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DUI / DWAI Sentencing in Colorado

Driving Under the Influence and Driving While Ability Impaired Sentencing In the State of Colorado.

To ensure consistent treatment throughout the State of Colorado, the Courts must follow the following statutory provisions when sentencing an individual convicted of a DUI or DWAI.

First offenses--DUI and DUI per se.  (a) Except as otherwise provided in subsections (5) and (6) of this section, a person who is convicted of DUI or DUI per se shall be punished by:

(I) Imprisonment in the county jail for at least five days but no more than one year, the minimum period of which shall be mandatory;  except that the court may suspend the mandatory minimum period if, as a condition of the suspended sentence, the offender undergoes a presentence or postsentence alcohol and drug evaluation and satisfactorily completes and meets all financial obligations of a level I or level II program as is determined to be appropriate by the alcohol and drug evaluation that is required pursuant to section 42-4-1301.3 ;

(II) A fine of at least six hundred dollars but no more than one thousand dollars, and the court shall have discretion to suspend the fine;  and

(III) At least forty-eight hours but no more than ninety-six hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of such service.

(b) Notwithstanding the provisions of subparagraph (I) of paragraph (a) of this subsection (3), and except as described in paragraphs (a) and (b) of subsection (5) and paragraph (a) of subsection (6) of this section, a person who is convicted of DUI or DUI per se when the person's BAC was 0.20 or more at the time of driving or within two hours after driving shall be punished by imprisonment in the county jail for at least ten days but not more than one year;  except that the court shall have the discretion to employ the sentencing alternatives described in section 18-1.3-106, C.R.S .

(c) In addition to any penalty described in paragraph (a) of this subsection (3), the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.

(4) First offenses--DWAI.  (a) Except as otherwise provided in subsections (5) and (6) of this section, a person who is convicted of DWAI shall be punished by:

(I) Imprisonment in the county jail for at least two days but no more than one hundred eighty days, the minimum period of which shall be mandatory;  except that the court may suspend the mandatory minimum period if, as a condition of the suspended sentence, the offender undergoes a presentence or postsentence alcohol and drug evaluation and satisfactorily completes and meets all financial obligations of a level I or level II program as is determined to be appropriate by the alcohol and drug evaluation that is required pursuant to section 42-4-1301.3 ;  and

(II) A fine of at least two hundred dollars but no more than five hundred dollars, and the court shall have discretion to suspend the fine;  and

(III) At least twenty-four hours but no more than forty-eight hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of such service.

(b) Notwithstanding the provisions of subparagraph (I) of paragraph (a) of this subsection (4), and except as described in paragraphs (a) and (b) of subsection (5) and paragraph (a) of subsection (6) of this section, a person who is convicted of DWAI when the person's BAC was 0.20 or more at the time of driving or within two hours after driving shall be punished by imprisonment in the county jail for at least ten days but not more than one year;  except that the court shall have the discretion to employ the sentencing alternatives described in section 18-1.3-106, C.R.S .

(c) In addition to any penalty described in paragraph (a) of this subsection (4), the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.

(5) Second offenses.  (a) Except as otherwise provided in subsection (6) of this section, a person who is convicted of DUI, DUI per se, or DWAI who, at the time of sentencing, has a prior conviction of DUI, DUI per se, DWAI, vehicular homicide pursuant to section 18-3-106(1)(b) , vehicular assault pursuant to section 18-3-205(1)(b) , aggravated driving with a revoked license pursuant to section 42-2-206(1)(b)(I)(A) or (1)(b)(I)(B) , as that crime existed before August 5, 2015, or driving while the person's driver's license was under restraint pursuant to section 42-2-138(1)(d) , shall be punished by:

(I) Imprisonment in the county jail for at least ten consecutive days but no more than one year;  except that the court shall have discretion to employ the sentencing alternatives described in section 18-1.3-106 .  During the mandatory ten-day period of imprisonment, the person is not eligible for deductions of his or her sentence pursuant to section 17-26-109 , or for trusty prisoner status pursuant to section 17-26-109(1)(c) ;  except that the person receives credit for any time that he or she served in custody for the violation prior to his or her conviction.

