DeChant Law

driving under the influence

Below you will find a list of the most common DUI related charges along with answers to the most commonly asked questions about DUI’s and DWAI’s.

The 2 paths of DUI

If you have been arrested for a DUI, you may be thinking; “I got a DUI, now what?” “What will happen to my driving privileges and what will happen with the court?”

It is important to understand that these are two separate and distinct paths of the process in the aftermath of a DUI arrest. Each path has its own timeline and requirements. Ultimately driving is a privilege the DMV can and will restrain, and the court process deals with your rights and a potential punishment for the crime. Hiring an experienced attorney who understands the nuances of both paths is imperative to your defense.

The two paths following a DUI are the Administrative Process, through the DMV, and the Court Process is through the judicial system. Each path operates independently from each other. You can learn more about the two separate paths below. Both paths may require alcohol and drug treatment education. It is important to understand the pitfalls each path contains so you can avoid them. The best way is to hire an experienced DUI attorney to help.

The Administrative Process

Your Driving Privilege

The effect a DUI has on your driving privilege is determined by the Legislature and enforced by the Colorado Division of Motor Vehicles. You can request a hearing with a DMV hearing officer and the arresting officer before restrictions go into effect if you act fast enough and follow the proper procedures.

After a DUI arrest for a refusal or breath test, you have 7 days from receiving notice to request a hearing. If you submit blood, you have 10 days from the date the notice is mailed to you. If you do not request a hearing within the allotted time, your driving privilege will be revoked and you waive your opportunity to request a test. However, you may be able to request a late hearing if you have a valid excuse. It is important to contact an experienced attorney right away after being charged with a DUI so that you can assure your rights are protected. You can go directly to the DMV’s website to request a hearing or contact us to help ensure you request the hearing in time.

If your license is revoked because of the DUI, there are several factors which determine the length. These factors are listed below but include if you have any prior convictions for impaired driving and whether you submitted a chemical test or refused testing. Understanding the administrative process is important. When looking for a DUI attorney, make sure he or she is able to represent you in both the courts as well as throughout the administrative DMV process

The Court Process

The legal consequences of a DUI are determined by legislative statutes and implemented by the Colorado Judicial Branch. If you face a drunk driving charge, your case will be handled by the local district attorney’s office. Upon arrest for DUI, you typically receive a Uniform Summons and Complaint, marking the commencement of your court proceedings. The specifics of these proceedings, such as the requirement to post bail, can vary based on factors like your driving record and any previous criminal history. As the court process unfolds, you’ll need to make court appearances and submit your plea, a stage where various legal rights and protections are applicable.

It’s important to note that the court process is distinct from the Administrative Process, each following its own timeline and having no direct impact on the other. In the event of a conviction, the court might impose penalties including fines, jail time, mandatory treatment programs, restitution, or probation. Separately, the DMV has the authority to enforce restrictions on your driving privileges, which is crucial for maintaining safe driving standards.

This could include the loss of driver license, especially in cases of a first-time offense or failure in field sobriety tests. It’s essential to understand that the resolution of your criminal charges in court does not automatically influence DMV actions. Therefore, even if the criminal charges are dismissed, you may still face administrative consequences like the loss of driving privileges or requirements to demonstrate financial responsibility before regaining full driving rights.

Offense Jail Probation Fines Public Service
1st DWAI 2 days* – 180 days Up to 2 years $200 – $500 24 – 48 hours
1st DUI 5 days* – 1 year Up to 2 years $600 – $1,000 48 – 96 hours
1st Alcohol Conviction with a BAC >0.2 10 days** – 1 year Up to 2 years $600 – $1,000 48 – 96 hours
2nd Offense outside of 5 years 10 days*** – 1 year 2 – 4 years $600 – $1,500 48 – 120 hours
2nd Offense within 5 years 10 days – 1 year 2 – 4 years $600 – $1,500 48 – 120 hours
3rd offense 60 days – 1 year 2 – 4 years $600 – $1,500 48 – 120 hours
4th or subsequent (felony) 90 days – 6 years 2 + $2000 – $500,000 48 –  120 hours

*Regarding the 2-day jail sentence for a first DWAI and the 5-day jail sentence for a first DUI, the judge can suspend the jail sentence on the condition you undergo an alcohol and drug evaluation. Pursuant to the outcome of this evaluation, the judge will order you to attend alcohol or drug education classes and therapy.

