Driving Under Restraint
Home Up

 

GUSTAFSON LAW OFFICE
COLORADO SPRINGS DRIVING UNDER RESTRAINT DEFENSE
COLORADO SUSPENSION, REVOCATION OR DENIAL

WELCOME Phone (719) 260-1002 Fax (719) 260-1003 

perhaps I will become your attorney
Address  *  Maps  *  Directions
 

Robert D. Gustafson  *  Attorney at Law  *  Colorado Springs
Business Hours  *  Attorney Availability  *  Trade Area
 
Toll Free (800) 410-1002
 
 
COLORADO SPRINGS DRIVING UNDER RESTRAINT DEFENSE
COLORADO SPRINGS DRIVING UNDER SUSPENSION - DUS
DRIVING UNDER REVOCATION - DUR
DRIVING UNDER DENIAL - DUD
DRIVING AFTER REVOCATION PROHIBITED - DARP
Colorado traffic & criminal trial practice 25+ years Colorado State Courts & Colorado Springs Municipal Court
GENERAL INFO RIGHT TO SILENCE SEARCH & SEIZURE BAIL BOND DEFINITIONS
COURT PROCEEDINGS - MISDEMEANOR COURT PROCEEDINGS - FELONY
DRIVING UNDER RESTRAINT PENALTY
NON ALCOHOL
Suspension, Revocation or Denial
DRIVING AFTER REVOCATION PROHIBITED PENALTY
HABITUAL OFFENDER
Suspension, Revocation or Denial
DRIVING UNDER RESTRAINT PENALTY
ALCOHOL
Suspension, Revocation or Denial
DARP NOT AGGRAVATED
NEW OFFENSE DOES NOT INCLUDE
alcohol, reckless driving, eluding, or hit & run
DRIVING UNDER RESTRAINT PENALTY
INSURANCE TERM REVOCATION
Failure to Carry SR-22 Insurance
DARP AGGRAVATED
NEW OFFENSE DOES INCLUDE
alcohol, reckless driving, eluding, or hit & run
DUR & DARP PENALTY
Emergency - Jail Avoidance
VEHICLE FORFEITURE
Legislative Debate
RELEVANT STATUTES
Charges & DMV Actions
ATTORNEYS FEES AND COSTS DO I NEED AN ATTORNEY? SERVICE PROVIDERS
ATTORNEY POLICIES
 Cases Outside Colorado Springs - Travel
No Pro Bono Assistance  *  No Installment Payment
 Legal Advice Limited to Clients - Not General Public
Representation Now - Another Attorney or Self
Attorney Representation & Declined Matters
No Post Sentencing - Revocation or Appeal

Colorado Springs

FIRST CONSULTATION - NOTICE

El Paso County

Attorney welcomes representation inquiries however the purpose is not to provide free legal advice to the general public.  Unless seeking to retain counsel, please do not email or call.  Attorney does not provide legal opinions, answers or information in response to questions submitted from non-clients, & attorney is not the phone company 411 center for phone number information.  Given the scope of internet accessibility, I can not be the free "Colorado answer man" and will politely decline such requests.

Driving under restraint cases occur across Colorado - please refer to attorney travel. Travel Policies & Trade Area *  Itemized Travel Expenses *  Colorado Map
common fees have been quoted and information provided
attorney is prepared to provide legal representation
attorney comparison is understandable, but before calling
please be prepared to retain if I am counsel of your choice
  

TRAFFIC DEFENSE

DUI - DWAI - DEAC  *  Driving Under Restraint  *  No Operator's License  *  Speeding DMV DEFENSE DMV Appeal
Speed Contest - Drag Racing  *  Eluding Police  *  Hit & Run  *  Compulsory Insurance License Hearings * Point Structure * Forms
Reckless Driving - Careless Driving  *    *  Weaving - Roadways Laned for Traffic Habitual Offender  *  Interstate Compact
Minor - Alcohol Red Light - Stop Sign  *  Traffic Definitions  *  Traffic Infraction vs. Crime  *  Traffic Cameras Insurance SR-22 Interlock  Driving Records

 

Colorado Driving Under Restraint DUR & Driving Under Suspension DUS & Driving Under Denial DUD and
Driving after Revocation Prohibited DARP - Colorado Springs traffic & criminal defense attorney

Adobe Acrobat Reader version 5 or later is required to view .pdf files    Free Download

GENERAL INFORMATION

If your license is presently suspended, revoked or denied, there is very good reason to immediately stop driving until you are reinstated, in possession of a valid license and properly insured.

        If a defendant is presently charged with driving under restraint and is currently eligible to reinstate and obtain a valid license it is advisable to do so immediately.  Passage of time and being eligible for reinstatement is insufficient.   A DMV suspension, revocation or denial order is for a time certain, but continues forever until the driver takes affirmative action to become reinstated and licensed or obtain a DMV clearance letter.  Every driver should act immediately before incurring additional criminal charges.

RIGHT TO REMAIN SILENT

NO STATEMENTS
LAW ENFORCEMENT * PROSECUTORS * THIRD PERSONS

        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

SEARCH & SEIZURE DEFENDANT DEMEANOR

DRIVING UNDER RESTRAINT DEFENSE
DRIVING AFTER REVOCATION PROHIBITED

 
COURT PROCEEDINGS
 
TRAFFIC - MISDEMEANOR OFFENSE

Also refer to less serious charge NOL - No Operator's License

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138

State Court Traffic Offense - Information & Procedures
court costs $18 + victim compensation fund "sin tax" would be in addition to the fines

State Statutes - CRS  
Adult  
CRS 42-4-1701 Traffic Offenses & Infractions Classified - Penalties
CRS 42-2-127 Authority to Suspend or Deny License - Type of Conviction - Points
Minors   
CRS 19-2-104(1)(a)(I) County court and district court concurrent jurisdiction with juvenile court
CRS 19-2-104(1)(a)(I) State traffic violations - minor treated as an adult
CRS 42-4-1706 Detention to be in a juvenile facility

1. Jail.  Driving under restraint traffic offenses are misdemeanor criminal charges and carry mandatory jail in addition to fine, court costs, points and other conditions as may be specified by statute or are reasonably related to rehabilitation.  Statutory minimum and maximum amounts of jail depend upon whether alcohol (DUI, DEAC or DWAI ) conviction entered in any offense underlying the suspension, revocation or denial.  See below explanations. 

