COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years private practice in Colorado state and municipal courts

Colorado Springs Driving Under Restraint DUR, Driving Under Suspension DUS, Driving Under Denial DUD, and Driving after Revocation Prohibited DARP, DMV, license suspension, license revocation, license denial, Colorado, defense attorney, court, lawyer, Colorado Springs, Colorado, driving under restraint, DUR, driving under suspension, DUS, driving under denial, DUD, driving after revocation prohibited, DARP, license suspension, license revocation, accident, lose license, license loss, license denial, traffic, criminal, defense attorney, Colorado DMV, driver license, license hearing, court, lawyer, attorney

        If a defendant is presently charged with driving under restraint and is currently eligible to reinstate and obtain a valid license it is advisable to do so immediately.  Passage of time and being eligible for reinstatement is insufficient.   A DMV suspension, revocation or denial order is for a time certain, but CONTINUES INDEFINITELY (forever) until the driver takes affirmative action to become reinstated and licensed or obtain a DMV clearance letter.  Colorado Department of Revenue v. Brakhage, 735 P.2d 195, 197 (Colo. 1987)  To avoid additional mandatory loss of license CRS 42-2-138(3), to avoid potential habitual offender status CRS 42-2-202(2)a(III) and to avoid additional criminal charges, every driver under DMV adverse action should immediately stop driving and prior to driving again, should become reinstated and should procure mandatory insurance.

        Colorado driver's license or Colorado driving privileges are suspended, revoked or denied as a result of conviction of non-alcohol related offenses, and the driver is subsequently arrested on a charge of driving under restraint - suspension, revocation or denial:

CRS 42-2-138  Driving under restraint
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup

(1)(a)Any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, habitual user, or UDD is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than five days nor more than six months, and, in the discretion of the court, a fine of not less than fifty dollars nor more than five hundred dollars may be imposed. The minimum sentence imposed by this paragraph (a) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine under this paragraph (a); but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this paragraph (a) because of an emergency, the mandatory jail sentence or the fine, if any, shall not apply, and the court may impose a sentence of imprisonment in the county jail for a period of not more than six months and a fine of not more than five hundred dollars. Such minimum sentence need not be five consecutive days but may be served during any thirty-day period.
 
(1)(b) Upon a second or subsequent conviction under paragraph (a) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said paragraph (a) of this subsection (1), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver's or minor driver's license or extended any driving privilege in this state for a period of three years after such second or subsequent conviction.

DEFINITIONS - COLORADO STATE COURTS

CRIMINAL PENALTY
        FINE:  Minimum $50 - Maximum $500
        JAIL:  Mandatory minimum 5 days - 6 months maximum
                " the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an emergency"
                CRS 42-2-138

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

        Colorado driver's license or Colorado driving privileges are suspended, revoked or denied as a result of conviction of alcohol related offenses, and/or driving privileges have been revoked for excessive alcohol content or refusing a chemical test and the driver is subsequently arrested on a charge of driving under restraint - suspension, revocation or denial:

CRS 42-2-138  Driving under restraint
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup

(1)(d) (I) A person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or nonresident, is restrained under section 42-2-126(3), is restrained solely or partially because of a conviction of DUI, DUI per se, DWAI, habitual user, or UDD, or is restrained in another state solely or partially because of an alcohol-related driving offense is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty days nor more than one year and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than one thousand dollars. Upon a second or subsequent conviction, the person shall be punished by imprisonment in the county jail for not less than ninety days nor more than two years and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than three thousand dollars. The minimum county jail sentence imposed by this subparagraph (I) shall be mandatory, and the court shall not grant probation or a suspended sentence thereof; but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this subparagraph (I) because of an emergency, the mandatory jail sentence, if any, shall not apply, and, for a first conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than one year and, in the discretion of the court, a fine of not more than one thousand dollars, and, for a second or subsequent conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than two years and, in the discretion of the court, a fine of not more than three thousand dollars.
 
(1)(d)(II) In any trial for a violation of subparagraph (I) of this paragraph (d), a duly authenticated copy of the record of the defendant's former convictions and judgments for DUI, DUI per se, DWAI, habitual user, or UDD or an alcohol-related offense committed in another state from any court of record or a certified copy of the record of any denial or revocation of the defendant's driving privilege under section 42-2-126(3) from the department shall be prima facie evidence of the convictions, judgments, denials, or revocations and may be used in evidence against the defendant. Identification photographs and fingerprints that are part of the record of the former convictions, judgments, denials, or revocations and the defendant's incarceration after sentencing for any of the former convictions, judgments, denials, or revocations shall be prima facie evidence of the identity of the defendant and may be used in evidence against the defendant.
 