** Regarding facing a DUI with a BAC of 0.20 or greater, you face a mandatory jail sentence of at least ten days. Although the judge cannot suspend this jail sentence, he or she can utilize sentencing alternatives rather than require that you serve straight jail time in the county jail. Sentencing alternatives in Colorado can include in-home detention, work release, day reporting, or weekend work programs depending on the County.

***If you are facing a second DUI/DWAI offense, the date of your prior will determine if you will be required to do 10 days of straight jail or if sentencing alternatives are available to you. While 10 days of jail are mandatory on any second offense, if your prior offense is older than 5 years from the date of offense on the new charge, you can serve the 10 days of jail utilizing a sentencing alternative rather that straight jail time.

What Is DUI? 42-4-1301(1)(F) C.R.S.

Driving under the influence” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

What Is DWAI? 42-4-1301(1)(G) C.R.S.

Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

When Will The DMV Take Action Against My Driver’s License?

The DMV will take action against your driver’s license if you refuse chemical testing or submit to chemical testing which results in a BAC greater than or equal to 0.08.

What does "DUI Per Se" mean?

“DUI per se” means driving with a BAC of 0.08 or more. You may also hear the term “Driving with Excessive Alcohol Content” when facing a BAC greater than 0.08. 42-4-1300.3 C.R.S.

It is important to recognize that you can be charged with a DWAI, driving while ability impaired, in Colorado for having a BAC as low as 0.05. While the potential penalties of a DWAI are less than a DUI, it is still important to understand the consequences of such a charge.

What is "Interlock?"

An Ignition Interlock is a device that is installed on motor vehicles to prohibit individuals from operating a vehicle while under the influence of alcohol. It requires your breath sample before the engine will start and you are periodically required to provide breath samples while driving. If the device detects an elevated alcohol concentration level, the vehicle will not start. It is important to understand the potential consequences of having this device installed in your car and it detects alcohol. If you are required to have this device in your car for a period of 2 years and have several instances where the device detects alcohol, your 2 year period may be extended.

You Will Be Required To Have An Ignition Interlock Device If:

You were Arrested for Driving Under the Influence before January 1, 2023

  • 1st Per Se or DUI conviction,
    • May be eligible to reinstate early after serving one month of revocation
      • 2-year interlock requirement for BAC above 0.15
    • May be eligible to reinstate early after serving one month of revocation
      • 8-month Interlock requirement for BAC below 0.15
    • 1st Per Se if under a separate driving restraint
      • May be eligible to reinstate early after either an 8-month interlock requirement (2 years for PDD Designation) or the remainder of the longest restraint period and approved by the Department for early reinstatement.
    • 2nd and subsequent DUI Per Se
      • 2 Year Interlock Required
        • May reinstate early after serving one month
          • 2-year Interlock requirement.

You were Arrested for Driving Under the Influence on or after January 1, 2023

  • 1st DUI Per Se or DUI conviction,
    • May be eligible to reinstate early on the first day the revocation action goes active
      • 2-year interlock requirement with BAC above 0.15
    • May be eligible to reinstate early on the first day the revocation action goes active
      • 9-month Interlock requirement with BAC below 0.149
      • The revocation period and interlock requirement runs concurrently
    • 1st DUI Per Se if under a separate driving restraint
      • May be eligible to reinstate early after either a 9-month interlock requirement (2 years for PDD Designation) or the remainder of the longest restraint period and approved by the Department for early reinstatement.
    • 2nd or subsequent DUI Per Se
      • 2 Year Interlock Required
        • May reinstate early on the first day the action goes active
        • 2-year Interlock requirement.

