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CRS 42-2-138 is the Colorado law that prohibits driving under restraint (DUR), which is driving with a revoked or suspended license. It is usually a misdemeanor punished by fines. But if the reason for the suspension is drunk driving, then the defendant faces at least 30 days in jail for a first-time DUR offense.
In this article, our Colorado criminal defense attorneys discuss:
- 1. What is driving under restraint in Colorado?
- 2. What is the penalty?
- 3. Are there defenses to CRS 42-2-138 charges?
- 4. Related offenses
Driving under restraint is usually a misdemeanor in Colorado.
1. What is driving under restraint in Colorado?
Driving under restraint (DUR) is when a person operates a motor vehicle in Colorado even though his/her driving privileges have been suspended, denied or revoked. It does not matter which state issued the driver’s license.1
Example: Iris had her Nevada driving privileges revoked following a DUI in Las Vegas. Despite the license revocation, she drives out to Denver for the weekend. If caught, Iris could be charged with DUR in Colorado. It makes no difference that Iris is a non-resident of Colorado.
2. What is the penalty?
The punishment for violating CRS 42-2-138 depends on why the driving privileges were suspended, denied, or revoked. There are three possible reasons for a revoked license under Colorado law:
- An outstanding judgment, which means not paying a debt – such as child support – in violation of court orders,
- DUI, DUI per se, DWAI, UDD, or another drunk-driving related charge in any state, or
- Any other reason (such as by accumulating too many DMV points from other driving offenses)
| Reason for Suspension of Driving Privileges | Punishment for Driving Under Restraint in Colorado |
| Outstanding Judgment | Class A traffic infraction:
|
| DUI, DUI per se, DWAI, or UDD | First offense Misdemeanor:
Also, the date the defendant can get a license reinstatement is extended for another year.* The judge may not grant probation or a suspended sentence in lieu of jail. But if the defendant drove due to an emergency, then the court does not have to impose the 30-day mandatory minimum jail sentence. |
Subsequent offense (within five years of the first conviction) Misdemeanor:
Also, the defendant may not get a new license in Colorado for four years.* The judge may not grant probation or a suspended sentence in lieu of jail. But if the defendant drove due to an emergency, then the court does not have to impose any mandatory jail time. | |
| Any other reason | First offense Misdemeanor:
Although there is no mandatory jail sentence, the defendant’s license suspension is extended for another year.* |
Subsequent offense (within five years of the first conviction) Misdemeanor:
The defendant may not get driving privileges in Colorado for three years.* | |
| *Under certain circumstances, defendants may be eligible for restricted driving privileges from the Division of Motor Vehicles under CRS 42-2-132.5.2 | |
Lack of knowledge of the license suspension is a defense to CRS 42-4-138 charges.
3. Are there defenses to CRS 42-2-138 charges?
Yes. The following are three possible defenses to Colorado charges of driving under restraint:
- Lack of knowledge. No crime occurred if the defendant did not have actual knowledge that his/her driving privileges were suspended. Perhaps the DMV failed to notify the defendant about the suspension or revocation. Or perhaps the notice got lost int the mail at no fault of the defendant. Unless the District Attorney can prove that a reasonable person in the defendant’s position would have known his/her driving privileges were suspended, then no DUR crime occurred.3
- No restraint. Sometimes the state mistakenly believes the defendant’s license was suspended. Perhaps the DMV made a clerical error, or perhaps the police officer at the traffic stop ran the wrong name. As long as the defendant can show he/she had an active license at the time of the incident, the DUR charges should be dropped.
- Emergency. It always illegal to drive under restraint, even during emergencies. However, the D.A. may choose to drop the criminal charge if the defendant had a legitimate excuse to drive without a current license. Examples may be to escape a wildfire or to take someone to the hospital if an ambulance was unavailable.
4. Related offenses
4.1. Driving Without a License
CRS 42-2-101 makes it a class 2 misdemeanor traffic violation to drive in Colorado without a current and valid driver’s license. Penalties include:
- 10 to 90 days in county jail, and/or
- $150 to $300 in fines
After a subsequent conviction, the defendant will have to wait an extra year to get a Colorado driver’s license.
Note that driving on a recently expired license – or operating a motor vehicle without a license in the driver’s immediate possession – is only a class B traffic infraction. The penalty for this traffic ticket is $15 to $100. But a subsequent conviction will cause 6 DMV points to go on the defendant’s driving record.
4.2. Unlawful Possession or Use of a License
CRS 42-2-136 makes it a crime to unlawfully possess or use a driver’s license in Colorado. Examples of this offense include:
- Altering a driver’s license
- Fraudulently obtaining someone else’s license
- Not surrendering a suspended or canceled license
- Letting someone else use his/her license
- Presenting someone else’s license as his/her own
- Duplicating a license for unlawful purposes
This crime is typically a class 2 misdemeanor traffic offense, carrying:
- 10 to 90 day jail sentence, and/or
- Up to $300 in fines.
Note that it is a class 3 misdemeanor to photograph, copy, or duplicate a license for purpose of resale, reuse, or distribution. An example is making a fake ID using Photoshop. Penalties include up to 6 months in jail and/or $50 to $750 in fines.2
Also see our article, unlawful possession of use of a commercial driver’s license (CRS 42-2-409).
4.3. Permitting an Unauthorized Person to Drive
CRS 42-2-140 makes it a class B traffic infraction to let a person with no driving privileges to operate a motor vehicle in Colorado. An example is a person letting his friend borrow a car even though he knows the friend had his driving privileges suspended due to too many traffic offenses. Penalties include $15 to $100 in fines.
Call our law firm for help and legal advice. We can discuss creating an attorney-client relationship.
Our criminal defense lawyers offer free consultations on criminal and traffic cases. We fight for the best possible outcome in your case.
Our law office is based in Denver, but we serve clients throughout the state, including Colorado Springs, Arapahoe County, and Jefferson County.
In California? See our article operating a motor vehicle on suspended driving privileges (PC 14601.1(a)).
In Nevada? See our article operating a motor vehicle on suspended driving privileges (NRS 483.560).
Legal References
- Colorado Revised Statute 42-2-138; People v. Wambolt, 2018 COA 88, 431 P.3d 681.
- CRS 42-2-138; see also Colo. Dept. of Rev. v. Garner, 66 P.3d 106 (Colo. 2003).
- Jolly v. People, 742 P.2d 891 (Colo. 1987); People v. Ellison, 14 P.3d 1034 (Colo. 2000).