Driving on a Suspended License in Colorado (CRS § 42-2-138)

Q: Is driving on a suspended license a misdemeanor in Colorado?

If the reason for the license suspension was DUI, DWAI or UDD, then driving on a suspended license is a class 2 traffic misdemeanor. A first-time offense carries: 10 days to 90 days in jail, and $150 to $300 in fines, and an extra year before the defendant can get a license reinstatement.

Q: How do I fight CRS 42-2-138 charges?

There are three common defenses to Colorado charges of driving with a suspended or revoked license: 1) No suspension. The DMV and police make errors all the time. Perhaps the defendant's license was wrongly listed as suspended, or maybe the police officer ran the wrong person's name at the traffic stop. If the defense lawyer can show that the defendant had a valid driver's license when he/she was cited, then the district attorney should dismiss the charges. 2) Emergency. When a person drives on a suspended license for valid emergency reasons, then prosecutors are likely to drop the charges. Potential examples of qualifying emergencies include escaping a tornado or driving someone to the hospital when no ambulances are available. 3) No knowledge. Under Colorado law, an element in "driving under restraint" cases is that the defendant knew of the license revocation or suspension. If the defense attorney can show that the defendant was never notified of the suspension, then the D.A. should drop the charges.

Crime of "driving under restraint" (DUR) in Colorado [2022 UPDATES IN DESCRIPTION]

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In Colorado, driving on a suspended license is generally a class A traffic infraction with $15 to $100 in fines but no actual jail time. However, if your suspension was due to a DUI, then you can be charged with a class 2 misdemeanor traffic offense that carries 10 days to 90 days of jail and $150 to $300 in fines.

In this article, our Denver Colorado criminal defense attorneys discuss:

1. What happens if you get pulled over with a suspended license in Colorado?

People pulled over for driving on a suspended license in Colorado get issued a citation. It does not matter if the driver was being safe and was committing no other traffic violations.

Note that people can still get charged with violating CRS § 42-2-138 whether they drive with a suspended Colorado driver’s license or a suspended license from another state. The Colorado DMV (officially called the Department of Revenue’s Division of Motor Vehicles) recognizes the driver’s license

suspensions,
revocations, and
cancellations of non-residents.

The legal terms for driving on a suspended license are

“driving under suspension (DUS)” or
“driving under restraint (DUR)”.¹

See our related article on DUR charges.

2. Is driving on a suspended license a misdemeanor in Colorado?

If the reason for the license suspension was DUI, DWAI or UDD, then driving on a suspended license is a class 2 traffic misdemeanor.

A first-time offense carries:

10 days to 90 days in jail, and
$150 to $300 in fines, and
An extra year before the defendant can get a license reinstatement.

If within the next five years the defendant picks up a subsequent offense of driving on a license suspended due to DUI, DWAI, or UDD, then the penalties get harsher:

10 days to 90 days of jail time, and
$500 to $3,000, and
Four more years before the defendant can get a new license.

Distraught driver after being pulled over for police for violating CRS 42-2-138

Drivers face Colorado criminal charges and jail for driving on a license suspended for DUI.

Meanwhile, driving on a license that has been suspended for non-drunk driving-related reasons (such as by having too many DMV points on your driving record) is a class A traffic infraction carrying $15 to $100 in fines.

A first offense carries a one-year extension of the driver’s license suspension. A subsequent conviction within five years of the first carries a three-year extension of the driver’s license suspension. There is no possible jail sentence.

Note that it is only a class A traffic infraction in the state of Colorado to drive on a license that has been suspended due to having an outstanding judgment. The penalties include

$15 to $100 in fines and
3 DMV points whether for a first- or subsequent conviction.

There is no possible jail sentence.²

3. How do I fight CRS 42-2-138 charges?

There are three common defenses to Colorado charges of driving with a suspended or revoked license:

No suspension. The DMV and police make errors all the time. Perhaps the defendant’s license was wrongly listed as suspended, or maybe the police officer ran the wrong person’s name at the traffic stop. If the defense lawyer can show that the defendant had a valid driver’s license when he/she was cited, then the district attorney should dismiss the charges.
Emergency. When a person drives on a suspended license for valid emergency reasons, then prosecutors are likely to drop the charges. Potential examples of qualifying emergencies include escaping a tornado or driving someone to the hospital when no ambulances are available.
No knowledge. Under Colorado law, an element in “driving under restraint” cases is that the defendant knew of the license revocation or suspension. If the defense attorney can show that the defendant was never notified of the suspension, then the D.A. should drop the charges.³

4. Driving Without a License

In Colorado, driving without a license is a separate offense from driving with a suspended or revoked license. Driving without a license comprises driving:

without having gotten a license,
with a recently expired license, or
having left your license at home.

The following table compares the two offenses:

Colorado Offense

Elements

First-Offense Penalties

Delay to Get New License

Driving without a license (CRS 42-2-102)

Driving without a current and valid license

Traffic infraction: $15 to $100, a surcharge, and DMV points in certain cases.

Possibly 12 months

Driving under restraint (CRS 42-2-138)

Driving after your license has been revoked or suspended

Class 2 traffic misdemeanor if your license was revoked due to drunk driving: 10 to 90 days in jail and $150 to $300.

Otherwise, a class A traffic infraction: $15 to $100, a surcharge, and DMV points in certain cases.

12 months

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Call our law firm for help and legal advice. Our traffic ticket attorneys offer free consultations on creating attorney-client relationships. We have law offices in Denver, Colorado Springs, and Greeley.

See our articles on such related offenses and topics as how to reinstate a suspended driver’s license in Colorado, reckless driving (CRS 42-4-1401), ignition interlock devices, habitual traffic offenders, traffic ticket infractions, misdemeanor traffic offenses, vehicular homicide (CRS 18-3-106), and DUI per se (driving under the influence with a BAC of 0.08% or higher).

In California? See our page operating a motor vehicle on suspended driving privileges (PC 14601.1(a)).

In Nevada? See our page operating a motor vehicle on suspended driving privileges (NRS 483.560).

Legal References

Colorado Revised Statute 42-2-138; People v. Wambolt, (2018) 2018 COA 88, 431 P.3d 681.
CRS 42-2-138; see also Colo. Dept. of Rev. v. Garner, (Colo. 2003) 66 P.3d 106. . Prior to March 1, 2022, DUI-related DUR was a misdemeanor. A first-time offense carried 30 days to 1 year in jail and $500 to $1,000 in fines. A second-time offense carried 90 days to 2 years in jail and $500 to $3,000 in fines. And non-DUI related DUR was also a misdemeanor that carried up to $500 and/or 6 months in jail. SB21-271.
Jolly v. People, (Colo. 1987) 742 P.2d 891; People v. Ellison, (Colo. 2000) 14 P.3d 1034.

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