(1)(e) Upon a second or subsequent conviction under subparagraph (I) of paragraph (d) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said subparagraph (I), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver's or minor driver's license or extended any driving privilege in this state for a period of four years after such second or subsequent conviction.

DEFINITIONS - COLORADO STATE COURTS

CRIMINAL PENALTY

FINE:  Minimum $500 - Maximum $1,000
        JAIL:  Mandatory minimum 30 days - 1 year maximum
        " the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an emergency"
        CRS 42-2-138

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation conviction or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

VEHICLE FORFEITURE
legislative debate

        On January 12, 2005 Senate Bill 05-018 was introduced into the Colorado State Legislature which would have resulted in forfeiture of a defendant's vehicle under the following circumstances.

1. Driving under restraint conviction, CRS 42-2-138 (charges not uncommon in conjunction with DUI)

2. Prior license revocation under CRS 42-2-125 arising from one or more below convictions:
           Vehicular homicide involving alcohol or drugs
           Vehicular assault involving alcohol or drugs
           Driving under the influence of a controlled substance or while habitual user of substance
           DUI, DWAI or DEAC second within 5 years
           DUI, DWAI, DEAC  or "baby DUI" by person under age 21
           DUI, DWAI or DEAC 3rd or subsequent within a lifetime

        As written, the bill did not require a separate forfeiture action, but would have permitted the court, upon prosecutorial request, to order forfeiture at sentencing or as a condition of deferred sentence.  Absent a separate forfeiture proceeding, nuisance allegation, notice and opportunity to be heard, it is likely the law would have been challenged in the Colorado appellate courts - particularly in light of the monetary value of motor vehicles.  Jurisdictional limits of county court may also have been an issue.  Be that as it may, no defendant wants to make new appellate law - that's expensive.  This proposed forfeiture law applied to an owner - operator, or vehicles not owned by the operator if the owner gave consent for the operator to drive.  The proposed law didn't place any burden on the state to establish that the separate owner had knowledge of the operator's consumption of alcohol or sobriety, merely that the separate owner gave permission for the operator to drive the vehicle.  Put another way to be clear in layman terms, forfeiture is an involuntary give away of your motor vehicle.  On April 29, 2005 the bill was postponed indefinitely in the House Committee on Judiciary.

        When the family car transportation is lost as an adjunct to alcohol, job loss and dissolution of marriage are foreseeable potential collateral consequences.  The Colorado legislature is getting tough on alcohol related traffic offenses, and has considered delving painfully deep into the pocket book of offenders.  This may have been an attempt to fill the state coffers, may have been in response to "Fatal Fall 2004" underage alcohol deaths or may have been an attempt to deter alcohol related traffic injuries and fatalities.  Regardless of the legislature's motive, forfeiture would be an enormous revenue source for the State of Colorado.  Similar to the large cigarette tax hike approved by voters in 11/04 elections, vehicle forfeiture may be publicly perceived as a significant "sin tax" and therefore the issue may arise again.

        If the SR-22 financial responsibility requirement has been imposed upon a driver, he / she must comply.  If the driver fails to carry the insurance coverage or pay the premiums, the insurance company will notify the DMV which will impose an insurance term revocation upon the driver.
 
        Colorado driver's license or Colorado driving privileges are suspended, revoked or denied as a result of failing to maintain compulsory insurance, and the driver is subsequently arrested on a charge of driving under restraint - suspension, revocation or denial:

CRS 42-7-422  Driving under restraint - insurance - no proof when required
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup

No proof when proof required. Any person whose license or other privilege to operate a motor vehicle has been suspended, cancelled, or revoked, and restoration thereof or issuance of a new license is contingent upon the furnishing of proof of financial responsibility for the future, and who, during such suspension or revocation or in the absence of proper authorization from the director, drives any motor vehicle upon any highway in Colorado except as permitted under this article, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than five days nor more than six months and, in the discretion of the court, a fine of not less than fifty dollars nor more than five hundred dollars may be imposed. The minimum sentence imposed by this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an emergency, in which case the mandatory jail sentence does not apply. Such minimum sentence need not be five consecutive days but may be served during any thirty-day period.

