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CRS 42-4-1301

Colorado Driving Under the Influence — Driving While Impaired — Driving With Excessive Alcoholic Content — Definitions — Penalties

Colorado revised statute 42-4-1301—known as driving under the influence –  driving while impaired – driving with excessive alcoholic content— discusses the possible penalties for DUI in Colorado. It also provides the legal definitions for many of the terms used by the court system. gher. This crime is usually charged as a misdemeanor in Colorado, although it can be enhanced to a felony.

Let’s face it. Life happens.

No one wants to get in trouble, but when it happens, what do you do?

If you have been arrested or charged with a crime, the best decision you can make is to
hire a good criminal defense attorney. With the right defense lawyer in your corner, you
will be advised and guided towards the best outcome for your case.

Penalties for Driving Under the Influence in Colorado

Charge Classification Penalty
DUI or DUI per se: First Offense Misdemeanor

 

  • 5 days – 1 year of jail time
  • Mandatory minimum 10 days of jail if the B.A.C is above .20
  • $600 – $1,000 in fines
  • 48 – 96 hours of public service
  • Up to 2 years of probation
DWAI: First Offense Misdemeanor
  • 2 – 180 days of jail time
  • Mandatory minimum 10 days of jail if the B.A.C is above .20
  • $200 – $500 in fines
  • 24 – 48 hours of public service
  • Up to 2 years of probation
DUI, DUI per se, or DWAI: Second Offense Misdemeanor
  • 10 consecutive days – 1 year imprisonment
  • $600 – $1,500 in fines
  • 48 – 120 hours of public service
  • 2 years minimum of probation
DUI, DUI per se, or DWAI: Third Offense Misdemeanor
  • 60 consecutive days – 1 year imprisonment
  • $600 – $1,500 in fines
  • 48 – 120 hours of public service
  • 2 years minimum of probation
(Colo. Rev. Stat. § § 42-4-1301, 18-1.3-401, 18-1.3-406, 18-1.3-501.)

Possible Defenses for Driving Under the Influence in Colorado

To convict the defendant, the prosecutor must prove a list of elements to show that the defendant committed the crime beyond a reasonable doubt.  However, there are some defenses a criminal defense attorney can utilize to defend you in these cases.

Some common defenses for driving while impaired include:

  • The traffic stop was unlawful. Colorado law enforcement must have probable cause to perform a traffic stop.
  • The field sobriety test was inaccurate. Defendants who are elderly, injured, overweight, or disabled could possibly challenge the accuracy of a field sobriety test.
  • The breathalyzer was faulty or improperly administered. Defendants can challenge the accuracy of the breathalyzer if the test was administered incorrectly or the equipment used was not calibrated correctly.
  • The blood test was inaccurate. Blood samples taken in Colorado must be collected, handled, and stored correctly, and a DUI defense lawyer can challenge the accuracy of a blood test on these grounds.
  • There was no evidence that the defendant was operating the vehicle
  • The driver was under duress and had no alternative to driving while intoxicated to seek help

Colorado Revised Statutes, CRS 42-4-1301:

42-4-1301. Driving under the influence – driving while impaired – driving with excessive alcoholic content:

(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. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106(1)(b), C.R.S.; vehicular assault, as described in section 18-3-205(1)(b), C.R.S.; or any combination thereof.

(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. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106(1)(b), C.R.S.; vehicular assault, as described in section 18-3-205(1)(b), C.R.S.; or any combination thereof.

(c) Repealed by Laws 2013, Ch. 331, § 1, eff. May 28, 2013.

(d) As used in this section, one or more drugs means any drug, as defined in section 27-80-203(13), C.R.S., any controlled substance, as defined in section 18-18-102(5), C.R.S., and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 18-18-412, C.R.S.

(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 18-18-406.3, C.R.S., shall not constitute a defense against any charge of violating this subsection (1).

(f) “Driving under the influence” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(g) “Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(h) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI, it shall be sufficient to describe the offense charged as “drove a vehicle under the influence of alcohol or drugs or both.”

(i) Pursuant to section 16-2-106, C.R.S., in charging the offense of DWAI, it shall be sufficient to describe the offense charged as “drove a vehicle while impaired by alcohol or drugs or both.”

(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 18-3-106(1)(b), C.R.S.; or vehicular assault, as described in section 18-3-205(1)(b), C.R.S., 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.

(k) Repealed by Laws 2017, Ch. 387, § 2, eff. August 9, 2017.

(2)(a) A person who drives a motor vehicle or vehicle when the person’s BAC is 0.08 or more at the time of driving or within two hours after driving commits DUI per se. During a trial, if the state’s evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving. DUI per se is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106(1)(b), C.R.S.; vehicular assault, as described in section 18-3-205(1)(b), C.R.S.; or any combination thereof.

(a.5) Repealed by Laws 2015, Ch. 262, § 1, eff. Aug. 5, 2015.

(b) In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what any tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person’s blood or breath.

(c) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI per se, it shall be sufficient to describe the offense charged as “drove a vehicle with excessive alcohol content.”

(d)(I) It is a class A traffic infraction for any person under twenty-one years of age to drive a motor vehicle or vehicle when the person’s BAC, as shown by analysis of the person’s breath, is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving. The court, upon sentencing a defendant pursuant to this subparagraph (I), may order, in addition to any penalty imposed under a class A traffic infraction, that the defendant perform up to twenty-four hours of useful public service, subject to the conditions and restrictions of section 18-1.3-507, C.R.S., and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant’s own expense.

(II) A second or subsequent violation of this paragraph (d) is a class 2 traffic misdemeanor.

(3) The offenses described in subsections (1) and (2) of this section are strict liability offenses.

(4) No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI or DUI per se; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.

