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If you are accused of violating probation in a Colorado DUI or DWAI case, you are entitled to a revocation hearing where the prosecution has the burden to prove that you did in fact violate your probation.
If you win the hearing, you stay on probation. If you lose the hearing, the judge may either
A DUI probation violation is triggered when you break one or more of the plea bargain rules the judge imposed on you as a condition of staying out of jail. Ten examples of DUI probation violations – called “technical violations” – include:
It is also a violation of the terms of your probation sentence to pick up a new criminal case while your DUI case is still open. This is called a “new law violation” or a “substantive violation” because it literally involves a new criminal offense in addition to the preexisting DUI one.1
Picking up a new law violation is the worst type of violation of probation. Not only can your probation be revoked; but also you may be charged with an entirely new criminal case.
If the probation department believes you violated a condition of probation in your Colorado DUI case, it will file with the court a probation revocation complaint (which you have the right to see). Unless you are already in custody for a “new law violation,” the court may then:
(If you learn there is an arrest warrant out for you, contact a probation violation attorney immediately. Your attorney may be able to resolve the matter with the prosecutor or at least schedule a surrender so you avoid being arrested at home or work.)
Once you are in court, the judge will ask you if you admit to or deny the alleged violation. If you admit to violating 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 – but sometimes it can occur as soon as seven days after the complaint).
Failing a breath test is grounds for a judge to revoke probation in DUI cases.
Note if the case involves only a “new law violation” and no technical violations, the judge will likely postpone (“trail”) the revocation hearing until the new criminal case is resolved. This is because there can be no probation revocation if:
If you are accused of a “new law violation” while you are on DUI probation, do not admit to it. Otherwise, the judge can use your voluntary admission as reason to revoke your probation.
Also note that there are situations where it may make sense to waive your right to a probation revocation hearing if your attorney 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.
The odds of winning a probation revocation hearing in Colorado DUI cases are lower than winning a trial. This is 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.
Furthermore, the evidentiary rules are much more relaxed in probation revocation hearings than they are in criminal trials. For example, judges allow the parties to introduce hearsay evidence.
In addition, your DUI lawyer is trying to convince the judge – and not a jury – that you should remain on probation. There are no juries in revocation hearings, and juries tend to be more sympathetic than judges.
Defendants accused of violating probation are entitled to due process under Colorado criminal law.
Otherwise, revocation hearings resemble trials in that you have the right to legal counsel, and both sides may admit evidence and cross-examine witnesses. You also have the right to remain silent, and your testimony cannot be coerced or given under undue influence.
If the judge determines that no violation occurred, you will remain on probation as if nothing happened. If the judge determines you violated probation but deserve a second chance, the judge will likely harshen the probationary terms. This may include “punitive sanctions” such as
Though if the judge revokes your probation, 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.3
Even though fighting a probation violation allegation is an uphill battle, it is worth doing – either by negotiating with prosecutors or having a 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.
Accused of a Colorado probation violation? For more information, contact our criminal defense lawyers for legal advice. Our Colorado law firm has offices in Denver, Colorado Springs, and Loveland, and we appear in jurisdictions throughout the state.
Our Denver criminal defense attorneys defend against all types of felony and misdemeanor criminal charges, from DWAI to domestic violence, throughout the state of Colorado.
See our probation violation lawyers’ related articles on Colorado ignition interlock device rules, DUI driver’s license suspensions, and Top 20 DUI defenses.
Michael Becker has over a quarter-century's worth of experience as an attorney and more than 100 trials under his belt. He is a sought-after legal commentator and is licensed to practice law in Colorado, Nevada, California, and Florida.