You Refused to Submit to Chemical Testing

  • Automatic 2-year Interlock requirement
    • May be eligible to reinstate early after serving two months
      • 2-year interlock

Habitual Traffic Offenders

If you are convicted of 3 “qualifying offenses” which occurred over a 7-year period of time (based on date of violation, not conviction), your license will be revoked for 5 years. A.K.A 3 within 8

“Qualifying offenses” include, but are not limited to:

  • Driving under suspension or revocation
  • Driving while ability impaired (DWAI)
  • Driving under the influence (DUI)
  • Reckless driving
  • Vehicular assault
  • Vehicular homicide

Consequences of Non-Compliance with Restricted License

Any Interlock-restricted driver who either drives a non-equipped vehicle or attempts to circumvent the proper functioning of the interlock device is subject to a license revocation with no driving for at least one year.

The Interlock device must be serviced every sixty days. An Interlock-restricted driver who fails to report for device servicing is subject to a license suspension with no driving until that driver comes back into compliance. Any driver whose interlock lease is cancelled by the provider or before the driver’s requirement is completed will be suspended until the driver enters into a new lease agreement.

If the device prevents operation of the vehicle after detecting alcohol in three of any twelve consecutive months, you may be subject to suspension and additional time on your interlock requirement, up to one year for each set of three fails.
Some individuals subject to driving restraints related to alcohol or drug issues may be allowed to reinstate their driving privileges ahead of their normal eligibility date if they participate in the Ignition Interlock program.

Can I early reinstate after a DUI?

  • Are residents of Colorado
  • Are 21 years of age or older at the time of the violation
  • Have satisfied all reinstatement requirements (other than time)
  • Have a Per Se or DUI conviction and have already served one month for the alcohol related restraint, or
  • Have a Refusal of a BAC test and have already served two months for the alcohol related restraint
  • Have a Per Se or DUI conviction are eligible on the first day the revocation action goes active (no one month waiting period)
  • Have a Per Se or DUI conviction are eligible on the first day the revocation action goes active (no one month waiting period)
  • Have a Refusal of a BAC test and have already served two months for the alcohol related restraint 

What is SR-22 Insurance

SR-22 is a form your insurance company provides you that shows you are carrying valid insurance. You may be required to file an SR-22 when you reinstate from specific suspensions and/or revocations. The SR-22 requires the insurance company to notify the DMV of any policy cancellation. The SR-22 form is not an insurance policy.

If you don’t keep the SR-22 current, the insurance company will notify the Motor Vehicle Division that the SR-22 is no longer in effect, but is still required. Your driver license will be suspended for that reason alone.

When you purchase liability insurance, the insurance agent can provide the SR-22 form. When the liability insurance with the SR-22 rider is purchased, the form must be filed with the Colorado Division of Motor Vehicles.

In addition to criminal penalties, a person charged with an alcohol-related driving offense in Colorado will face administrative consequences from the DMV. The DMV can revoke or suspend a person’s privilege to drive, even if the person does not possess a Colorado driver’s license. If you have an out of state driver’s license but commit a DUI offense in Colorado, an agreement between states will carry the penalties back to your home state.

The express consent hearing is a preponderance of evidence hearing that determines whether a person operated a motor vehicle with a blood alcohol content of .08 or more at the time of driving or within two hours of driving; or whether a person refused to take, complete or cooperate in completing a blood or breath test as required by Colorado’s express consent law

Colorado express consent hearings are ruled on by DMV hearing officers and are judged on a preponderance standard. This is a very low standard for the state to prove and thus the success of these hearings is often less than desired. However, this hearing will only determine the status of your driving privileges in Colorado.

