Rhidian D.W. Orr DUI/DWI Law Blog on Lawyers.com

2010 DUI/DWAI Penalties

H.B. 1347

Rep. Levy

Sen. Morse

Colorado Commission of Criminal and Juvenile Justice Bill

¿         Repeals the penalty section [42-4-1301(7)], and moves it to its own statute, 42-4-1307.

¿         Defines conviction to include verdict or plea, and DJ&S unless successfully completed.

¿         Determines the penalty based on number of convictions rather than DUI v. DWAI...

¿         First Offense Penalties (meant not to change, but inadvertently – due to a drafting error -  there will be some change as noted in italics below):

o   DUI

§  5 days to one year, the minimum is mandatory except as provided in 42-4-1301.3.  42-4-1301.3 (2)(b)  did apply to first offenses, but still retains the statutory cite to the old statute, under 42-4-1301(7).  The new 42-4-1307 changes 42-4-1301.3(2)(a) apply to all 42-4-1307 violations, including first offenses.  The conflict/changes are as follows:

¿         Immediate sentencing – 42-4-1301.3 (2) requires a presentence evaluation,  but 42-4-1301.3 (1) does allow for immediate sentencing on a first offense, as does 42-4-1307.  

¿         Suspension of mandatory sentences on first offenses – should still be allowed as it was (and maybe still is) under 42-4-1301.3(2)(b) as that applied to first offenses; and the new 42-4-1307(3)(I) and (4)(I) allow suspension as under 42-4-1301.3.   It would be nonsensical to have a statute allowing for suspension of the mandatory sentence while referring to a statute that does not.

¿         Monitored abstention from the use of alcohol for one year.  This will apply to first offenses for DUI and DWAI.  (This change was definitely NOT intended and it is not clear how this will play out in practice.  Prosecutors have been told that this was not the intent of the Commission but an error by the drafter.  It is not clear what each will do with this.  Plan is to change in 2011 session.)

§  $600.00 - $1,000.00 fine.

§  48 – 96 hours of mandatory public service

§  2 years of discretionary probation that can include other conditions.

o   DWAI

§  2 days to 180 days, the minimum is mandatory except as provided in 42-4-1301.3, with the same caveats as noted above in DUI.

§  $200.00 - $500.00 fine

§  24 – 48 hours of mandatory public service

§  2 years of discretionary probation that can include other conditions.

o   If a first time offender has a BAC of above .20 the Court must impose a 10 day jail sentence regardless of whether the conviction is for DUI, DUI per se, or DWAI.  The 10 days may be served in sentencing alternative programs under 18-1.3-106 (i.e. work release, home detention, etc.)  Convictions of DUI, DUI per se, or DWAI at .20 and above also currently have a fine in the Court’s discretion of $1,000 - $1,500, and 60 – 120 hours of useful public service., with this new penalty section the fine and community service are the same as other first offenses.

¿         Multiple Offenses:

o   Prior offense means convicted of: DUI, DUI per se, DWAI, or Habitual User and at the time of sentencing you have one or more  prior convictions for:

§  DUI,

§  DUI per se,

§  DWAI,

§  Habitual User,

§  Vehicular Homicide (based on under the influence),

§  Vehicular Assault (based on under the influence),

§  HTO (as a felony based on DUI or DWAI), or

§  DUR alcohol/drug

o   Prior convictions can be under the laws of any State, the United States, or any territory of the United States.

§  Prima facie proof of a prior conviction:

¿         Prosecution and defense stipulate

¿         Driving record from DOR from Colorado or any state

¿         Authenticated copy of conviction from court.

§  No requirement to plead or prove the previous conviction at trial

§  No immediate sentencing in cases with priors if the prosecution and defense have not stipulated to the priors, or if the prosecutions requests time to get a driving record or court record.

o   Penalties for multiple offenses:

§  Jail as Punishment – Second Offenses:

¿         If the second offense is within 5 years of the first:

o   10 days to 1 year jail – for the minimum mandatory time:

§  Days served must be consecutive

§  No earned time

§  No good time

§  No trusty prisoner status

§  Shall receive credit for time served prior to conviction

o   Sentencing alternative programs pursuant to 18-1.3-106, such as home detention and general work release - not allowed for the minimum mandatory sentence, but are allowed for additional time.

o   For the minimum mandatory sentence, work release is allowed only:

§  If the County has such program available

§  To continue employment held at the time of sentencing

§  To continue attendance at an educational institution at which the person was enrolled at the time of sentencing.

§  Participation in Level II treatment program.

¿         If the second offense is outside of 5 years of the first:

o   10 days to 1 year jail – for the minimum mandatory time:

§  Days served must be consecutive

§  No earned time

§  No good time

§  No trusty prisoner status

§  Shall receive credit for time served prior to conviction

o   Sentencing alternative programs pursuant to 18-1.3-106, such as general work release and home detention - allowed for the entire sentence.

