DUI, Misdemeanor and Felony Criminal Defense

Successfully fighting an Arapahoe DUI or DWAI by yourself can be a nearly impossible task unless you know both how to spot faults in the State's drunk driving case and can effectively exploit those faults before a jury. Relying on just any criminal attorney may not be much better because they probably lack the specialized training of a dedicated DUI attorney. If you have been charged with DUI, DWAI or any Aggravated Driving Offense in Arapahoe County, you owe it to yourself to call The Law Office of Cliff Hypsher for a free consultation. Cliff is a former law enforcement forensic scientist and prosecutor. He has been helping DUI defendants in Colorado for 28 years. If any of the following circumstances apply, give Cliff Hypsher a call because you could be looking at jail time, loss of your ability to drive for work or to care for your family and a criminal record that will haunt you for the rest of your life:

• If you have prior Drunk Driving convictions, in Colorado or another state, or if you had an high Blood Alcohol Concentration, over 0.2, you should consult a DUI attorney because you could be looking at mandatory jail time or prison.
• If you were involve in an accident while impaired or intoxicated.
• 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 that carries with it an extended interlock requirement.
• 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 to handle preliminary proceedings and scheduling.
• 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."
• You hold a Commercial Driver's License (CDL) or Commercial Learner's Permit (CLP).

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 charged with dui in Colorado who has three or more separate prior convictions for DWAI, DUI, DUI Per Se, DUID, Vehicular assault or Vehicular Homicide, will usually be charged with a class 4 Felony. Felony DUI is considered an aggravated drunk driving crime and comes with a possible prison sentence and loss of Civil Rights such as your Second Amendment Rights. In addition a felony conviction will make it more difficult to obtain employment and housing. You need to know the following about Colorado felony DUI:

• 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.
• These are "strict liability" crimes, meaning that the state need only prove that the defendant was drunk driving and that the fact that he or she was driving caused the injury or death.

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 in the County Jail, posting of money bonds, increased supervision or an extension of the probation period. 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

Call us immediately if you have been notified of a probation violation. You are entitled to a hearing before additional sanctions such a jail sentence are imposed. However, because you are already convicted of a crime you have fewer due process rights than during the pre-conviction phase of your case. Depending upon the severity of the facts of the underlying case the District Attorney can ask that you be taken into custody before your probation violation hearing. For this reason alone it is wise to call us as soon as you find out that a probation violation has been filed against you.

I'd estimate that I have had about a 90% success rate in defending probation violation cases. On the other hand most defendants who try to defend a probation violation case on their own end up admitting the violation or providing lame excuses about lack of funds or having to work overtime. As a result defendants often suffering additional penalties simply because they don't understand the judge's concerns in probation violation case.