This hearing is completely separate from your criminal proceedings, and winning an administrative license hearing does not mean your criminal case will be dismissed and vice versa. The Hearing Officer at the DMV gets paid to revoke people’s driving privileges and will do everything they can to revoke yours. It is that simple.

The only logical answer here is, yes. Any attorney who handles DUI defense should also handle your express consent hearing. Even though the odds are stacked against you at the hearing, they are well worth requesting and attending. There is no risk in requesting the hearing and the only way to have a chance of saving your license from revocation is to request the hearing and win the hearing. The best part is, if you hire the right attorney, they can do the hearing for you, and you don’t even have to appear!

A great DUI defense lawyer will know how to issue spot when reviewing the express consent packet and participating in the hearing. Some basic questions the hearing officer will have to answer including what the basis for the stop was, is there probable cause to request a chemical test, was the respondent properly advised of express consent, was there a response, and did the chemical test comply with rules and regulations.

The hearing is also a great opportunity to get the officer’s testimony under oath and use that testimony to impeach the officer in the criminal case. While not common, occasionally officers paint a different picture than their written reports. The district attorney will not be present at these hearings, so they are often not privy to what happened. Giving your attorney an opportunity to question the officer and use that information in the criminal case often can be priceless.

However, you should know that the DMV hearing process is generally unfavorable. Since your express consent hearing is not technically a criminal matter, you will have very few constitutional rights. You can even be called as a witness against yourself. The DMV hearing officer is not a judge, and maybe not even a lawyer. In fact, the hearing officer is a paid DMV employee who serves as both the prosecutor and judge in your case.

Upon conclusion of your express consent hearing, the hearing officer will make a decision based upon evidence presented at the hearing. The hearing officer will take one of three actions, (1) revoke your driver’s license, (2) dismiss the action, or (3) request additional time to issue a written ruling. A written ruling doesn’t mean the hearing officer is leaning one way or another. Some hearing officers prefer to issue written rulings, and some may need additional time to do research before deciding the outcome of a hearing.

If your breath test result was .08 or greater, or if you were deemed to have refused testing, you must request a hearing within seven calendar days of your arrest in order to preserve the right to a DMV hearing. If you fail to do so, you forfeit your right to a hearing and your driving privileges will automatically be revoked.

 

If you took to a blood test, you are awaiting a letter in the mail called an “Order of Revocation.” If the results of your blood test indicate your BAC was .08 or higher, you will receive this letter from the Colorado DMV. You then have 10 days from the postmarked date of that letter to surrender your license and request a hearing. The idea is to give the post carrier 3 days to deliver it and provide you 7 days to request the hearing, similar to a breath test or refusal

If you fail to surrender your driver’s license at the time you request your hearing, the DMV will not grant you a temporary 60-day driving permit. If you fail to request an express consent hearing within the proper time frame, your driving privileges will automatically be revoked and you will have waived your right to a hearing.

If you are waiting on an Order of Revocation letter, you must ensure that the DMV has your correct mailing address. It does not matter if you gave the police officer your correct address; you must also officially update your address with the Colorado DMV through a change of address form or by submitting a change of address online.

You can go to any full-service DMV location that offers driver’s license services in order to request hearing. Get in line for Driver Services/Licenses. If you do not have a state ID or another picture ID (other than your driver’s license), get into the line while you are waiting for the Driver Services/Licenses and obtain a state ID.

They may say you cannot have a state ID and a driver’s license at the same time. Inform them that you will be surrendering your driver’s license momentarily. Once called by Driver Services/Licenses, go to the window and hand them the letter you received titled “Order of Revocation” and also give them your driver’s license.

You will then request an express consent hearing on your alleged DUI. The DMV will give you a yellow carbon copy document that will serve as your 60-day driving permit. This document is called a Request for Administrative Hearing Pursuant to Notice of Revocation for Express Consent. This is now your driver’s license.

Do not drive without this temporary license in your possession. This license does not have restrictions, except that it is a paper license and not a hard copy.

