If you are accused of violating your DUI probation in Colorado, you can have a probation violation hearing (also called a “revocation hearing”). This is where the court determines whether you indeed violated court orders and, if so, whether to give you a second chance to stay on probation.
Below I discuss DUI probation in general, what happens if you get accused of violating probation, and how probation violation hearings work in Colorado. This information applies whether you were convicted of:
- DUI – driving under the influence of alcohol,
- DUI per se – driving with a blood alcohol content (BAC) of 0.08% or higher,
- DUID – driving under the influence of drugs, or
- DWAI – driving while ability impaired.
What is a DUI probation violation?
There are two types of probation violations in Colorado: 1) “technical” or 2) “substantive.”
Technical violations are when you break the rules the judge imposed on you as a condition of staying out of jail. In Colorado DUI cases, ten common technical violations of probation include:
- not paying court fines or the monthly $50 supervision fee
- not completing community service (“public service”)
- not taking DUI School (a 3-day Level I course or a 12-week to 10-month Level II course)
- not attending the victim impact panel (usually a 3-hour MADD lecture)
- not completing rehab or failing to take disulfiram (Antabuse)
- missing or failing a urine analysis drug test (called a “hot UA” or “diluted UA”), or failing a breath analysis test on your ignition interlock device (called a “hot BA”)
- not checking in with your PO (probation officer) or failing to update your PO if you move or get a new job
- not letting law enforcement conduct a warrantless search of your person, home, or vehicle
- possessing a firearm during probation
- leaving the state without the PO’s permission
In contrast, substantive violations – also called “new law violations” – are when you get arrested again for a new crime.1 With substantive violations, you risk not only getting your probation revoked but also picking up entirely new criminal charges.
What happens if I am accused of violating probation?
If your alleged violation was minor, your PO may choose to let you off with a warning.
Otherwise, the probation department will file with the court what is called a Complaint and Report of Probation Officer (“C+R”) that spells out your alleged violations and the PO’s recommendations.
Unless you are already in custody, the court will then either:
- issue a warrant for your arrest; or
- issue you a summons to appear in court.
If you learn there is an arrest warrant out for you, contact me immediately. I may be able to prevent you from being arrested at home or at work. I may even be able to negotiate a resolution where the PO agrees to the withdraw the complaint.
What happens after the arrest or summons?
Once you are in court in Colorado, the judge will ask if you admit to or deny the alleged DUI probation violation. If you admit to violating your probation, the judge will likely sentence you immediately – though some judges may allow you to have a later sentencing date.
If you deny violating probation – which you should do in nearly all cases – the court will schedule a revocation hearing. The judge can release you on bail/bond until the hearing.
If you remain in custody, the hearing must occur within 14 days of the complaint being filed.
Failing a breath test is grounds for a judge to revoke probation in DUI cases.
What if I am accused of a “new law violation”?
If the only allegation against you is that you picked up a new criminal case while on probation, the judge will postpone the revocation hearing until this new case is resolved. This is because there can be no probation revocation if:
- your new case eventually gets dismissed or
- you are acquitted at trial because the district attorney fails to prove guilt beyond a reasonable doubt.2
If you are accused of both a new law violation and a technical violation, the court can go ahead and hold a probation hearing on the technical violation.
Are probation violation hearings hard to win?
Winning a probation revocation hearing in Colorado DUI cases can be challenging because the prosecutors’ burden of proof is only by a preponderance of the evidence.
In other words, the D.A just has to show that it is more likely than not that you violated the conditions of your probation. This 51% civil standard is a much lower bar than the “beyond a reasonable doubt” standard in criminal trials.3
Furthermore, the evidentiary and hearsay rules are much more relaxed in probation revocation hearings than they are in criminal trials. Plus a judge – and not a jury – decides the outcome, and judges tend to be less sympathetic than juries.
That said, I know from experience probation violation hearings can be winnable. Sometimes we can avoid them altogether if I can negotiate ahead of time with prosecutors.
Defendants accused of violating probation are entitled to due process under Colorado criminal law.
What happens at the hearing?
