Robert D. Gustafson, Attorney At Law COLORADO SPRINGS TRIAL LAWYER
6538 Charter Drive Colorado Springs, CO 80918-1335 Phone (719) 260-1002 Toll Free (800) 410-1002 E-MAIL    ATTORNEY		Attorney Business Hours Attorney Availability Status FREE INITIAL CONSULTATION   Fax (719) 260-1003
DRIVING UNDER RESTRAINT COLORADO SPRINGS TRAFFIC DEFENSE
WELCOME I appreciate your interest perhaps I will become your attorney

Colorado Driving under restraint - DUR - Colorado Springs, driving under suspension - DUS, driving under revocation - DUR, driving under denial - DUD, driving after revocation prohibited - DARP. Mandatory jail per statute, DARP statutory bail bond $10,000. Useful public service supervision agencies and traffic safety classes identified and completion forms plus DMV accident reports and other DMV forms.

If your license is suspended, revoked or denied, there is very good reason to immediately stop driving until you are reinstated, in possession of a valid license & properly insured.

        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 forever until the driver takes affirmative action to become reinstated and licensed or obtain a DMV clearance letter.  Every driver should act immediately before incurring additional criminal charges.

        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

        When a criminal suspect voluntarily gives permission for police or law enforcement to search, items found in that search will likely be admissible as evidence.  Conversely, searches without a warrant are presumed unlawful with some exceptions.  Evidence found as a result of an unlawful search may be suppressed (excluded from admission) as a fruit of the poisonous tree.

        Every citizen has the constitutional right to be free from unreasonable search and seizure.  Never consent to a search or seizure without advice of legal counsel.  Let law enforcement procure a warrant or face possible constitutional challenge to the evidence.  Roadside sobriety testing is a search in the constitutional sense which can and should be refused whether intoxicated or stone cold sober.  Law enforcement officers have no obligation to advise you of your right to refuse, but it exists - exercise your rights and politely decline with a simple no.

        Similarly, no other rights should be waived by any criminal suspect or defendant without advice from counsel.  If you aren't certain what your rights are at the time of the police request, simply say no - I need to speak to an attorney.

        Defense attorneys frequently see the police report phrase: "suspect was cooperative."  Law enforcement officers will do what they will do regardless of your cooperation - it won't help and may likely hurt your court case defense.  This attorney advises clients to remain silent and be courteous, calm and in control of your emotions.  Politely decline any police requests, making the statement you need to consult with legal counsel before giving a response, and request presence of an attorney.  You have the right to presence of and advice of defense counsel.  Exercise your rights.

        State Court Traffic Offense - Information & Procedures
court costs $18 + victim compensation fund "sin tax" would be in addition to the fines

1. Jail.  Driving under restraint traffic offenses are misdemeanor criminal charges and carry mandatory jail in addition to fine, court costs, points and other conditions as may be specified by statute or are reasonably related to rehabilitation.  Statutory minimum and maximum amounts of jail depend upon whether alcohol (DUI, DEAC or DWAI) conviction entered in any offense underlying the suspension, revocation or denial.  See below explanations. 

2. Bail Bond.  If you were booked into jail, you have likely bonded since you are looking at this webpage.  Alternatively you have a loved one currently sitting in jail shortly after an arrest.  Pending trial, the fasted way to get out of jail is to procure a bail bond.  Refer to the BAIL BOND page for additional information.

3. Court Appointed Counsel
        a.  If jail may be imposed for any period, including offenses less than 6 months jail, the state has an obligation to appoint an attorney for an indigent (poor) defendant.  An indigent defendant has a constitutional right to appointed counsel "only when, if he loses, he may be deprived of his physical liberty."  Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972 (petty offense case); see also Stern v. County Court, 773 P.2d 1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of crimes if imprisonment may be imposed).
        b.  The defendant may not choose his / her own lawyer.  When an appointment is made, the court appoints the Public Defender's Office and if there is a conflict due to multiple defendants, the court a member of the private defense bar who has contracted with the state for court appointments.
        c.  If the prosecutor waives jail, the state's obligation to provide counsel is negated.  When an indigent defendant is not actually sentenced to a term of imprisonment, due process does not require the appointment of counsel.  See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).  This could happen by reduction of the charge and waiver of jail by the prosecution.

4. First Appearance.  
        a.  The ticket is the charging document and advises defendant of the charges filed.  The ticket contains a date and time defendant must appear in court for first appearance, where defendant will be advised of the nature of the charges and possible penalties.  At that time defendant will also be asked how he / she wishes to proceed with his / her case.  If defendant fails to appear, a warrant will be issued for his / her arrest.  If this office has been hired, I will take care of the first appearance for the client, and the client need not appear in Court unless I notify the client.
        b.  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.

