Under Colorado law, driving a vehicle under the influence of alcohol or drugs is a crime. The penalties for drunk driving depend on the driver's number of DUIs. The penalties increase with each additional DUI, including increased jail time, alcohol education and treatment, and fines. In this article, our Colorado criminal defense lawyers will address:
- 1. What are the penalties for a third DUI in Colorado?
- 2. Is a third DUI a felony offense in Colorado?
- 3. I got a DUI years ago, does that count as a prior DUI?
- 4. Does an out of state DUI count as a prior DUI?
- 5. What happens to my license after my 3rd DUI in Colorado?
- 6. Can I get an interlock device installed to get my license back early?
- 7. Why should I hire a lawyer after my 3rd DUI arrest in Colorado?
Driving under the influence (DUI) of drugs or alcohol is a misdemeanor offense in Colorado.1 The penalties for a DUI conviction in Colorado will depend on how many drunk driving convictions the driver had and if anyone was injured as a result.
The penalties for a 3rd DUI conviction are harsher than the penalties for a 1st DUI or 2nd DUI, and include mandatory jail time, a longer license suspension, and higher fines and fees. The penalties for a third-time DUI can include:
- From 60 days up to 1 year in jail
- A fine of up to $1,500,
- Revocation of your license for 2-years,
- Community service for up to 120 hours,
- Up to 4 years probation, and
- Alcohol education classes.
The first major difference between a second DUI and third DUI is jail time. After a first-time DUI, jail time is often waived as part of a suspended sentence. A second DUI has mandatory jail time, but only for 10 days. With a 3rd DUI, the driver may be facing 60 days (almost 2 months) in jail.
Drivers arrested for drunk driving for the first time can be charged with driving under the influence (DUI) or driving while ability impaired (DWAI).2 However, the penalties for a third DUI are the same if the driver was over the legal or impaired but under the legal limit.34
A driver can be charged with a DUI or DWAI if they are under the influence of alcohol, drugs, or the combination of alcohol and drugs. You can still be arrested for a DWAI even if you have a valid prescription if the drugs impair your ability to safely operate the vehicle. This also applies to recreational or medical marijuana use. Just because it is legal to use in Colorado does not mean you can drive while high.5
The police can test a driver's blood to see if they had used marijuana in the recent past. Under Colorado law, there is a presumption that a driver is impaired if a chemical blood test shows 5 nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter.6
Persistent Drunk Driver (PDD)
After a third DUI, the driver will be classified as a “persistent drunk driver.”7 As a PDD, drivers have additional requirements to fulfill before they can have their license reinstated. This includes:
- Mandatory ignition interlock device (IID) installed in your vehicle for a minimum of 2 years;8
- Mandatory alcohol education and treatment;9 and
- Proof of financial responsibility (SR-22) from your insurance company for 3 years.10
Alcohol Education Classes and Treatment
Alcohol education classes and treatment are required to have your license reinstated. This is a combination of educational information and substance abuse treatment. Treatment for a 3rd DUI is required if the driver was under the influence of drugs, alcohol, or simply refused a chemical test. The individual is required to pay for the cost of attending DUI school but can get financial assistance if necessary.
For a 3rd DUI, or chemical test refusal, the length of the education and treatment program depend on the driver's blood alcohol level.
Prior DUIs and BAC Level
Alcohol Education and Treatment Level and Track
Minimum Alcohol and Drug Education
Prior DUI and BAC < 0.15
Level II Track C
24 hours / 12 weeks
68 hours / 34 weeks
Prior DUI and
BAC ≥ 0.15
Level II Track D
24 hours / 12 weeks
86 hours / 43 weeks
Prior DUI and
Chemical Test Refusal
Level II Track D
24 hours / 12 weeks
86 hours / 43 weeks
If necessary, the program evaluator can require additional sessions to complete the alcohol education and treatment program.
The good news for drivers is that a third DUI is generally not a felony. A third DUI (like a 1st or 2nd DUI) is still a misdemeanor.11 In Colorado, the fourth DUI is a felony offense.12
A third DUI can be a felony if anyone was injured or died because of the impaired driver. This includes the following drunk driving offenses:
- Vehicular assault involving drugs or alcohol
- Vehicular homicide involving drugs or alcohol
Vehicular assault DUI under C.R.S. 18-3-205 is a Colorado class 4 felony. Driving while under the influence of drugs or alcohol and causing serious bodily injury to another person is vehicular assault DUI. The penalties for vehicular assault DUI can include from 2-6 years in prison and a fine of up to $500,000.
Vehicular homicide DUI under C.R.S. 18-3-106 is a Colorado class 3 felony. Drunk or drugged driving that causes the death of another person is vehicular homicide DUI. The penalties for vehicular homicide DUI can include 4-12 years in prison and a fine of up to $750,000.
Any drunk driving conviction in the past will be counted as a prior DUI in Colorado. This is because Colorado does not have a limited “lookback period” like some states. Any prior DUI conviction in Colorado or any U.S. state or territory will be counted as a prior DUI.13
Other states have a limited lookback or “washout period” for counting prior DUIs. This means that if a DUI occurred before the washout period, it would not be counted as a prior DUI when counting multiple DUIs. In Colorado, there is no limited lookback period and any prior DUI from any date in the driver's past can be considered a prior DUI.
Colorado Lookback Period
Other State Lookback Periods
No limit. Any prior DUI is counted.
