Chapter 7 - § 7.4 • THE POSSIBLE MISDEMEANOR AND FELONY PENALTIES

• Jurisdiction: Colorado

§ 7.4 • THE POSSIBLE MISDEMEANOR AND FELONY PENALTIES

§ 7.4.1—Overview

There is a range of possible penalties for DUI/DWAI misdemeanor convictions, based on the number of prior convictions for drug- or alcohol-related driving offenses. The court has some discretion to vary sentences within the statutorily prescribed range for each offense. Each sentence must include jail, mandatory fines, useful public service, probation, and Level II alcohol treatment. The Colorado legislature made significant modifications to the DUI sentencing laws in 2010, when C.R.S. § 42-4-1307 repealed and replaced C.R.S. § 42-4-1301(7). On June 1, 2015, Governor Hickenlooper signed HB 15-1043, enacting Colorado's first felony DUI statute, effective August 5, 2015. This legislation maintained all of the prior requirements for sentencing misdemeanor DUI/DWAI convictions and also added the possibility of imposing a community corrections sentence for "third and subsequent" misdemeanor convictions. HB 17-1288 became law on August 9, 2017, and imposed mandatory minimum penalties for felony DUI/DWAI convictions. Each felony probationary sentence must include mandatory minimum jail, useful public service, and Level II alcohol treatment.

The outlines that are provided in this chapter summarize the jail time, fines, useful public service, and probation options available to the court when imposing sentence for a DWAI, DUI, or DUI per se conviction. The sentencing ranges are determined by the type of conviction as well as any prior convictions for drug- or alcohol-related driving offenses.

For misdemeanor DUI/DWAI, convictions for the following offenses in Colorado or any conviction from any state, the United States, or any territory subject to U.S. jurisdiction, for an act that if committed in Colorado would constitute the following offenses, count as prior convictions:

• DUI, DUI per se, or DWAI, C.R.S. § 42-4-1301(1)(a) or (b);
• Vehicular homicide, C.R.S. § 18-3-106(1)(b);
• Vehicular assault, C.R.S. § 18-3-205(1)(b);
• Aggravated driving under revocation, C.R.S. § 42-2-206(1)(b)(I)(A) or (B), as that offense existed prior to August 5, 2015; and
• Driving under restraint, alcohol related, C.R.S. § 42-2-138(1)(d).

C.R.S. § 42-4-1307(9).

For felony DUI/DWAI, convictions for the following offenses in Colorado or any conviction from any state, the United States, or any territory subject to U.S. jurisdiction, for an act that if committed in Colorado would constitute the following offenses, count as prior convictions:

• DUI, DUI per se, or DWAI, C.R.S. § 42-4-1301(1)(a) or (b);
• Vehicular homicide, C.R.S. § 18-3-106(1)(b);
• Vehicular assault, C.R.S. § 18-3-205(1)(b).

C.R.S. § 42-4-1301(1)(a).

Under C.R.S. § 42-4-1307(1), "[e]ach sentence for a conviction of a violation of section 42-4-1301 shall include" the following:

DWAI — First Offense, § 42-4-1307(4)

1) Jail:

a) The court must impose a minimum of two days in the county jail and
may impose a maximum of up to 180 days.
b) The minimum can be suspended, if, as a condition of the suspended sentence, the offender undergoes a presentence or post-sentence alcohol and drug evaluation and satisfactorily completes and meets all financial obligations of a Level I or Level II program as determined to be appropriate by the alcohol and drug evaluation.
c) EXCEPT if BAC is 0.20 or more, the court must impose a mandatory minimum of 10 days jail, none of which can be suspended, and may impose a maximum of up to one year. The sentencing alternatives authorized by C.R.S. § 18-1.3-106 may be used.

2) Fine:

a) The court must impose a minimum fine of $200 but not more than $500.
b) The court shall have the discretion to suspend all or part of the fine.

3) Useful Public Service:

a) The court must impose a minimum of 24 hours of useful public service (UPS) and may impose up to 48 hours of UPS. The court does not have discretion to suspend UPS.

4) Probation:

a) The court may order up to two years of probation.
b) The probation period begins immediately upon sentencing.
c) The court shall not sentence the defendant to probation if the defendant is sentenced to the Department of Corrections; however, the defendant will have to complete the education and therapy probation conditions as conditions of parole.
d) The court may order that payment of any restitution due is a condition of probation.

5) Victim Impact Panel:

a) A defendant may also be ordered to attend and pay for one appearance at a victim impact panel. C.R.S. § 42-4-1307(12). These panels are designed to impress upon the defendant the seriousness of alcohol-related driving offenses and the impact those offenses have on the community and on the individual victims.
b) The fee for such panels is not to exceed $50 (adjusted for inflation).

DUI or DUI Per Se — First Offense, § 42-4-1307(3)

1) Jail:

a) The court must impose a minimum of five 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 a presentence or post-sentence alcohol and drug evaluation and satisfactorily completes and meets all financial obligations of a Level I or Level II program as determined to be appropriate by the alcohol and drug evaluation.
c) EXCEPT if BAC is .200 or more, the court must impose a mandatory minimum of 10 days, none of which can be suspended, and may impose a maximum of up to one year. The sentencing alternatives authorized by C.R.S. § 18-1.3-106 may be used.

2) Fine:

a) The court must impose a minimum fine of $600 but not more than $1,000.
b) The court shall have the discretion to suspend all or part of the fine.

3) Useful Public Service:

a) The court must impose a minimum of 48 hours of UPS and may impose up to 96 hours of UPS. The court does not have discretion to suspend UPS.

4) Probation:

a) The court may order up to two years of probation.
b) The court may order that payment of any restitution due is a condition of probation.

5) Victim Impact Panel:

a) A defendant may also be ordered to attend and pay for one appearance at a victim impact panel. C.R.S. § 42-4-1307(12). These panels are designed to impress upon the defendant the seriousness of alcohol-related driving offenses and the

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