Third DUI in Colorado
A third driving under the influence charge is one of the most serious misdemeanor impaired-driving cases a person can face in Colorado. A conviction generally carries at least 60 consecutive days in county jail, as much as one year in jail, substantial fines, community service, probation, Level II alcohol or drug treatment, continuous alcohol monitoring, a two-year driver’s-license revocation, and ignition interlock restrictions.
Although an ordinary third DUI remains a misdemeanor, the consequences are considerably more severe than those imposed for a first or second offense. A third conviction also places the person one offense away from Colorado’s felony DUI threshold because a fourth or subsequent qualifying impaired-driving offense may be charged as a class 4 felony.
Colorado may count prior convictions for DUI, DUI per se, DWAI, and substantially similar offenses from other jurisdictions. Prior convictions do not necessarily stop counting merely because they occurred many years ago. Anyone facing a third DUI should have both the new allegations and the claimed prior convictions carefully reviewed.
Denver Third-Offense DUI Attorney
A third DUI threatens a person’s freedom, license, employment, finances, and future. Mandatory jail is a central part of the sentence, and any additional impaired-driving conviction could expose the defendant to felony prosecution.
Attorney Matthew Martin can investigate the traffic stop, driving allegations, field sobriety exercises, body-camera recordings, breath or blood testing, chemical-test refusal, and the validity of the two prior convictions. He can also represent the driver in the separate DMV proceeding and seek authorized sentencing alternatives when a conviction cannot be avoided.
Call Denvers Defense Attorney at 303.725.0017 to schedule a free initial consultation. Denvers Defense Attorney represents clients throughout Denver and the surrounding area, including Jefferson County, Broomfield County, Boulder County, Arapahoe County, Adams County, and Douglas County.
Overview of Third DUI Offenses in Denver, Colorado
- What Counts as a Third DUI in Colorado?
- Colorado DUI, DUI Per Se, and DWAI Laws
- What Must Prosecutors Prove?
- Penalties for a Third DUI in Colorado
- Mandatory Jail for a Third DUI
- Probation After a Third DUI
- Continuous Alcohol Monitoring
- Alcohol and Drug Education and Treatment
- Penalties for a Third DWAI
- Driver’s-License Revocation After a Third DUI
- Early Reinstatement With Ignition Interlock
- Common Defenses to a Third DUI
- Can a Third DUI Be Sealed?
- Why Hire an Attorney for a Third DUI
- Additional Resources
What Counts as a Third DUI in Colorado?
A case may be treated as a third impaired-driving offense when the defendant has two prior qualifying convictions. Those prior convictions may include:
- Driving under the influence;
- DUI per se;
- Driving while ability impaired;
- Vehicular assault or vehicular homicide involving alcohol or drugs; or
- A substantially similar impaired-driving conviction from another state or jurisdiction.
Colorado generally considers a defendant’s lifetime impaired-driving history when determining whether a new offense is a first, second, third, or subsequent violation. A prior DUI or DWAI does not necessarily disappear for sentencing purposes simply because it occurred many years earlier.
The prosecution must establish the existence of the prior convictions before third-offense penalties apply. The defense may examine whether the records identify the correct person, whether an out-of-state offense is legally comparable to a Colorado impaired-driving offense, and whether the prior judgments were constitutionally valid.
A third DUI is ordinarily still a misdemeanor. However, it carries mandatory minimum penalties and creates substantial exposure if the person is later arrested for another impaired-driving offense.
Colorado DUI, DUI Per Se, and DWAI Laws
Colorado recognizes several related impaired-driving offenses.
Driving Under the Influence – DUI generally applies when alcohol, drugs, or a combination of substances affects a person so substantially that they are incapable of safely operating a vehicle.
DUI Per Se – DUI per se generally applies when a person drives with a blood alcohol concentration of at least 0.08 within the legally relevant period after driving.
Driving While Ability Impaired – DWAI applies when alcohol or drugs affect a driver to the slightest degree, making the person less able than usual to exercise clear judgment, maintain physical control, or operate a vehicle safely.
Colorado’s impaired-driving laws apply to alcohol, marijuana, illegal drugs, prescription medications, over-the-counter medications, and combinations of substances. Lawful possession or use of marijuana or prescription medication does not authorize a person to drive while impaired.
