In Colorado, drunk driving or driving under the influence of drugs is a misdemeanor criminal offense. The penalties for a DUI increase with each additional drunk driving conviction. A second time DUI in Colorado will result in possible jail time, a suspended license, fines, and DUI school. In this article, our Colorado criminal defense lawyers will address:
- 1. What are the penalties for a second DUI in Colorado?
- 2. Is a second DUI a felony in Colorado?
- 3. What is the lookback period for prior DUIs in Colorado?
- 4. Does a DUI in another state count as a prior DUI?
- 5. How long will I lose my license after my second DUI in Colorado?
- 6. Can I get my license back early if I need to drive for work or school?
- 7. How can a lawyer help me fight a second time DUI in Colorado?
1. What are the penalties for a second time DUI in Colorado?
Driving under the influence of drugs or alcohol is a crime in Colorado.1 The penalties for a drunk driving conviction in Colorado will depend on how many prior DUIs the driver has and the amount of alcohol in their system.
If you’ve already been convicted of one DUI, you are probably aware of what types of penalties you may be facing. The penalties for a second-DUI will generally be higher than first-time DUI penalties. But there are some big differences between the penalties after a first and second DUI. The most significant difference is that a 2nd offense may carry mandatory jail time.
The penalties for a second-time DUI can include:
- From 10 days up to 1 year in jail
- A fine of up to $1,500,
- Revocation of your license for 12-months,
- Community service for up to 120 hours,
- Up to 4 years probation, and
- Alcohol education classes.
Jail time for a second DUI conviction is mandatory. After a first-time DUI, jail time is often waived as part of a suspended sentence. This is generally not available after a second-time DUI, and you may have to spend 10 days or more in the county jail.
Another difference is that the penalties for a second offense are the same if the driver was charged with a DUI or DWAI. A driver with a blood alcohol concentration (BAC) of 0.08% or higher will generally be charged with a DUI per se criminal offense.
A driver below the legal limit can still be charged with driving while ability impaired (DWAI) based on the observations of law enforcement.2
The penalties for a 2nd-DUI are generally the same if the driver was under the influence of any alcohol, drugs, or combination of alcohol and drugs. In Colorado, this includes the recreational or medical use of marijuana and prescription drugs.34
Just because recreational marijuana is legal in Colorado does not mean it is legal to drive under the influence of marijuana. Having a valid medical marijuana card is not a defense to drug DUI charges. Under Colorado law, there is a presumption that a driver under the influence of marijuana is impaired if a chemical test shows 5 nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter.5
Persistent Drunk Driver
A driver convicted of a second DUI offense will be classified as a “persistent drunk driver.”6 There are additional consequences of being designated as a persistent drunk driver, including:
- Level II alcohol education classes;7
- Mandatory ignition interlock device (IID) for at least 2 years to have the driver’s license reinstated;8 and
- Proof of financial responsibility (SR-22 insurance coverage) for at least 2 years.9
Alcohol Education Classes and Treatment
Alcohol education courses are generally required as a condition to get your license reinstated for any drunk driving offense. A first-time DUI generally requires a Level I alcohol education class. A second-DUI or refusal to take a chemical test requires a Level II alcohol education class.
The education “track” depends on the number of DUIs, the driver’s BAC at the time of the arrest, and whether the driver refused a chemical test.
|Criteria for Level II Education Track||Alcohol Education and Treatment Program and Track||Length of Alcohol and Drug Education||Length of Treatment|
|1 or more prior DUI and BAC < 0.15||Level II Track C||24 hours / 12 weeks||68 hours (34 weeks)|
|1 or more prior DUI and|
BAC ≥ 0.15
|Level II Track D||24 hours / 12 weeks||86 hours (43 weeks)|
|1 or more prior DUI and|
Chemical Test Refusal
|Level II Track D||24 hours / 12 weeks||86 hours (43 weeks)|
Treatment can be extended if an alcohol evaluator says more sessions are required. Participants have to pay for the cost of alcohol and drug education and treatment. The cost to attend alcohol education and drug education and treatment can cost over $1,000.