2. BAIL BOND.  If you were booked into jail, you have likely bonded since you are looking at this webpage.  Alternatively you have a loved one currently sitting in jail shortly after an arrest.  Pending trial, the fasted way to get out of jail is to procure a bail bond.  Refer to the BAIL BOND page for additional information.

3. Court Appointed Counsel
        a.  If jail may be imposed for any period, including offenses less than 6 months jail, the state has an obligation to appoint an attorney for an indigent (poor) defendant.  An indigent defendant has a constitutional right to appointed counsel "only when, if he loses, he may be deprived of his physical liberty."  Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972 (petty offense case); see also Stern v. County Court, 773 P.2d 1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of crimes if imprisonment may be imposed).
        b.  The defendant may not choose his / her own lawyer.  When an appointment is made, the court appoints the Public Defender's Office and if there is a conflict due to multiple defendants, the court a member of the private defense bar who has contracted with the state for court appointments.
        c.  If the prosecutor waives jail, the state's obligation to provide counsel is negated.  When an indigent defendant is not actually sentenced to a term of imprisonment, due process does not require the appointment of counsel.  See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).  This could happen by reduction of the charge and waiver of jail by the prosecution.

4. First Appearance.  
        a.  The ticket is the charging document and advises defendant of the charges filed.  The ticket contains a date and time defendant must appear in court for first appearance, where defendant will be advised of the nature of the charges and possible penalties.  At that time defendant will also be asked how he / she wishes to proceed with his / her case.  If defendant fails to appear, a warrant will be issued for his / her arrest.  If this office has been hired, the attorney will take care of the first appearance for the client, and the client need not appear in Court unless I notify the client.
        b.  We are all human - periodically the law enforcement officer(s) make(s) an error on the summons.  Some errors are sufficient to deprive the court of jurisdiction to hear the case.  If an error exists, it may be worth making a big ta-do because it may result in dismissal or a more favorable plea offer.

refer to the jurisdictional attack page

Officer Failure to Issue (Sign) Failure to Serve Summons
Identification Error Arrest or Obtain Promise to Appear
Failure to Timely File Statutory Citation Error
20 Days Notice - Alcohol Offenses 30 Days Notice - Infractions
Appearance Weekend, Holiday - Court Not Open Appearance Date - Year Blank
Appearance Precedes Summons In Futuro Offense - Offense Alleged on Future Date
No Date of Offense Failure to Join in Single Prosecution
Statute of Limitations Alleged Offense within Venue
Other Jurisdictional Arguments Other Arguments
 
5. 
Entry of Plea & Demand for Trial.  
        a.  In El Paso County, initial appearance hearings are held in the First Appearance Center.  The case then transfers to a judge's division.
        b.  Under the speedy trial rule, trial must be provided within 6 months from entry of not guilty plea.

        Speedy & Public Trial: C.R.Crim.P. 48(b), CRS 18-1-405, Article II Section 16 of the Colorado Constitution and Amendment 6 to the U.S. Constitution.  See also 4th, 5th & 14th Amendments to the U.S. Constitution, and Article II, Sections 7, 18 & 25 of the Colorado Constitution

        Speedy trial commences on the date of filing the not guilty plea. Harrison v. District Court, 192 Colo. 351, 559 P.2d 225 (1977), Rodman v. Adams County Court, 694 P.2d 871 (Colo. App. 1984).  This can become important as to speedy trial expiration if the case is transferred to division and advisement + oral not guilty plea is delayed.

        c.  Demand must be made for jury trial:
1.  Misdemeanor offense cases - not guilty plea entered

        a.  Jury trial is free if jail may be imposed in excess of 6 months upon conviction of any charge..

        b.  If potential jail is limited to 6 months or less for each charge, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Although local county court judges will likely grant a jury demand without payment of the jury deposit, absent timely jury deposit payment,  prosecutors may take the issue to the district court seeking a writ of prohibition.  In the likely event of adverse ruling, subsequent jury deposit payment would be outside the 10 day limitation and jury trial right would be lost.  This attorney will timely pay the jury deposit to avoid the issue and preserve the client's right to jury trial.

        c.  Standard number of jurors is 6, defendant may request 3 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406

2.  Petty offense cases - not guilty plea entered

        a.  Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. Robran v. People, 173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (Colo. 1969)

        b.  There is no constitutional right to a jury trial for a petty offense.

        c.  The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine. 

        d.  Based upon statutory limitations of potential jail not more than 6 months, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Refer to ¶3(c)(1) above regarding timely payment.

       e.  Standard number of jurors is 3, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406  Counsel requests 6 jurors.

        d.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.
 

6. No Pre-Trial Conference.  Pursuant to Colorado Supreme Court Chief Justice Directive 08-05 (benchmarks) which pertains to delay prevention, performance review of judges and retention (judge's jobs), in May, 2008 the courts in El Paso County again changed policy.  DUI, traffic offense and misdemeanor cases are no longer set for pre-trial conference.  At the time of first appearance, attorney cases are now set for contested proceedings - subpoena duces tecum return, motion hearing, readiness hearing and jury trial.  Courts will not set motions hearing absent filing of a motion, therefore an initial motion to suppress will be filed with entry of appearance.  Prior to contested hearing dates, the defense attorney may negotiate with prosecutors to discuss possible alternatives and attempt to reach an agreement to dispose of the case.  This is called plea bargaining. Clients have inquired "What's a deferred sentence?"  Refer to the link for information.  Are prosecutors concerned with their statistics? If a plea bargain is obtained which is acceptable to the client, the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case is set for motion hearings or trial, or both. Locally the courts require a defendant's presence unless an out of state resident.  Offer of flat dismissal is unlikely in most cases.  The goal is to procure a disposition with which the defendant can live, e.g. not going to jail or not losing the driver's license, or perhaps a deferred sentence to a lesser charge which would not be reflected on the consumer driving abstract.  Other than flat dismissal or not guilty verdict, deferred sentence to a lesser charge is the only disposition which will avoid one additional year loss of driving privileges. If a plea bargain is obtained which is acceptable to the client, contested hearings are vacated and the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case continues to contested hearings and trial.  Locally the courts require a defendant's presence unless an out of state resident. 

