GUSTAFSON
LAW
OFFICE
Colorado Springs, Colorado
El Paso County
Robert D. Gustafson
* Attorney at Law *
Colorado Springs |
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COLORADO DUI * DEAC * DWAI SENTENCING |
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Phone (719) 260-1002
Fax (719) 260-1003 **
Toll Free (800) 410-1002 |
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STATUTORY SENTENCING GRID - ALCOHOL RELATED TRAFFIC OFFENSES
STATUTORY SENTENCING REQUIREMENTS
CRS
42-4-1307 * EFFECTIVE DATE: 2010 |
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statutory
sentencing ranges apply to trial verdict, guilty plea, nolo contendere plea, deferred prosecution and deferred sentence agreements
except that a person shall not be deemed to have been convicted if the
person has successfully completed a deferred sentence or deferred
adjudication
CRS
42-4-1307(2)(a) |
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FIRST OFFENSE
- SENTENCING RANGE
DWAI |
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DRIVING WHILE ABILITY IMPAIRED |
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DWAI 1st
OFFENSE |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
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BAC 0.199 OR
LESS |
2 Days - 6 Months (180 Days) |
None |
$200
- $500 |
Presumptive |
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PRIORS |
all jail can be suspended |
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all fines can be suspended |
24-48 hours |
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with alcohol evaluation & |
+ suspended sentence 1 year |
+ persistent drunk driver
surcharge |
Mandatory Minimum |
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alcohol education / therapy |
probation
up to 2 years |
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24 hours |
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DWAI 1st
OFFENSE |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
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BAC 0.20 OR
GREATER |
10 Days - 1 Year |
10 Days |
$200
- $500 |
Presumptive |
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PRIORS |
jail
alternatives may be
utilized |
no requirement consecutive |
all fines can be suspended |
24-48 hours |
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with alcohol evaluation &
alcohol education / therapy |
jailhouse policy may require
serving consecutive sentence |
+ persistent drunk driver
surcharge
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Mandatory Minimum
24 hours |
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+ suspended sentence 1 year |
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probation up to 2 years |
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FIRST OFFENSE
- SENTENCING RANGE
DUI **
DEAC |
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DRIVING UNDER THE INFLUENCE
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DRIVING WITH EXCESSIVE ALCOHOL CONTENT
0.08 or more grams of alcohol
per 100 ml of blood or 210 liters of breath |
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DUI OR DEAC 1st OFFENSE |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
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BAC 0.199 OR
LESS |
5 Days - 1
Year |
None |
$600 - $1,000 |
Presumptive |
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PRIORS |
all jail can be suspended |
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all fines can be suspended |
48-96 hours |
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with alcohol evaluation & |
+ suspended sentence 1 year |
+ persistent drunk driver
surcharge |
Mandatory Minimum |
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alcohol education / therapy |
probation
up to 2 years |
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48 hours |
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DUI OR DEAC 1st OFFENSE |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
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BAC 0.20 OR
GREATER |
10 Days - 1
Year |
10 Days |
$600 - $1,000 |
Presumptive |
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PRIORS |
jail
alternatives may be
utilized |
no requirement consecutive |
all fines can be suspended |
48-96 hours |
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with alcohol evaluation &
alcohol education / therapy |
jailhouse policy may require
serving consecutive sentence |
+ persistent drunk driver
surcharge
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Mandatory Minimum
48 hours |
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+ suspended sentence 1 year |
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probation up to 2 years |
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SECOND OFFENSE
- SENTENCING RANGE
DWAI **
DUI **
DEAC |
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one prior conviction -
DWAI,
DUI,
DEAC, DUR,
or DARP |
driving while ability impaired * driving under the
influence of alcohol or drugs
driving with excessive alcohol content |
driving under restraint * driving after revocation
prohibited
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conviction may have been in Colorado or any other
jurisdiction |
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Prior Conviction |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
| More Than 5 Years Hence |
10 Days - 1 Year |
10 consecutive days |
$600 - $1,500 |
Presumptive |
| DWAI 2nd OFFENSE
and |
jail
alternatives may be
utilized |
no credit for good time |
all fines can be suspended |
48-120 hours |
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DUI 2nd OFFENSE
and |
with alcohol evaluation & |
no credit for jailhouse trustee |
+ persistent drunk driver
surcharge |
Mandatory Minimum |
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DEAC 2nd OFFENSE |
alcohol education / therapy |
+ suspended sentence 1 year |
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48 hours |
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+ probation minimum 2 years |
