In Colorado, committing three or more serious traffic offenses (such as DUI, reckless driving, or driving under restraint) within a span of seven years can get you classified as a habitual traffic offender.
This results in a five-year driver’s license revocation. Motorists caught driving on a suspended license in Colorado get charged with DARP – driving after revocation prohibited (CRS 42-2-206). DARP is a traffic misdemeanor that may carry county jail time.
Examples
- Kyle already has 2 recent convictions for reckless driving. He gets arrested and convicted for driving under the influence. His license is revoked for being a habitual offender.
- With his license revoked, Kyle drives again. He gets pulled over and charged with DARP.
In this article, our Denver Colorado criminal defense attorneys discuss the five things you should know:
Having too many tickets carries consequences under Colorado habitual traffic offender law.
1. What is an HTO?
In Colorado, CRS 42-2-202 defines a habitual traffic offender (HTO). You can become an HTO in two ways:
- By having too many convictions of major traffic offenses, or
- By being assessed too many DMV points.
Once you become an HTO, your license will be revoked.
HTO Due to Traffic Convictions
The Colorado DMV will designate you as an HTO if you rack up three or more convictions in the last seven-year period for any of these offenses:
- Driving under the influence (DUI) of alcohol or drugs (or DUI per se),
- DUI for marijuana,
- DUI with a child in the car,
- DUI causing an injury,
- Driving while ability impaired, or DWAI,
- Reckless driving,
- Driving under a suspended, denied, or revoked license, also known as driving under restraint (DUR),
- Making a statement as required under Colorado’s motor vehicle law, and the statement is false,
- Vehicular assault,
- Vehicular homicide,
- Motor vehicle theft, or
- Hit-and-run involving death or serious injury.1
These convictions could have happened in Colorado or elsewhere.2 They have to be separate and distinct offenses, though, which means they happened more than 24 hours apart.
HTO Due to DMV Points
The Colorado DMV will designate you as an HTO if you rack up – in the last five years – either:
- 10 or more infractions that add 4 or more points, or
- 18 or more infractions that add 3 or fewer points.3
These points must also be built up in separate and distinct traffic case offenses, which means the offenses happened more than 24 hours apart. They also have to be for moving violations, not parking tickets:
The Colorado DMV is under no legal obligation to warn you if you build up DMV points.4 Instead, you have to keep track on your own. You can check your record by buying a copy of it at the DMV.
Operating a motor vehicle on a revoked license is a traffic misdemeanor.
2. What is DARP?
If you drive after your license has been revoked due to being a habitual traffic offender, you can be arrested and charged under CRS 42-2-206: This statute outlaws “driving after revocation prohibited” or DARP.
Note that you face more serious “aggravated DARP” charges if Colorado prosecutors can prove beyond a reasonable doubt the following elements of the crime:
- You are an HTO,
- You are caught driving on a revoked license, and
- You either:
- were driving recklessly,
- eluded or tried to get away from police (“vehicular eluding”),
- committed a hit-and-run, or
- were involved in a crash and failed to report it.
3. Defenses
Here at Colorado Legal Defense Group, we have represented literally thousands of people designated as habitual traffic offenders. In our experience, the following defenses have proven very effective with prosecutors and judges and getting traffic charges and DARP cases dropped.
There Are Errors on Your DMV Record
It is no surprise that big bureaucracies like the DMV make mistakes. We have seen many people’s driving records that were riddled with errors.
Prosecutors rely on DMV records to show that you are a habitual traffic offender. However, once we present evidence that the record is incorrect and that you are not an HTO, that could prevent a license revocation.5
You Were Not the One Driving the Vehicle
We have seen cases where police pull over the wrong car and therefore arrest the wrong driver for a traffic offense. This is not uncommon on busy, fast city roads where many of the vehicles resemble each other.
By using traffic surveillance video and GPS records, we may be able to show the prosecutor that you are a victim of mistaken identity. This would not only get your traffic charge dismissed but also would moot any HTO designation and DARP charge.
You Were Only Driving Because of an Emergency
A partial defense to a CRS 42-2-206 charge is that you only drove in an emergency. The emergency defense requires proof that you had to do what you did in order to prevent something worse from happening. It is also called the necessity defense or the choice of two evils.
The evil that you are avoiding by driving the car has to be severe. An example of a situation that is not severe enough to be an emergency includes an HTO driving to the pharmacy to get medicine for his wife.6 However, it might be a genuine emergency if the HTO was driving his wife to the hospital, and there were no ambulances available.