Arizona - 7-year limited lookback
California - 10-year limited lookback
Nevada - 7-year limited lookback
If a driver has a prior DUI from many years ago, the judge may take that into consideration for sentencing. When judges have discretion in sentencing, they may consider a recent prior DUI differently than an old prior DUI.
Prior DUIs include any drunk driving conviction In Colorado, any state in the U.S., or any U.S. territory.14
Under Colorado law, prior convictions for multiple DUI offenses in Colorado include any:
Most states share criminal arrest and conviction records. If you had a conviction for drunk driving over a decade ago on the other side of the country, the prosecutor will likely find out about it. Any prior DUI in any state from any time will generally be counted as a prior offense for multiple DUI charges in Colorado.
You will lose your license for 2 years after a 3rd DUI conviction.16 However, you will probably have your license revoked even before you ever get your day in court.
Under Colorado law, your license will be administratively revoked by the DMV after a drunk driving arrest. The only way to prevent this automatic loss of your license is to request an administrative hearing. You must formally request a DMV hearing within seven (7) days after your DUI arrest or your license will be automatically suspended.17
After the arrest, law enforcement will take away your driver's license and give you a “temporary permit.” This permit is only valid for seven (7) days. If you don't request a hearing in within 7 days, you will not be allowed to drive until you get your license reinstated.18
Chemical Test Refusal
Under Colorado's Express Consent law, you will have your license revoked for refusing to submit a breath or blood chemical test after a DUI arrest. Even if you had no alcohol or drugs in your system and you are never convicted of a DUI, under Colorado law, drivers are required to consent to a chemical test if a police officer has reasonable grounds to believe the driver is impaired.19
Some drivers refuse a chemical test because they think it is better if there is no evidence of their blood alcohol level. However, refusing a chemical test after a DUI arrest can be admissible as evidence of guilt at trial.20
The penalties for multiple chemical test refusal are generally higher than for multiple DUI convictions. The penalties for refusing a chemical test for the third (3rd) time include revoking your Colorado driver's license for 3 years.21
Your license will be revoked for 2 years after a 3rd DUI. Similar to a 2nd Colorado DUI, you can have your license reinstated early if you complete the reinstatement requirements and serve a minimum of one-month revocation.
In order to have your license reinstated before the end of the 2-year revocation period, you need to complete the reinstatement process. This includes:
- Completing the Application for Reinstatement (Form #DR 2870)
- Pay the reinstatement fee ($95.00)
- Provide an SR-22 from your car insurance company (to be maintained for 3 years)
- Complete or be enrolled in a Level II Alcohol or Drug Education and Treatment program
- Have an Ignition Interlock Device (IID) installed in your vehicle for a minimum of two (2) years 22
You are required to have an IID installed in all vehicles you drive before you can have your license reinstated. An IID is like a breathalyzer for your car. The IID is linked to the vehicle ignition and requires the driver to blow a clean breath into the device to start the car. The IID also requires regular “rolling samples” while the vehicle is being driven.
The driver is required to pay for installation of the IID and regular maintenance. Any breath samples that show alcohol on the breath will be logged by the device. Any attempts to bypass the machine or tamper with the device will also be recorded. Violations may require extending the IID requirement time or loss of your driving privileges.22
A 3rd DUI conviction can result in serious penalties that can cause major disruptions to your life. If you did not fight your 1st or 2nd DUI, you should seriously think about challenging a 3rd time DUI charge.
There are many legal defenses to Colorado DUI charges that your lawyer can use to win your case. Your attorney can also help you fight your license suspension with the DMV. You should contact an experienced Colorado DUI lawyer as soon as possible because you only have 7 days after an arrest to request a DMV hearing.
Defenses to Criminal DUI Charges
Your criminal defense lawyer will begin building your case by gathering all available evidence. This includes include:
- Witnesses to the events surrounding the arrest
- Photo, video, and audio evidence from police
- Evidence from the “crime scene”, including photos and video
- Police arrest records
- Police equipment records
- Patient medical records
- Vehicle records
Your criminal defense lawyer can then file motions to suppress improper evidence. Evidence can be thrown out of court because of:
- Improper evidence handling
- Improper chain of command
- Faulty chemical testing procedures
- Chemical breath or blood test result errors
- Medical issues
- Lack of probable cause
Call us for help...
If you have been arrested for your 3rd DUI in Colorado, 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.
- 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)(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)(b) (“Driving while ability impaired 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)(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. 42-2-132(2)(a)(II)(A) (“Following the period of revocation set forth in this subsection (2), the department shall not issue a new license unless and until it is satisfied that the person has demonstrated knowledge of the laws and driving ability through the appropriate motor vehicle testing process and that the person whose license was revoked pursuant to section 42-2-125 for a second or subsequent alcohol- or drug-related driving offense has completed not less than 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.“)
- 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), see footnotes 3 and 4 above.
- 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. 42-2-126(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: (C) Two years for a third or subsequent violation occurring on or after January 1, 2009, regardless of when the prior violations occurred; except that such a person may apply for a restricted license pursuant to the provisions of section 42-2-132.5.”)
- C.R.S. 42-2-126(6)(b)(II) (“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. 42-2-126(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. 42-4-1301.1 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. 42-2-126(3) (“(c) Refusal. (I) Except as provided in section 42-2-132.5(4), the department shall revoke the license of a person for refusal for one year for a first violation, two years for a second violation, and three years for a third or subsequent violation; except that the period of revocation shall be at least three years if the person was driving a commercial motor vehicle that was transporting hazardous materials as defined in section 42-2-402(7).”)
- 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.