You are now waiting on the Colorado DMV to send you a final letter called a “Notice of Hearing.” This letter will tell you the time, date and location of your express consent hearing. If you fail to notify the DMV of your correct mailing address, you may not receive this letter and thus you will not be present for your hearing.

What to Do If You Took a Breath Test or Refused a Test

Upon being released from jail, detox, the hospital, or some other form of custody, you should have been given a document titled Express Consent Affidavit and Notice of Revocation. This is often a yellow carbon copy document or a white piece of paper. The police officer should have confiscated your driver’s license as well.

The Express Consent Affidavit and Notice of Revocation is your seven-day driving permit. You must report to the DMV within seven days and request a hearing or you will automatically lose the right a hearing. You would also lose your license for nine months in a first offense case or one year for a second / third offense or a refusal.

I've Been Arrested for Underage DUI. Now What?

Minors face different revocations than adults do for alcohol-related offenses in Colorado. The legal limit for a minor is .02 blood or breath alcohol. For example, if a minor (under 21) is criminally convicted of underage drinking and driving (a BAC .02 to .049), he/she will face a three month revocation. However, if he/she is criminally convicted of a DWAI / DUI, a one-year revocation will be imposed.

If the minor has a BAC between .02 and .079, the DMV will revoke the license for three months. The minor is eligible for a probationary license after 1 month of no driving. A second revocation for this is six months, and a third or subsequent is one year.

How many points can I get on my driver’s license?

Age 12 Month Period 24 Month Period Life of License
16 – 17 6 points   7 points
18 – 20 9 points 12 points 14 points
21+ 12 points 18 points  
Chauffeur 16 points 24 points 28 points within any 48 month period

What happens if I get too many points?

You will receive a notice in the mail stating you have received excessive points and your license will be suspended. However, you can request a point suspension hearing and argue for a less severe penalty.

A point suspension can be anywhere from one day to one year. The way the hearing officer approaches these hearings is to start at the baseline of 6 month suspension. Then the hearing officer will look at what aggravating and mitigating factors are present. Aggravating factors will increase the length of the suspension and mitigating factors will decrease the length of suspension.

You may also be eligible for a probationary driver’s license, or PDL. A Probationary driver’s license is like a red license. It carries certain restrictions that you must comply with in order to maintain the probationary driver’s license.

For a guide on how to handle these types of suspensions, contact us or view our guide here.

Legal Guides

Whether you are a driver with excess points or a lawyer representing such clients, discover the do’s and don’ts for when you receive that DMV notice trying to suspend your license for excessive points more.

Vehicular Assault 18-3-205 C.R.S.

In Colorado, the crime of Vehicular Assault is defined by Colorado Revised Statute 18-3-205 C.R.S. This law makes it a felony for a driver to operate a vehicle under the influence of alcohol and/or drugs or in a reckless manner and cause serious bodily injury to another.

It is important to understand the severity of the penalties these crimes can carry and how they are prosecuted. If you have been charged with vehicle assault, it may appear like a simple DUI and car accident case. However, someone was seriously injured, so the prosecution and Judge take these cases very seriously. The odds that the injured party will be involved in the prosecution and want you to pay for your actions are also very high, which makes handling these cases complex. You need to hire an experienced defense attorney who knows how to handle these cases and is willing to fight for the best outcome for you.

Many of these cases end up going to trial because the prosecution’s offer often can be an unreasonable ask for the everyday citizen. You need to ensure the attorney you hire is well-equipped and does not pressure you into accepting an unfair offer because he/she is afraid of representing you at trial.

Vehicular Assault – Class 4 Felony: The defendant unlawfully drove or operated a motor vehicle in Colorado while under the influence by alcohol, or drugs, or both alcohol and drugs, and the conduct was the proximate cause of serious bodily injury to the alleged victim, in violation of 18-3-205 (1)(b), C.R.S. This crime carries a 2-6 year prison sentence in the presumptive range.

