When charged with Driving Under the Influence (DUI), the potential sentence is impacted by whether a defendant have prior offenses. A prior offense under Colorado’s DUI sentencing law includes DUI, Driving with Excessive Alcohol Content (DUI per se) and Driving While Ability Impaired (DWAI). Prior convictions also include Vehicular Homicide and Vehicular Assault if DUI-related. Also included is Driving Under an Alcohol-Related Revocation even if impaired driving is not alleged.

Prior Offenses Must be Convictions

A prior offense must be a conviction. This means that successfully completed deferred judgments, or a diversion agreement where the charge is ultimately dismissed does not count. Nor does a DUI charge that was reduced to a Reckless Driving or other non-DUI type conviction.

Convictions that happened outside of Colorado also count, so long as they happened in the United States, its territories, or on federal land. A DUI conviction on a military base or in a federal park will count. As Impaired Driving conviction from Canada, however, would not. Colorado law defines out-of-state convictions as a prior if “under the laws of [Colorado] 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 [Colorado], would constitute a DUI-type offense as listed below.

Types of Prior Convictions

Colorado Revised Statute Section 42-4-1301.3(9) defines prior convictions. This section lists the following offenses as priors:

1. DUI
2. DUI per se
3. DWAI
4. Vehicular Homicide (DUI related)
5. Vehicular Assault (DUI related)
6. Aggravated Driving with a Revoked License (prior to August 5, 2015)
7. Driving Under an Alcohol-Related Revocation (42-2-138(1)(d))

There are two options a sentencing judge has to determine whether a person has prior conviction(s). First, the prosecutor and defendant can stipulate to the number of relevant priors. In the alternative, prior convictions are the burden of the prosecution and the probation department to prove. A court is allowed to accept proof of a prior conviction in a person’s driving record or proof of the conviction from the court the prior case occurred in.

Felony DUI Prior Convictions

A felony DUI charge is different in that the prosecution must allege the specific prior offenses in the felony complaint. In order to convict a defendant of Felony DUI, the prior convictions must be proven to a judge or jury beyond a reasonable doubt. This prevents a clear prejudice in a felony DUI trial as the jury will receive evidence that the person on trial has at least three previous convictions for DUI or DWAI. For misdemeanor DUI, where a person has between zero and two prior convictions, the prosecutor is not required to prove the priors beyond a reasonable doubt to a judge or jury.

Offenses that are not considered prior convictions in Colorado for DUI sentencing purposes are Underage DUI (“baby dui”) and Boating Under the Influence (BUI). In addition, Driving Under an Alcohol Revocation is not a predicate offense for Felony DUI.

A sentence for a DUI or DWAI conviction is greatly impacted by prior offenses. Determining the number of potential prior convictions is important before entering a guilty plea or proceeding to trial.