        a.  Local courts are setting trial dates 60 days out from initial appearance - similar to domestic violence fast track.  This is a form of docket control for the courts.  Convenient for those who set policy, but in fairness, El Paso County Court is inundated with cases.

        b.  This court policy places a heavy burden upon defense counsel and defendants.  Plea negotiations should not take place until the attorney has an understanding of the case - receipt of a copy of the DA Office file (which includes summons & complaint(s) law enforcement officer notes and reports, accident report, Colorado driving record & witness list), plus client factual interview and receipt of driving records.  If an alcohol charge is alleged, discovery to be procured includes roadside sobriety checklist, lab reports, DOH lab certifications and defense counsel blood BAC re-test by independent laboratory.  If a driving under restraint charge is included, discovery to be procured includes a DMV discovery packet & file.  This takes time.  If the case can not be settled, a very short window exists for investigator interviews and for counsel to file supplemental motions & briefs, witness endorsements, exhibit endorsements, jury instructions, and theory of defense.  The court may not grant continuance of hearings.

        c.  Even though contested proceedings are set, attorney settlement fees may be quoted.  If the client rejects the plea offer, trial fees and costs will be due at the time client elects to proceed to trial - no exceptions.  Cases will proceed to jury trial within 2 months from initial court appearance.  Be aware of this very short window of time.  Counsel will approach cases outside of El Paso County similarly.

        d.  Given the short amount of time between initial appearance and trial setting, this attorney would prefer to prepare each case for trial at the outset.  Since this is a new policy, counsel will give it an opportunity to see how timing works, but the court policy may simply result in the need for trial preparation in each case at the time of representation commencement.  Settlement fees may become a thing of the past.

7. Motions Hearings.  Counsel may file any of several motions available.  Traffic most common motions:

        a. Discovery Motion. This is a request to discover information in order to prepare an adequate defense
        b.
Motion in Limine. This is a motion to exclude evidence from trial on the basis of evidentiary or statutory grounds.  If DUI, DEAC or DWAI is also charged, an example would be a breath or blood test which is not defendant's but mislabeled; and which could prejudice the jury without having any importance on the issue of guilt or innocence.  Another example would be an attack upon a radar gun which was not property maintained, operated or tested by tuning forks if speeding were also charged.  Unreliable DMV notice mailing log books could also by the subject of a motion in limine.
        c.
Motion to Suppress. This is a motion to exclude evidence from trial on the basis of violation of constitutional rights.  An example would be a random stop for the purpose of an evidentiary fishing expedition.  Absent probable cause (reason to believe defendant engaged in a crime) for the stop or arrest, evidence obtained therefrom may not be used against defendant.  Similarly, forced confessions or statements may not be used.  There are many other arguments which may be available in traffic cases.  With limited exceptions, defendant must be present in court for motion hearings.

8. Trial.

        At a trial, guilt or innocence ill be determined, and it must be decided unanimously (all jurors agree).  Every defendant has the right to a trial by jury of 6 persons, or to the judge alone.  The right to trial by jury should never be waived (given away) without advice of counsel; it is an important right.  At trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt.  Every defendant is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt.  Every defendant may remain silent, or may testify if he / she chooses. Defense may call witnesses and make them come to court by subpoena.  Every defendant may confront and cross-examine witnesses against him / her.  A trial on a traffic offense charge is a criminal trial with all rights attached. If defendant is found not guilty, the case is concluded.  If defendant is found guilty of any charge, including a lesser charge (e.g. reckless driving charge convicted of careless driving), the case is set for sentencing.  Defendant must be present in court for a trial.  Under some circumstances, the court may proceed to trial without the presence of the defendant, but that's a bad idea from defense perspective.

9. Sentencing:  DUR offenses carry mandatory jail - see below.  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.

10. 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.

****************************** ****************************** ******************************

COURT PROCEEDINGS - FELONY OFFENSE

        Felony cases are similar to misdemeanor procedures noted above, 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, 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.

DRIVING UNDER RESTRAINT DEFENSE
 
PENALTY
DRIVING UNDER RESTRAINT
 
TRAFFIC - MISDEMEANOR OFFENSE

Also refer to less serious charge NOL - No Operator's License

SUSPENSION * REVOCATION * DENIAL NOT ALCOHOL RELATED
driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138

        Colorado driver's license or Colorado driving privileges are suspended, revoked or denied as a result of conviction of non-alcohol related offenses, and the driver is subsequently arrested on a charge of driving under restraint - suspension, revocation or denial:

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

DRIVING UNDER RESTRAINT DEFENSE
 
PENALTY
DRIVING UNDER RESTRAINT
 
TRAFFIC - MISDEMEANOR OFFENSE

Also refer to less serious charge NOL - No Operator's License

ALCOHOL RELATED SUSPENSION * REVOCATION * DENIAL

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138

        Colorado driver's license or Colorado driving privileges are suspended, revoked or denied as a result of conviction of alcohol related offenses, and/or driving privileges have been revoked for excessive alcohol content or refusing a chemical test and the driver is subsequently arrested on a charge of driving under restraint - suspension, revocation or denial:

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

CRIMINAL PENALTY

FINE:  Minimum $500 - Maximum $1,000
        JAIL:  Mandatory minimum 30 days - 1 year 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 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

****************************** ****************************** ******************************

VEHICLE FORFEITURE
legislative debate

        On January 12, 2005 Senate Bill 05-018 was introduced into the Colorado State Legislature which would have resulted in forfeiture of a defendant's vehicle under the following circumstances.

