DUI and DWAI are generally misdemeanors in Colorado, though they become felonies if either (1) you already have three or more prior DUI convictions, (2) you cause an accident in which another person is seriously injured, or (3) you cause a fatal accident.
Here are four key things to know:
- Fourth-time DUIs have been prosecuted as felonies in Colorado only since 2015.
- Fourth-time DUIs and any DUI causing serious bodily injury are class 4 felonies carrying 2 to 6 years in prison.
- DUI causing death is a class 3 felony carrying 4 to 12 years in prison.
- Although DUI fourths now carry prison time, it may be possible to get a county jail sentence and probation instead.
1. Is a fourth DUI / DWAI a felony?
Yes. A fourth DUI is a Colorado felony if you have at least three prior DUI-related convictions. It does not matter:
- if there was no accident or injuries;
- how long ago the prior DUIs occurred in your lifetime (there is no “washout” period);
- whether the prior DUIs happened in Colorado or elsewhere in the U.S. states or territories;
- whether your past convictions were for DUI, DUI per se, DWAI, DUI of drugs, DUI with injury, or DUI with death; or
- if your past out-of-state DUIs went by different names (such as DWI or OUI).1
It makes no difference if your three prior convictions were a combination of different DUI crimes or were all the same. So if you are a repeat offender with three prior DWAI convictions, you would still face felony charges for a fourth DWAI in Colorado: It does not matter that DWAIs are the least serious DUI-related offense.
What are the penalties?
A fourth-time DUI, DUI per se, or DWAI is a class 4 felony, carrying:
- $2,000 to $500,000 in fines; and/or
- A “presumptive” Colorado State Prison sentence of 2 to 6 years with a mandatory 3-year parole period
Once you get released from custody, you are also required to use an ignition interlock device in your cars during parole.
Note that the judge has discretion to impose 4 to 12 years if there are extraordinary aggravating circumstances. This typically occurs when you were on parole, on probation, or bond after revocation of probation for a different felony.
The judge also has the discretion to impose a sentence as low as 1 year if there are mitigating circumstances.
Probation rather than prison
Although DUI fourths are now considered felonies, it may be possible to avoid prison if the judge grants you probation. If this happens, the sentence must include:
- 90 to 180 days in jail or 120 days to 2 years in jail through an alternative-sentencing program;
- 90 days of continuous alcohol monitoring if granted probation;
- 48 to 120 hours of community service; and
- Level II alcohol and drug education class.2
2. Is DUI with serious injury a felony?
Yes. Drunk or drugged driving is a class 4 felony if it causes someone else to sustain serious bodily injuries.3 It does not matter if you have no prior convictions.
What are the penalties?
DUI causing serious injury is a class 4 felony, carrying:
- $2,000 to $500,000 in fines; and/or
- 2 to 6 years in prison with a mandatory 3-year parole period.4
3. Is DUI with death a felony?
Yes. Driving a motor vehicle while impaired or under the influence is a class 3 felony if it causes someone else to die in an accident. A DUI causing death is typically referred to as vehicular homicide.
As with vehicular assault, vehicular homicide is always a felony even if you have no prior convictions. Note that a vehicular assault charge can be upgraded to vehicular homicide if the victim dies while the criminal case is pending.
What are the penalties?
DUI causing death is a class 3 felony, carrying:
- $3,000 to $750,000 in fines; and/or
- 4 to 12 years in prison with a mandatory 5-year parole period.5
4. How do I fight felony DUI charges?
Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with felony DUI. In our experience, these five defenses have proven very effective with prosecutors, judges, and juries:
- The police had no reasonable suspicion to pull you over in the first place;
- The police had no probable cause to arrest you for DUI or DWAI;
- The police did not administer the field sobriety tests correctly;
- The breath test equipment or blood test equipment was defective or handled improperly; and/or
- You had a medical condition such as GERD that caused high blood alcohol content (BAC) results.
Fourth DUI defenses
In four-strikes cases specifically, we can try to show that you do not have three prior DUI-related convictions.