(5) Notwithstanding the provisions of section 18-1-408, C.R.S., during a trial of any person accused of both DUI and DUI per se, the court shall not require the prosecution to elect between the two violations. The court or a jury may consider and convict the person of either DUI or DWAI, or DUI per se, or both DUI and DUI per se, or both DWAI and DUI per se. If the person is convicted of more than one violation, the sentences imposed shall run concurrently.

(6)(a) In any prosecution for DUI or DWAI, the defendant’s BAC or drug content at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:

(I) If at such time the defendant’s BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant’s ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.

(II) If at such time the defendant’s BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant’s ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(III) If at such time the defendant’s BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.

(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.

(b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant’s ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.

(c)(I) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person’s alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person’s blood, breath, saliva, or urine to determine such person’s alcohol or drug level. The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a second sample of a person’s blood, saliva, or urine or the collection and preservation of a delayed breath alcohol specimen is not required.

(II) Nothing in this paragraph (c) prevents the necessity of establishing during a trial that the testing devices used were working properly and were properly operated. Nothing in this paragraph (c) precludes a defendant from offering evidence concerning the accuracy of testing devices.

(III) The database compiled by the department of public health and environment containing personal identifying information relating to the results of tests of persons’ breath alcohol content, and all personal identifying information thereof, are not public information. The department of public health and environment shall disclose such information only to:

(A) The individual who is the subject of the test, or to his or her legal representative;

(B) A named interested party in a civil or criminal action in which the test results are directly related, or to his or her legal representative;

(C) Any prosecuting attorney, law enforcement officer, state agency, or state and local public official legally authorized to utilize such information to carry out his or her duties; or

(D) Any party who obtains an order in a pending civil or criminal case if the court finds the party has shown good cause to have the information. In determining whether there is good cause, the court shall consider whether the materials sought exist; whether the materials sought are evidentiary and relevant; whether the materials are not otherwise procurable reasonably in advance of the proceeding by the exercise of due diligence; whether the party cannot properly prepare for the proceeding without such production and inspection in advance of the proceeding, and the failure to obtain such inspection may tend to unreasonably delay the proceeding; and whether the request for the information is made 

in good faith and is not for the purposes of general discovery.

(IV) The department of public health and environment may release nonpersonal identifying information from the database in accordance with sections 24-72-101 to 24-72-402, C.R.S.

(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.

(e) Involuntary blood test–admissibility. Evidence acquired through an involuntary blood test pursuant to section 42-4-1301.1(3) shall be admissible in any prosecution for DUI, DUI per se, DWAI, or UDD, and in any prosecution for criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106(1)(b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205(1)(b), C.R.S.

(f) Chemical test — admissibility. Strict compliance with the rules and regulations prescribed by the department of public health and environment shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results.

(g) It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer’s or supplier’s certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.

(h) In any trial for a violation of this section, the testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who the law enforcement officer reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person’s authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained.

(i)(I) Following the lawful contact with a person who has been driving a motor vehicle or vehicle and when a law enforcement officer reasonably suspects that a person was driving a motor vehicle or vehicle while under the influence of or while impaired by alcohol, the law enforcement officer may conduct a preliminary screening test using a device approved by the executive director of the department of public health and environment after first advising the driver that the driver may either refuse or agree to provide a sample of the driver’s breath for such preliminary test; except that, if the driver is under twenty-one years of age, the law enforcement officer may, after providing such advisement to the person, conduct such preliminary screening test if the officer reasonably suspects that the person has consumed any alcohol.

(II) The results of this preliminary screening test may be used by a law enforcement officer in determining whether probable cause exists to believe such person was driving a motor vehicle or vehicle in violation of this section and whether to administer a test pursuant to section 42-4-1301.1(2).

(III) Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver’s attorney on request.

(j) In any trial for a violation of this section, if, at the time of the alleged offense, the person possessed a valid medical marijuana registry identification card, as defined in section 25-1.5-106(2)(e), C.R.S., issued to himself or herself, the prosecution shall not use such fact as part of the prosecution’s case in chief.

(k) In any traffic stop, the driver’s possession of a valid medical marijuana registry identification card, as defined in section 25-1.5-106(2)(e), C.R.S., issued to himself or herself shall not, in the absence of other contributing factors, constitute probable cause for a peace officer to require the driver to submit to an analysis of his or her blood.

(7) Repealed by Laws 2010, Ch. 258, § 1, eff. July 1, 2010.

(8) A second or subsequent violation of this section committed by a person under eighteen years of age may be filed in juvenile court.

Have you been charged or arrested for driving under the influence in Colorado Springs or El Paso County?

Driving while under the influence of alcohol in Colorado comes with severe consequences. Depending on the severity of your charge, you could face several days to many months in jail, hefty fines, and other penalties. This can tarnish your record, negatively affecting many aspects of your life. However, the prosecutor must convince the jury that you committed the crime for which you were accused beyond a reasonable doubt. There are many possible defenses for DUI, such as having an inaccurate breathalyzer or field sobriety test.

To defend yourself against a driving under the influence charge, you should be aware of Colorado law and what the District Attorney must prove to convict you.

Frequently Asked Questions

What is a UDD?

A UDD stands for underage drinking and driving. Colorado has a “zero tolerance” regulation, which means it is illegal for any person under the age of 21 to drive with a BAC level of 0.02% or higher. A first-time UDD conviction constitutes a civil violation, while a second or more charge is a class 2 traffic misdemeanor.

Can I refuse a breathalyzer test?

While you can technically refuse a breathalyzer test, it comes with consequences. A first-time refusal calls for a one-year license suspension, and a second-time refusal calls for a two-year license suspension. A third-time refusal calls for a three-year license suspension.