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Prior Conviction |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
| Within 5 Years |
10 Days - 1 Year |
10 consecutive days |
$600 - $1,500 |
Presumptive |
| DWAI 2nd OFFENSE |
jail
alternatives not
available |
no credit for good time |
all fines can be suspended |
48-120 hours |
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DUI 2nd OFFENSE
and |
except as per below |
no credit for jailhouse trustee |
+ persistent drunk driver
surcharge |
Mandatory Minimum |
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DEAC 2nd OFFENSE |
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+
suspended sentence
1 year |
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48 hours |
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+
probation minimum 2 years |
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CRS 42-4-1307(5)(b). ... a court
may allow the person to participate in a program pursuant to section
18-1.3-106(1)(a) (II), (1)(a) (IV), or (1) (a) (V), C.R.S., only if the
program is available through the county in which the person is imprisoned
and only for the purpose of: |
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(I) Continuing a position of
employment that the person held at the time of sentencing for said
violation; |
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(II) Continuing attendance at an
educational institution at which the person was enrolled at the time
of sentencing for said violation; or |
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(III) Participating in a
court-ordered level II alcohol and drug driving safety education or
treatment program, as described in section 42-4-1301.3(3)(c) (IV). |
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CRS 42-4-1307(5)(c).
Notwithstanding the provisions of section
18-1.3-106(12), C.R.S., if,
pursuant to paragraph (a) or (b) of this subsection (5), a court allows a
person to participate in a program pursuant to section
18-1.3-106, C.R.S.,
the person shall not receive one day credit against his or her sentence
for each day spent in such a program, as provided in said section
18-1.3-106(12), C.R.S. |
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THIRD OR SUBSEQUENT OFFENSE
- SENTENCING RANGE
DWAI **
DUI **
DEAC |
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two or more prior convictions -
DWAI,
DUI,
DEAC, DUR,
or DARP |
driving while ability impaired * driving under the
influence of alcohol or drugs
driving with excessive alcohol content |
driving under restraint * driving after revocation
prohibited
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| each conviction may have been in Colorado or any other
jurisdiction |
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| Prior Offenses within
Lifetime |
PRESUMPTIVE
JAIL |
MANDATORY
JAIL |
PRESUMPTIVE FINES |
PUBLIC SERVICE |
| DWAI 3rd+ OFFENSE and |
60 Days - 1 Year |
60 consecutive days |
$600 - $1,500 |
Presumptive |
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DUI 3rd+ OFFENSE and |
jail
alternatives not
available |
no credit for good time |
all fines can be suspended |
48-120 hours |
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DEAC 3rd+ OFFENSE |
except as per below |
no credit for jailhouse trustee |
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Mandatory Minimum |
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+
suspended sentence
1 year |
+ persistent drunk driver
surcharge |
48 hours |
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+
probation minimum 2 years |
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CRS 42-4-1307(6)(a)(1). ... a
court may allow the person to participate in a program pursuant to section
18-1.3-106(1)(a) (II), (1)(a) (IV), or (1) (a) (V), C.R.S., only if the
program is available through the county in which the person is imprisoned
and only for the purpose of: |
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(A) Continuing a position of
employment that the person held at the time of sentencing for said
violation; |
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(B) Continuing attendance at an
educational institution at which the person was enrolled at the time
of sentencing for said violation; or |
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(C) Participating in a court-ordered
level II alcohol and drug driving safety education or treatment
program, as described in section 42-4-1301.3(3)(c) (IV). |
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CRS 42-4-1307(6)(b) Notwithstanding the
provisions of section
18-1.3-106(12), C.R.S., if, pursuant to paragraph
(a) or (b) of this subsection (5), a court allows a person to participate
in a program pursuant to section
18-1.3-106, C.R.S., the person shall not
receive one day credit against his or her sentence for each day spent in
such a program, as provided in said section
18-1.3-106(12), C.R.S. |
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STATUTORY SENTENCING - ALCOHOL RELATED TRAFFIC OFFENSES
PROBATION AND OTHER STATUTORY SENTENCING PROVISIONS
STATUTORY SENTENCING REQUIREMENTS
CRS
42-4-1307 * EFFECTIVE DATE: 2010 |
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statutory
sentencing ranges apply to trial verdict, guilty plea, nolo contendere plea, deferred prosecution and deferred sentence agreements
except that a person shall not be deemed to have been convicted if the
person has successfully completed a deferred sentence or deferred
adjudication
CRS
42-4-1307(2)(a) |
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PROBATION RELATED PENALTIES |
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CRS 42-4-1307(7) Probation-related
penalties. When a person is sentenced to a period of probation pursuant
to subparagraph (IV) of paragraph (a) of subsection (5) of this section
or subparagraph (IV) of paragraph (a) of subsection (6) of this section:
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(a) The court shall impose, in addition to any other condition of