  1. Driving under restraint conviction, CRS 42-2-138 (charges not uncommon in conjunction with DUI)

  2. Prior license revocation under CRS 42-2-125 arising from one or more below convictions:
            Vehicular homicide involving alcohol or drugs
            Vehicular assault involving alcohol or drugs
            Driving under the influence of a controlled substance or while habitual user of substance
            DUI, DWAI or DEAC second within 5 years
            DUI, DWAI, DEAC or "baby DUI" by person under age 21
            DUI, DWAI or DEAC 3rd or subsequent within a lifetime

        As written, the bill did not require a separate forfeiture action, but would have permitted the court, upon prosecutorial request, to order forfeiture at sentencing or as a condition of deferred sentence.  Absent a separate forfeiture proceeding, nuisance allegation, notice and opportunity to be heard, it is likely the law would have been challenged in the Colorado appellate courts - particularly in light of the monetary value of motor vehicles.  Jurisdictional limits of county court may also have been an issue.  Be that as it may, no defendant wants to make new appellate law - that's expensive.  This proposed forfeiture law applied to an owner - operator, or vehicles not owned by the operator if the owner gave consent for the operator to drive.  The proposed law didn't place any burden on the state to establish that the separate owner had knowledge of the operator's consumption of alcohol or sobriety, merely that the separate owner gave permission for the operator to drive the vehicle.  Put another way to be clear in layman terms, forfeiture is an involuntary give away of your motor vehicle.  On April 29, 2005 the bill was postponed indefinitely in the House Committee on Judiciary.

        When the family car transportation is lost as an adjunct to alcohol, job loss and dissolution of marriage are foreseeable potential collateral consequences.  The Colorado legislature is getting tough on alcohol related traffic offenses, and has considered delving painfully deep into the pocket book of offenders.  This may have been an attempt to fill the state coffers, may have been in response to "Fatal Fall 2004" underage alcohol deaths or may have been an attempt to deter alcohol related traffic injuries and fatalities.  Regardless of the legislature's motive, forfeiture would be an enormous revenue source for the State of Colorado.  Similar to the large cigarette tax hike approved by voters in 11/04 elections, vehicle forfeiture may be publicly perceived as a significant "sin tax" and therefore the issue may arise again.

PENALTY
DRIVING AFTER REVOCATION PROHIBITED - DARP
HABITUAL OFFENDER SUSPENSION, REVOCATION OR DENIAL

        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

        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.

****************************** ****************************** ******************************

DRIVING UNDER RESTRAINT DEFENSE
 
PENALTY - DARP
DRIVING AFTER REVOCATION PROHIBITED
 
TRAFFIC - MISDEMEANOR OFFENSE

STATE COURTS
County Court  *  El Paso County

 

HABITUAL OFFENDER
REVOCATION OR DENIAL

NEW OFFENSE
DOES
NOT INCLUDE ALCOHOL * RECKLESS DRIVING * ELUDING * HIT & RUN

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138
 

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

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.

****************************** ****************************** ******************************

DRIVING UNDER RESTRAINT DEFENSE
 
PENALTY - DARP
DRIVING AFTER REVOCATION PROHIBITED
 
FELONY OFFENSE

STATE COURTS
District Court  *  El Paso County

 

HABITUAL OFFENDER
REVOCATION OR DENIAL

NEW OFFENSE DOES INCLUDE ALCOHOL * RECKLESS DRIVING * ELUDING * HIT & RUN

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138
 

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

CLASS 6 FELONY CRIMINAL PENALTY
        FINE:  Minimum $1,000 - Maximum $100,000
        PRISON:  
                Presumptive Term:  Minimum incarceration of 1 year to the Colorado Department of Corrections (penitentiary) to presumptive maximum 1 2 years
                Aggravated Term:  Presence of statutory aggravating factors may cause mandatory minimum sentence to be 1 year 3 months up to maximum of 3 years
                Mandatory Minimum:  Jail Term - none provided / Fine - none provided
                "Aggravated driving with a revoked license is a class 6 felony, punishable as provided in section CRS 18-1.3-401"
                Individual sentenced pursuant to CRS 42-2-206(1) may be considered for community correctional program. People v. Scott, 200 Colo. 365, 615 P.2d 680 (1980).
                CRS 42-2-206(1)(b), CRS 18-1.3-401, CRS 18-1-105, CRS 18-1-105(9.5)
        Prosecutors may offer a favorable plea disposition if the defendant pleads straight up to the felony, including minimal or no county jail.  Tempting as it sounds, the problem with that type of a driving under revocation prohibited disposition is that the person is on probation for a felony - a significant sentencing enhancer - black widow waiting in the web waiting for defendant to drive again.
                CRS 18-10105(9) (a)  The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony.  That's 1 year, 3 months - 3 years state penitentiary time.
                        (III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony.
                CRS 18-1.3-401(8) (a)  The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony.  That's 1 year, 3 months - 3 years state penitentiary time.
                        (III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony.

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.

****************************** ****************************** ******************************

DARP OFFENSE & CLASSIFICATION STATUTE

CRS 42-2-206. Driving after revocation prohibited.     State Statutes - CRS
        (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.

DEFINITIONS - COLORADO STATE COURTS

****************************** ****************************** ******************************

SUMMARY

        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)

DRIVING UNDER RESTRAINT DEFENSE
 
PENALTY
DRIVING UNDER RESTRAINT
 
TRAFFIC - MISDEMEANOR OFFENSE

Also refer to less serious charge NOL - No Operator's License

INSURANCE TERM REVOCATION
FAILURE TO CARRY SR-22 INSURANCE

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138

        If the SR-22 financial responsibility requirement has been imposed upon a driver, he / she must comply.  If the driver fails to carry the insurance coverage or pay the premiums, the insurance company will notify the DMV which will impose an insurance term revocation upon the driver.

        Mandatory minimum jail 5 days
                " 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"
        Maximum jail: 6 months
        Minimum fine $50  Maximum fine $500
        CRS 42-7-422

Driving without getting caught?  refer to Murphy's law.

And Mrs. Murphy adds:  "At the worst possible time."

PENALTY - EMERGENCY
POSSIBLE AVOIDANCE OF JAIL

DRIVING UNDER RESTRAINT
DRIVING AFTER REVOCATION PROHIBITED

Burden and Standard of Proof + Procedure

        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.

ACCIDENT REPORTS & OTHER DMV FORMS
State of Colorado accident report obsolete 8/4/04
police now verify insurance at the accident scene
refer to above link for information, forms, state on-line accident report and CSPD Cold Report

        Under Colorado law, if the insurance information of a driver was not included in a law enforcement traffic accident report, a State of Colorado Accident Report must be submitted to the DMV within 10 days of an accident. CRS 42-4-1609 Also by statute, statements by a driver in the accident report may not be used in conjunction with any court proceedings, criminal or civil, except that the DMV may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his or her presence at such accident. CRS 42-4-1610, CRS 42-7-504.  The primary purpose of filing the accident report is to comply with state law, and to provide evidence of insurance on the vehicle - thereby avoiding an FRA suspension.- refer to link for information.  If any of the below charges are alleged, a driver should consult with his or her defense attorney regarding exercise of constitutional privileges before making any oral or written statement.