Perhaps these prior cases were dismissed or reduced to non-DUI charges. Perhaps they do not meet Colorado’s definition of driving under the influence of alcohol or drugs or while impaired.
DUI causing serious injury/death defenses
As for vehicular assault or homicide cases, we can try to argue that your driving did not cause the injury or death.
Perhaps there is surveillance video or eyewitnesses that plainly show your innocence. We can even hire accident reconstruction experts to testify that any injury was unrelated to your driving.
Ultimately, our goal is to raise a “reasonable doubt” as to your guilt.
Ideally, the prosecutors will see that their evidence is too inadequate to sustain a conviction. The district attorney may be willing to dismiss the charge or reduce it to reckless driving or careless driving as part of a plea bargain.
5. History of DUI fourth penalties in Colorado
Until recently, Colorado did not have a law that made repeat DUI convictions felonies. There were concerns that harsher punishments would not address the underlying issues leading to DUIs and that the cost of incarceration was too high.
Then in 2015, on the heels of a push from Governor John Hickenlooper to pass a felony DUI law, the state legislature approved House Bill 15-1043. The original version included a “third strike” provision to make a third DUI offense within seven years a felony under certain circumstances. After amendments eliminated that provision but added language about considering treatment alternatives to prison, the bill passed and took effect in August 2015.
In 2017, House Bill 17-1288 created mandatory minimum jail sentences for felony DUI offenders sentenced to probation. This applied to offenses committed after August 2017. The law established minimum probation terms of 90 days in jail, or 120 days in an alternative program like work release.
To learn more about Colorado DUI laws, see these related articles:
- Is a 3rd DUI a felony in Colorado? – As discussed in this article, fourth DUIs are felonies, not third DUIs.
- Does Colorado have a felony DUI statute? – Discussion of how Colorado has several statutes that address felony DUI laws.
- When is DUI a class 4 felony in Colorado? – More details on when Colorado law classifies drunk/drugged driving as a felony as opposed to a misdemeanor.
- NO DUI Colorado – Here the Colorado DMV discusses the administrative DUI process, including license suspensions and the required substance abuse treatment to reinstate your license.
- Colorado’s Drunk Driving Laws – Colorado General Assembly’s website providing an overview of the state’s DUI laws.
- Colorado Legislature House Bill 15-1043; CRS 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. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof.
(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. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof. …
(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 18-3-106 (1)(b), C.R.S.; or vehicular assault, as described in section 18-3-205 (1)(b), C.R.S., 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.
- The judge may impose prison only if it determines that a prison sentence with the Department of Corrections is the most suitable option. Factors the court will consider include: Your willingness to participate in an alcohol and/or drug treatment program; and whether there are other penalties that may be successful and do not pose an unacceptable risk to public safety, such as community correction treatment programs. Colorado House Bill 17-1288. CRS 42-4-1307(2)(b):
“Conviction” means a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by the court for an offense or adjudication for an offense that would constitute a criminal offense if committed by an adult. “Conviction” also includes having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.
In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.
As a condition of parole of each person convicted of a felony DUI offense described in section 42-4-1301 (1)(a), (1)(b), or (2)(a), C.R.S., the board shall require the parolee to use an approved ignition interlock device for the entire period of the person’s parole.
- A minor bruise, a jammed finger, or a twisted ankle probably would not qualify as a “serious bodily injury.” CRS 18-1-901(2)(p):
“Serious bodily injury” means bodily injury that, either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part or organ of the body; or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.
- Under Colorado law, “vehicular assault” can also refer to situations where reckless driving causes an injury. Vehicular assault penalties are laxer if the incident involved no alcohol or drugs. CRS 18-3-205(1)(b)(I):
If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime.
- Under Colorado law, “vehicular homicide” can also refer to situations where the reckless driving causes a fatality. Vehicular homicide penalties are laxer if the incident involved no alcohol or drugs. CRS 18-3-106(1)(b)(I):
If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime.