Recently there has been an uproar in the community about the Driving Under the Influence (DUI) laws in Colorado. The legislature tried to create a law where if a person is guilty of DUI on a third offense in five years, or a fourth offense in 15 years, that person would be facing a class 4 felony. Members of the legislature and victims of injuries from drunk drivers, understandably, railed about how some people get killed or seriously injured due to this problem. Mike Johnston, a co-sponsor of the bill, seems to believe that one could have seven to eight DUIs and walk out of court on probation or a short stint in jail. I, as a criminal defense lawyer who handles many DUIs, have a different perspective.
First, the DUI driver who plows down a person or family is not the norm in Colorado, it’s the exception; the norm in Colorado for DUI violations are people who have spent a Friday afternoon at a happy hour with friends or co-workers and had three, yes three, alcoholic drinks before driving home. They get stopped for a broken taillight, and erroneously do roadside maneuvers – which criminal defense lawyers who practice DUI defense will tell you not to do – will fail, be charged, and have to call a criminal defense lawyer to receive help. In practice I see many more DUI cases that are barely over the legal limit than cases where the blood alcohol content (BAC) is off the charts.
Second, the law is stacked against people trying to do the right thing. For example, one of the issues a criminal defense lawyer has to contend with in this state is the definition of the word “drive” for DUI purposes. Let me use an analogy to show the problems defense lawyers face on DUIs: say you give a five year-old boy the keys to your car, put the keys in the ignition, and allow the child to pretend he is driving while making engine, braking, and tire noises. Do you see that child in your head having a great time pretending to be an adult and racing around? In Colorado, that is considered “driving” for DUI purposes. Many DUIs stem from people noticing that they are too drunk to drive and either pulling over to sleep it off or simply sleeping in their parked car. Prosecutors around the state love this because the person who is drunk in his car has what is known as actual physical control of the vehicle and that is all prosecutors need to convict a drunk person who is trying to do the right thing and sleep off the effects of alcohol. A seasoned DUI defense lawyer is needed to fight against this incredibly odd definition of the word “drive”. Further, once a person has one DUI or Driving While Ability Impaired (DWAI) if they receive another DUI or DWAI the possible penalties are the same. The penalty for a second DUI/DWAI is 10 days to a year in jail, and on a third or subsequent DUI/DWAI it is 60 days to a year in jail. Imagine a circumstance where one has three drinks, goes to drive home, notices they are too drunk, pulls over to protect themselves and others, and gets the same punishment as if they would have driven home and endangered everyone on the road. Now imagine that individual, who tried to do the right thing, has the above example happen to them after having two prior DWAIs. That person will now face 2 to 6 years in the department of corrections – prison, not jail, prison – for trying to do the right thing!
Finally, I am not aware of any jurisdiction in this state that gives light sentences for third DUIs or more. I am in court every day, unlike Mr. Johnston, and I see courts hammering people with 9 month to one-year sentences on multiple offense cases far more often than I see a person on a fourth or fifth DUI receive the statutory minimum 60 days jail and probation. I also believe that Mr. Johnston and those who were for the felony DUI bill have never spent a full day in a jail cell, much less a full year. A year in jail is not a walk in the park ladies and gentlemen. People lose jobs, families, homes, future employment opportunities, and a truckload of money when they are convicted of a DUI/DWAI. I am glad the legislature didn’t make them felons as well.