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Colorado Law Permits a Second DUI to be Punished as a Third

By Lain A. Lawrence - DUI Defense Attorney Sept. 19, 2023

The jurisprudence surrounding DUI law is not simple. The statutes and case law is complicated. 

For example, driving is not only driving pursuant to statute. Driving under the influence can be sitting in your car with it on. There is a lesser included DUI infraction called DWAI

Investigations require specific facts. Standard field sobriety tests sound persuasive, but an examination of the supporting science is not.

DUI cases require mandatory sentencing for subsequent offenses. A second DUI and third DUI infraction require a defendant to face mandatory sentencing.  A defendant is permitted to serve the jail sentence on in-home detention in some cases. Otherwise, the defendat will serve a straight jail time or work release.

Colorado law will require a defendant to be punished for a third DUI, even if the conviction is a second offense. Speaking with a Colorado DUI Attorney is crucial. They will explain the situation and your best way forward.

How does Colorado Law Define DUI?

Driving under the influence is the operation of a motor vehicle while intoxicated. Intoxicated is being substantially impaired to not be able to safely operate a motor vehicle. The intoxication can be a result of drugs or alcohol.

The law presumes a defendant is under the influence of alcohol based off a chemical test. Police officers request defendants to perform chemical testing after a DUI arrest. The legal limit for alcohol is .08.

Colorado law criminalizes other alcohol related driving infractions. DWAI is the operation of a motor vehicle while a defendant is impaired. Impaired means intoxicated to the slightest degree to safely operate a motor vehicle.

Driving has several meanings; it is physically driving a vehicle. It will also include actual physical control. Actual physical control is being able to quickly exercise control over the vehicle. A court looks at certain factors like where the defendant is in the vehicle and whether the vehicle is on. 

What penalties can Judge impose for DUI in Colorado?

C.R.S § 42-4-1307 provides the framework for DUI sentencing in Colorado. It details the penalties that a Judge can impose. The law does not define the category of offense. A DUI is a misdemeanor for the first three convictions.

The Colorado DUI Penalties depend on a variety of factors. The maximum possible jail sentence is 1 year and a fine from $600-$1,000. The statutes require the completion of 48-96 hours of community service.

A first time DUI has a minimum 5-day jail sentence. Couts will suspend jail for a first upon the successful completion of an alcohol and substance abuse class. However, a DUI involving a blood alcohol content (“BAC”) above a .20 has a mandatory 10 days of jail.

Courts impose probation on defendants for DUI convictions. Probation is a period of supervision. The typical length of probation for a first offense is one year. Probation has standard terms and conditions, and DUI probation has alcohol specific requirements.

DUI probation requires a defendant to complete an alcohol and substances abuse classes. Defendants must complete a MADD Victim Impact Panel and complete community service. Alcohol and drug use is prohibited, and monitored sobriety is a requirement. A DWAI first offense is punishable by up to six months in jail or a fine of up to $500.

A second DUI or DWAI is punishable by a mandatory minimum jail sentence of 10 days. The maximum possible sentence is one year. A jail sentence is eligible for in-home detention if the prior alcohol related driving offense is greater than five years old.

A third offense carries a mandatory minimum 60 days jail sentence with a maximum of one year. The mandatory minimum 60 days are not eligible for in-home detention. Second and greater DUIs also require a mandatory two-year probation period. The Court suspends an additional one year of jail on a defendant upon successful completion of probation.

It is important to remember that the mandatory minimum sentences are the lowest the Court can impose on a defendant. While subsequent offenses have mandatory minimum sentences, the court will look at other aggravating factors and mitigating factors to determine the appropriate sentence.

It is not unusual for judges to impose jail sentences higher than the mandatory minimum. It best for a defendant to do certain things to help reduce the potential for jail. To better understand your situation, request a free consultation today.

What is a Prior Alcohol Related Driving Offense

When determining the appropriate sanction, the court will look at prior convictions. Driving under the influence and DWAI convictions are always classified as prior alcohol related driving convictions. Other convictions defined as alcohol convictions include vehicular assault and vehicular homicide.

The Colorado Revised statutes define a lesser offense as an alcohol related driving infraction. A DUI will result in the revocation of driving privileges. A defendant driving after revocation will receive a citation for driving under revocation. 

DUR will not involve alcohol. However, the law defines it as an alcohol related driving offense because based off a DUI infraction. A DUR criminal case will result in jail. Judges must place a defendant in jail for at least 30 days.

The law dealing with punishment will impose the penalties discussed above for a third alcohol related driving infraction. A second DUI is punishable as a third alcohol offense if a DUR happens.  

District attorneys commonly refer to this type of infraction as a “soft third”. True third DUI convictions receive jail sentences more than the mandatory minimum. It is not surprising to see a defendant do over 6 months in these cases. Courts handle a "soft third" more leniently than a true third conviction. 

The Felony DUI statute defines prior convictions differently. A felony DUI requires three prior convictions for DUI or DWAI. The felony DUI statute does not consider a DUR to be a prior conviction.


While a DUI may seem simple, it can get complicated quickly. The facts of every DUI offense vary from dui charge to dui charge. A second DUI defense is substantially different from a third DUI defense. Each case and each defendant require a DUI lawyer to tailor a defense to their case and goals.

The criminal defense attorneys at our law office routinely handle DUI cases. We are knowledgeable with every aspect of DUI law. We provide representation for any type of case, and we handle DMV hearings to get restricted licenses.

Request a consultation today if you face charges for a DUI or DWAI offense in Aurora or the Denver Metro Area. We are open during regular business hours, and we will stay late and be available at the weekends if necessary.

Schedule a free consultation with a Denver DUI Defense Attorney from the Lawrence Law Firm. We are ready, willing, and able to represent you. Our firm charges flat fees, but we also provide flexible payments plans. Your financial situation should not compromise your legal defenses.