DEFINITIONS - COLORADO STATE COURTS

CRIMINAL PENALTY
        FINE:  Minimum $50 - Maximum $500
        JAIL:  Mandatory minimum 5 days - 6 months maximum
                " the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an emergency" 
                " Such minimum sentence need not be five consecutive days but may be served during any thirty-day period."
                CRS 42-7-422

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

        Colorado driver's license or Colorado driving privileges have been revoked or denied as a result of DOR ruling that the driver is an habitual traffic offender.  For information regarding the habitual traffic offender process, refer to Habitual Traffic Offender   Habitual offender criteria: CRS 42-2-202

        Defendant has been arrested for allegedly operating a motor vehicle during a period his / her Colorado driving privileges have been revoked or denied as habitual traffic offender.

CRS 42-2-206  Driving after revocation prohibited
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup

        (1)(a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
                (II) Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation.  Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II).

DEFINITIONS - COLORADO STATE COURTS

CLASS 1 MISDEMEANOR CRIMINAL PENALTY
        FINE:  Minimum $500 - Maximum $5,000
         JAIL:  
                Presumptive Term:  6 months minimum to 18 months maximum
                Mandatory Minimum:  Jail Term - 30 days / Fine - $3,000
                " Notwithstanding the provisions of CRS 18-1.3-501, any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in CRS 18-1.3-501, The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation. Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II)."
                CRS 42-2-206(1)(a)(II), CRS 18-1.3-501, CRS 18-1-106

PENALTY AGAINST DRIVING PRIVILEGES:
        Any moving violation conviction or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.  
                This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
                The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
                This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
                CRS 42-2-138
        Conviction of a major offense with two prior major offense convictions within seven years meets the statutory criteria for habitual offender status finding and revocation for an additional five years to run consecutively (back to back) from any other license loss.  So long as convictions remain within the relevant statutory period, they may be used each time a new conviction enters.
        Driver is afforded notice, hearing and an opportunity to be heard.  Refer to habitual offender.

        Colorado driver's license or Colorado driving privileges have been revoked or denied as a result of DOR ruling that the driver is an habitual traffic offender.  For information regarding the habitual traffic offender process, refer to Habitual Traffic Offender   Habitual offender criteria: CRS 42-2-202
 
        Defendant has been arrested for allegedly operating a motor vehicle during a period his / her Colorado driving privileges have been revoked or denied as habitual traffic offender, and alcohol, reckless driving, eluding or hit and run are concurrently charged.

CRS 42-2-206  Driving after revocation prohibited
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup

        (1)(a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
                (II) Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation.  Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II).
            (b) (I) A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses:
                    (A) Driving under the influence, as described in section 42-4-1301(1)(a);
                    (B) Driving while ability impaired, as described in section 42-4-1301(1)(b);
                    (C) Reckless driving, as described in section 42-4-1401;
                    (D) Eluding or attempting to elude a police officer, as described in section 42-4-1413;
                    (E) Violation of any of the requirements specified for accidents and accident reports in sections 42-4-1601 to 42-4-1606; or
                    (F) Vehicular eluding, as described in section 18-9-116.5, C.R.S.
                (II) Aggravated driving with a revoked license is a class 6 felony, punishable as provided in section 18-1.3-401, C.R.S.
        (2) For the purpose of enforcing this section in any case in which the accused is charged with driving a motor vehicle while such person's license, permit, or privilege to drive is revoked or is charged with driving without a license, the court, before hearing such charges, shall require the district attorney to determine whether such person has been determined to be an habitual offender and by reason of such determination is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that the accused has been so held, the district attorney shall cause the appropriate criminal charges to be lodged against the accused.

DEFINITIONS - COLORADO STATE COURTS

        Felony cases are similar to misdemeanor procedures, except for a few differences.  The defendant is advised in County Court, then in El Paso County the case is transferred to District Court for advisement about a week later.  All proceedings transpire in District Court.  In other counties, preliminary proceedings may be held in County Court, and the case is transferred to District Court at a later time.

