Misdemeanor and Felony Criminal Defense

If you have been charged with DUI in Arapahoe County and any of the below circumstance apply then hiring A Colorado DUI attorney to help with your case makes absolute sense:

• If you have prior Drunk Driving convictions, in Colorado or another state, or if you had an high BAC over 0.2, you should consult an attorney because you could be looking at jail time or prison.
• If you are accused of refusing testing you should consult an attorney about your case because you are looking at a "persistent drunk driver" designation.
• If you are a non-Colorado Resident and it is difficult for you to return multiple times to resolve your Colorado DUI case, you should work with an attorney.
• Out-of-state Residents with one or more prior Drunk Driving Convictions should contact a DUI attorney before they go to Court. These cases are more complex because the defendant, if convicted, is potentially subject to the "Interstate Commission for Adult Offender Supervision."

Drunk Driving crimes in Colorado range from the Driving While Ability Impaired (DWAI) and Driving Under the Influence (DUI, DUI per se and DUID) to the more serious and less common charges of felony DUI, Vehicular Assault and Vehicular Homicide. Most people convicted of DWAI, DUI, DUI Per Se and DUID are sentenced in the misdemeanor penalty range on a first, second or third conviction for drunk driving.

• The difference between Impaired driving (DWAI) and Driving Under the Influence (DUI)is the degree that a person's ability to drive is effected by alcohol and/or drugs. Impaired driving occurs when a person is less able to drive safely than they normally would be, even to the slightest degree. A person Drives Under the Influence when they are substantially incapable of driving safely due to the consumption of alcohol, drugs or both.
• DWAI and DUI Per Se both have blood alcohol concentrations (BAC) associated with them. A person is considered to be DWAI over a 0.05 BAC in Colorado. A person is DUI Per Se above a 0.8 BAC.
• DUID is a DUI with one or more drugs in the driver's system. With the exception of a permissible inference of intoxication for marijuana at 5 nanograms per milliliter there are generally no blood levels at which a person is considered under the influence.

Misdemeanor Drunk Driving sentencing in Colorado is progressive. Progressive Sentencing means that defendants with prior Drunk Driving convictions, or high BACs are sentenced more harshly and are subject to mandatory sentencing.

• Sentencing provisions for Second, Third and Subsequent Drunk Driving convictions take into account prior convictions for "Driving Under Restraint" (where the Restraint arose because of a Drunk Driving incident) regardless of whether the defendant was intoxicated when he drove under restraint.
  
• Sentences for Misdemeanor Drunk Driving start with probation and extend up to as much as one year in a County Jail depending upon whether a DWAI, DUI, DUI Per Se or DUID is involved and whether there were prior Drunk Driving convictions.
  
• Third or subsequent offenses carry a mandatory minimum jail sentence of sixty (60)) days plus a one year sentence that is suspended on condition that the defendant successfully complete probation.
  
• The minimum mandatory sentence must be served flat, i.e., it must be served without time off for good behavior or trusty status, the convicted person is, however, entitled to credit for time served prior to conviction.
  
• Home Detention or Work Release may be available for Misdemeanor Drunk Driving Convictions depending upon your circumstances and the particular judicial officer's willingness to grant probationary sentences.
  
• A period of up to two years probation may be imposed for a first DWAI. The two year probation period must be imposed for Second, Third or Subsequent Drunk Driving Convictions unless the individual is sentenced to Department of Corrections for Felony DUI and therefore is required to complete parole.
  

A person with three or more separate convictions for DWAI, DUI, DUI Per Se, DUID, Vehicular assault or Vehicular Homicide, will usually be charged with a class 4 Felony:

• The Class 4 Felony Sentencing range is Two (2) to Six (6) years confinement in a State Prison or Community Corrections.
• The Court may impose a probation sentence after a period of incarceration in the County Jail, if granted these sentences require a mandatory jail sentence of 90 or 120 days.
• Jail time associated with a grant of felony probation, must be served "flat" i.e. without time off for good behavior or trusty status. Credit for time served prior to conviction may be applied towards the minimum mandatory jail sentence.

The Felony DUI statute allows for sentences to something other than Prison - unless the Court finds that a Department of Corrections Sentence is the most suitable punishment under the circumstances of the case:

• Such non-Prison sentences may include completion of a residential in-patient program as a condition of Probation.
• Beginning in 2017 the Office of Behavioral Health initiated the Level II Four Plus Program for education and treatment of defendants on felony probation. This program is not a substitute for required residential in-patient treatment.
• The mandatory County jail sentence of 90 or 120 days flat must be severed first if a non-Prison sentence is granted.
• Felony probation sentences require the Court to impose a suspended one year jail sentence to be imposed if the individual fails to complete required probation requirements such as alcohol education and treatment, community service, etc.
• The court must impose two(2) years of felony probation in addition to the initial sentence for the purpose of monitoring sobriety.
• The Court may require the use of an ignition interlock device.
• Defendants with two or more prior felonies in Colorado or any other state or who have been convicted of a Felony within the last ten years are ineligible felony probation unless the District Attorney's Office consents.
• Failure to successfully complete a probation sentence usually means re-sentencing to a higher level of punishment -usually community corrections or prison.