2. Is a second DUI a felony in Colorado?
In most cases, a second DUI offense is a misdemeanor. A first-time DUI, second DUI, or even third-time DUI in Colorado is still considered a misdemeanor.10 In Colorado, a fourth DUI is considered a felony offense.11
However, a DUI that results in serious bodily injury or death to someone else can be charged as a felony. Even a first-time DUI that results in injury or death can be charged as a felony, as:
- Vehicular assault involving drugs or alcohol (C.R.S. 18-3-205)
- Vehicular homicide involving drugs or alcohol (C.R.S. 18-3-106)
Vehicular assault DUI is a Colorado class 4 felony. This involves driving under the influence of drugs or alcohol and causing serious bodily injury to another person. The penalties include 2-6 years in prison and a fine of up to $500,000.
Vehicular homicide DUI is a Colorado class 3 felony. This involves driving under the influence of drugs or alcohol that causes the death of another person. The penalties include 4-12 years in prison and a fine of up to $750,000.
3. What is the lookback period for prior DUIs in Colorado?
Colorado does not limit the lookback period for prior DUIs. Any prior DUI in any U.S. state or territory will be a prior DUI.12
Some states have a limited “lookback period” or “washout period” for counting prior DUIs. For example, California has a 10-year lookback period. A driver’s second DUI conviction would only be counted as a second DUI offense if the first DUI conviction occurred within the prior 10 years.
In Colorado, there is no limited washout period and any prior DUI from any date in the driver’s past can be considered a prior DUI. However, the time between drunk driving arrests can figure into sentencing. For example, if a judge has discretion in sentencing for a DUI conviction, there is a chance the judge could be more lenient if the prior DUI took place many years ago compared to repeated DUIs within a year.
4. Does a DUI in another state count as a prior DUI?
In Colorado, any prior conviction for a DUI in any state or U.S. territory will count as a prior conviction for a DUI in Colorado.13
Prior convictions for multiple drunk driving offenses in Colorado include any:
- DUI per se
- Drug DUI
- Vehicular assault involving drugs or alcohol
- Vehicular homicide involving drugs or alcohol
This includes a conviction “under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of an act that, if committed within this state, would constitute any of these offenses.”14
For example, two brothers, Frank and Gino, live in different states. Frank lives in California and Gino lives in Colorado. They both have multiple convictions for drunk driving. They are both arrested for drinking and driving in their home states on New Year’s Day 2018.
Frank had a DUI in California 1984, in 1996, and in 2007. Under California’s 10-year lookback period, Frank would still face the penalties for a first-DUI for his 2018 conviction, even though it was his 4th DUI.
Gino had a DUI in Puerto Rico in 1985, in Florida in 1991, and in California in 2000. Under Colorado law, Gino may be facing a felony DUI for his 4th DUI conviction in 2018. Even though Gino and Frank had the same number of DUIs, Gino faces harsher penalties because Colorado considers all DUIs as priorable offenses.
5. How long will I lose my license after my second DUI in Colorado?
A second-DUI conviction will result in having your license revoked for up to one year. However, your license will be revoked by the DMV before you are convicted unless you take immediate action. You must formally request a DMV hearing within seven (7) days after your DUI arrest or your license will be automatically suspended.
DMV License Revocation
The Colorado DMV will administratively suspend your Colorado driver’s license after your DUI arrest. This administrative process begins even before you get a chance to defend yourself in court. If you want to challenge the automatic suspension, you have to request a hearing in writing to the DMV.15
After you are arrest for drunk driving, the police will take possession of your driver’s license and issue a temporary permit that is only valid for seven (7) days.16
Your Colorado DUI defense lawyer can file for a DMV hearing and represent you at the DMV hearing to fight to keep your license. Once you request a hearing, the revocation will be suspended pending the outcome of the hearing.17
Refusing a Chemical Test
You will also have your license revoked for refusing a breath or blood test after a DUI arrest. Even if you not convicted of a DUI, Colorado’s Express Consent Laws require drivers to consent to a chemical test if a police officer has reasonable grounds to believe the driver is impaired by alcohol or drugs.18
If your case goes to trial, the prosecutor can use the fact that you refused a chemical test against you. Refusing a chemical test after a drunk driving arrest can be admissible as evidence of guilt at trial.19
Refusing a chemical breath or blood test after a DUI will result in designation as a Colorado Persistent Drunk Driver (PDD).20 The penalties for refusing a chemical test for the second time include a two-year automatic suspension of your Colorado driver’s license,
6. Can I get my license back early if I need to drive for work or school?
After your second DUI violation, your license will be revoked for one year. You can have your license reinstated early if you complete the reinstatement requirements. However, you have to serve the minimum of one-month revocation before you can get your early license.