probation, a sentence to one year of imprisonment in the county jail,
which sentence shall be suspended, and against which sentence the person
shall not receive credit for any period of imprisonment to which he or
she is sentenced pursuant to subparagraph (I) of paragraph (a) of
subsection (5) of this section or subparagraph (I) of paragraph (a) of
subsection (6) of this section; |
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(b) The court: |
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(I) Shall include, as a condition of the person's probation, a
requirement that the person complete a level II alcohol and drug driving
safety education or treatment program, as described in section
42-4-1301.3(3)(c) (IV), at the person's own expense; |
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(II) May impose an additional period of probation for the purpose of
monitoring the person or ensuring that the person continues to receive
court-ordered alcohol or substance abuse treatment, which additional
period shall not exceed two years; |
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(III) May require that the person commence the alcohol and drug driving
safety education or treatment program described in subparagraph (I) of
this paragraph (b) during any period of imprisonment to which the person
is sentenced; |
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(IV) May require the person to appear before the court at any time
during the person's period of probation; |
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(V) May require the person to use an approved ignition interlock device,
as defined in section 42-2-132.5(7)(a), during the period of probation
at the person's own expense; |
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(VI) May require the person to submit to continuous alcohol monitoring
using such technology or devices as are available to the court for such
purpose; and |
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(VII) May impose such additional conditions of probation as may be
permitted by law. |
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Attorney Notation.
Additional conditions may include monitored abstinence with court
ordered disulfiram - antabuse |
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STATUTORY STANDARD CONDITIONS OF
PROBATION OR DEFERRED SENTENCE |
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When a persons enters a plea to an
offense or is found guilty of an offense at trial and is placed upon
supervised probation, unsupervised probation, supervised deferred
sentence or unsupervised deferred sentence, statutory restrictions and
obligations are imposed by Colorado law. Refer to the above link
to read the conditions of probation statute verbatim. |
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In addition to the statutory standard
conditions, the court is likely to impose additional specific conditions
at sentencing hearing or deferred sentence review hearing which are
reasonably related to rehabilitation, punishment, protection or
deterrence. |
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RESTITUTION |
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CRS 42-4-1307(11) As a condition
of any sentence imposed pursuant to this section, the sentenced person
shall be required to make restitution in accordance with the provisions
of section 18-1.3-205, C.R.S. |
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Attorney Notation. Restitution is
mandatory. A defendant is required to reimburse any damages caused
by his or her offense. |
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VICTIM IMPACT PANEL |
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CRS 42-4-1307(12) Victim impact panels. In addition
to any other penalty provided by
law, the court may sentence a person convicted of DUI, DUI per se, DWAI,
habitual user, or UDD to attend and pay for one appearance at a victim
impact panel approved by the court, for which the fee assessed to the
person shall not exceed twenty-five dollars. |
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PERSISTENT DRUNK DRIVER FUND
aka Persistent Drunk Driver Surcharge (PDDS) |
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CRS 42-4-1307(10)(b) Persons convicted of DUI, DUI per
se, DWAI, and habitual user are
subject to a surcharge of at least one hundred dollars but no more than
five hundred dollars to fund programs to reduce the number of persistent
drunk drivers. The surcharge shall be mandatory, and the court shall not
have discretion to suspend or waive the surcharge; except that the court
may suspend or waive the surcharge if the court determines that a person
is
indigent. Moneys collected for the surcharge shall be transmitted to the
state treasurer, who shall credit the amount collected to the persistent
drunk driver cash fund created in section 42-3-303. |
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Attorney
Notation. Other costs such as traumatic brain
injury surcharge, law enforcement assistance fund, rural alcohol and
substance abuse prevention and treatment program are not cited herein. |
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PROBATION EARLY TERMINATION |
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CRS 42-4-1307(7)(d) The prosecution, the person, the person's counsel,
or the person's probation officer may petition the court at any time for
an early termination of the period of probation, which the court may
grant upon a finding of the court that: |
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(I) The person has successfully completed a level II alcohol and drug
driving safety education or treatment program pursuant to subparagraph
(I) of paragraph (b) of this subsection (7); |
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(II) The person has otherwise complied with the terms and conditions of
his or her probation; and |
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(III) Early termination of the period of probation will not endanger
public safety. |
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Attorney
Notation. Counsel's representation is concluded when a
final order has been entered. Attorney Gustafson files a notice of
withdrawal of representation at that time to avoid being the client's
agent for service of process. |
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If supervised probation or deferred
sentencing is ordered, with the end of case documents, counsel
provides the client with the below documents to be later filed pro-se
(without counsel). Early termination issues are not complicated
and do not require representation by an attorney. Early
termination is always of interest to the client given the expensive
monthly supervision fee ($50 per month at present). These courtesy
documents make it easy for a former client to request early
termination and supervision costs refund. Note that early
termination works a little differently in
deferred sentencing than in
probation cases. DA Office consent is required for early
termination of a deferred sentence, however the court has discretion
and may terminate probation early regardless of objection by the
prosecution or probation officer. |
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a. motion for early
termination of probation or deferred sentence or alternatively for
conversion to unsupervised probation or deferred sentence as relevant, including request for
refund of pre-paid but unused supervision costs. |
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b. proposed order for early
termination of supervised probation or deferred sentence including
order directing the clerk of court to refund pre-paid but unused
supervision costs. |
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c. notice of hearing |
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If unsupervised probation or
unsupervised deferred sentencing is ordered, with the end of case
documents, counsel also provides the client with similar documents for
early termination in the event travel outside Colorado may be
required, a move outside the city of residence at disposition is a
foreseeable possibility or other justification exists for early
termination of probation or deferred sentencing. Note that early
termination works a little differently in
deferred sentencing than in
probation cases. DA Office consent is required for early
termination of a deferred sentence, however the court has discretion
and may terminate probation early regardless of objection by the
prosecution or probation officer. |
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STATUTORY SENTENCING - ALCOHOL RELATED TRAFFIC OFFENSES
PRIOR CONVICTION - DEFINITION & TERMS
STATUTORY SENTENCING REQUIREMENTS
CRS
42-4-1307 * EFFECTIVE DATE: 2010 |
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statutory
sentencing ranges apply to trial verdict, guilty plea, nolo contendere plea, deferred prosecution and deferred sentence agreements
except that a person shall not be deemed to have been convicted if the
person has successfully completed a deferred sentence or deferred
adjudication
CRS
42-4-1307(2)(a) |
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PRIOR CONVICTION |
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CRS 42-4-1307(9) Previous convictions. |
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(a) For the purposes of subsections
(5) and
(6) of this section, a person shall be deemed to have a previous
conviction for DUI, DUI per se, DWAI, habitual user, vehicular homicide
pursuant to section 18-3-106(1)(b), C.R.S., vehicular assault pursuant
to
section 18-3-205(1)(b), C.R.S., aggravated driving with a revoked
license
pursuant to section 42-2-206(1)(b) (I) (A) or (1)(b) (I) (B), or driving
while the person's driver's license was under restraint pursuant to
section 42-2-138(1)(d), if the person has been convicted under the laws
of this state or under the laws of any other state, the United States,
or
any territory subject to the jurisdiction of the United States, of an
act
that, if committed within this state, would constitute the offense of
DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to
section 18-3-106(1)(b), C.R.S., vehicular assault pursuant to section
18-3-205 (1)(b), C.R.S., aggravated driving with a revoked license
pursuant to section 42-2-206(1)(b) (I) (A) or (1)(b) (I) (B), or driving
while the person's driver's license was under restraint pursuant to
section 42-2-138 (1)(d). |
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(b) |
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(I) For sentencing purposes
concerning convictions for second and subsequent offenses, prima facie
proof of a person's previous convictions shall be established when: |
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(A) The prosecuting attorney and the
person stipulate to the existence of
the prior conviction or convictions; |
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(B) The prosecuting attorney presents to the court a copy of the
person's
driving record provided by the department of revenue or by a similar
agency
in another state, which record contains a reference to the previous
conviction or convictions; or |
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(C) The prosecuting attorney presents an authenticated copy of the
record
of the previous conviction or judgment from a court of record of this
state
or from a court of any other state, the United States, or any territory
subject to the jurisdiction of the United States. |
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(II) The court shall not proceed to immediate sentencing if the
prosecuting attorney and the person have not stipulated to previous
convictions or if the prosecution has requested an opportunity to obtain
a
driving record or a copy of a court record. The prosecuting attorney
shall
not be required to plead or prove any previous convictions at trial. |
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Attorney
Notation.
