Did you know that habitual DUI drivers’ sentences vary under Colorado’s new felony DUI law? At the Iyer Law Office in Denver, we keep a close eye on the law for our clients and want you to know that a fourth driving under the influence conviction (DUI) is now a felony instead of a misdemeanor. However, a judge can choose whether or not to incarcerate, instead of enforcing the mandatory 60 days in jail required under the old misdemeanor law. If this sounds confusing, let us shed some light on the details for you.
If you are charged with a DUI you need Denver DUI Defense Attorney Vee Iyer at the Iyer Law Office in Denver to help you understand what can often be a complicated strategy of numbers, the numbers of your blood alcohol content and the number of days you have to request a hearing or your driver’s license may be automatically revoked as well as the confusing and varying sentencing on a 4th DUI conviction.
According to an article in the Denver Post, the result of the new driving under the influence law is that judges are giving extremely different sentences for habitual drunken drivers across Colorado. One in 12 defendants isn’t getting any incarceration time at all, while others are getting long prison sentences.
Under the old misdemeanor law, people convicted of three or more misdemeanor driving under the influence charges received at least 60 days in jail. That law still applies to third-time offenders, but for fourth-time offenders, it is now a felony and judges have a wide discretion on whether to impose any incarceration as part of a sentence. Under the new law in Colorado, a fourth DUI conviction carries a sentence of up to six years in prison.
According to a Denver Post article, supporters of the new felony DUI law, which was passed by the Colorado legislature in 2015, said it was time for Colorado to follow 45 other states with felony DUI laws in place. Many opponents objected saying it would be too punitive. So, supporters agreed to a compromise: the felony DUI conviction would have no mandatory jail or prison time.
Since the law took effect in August of 2015, The Denver Post found 25 of 316 felony DUI offenders received probation or community service but no incarceration time. Nearly 30 percent of the cases resulted in a prison sentence and about 48 percent included a jail sentence. The remaining 22 percent of cases got time served in halfway houses, jail work-release programs, or only got probation. Twenty-four of those DUI offenders spent no time behind bars for their convictions. And in three cases, the offenders were given home detention. In one case, the judge sentenced an offender to eight days in jail. The results of the erratic and sometimes light sentencing may be a surprise to the supporters of the law who intended it to be tough on DUI offenders.
Arapahoe, Adams, and Jefferson counties had at least four felony DUI cases with only probation or very little jail time, but in Douglas County’s four cases, judges imposed significant incarceration time.
In almost 40 of the cases mainly in Denver County and Boulder County, the judges gave deferred judgments through plea agreements which allowed their felony guilty pleas to be dismissed after they served their time in jail.
Many past supporters want to fix the new law to require at least some incarceration for a felony DUI conviction. Defense attorneys argue that mandating incarceration would be counter-productive and take away the discretion of judges that is necessary for some people. Even a district attorney in Denver points out that mandating a prison sentence would end up just warehousing offenders and then releasing them with little to no substance abuse treatment, but if they are sentenced to jail in Denver County, they must participate in intensive addiction treatment.
One of the reasons for the discrepancies is that the new felony DUI law gave discretion to judges and actually requires them to consider other options besides prison. The law states that a sentence to prison for a felony DUI would only be given if the judge determines that incarceration is the most suitable option given the facts and circumstances of the case, including the defendant’s willingness to participate in treatment. The judge must also assess whether all other reasonable and appropriate sanctions and responses to the violation that are available to the court have been exhausted, do not appear likely to be successful if tried, or present an unacceptable risk to public safety. Opponents of the law say this kind of assessment for other options is not needed since these are people who have had multiple convictions and have had many chances to get treatment. The widely contrasting sentences may come from a difference of philosophies from the judges across Colorado.
If judges grant probation along with a jail sentence for a felony DUI, the maximum jail sentence a judge can impose is 90 days in jail but with a third offense misdemeanor DUI, the law mandates a minimum of 60 days and a maximum of a year in jail, with options for work release. So, a third DUI misdemeanor conviction usually carries more consequences than a 4th DUI felony conviction.
The prime sponsor of the felony DUI law was Rep. Lori Saine, a Republican from Firestone, Colorado and whose uncle was killed by a drunk driver. She thinks the law is working but intends to push to amend the law, adding mandatory incarceration for DUI felony convictions. She says that this sentencing discrepancy was not the intent of the law. She says incarceration forces the offenders to separate from the problem and get motivated to receive treatment.
She relies on statistics from the Colorado State Patrol, which accounts for 20 percent of DUI arrests in the state, which shows the new felony law is having an impact because DUI citations involving just alcohol declined by more than 20 percent for the year the new law began to take effect.
Many proponents of the law argue that mandatory sentences are being taken out of sentencing laws across the nation because they limit the ability of the judge to take into account each individual’s personal characteristics and individual records. They claim mass incarceration will result if everyone gets the same sentence and there will be no incentive for defendants to plea bargain.
Probation professionals give the judges pre-sentence investigative reports that look at each defendant’s situation to help guide the judges with their sentencing decisions.
The Denver Post’s review of the sentencing data found striking differences among courts throughout the state, sometimes even when the same district attorney’s office is prosecuting the cases.
All four of the felony driving under the influence cases that went through sentencing in Douglas County handed down a prison sentence, though a judge suspended one of those sentences and imposed one year in jail instead of six years in prison. A Douglas County District Judge, Richard Caschette, also imposed the harshest sentence in the state for a felony DUI. He sentenced Lawrence Pagenkopf, 53, to 12 years in prison after he pleaded guilty last year to his sixth DUI conviction. His plea agreement indicated that he would receive a sentence enhancement beyond the normal maximum of six years in prison for a felony DUI because he was a habitual offender with 11 prior felony convictions.
The 18th Judicial District attorney’s office prosecuted that case as well as that of Doyle Carmack, 54, who received no incarceration time at all after pleading guilty to a felony DUI, his sixth DUI conviction. Prosecutors sought to have him sentenced to six years at a community corrections halfway house. Instead, Arapahoe County District Judge Natalie Chase sentenced Carmack to five years on probation and 75 hours of community service.
In Arapahoe county, all the cases resulting in probation involved the prosecutors agreeing to forgo prison time in exchange for guilty pleas. Two offenders were veterans who were suffering from post-traumatic stress disorder. This is why some defense attorneys believe each sentence should be decided on the characteristics and circumstances of the offender.
A fourth DUI is now a felony instead of a misdemeanor, which means the judge can choose whether or not to incarcerate. The result is now habitual DUI drivers’ sentences vary under Colorado’s new felony DUI law. The consequences of a conviction can be six years in prison. But with certain circumstances and a good attorney, the judge can give a variety of sentences. If you are an illegal alien or a legal resident but not a U.S. citizen you could be deported or denied continued legal status in the U.S. by Homeland Security (Immigration Department known as ICE) after you are convicted, under certain circumstances, of DUI with prior convictions.
If you are facing these legal challenges, contact our criminal defense attorney Vee Iyer at the Iyer Law Office in Denver. He is well-educated, experienced, and dedicated to winning your case. He will fight for you. So, contact our office for a free initial consultation.