Under CRS 42-2-206, Colorado law defines a habitual traffic offender as a person whose driver’s license is revoked because of (1) too many serious traffic convictions, or (2) too many DMV points assessed against the license.
A person caught driving on a revoked license can face a charge of driving after revocation prohibited (DARP). A conviction carries mandatory minimum penalties.
- 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.
- His license revoked, Kyle drives again. He gets pulled over and charged with DARP.
There are some common legal defenses you can use to defend against a DARP charge:
- There are errors on your DMV record,
- You were not the one behind the wheel,
- You were only driving because of an emergency,
- You did not commit the traffic infraction that would make you a habitual offender, and
- You were not represented by a lawyer for an earlier traffic conviction.
The penalty for becoming a habitual traffic offender is a revoked license. The revocation comes on top of any penalties for the traffic offense.
If you drive after your license has been revoked, you can be charged with DARP. The penalties of a DARP conviction include the following minimums:
- 30 day mandatory jail time, or
- $3,000 in fines.
Aggravating factors to a DARP arrest increase these penalties.
In this article, our Denver Colorado criminal defense attorneys discuss the five things a person should know about the designation of “habitual traffic offender”:
- 1. What is a habitual traffic offender?
- 2. What happens if you drive on a revoked license?
- 3. Are there defenses to driving on a revoked license?
- 4. What are the penalties under CRS 42-2-206?
- 5. Are there related crimes?
1. What is a habitual traffic offender?
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, and
- By being assessed too many DMV points.
Once you become an HTO, your license will be revoked.
1.1. Becoming a habitual traffic offender through traffic convictions
One way you can become an HTO is by having too many serious traffic convictions. You need to have three or more convictions in the last seven-year period for the following offenses:
- Driving under the influence (DUI) of alcohol or drugs,
- 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 false statement required under Colorado’s motor vehicle law,
- Vehicular assault,
- Vehicular homicide,
- Aggravated 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.
1.2. Becoming a habitual traffic offender through DMV points
You can also become a hto if you get too many DMV points. These points have to be accumulated in the last five years. They also have to be for moving violations, not parking tickets:
- 10 or more infractions that add 4 or more points, or
- 18 or more infractions that add 3 or fewer points.3
These points also have to be built up in separate and distinct traffic case offenses.
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.
1.3. Separate and distinct offenses
The convictions and driving points have to come from separate and distinct driving offenses.
Traffic offenses are separate and distinct unless they happened within 24 hours of each other. For example:
- Kyle gets ticketed for reckless driving in the morning. In the evening, he is arrested for drunk driving and vehicular assault. These 3 charges count as 1 for his habitual traffic offender status.
2. What happens if you drive on a revoked license?
Habitual traffic offenders have their driver’s licenses revoked. If you drive after your license has been revoked, you can be arrested and charged under CRS 42-2-206. This statute outlaws driving after revocation prohibited, or DARP.
DARP is a Class 1 misdemeanor.
2.1. Aggravated DARP
If your license has been revoked for being a habitual offender and you get arrested, it can become an aggravated DARP offense if:
- You were driving recklessly,
- You eluded or tried to get away from police,
- You committed a hit-and-run, or
- You were involved in a crash and failed to report it.
These convictions come with higher minimum penalties.
3. Are there defenses to driving on a revoked license?
There are several legal defenses you can use to fight a DARP charge. Some of them defend against earlier traffic violations. If successful, these defenses can prevent a conviction under CRS 42-2-206. Some of the most common include:
- Your record has errors that incorrectly make you a habitual offender,
- You were not the one operating the vehicle,
- You were only behind the wheel because of an emergency,
- You did not commit the offense that makes you a habitual offender, and
- You were deprived of a lawyer for an earlier traffic conviction.
3.1. There are errors on your DMV record
You are only a hto if you have amassed too many traffic points or convictions. Showing that there has been a mistake can be a strong defense.
Your record is used to show that you are a habitual offender. However, you can present evidence that the record is incorrect.5 If you can show you are not a habitual traffic offender, you can prevent a license revocation.
3.2. You were not the one driving the vehicle
You can also raise the mistaken identity defense. This argues that you were not the one in the operation of a motor vehicle during the arrest.
This can defend against a traffic violation that would make you a habitual offender. It can also defend against a DARP charge. If you were not driving the car, you could not have committed the crime.
3.3. You were only driving because of an emergency
A partial defense to a charge under CRS 42-2-206 is that you only drove in an emergency.
Proving that you only drove a car because it was an emergency will not lead to an acquittal. It can, however, reduce the severity of a sentence.6
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:
- Dewey lost his license as a habitual offender. He drives to the pharmacy to get medicine for his wife.7
3.4. Fighting traffic infractions
Challenging every serious traffic offense can keep you from becoming an HTO.
Fighting the violation that makes you a habitual offender is especially important. It can keep you from having your driving privileges revoked.
3.5. You did not have a lawyer during an earlier traffic conviction
If you were deprived of a lawyer during an earlier traffic conviction, it can defend against a DARP conviction.8
One of the rights you have in a case that carries imprisonment is a right to an attorney.9 If you did not waive that right and were denied a lawyer, it can violate your rights. If you were convicted in that case, the conviction cannot be used to enhance a later sentence.10
This allows you to defend against a DARP charge by attacking the validity of one of your earlier traffic convictions.11 If you can show you were denied a lawyer in the earlier case, the district attorney cannot use that conviction against you in the DARP charge.12
4. What are the penalties under CRS 42-2-206?
A conviction for DARP carries severe penalties. Worse, they come in addition to the penalties for the underlying traffic offense.
DARP is a Class 1 misdemeanor. These offenses come with maximum fines and jail times. A DARP conviction is a rare misdemeanor offense. It carries minimum penalties. Therefore, the penalties for a DARP conviction can be:
|Mandatory Jail Sentence||30 days||18 months|
These are the penalties for a DARP conviction. They are added to any infractions that led to the arrest.
The court can suspend some or all of the penalties. It can require you to perform between 40 and 300 hours of community service.13 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.
4.1. Penalties for DARP convictions for aggravated driving
If the DARP charge is for aggravated DARP, the penalties change. The mandatory minimum jail sentence increases to 60 days.
5. Are there related crimes?
Some criminal charges are related to driving after revocation prohibited. Police officers can file them along with a DARP charge.
5.1. Careless driving (CRS 42-4-1402)
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.
5.2. Reckless endangerment (CRS 18-3-208)
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.
- 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).