In our experience, the emergency defense will not lead to a full acquittal. It can, however, reduce the severity of your sentence.7
The Traffic Charge Was Unfounded
If we can successfully challenge your traffic charge(s), then the DMV cannot designate you as an HTO, and prosecutors may not have the legal grounds to convict you for DARP. Typical evidence we rely on includes traffic surveillance footage, GPS records, and eyewitness accounts.
You Did Not Have a Lawyer During an Earlier Traffic Conviction
You have the right to an attorney in any case that carries imprisonment. If you were deprived of a lawyer during an earlier traffic conviction – and you did not waive your right to an attorney – that conviction cannot be used to enhance a later sentence.
Whenever we discover that our clients were deprived of legal representation in an earlier traffic case, we can attack the validity of that conviction as a way to defend against your HTO designation. Once we show prosecutors that your rights were violated, they may have no choice but to drop your DARP case.8
4. Penalties
DARP is a class 2 traffic misdemeanor. Penalties include at least $3,000 in fines and 30 days to 90 days in jail, which is in addition to the penalties for the underlying traffic offense.
The court can suspend some or all of the penalties. It can also require you to perform between 40 and 300 hours of community service (“useful public service”).
If you complete the required service, the court will vacate the sentence. If you fail to complete the service, the court will impose the jail sentence and fines.
Meanwhile, aggravated DARP is a class 1 traffic misdemeanor. It carries the above penalties, except that the mandatory minimum jail sentence increases to 60 days.9
Vehicle Impoundments
In the city of Denver, vehicles involved in habitual traffic offenses are considered a public nuisance. This means the City Attorney can file a civil case to impound and seize them.
Once the court issues a Temporary Restraining Order on your vehicle, you can negotiate with the City Attorney to get your car back; alternatively, you can go to court to contest the impoundment.10
5. Related crimes
Careless driving (CRS 42-4-1402) prohibits driving without the proper regard for the road. It is less severe than reckless driving. Prosecutors can file reckless and careless driving charges with each other.
Reckless endangerment (CRS 18-3-208) prohibits conduct that puts someone at risk of harm. Prosecutors can file these charges alongside charges of eluding police.
Additional Resources
For more information, refer to these Colorado DMV website articles:
- Reinstatements – Overview of the license reinstatement process.
- Reinstatement Frequently Asked Questions – Answers to common inquiries about getting your license back.
- Process to Reinstate Driving Privilege – Step-by-step guide.
- Ignition Interlock Restricted Device – How you can drive on a revoked license with an IID.
- Appointment Scheduling – Make an appointment with the DMV online.
Legal References:
- CRS § 42-2-202(2)(a).
- CRS § 42-2-202(2)(b), Kramer v. Colorado Department of Revenue, 964 P.2d 629 (Colo. App. 1998).
- CRS § 42-2-202(3).
- People v. Hampton, 619 P.2d 48 (Colo. 1980).
- Hoehl v. Motor Vehicle Division, 624 P.2d 907 (Colo. App. 1980) (“A driver’s history record is prima facie evidence of its contents. But where evidence is presented which rebuts the accuracy of any item in plaintiff’s driving record, there is a fact question to be resolved by the hearing officer”).
- People v. McKnight, 617 P.2d 1178 (1980) (“Existence of an emergency does not affect the criminality of the conduct of driving in violation of [CRS § 42-2-206]. It does, however, have a substantial effect on the trial court’s discretion in sentencing”).
- People v. McKnight, Supra.
- People v. Heinz, 589 P.2d 931 (1979). Scott v. Illinois, 440 U.S. 367 (1979). United States v. Tucker, 404 U.S. 443 (1972). People v. Roybal, 618 P.2d 1121 (1980) and People v. Swann, 770 P.2d 411 (Colo. 1989). Baldasar v. Illinois, 446 U.S. 222 (1980) and People v. Roybal, Supra.
- Colorado Revised Statutes § 42-2-206(1)(a)(II). Prior to March 1, 2022, DARP was a class 1 misdemeanor, with penalties of 30 days to 18 months in jail and/or $3,000 to $5,000 in fines. Aggravated DARP carried $3,000 to $5,000 in fines, and 60 days to 18 months of jail time. SB21-271.
- Denver Municipal Code 37-50(c)(17). Prosecution and Enforcement, City of Denver.