Driving under the influence means driving a car while impaired by drugs or alcohol. Authorities typically charge this type of criminal offense as a misdemeanor. In 2017, Colorado changed the law to allow someone with three prior offenses to be charged with a felony.

A Felony DUI is a class 4 felony. Punishable by up to 6 years in the department of corrections or state prison. A fine of $2,000 to $500,000 could also be imposed. 

In some cases, a defendant may received probation. The judge would impose probation along with a county jail sentence.

Consult a Felony DUI Colorado Defense Attorney if you are facing this type of charge. Knowing the distinctions between this type of charge and a misdemeanor charge is important.

How is Felony DUI different from a Misdemeanor DUI

In a criminal case, the prosecution is required to prove each element of a crime beyond a reasonable doubt. An element is basically a part of the charge. For a DUI, a prosecution must establish that a defendant is driving, in the State of Colorado, while under the influence of drugs or alcohol.

A felony DUI has the added element. The prosecution must show that the defendant had at least three prior convictions before committing the new offense. These prior convictions are important for the case. The prosecution needs to provide evidence of these prior convictions.

A prior conviction could be a dui offense, vehicular homicide, vehicular assault, and driving while ability impaired conviction.

This evidence will help establish the defendant's criminal history. This element is problematic for defendants at trial.

Defenses based on mistakes or other legal theories will be subjected to extra scrutiny. Juries will be skeptical of statements from the defense once they learn of prior alcohol related driving infractions. A recent Colorado Appellate Court decision provided some guidance on what a prosecution has to show to establish prior convictions.

What happened in People v. Hearold

Police responded to a call reporting an intoxicated individual passed out behind the wheel of a van. Upon arrival, law enforcement saw Herold on his hands and feet in the grass in front of the van.  Herold claimed another person was driving and he fell out of the van. He was ultimately arrested for Felony driving under the influence.

At trial, the prosecution presented evidence of prior convictions. This evidence consisted of conviction records. The record showed the year of conviction, the name of the person with the prior conviction, the date of birth of the person, and the county from which the conviction was obtained. For physical description, the record only indicated that the person was a “Caucasian Male”.

Herold was convicted. He appealed the conviction arguing there was insufficient evidence to convict him of felony DUI. His argument was that the prosecution failed to present specific corroborating evidence of identification connecting him to three or more prior DUI convictions. 

What was the holding of People v. Herold

Prior to the Herold case being heard, a previous case was argued before the Colorado Supreme Court. That case was Gorostieta. In that case, the Supreme Court held that the prosecution must establish an essential link between the prior conviction and the defendant. 

A match between a defendant’s name and date of birth of the individual without more, will generally be insufficient.  The prosecution is required to present some documentary evidence combined with specific corroborating evidence of identification connecting the defendant to the prior conviction. 

Corroborating evidence includes things that specifically identify the defendant, unique identifiers, photographs or fingerprints, a physical description, distinguishing tattoos, or testimony of probation officers or others with personal knowledge.

The Herold court found that there was not sufficient corroborating evidence. Specifically, the court refused to expand list of what would be considered corroborating evidence. 

There were some arguments that were not addressed. The State argued that height and weight descriptions would be sufficient. Given the State’s findings, the court found that the issue was moot. 

The State also argued that location would be sufficient. The argument was that if the prior convictions were in the same geographic region or county, then a finding of sufficient corroboration would be established. 

What Does this Mean for Defendant’s Facing Felony DUI Charges?

As stated above, the introduction of prior convictions is extremely problematic. Courts are controlled by the rules of evidence. Prior bad acts or convictions in other cases are routinely excluded per CRE 405. The reasoning is that such evidence is readily misused by juries.

Given the priors are considered an element of the DUI felony statute, a prosecutor will be freely able to admit this evidence. However, the case law discussed above helps to create some hurdles to the admission of this evidence.

Arguments against prior convictions will be primarily useful as to old or out-of-state convictions. Within the last few years, courts have began issuing fingerprinting orders in every criminal case. These are orders that require a defendant to submit to fingerprinting in order to link specific cases to individuals. 

This was not always the case. Additionally, it is a system that is utilized in Colorado. Other states do not have these practices. 

Consult a DUI Defense Attorney if you are facing Felony DUI Charges in Colorado

A DUI weapon case can seriously impact a defendant. It may seem simple and straight forward, but this kind of case can be complicated. Criminal defense and DUI law is not easy to understand. It is important to speak with an Aurora DUI defense lawyer that understands the complexities of a DUI case.

The law surrounding actual physical control is complex. The Lawrence Law Firm understands the cases surrounding this topic and monitors any change in the law.   

Our firm routinely handles DUI case. We are ready, willing, and able to provide you the representation you deserve. We offer free consultations and flexible payment plans. Our goal is to provide aggressive representation to anyone who needs it, while no sacrificing any defendants because of budget.

Our defense lawyer routinely represents clients in Arapahoe, Denver, Adams, Jefferson, and any metro case. Our firm offers appointments afterhours or on the weekends.

Request a consultation from our Denver DUI attorneys today. We can help and give legal advice to anyone facing DUI charges in the Denver Are.