(II) A fine of at least six hundred dollars but no more than one thousand five hundred dollars, and the court shall have discretion to suspend the fine;

(III) At least forty-eight hours but no more than one hundred twenty hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of the service;  and

(IV) A period of probation of at least two years, which period shall begin immediately upon the commencement of any part of the sentence that is imposed upon the person pursuant to this section, and a suspended sentence of imprisonment in the county jail for one year, as described in subsection (7) of this section;  except that the court shall not sentence the defendant to probation if the defendant is sentenced to the department of corrections but shall still sentence the defendant to the provisions of paragraph (b)of subsection (7) of this section.  The defendant shall complete all court-ordered programs pursuant to paragraph (b) of subsection (7) of this section before the completion of his or her period of parole.

(b) If a person is convicted of DUI, DUI per se, or DWAI and the violation occurred less than five years after the date of a previous violation for which the person was convicted of DUI, DUI per se, DWAI, vehicular homicide pursuant to section 18-3-106(1)(b), C.R.S ., vehicular assault pursuant to section 18-3-205(1)(b), C.R.S ., aggravated driving with a revoked license pursuant to section 42-2-206(1)(b)(I)(A) or (1)(b)(I)(B) , as that crime existed before August 5, 2015, or driving while the person's driver's license was under restraint pursuant to section 42-2-138(1)(d) , the court does not have discretion to employ any sentencing alternatives described in section 18-1.3-106, C.R.S ., during the minimum period of imprisonment described in subparagraph (I) of paragraph (a) of this subsection (5);  except that a court may allow the person to participate in a program pursuant to section 18-1.3-106(1)(a)(II) , (1)(a)(IV) , or (1)(a)(V), C.R.S ., only if the program is available through the county in which the person is imprisoned and only for the purpose of:

(I) Continuing a position of employment that the person held at the time of sentencing for said violation;

(II) Continuing attendance at an educational institution at which the person was enrolled at the time of sentencing for said violation;  or

(III) Participating in a court-ordered level II alcohol and drug driving safety education or treatment program, as described in section 42-4-1301.3(3)(c)(IV) .

(c) Repealed by Laws 2017, Ch. 71, § 11, eff. Aug. 9, 2017.

(6) Third and subsequent offenses.  (a) Except as provided in section 42-4-1301(1)(a) , (1)(b) , and (2)(a) , a person who is convicted of DUI, DUI per se, or DWAI who, at the time of sentencing, has two or more prior convictions of DUI, DUI per se, DWAI, vehicular homicide pursuant to section 18-3-106(1)(b) , vehicular assault pursuant to section 18-3-205(1)(b) , aggravated driving with a revoked license pursuant to section 42-2-206(1)(b)(I)(A) or (1)(b)(I)(B) , as that crime existed before August 5, 2015, or driving while the person's driver's license was under restraint pursuant to section 42-2-138(1)(d) shall be punished by:

(I) Imprisonment in the county jail for at least sixty consecutive days but no more than one year.  During the mandatory sixty-day period of imprisonment, the person is not eligible for deductions of his or her sentence pursuant to section 17-26-109 , or for trusty prisoner status pursuant to section 17-26-109(1)(c) ;  except that a person receives credit for any time that he or she served in custody for the violation prior to his or her conviction.  During the mandatory period of imprisonment, the court does not have discretion to employ any sentencing alternatives described in section 18-1.3-106 ;  except that the person may participate in a program pursuant to section 18-1.3-106(1)(a)(II) , (1)(a)(IV) , or (1)(a)(V), C.R.S ., only if the program is available through the county in which the person is imprisoned and only for the purpose of:

(A) Continuing a position of employment that the person held at the time of sentencing for said violation;

(B) Continuing attendance at an educational institution at which the person was enrolled at the time of sentencing for said violation;  or

(C) Participating in a court-ordered level II alcohol and drug driving safety education or treatment program, as described in section 42-4-1301.3(3)(c)(IV) ;

(II) A fine of at least six hundred dollars but no more than one thousand five hundred dollars, and the court shall have discretion to suspend the fine;

(III) At least forty-eight hours but no more than one hundred twenty hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of the service;  and

(IV) A period of probation of at least two years, which period shall begin immediately upon the commencement of any part of the sentence that is imposed upon the person pursuant to this section, and a suspended sentence of imprisonment in the county jail for one year, as described in subsection (7) of this section;  except that the court shall not sentence the defendant to probation if the defendant is sentenced to the department of corrections, but shall still sentence the defendant to the provisions of paragraph (b) of subsection (7) of this section.  The defendant shall complete all court-ordered programs pursuant to paragraph (b) of subsection (7) of this section before the completion of his or her period of parole.