Hit and Run DUI, DEAC or DWAI DUR or DARP

        Adobe Acrobat Reader version 5 or later is required to view .pdf files    Free Download
        DMV - State of Colorado Accident Report
        DMV - Evidence of Insurance
        DMV - Affidavit of Financial Responsibility
        DMV - FRA - Release from Liability
        DMV - FRA - Waiver of Security - Financial Responsibility
        DMV - Promissory Note Contract
        DMV - Affidavit - Out of State Residency - FRA SR-22 Avoidance
        Other DMV forms

        CSPD Accident Cold Report -   due within 72 hours of accident  (large file - please be patient)
                Any person may obtain a hardcopy cold report from the CSPD Police Operations Center

 
 
DMV PROCEEDINGS & DRIVER LICENSE MATTERS 
Selected Traffic & DMV Statutes & Regulations
 
 
LOSS OF COLORADO DRIVING PRIVILEGES
DMV Hearing
Defense
DMV Appeal
statute of limitations

Driving in Colorado is a constitutionally protected privilege, but nevertheless a privilege which may be lost.  Multiple statutes can cause loss of driving privileges for different driver behavior.  Drivers are entitled to a DMV hearing.  In some circumstances the right to hearing precedes potential DMV adverse action; under other Colorado traffic laws the adverse order is entered, then the driver is provided notice of the adverse action and right to request subsequent hearing.  If hearing has been held or a DMV final order has otherwise entered and the Colorado driver's license or Colorado driving privileges have been suspended, revoked or denied, the driver's remaining recourse is appeal to the District Court DMV appeal is subject to a statute of limitations.  Right to appeal may be lost if the driver delays.  Upon final order in the District Court, either party make take the case on appeal to the Colorado Court of Appeals.  Refer to links for additional information.

DRIVING UNDER RESTRAINT DEFENSE
DRIVING AFTER REVOCATION PROHIBITED

 
POTENTIAL DEFENSES
caveat - more law is applicable - just a brief overview here
 
MISDEMEANOR AND FELONY OFFENSES

Also refer to less serious charge NOL - No Operator's License

driving under restraint carries statutory - automatic one year license denial under CRS 42-2-138
 
  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"

COMPLETION CERTIFICATE FORMS
Alcohol Education, Alcohol Therapy, Public Service, AA Meetings, Antabuse - disulfirum, deferred sentence, probation
Colorado traffic & criminal trial practice
25+ years Colorado State Courts & Colorado Springs Municipal Court
DUI - DWAI - DEAC Defense   *   *   Driving Under Restraint Defense   *   *   Speeding Ticket Defense

**  NOTE:  Effective December, 2004 public service in El Paso County must be completed under supervision of an approved agency with insurance on the worker.  The court will not give credit for public service completed outside supervision and will not accept verification other than through the supervision agency.  Chief judges of other counties may have instituted similar blanket orders.

Adobe Acrobat Reader version 5 or later is required to view .pdf files    Free Download

 Regarding completions forms:

  1. Current Clients  will be provided with verification forms containing name and case number.
            Current clients may print any above linked form for individual but not commercial or law office use.
            Files are password restricted. 

  2. Former Clients and Non-Clients may print and use any linked verification form identified in blue.
            Former & non-clients do not have permission to print or otherwise use any linked verification form identified in red.  This restriction is not any inconvenience - it merely removes my name from the caption of pleadings and thereby avoids any possible confusion to the court or prosecutors.  Otherwise, the Current Client or Former Client and Non-Client forms are the same.
            Former & Non-Client limited permission to forms identified in blue extends to individual but not commercial or law office use.        

  3. Use of any form shall not constitute representation, nor shall it be considered an appearance of counsel in any litigation

THIS WEBSITE IS PUBLISHED AS A COURTESY BY A PRIVATE ATTORNEY
NOT
VIP-MADD, AA, ALCOHOL EDUCATION PROGRAM OR PUBLIC SERVICE AGENCY
I welcome representation inquiries, but please don't call thinking this office provides identified community resources

INDEPENDENT SERVICE PROVIDERS

        Where relevant, I utilize the services of independent professionals.  Rates of independent providers of professional services change periodically and billings are not controlled by counsel.

        If retained by counsel as an agent of the attorney, such independent service providers are bound by the attorney-client privilege.  If retained privately by the client, no such agency or confidentiality exists.

PROCESS SERVICE

PRIVATE INVESTIGATION

DRIVING UNDER RESTRAINT DEFENSE
DO I NEED AN ATTORNEY?

 

Do I need an attorney?

Probably time to loosen the pocket book and hire a defense attorney.

If you are charged with DUR or DARP, whether or not you are eligible for reinstatement, it is advisable to retain competent legal counsel - all such charges contain jail sentences and law provides for additional periods of lost driving privileges.  In some circumstances such sanctions may be avoided if the case is properly handled.  You need not retain my services, but hire defense counsel.

        At the time of the first visit, a prospective client will be quoted attorney's fees and estimated costs. The quote will be honored for a period of seven (7) days, after which it is subject to change without notice if this office has not been retained.  Attorney is a sole practitioner with need to manage his caseload.  Pending proposed client acceptance and payment, retainer agreement proposals are subject to withdrawal.  Attorney reserves the right to decline any case.
 
        In most circumstances, attorney initially makes an option offer of 1.) billing to be upon hourly fees, or in the alternative, 2.) quote of a settlement flat fee or a trial flat fee.  Attorney reserves the right to quote hourly fees only without a flat fee offer, or hourly and trial flat fee options only. 
ELECTION. Offered fee options will be up to the client, however client's initial election will be final.
 
        Included in attorney's primary website is a web page devoted to clear definition & understanding of free
first consultation, fees and costs, retainer agreement and terms of representation.  Additional information regarding fees & costs may be found via the links following potential quotes.