5.  Entry of Plea & Demand for Trial.  
        a.  In El Paso County, initial negotiations are held in the First Appearance Center.  A case may reach final disposition without being transferred to a division.
        b.  Under the speedy trial rule, trial must be provided within 6 months from entry of not guilty plea.
        c.  If the defendant enters a plea of not guilty at first appearance, the court may set the case for trial and deny a request for pre-trial conference - a negotiation date.  This is to avoid speedy trial dismissals.  Frequently a defendant will delay entry of a not guilty plea and simply set the case for pre-trial conference.  If not settled at pre-trial conference, then a not guilty plea is entered, and the case set for trial.
        d.  Demand must be made for jury trial:
                1.  Misdemeanor offense cases:  When a not guilty plea is entered.  Jury trial is free if jail may be imposed in excess of 6 months.  The court may charge a $25 jury deposit if jail is limited to 6 months or less.  Standard number of jurors is 6, defendant may request 3 jurors.
                2.  Petty offense cases:  The demand must be accompanied by a $25 jury deposit within 10 days from entry of not guilty plea.  Standard number of jurors is 3, defendant may request 6 jurors.
                        a.  There is no constitutional right to a jury trial for a petty offense. Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. Robran v. People, 173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (Colo. 1969)
                        b.  The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine.  An El Paso County Court case appealed to the District Court resulted in a ruling that jury trial is a right in an MIP prosecution (underage possession / consumption) which does not fit the statutory definition of petty offense for purpose of jury trial right, however counsel would argue that right.
        e.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.

6. Pre-Trial Conference.  At the time of first appearance, the court sets most cases for pre-trial conference.  At this time, defendant or defense counsel will meet with the prosecutor to discuss possible alternatives and attempt to reach an agreement to dispose of the case.  This is called plea bargaining. Plea bargaining can also occur outside pre-trial conference setting.  Clients have inquired "What's a deferred sentence?"  Refer to the link for information.  Are prosecutors concerned with their statistics? If a plea bargain is obtained which is acceptable to the client, the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case is set for motion hearings or trial, or both. Locally the courts require a defendant's presence unless an out of state resident.  Offer of flat dismissal is unlikely in most cases.  The goal is to procure a disposition with which the defendant can live, e.g. not going to jail or not losing the driver's license, or perhaps a deferred sentence to a lesser charge which would not be reflected on the consumer driving abstract.  Other than flat dismissal or not guilty verdict, deferred sentence to a lesser charge is the only disposition which will avoid one additional year loss of driving privileges.

7. Motions Hearings.  Counsel may file any of several motions available.  Traffic most common motions:

        a. Discovery Motion. This is a request to discover information in order to prepare an adequate defense
        b. Motion in Limine. This is a motion to exclude evidence from trial on the basis of evidentiary or statutory grounds.  If DUI, DEAC or DWAI is also charged, an example would be a breath or blood test which is not defendant's but mislabeled; and which could prejudice the jury without having any importance on the issue of guilt or innocence.  Another example would be an attack upon a radar gun which was not property maintained, operated or tested by tuning forks if speeding were also charged.  Unreliable DMV notice mailing log books could also by the subject of a motion in limine.
        c. Motion to Suppress. This is a motion to exclude evidence from trial on the basis of violation of constitutional rights.  An example would be a random stop for the purpose of an evidentiary fishing expedition.  Absent probable cause (reason to believe defendant engaged in a crime) for the stop or arrest, evidence obtained therefrom may not be used against defendant.  Similarly, forced confessions or statements may not be used.  There are many other arguments which may be available in traffic cases.  With limited exceptions, defendant must be present in court for motion hearings.

8. Trial.

        At a trial, guilt or innocence ill be determined, and it must be decided unanimously (all jurors agree).  Every defendant has the right to a trial by jury of 6 persons, or to the judge alone.  The right to trial by jury should never be waived (given away) without advice of counsel; it is an important right.  At trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt.  Every defendant is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt.  Every defendant may remain silent, or may testify if he / she chooses. Defense may call witnesses and make them come to court by subpoena.  Every defendant may confront and cross-examine witnesses against him / her.  A trial on a traffic offense charge is a criminal trial with all rights attached. If defendant is found not guilty, the case is concluded.  If defendant is found guilty of any charge, including a lesser charge (e.g. reckless driving charge convicted of careless driving), the case is set for sentencing.  Defendant must be present in court for a trial.  Under some circumstances, the court may proceed to trial without the presence of the defendant, but that's a bad idea from defense perspective.