A blood test showing at least five nanograms of delta-9 THC per milliliter does not automatically prove DUI. It permits an inference that the person was affected by marijuana, but the prosecution must still prove the charged offense beyond a reasonable doubt.
What Must Prosecutors Prove?
The existence of two prior convictions does not establish that the defendant committed the new offense. Prosecutors must independently prove the current DUI allegation.
For DUI, the prosecution generally must establish that the defendant:
- Drove or exercised actual physical control over a vehicle;
- Did so in Colorado; and
- Was substantially incapable of safely operating the vehicle because of alcohol, drugs, or both.
- For DUI per se, prosecutors generally must prove that the defendant drove with a BAC of at least 0.08 within the applicable testing period.
Evidence may include:
- Erratic or unsafe driving;
- An accident;
- Body-camera or dashboard-camera recordings;
- Breath- or blood-test results;
- Field sobriety exercises;
- Statements made to police;
- An odor of alcohol or marijuana;
- Speech, coordination, and balance;
- Prescription containers or suspected drugs;
- Witness testimony;
- Surveillance footage; and
- A drug-recognition evaluation.
Officers’ observations are not automatically conclusive. Fatigue, stress, injuries, medical conditions, weather, road conditions, and improper testing procedures may create innocent explanations for alleged signs of impairment.
Penalties for a Third DUI in Colorado
A third DUI or DUI-per-se conviction generally carries:
- Sixty days to one year in county jail;
- A fine of $600 to $1,500;
- Forty-eight to 120 hours of useful public service;
- Probation;
- Level II alcohol and drug education and treatment;
- At least 90 days of continuous alcohol monitoring during probation, unless a statutory exception applies;
- Twelve driver’s-license points;
- Court costs and statutory surcharges;
- A two-year driver’s-license revocation in many third-offense situations;
- SR-22 insurance requirements; and
- Ignition interlock restrictions.
Colorado requires at least 90 days of continuous alcohol monitoring when a person receives probation for a third or subsequent DUI, DUI-per-se, or DWAI offense. A court may decline to order monitoring when it finds that monitoring would not serve the interests of justice or that the person lives somewhere a device cannot reasonably be obtained.
The actual cost of a conviction can exceed the statutory fine. Additional expenses may include probation supervision, treatment, substance testing, continuous monitoring, community-service administration, vehicle towing and storage, license reinstatement, SR-22 insurance, and ignition interlock installation and servicing.
Mandatory Jail for a Third DUI
A third DUI generally requires at least 60 consecutive days in county jail. This is substantially greater than the 10-day minimum ordinarily associated with a second offense.
The court may authorize a structured or alternative form of serving the sentence when the law and local programs permit. Possibilities may include:
- Work release;
- Day reporting;
- Home detention;
- An alternative sentencing facility;
- Electronic monitoring; or
- A combination of incarceration and another authorized program.
An alternative arrangement does not necessarily eliminate the mandatory sentence. It may change the location, schedule, or conditions under which the sentence is served. Availability depends on the court, local corrections programs, the person’s history, and compliance with eligibility rules.
A judge may impose more than the minimum 60 days when aggravating circumstances are present. The maximum jail sentence for an ordinary misdemeanor third DUI is one year.
Probation After a Third DUI
A third DUI sentence commonly includes probation in addition to jail. The court may suspend part of the one-year jail exposure on the condition that the defendant successfully completes probation.
Probation conditions may include:
- Remaining free from alcohol and illegal drugs;
- Random breath, urine, or other substance testing;
- At least 90 days of continuous alcohol monitoring;
- Level II education and therapy;
- Compliance with ignition interlock restrictions;
- Completion of community service;
- Attendance at court reviews;
- Avoiding new criminal offenses;
- Maintaining employment or education;
- Payment of fines and costs; and
- Compliance with any treatment recommendations.
A probation violation can result in arrest, additional jail, stricter supervision, or revocation of probation. The court may impose some or all of the previously suspended sentence.
Continuous Alcohol Monitoring
Colorado generally requires at least 90 days of continuous alcohol monitoring for a person placed on probation following a third or subsequent DUI, DUI-per-se, or DWAI conviction. Monitoring may involve a device that checks for alcohol continuously or at frequent intervals rather than relying only on occasional probation tests.
