but not more than $1,000. This can be suspended in all or part.

3.) Useful Public Service (UPS): 49-96 hours

4.) Probation: Up to two years

5.) Victim Impact Panel

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DUI or DUI Per Se - Second Offense, C.R.S. 42-4-1307(5)

1.) Jail:

a.) mandatory minimum of 10 consecutive days in the county jail. Alternative sentencing options available unless prior was within the last 5 years. Maximum sentence remains one year.

b.) The court must also suspend an additional jail sentence of up to a year as a condition of successfully completing probation.

2.) Fine: $600-1500. Can be suspended in all or part.

3.) Useful Public Service (UPS): 48-120 hours

4.) Probation: two to four years.

5.) Victim Impact Panel

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DUI or DUI Per Se - Third Offense, C.R.S. 42-4-1307(6)

1.) Jail

a.) the court MUST impose a mandatory minimum of 60 days in the county jail. Maximum sentence remains one year.

b.) the court must impose an additional year of jail, suspended as a condition of successfully completing probation.

c.) alternative sentences are only authorized for time beyond the initial 60 days in county jail.

d.) no good time, earned time, or trusty time is applicable to the initial 60 days in county jail.

2.) Fine: $600-$5000, can be suspended in all or part

3.) UPS: 48-120 hours or UPS.

4.) Probation: 2-4 years

5.) Community Corrections: may be a sentencing option if the two priors are within the last seven years before the current violation.

6.) Victim Impact Panel

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Felony DUI - Fourth and Subsequent Offenses, C.R.S. 42-4-1307(6.5)(b)(I) and (7)(b)

*** Felony Sentencing is Complex and particulars of an individual case matter greatly. Please consult with a qualified attorney. The following are basic guidelines. ***

1.) Prison: presumptive range of 2-6 years in prison with possible modifications based on Court findings, followed by three years of parole.

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2.) Community Corrections for a similar period of time.

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3.) Probation with a mandatory minimum of 90 days in jail and up to 180 days as a condition. There may be an option for 120 days to two years of work, education, or treatment release, followed by up to five years of probation.

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