§  Jail as Punishment - Third and Subsequent Offenses:

¿         60 days to 1 year jail  - for the minimum mandatory time:

o   Days served must be consecutive

o   No earned time

o   No good time

o   No trusty prisoner status

o   Shall receive credit for time served prior to conviction

¿         Sentencing alternative programs pursuant to 18-1.3-106, such as home detention and general work release - not allowed for the minimum mandatory sentence, but are allowed for additional time.

¿         For the minimum mandatory sentence, work release is allowed only:

o   If the County has such program available

o   To continue employment held at the time of sentencing

o   To continue attendance at an educational institution at which the person was enrolled at the time of sentencing.

o   Participation in Level II treatment program.

§  Day for day credit pursuant to 18-1.3-106(12) is not allowed for any sentence to a county jail alternative program, such as home detention or work release (for second and subsequent offenses only).

§  Other sentencing conditions for all second and subsequent offenses:

¿         $600 - $1,000 fine

¿         48 – 120 hours public service

¿         2 years probation:

o   Required:

§  Starting at the commencement of the sentence

§  Suspended 1 year of jail as a condition of probation.

¿         No credit is to be given for any period of imprisonment given as punishment.

§  Level II treatment program

o   Discretionary with court:

§  Commencement of treatment during imprisonment.

§  Require defendant to report to court at any time.

§  Require ignition interlock.

§  Require continuous alcohol monitoring devices.

§  Additional conditions as permitted by law.

§  An additional 2 years of probation as needed, but only if two or more convictions of DUI, DUI per se, DWAI, Habitual User, or UDD.

o   Violations of probation:

§   Court may impose all or part of the suspended sentence (up to a year) if the defendant violates a condition of probation.

§  Probation continues while serving jail as a sanction.

§  Imprisonment sanction to be used in a manner to promote compliance with probation. NOTE: This is an important section for defense lawyers. Jail time should be used in accordance with a drug court type model. 

§  Prosecution, defendant, or probation officer can apply for early termination of probation, which may be granted only upon a finding that:

¿         Successful completion of Level II, and

¿         Otherwise complied with probation, and

¿         Early termination will not endanger public safety.

¿         Courts are encouraged to use interlock devices as a condition of bond, probation, or any sentence to a jail alternative.

• Additional Penalties for all offenses:
  • Required:
    • Crime Victim Compensation Fund Costs pursuant to 24-4.1-119(c).
    • Persistent drunk driver fund surcharge ($100 - $500, unless indigent).
    • $20.00 to the traumatic brain injury trust fund.
    • Rural Substance Abuse Program Fund ($1 - $20, unless indigent).
    • Restitution.
    • Costs of pre and post sentence alcohol and drug evaluation and supervision services.
    • Up to $120 for community service.
  • Discretionary:
    • Victim impact panel.

• Aggravated Driving with a Revoked License (HTO) - HTO based on DUI, DUI per se, or DWAI:
  • The court shall convict and sentence for each offense separately.
  • The court shall impose all penalties for the alcohol-related driving offense.
  • The provisions of 18-1-408 shall not apply.
  • Probation for HTO may run concurrently with probation for alcohol/drug driving offense.
  • The Department of Revenue shall reflect both convictions on the driving record.

• Persistent Drunk Driver Fund:
  • The Judicial Branch is added to the departments that shall coordinate the programs and goals of the fund to deter persistent drunk driving or educate the public.
  • Added to what the fund may pay for:
    • Assist in providing court-ordered treatment programs for indigent and incarcerated offenders.
    • Assist in providing ignition interlock devices for indigent offenders.
    • Assist in providing continuous monitoring devices for indigent offenders.

• A treatment program cannot require an offender to repeat the portion of treatment that was completed while incarcerated for the current offense.

Effective Date:  Offenses committed on or after July 1, 2010.

.    

Statute Repealed:

§ 42-4-1301(7) – DUI/DWAI penalties

Statute Created:

§ 42-4-1307 – Penalties for traffic offenses involving alcohol and drugs

Statutes Amended:

§25-1-217 – Rural alcohol and substance abuse prevention and treatment program

§26-1-302, 304, 305,306,309 – Colorado traumatic brain injury trust fund

§ 42-2-206 – Driving after revocation prohibited

§42-3-303 – Persistent drunk driver cash fund – programs to deter persistent drunk drivers

§43-4-402 – Source of revenue – allocation of moneys

§42-4-1301.3 – Alcohol and drug driving safety program

For more information about Denver Colorado DUI Defense Attorneys contact The Orr Law Firm LLC at 303-818-2448 or www.orrlaw.com