9. Sentencing:  DUR offenses carry mandatory jail - see below.  The court may impose jail, fine, court costs and prosecution costs as provided by statutes.  Law requires every defendant make restitution (make the victim whole).  As a condition of probation, the court may also impose any other condition reasonably related to rehabilitation.  e.g. traffic safety class, useful public service, or if an alcohol related factual basis, alcohol education or therapy, Alcoholics Anonymous - AA Meetings, Rx disulfiram (antabuse) and monitored abstinence or drug treatment.  Points are assessed for traffic offenses.  Based upon points reported by the court, the DMV may take adverse action against Colorado driving privileges.  DUR carries no points, just one additional year loss of license which must run consecutive (back to back) with any other license loss.  Habitual offender status may even be a possibility - that can occur from too many speeding or other minor infraction tickets.  DUR is a major violation for purposes of the habitual offender statute.

10. Preparation for Sentencing.
        In a criminal traffic case, counsel looks for facts which may lead to dismissal of charges or not guilty verdict. Plea negotiations are affected by weaknesses in the DA's case.
        "Shoot for the best - plan for the worst."  It is also wise to plan for other contingencies; conviction of an offense or infraction.  Anticipating you may subsequently face a judge, to prepare for the most favorable sentencing result a defendant should immediately commence 100 hours useful public service and a Level B or Level II traffic safety class.  That will also aid negotiations.

        Felony cases are similar to misdemeanor procedures noted above, 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, 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.

        Refer to Vehicle Forfeiture - legislative debate

        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:

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

PENALTY - DRIVING UNDER RESTRAINT ALCOHOL RELATED SUSPENSION, REVOCATION OR DENIAL

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:

BAIL BOND pending final disposition         read the statutes - it's real         Persistent Drunk Driver Statutes (PDDS)         Suspect must be booked into jail         Suspect must be held overnight until advised by a judge         Statutory bail bond is $10,000             CRS 16-4-103(b)          Premium to a bondsman would be $1,500, plus collateral for the bond is likely.         CRS 42-1-102, CRS 16-4-103, CRS 12-7-108         PDDS is relatively new and many law enforcement officers are as yet unaware STATUTES & REGS

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

FIND A LAWYER ANYWHERE    Driving Under Restraint Overview Page Top

PENALTY - DARP DRIVING AFTER REVOCATION PROHIBITED HABITUAL OFFENDER SUSPENSION, REVOCATION OR DENIAL

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 the Habitual Offender (traffic) page.         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.

PENALTY - DARP - DRIVING AFTER REVOCATION PROHIBITED MISDEMEANOR         HABITUAL OFFENDER SUSPENSION * REVOCATION * DENIAL NEW OFFENSE DOES NOT INCLUDE alcohol, reckless driving, eluding, or hit & run

BAIL BOND pending final disposition         read the statutes - it's real         Persistent Drunk Driver Statutes (PDDS)         Suspect must be booked into jail         Suspect must be held overnight until advised by a judge         Statutory bail bond is $10,000              CRS 16-4-103(b)          Premium to a bondsman would be $1,500, plus collateral for the bond is likely.         CRS 42-1-102, CRS 16-4-103, CRS 12-7-108         PDDS is relatively new and many law enforcement officers are as yet unaware STATUTES & REGS

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 (traffic)  page - criteria.

*        *        *        *        *        *        *        *

PENALTY - DARP - DRIVING AFTER REVOCATION PROHIBITED FELONY         HABITUAL OFFENDER SUSPENSION * REVOCATION * DENIAL NEW OFFENSE DOES INCLUDE alcohol, reckless driving, eluding, or hit & run

BAIL BOND pending final disposition         read the statutes - it's real         Persistent Drunk Driver Statutes (PDDS)         Suspect must be booked into jail         Suspect must be held overnight until advised by a judge         Statutory bail bond is $10,000              CRS 16-4-103(b)          Premium to a bondsman would be $1,500, plus collateral for the bond is likely.         CRS 42-1-102, CRS 16-4-103, CRS 12-7-108         PDDS is relatively new and many law enforcement officers are as yet unaware STATUTES & REGS

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 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 (traffic)  page - criteria.

SUMMARY

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)

FIND A LAWYER ANYWHERE    Driving Under Restraint Overview Page Top

        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.

        Mandatory minimum jail 5 days
                " 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"
        Maximum jail: 6 months
        Minimum fine $50  Maximum fine $500
        CRS 42-7-422

Driving without getting caught? refer to Murphy's law. And Mrs. Murphy adds: "At the worst possible time."

        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.

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"