Is DUI a Felony in Colorado? The 3 Ways It Can Happen

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:

1. Fourth-time DUIs have been prosecuted as felonies in Colorado only since 2015.
2. Fourth-time DUIs and any DUI causing serious bodily injury are class 4 felonies carrying 2 to 6 years in prison.
3. DUI causing death is a class 3 felony carrying 4 to 12 years in prison.
4. Although DUI fourths now carry prison time, it may be possible to get a county jail sentence and probation instead.

In this article, our Denver drunk driving defense lawyers explain what constitutes Colorado’s felony DUI law. We also discuss the penalties and possible defenses.

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.

Note that juvenile DUI offenses usually do not count as prior convictions. Deferred sentences or judgments also should not count as prior convictions unless they are still pending.

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

Colorado has a DUI “Four Strikes” Law. A fourth DUI or DWAI is an automatic felony.

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.

A DUI causing serious injury is typically referred to as vehicular assault.

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:

1. The police had no reasonable suspicion to pull you over in the first place;
2. The police had no probable cause to arrest you for DUI or DWAI;
3. The police did not administer the field sobriety tests correctly;
4. The breath test equipment or blood test equipment was defective or handled improperly; and/or
5. 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.

Plea bargains

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.

DUIs are prosecuted in the Colorado county where the incident allegedly occurred.

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.

Additional reading

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.

Legal References