Absent stipulation of the defendant, out of state records raise
constitutional issues of full faith and credit - exemplification of the
record rather than certification, photocopy, printout from web based DMV
sites or law enforcement CCIC or NCIC printouts. The statute is
silent and does not specify the type of record required to prove prior
conviction. The difference could be significant and is subject to
legal
research. This issue may require
appellate decision. |
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GUSTAFSON LAW OFFICE
SENATE BILL 01S2-008 EFFECTIVE DATE: SEPTEMBER 25, 2001
as amended
SYNOPSIS - BAC .20 OR GREATER
STATUTORY SENTENCING REQUIREMENTS
CRS
42-4-1307 * EFFECTIVE DATE: 2010 |
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statutory
sentencing ranges apply to trial verdict, guilty plea, nolo contendere plea, deferred prosecution and deferred sentence agreements
except that a person shall not be deemed to have been convicted if the
person has successfully completed a deferred sentence or deferred
adjudication
CRS
42-4-1307(2)(a) |
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SYNOPSIS - BAC .20 OR GREATER |
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If a conviction enters to DUI or DWAI and the BAC is 0.20 grams of alcohol
per 210 liters of breath or 0.20 grams of alcohol per100 ml blood as
tested within 2 hours of driving, then the defendant must be sentenced
under the sentencing provisions for DUI.
CRS 42-4-1307
The initial charge is irrelevant, and
lack of prior conviction or clean prior history simply doesn't matter.
The Colorado legislature has sent a clear message - if you drink to the
point of intoxication such that your blood alcohol level is .20 or greater
and thereafter drive a vehicle or operate a boat or ride a bicycle, then
you have trouble coming your way. |
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10 days mandatory
minimum which the court may not suspend up to 1 year presumptive jail
range
court can grant
sentencing
alternatives upon condition that the
defendant undergoes an alcohol evaluation and alcohol education /
therapy treatment,
$1,000 - $1,500 fine
public service hours have been reduced to the same as
if a BAC .199 or below |
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Statutory definition amendment
contained in
CRS
42-4-1307(2)(a) makes it
patently clear that excessive
alcohol mandatory DWAI sentencing enhancer
applies to a deferred prosecution or deferred sentence, as well as plea of nolo
contendere (no contest).
Useful public service must be
imposed even if the defendant is granted a deferred prosecution or deferred
sentence.
CRS
42-4-1307(2)(a)
Refer to
prior offense includes
which includes an out
of state alcohol traffic conviction which under a law which is similar to
Colorado
DWAI,
DUI,
DEAC,
DUR,
or
DARP .
If a defendant is convicted of
DWAI,
DUI,
DEAC 2nd and the offense occurred within 5 years of each
other, an interlock probationary driver's license as provided in
CRS
42-2-132.5
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INDEPENDENT SERVICE PROVIDERS
private investigators * process service
* laboratories * transcription
refer to attorney-client privilege and attorney work product doctrine |
ADVICE
BY LAYMEN
forewarned is forearmed
advice by unsupervised paralegals
& street corner lawyers |
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feel free to call or email if you are a client or are seeking representation |
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INITIAL CONSULTATION TERMS
not an offer for legal advice - refer to link
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter |
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PRIMARY WEBSITE |
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GUSTAFSON LAW OFFICE TOPICAL
WEBSITES |
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Serving Colorado Springs Area Zip
Codes |
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Website Copyright © 2003 -
All Rights Reserved - Document Revised
January 30, 2012
mountains photo image, attorney photo image & law office logo copyright ©
Robert D. Gustafson - all rights reserved - no copyright claimed to other images
Website Initial Publication Date: October 18, 2003 - Republication Date:
July 22, 2011 |
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