Dan Murphy
By: Dan Murphy

According to the Denver Post, judges in Colorado are handing down a variety of different penalties to chronic DUI offenders who receive convictions under the state’s new felony DUI law. Some offenders are receiving no time at all behind bars, and others are facing lengthy prison sentences. Anyone charged with felony DUI in Colorado will need the help of an experienced Denver DUI defense attorney just to help you understand the law. Precisely what does the new DUI law say and do, and why are Colorado judges handing out such substantially different sentences for the same conviction?


The law in question took effect in August 2015. It makes the fourth drunken-driving conviction in a lifetime a felony punishable by up to six years in prison. Until last year, Colorado was one of a handful of states where repeat offenders were charged only with a misdemeanor, which meant the maximum period behind bars was one year. Yet some Colorado prosecutors are saying the felony law is actually a step backwards. Previously, all offenders with three or more misdemeanor DUI convictions got at least sixty days in jail. Third-time offenders still do, but for felony fourth-time offenders, judges are given discretion regarding time behind bars.

Supporters of the new law said Colorado needed to join the forty-five other states that make at least some DUI charges felonies. But to pass the law over objections that it would cost too much, the legislation’s backers compromised and required no mandatory jail time for a conviction, instead giving judges the discretion to place convicted offenders in prison or to impose alternative penalties. The measure is expected to increase costs in the judicial and prison systems by $20 million in the first three years.


The Denver Post examined 316 felony DUI cases since the law went into effect. Twenty-five offenders were sentenced to probation or community service but received no time behind bars. Only about three in ten of the fourth-time offenders were actually sentenced to prison (for a term longer than a year), and about 48 percent were sentenced to jail (for a year or less). The other offenders, approximately 22 percent, were sentenced to probation, halfway houses, or jail work-release programs.

In three felony DUI cases, judges sentenced convicted fourth-time offenders to home detention. And in about 40 Denver and Boulder County felony DUI cases, the judges permitted plea agreements that allow defendants’ guilty pleas to be dismissed after jail time is served. In these cases, the prosecutors required the defendants to plead guilty to a reduced DUI misdemeanor charge.


A number of Colorado prosecutors and legislators are hoping to revise the felony DUI legislation in the next legislative session. They want the law to require at least some amount of time behind bars for a fourth DUI conviction. A number of criminal defense attorneys, however, along with Denver’s top prosecutor, think mandatory jail time would be counter-productive, undermine local control of the courts, and remove the discretion that they say judges need in many cases.


Denver domestic violence Attorney Mitch Morrissey previously told the Denver Post that a law requiring prison time for fourth DUI offenses would end up with many offenders serving less time than they serve now in the Denver County Jail, where DUI offenders are provided with intensive alcohol treatment and education. D.A. Morrissey added that under Colorado law, anyone sentenced to four years in prison for driving under the influence can be released to a halfway house in just sixty days however, longtime Santa Rosa personal injury attorney Jeff Nadrich argues this depends on whether or not personal injury resulted from the event.

Peter Weir, the district attorney for Jefferson and Gilpin counties, disagrees and believes that prison should be a requirement for a fourth DUI conviction. D.A. Weir cites the case of Peter Cain, 48, who was convicted of felony DUI earlier this year. Cain was stopped by the police in traffic in September 2015 while riding his Harley-Davidson. His eyes were bloodshot, his speech was slurred, and a strong odor of alcohol was on his breath.


Peter Cain had five prior convictions for DUI and for driving while ability impaired. Jefferson County District Court Judge Todd Vriesman sent Cain to prison for two years on the felony DUI conviction, but Judge Vriesman suspended that sentence on the condition that Cain’s outpatient treatment is successful. The judge then placed Cain on two years’ probation in return for his guilty plea. However, Joseph Martinez of Wheat Ridge pleaded guilty to a felony DUI in May of this year, and Jefferson County District Court Judge Philip McNulty sent Martinez to prison for six years. “We have completely different ends of the spectrum here,” Weir told the Post.


The new law tells judges to sentence a defendant to prison for felony DUI only if “incarceration is the most suitable option given the facts and circumstances of the case, including the defendant’s willingness to participate in treatment.” The statute also tells judges to determine if “all other reasonable and appropriate sanctions and responses to the violation that are available to the court have been exhausted, do not appear likely to be successful if tried, or present an unacceptable to risk to public safety.”

For Weir, the language of the statute “is simply ludicrous.” He said, “These are individuals who already have had repeated chances at treatment.” When judges sentence an offender to both probation and to jail for felony DUI, the maximum jail sentence a judge can impose is ninety days. Weir says there’s a need for new legislation so that a judge can sentence a fourth-time DUI offender to one-to-three years in prison followed by a supervised probation.

State Representative Lori Saine, the lead sponsor of the new felony DUI statute, told the Post that she will support mandatory prison time for fourth DUI felony convictions in the next session of the Colorado General Assembly. Saine said, “The courts are interpreting the DUI felony law to give out less jail time than would be mandated under a misdemeanor DUI. That wasn’t the intent.”


Colorado’s state public defender, Douglas Wilson, argues against revising the felony DUI law to require incarceration because without an incentive to plea bargain, more cases will go to trial. Wilson told the Post, “Minimum mandatory sentences are going away across the nation because they limit the ability for the court to take into account each individual’s personal characteristics and individual records.”

If you’re charged with DUI in Colorado – as a felony or as a misdemeanor – contact an experienced Denver DUI defense attorney for the legal representation that you’ll need. Despite all of the laws and the controversy, the truth remains that DUI is entirely preventable if drivers simply used more caution and common sense. “Don’t drink and drive” is more than a slogan. It’s genuinely a solution, and it’s the sure way to avoid being charged with driving under the influence.

Dan Murphy
By: Dan Murphy

Denver criminal defense lawyer Daniel M. Murphy provides clients in the Denver area with aggressive and sympathetic legal representation. He graduated from the University of Denver Law School in 1994 and worked as a public defender before starting his own practice in 1996. He has defended clients accused of the most difficult criminal and alcohol-related charges. He also serves as a Moot Court Judge for Denver-area law students who rely on his mentorship.