(1)(a)Any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, habitual user, or UDD is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than five days nor more than six months, and, in the discretion of the court, a fine of not less than fifty dollars nor more than five hundred dollars may be imposed. The minimum sentence imposed by this paragraph (a) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine under this paragraph (a); but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this paragraph (a) because of an emergency, the mandatory jail sentence or the fine, if any, shall not apply, and the court may impose a sentence of imprisonment in the county jail for a period of not more than six months and a fine of not more than five hundred dollars. Such minimum sentence need not be five consecutive days but may be served during any thirty-day period.
 
(1)(b) Upon a second or subsequent conviction under paragraph (a) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said paragraph (a) of this subsection (1), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver's or minor driver's license or extended any driving privilege in this state for a period of three years after such second or subsequent conviction.

DEFINITIONS - COLORADO STATE COURTS

CRIMINAL PENALTY
        FINE:  Minimum $50 - Maximum $500
        JAIL:  Mandatory minimum 5 days - 6 months maximum
                " the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an emergency"
                CRS 42-2-138

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

        Colorado driver's license or Colorado driving privileges have been revoked or denied as a result of DOR ruling that the driver is an habitual traffic offender.  For information regarding the habitual traffic offender process, refer to Habitual Traffic Offender   Habitual offender criteria: CRS 42-2-202

        Defendant has been arrested for allegedly operating a motor vehicle during a period his / her Colorado driving privileges have been revoked or denied as habitual traffic offender.

        (1)(a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
                (II) Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation.  Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II).

DEFINITIONS - COLORADO STATE COURTS

CLASS 1 MISDEMEANOR CRIMINAL PENALTY
        FINE:  Minimum $500 - Maximum $5,000
         JAIL:  
                Presumptive Term:  6 months minimum to 18 months maximum
                Mandatory Minimum:  Jail Term - 30 days / Fine - $3,000
                " Notwithstanding the provisions of CRS 18-1.3-501, any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in CRS 18-1.3-501, The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation. Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II)."
                CRS 42-2-206(1)(a)(II), CRS 18-1.3-501, CRS 18-1-106

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation conviction or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
                This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
                The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
                This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
                CRS 42-2-138
        Conviction of a major offense with two prior major offense convictions within seven years meets the statutory criteria for habitual offender status finding and revocation for an additional five years to run consecutively (back to back) from any other license loss.  So long as convictions remain within the relevant statutory period, they may be used each time a new conviction enters.
        Driver is afforded notice, hearing and an opportunity to be heard.  Refer to habitual offender.

        (1)(a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
                (II) Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation.  Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II).
            (b) (I) A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses:
                    (A) Driving under the influence, as described in section 42-4-1301(1)(a);
                    (B) Driving while ability impaired, as described in section 42-4-1301(1)(b);
                    (C) Reckless driving, as described in section 42-4-1401;
                    (D) Eluding or attempting to elude a police officer, as described in section 42-4-1413;
                    (E) Violation of any of the requirements specified for accidents and accident reports in sections 42-4-1601 to 42-4-1606; or
                    (F) Vehicular eluding, as described in section 18-9-116.5, C.R.S.
                (II) Aggravated driving with a revoked license is a class 6 felony, punishable as provided in section 18-1.3-401, C.R.S.
        (2) For the purpose of enforcing this section in any case in which the accused is charged with driving a motor vehicle while such person's license, permit, or privilege to drive is revoked or is charged with driving without a license, the court, before hearing such charges, shall require the district attorney to determine whether such person has been determined to be an habitual offender and by reason of such determination is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that the accused has been so held, the district attorney shall cause the appropriate criminal charges to be lodged against the accused.

        Felony cases are similar to misdemeanor procedures, except for a few differences.  The defendant is advised in County Court, then in El Paso County the case is transferred to District Court for advisement about a week later.  All proceedings transpire in District Court.  In other counties, preliminary proceedings may be held in County Court, and the case is transferred to District Court at a later time.