Depending on the court and available technology, monitoring may involve:
- A transdermal ankle device;
- A remote breath-testing device;
- An ignition interlock device;
- Scheduled and random alcohol tests; or
- Another court-approved monitoring system.
The court can make an exception when monitoring would not be in the interests of justice or the defendant lives in an area where a device cannot reasonably be obtained. Colorado law also provides a mechanism for probation to cover the monitoring costs when a defendant is unable to pay.
Tampering with the device, missing tests, or recording prohibited alcohol use can lead to probation sanctions.
Alcohol and Drug Education and Treatment
A third DUI conviction generally requires an alcohol and drug evaluation followed by Level II education and treatment. The requirements may be imposed by both the criminal court and the DMV.
Programming may include:
- Level II education;
- Level II therapy;
- Individual or group counseling;
- Substance-use testing;
- Relapse-prevention planning;
- Victim-impact programming;
- Support-group attendance; and
- Additional treatment recommended by the evaluator.
The length and intensity of treatment may depend on the defendant’s prior history, BAC, chemical-test refusal, evaluation results, and previous compliance with treatment.
Enrollment in or completion of Level II education and treatment is also ordinarily required to reinstate driving privileges after a third alcohol- or drug-related revocation.
Penalties for a Third DWAI
A third DWAI generally carries the same core criminal sentencing range as a third DUI:
- Sixty days to one year in county jail;
- A fine of $600 to $1,500;
- Forty-eight to 120 hours of community service;
- Probation;
- Level II education and treatment;
- At least 90 days of continuous alcohol monitoring during probation, subject to limited exceptions; and
- Eight driver’s-license points for the DWAI conviction.
The licensing consequences depend on the complete driving history, the timing of the convictions, the chemical-test result, and whether an independent DMV revocation applies.
A DWAI remains a qualifying impaired-driving conviction. Reducing DUI to DWAI may lessen certain consequences, but it does not remove the person’s third-offender status or prevent the conviction from being counted in a later felony DUI case.
Driver’s-License Revocation After a Third DUI
A third violation involving a chemical test showing a BAC of at least 0.08 generally results in a two-year driver’s-license revocation. The DMV also imposes a two-year revocation when a driver accumulates three or more alcohol- or drug-related convictions over the lifetime of the driving record.
Reinstatement requirements ordinarily include:
- A completed reinstatement application;
- Applicable reinstatement and restoration fees;
- SR-22 insurance;
- Enrollment in or completion of Level II education and treatment;
- Installation of ignition interlock in every vehicle the person owns or may drive; and
- Completion of any required license examinations.
The DMV proceeding is separate from the criminal prosecution. A court dismissal does not always eliminate an administrative revocation based on the chemical test. Likewise, winning the DMV hearing does not automatically dismiss the criminal charge.
Early Reinstatement With Ignition Interlock
For qualifying offenses occurring on or after January 1, 2023, a Colorado resident who was at least 21 at the time of the violation may be eligible to seek early reinstatement as soon as the revocation becomes active, provided the person satisfies the other requirements and installs ignition interlock in every vehicle they own or may operate.
Early reinstatement does not erase the underlying two-year restraint. It ordinarily allows the person to drive under an ignition-interlock restriction during the relevant period.
A driver under 21 at the time of a third BAC violation generally must serve one year before qualifying for the available early-reinstatement procedure.
Other active license restraints may delay or prevent early reinstatement.
A third DUI-related revocation generally requires ignition interlock for at least two years after reinstatement. The device must be installed in every vehicle the person owns, co-owns, or has access to operate.
An ignition interlock device requires a breath sample before the engine starts and may require additional samples while the vehicle is being driven.
An interlock-restricted driver must generally:
- Drive only properly equipped vehicles;
- Report for device servicing at the required intervals;
- Maintain the restricted license;
- Avoid bypassing or tampering with the device;
- Maintain SR-22 insurance; and
- Comply with all breath-testing requirements.
Driving a vehicle without the required device or attempting to circumvent the interlock can result in a revocation with no driving for at least one year. Failing to report for servicing can cause a suspension until the driver returns to compliance. Multiple alcohol detections may extend the interlock period.
Common Defenses to a Third DUI
Two prior convictions do not prove the current charge. Possible defenses include:
Unlawful Traffic Stop – Police generally need reasonable suspicion of a traffic violation or criminal activity. Evidence obtained after an unconstitutional stop may be suppressed.
