When is DUI / DWAI a Felony in Colorado?


DUI and DWAI are usually filed as a misdemeanor in Colorado. But DUI can be filed as a felony charge if it is the defendant's 4th offense, or if the defendant causes an accident in which another person is injured or killed. 

Specifically, felony DUI is charged in 3 circumstances:

  1. The defendant has three (3) prior convictions for DUI or DUI of drugs; or
  2. The defendant's driving caused serious bodily injury - called vehicular assault (18-3-205 C.R.S.); or
  3. The defendant caused a fatal accident - called vehicular homicide (18-3-106 C.R.S.)

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

car key, drink, and handcuffs
Colorado has a DUI "Four Strikes" Law. A fourth DUI or DWAI is an automatic felony.

1. Is a fourth DUI / DWAI a Class 4 Felony? 

Yes, based on 42-4-1301 CRS, the Colorado felony DUI statute. DUI is a class 4 felony in Colorado if the driver has at least three prior DUI-related convictions. Here are key points to know about Colorado's DUI "Four Strikes" Law:

  1. A fourth strike is still a felony even if the current incident caused no injuries.
  2. It is irrelevant how long ago the three prior convictions occurred. There is no "washout" period.
  3. It does not matter if the prior convictions happened in Colorado or other U.S states or territories. It also does not matter if these prior convictions had different legal names (such as DWI or OUI). Any prior DUI conviction within the U.S. counts as a strike.
  4. Juvenile DUI offenses usually do not count as prior convictions unless there is still a pending deferred judgment.
  5. Any type of drunk/drugged driving-related conviction qualifies as a prior offense, including DUI, DUI per se, DWAI, vehicular assault, or vehicular homicide. And it makes no difference if the three prior convictions were a combination of different DUI crimes or were all the same.

So a person with three prior DWAI convictions would still face felony charges for a fourth DWAI in Colorado.1 It makes no difference that DWAIs are the least serious DUI-related offense.

2. Is DUI with injury a felony?

Yes, depending on the injury. Under 18-3-205 C.R.S., drunk or drugged driving is a class 4 felony if it causes someone else to sustain "serious bodily injuries." It makes no difference if the driver has no prior convictions.

A "serious bodily injury" includes:

  • death;
  • serious permanent disfigurement;
  • protracted loss or impairment of a bodily function or organ function;
  • breaks/fractures; or 
  • second- or third-degree burns.2

Therefore, a minor bruise, a jammed finger, or a twisted ankle probably would not qualify as a "serious bodily injury."

A DUI causing injury is typically referred to as "vehicular assault." Under Colorado law, "vehicular assault" can also refer to situations where a person's reckless driving causes an injury. Vehicular assault penalties are laxer if the incident involved no alcohol or drugs.3

3. Is DUI with death a felony?

Yes. Under 18-3-106 C.R.S., driving while impaired or under the influence is a class 3 felony if it causes someone else to die in an accident. As with vehicular assault, vehicular homicide is always a felony even if the driver has no prior convictions.

A DUI causing death is typically referred to as "vehicular homicide." Under Colorado law, "vehicular homicide" can also refer to situations where a person's reckless driving causes a fatality. Vehicular homicide penalties are laxer if the incident involved no alcohol or drugs.4

Note that a vehicular assault charge can be upgraded to vehicular homicide if the victim dies while the criminal case is pending.

4. What are the penalties for felony DUI?

It depends on the specific charge the defendant gets convicted of:

Felony Drunk/Drugged Driving Conviction

Colorado Penalties

A fourth-time DUI, DUI per se, or DWAI under 42-4-1301(1)(a) and (b), C.R.S.

Class 4 felony:

  • $2,000 to $500,000 in fines; and/or
  •  2 to 6 years in Colorado State Prison with a mandatory 3-year parole period*^

If the judge grants probation, the sentence must include:

  • 90 to 180 days in jail or 120 days to 2 years in jail through an alternative-sentencing program;
  • 48 to 120 hours of community service; and
  • Level II alcohol and drug education class5

DUI causing serious injury (vehicular assault under 18-3-205(1)(b)(I), C.R.S.)

Class 4 felony:

  • $2,000 to $500,000 in fines; and/or
  •  2 to 6 years in prison with a mandatory 3-year parole period*

DUI causing death (vehicular homicide under 18-3-106(1)(b)(I), C.R.S.)

Class 3 felony:

  • $3,000 to $750,000 in fines; and/or
  • 4 to 12 years in prison with a mandatory 5-year parole period.

*The judge may impose prison only if it determines that prison is the most suitable option. Factors the court will consider include:

  • The defendant's willingness to participate in alcohol and/or drug treatment; and
  • Whether there are other penalties that may be successful and do not pose an unacceptable risk to public safety.

^The judge may impose a sentencing range of 4 to 12 years if there are extraordinary aggravating circumstances. This typically occurs when defendant was on parole, on probation, or on bond for another felony.

Defendants released from prison are required to use an ignition interlock device in their cars during their parole.6

5. What are the defenses to felony DUI charges?

There are several ways to fight drunk/drugged driving charges depending on the facts of the case. Five common defenses include:

  1. The police had no probable cause to suspect DUI or DWAI in the first place;
  2. The police did not administer the field sobriety tests correctly;
  3. The breath test equipment or blood test equipment was defective or handled improperly;
  4. The defendant had a medical condition such as GERD that caused high blood alcohol content (BAC) results; or
  5. Rising blood alcohol caused a high BAC result

In four-strikes cases, the defense attorney can try to show that the defendant does not have three prior DUI-related convictions. Perhaps these prior cases were dismissed, reduced to non-DUI charges, or do not meet Colorado's definition of driving under the influence or while impaired.

And in vehicular assault or homicide cases, the defense attorney can try to argue that the defendant's driving did not cause the injury or death. Perhaps there is surveillance video or eyewitnesses that could back up the defendant's innocence. The defense attorney can even hire accident reconstruction experts to show how any injury was unrelated to the defendant's driving.

The defense attorney's goal is to raise a "reasonable doubt" about the defendant's guilt. Ideally, the prosecutors will see that their evidence is too inadequate to sustain a conviction. They may be willing to dismiss the charge or reduce it to reckless or careless driving.

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Call our Denver criminal defense attorneys at 303-222-0330 for a free consultation.

Call us for help...

We can help if you have been charged in Colorado with vehicular homicide, vehicular assault, DUI, or DWAI. Contact us today for a free consultation by phone or in-person at our centrally located Denver office:

Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
(303) 222-0330

Arrested in California? See our article on California felony DUI laws.

Arrested in Nevada? See our article about Nevada felony DUI laws.

Legal References

  1. Colorado House Bill 15-1043; 42-4-1301(1)(a) and (b) C.R.S.
  2. 18-1-901(2)(p) C.R.S.
  3. 18-3-205(1)(b)(I) C.R.S.
  4. 18-3-106(1)(b)(I) C.R.S.
  5. Colorado House Bill 17-1288.
  6. 42-2-132.5. C.R.S.

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