(b) Repealed by Laws 2017, Ch. 71, § 11, eff. Aug. 9, 2017.

(c) Notwithstanding any other provision of law, if the defendant satisfies the conditions described in subparagraphs (I) and (II) of this paragraph (c), the court may include as a condition of probation a requirement that the defendant participate in alcohol treatment.  If the defendant's assessed treatment need is for residential treatment, the court may make residential alcohol treatment a condition of probation and may place the offender in a community corrections program that can provide the appropriate level of treatment.  This paragraph (c) applies only if:

(I) At the time of sentencing, the person has two prior convictions of DUI, DUI per se, DWAI, vehicular homicide pursuant to section 18-3-106(1)(b), C.R.S ., or vehicular assault pursuant to section 18-3-205(1)(b), C.R.S .;  and

(II) The first of the person's two prior convictions was based on a violation that occurred not more than seven years before the violation for which the person is being sentenced.

(6.5) Felony offenses.  (a) A person who commits a felony DUI, DUI per se, or DWAI offense shall be sentenced in accordance with the provisions of section 18-1.3-401 and this subsection (6.5).

(b) If the court sentences the defendant to a term of probation as provided by section 18-1.3-202 , the court shall order as a condition of probation one of the following:

(I) Require the defendant to serve at least ninety days but not more than one hundred eighty days imprisonment in the county jail.  During the mandatory ninety-day period of imprisonment, the defendant is not eligible for deductions of his or her sentence pursuant to section 17-26-109 or for trusty prisoner status pursuant to section 17-26-109(1)(c) ;  except that a defendant receives credit for any time that he or she served in custody for the violation prior to his or her conviction.  During this mandatory period of imprisonment, the court does not have discretion to employ any sentencing alternatives described in section 18-1.3-106 .

(II) Require the defendant to serve at least one hundred twenty days but not more than two years of imprisonment in the county jail through participation in a program pursuant to section 18-1.3-106(1)(a)(II) or (1)(a)(IV) if the program is available through the county in which the defendant is imprisoned and only for the purposes of continuing a position of employment that the defendant held at the time of sentencing for the violation or for continuing attendance at an educational institution at which the defendant was enrolled at the time of sentencing for the violation.  During the mandatory one-hundred-twenty-day period of imprisonment, the defendant is not eligible for deductions of his or her sentence pursuant to section 17-26-109 or for trusty prisoner status pursuant to section 17-26-109(1)(c) ;  except that a defendant receives credit for any time that he or she served in custody for the violation prior to his or her conviction.  During this mandatory period of imprisonment, the court does not have discretion to employ any other sentencing alternatives described in section 18-1.3-106 ;  except that a court may grant permission for a defendant to leave the jail to obtain medical treatment, pursuant to section 18-1.3-106(1)(a)(V) .

(c) Additionally, if the court sentences the defendant to a term of probation as provided by section 18-1.3-202 , then, as a condition of probation, the court shall:

(I) Require the defendant to complete at least forty-eight hours but not more than one hundred twenty hours of useful public service, which may not be suspended;  and

(II) Sentence the defendant in accordance with subsection (7)(b) of this section.

(d) Notwithstanding the provisions of subsection (6.5)(a) of this section, before the imposition of any sentence to the department of corrections for a felony DUI, DUI per se, or DWAI offense, at sentencing or at resentencing after a revocation of probation or a community corrections sentence, the court shall consider all the factors described in subsection (6.5)(e) of this section.

(e) If the court sentences the defendant to the department of corrections for a felony DUI, DUI per se, or DWAI offense, it must determine that incarceration is the most suitable option given the facts and circumstances of the case, including the defendant's willingness to participate in treatment.  Additionally, the court shall consider whether all other reasonable and appropriate sanctions and responses to the violation that are available to the court have been exhausted, do not appear likely to be successful if tried, or present an unacceptable risk to public safety.

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