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Legal Penalties for all DUI types in Colorado

Legal Penalties for all DUI types in Colorado

There are several different crimes in Colorado dealing with drinking and/or drugged driving. The most common is driving under the influence of alcohol or drugs. These two crimes are commonly referred to as DUI or DUI drugs. The elements of DUI are that you were under the influence of alcohol or drugs while operating a motor vehicle or in actual physical control of a vehicle.

To prove that you were under the influence of alcohol or drugs, the State must show that you were incapable of safely driving or operating a motor vehicle due to the consumption of alcohol or drugs or a combination of alcohol and drugs. However, in Colorado, if you consent to a chemical test (breath or blood) and it shows a breath or blood alcohol level of .08 grams per 100 milliliters of blood or 210 liters of breath, then you are presumed to be under the influence of alcohol, regardless of your indicia or whether your driving was actually impaired.

DUI and Actual Physical Control (APC)

Driving Under the Influence actually requires driving a motor vehicle. However, if you were not actually driving a vehicle, then you may still be charged with DUI due to being in actual physical control (APC) of a motor vehicle while under the influence of alcohol or drugs. A person sleeping in their car can be charged with DUI.

The definition of actual physical control is that the vehicle was either operable, reasonably capable of being rendered operable, in motion (whether by coasting or pushing), or at risk of being put in motion.

In layman’s terms, it is having the ability to put the vehicle into motion. Could you have put the vehicle into motion if you wanted to? That’s right - you can be convicted of DUI for having the ability to drive a vehicle. There is case law that states that a person can be in actual physical control of the motor vehicle even when sleeping behind the wheel of the car.

Although the car must be operational, it is not necessary that the vehicle be able to move. For example, a vehicle that is stuck on a curb and with the tires spinning, would be sufficient for APC if the other elements of the crime were also proven.

To find APC, the jury can determine if someone is exercising actual physical control by a totality of the circumstances. The factors for the jury to consider in determining the issue of actual physical control include the vehicle’s operability, the vehicle’s location, defendant’s location in the vehicle, the location of the ignition keys, whether the motor was running, whether defendant had the apparent ability to start the vehicle, whether defendant was conscious, whether the heater or air conditioner was running, whether the windows were up or down, and any other factor which tended to indicate that defendant exercised bodily influence or direction over the vehicle based on the jury’s everyday experience.

Penalties

A DUI and DWAI are currently misdemeanor charges in Colorado regardless of the number of priors. The maximum penalty for a DUI is the same regardless of priors, how ever, the minimum mandatory penalties increase as the number of priors increase.

Driving Under the Influence - DUI First Offense

A DUI first offense carries a mandatory 5-day jail sentence with up to a maximum of 1 year. All jail can be suspended upon completion of level I or level II alcohol education and therapy. The requirements are set forth in CRS §42-4-1307(3). There is a fine of not less than $600 and not more than $1,000. There is a mandatory 48 hours of useful public service (UPS) but no more than 96 hours of UPS may be imposed. The court may order up to 24 months of probation.

If the BAC is .200 or greater, then there is a mandatory 10 days jail that must be imposed. The court has the discretion to employ alternative sentencing options for this mandatory period of jail.

Driving While Ability Impaired - DWAI First Offense

The lesser-included charge of DUI is Driving While Ability Impaired. This charge is commonly known in Colorado as DWAI. Driving while ability impaired means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the 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. In Colorado, this is the lesser-included crime of DUI. If your BAC comes back between .05 and .079, there is a rebuttable presumption that you are driving while impaired.

The punishment for DWAI first offense has a mandatory minimum of 2 days jail and a maximum of 6 months in jail. All jail can be suspended upon completion of level I or level II alcohol education and therapy. There is a fine of not less than $200 and not more than $500. If convicted of DWAI, you have to complete a mandatory minimum 24 hours of useful public service (UPS), but not more than 48 hours of UPS. The Court may order up to 24 months of probation.

If the BAC is .200 or greater, then there is a minimum mandatory 10 days jail that must be imposed. The court has the discretion to employ alternative sentencing options for this mandatory period of jail. DWAI does not carry an automatic license revocation unless the defendant receives enough points to place the defendant over the allotted amount of points for the 12 or 24 month timeframes.