POTENTIAL FEE QUOTE
MISDEMEANOR DUR - DRIVING UNDER RESTRAINT
SETTLEMENT FLAT FEE
would be deducted from trial flat fee
$1,550
 
TRIAL FLAT FEE
settlement fee would be deducted
$3,500
 

I generally offer hourly fees or a settlement flat fee.  Some first offense misdemeanor DUR cases plea bargain and do not proceed to trial.   The settlement flat fee would be dependent upon the facts and circumstances of the case, however the above would be a common quote absent collateral attack.  This shall neither constitute an offer, nor be construed as a binding estimate.

DUR second or subsequent negotiations
would likely involve jail.  Plan on the trial flat fee.  

Trial flat fee would be dependent upon the facts and circumstances of the case, however the above would be a common quote absent collateral attack.  This shall neither constitute an offer, nor be construed as a binding estimate. 
 
  

frequent trust deposit request regarding fees & costs

Fee Estimate Caveats.  If collateral attack is required, the attorney would need to know more about the number and locations of underlying court cases to be attacked before offering a trial flat fee.  Similarly, if vehicle forfeiture or if curing out of state license suspension is involved, attorney would need more information before quoting a fee.  Legal research, research time and litigation preparation regarding forfeiture would increase the above estimates.

 

PAYMENT
Secure On-Line Payment

Prior to commencement of representation, the attorney will quote the amount requested as a trust deposit against which attorney's fees and costs may be billed.  The requested trust deposit will be dependent upon the facts and circumstances of your case.

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT
 
$       1,550   
$          575   
 
settlement common trust deposit request
settlement - first misdemeanor DUR only - not second or subsequent
including attorney's fees & litigation costs - excluding travel
map * travel policy - time & expenses * travel rates

settlement trust deposit would be deducted from trial trust deposit
 

OR

$2,125*

 

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT
 
$       3,500   
$          975   
 
trial common trust deposit request
including attorney's fees & litigation costs - excluding travel
Additional cost deposit may be requested as trial preparation proceeds &
anticipated litigation expenses solidify
map * travel policy - time & expenses * travel rates

$4,475*

If eligible for reinstatement in Colorado at the time attorney is retained and in the event DMV hearing can be avoided,
quoted court case flat fees will include attorney time for reinstatement of Colorado driving privileges.

misdemeanor DUR - driving under restraint
* this shall not constitute an offer, nor be construed as a binding estimate

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
if fees and costs are not paid as agreed, representation is withdrawn

MAJOR CREDIT CARDS ACCEPTED
PAYPAL ACCEPTED
Secure On-Line Payment
THIRD PARTY PAYMENT AUTHORIZATION

charge card merchant discount

 
PARTIAL LIST OF POTENTIAL COSTS
out of pocket costs are the responsibility of the client
note: costs change & below cost information may be obsolete
link to Colorado Judicial Branch website -  current costs information published by state
COLORADO STATE COURT COSTS
direct link to criminal or traffic court costs - costs change & lists may be obsolete
COUNTY COURT CRIMINAL COSTS DISTRICT COURT CRIMINAL COSTS
$135.00   Toxicology - BAC Ethanol (alcohol) only
185.00   Toxicology - BAC Ethanol (alcohol) + NaFl (preservative)
95.00   Toxicology - UA qualitative toxicology screen for marijuana
620.00   Toxicology - UA quantitative toxicology screen for marijuana
545.00   Toxicology - Substance quantitative toxicology screen for marijuana
595.00   Toxicology - Qualitative and quantitative drug screen
720.00   Toxicology - BAC ethanol (alcohol) + NaFl (preservative) + drug screen
Price   Client Background Search
Varies   DMV Out of State Driving Record
10.00   Accident Report
20.00   Offense Report
10.00   DA Office discovery packet - estimate (actual may be more or less)
25.00   State court jury deposit C.R.Crim.P. 23, CRS 16-10-109 (non-refundable except by acquittal)
10.00   Court records search & copy costs (actual may be more or less)
10.00   Copy expense at courthouse for prior offense files (estimate - may vary)
75.00   Public Service supervision fee
37.50   OJW fee to court (outstanding judgment warrant) - anticipating Integral Recoveries collection agency referral costs
60.00   DMV reinstatement fee
4.40   DMV clearance letter - certified copy of Colorado driving abstract
500.00   Private Investigator initial retainer - if relevant
     variable based upon number of witnesses to interview
200.00   Law enforcement 911 / dispatch records, tapes & transcript - widely variable
200.00   Subpoena process service expense - depends on number of subpoenas issued
Varies   On-line legal research - dependent upon issues requiring legal research, if any
Rates   Travel time and expenses if the case is outside Colorado Springs

If the case is complicated, it may be prudent to place law enforcement 911 * dispatch tapes and records, plus other law enforcement records under subpoena duces tecum.  Expense will depend upon the amount of time the law enforcement agency spends searching dispatch tapes and records, but total expense frequently runs $140 - $200.

If a case is complicated, would also be foreseeable to procure transcripts from prior court cases, DMV proceedings (if available) and collaterally attack prior convictions.  It is not possible to project costs absent a knowledge of the facts surrounding a given case.

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.  limited search pricing

 
 
****************************** ****************************** ******************************

POTENTIAL FEE QUOTE
DARP - DRIVING AFTER REVOCATION PROHIBITED
 
SETTLEMENT FLAT FEE
would be deducted from trial flat fee
$2,500
 
TRIAL FLAT FEE
settlement fee would be deducted
$5,000
 

I generally offer hourly fees or a settlement flat fee.  Some first offense misdemeanor DARP cases plea bargain and do not proceed to trial.   The settlement flat fee would be dependent upon the facts and circumstances of the case, however the above would be a common quote absent collateral attack.  This shall neither constitute an offer, nor be construed as a binding estimate.

Settlement within parameters acceptable to the client diminish with DARP charges - negotiations would likely involve jail.  Plan on the trial flat fee.  

Trial flat fee would be dependent upon the facts and circumstances of the case, however the above would be a common quote absent collateral attack.  This shall neither constitute an offer, nor be construed as a binding estimate.
 
 
 

frequent trust deposit request regarding fees & costs

Fee Estimate Caveats.  If collateral attack is required, the attorney would need to know more about the number and locations of underlying court cases to be attacked before offering a trial flat fee.  Similarly, if vehicle forfeiture or if curing out of state license suspension is involved, attorney would need more information before quoting a fee.  Legal research, research time and litigation preparation regarding forfeiture would increase the above estimates.