        In felony cases, proceedings are held in the division courtroom; the First Appearance Center is not utilized for felony matters.  No specific dates are set for negotiation between a Deputy DA and defense counsel or defendant as happens in misdemeanor cases (pre-trial conference.)  The court may set a case over for further proceedings, and negotiations are frequently conducted at the District Attorney's Office or by phone.  On the return date, the parties advise the court of status (settled, settlement pending or disposition unlikely.)  The court will then set another further proceedings uncontested court date, or will set motions hearing and trial dates.  Negotiations will likely be affected by the strengths or weaknesses of the District Attorney's case and what efforts, if any, defendant has made toward useful public service and / or traffic safety class or other remedial measures, although those defendant remedial efforts are less likely to have an impact on a felony disposition than on a misdemeanor disposition. 

        DARP is not sufficiently serious to merit a preliminary hearing.  Contested cases are therefore set for motions hearing and jury trial.  In a felony case, a defendant is entitled to a jury of 12 whereas a misdemeanor is entitled to 6 jurors at the most.

        In both felony and misdemeanor offenses, at trial the prosecutors must prove each and every element of the offense charged beyond a reasonable doubt, and the jury must return a unanimous verdict.  Misdemeanor offenses carry county jail as a possible consequence.  Felony offenses carry state penitentiary longer periods of incarceration as a possible consequence.

BAIL BOND PENDING FINAL DISPOSITION - read the statutes - it's real
        Persistent Drunk Driver Statutes (PDDS)
        Suspect must be booked into jail
        Suspect must be held overnight until advised by a judge
        Statutory bail bond is $10,000    CRS 16-4-103(b) 
        Premium to a bondsman would be $1,500, plus collateral for the bond is likely.
        CRS 42-1-102, CRS 16-4-103, CRS 12-7-108
        PDDS is relatively new and many law enforcement officers are as yet unaware

Relevant Statutes

PENALTY AGAINST DRIVING PRIVILEGES
        Any moving violation conviction or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

        Conviction of a major offense with two prior major offense convictions within seven years meets the statutory criteria for habitual offender status finding and revocation for an additional five years to run consecutively (back to back) from any other license loss.  So long as convictions remain within the relevant statutory period, they may be used each time a new conviction enters.
        Driver is afforded notice, hearing and an opportunity to be heard.  Refer to habitual offender.

        If a person who was determined to be habitual traffic offender is caught driving before reinstatement, he or she will be charged with driving after revocation prohibited.  Depending upon the circumstances at the time of the stop, that may be:

        Misdemeanor charge -county jail possible:   (current charge non-aggravated)
                Presumptive county jail 6 months minimum to 18 months maximum
                Mandatory minimum jail term  30 days / Fine $3,000
                        Can be suspended with 40 - 300 hours public service
                Presumptive fine $500 - $5,000
                CRS 42-2-206(1)(a)(II), CRS 18-1.3-501, CRS 18-1-106

        Class 6 felony punishable:  (current charge aggravated alcohol related, reckless driving, eluding or hit & run)
                Presumptive Colorado Department of Corrections (penitentiary) minimum incarceration 
                        1 year to presumptive maximum 1 ½ years
                Mandatory minimum jail term:  none
                Fine $1,000 - $100,000
                CRS 42-2-206(1)(b), CRS 18-1.3-401, CRS 18-1-105, CRS 18-1-105(9.5)

1. DMV failed to provide lawful notice of adverse action and defendant didn't have actual knowledge

2. Lack of reasonable suspicion for initial contact by the law enforcement officer

3. Lack of probable cause for arrest or seizure of the defendant's person

4. Defendant's admissions the result of undue influence, duress and coercion - due process violation

5. Defendant's admissions taken in violation of
           5th Amendment privilege against self incrimination
           6th Amendment right to legal counsel

6. Alleged offense did not occur on public roadway or highway
           Private land won't convict
           A farmer plowing his field isn't in trouble until he enters or crosses the roadway
           Are shopping mall parking lots, etc. public or private? - ah ha! - now I get it

7. Identity error
           Defendant was not the person suspended, revoked or denied - 
           Proper adverse ruling, but applied to the record of the wrong individual
           DMV suspended the wrong "John Jones" or "Sam Smith" - identity error in ruling
           A third person, not defendant, was driving a motor vehicle

8. Reasonable doubt - state can not prove
           Adverse action had been taken against the defendant
           Defendant was the person driving 
           Defendant's actions constituted "driving"