Colorado probation violation hearings resemble trials. You have the right to:
- be represented by legal counsel,
- admit evidence and to cross-examine/confront witnesses, and
- remain silent.
My goal is to show that you did not violate probation or – if you did – it was an accident. An unintentional probation violation is still a violation, but judges tend to go easier on defendants for honest mistakes.
Meanwhile, during breaks I can still negotiate with the probation department. If they see our case is strong, they may agree to drop the complaint, possibly in exchange for harsher probation conditions.
After both sides are done presenting their side during the hearing, the judge has seven days to determine whether or not to revoke your probation. Though in practice, judges typically decide right away.
What can the judge do to me?
There are three possible outcomes of DUI probation revocation hearings in Colorado.
One, the judge determines that no violation occurred, and you will remain on probation as if nothing happened.
Two, the judge determines you violated probation but deserve a second chance. In these cases, the judge will likely toughen the terms of your DUI probation with “punitive sanctions.” Ten examples are:
- a GPS monitoring anklet,
- an alcohol monitoring anklet
- more community service,
- higher fines,
- a longer license suspension,
- a longer probation term,
- more rehab/therapy,
- house arrest,
- work release, and/or
- some jail time (or a divided sentence where only weekends are spent in jail).
Three, the judge revokes your probation. This means you will likely be remanded to jail to serve out the remainder of your sentence. In first-time DUI cases, the jail sentence is up to one year.4
Is fighting probation revocation worth it?
Yes. Even though fighting a probation violation allegation is an uphill battle in Colorado DUI cases, it is worth doing – either by negotiating with prosecutors or going through with the hearing.
This is especially true if your probation is part of a deferred judgment where your case gets sealed once probation ends – the best case scenario.
Should I ever waive the probation violation hearing?
It may make sense to waive your right to a probation revocation hearing if I can make early contact with the prosecutor and work out a deal. In many cases, the judge will allow you to remain on probation if the D.A. agrees to it ahead of time.
Additional Reading
For more in-depth information on DUI probation, refer to these scholarly articles:
- The Challenges of Screening DUI Offenders – Criminology and Public Policy.
- Probation and the Drunk Driver: A Cost of Being MADD – Federal Probation.
- Alcoholics Anonymous as a Condition of Drunk Driving Probation: When Does It Amount to Establishment of Religion – Columbia Law Review.
- Drug Use and Criminal Activity Among Rural Probationers With DUI Histories – International Journal of Offender Therapy and Comparative Criminology.
- A mobile support system to assist DUI offenders on probation in reducing DUI relapse – UbiComp ’17: Proceedings of the 2017 ACM International Joint Conference on Pervasive and Ubiquitous Computing and Proceedings of the 2017 ACM International Symposium on Wearable Computers.
Legal References
- CRS 16-11-206. Revocation Hearing
(1) At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section 16-7-207 insofar as such matters are applicable; except that there is no right to a trial by jury in proceedings for revocation of probation.
(2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty.
(3) At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding. When, in a revocation hearing, the alleged violation of a condition is the probationer’s failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation. The court may, when it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, continue the probation revocation hearing until the termination of the criminal proceeding. Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.
(4) If the probationer is in custody, the hearing shall be held within fourteen days after the filing of the complaint, unless delay or continuance is granted by the court at the instance or request of the probationer or for other good cause found by the court justifying further delay.
(5) If the court determines that a violation of a condition of probation has been committed, it shall, within seven days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted.See also CRS 42-4-1307 – Penalties for traffic offenses involving alcohol and drugs – legislative declaration – definitions – repeal. CRS 42-4-1301.3 – Alcohol and drug driving safety program – definition. CRS 42-4-132.5 – Mandatory and voluntary restricted licenses following alcohol convictions – rules. CRS 18-1.3-204 – Conditions of probation – interstate compact probation transfer cash fund – creation. - Same.
- CRS 16-11-205.
- See note 1. CRS 42-4-1301. People v. Carr, (1974) 185 Colo. 293, 524 P.2d 301. See also People v. Blackwell (Colo. App. 2016) 409 P.3d 558.