        In felony cases, proceedings are held in the division courtroom; the First Appearance Center is not utilized for felony matters.  No specific dates are set for negotiation between a Deputy DA and defense counsel or defendant as happens in misdemeanor cases (pre-trial conference.)  The court may set a case over for further proceedings, and negotiations are frequently conducted at the District Attorney's Office or by phone.  On the return date, the parties advise the court of status (settled, settlement pending or disposition unlikely.)  The court will then set another further proceedings uncontested court date, or will set motions hearing and trial dates.  Negotiations will likely be affected by the strengths or weaknesses of the District Attorney's case and what efforts, if any, defendant has made toward useful public service and / or traffic safety class or other remedial measures, although those defendant remedial efforts are less likely to have an impact on a felony disposition than on a misdemeanor disposition. 

        DARP is not sufficiently serious to merit a preliminary hearing.  Contested cases are therefore set for motions hearing and jury trial.  In a felony case, a defendant is entitled to a jury of 12 whereas a misdemeanor is entitled to 6 jurors at the most.

        In both felony and misdemeanor offenses, at trial the prosecutors must prove each and every element of the offense charged beyond a reasonable doubt, and the jury must return a unanimous verdict.  Misdemeanor offenses carry county jail as a possible consequence.  Felony offenses carry state penitentiary longer periods of incarceration as a possible consequence.

CLASS 6 FELONY CRIMINAL PENALTY
        FINE:  Minimum $1,000 - Maximum $100,000
        PRISON:  
                Presumptive Term:  Minimum incarceration of 1 year to the Colorado Department of Corrections (penitentiary) to presumptive maximum 1^1/2 years
                Aggravated Term:  Presence of statutory aggravating factors may cause mandatory minimum sentence to be 1 year 3 months up to maximum of 3 years
                Mandatory Minimum:  Jail Term - none provided / Fine - none provided
                "Aggravated driving with a revoked license is a class 6 felony, punishable as provided in section CRS 18-1.3-401"
                Individual sentenced pursuant to CRS 42-2-206(1) may be considered for community correctional program. People v. Scott, 200 Colo. 365, 615 P.2d 680 (1980).
                CRS 42-2-206(1)(b), CRS 18-1.3-401, CRS 18-1-105, CRS 18-1-105(9.5)
        Prosecutors may offer a favorable plea disposition if the defendant pleads straight up to the felony, including minimal or no county jail.  Tempting as it sounds, the problem with that type of a driving under revocation prohibited disposition is that the person is on probation for a felony - a significant sentencing enhancer - black widow waiting in the web waiting for defendant to drive again.
                CRS 18-10105(9) (a)  The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony.  That's 1 year, 3 months - 3 years state penitentiary time.
                        (III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony.
                CRS 18-1.3-401(8) (a)  The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony.  That's 1 year, 3 months - 3 years state penitentiary time.
                        (III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony.

PENALTY AGAINST DRIVING PRIVILEGES
        Any moving violation conviction or point assessment during the period of suspension, revocation or denial results in license loss automatic extension by one year.
        This action is taken administratively with notice sent to the driver.  The driver may request a hearing.
        The additional year must run consecutive (back to back), not concurrent (at the same time) with any other license adverse action.  Simply put - a driver loses his / her license for one additional year - no room for negotiation.
        This includes action taken if the Colorado DMV FRA Section (Financial Responsibility Act) receives a report of a motor vehicle accident from local law enforcement or from a third party driving involved in the accident.
        CRS 42-2-138

        Conviction of a major offense with two prior major offense convictions within seven years meets the statutory criteria for habitual offender status finding and revocation for an additional five years to run consecutively (back to back) from any other license loss.  So long as convictions remain within the relevant statutory period, they may be used each time a new conviction enters.
        Driver is afforded notice, hearing and an opportunity to be heard.  Refer to habitual offender.

        If a person who was determined to be habitual traffic offender is caught driving before reinstatement, he or she will be charged with driving after revocation prohibited.  Depending upon the circumstances at the time of the stop, that may be:

        Misdemeanor charge -county jail possible:   (current charge non-aggravated)
                Presumptive county jail 6 months minimum to 18 months maximum
                Mandatory minimum jail term  30 days / Fine $3,000
                        Can be suspended with 40 - 300 hours public service
                Presumptive fine $500 - $5,000
                CRS 42-2-206(1)(a)(II), CRS 18-1.3-501, CRS 18-1-106

        Class 6 felony punishable:  (current charge aggravated alcohol related, reckless driving, eluding or hit & run)
                Presumptive Colorado Department of Corrections (penitentiary) minimum incarceration 
                        1 year to presumptive maximum 1 ½ years
                Mandatory minimum jail term:  none
                Fine $1,000 - $100,000
                CRS 42-2-206(1)(b), CRS 18-1.3-401, CRS 18-1-105, CRS 18-1-105(9.5)

