2nd DUI in Colorado – A Game Plan for Beating The Case

In Colorado, DUI is treated as a second offense if you have a prior DUI conviction in any state or U.S. territory. A 2nd DUI is a misdemeanor offense punishable by:

• 10 days to 1 year of jail time;
• up to 4 years of DUI probation;
• $600 – $1,500 in fines;
• 48 to 120 hours of public service;
• 1-year license revocation;
• Ignition interlock device (IID) for 2 years;
• 12 DMV points; and
• Alcohol education classes

Some states have washout periods, meaning prior DUI convictions can only be used against you for 7 to 10 years. But in Colorado, a prior DUI counts against you no matter how long ago it happened.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is the typical sentence for a 2nd DUI?
  • 1.1. Is jail time mandatory for 2nd 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 is the typical sentence for a 2nd DUI?

Driving under the influence of drugs or alcohol is a crime in Colorado.¹ The penalties for violating Colorado DUI laws will depend on how many prior DUIs the driver has and the amount of alcohol in their system.

If you already have one DUI conviction, 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:

• A jail sentence of 10 days (mandatory minimum) up to 1 year
• A fine of up to $1,500,
• Revocation of your license for 12 months,
• Community service for 48 hours 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, the judge typically suspends the jail 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.

DWAI Charges

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.^{3 4}

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 a condition to reinstate your license 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 blood alcohol content 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 increase if an alcohol evaluator says the defendant needs more sessions. 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.

1.1. Is jail time mandatory for 2nd DUI in Colorado?

Yes. A second-time DUI conviction in Colorado requires at a mandatory minimum of 10 days in jail.

Note that jail is also mandatory for first-time DUIs if the defendant’s blood alcohol level was 0.02% or higher.¹⁰

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. 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 is a felony. Even a first-time DUI that results in injury or death can be a felony:

• 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
• DWAI
• 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 in 1984, 1996, and 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 arrested 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 are 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 also result in designation as a 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.

Your Colorado driver’s license will stay revoked until your complete the reinstatement process. Therefore this requires you to:

• Complete the Application for Reinstatement
• Pay the reinstatement fee ($95.00) plus an additional $25 fee
• 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. Consequently, 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.

Evidence Gathering

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 therefore 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 and also mechanical records
• Gathering information about the incident scene, including traffic and also weather conditions

Filing Court Motions

Before the trial begins, pre-trial motions allow your lawyer to challenge the evidence against you. For example 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, the jury will generally not consider that evidence.

Without any evidence, the prosecutor may have no case against you and will therefore drop the case before it even goes to trial. There are a number of legal reasons for keeping evidence out of court, for example:

• Police misconduct
• Improper evidence handling also improper chemical testing procedures
• Chemical test result errors
• Improper instructions for the field sobriety tests
• “Rising blood alcohol” defense
• Medical issues leading to a false positive
• Police do not have probable cause to make a stop
• Police do not 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 settle before they ever go to trial. Tough negotiations can get you a good deal to avoid the most serious charges or therefore reduce your penalties.

If the police arrest you for your second Colorado DUI and you want to know your options, then please contact us at Colorado Legal Defense Group. Our caring Colorado defense attorneys have many years of experience representing clients facing charges of multiple drunk driving arrests. We may be able to get the charges reduced to reckless driving or dismissed altogether.

Arrested in Nevada? See our article on DUI 2nd in Nevada.

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Legal References