Second and Subsequent Offenses – CDAC Member Portal

Sentencing for first offense in impaired driving cases differs depending on the offense and the BAC of the defendant at the time of driving. Sentencing for second or subsequent offenses, however, is largely the same regardless of the offense and regardless of the qualifying prior offenses (sometimes called “predicate offenses”).

Qualifying Prior Offenses

A defendant faces aggravated sentencing if, at the time of sentencing on the new DUI, DUI Per Se, or DWAI case, the defendant has a prior conviction for:

1. 1. DUI
  2. DUI Per Se
  3. DWAI
  4. Vehicular Homicide (DUI version)
  5. Vehicular Assault (DUI version)
  6. Aggravated Driving with a Revoked License before 2015
  7. Driving Under Restraint for an Alcohol-Related Offense (“DUR-Alc”)

§ 42-4-1307(9).

An out-of-state conviction qualifies if the out-of-state act would constitute a qualifying offense in Colorado. Id.

Prima facie proof of a person’s prior offenses is established when:

- - You and the defendant stipulate to the existence of the prior conviction or convictions;
  - You present to the court a copy of the defendant’s driving record provided by the department of revenue or by a similar agency in another state, and that record contains a reference to the previous conviction or convictions; or
  - You present an authenticated copy of the record of the previous conviction or judgment from a court of record.

§ 42-4-1307(9)(b)(I).

Mandatory Bond Conditions for Second or Subsequent Offenses

As a condition of bond in any second or third DUI or DWAI offense, the court shall order a person arrested to:

1. 1. abstain from the use of alcohol or illegal drugs, and
  2. be monitored for that abstinence.

§ 16-4-105(6)(a).

Sentencing: One Prior Offense (“Second Offense”)

Punishment	Range	Discretionary	Caveats
Jail	10 days – 1 year	No	Jail alternatives permitted pursuant to § 18-1.3-106. Eligible for presentence confinement credit.
Fine	$600 – $1,500	Yes
Useful Public Service	48 – 120 hours	No
Probation	At least 2 years	No	Not probation eligible if defendant has been sentenced to DOC Can be extended for up to 2 additional years to monitor defendant’s sobriety and compliance with court-ordered alcohol or substance use treatment.
Suspended Jail	1 year	No
Interlock Device	During probation	Yes
Continuous Alcohol Monitoring		Yes	Unless not in best interests of justice or unavailable.

§ 42-4-1307(5), (7).

One Prior within 5 Years

If the prior offense occurred within the last 5 years, then work release is the only jail alternative permitted. § 42-4-1307(5)(b).

Sentencing: Two or More Prior Offenses (“Third or Subsequent Offenses”)

Punishment	Range	Discretionary	Caveats
Jail	60 days – 1 year	No	Work Release or Community Corrections only jail alternatives permitted. Eligible for presentence confinement credit. In-home detention permitted only if jurisdiction doesn’t have a work-release program, and only if judge makes certain findings.
Fine	$600 – $1,500	Yes
Useful Public Service	48 – 120 hours	No
Probation	At least 2 years	No	Not probation eligible if defendant has been sentenced to DOC. Can be extended for up to 2 additional years to monitor defendant’s sobriety and compliance with court-ordered alcohol or substance use treatment.
Suspended Jail	1 year		Suspended on condition defendant successfully completes probation. No credit for the 60 days to 1 year of mandatory jail imposed.
Interlock Device	During probation	Yes
Continuous Alcohol Monitoring		Yes	Unless not in best interests of justice or unavailable.

§ 42-4-1307(6), (7).

Two or More Prior Impaired Driving Offenses within Last 7 Years

If a defendant has committed the following offenses within the last seven years and their alcohol or substance use evaluation recommends residential treatment, the defendant can be placed into residential treatment as a condition of their probation sentence:

1. 1. DUI
  2. DUI Per Se
  3. DWAI
  4. Vehicular Homicide (DUI version)
  5. Vehicular Assault (DUI version)

§ 42-4-1307(6)(c).

Suspended Jail Sentences for Second or Subsequent Offenses

The court may impose some or all of the 1-year suspended jail sentence on a second or subsequent offense if the defendant violates a condition of their probation “in a manner that promotes the person’s compliance with the conditions of his or her probation and not merely as a punitive measure.” § 42-4-1307(7)(c)(II). If the court decides to impose some or all of the suspended jail sentence, the defendant must continue to serve their probationary sentence without any reduction in the probation sentence. § 42-4-1307(7)(c)(I).

When deciding whether and how much of the 1-year of suspended jail to impose on a defendant who violates their probation, the court must consider:

1. 1. the nature of the violation,
  2. the report or testimony of the probation department,
  3. the impact on public safety,
  4. the progress of the person in any court-ordered alcohol and drug driving safety education or treatment program, and
  5. any other information that may assist the court in promoting the person’s compliance with the conditions of his or her probation.

Id.

Early Termination of Probation for Second or Subsequent Offenses

Upon petition by the prosecution, the defendant, the defendant’s counsel, or the person’s probation officer may petition the court at any time for an early termination of the period of probation, which the court may grant upon a finding of the court that:

1. 1. The defendant successfully completed any recommended drug and alcohol treatment,
  2. The defendant complied with the terms and conditions of his or her probation, and
  3. Early termination of probation will not endanger public safety.

§ 42-4-1307(7)(d).

Resources

Colorado Resources

Impaired Driving Penalties

Example DUI Rule 11

National Resources

Hardcore Drunk Driving Prosecutorial Guide: A Resource Outlining Prosecutorial Challenges, Effective Strategies and Model Programs