 

PAYMENT
Secure On-Line Payment

Prior to commencement of representation, the attorney will quote the amount requested as a trust deposit against which attorney's fees and costs may be billed.  The requested trust deposit will be dependent upon the facts and circumstances of your case.

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT
 
$       2,500   
$          275   
 
settlement common trust deposit request
including attorney's fees & litigation costs - excluding travel
map * travel policy - time & expenses * travel rates

settlement trust deposit would be deducted from trial trust deposit
 

OR

$2,775*

 

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT
 
$       5,000   
$       1,500   
 
trial common trust deposit request
including attorney's fees & litigation costs - excluding travel
Additional cost deposit may be requested as trial preparation proceeds &
anticipated litigation expenses solidify
map * travel policy - time & expenses * travel rates

$6,500*

DARP - driving after revocation prohibited
* this shall not constitute an offer, nor be construed as a binding estimate

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
if fees and costs are not paid as agreed, representation is withdrawn

MAJOR CREDIT CARDS ACCEPTED
PAYPAL ACCEPTED
Secure On-Line Payment
THIRD PARTY PAYMENT AUTHORIZATION

charge card merchant discount

COSTS
Out of pocket expenses (costs) are the responsibility of the client.
Refer to costs identified above - follow link.

In a DARP case it would be common to place law enforcement 911 * dispatch tapes and records, plus other law enforcement records under subpoena duces tecum.  Expense will depend upon the amount of time the law enforcement agency spends searching dispatch tapes and records, but total expense frequently runs $140 - $200.

In a DARP case, would also be foreseeable to procure transcripts from prior court cases, DMV proceedings (if available) and collaterally attack prior convictions.  It is not possible to project costs absent a knowledge of the facts surrounding a given case.

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.  limited search pricing

 
 
****************************** ****************************** ******************************

POTENTIAL FEE QUOTE
DOR * DMV LICENSE HEARING
SUSPENSION
  *  REVOCATION  *  DENIAL
  Colorado Springs Attorney Robert D. Gustafson
common quote - limited flat fee

$650

this shall neither constitute an offer, nor be construed as a binding estimate
DMV limited flat fee would be dependent upon the facts and circumstances of the case

A DMV limited flat fee would likely be offered.  Additional hours necessitated by continuance requested by police or by subpoena procurement are billed at hourly rates.  A client may retain the attorney's services in a DUI or traffic criminal case without asking for assistance at DMV proceedings.  Attorney does not undertake representation in DMV proceedings until the DMV limited flat fee has been paid, and full payment is required at least *seven (7) days in advance of hearing.  Fees beyond the DMV limited flat fee would be unusual.

 

Attorney will initially make an option offer of 1.) billing to be upon hourly fees, or in the alternative, 2.) quote of a hearing flat fee per above.  Offered fee options will be up to the client, however client's initial election will be final.  Hourly fee billings are based solely upon time, and may be more or less than the offered flat fee.  Hourly fees are not capped at the limited flat fee.  Attorney reserves the right to quote hourly fees only without a flat fee offer.  Attorney reserves the right to decline any case.

 

* Applicable case law, statutes, rules of civil procedure, and Department of Revenue or Department of Health regulations contain mandatory time constraints, are complex and are generally unfavorable to the driver. The above 7 day hiring limitation is based solely upon client control over fees paid at time attorney is retained in the criminal case and upon avoidance & resolution of attorney calendar conflicts.  Prospective clients are notified 7 days is insufficient time to prepare an adequate license hearing defense which involves DMV discovery or DOR issuance of subpoena (compelling testimony) or subpoena duces tecum (compelling testimony & production of documents or evidence).  Delay in retaining attorney may prejudice the defense. Whether the underlying basis is alcohol related or not, time is critical in DOR hearings regarding suspension, revocation or denial of Colorado driving privileges.

 

DOR hearing fee Estimate Caveats.  If collateral attack is required, the attorney would need to know more about the number and locations of underlying court cases to be attacked before offering a DOR hearing fee.  Legal research and research time would increase the estimates.

 

Non-Alcohol

Alcohol

Habitual Offender

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
if fees and costs are not paid as agreed, representation is withdrawn

MAJOR CREDIT CARDS ACCEPTED
PAYPAL ACCEPTED
Secure On-Line Payment
THIRD PARTY PAYMENT AUTHORIZATION

charge card merchant discount

 
 
****************************** ****************************** ******************************

FIRST CONSULTATION ACCOUNTING STRUCTURE HOURLY FEES COSTS
FLAT FEE - DEFINITION SETTLEMENT PHASE SETTLEMENT FLAT FEE
CONTESTED PHASE TRIAL FLAT FEE FLAT FEES - PHASES EARNED
COMPARE HOURLY - FLAT FEES CLIENT'S ELECTION - FINAL TRAVEL TIME & EXPENSES
SECURITY FOR FEES & COSTS TRUST ACCOUNT WITHDRAWAL OR TERMINATION
CLIENT DUTY TO DISCLOSE OMISSION OR NON-DISCLOSURE ALTERNATIVES
ATTORNEY SELECTION RETAINING GUSTAFSON ADVICE BY LAYMEN

ATTORNEY REPRESENTATION
AND DECLINED MATTERS

 
CRIMINAL DEFENSE DUI DEFENSE & TRAFFIC DEFENSE DRIVER LICENSE DEFENSE
FAMILY LAW & DIVORCE DEBT COLLECTION COMMUNITY RESOURCES
FIRST CONSULTATION ACCOUNTING STRUCTURE WEBSITE INDEX GATEWAY
ATTORNEY SELECTION RETAINING GUSTAFSON ADVICE BY LAYMEN
 

ALTERNATIVES

FIND A LAWYER

if you are seeking the below
please refer to above links for helpful information
sole practitioner attorney does not accept these matters
 

a.  a pro-bono (free) lawyer
b.  an attorney who may take lower fees - economic hardship
c.  an attorney who may take installment payments

Attorney Welcomes
third party payment authorization
charge card merchant discount
 

MID-LITIGATION REPRESENTATION
alternatives and find a lawyer links provided as a courtesy

Attorney Policies
Litigant Pro Se - Attempt to Prepare Defense of Own Traffic or Criminal Case

1.  Adequate Time.  If sufficient time exists to adequately prepare your case and if prospective client approves this attorney's fees and costs structure, attorney will likely accept defense representation.  This shall not constitute an offer of representation; attorney and prospective client retain discretion through first consultation.

