Proving Driving Under Revocation § 42-2-138 – In The State Of Colorado
By H. Michael Steinberg Colorado DUI – DWAI – DUID – Traffic Crimes Lawyer
Proving Driving Under Revocation § 42-2-138 – In The State Of Colorado – When charged with Driving Under Revocation (DUR) in Colorado – many of my clients tell me they did not know their Colorado driver’s license was revoked, suspended, denied or otherwise invalid. This article addresses what kind of “knowledge” of the restraint on your license is required before a jury or a judge can find you guilty of Driving Under Revocation under § 42-2-138.
A recent case has made it very clear under Colorado Law that before a person accused of Driving Under Revocation (DUR) can be convicted there was be actual knowledge of the revocation and the mere mailing of the notice of revocation is not sufficient to establish the knowledge element of the offense of driving under restraint.
The Law 42-2-138(1)(a) – Driving Under Restraint – (Revocation – Suspension) in Colorado
Driving Under Restraint (revocation – suspension – ) happens when:
[a]ny person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person’s license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, or UDD is guilty of a misdemeanor.The meaning of “Restraint” – includes revocation or suspension of the driver’s license. § 42-2-138(4)(b).
Because knowledge of the action by the DMV taking away your right to drive is an essential element of the crime of driving under restraint, in a criminal case, before a jury or a judge can convict you of that charge – the State must prove knowledge of the restraint.
Knowledge is an element in all criminal cases in which notice of a final agency action depriving a licensee of the driving privilege is an essential element of the charge, even if the law in question (the statute) does not specifically mention the requirement of knowledge.
“Knowledge” means:
…actual knowledge of any restraint from whatever source or knowledge of circumstances sufficient to cause a reasonable person to be aware that such person’s license or privilege to drive was under restraint.
It is equally important to note that the law does not require specific knowledge of a particular restraint or knowledge of the duration of restraint – only that the license has been restrained – revoked – suspended in some way and there is no right to drive.
The Exception – Other Circumstances That Will “Trigger” Or Satisfy The Charge
“Knowledge” , means “actually aware of specific circumstances” Therefore if you are subjectively aware of circumstances that would lead a responsible driver to realize his license was under restraint and thus not continue to drive, you have knowledge.
While it may be sufficient for an administrative hearing at the DMV for the DMV to mail by first-class mail a notice of revocation to the driver’s last known address on record with the DMV, which would then be deemed received by the driver three days after being sent. §§ 42-2-119(2), -126(6)(b)(II), C.R.S. – it is not sufficient for a criminal prosecution for Driving Under Revocation –
On the other hand, the Colorado Court of Appeals HAS also held for example that where a Defendant has been previously convicted of multiple traffic offenses, as evidenced by his habitual traffic offender status and upon being stopped by police, he flees on foot, a jury could infer the Defendant’s consciousness of guilt that he drove with knowledge of his license revocation. – evidence of flight may be relevant to show consciousness of guilt.
Why Was Your Colorado Drive’s License Suspended?
There are many ways to lose your driver’s license:
- Too Many Points
- Convictions for Alcohol or Drug Related Driving Offenses – DUI – DWAI – DUID
- Driving Without Insurance
- and a Full Range of Criminal Convictions.
The Penalties Driving Under Revocation Are:
A fine from $50 to $500, or imprisonment in the County jail from 5 days to 6 months, or both. The minimum 5 day jail sentence is mandatory and may not be suspended.
This is also known as a habitual traffic offender strike.
If This Is A Second Or Subsequent Offense:
A fine from $500 to $3,000, or imprisonment in the County jail from 90 days to two years, or both a fine and imprisonment. The minimum 90 day jail sentence is mandatory and may not be suspended.
Reprint Of The Law – 2016 – 42-2-138.
42-2-138 – Driving under Restraint.
(1) (a) Any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person’s license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, habitual user, or UDD is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than five days nor more than six months, and, in the discretion of the court, a fine of not less than fifty dollars nor more than five hundred dollars may be imposed.
The minimum sentence imposed by this paragraph (a) shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part, or reduce or suspend the fine under this paragraph (a); but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this paragraph (a) because of an emergency, the mandatory jail sentence or the fine, if any, shall not apply, and the court may impose a sentence of imprisonment in the county jail for a period of not more than six months and a fine of not more than five hundred dollars. Such minimum sentence need not be five consecutive days but may be served during any thirty-day period.