Your Colorado driver’s license will stay revoked until your complete the reinstatement process. This requires you to:
- Complete the Application for Reinstatement
- Pay the reinstatement fee ($95.00)
- Provide an SR-22 from your car insurance company
- Complete Level II Alcohol or Drug Education and Treatment (or be enrolled)
- Have an Ignition Interlock Device (IID) installed in your vehicle for two (2) years 21
Before you can have your full driving privileges reinstated, you must keep an ignition interlock device (IID) installed for 2 years. An IID is a device that tests the driver’s breath and requires an alcohol-free sample to start and operate the car.
Before the car can be started, the driver has to blow a clean breath. At regular intervals during driving, the IID requires rolling breath samples. Any breath samples that show alcohol on the breath will be logged and reported. The devices also record any attempts to bypass or trick the machine. Any failed breaths or tampering with the IID may result in increased penalties and license restrictions.22
7. How can a lawyer help me fight a second time DUI in Colorado?
An experienced Colorado DUI defense lawyer can help you fight drunk driving charges in court. A second-time DUI charge has higher penalties than a first-time DUI. Even if you did not fight your criminal charges after your first DUI, you should strongly consider contacting a lawyer if you are facing a second offense.
Don’t let a public defender pressure you into taking a plea deal when you have a real chance to win your case. It is up to you whether you want to accept a deal or fight the charges in court.
Depending on the individual facts of your case, your lawyer can identify a number of possible defenses to Colorado DUI charges. The sooner you call a lawyer, the more time your attorney will have to gather evidence and build your case.
Your lawyer can also help you fight your administrative license suspension. You only have 7 days after an arrest to request a DMV hearing to keep your license. Make sure to find out if your DUI lawyer will represent you during the DMV hearing and in your criminal case.
When building a case, your criminal defense attorney will begin with gathering all the evidence available. This includes gathering records, demanding police documents, and interviewing witnesses. Evidence in a DUI case may include:
- Identifying individuals who witnessed the accused on the day of the arrest
- Obtaining copies of any police photo, video, and audio evidence of the traffic stop
- Gathering information from the crime scene, including taking photos and video
- Requesting police arrest records
- Requesting police equipment records
- Reviewing medical records
- Reviewing mechanical records
- Gathering information about the incident scene, including traffic and weather conditions
Filing Court Motions
Before the trial begins, pre-trial motions allow your lawyer to challenge the evidence against you. A motion to suppress evidence can be based on police misconduct, constitutional violations, or other reasons. If the court grants your motion to suppress evidence, that evidence will generally not be considered by the jury.
Without any evidence, the prosecutor may have no case against you and will simply drop the case before it even goes to trial. There are a number of legal reasons for keeping evidence out of court, including:
- Police misconduct
- Improper evidence handling
- Improper chemical testing procedures
- Chemical test result errors
- “Rising blood alcohol” defense
- Medical issues leading to a false positive
- Police don’t have probable cause to make a stop
- Police don’t have probable cause to search a driver
Negotiating a Deal
In some cases, your lawyer may be able to negotiate a deal to keep you out of jail and reduce your penalties. Many people facing criminal charges would prefer to accept a predictable and lighter sentence instead of taking their chances before a jury.
Your experienced Colorado DUI defense attorney understands how to deal with the prosecutor to negotiate the best deal you can get. Most drunk driving cases are settled before they ever go to trial. Tough negotiations can get you a good deal to avoid the most serious charges or reduce your penalties.
Call us for help…
If you have been arrested for your second Colorado DUI and want to know your options, please contact us at Colorado Legal Defense Group. Our caring Colorado defense attorneys have many years of experience representing clients who have been charged with multiple drunk driving arrests. We are among the best Colorado criminal defense attorneys to call. Contact us today for a free consultation by phone or in-person or in our Denver law office.
Arrested in Nevada? See our article on DUI 2nd in Nevada.
- C.R.S. 42-4-1301(1)(a) (“A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence.”)
- C.R.S. 42-4-1301(1)(b) (“A person who drives a motor vehicle or vehicle while impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, commits driving while ability impaired.”)