9. Collateral attack  - refer to link for information
           Attack convictions underlying the DMV adverse action
           Attack the DMV adverse action ruling

10. Jurisdictional attack  - refer to link for information
            Attack the jurisdiction of the court in the pending criminal case

11. When all else fails:
            Trial lawyer's adage:
                If the facts are on your side - pound the facts.
                If the law is on your side - pound the law.
                If neither the facts nor the law are on your side - pound the table !
                        And if that fails ----
                        Flip Wilson quote: "the devil made me do it"

Sentencing Information:  DUR offenses carry mandatory jail.  The court may impose jail, fine, court costs and prosecution costs as provided by statutes.  Law requires every defendant make restitution (make the victim whole).  As a condition of probation, the court may also impose any other condition reasonably related to rehabilitation.  e.g. traffic safety class, useful public service, or if an alcohol related factual basis, alcohol education or therapy, Alcoholics Anonymous - AA Meetings, Rx disulfiram (antabuse) and monitored abstinence or drug treatment.  Points are assessed for traffic offenses.  Based upon points reported by the court, the DMV may take adverse action against Colorado driving privileges.  DUR carries no points, just one additional year loss of license which must run consecutive (back to back) with any other license loss.  Habitual offender status may even be a possibility - that can occur from too many speeding or other minor infraction tickets.  DUR is a major violation for purposes of the habitual offender statute.  Regarding alcohol related basis for underlying license loss, refer to vehicle forfeiture - new legislation pending.

Preparation for Sentencing.
        In a criminal traffic case, counsel looks for facts which may lead to dismissal of charges or not guilty verdict. Plea negotiations are affected by weaknesses in the DA's case.
        "Shoot for the best - plan for the worst."  It is also wise to plan for other contingencies; conviction of an offense or infraction.  Anticipating you may subsequently face a judge, to prepare for the most favorable sentencing result a defendant should immediately commence 100 hours useful public service and a Level B or Level II traffic safety class.  That will also aid negotiations.

        Each statute makes reference to mandatory jail, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an "emergency."  

        What's this "emergency" stuff all about - who must prove, by how much evidence, what does it mean, who decides if it really is an emergency, and what effect will that have on sentencing?  

        A defendant has the right to have the state prove every element of an offense beyond a reasonable doubt. However, the fact of emergency has no bearing on the establishment of the offense. Its sole significance is in determining whether an otherwise mandatory sentence may be suspended or probation granted. 

        Defendant must prove the existence of an emergency by a preponderance of the evidence.  Information with respect to an alleged emergency is peculiarly within the knowledge of the defendant. The Colorado Supreme Court has concluded that to require the defendant to prove emergency does not shift the burden of proof with respect to any fact essential to the offense charged contrary to the dictates of due process of law. 

        The due process test for vagueness is commonly expressed as whether a statute describes prohibited conduct in terms such that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.   "Emergency" has a sufficiently well understood common meaning within the context of driving under restraint to be applied by judge or jury without violating due process rights of the defendant.

        Existence of an emergency does not affect the criminality of the conduct and is not as a part of the issue of guilt at trial on driving under restraint.  It does, however, have a substantial effect on the trial court's discretion in sentencing. The trial judge at sentencing hearing will make the determination regarding the existence of an emergency, not the jury at trial.

        Even if an emergency is established, the court retains the discretion to deny probation and suspension of sentence and to impose any sentence of confinement authorized by statute. Thus the penalty range is not automatically revised by establishment of an emergency.  Stated another way, the judge is no longer required to impose jail or penitentiary time, by may do so - it's the judge's call.

        People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (Colo. 1980)

            Note:  Mr. McKnight's driver's license was revoked as an habitual offender for a period of 5 years on the basis of 3 alcohol traffic convictions with 7 years - he was age 67 at the time.  He was arrested for a 4th DUI and charged with a DARP prior version - driving after judgment prohibited CRS 42-2-206 class 5 felony. Mr. McKnight appealed from a penitentiary sentence of an indeterminate term not to exceed five years.  Tough sentence on an old man who claimed he drove for an "emergency" to get his invalid wife medicine.  Case citations in this website appear quite impersonal, but they represent real people with real problems.  DUR / DARP are serious matters.