Driving under the Influence DUI - Second Offense within 5 years

A DUI second within five years of the prior has a mandatory minimum 10 days jail and a maximum of up to 1 year. The mandatory minimum jail must be imposed. There will be no credit for good time, earned time or reduction on the minimum due to trusty status. Work and education release are available if the person is employed or enrolled at the time of sentencing. There is a fine of not less than $600 and not more than $1,500. There is a mandatory minimum of 48 hours of useful public service (UPS), but not more than 120 hours of UPS may be imposed. The court SHALL order 24 months of probation. There will be 1 year jail suspended as a condition of probation.

Driving Under the Influence DUI - Second Offense outside 5 years

A DUI second outside of five years of the prior has a mandatory minimum 10 days jail and a maximum of up to 1 year. The mandatory minimum jail must be ordered. This jail time may be served by alternative sentencing (in-home detention, weekends, etc) at the discretion of the court.

There will be no credit for good time, earned time or reduction on the minimum due to trusty status. Work and education release are available if the person is employed or enrolled at the time of sentencing. There is a fine of not less than $600 and not more than $1,500. There is a mandatory minimum of 48 hours of useful public service (UPS) but not more than 120 hours of UPS may be imposed. The court SHALL order 24 months of probation. There will be 1 year jail suspended as a condition of probation.

Driving Under the Influence DUI - Third or subsequent offense in a lifetime

A DUI third or more in a lifetime has a mandatory minimum of 60 days jail and up to a maximum of 1 year. The mandatory minimum jail must be imposed. There will be no credit for good time, earned time or reduction on the minimum due to trusty status. Work and education release are available if the person has them in place at the time of sentencing. There is a fine of not less than $600 and not more than $1,500. There is a mandatory minimum of 48 hours of useful public service (UPS) but not more than 120 hours of UPS may be imposed. The court SHALL order 24 months of probation. There will be 1 year jail suspended as a condition of probation.

Underage Drinking and Driving (UDD)

There is an additional subsection of the statute that only applies to drivers under the age of 21. Colorado holds underage drivers to a higher standard. Colorado law states that if you are under 21 and driving with a breath or blood alcohol level of .02 or greater, then you can be charged with a crime. What you are charged with will depend on the result of your chemical test. If your BAC is .08 or greater, you will be charged with DUI, just like a driver over the age of 21. If your BAC is between .05 and .079, you will be charged with DWAI, just like a driver over the age of 21. The difference comes when your BAC is between .02 and .049. If your test result is greater than .02 and less than .05 you will be charged with Underage Drinking and Driving (UDD).

A UDD is a class A traffic infraction:

The court, upon sentencing a defendant for UDD, may, in addition to any penalty imposed under a class A traffic infraction, order that the defendant perform up to 24 hours of useful public service., and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense.

Child Abuse

This is a cautionary note to parents or anyone who has custody of a child. In addition to being charged with a DUI, DWAI or DUID, the District Attorney’s Office can and will add the charge of child abuse if you have juveniles in the car when you are contacted and suspected of driving under the influence or while impaired.

A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to a child’s life or health. A “child” means anyone under the age of 16.

Vehicular Assault - A DUI accident with Serious Bodily Injury

Regardless of prior convictions, if your DUI or DWAI involves an accident causing serious bodily injury, you will be charged with felony vehicular assault. If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct causes serious bodily injury to another, that person commits vehicular assault. This is a strict liability crime, which means you do not have to have the specific intent to commit the act or crime. This crime involving impairment is a class 4 felony. It carries a presumptive range of 2 to 6 years in prison or 1 to 12 years if there is exceptional mitigating or aggravating circumstances. There is also a mandatory 3 years parole if sentenced to Department of Corrections (prison).

Vehicular Homicide – A DUI accident resulting in Death

If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and causes death of another, such person commits vehicular homicide. This is a strict liability crime. Vehicular homicide involving impairment is a class 3 felony. This charge carries a presumptive range of 4 to 12 years in prison or 2 to 24 years if there is exceptional mitigating or aggravating circumstances. There is also a mandatory 5 years parole if sentenced to Department of Corrections (prison).

A DUI charge carries significant penalties and loss of liberty. It is very important for anybody who is charged with DUI or DUI-related crimes to immediately consult and retain a highly qualified DUI attorney.

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