When is DUI a class 4 felony in Colorado?

Colorado DUIs are prosecuted as class 4 felonies in the following two situations:

1. The defendant has three prior convictions of DUI, DUI per se, or DWAI; or
2. The incident caused serious injury, even if the defendant has no prior DUIs

1. Fourth-time DUIs

Driving under the influence of alcohol or drugs is typically a misdemeanor in Colorado. But 42-4-1301 C.R.S. makes a fourth-time offense a class 4 felony.

Penalties

Class 4 felony sentences include:

• Fines of $2,000 to $500,000; and/or
•  2 to 6 years in Colorado State Prison with a mandatory 3-year parole period

(The sentencing range can be increased to 4 to 12 years if there are extraordinary aggravating circumstances. This usually happens when defendant was on parole, on probation, or on bond for another felony.)

However, the judge might not impose prison if:

• The defendant is willing to do undergo rehab for drug- or alcohol abuse; and/or
• There are alternative penalties that may work while not causing a public safety risk

If the court grants probation, the punishment must include:

• 90 to 180 days in jail or 120 days to 2 years in jail through an alternative-sentencing program;
• Community service from 48 to 120 hours; and
• A level II alcohol and drug education class

Prior convictions

Any DUI-related conviction in Colorado or another U.S. state or territory qualifies as a “prior.” This includes:

• DUI,
• DUI per se,
• DWAI,
• Vehicular assault (18-3-205 C.R.S.), and/or
• Vehicular homicide

It is irrelevant whether the prior convictions were all the same DUI offense or a combination. It does not matter how long ago these convictions occurred. And it makes no difference if no one was injured.

Note that juvenile DUI convictions typically are not considered priors. An exception is if there is a pending deferred judgment.

Also note that past DUI charges that get dismissed or reduced do not count as “priors.”

2. DUI with injury

DUIs that result in a serious injury is a class 4 felony under 18-3-205 C.R.S. This is called “vehicular assault.” It does not matter if the defendant never committed DUI before.

Penalties

Class 4 felony sentences include:

• Fines of $2,000 to $500,000; and/or
•  2 to 6 years in prison with a mandatory 3-year parole period

However, the judge might not impose prison if:

• The defendant is willing to do undergo rehab for drug- or alcohol abuse; and/or
• There are alternative penalties that may work while not causing a public safety risk

“Serious injury”

A “serious bodily injury” comprises the following:

• Permanent disfigurement;
• Protracted loss or impairment of a bodily or organ function;
• Broken bones; or
• Burns that are second- or third-degree

Note that DUI causing death is prosecuted as a class 3 felony. This is called “vehicular homicide.” This carries:

• Fines of $3,000 to $750,000; and/or
• 4 to 12 years in prison with a mandatory 5-year parole period

3. Defenses

Just some possible defenses to DUI charges include:

1. The police lacked probable cause to arrest the defendant;
2. The field sobriety tests were not administered correctly;
3. There were problems with the breath- or blood-testing equipment; and/or
4. The defendant suffered from a medical condition that caused a high blood alcohol content (BAC) result

Defense attorneys may consider hiring an accident reconstruction expert. In vehicular assault cases, perhaps the expert can demonstrate that the injury was not caused by the defendant’s actions.