Nobody wants a felony DUI conviction on their record. For that matter, nobody wants a misdemeanor either, but felonies are more serious crimes and result in consequences that are more grave and last longer, including a state prison sentence and loss of some rights and opportunities.
In Colorado, a violation of drinking/drugging and driving laws is usually prosecuted as a misdemeanor. But in some cases, driving under the influence (DUI) in Colorado must be prosecuted as a felony. Any motorist driving in this state should have a thorough understanding of its laws, including those circumstances in which DUIs are felonies.
DUIs in Colorado
Like every state, Colorado makes it illegal for a person to drive a vehicle while under the influence of alcohol and/or drugs. The state statute sets out several ways to prove DUIs. One way to establish a DUI is to show that a person was driving while under the influence of alcohol or one or more drugs. This can be established by evidence of impairment, like a policeman's testimony describing the individual's erratic driving or behavior after exiting the car.
Another road to get to a DUI is to establish that the driver had a blood alcohol concentration (BAC) of 0.08 percent or higher. Likewise, it is a DUI for a driver to operate a vehicle with 5 nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter in their blood. These "per se" DUIs are proved by chemical tests.
The state also has an "express consent" law that provides that every driver in Colorado agrees to take a chemical test if requested by a police officer for DUI purposes. Failure to do so results in a driver's license suspension.
DWAIs in Colorado
Colorado lawmakers also provide for a lesser crime called driving while ability impaired, or DWAI. DUI offenders can be charged with this offense if they used alcohol and/or drugs and their ability to drive was impaired even slightly by those substances.
Most DWAIs are charged when a driver's BAC level is 0.05 percent or higher and less than 0.08 percent, but there is no legal limit for this DUI offense. It can be charged even if the driver does not take a chemical test.
Misdemeanor DUI and DWAI
Most drunk/drugged driving offenses are charged as misdemeanors in Colorado. A misdemeanor is the lesser criminal offense in the state, defined as a crime that cannot be punished by more than a year in jail. It is to be contrasted with a felony, the more serious type of crime.
In some states, a third drunk driving offense can be prosecuted as a felony. In others, aggravating factors like having a child passenger in the car can turn a simple DUI or DWAI into a felony charge. In Colorado, this is not the case. Rather, first, second and third DUIs and DWAIs are misdemeanors – only a fourth DUI or DWAI is charged as a felony.
Fourth DUI Offenses Are Felonies
Under the Colorado felony DUI laws, a DUI is charged as a Class 4 felony if the driver has three or more prior DUIs or DWAIs. Think of this as a "four strikes and you are out" law for repeat offenders. Even if the fourth, current DUI offense is a simple DUI or DWAI, causing no injuries to others, it is a felony. Likewise, it does not matter if the previous DUI convictions occurred many years before, since Colorado has no "washout" or look-back period for DUI cases.
Note that a Colorado motorist can be charged with a fourth-strike felony even if the three previous DUIS occurred in other states or in U.S. territories. These include prior convictions categorized as DUI, DWAI, DWI (driving while intoxicated), OUI (operating under the influence) or any other name as long as they are basically convictions for drunk driving or drugging and driving. A conviction of similar offenses like vehicular assault or vehicular homicide also count as prior offenses, and the three priors need not all be the same type of crime.
DUI Vehicular Assault
Under the Colorado statutes, any drunk or drugged driving will be charged as a class 4 felony DUI offense if it resulted in serious bodily injury to another individual. This does not include minor injuries like a twisted ankle, but does include injuries like serious permanent disfigurement, loss of a bodily function, loss or impairment of organ function, broken bones, fractured bones or second- or third-degree burns.
Charge of a felony in such circumstances does not depend on prior convictions. Even a driver who is picked up for their first DUI offense will be charged with a felony if they caused serious bodily injury to another person. This is termed vehicular assault, and a driver can also be charged with vehicular assault even if no alcohol or drugs were used. However, DUI vehicular assault can incur greater penalties than regular vehicular assault.
DUI Vehicular Homicide
Under Colorado law, it is a Class 3 felony to operate a motor vehicle while impaired or under the influence of alcohol and/or drugs if someone dies as a result of that impaired driving. Like DUI vehicular assault, DUI vehicular homicide in Colorado is prosecuted as a felony even if the driver's prior record is clear. Anyone who drives while under the influence and kills someone during that DUI will be charged with a felony.
A DUI vehicular homicide usually involves more serious sanctions than regular vehicular homicide, where a person’s reckless driving causes a fatality but they were not under the influence of alcohol or drugs. If a driver is prosecuted for a DUI vehicular assault, the prosecutor can upgrade the charge to DUI vehicular homicide if a victim of the assault dies during the pendency of the criminal case.
Penalties for DUI Felonies
Not every DUI felony is assigned the same criminal punishments under Colorado statutes. Some of Colorado's DUI felonies are classified as Class 3 felonies, others are classified as Class 4 felonies. The Class 4 felonies are less severe than the Class 3 crimes, and the maximum punishments reflect that distinction.
Fourth DUIs/DWAIs are prosecuted as Class 4 felonies, and DUI vehicular assaults are also prosecuted as Class 4 felonies. The punishment for this level offense includes time in Colorado state prison – not county jail – of between two to six years. There is a mandatory three-year parole period. If probation is granted, the court must order at least 90 to 180 days in jail, 48 to 120 hours of public service or community service, and substance abuse education. Fines can range from $2,000 to $500,000.
A DUI vehicular homicide is a more serious Class 3 felony. The punishment for this level of DUI offense includes time in state prison of between four and 12 years, with a parole period of five years. Fines for this level of offense ranges from $3,000 to $750,000.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.