1. DMV failed to provide lawful notice of adverse action and defendant didn't have actual knowledge

2. Lack of reasonable suspicion for initial contact by the law enforcement officer

3. Lack of probable cause for arrest or seizure of the defendant's person

4. Defendant's admissions the result of undue influence, duress and coercion - due process violation

5. Defendant's admissions taken in violation of
           5th Amendment privilege against self incrimination
           6th Amendment right to legal counsel

6. Alleged offense did not occur on public roadway or highway
           Private land won't convict
           A farmer plowing his field isn't in trouble until he enters or crosses the roadway
           Are shopping mall parking lots, etc. public or private? - ah ha! - now I get it

7. Identity error
           Defendant was not the person suspended, revoked or denied - 
           Proper adverse ruling, but applied to the record of the wrong individual
           DMV suspended the wrong "John Jones" or "Sam Smith" - identity error in ruling
           A third person, not defendant, was driving a motor vehicle

8. Reasonable doubt - state can not prove
           Adverse action had been taken against the defendant
           Defendant was the person driving 
           Defendant's actions constituted "driving"

9. Collateral attack  - refer to link for information
           Attack convictions underlying the DMV adverse action
           Attack the DMV adverse action ruling

10. Jurisdictional attack  - refer to link for information
            Attack the jurisdiction of the court in the pending criminal case

11. When all else fails:
            Trial lawyer's adage:
                If the facts are on your side - pound the facts.
                If the law is on your side - pound the law.
                If neither the facts nor the law are on your side - pound the table !
                        And if that fails ----
                        Flip Wilson quote: "the devil made me do it"

        We are all human - periodically the law enforcement officer(s) make(s) an error on the summons.  Some errors are sufficient to deprive the court of jurisdiction to hear the case.  If an error exists, it may be worth making a big ta-do because it may result in dismissal or a more favorable plea offer.

        Each statute makes reference to mandatory jail, except in a case where the defendant has established that the defendant had to drive the motor vehicle in violation of this section because of an "emergency."  

        What's this "emergency" stuff all about - who must prove, by how much evidence, what does it mean, who decides if it really is an emergency, and what effect will that have on sentencing?  

        A defendant has the right to have the state prove every element of an offense beyond a reasonable doubt. However, the fact of emergency has no bearing on the establishment of the offense. Its sole significance is in determining whether an otherwise mandatory sentence may be suspended or probation granted. 

        Defendant must prove the existence of an emergency by a preponderance of the evidence.  Information with respect to an alleged emergency is peculiarly within the knowledge of the defendant. The Colorado Supreme Court has concluded that to require the defendant to prove emergency does not shift the burden of proof with respect to any fact essential to the offense charged contrary to the dictates of due process of law. 

        The due process test for vagueness is commonly expressed as whether a statute describes prohibited conduct in terms such that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.   "Emergency" has a sufficiently well understood common meaning within the context of driving under restraint to be applied by judge or jury without violating due process rights of the defendant.

        Existence of an emergency does not affect the criminality of the conduct and is not as a part of the issue of guilt at trial on driving under restraint.  It does, however, have a substantial effect on the trial court's discretion in sentencing. The trial judge at sentencing hearing will make the determination regarding the existence of an emergency, not the jury at trial.

        Even if an emergency is established, the court retains the discretion to deny probation and suspension of sentence and to impose any sentence of confinement authorized by statute. Thus the penalty range is not automatically revised by establishment of an emergency.  Stated another way, the judge is no longer required to impose jail or penitentiary time, by may do so - it's the judge's call.

        People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (Colo. 1980)

            Note:  Mr. McKnight's driver's license was revoked as an habitual offender for a period of 5 years on the basis of 3 alcohol traffic convictions with 7 years - he was age 67 at the time.  He was arrested for a 4th DUI and charged with a DARP prior version - driving after judgment prohibited CRS 42-2-206 class 5 felony. Mr. McKnight appealed from a penitentiary sentence of an indeterminate term not to exceed five years.  Tough sentence on an old man who claimed he drove for an "emergency" to get his invalid wife medicine.  Case citations in this website appear quite impersonal, but they represent real people with real problems.  DUR / DARP are serious matters.