If a person convicted of felony DUI is ineligible for probation or the court otherwise deems prison sentence appropriate, that person will be sentenced to either community corrections or the Department of Corrections (Prison):

• Community corrections is often referred to as a "halfway house."
• Community Corrections provides a less restrictive sentencing alternative, with limited privileges not available in Prison.
• Failure to abide by restrictions in Community Corrections usually mean being sent to Prison to serve out you sentence.
• Persons Sentenced to Community Corrections or DOC for Felony DUI must also serve a mandatory period "Parole" of up to three years upon release.
• A Parolee can be returned to prison after receiving "administrative due process" for violating their conditions of Parole.

Vehicular Assault and Vehicular Homicide are both Felony Crimes punishable by lengthy sentences to Department of Corrections:

• "Vehicular Assault" occurs if you injure another person, even a passenger, while Driving Drunk. A defendant convicted of this crime is guilty of either a class 5 Felony if the defendant was DWAI or a class 4 felony if the defendant was DUI.
• "Vehicular Homicide" in the Drunk Driving Context is where a person is killed in a Drunk Driving related accident. Defendants convicted of Vehicular Homicide are guilty of a class 4 or class 3 felony depending upon whether they were DWAI or DUI at the time of the incident.
• These types of Drunk Driving convictions carry with them penalties of up to 32 years in prison with 3 years mandatory parole upon release.

Another common charge associated with Drunk Driving is Child abuse. "A person commits child abuse if such person causes an injury to a child's health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health...."

• A Child Abuse charge will be usually added if you are Drunk Driving with a child in the your vehicle.
• The crime of Child Abuse is punishable as a misdemeanor where no death or injury occurs or where injury to a child does not constitute serious bodily injury.
• Child Abuse can be a felony where death or serious bodily injury of a child results or where there have been prior convictions for Child Abuse, in Colorado or another state.
• In Colorado Child Abuse is an "Extreme Risk crime." This means the misdemeanor sentence range for Child Abuse is expanded by six months. Similarly, Felony Child Abuse is subject to extended sentencing ranges based upon the level of felony.

Misdemeanor DUI sentences also carry either a permissible two (2) year period of probation for DWAI First or a mandatory two year probation period for second offenses onward. During the period of probation the defendant may be subject to "Monitored Sobriety". Monitored sobriety may consist of electronic alcohol monitoring or random urine samples (UAs) that are tested for drugs, alcohol or both. Current ankle monitors continuously sniff the probationer's sweat and will raise an alarm if alcohol is detected. If there isn't sufficient progress towards finishing probation in a reasonable time, or if violations occur such as, drinking, drug use or new criminal cases, the Probation Officer may file a complaint with the Court. If a probation violation is sustained, sanctions may be imposed. Such sanctions include incarceration, posting of money bonds, increased supervision etc. Failure to abide by the probation conditions imposed by the Court can result in up to an additional year in jail with no credit given for time served as a result of any initial sentence sentence. Some of the ways that person can violate probation include, but are not limited to:

• Being charged with a new criminal offense
• Driving under restraint
• Failing to provide required UAs or BAs.
• Tampering with or removing an ankle monitor
• Testing positive for drugs or alcohol during Monitored Sobriety
• Failing to complete or being expelled from Alcohol Education and Treatment
• Failing to attend probation Appointments or Court dates
• Failing to perform community service
• Failing to pay Fines and Court fees

In addition to any sentence of probation or incarceration, Drunk Driving Defendants lose all driver's license "privileges" for period of at least Nine (9) months on a first DUI. On a second or more DUI the penalty is one (1) year. The minimum penalty for DUID is a one year license revocation. Subsequent convictions can result in longer license revocations depending on defendant's driving history. The period of license loss can be longer when combined with other statutory driver's license penalties, for example, three Drunk Driving Convictions in a lifetime will extend the minimum period of license revocation to two years. A person may also lose their driving privileges if DMV makes an administrative determination that they drove with an alcohol level in excess of 0.80 BAC or refused testing. During the period of Driver's License revocation, Colorado will place a hold on the person's Driver's License that other states can access by computer. Most states will deny any person whose name appears on the Drive's License Registry a driver's. A non-exhaustive list of factors that control the length of your driver's license restraint include, but are not limited to the following:

• Whether you were under 21 when the Drunk Driving offense occurred;
• The number of prior drink driving offenses;
• The period over which any prior offenses occurred;
• Whether you are enrolled in or have completed an "approved" alcohol Education and Treatment program;
• whether you refused testing;
• Other restraints against your driving privilege.