2.  Insufficient Time.  If you've waited until the eleventh hour and there is not sufficient time to adequately prepare your case or defense before a contested court proceeding, please do not call.  I decline.

3.  Limited Assistance.  Please do not call requesting instruction, directions, legal theory, forms completion or limited document drafting, partial representation, or an explanation of applicable law to assist you in preparation or defense of your own case.  I decline.

Attorney Policies
Representation by Previous Attorney

1.  Current Attorney.  Until an order has entered withdrawing representation by an attorney, an ethical rule violation exists if counsel knowingly speaks to another attorney's client without current attorney's consent.  This ethical rule governs all attorneys.  Please do not call until after you have terminated representation by a former attorney.  After other counsel's withdrawal it may take significant effort for the the new attorney to "catch up."  Please be aware fees and costs will be associated with procuring the court file and coming up to speed in the case.

2.  Adequate Time.  If prospective client terminates employment of the former attorney, if sufficient time exists to adequately prepare your traffic or criminal case, and if prospective client approves this attorney's fees and costs structure, attorney will likely accept representation.  This shall not constitute an offer of representation; attorney and prospective client retain discretion through first consultation.

3.  Insufficient Time.  If you've waited until the eleventh hour and there is not sufficient time to adequately prepare your case or defense before a contested court proceeding, please do not call.  I decline.

4.  Second Opinion.  I will not arm chair quarterback another attorney's case preparation, trial tactics or theory of the case.  Please do not call for a second opinion or an opinion regarding the competence of preparation or defense in your current traffic or criminal case.  I decline.

 
 
POST SENTENCING MATTERS
PROBATION REVOCATION  *  PAROLE VIOLATION
DEFERRED SENTENCE REVOCATION  *  APPEALS

Post Sentencing.  I do not accept post sentencing matters in any criminal, DUI or traffic case unless I provided representation during the case in chief at the trial court level and am familiar with the facts, testimony and exhibits received into evidence, meritorious issues & rulings. That's been my policy for years.  Please do not call or inquire regarding post sentencing matters if you are not a former client. 

Alternatives
FIND A LAWYER

This includes plea to domestic violence or other criminal charge, DUI, DEAC or DWAI charge or other traffic charge and probation, deferred sentence, parole or incarceration or revocation proceedings based upon alleged failure to comply.

 

Exceptions.  If the underlying criminal case qualifies, refer to sealing criminal records.  I accept meritorious sealing cases regardless of whether or not you are a former client.  NOTICE: alcohol related traffic offenses, other traffic offenses or traffic infractions are a specifically excluded in the sealing statute and can not be sealed.  If relevant, I also accept meritorious collateral attack cases.

 
 
 

ATTORNEY TRADE AREA & TRAVEL
CASES OUTSIDE EL PASO COUNTY
 
GEOGRAPHIC DISTANCE
ECONOMIC CONSIDERATIONS
Colorado is a big state
ease of internet access, email & toll free phone doesn't change that fact

 

Attorney is very willing to travel outside the Colorado Springs area to present or defend a case, but please be aware travel time, mileage and expense would apply.  If you are out of state or unfamiliar with Colorado geography, refer to the map to determine where Colorado Springs is located in relation to the county of your court case or hearing.

Colorado MAP
Southern Colorado Area

If travel is necessary, a trust deposit would be required to cover anticipated travel time, mileage & expenses.  If it is not economically justifiable to retain my services with travel, please contact counsel in the locale of your case.

COUNTIES

CITIES / TOWNS

El Paso County

Colorado Springs / Manitou Springs / Fountain

I welcome new cases.  Intent is not to be harsh
or to discard potential new business, but to be practical.

Chaffee County

Salida

Crowley County Ordway Metro Denver Area
Custer County Westcliffe COUNTIES CITIES / TOWNS
Douglas County Castle Rock City and County of Denver Denver
Elbert County Kiowa / Simla Adams County Brighton / Thornton / Federal Heights
Fremont County Canon City / Florence / Penrose Arapahoe  County Court   District Court Littleton / Centennial / Englewood
Huerfano County Walsenburg Arapahoe County - East Aurora
Las Animas County Trinidad Broomfield County Broomfield
Lincoln County Hugo (county seat) / Limon Gilpin County Blackhawk / Central City
Otero County La Junta Jefferson County Golden / Wheat Ridge
Park County Fairplay
Pueblo County Pueblo
Teller County Cripple Creek / Woodland Park

BEFORE USING ANY INFORMATION IN THIS WEBSITE, PLEASE REFER TO THE BELOW LINKS
NOTICE AND DISCLAIMER
HomePage Disclaimer
 information to website visitors
ATTORNEY ETHICS & CLIENT DISCLOSURES
Prior Convictions or Bad Acts
important warning information before disclosure
CONTACT & PRIVACY
Confidentiality & Privacy Policy
email, and cordless, wireless or cell phones

please feel free to call or email if you are a client or are seeking representation

FREE INITIAL CONSULTATION
not an offer for free legal advice - refer to link for terms
I am a sole practitioner with need to manage my caseload & reserve the right to decline any legal matter

MAJOR SEARCH ENGINES

All the Web AltaVista AOL Search Ask Jeeves - Teoma Dogpile
Excite Google HotBot InfoSeek - Go LookSmart
Lycos Microsoft Network Netscape Overture Search
  WebCrawler   Yahoo!  

 
Serving Colorado Springs Area Zip Codes

80918 80920 80919 80917 80915 80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 80905 80906 80907 80910 80911 80912 80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 80937 80940 80941 80942 80943 80944 80945 80946 80947 80949 80950 80960 80962 80970 80977 80995 90997

Copyright © 1983 - All Rights Reserved - Document Revised: May 18, 2009
no copyright claimed to merchant logo, software logo, '55 police cruiser, fingerprint, flag, envelope or drawing images

Hit Counter