 

Vehicular Assault – Class 5 Felony: The defendant unlawfully drove or operated a motor vehicle in Colorado in a reckless manner, and the conduct was the proximate cause of serious bodily injury to the alleged victim, in violation of 18-3-205 (1)(a), C.R.S. This crime carries a 1-3 year prison sentence in the presumptive range.

Vehicular Homicide 18-3-106 C.R.S.

Vehicular Homicide charges are extremely serious. Like murder cases, Vehicular Homicide cases are among the most aggressively prosecuted cases in Colorado. Vehicular Homicide cases are very emotional and understandably so. Whether the deceased person was your passenger, a pedestrian or an occupant of another vehicle, the grief and emotions surrounding the loss of life of another person can often be overwhelming. Persons accused of vehicular homicide often report feeling a tremendous amount of guilt and remorse over a fatal accident. Although valid, this warranted sentiment does not alleviate the necessity of retaining a qualified DUI defense team to fight to protect your rights and make sure you receive the best possible outcome in your Vehicular Homicide case.

The crime of Vehicular Homicide is defined by Colorado Revised Statute 18-3-106 C.R.S. This law makes it a felony for a driver to operate a vehicle under the influence of alcohol and/or drugs or in a reckless manner and cause the death of another person.

Vehicular Homicide – Class 3 Felony: The defendant unlawfully drove or operated a motor vehicle in Colorado while under the influence by alcohol, or drugs, or both alcohol and drugs, and the conduct was the proximate cause of death to another, in violation of 18-3-106 (1)(a), C.R.S. This crime carries a 4-12 year prison sentence in the presumptive range.

Vehicular Homicide – Class 4 Felony: The defendant unlawfully drove or operated a motor vehicle in Colorado in a reckless manner or while driving while ability impaired, and the conduct was the proximate cause of death to another person, in violation of 18-3-106 (1)(a), C.R.S. This crime carries a 2-6 year prison sentence in the presumptive range.

Exercise Your Right to Remain Silent

To safeguard your rights and maintain your freedom, especially in cases involving the influence of drugs, drunk driving, or other alcohol-related criminal offenses, it is crucial to invoke your Fifth Amendment right to remain silent. Law enforcement officers are skilled in interrogation techniques designed to elicit self-incriminating statements. Every word you utter can be used against you in a legal setting, often with significant consequences for subsequent offenses under drunk driving laws.

Many individuals mistakenly believe that explaining their situation to a law enforcement officer will resolve the issue, particularly in scenarios of drunk driving or when under the influence of drugs. This misconception can lead to self-incrimination, as even the tone of your speech may be interpreted as evidence. Law enforcement’s advanced training in linguistic analysis and interrogation tactics can easily lead to an inadvertent confession, thereby escalating a simple alcohol consumption incident into a serious criminal offense.

To avoid compromising your legal position, it is advisable to exercise your right to silence in the presence of law enforcement and immediately request an attorney. Your defense attorney is equipped to communicate on your behalf and can instruct law enforcement to cease any further interrogation. The moment you seek legal representation, law enforcement must halt their questioning. With a lawyer, you can discuss your case openly, ensuring that your defense is handled appropriately and your rights are protected in cases of drunk driving or offenses related to the influence of drugs.

Consulting a Denver DUI Lawyer

You are likely aware of the significant risks involved if the prosecution infringes upon your rights. However, this situation can be avoided. Engaging DeChant Law’s legal team significantly enhances your defense strategy against criminal charges in Colorado.

It’s important to recognize that the Colorado criminal justice system is inherently advantageous to the prosecution until you secure legal representation. It’s only with an attorney that you level the playing field. We understand that this period is fraught with stress, upheaval, and emotional turmoil, making clear thinking a challenge. Amidst these circumstances, one thing remains certain: choosing Reid DeChant to advocate for you in court is the most crucial decision you can make at this juncture.