No Proof of Driving or Actual Physical Control – The prosecution may be unable to prove who operated the vehicle or whether a person in a parked vehicle exercised control over it.
Insufficient Evidence of Impairment – Drinking alcohol or taking medication does not automatically establish DUI.
Unreliable Field Sobriety Exercises – Injuries, age, fatigue, anxiety, footwear, weather, road conditions, and improper instructions may affect performance.
Improper Breath Testing – Instrument maintenance, calibration, mouth alcohol, operator mistakes, medical conditions, and observation-period violations may undermine a breath result.
Problems With Blood Testing – Collection errors, contamination, storage, fermentation, labeling, chain of custody, laboratory procedures, and measurement uncertainty may be challenged.
Rising Blood Alcohol – A later test may show a higher concentration than the person had while driving.
Alternative Medical Explanations – Diabetes, neurological conditions, allergies, injuries, anxiety, or fatigue may resemble impairment.
Insufficient Drug Evidence – The presence of a drug or metabolite does not necessarily establish active impairment.
Invalid Prior Conviction – The defense may dispute whether a claimed prior conviction legally qualifies for enhancement.
Constitutional Violations – Statements or physical evidence may be suppressed when police violated constitutional protections.
Can a Third DUI Be Sealed?
A Colorado DUI, DUI-per-se, or DWAI conviction generally cannot be sealed through the ordinary criminal-record sealing process. The conviction can remain publicly accessible even after the defendant completes jail, probation, treatment, community service, and all financial obligations.
A case that is dismissed or results in an acquittal may potentially qualify for non-conviction record sealing. Eligibility depends on the complete disposition, including whether another charge in the same case resulted in a conviction.
Because a third conviction generally cannot be sealed and places the person one offense away from felony DUI, defending the charge before conviction is especially important.
Why Hire an Attorney for a Third DUI?
A third DUI combines mandatory jail, intensive probation, license revocation, interlock restrictions, and the risk of felony prosecution after any future offense. The defense must address both the current evidence and the legal use of the prior convictions.
A third-offense DUI attorney may:
- Request and conduct the DMV hearing;
- Challenge the legality of the traffic stop;
- Dispute driving or actual physical control;
- Obtain body-camera and dashboard-camera recordings;
- Review field sobriety exercises;
- Examine breath-instrument maintenance records;
- Investigate blood collection and laboratory testing;
- Arrange independent toxicology analysis;
- Challenge an alleged chemical-test refusal;
- Review the two prior convictions;
- Dispute the use of an out-of-state conviction;
- Seek suppression of unlawfully obtained evidence;
- Negotiate with prosecutors;
- Advocate for authorized alternative sentencing; and
- Defend the case at trial.
Evidence such as surveillance video, dispatch recordings, witness memories, and retained blood samples may become unavailable over time. Prompt investigation can be important.
Additional Resources
Colorado’s Drunk Driving Laws – Visit the official website for the Colorado General Assembly to learn more about the various laws surrounding drinking and driving in the state. Access the site to learn about penalties, consequences for refusing a BAC test, and the PDD designation.
NO DUI Colorado – Visit the official website for NO DUI Colorado, a site set up by the state’s DMV to explain DUI administrative and criminal penalties. Access the site to read up on how the court determines license suspensions, how you can contest said suspension, the alcohol and drug education treatment courses, and other relevant information.
Denver Lawyer for a Third DUI Offense
A third DUI in Colorado can result in at least 60 days in jail, probation, continuous alcohol monitoring, Level II treatment, community service, substantial fines, a two-year license revocation, and ignition interlock restrictions. It also places the defendant one qualifying conviction away from felony DUI exposure.
Attorney Matthew Martin can investigate the traffic stop, chemical-testing evidence, field sobriety exercises, prior convictions, and DMV proceedings involved in the case. He can challenge unreliable or unlawfully obtained evidence, pursue an appropriate negotiated resolution, seek available sentencing alternatives, and represent the defendant at trial.
Call Denvers Defense Attorney at 303.725.0017 to schedule a free initial consultation. Denvers Defense Attorney represents clients in Denver and throughout Jefferson County, Broomfield County, Boulder County, Arapahoe County, Adams County, and Douglas County.