- C.R.S. 42-4-1301(1)(e) (“The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state, including, but not limited to, the medical use of marijuana pursuant to section C.R.S. 18-18-406.3, shall not constitute a defense against any charge of violating this subsection (1).”)
- C.R.S. 42-4-1301(6)(a)(IV) (“If at such time the driver’s blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant’s blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.”)
- C.R.S. 42-1-102(68.5) (“(a) “Persistent drunk driver” means any person who: (I) Has been convicted of or had his or her driver’s license revoked for two or more alcohol-related driving violations.”)
- C.R.S. 42-2-126(4)(d)(II)(A) (“If a person was determined to be driving with excess BAC and the person had a BAC that was 0.15 or more or if the person’s driving record otherwise indicates a designation as a persistent drunk driver as defined in section 42-1-102(68.5) , the department shall require the person to complete a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3 as a condition to restoring driving privileges to the person and, upon the restoration of driving privileges, shall require the person to hold a restricted license requiring the use of an ignition interlock device pursuant to section 42-2-132.5(1)(a)(II) .”)
- C.R.S. 42-2-126(3) – Revocation of license. (“(a) Excess BAC 0.08 (I) The department shall revoke the license of a person for excess BAC 0.08 for: (B) One year for a second violation.”
- C.R.S. 42-7-406(1) (“(1) Whenever the director revokes the license of any person under section 42-2-125 or 42-2-126, … the director shall not issue to or continue in effect for any such person any new or renewal of license until permitted under the motor vehicle laws of this state, and not then until and unless such person files or has filed and maintains proof of financial responsibility as provided in this article.”)
- C.R.S. 42-4-1301(1)(a) (“Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions.”)
- C.R.S. 42-4-1301(1)(j) (“For the purposes of this section, a person is deemed to have a prior conviction for DUI, DUI per se, or DWAI; vehicular homicide, as described in section C.R.S. 18-3-106(1)(b); or vehicular assault, as described in section C.R.S. 18-3-205 (1) (b), if the person has been convicted under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of an act that, if committed within this state, would constitute any of these offenses. The prosecution shall set forth such prior convictions in the indictment or information.”)
- C.R.S. 42-2-125(5)(b) (“If the department receives a written request for a hearing pursuant to subsection (7) of this section within that same seven-day period and the department issues a temporary permit pursuant to paragraph (d) of subsection (7) of this section, the effective date of the revocation shall be stayed until a final order is issued following the hearing; except that any delay in the hearing that is caused or requested by the person or counsel representing the person shall not result in a stay of the revocation during the period of delay.”)
- C.R.S. 42-2-125(5)(b)(II) (“When a law enforcement officer serves a notice of revocation, the law enforcement officer shall take possession of any driver’s license issued by this state or any other state that the person holds. When the law enforcement officer takes possession of a valid driver’s license issued by this state or any other state, the law enforcement officer, acting on behalf of the department, shall issue a temporary permit that is valid for seven days after the date of issuance.”)
- C.R.S. 42-2-125(5)(b), at footnote 15 above.
- C.R.S. 42-4-1301.1 Expressed consent for the taking of blood, breath, urine, or saliva sample – testing. (“(1) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section. (2) (a) (I) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that the test be a blood test, then the test shall be of his or her blood; but, if the person requests that a specimen of his or her blood not be drawn, then a specimen of the person’s breath shall be obtained and tested. A person who is under twenty-one years of age shall be entitled to request a blood test unless the alleged violation is UDD, in which case a specimen of the person’s breath shall be obtained and tested, except as provided in subparagraph (II) of this paragraph (a).”)
- C.R.S. 42-4-1301(6)(d) (“If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.”)
- C.R.S. 42-1-102(68.5)(a) (“‘Persistent drunk driver’ means any person who… (IV) Refuses to take or complete, or to cooperate in the completing of, a test of his or her blood, breath, saliva, or urine as required by sections C.R.S. 18-3-106(4) or 18-3-205(4), or section 42-4-1301.1(2).”)
- C.R.S. 42-2-132.5(1.7) (“A person required to hold a restricted license pursuant to this section who is a persistent drunk driver as defined in section 421102 (68.5), based on an offense that occurred on or after July 1, 2004, shall be required to hold the restricted license for at least two years prior to being eligible to obtain any other driver’s license issued under this article.”)
- C.R.S. 42-2-132.5(7) – Licensing sanctions for violating the interlock restrictions.