If your license is revoked you must complete Alcohol Education and Treatment in order to get your Driver's License back. A restricted license may be available to you if you are enrolled in Education and Treatment but have not yet completed it. The requirements for Education and Treatment are listed in the Probation Treatment Table.

A. DUI Driver's License Hearings

If a breath test reveals that you drove with a BAC over 0.08 or you refused a test an "Affidavit and Notice of Revocation" will be sent to DMV. The Police are required to provide you with a copy of this Notice. Unless you submit an hearing request within 7 days DMV Online Hearing Request Form your driver's license will be revoked. We recommend that you submit a request in order to contest the revocation.

Note: If you opted for a Blood Test you'll receive a Notice in the mail since blood tests can't be done on the spot. Make sure DMV has your correct mailing address and watch the mail for a Notice that so you can request a hearing.

B. Colorado Restricted Licenses

Colorado DUI law allows for "Early Reinstatement". After installing an interlock on your vehicle a restricted license will allow you to drive.

• Persons granted early reinstatement are required to maintain the interlock for the longer of one year or the remaining period of their revocation except that person convicted of a first DUI offense may be eligible to remove the device after going four consecutive months without the interlock detecting excessive alcohol. Caveat: Your total time on interlock may be longer based upon whether you are designated a "Persistent Drunk Driver."
• The person under revocation may apply for early reinstatement at any time, however, juvenile drivers must wait at least one year before applying for early reinstatement.
• A minimum two month waiting period is imposed upon persons who refused testing.
• Non-Colorado residents are ineligible for restricted licenses issued by Colorado DMV since it may only issue licenses to "residents" of this state.

DMV is prohibited from issuing a driver's license to a person convicted of DUI either by a court or DMV administrative hearing until that person provides proof of enrollment and/or completion of a certified alcohol/drug education and treatment class via a form called a DRS.

• Prior to issuance of a restricted license the licensee will be required to pay a fee, obtain SR22, insurance and install a vehicle interlock device on each vehicle registered to that person.
• Only vehicles with an interlock installed may be driven while on a restricted license.
• If a person's alcohol level falls above a certain level, the ignition system of the vehicle will be locked and the violation reported to DMV.
• Failure to abide by the interlock restrictions or tampering with the interlock device can result in additional criminal charges e,g, Driving Under Restraint and Interlock Circumvention.
• All interlock devices are monitored on a monthly or bi-monthly basis by the interlock provider and the results provided to DMV.
• Excess lock-outs can result in lengthening of the time that the interlock must remain installed - Never use the interlock to determine whether you have had too much to drink!

Traffic Stops

Both the U.S. and Colorado Constitutions prohibit police from arbitraily stopping motorists to check for criminal activity. This prohibition includes profiling as well as stopping people at random on the possibility that they may be committing a crime. This is known as the "Reasonable Suspicion" requirement.

Most drunk driving cases start with police stopping a motorist for a traffic violation or "REDDI Report" of suspected drunk driving by a private citizen. Despite the reasonable suspicion requirement the police often stop people upon the suspicion that they are drunk driving even when they when they have done nothing wrong. Traffic stops are inconvenient, embarrassing and can be potentially dangerous. Aside from avoiding obvious traffic violations like speeding, weaving and running stop signs there are things that you can do to avoid traffic stops. The following are some tips on avoiding traffic stops:

• Always check tail lights and license plate lights before driving at night.
• Keep license plates visible and current.
• Avoid making wide turns to the wrong lane.
• Never sit through a green light.
• Avoid noisy turbo waste gates.
• Don't drive aggressively.
• Don't sleep in the driver's seat of your vehicle.

Payment Plans

The reality is that the current economic climate is challenging for most people. We understand that you may not be able to pay attorney fees all at once. Accordingly, we allow our clients to pay attorney fees in three or more installments. If you are interested in a payment plan, please call us at 303.806.5104 to discuss you needs.

Did you know that by law a Colorado DUI, DUID or DWAI cannot be dismissed if there is a chance that the DA can obtain a conviction?

We also handle all types of Misdemeanor and Felony Criminal Cases!

The Law Office of Clifton Hypsher
709 West Littleton Blvd.
Littleton, Colorado 80120
(303)806-5106
Cliff@Dui-Advisor.com