(b) Upon a second or subsequent conviction under paragraph (a) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said paragraph (a) of this subsection (1), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver’s or minor driver’s license or extended any driving privilege in this state for a period of three years after such second or subsequent conviction.
(c) This subsection (1) shall apply only to violations committed on or after July 1, 1974. (d) (I) A person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person’s license or privilege to drive, either as a resident or nonresident, is restrained under section 42-2-126 (3), is restrained solely or partially because of a conviction of DUI, DUI per se, DWAI, habitual user, or UDD, or is restrained in another state solely or partially because of an alcohol-related driving offense is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty days nor more than one year and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than one thousand dollars.
Upon a second or subsequent conviction, the person shall be punished by imprisonment in the county jail for not less than ninety days nor more than two years and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than three thousand dollars.
The minimum county jail sentence imposed by this subparagraph (I) shall be mandatory, and the court shall not grant probation or a suspended sentence thereof; but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this subparagraph (I) because of an emergency, the mandatory jail sentence, if any, shall not apply, and, for a first conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than one year and, in the discretion of the court, a fine of not more than one thousand dollars, and, for a second or subsequent conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than two years and, in the discretion of the court, a fine of not more than three thousand dollars.
(II) In any trial for a violation of subparagraph (I) of this paragraph (d), a duly authenticated copy of the record of the defendant’s former convictions and judgments for DUI, DUI per se, DWAI, habitual user, or UDD or an alcohol-related offense committed in another state from any court of record or a certified copy of the record of any denial or revocation of the defendant’s driving privilege under section 42-2-126 (3) from the department shall be prima facie evidence of the convictions, judgments, denials, or revocations and may be used in evidence against the defendant.
Identification photographs and fingerprints that are part of the record of the former convictions, judgments, denials, or revocations and the defendant’s incarceration after sentencing for any of the former convictions, judgments, denials, or revocations shall be prima facie evidence of the identity of the defendant and may be used in evidence against the defendant. (e) Upon a second or subsequent conviction under subparagraph (I) of paragraph (d) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said subparagraph (I), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver’s or minor driver’s license or extended any driving privilege in this state for a period of four years after such second or subsequent conviction. (f) Upon entry of a plea of guilty or nolo contendere to a violation of paragraph (a) or (d) of this subsection (1), or upon a verdict or judgment of guilt for such violation, the court shall require the offender to immediately surrender his or her driver’s license, minor driver’s license, provisional driver’s license, temporary driver’s license, or instruction permit issued by this state, another state, or a foreign country.
The court shall forward to the department a notice of the plea, verdict, or judgment on the form prescribed by the department, together with the offender’s surrendered license or permit. Any person who violates the provisions of this paragraph (f) by failing to surrender his or her license or permit to the court commits a class 2 misdemeanor traffic offense.
(2) (a) In a prosecution for a violation of this section, the fact of the restraint may be established by certification that a notice was mailed by first-class mail pursuant to section 42-2-119 (2) to the last-known address of the defendant, or by the delivery of such notice to the last-known address of the defendant, or by personal service of such notice upon the defendant. (b) In a prosecution for a violation of this section, the fact of restraint in another state may be established by certification that notice was given in compliance with such state’s law.
(3) The department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle, shall immediately examine its files to determine if the license or operating privilege of such person has been restrained. If it appears that said offense was committed while the license or operating privilege of such person was restrained, except as permitted by section 42-2-132.5, the department shall not issue a new license or grant any driving privileges for an additional period of one year after the date such person would otherwise have been entitled to apply for a new license or for reinstatement of a suspended license and shall notify the district attorney in the county where such violation occurred and request prosecution of such person under subsection (1) of this section.
(4) For purposes of this section, the following definitions shall apply: (a) “Knowledge” means actual knowledge of any restraint from whatever source or knowledge of circumstances sufficient to cause a reasonable person to be aware that such person’s license or privilege to drive was under restraint. “Knowledge” does not mean knowledge of a particular restraint or knowledge of the duration of restraint. (b) “Restraint” or “restrained” means any denial, revocation, or suspension of a person’s license or privilege to drive a motor vehicle in this state or another state.
(5) It shall be an affirmative defense to a violation of this section, based upon a restraint in another state, that the driver possessed a valid driver’s license issued subsequent to the restraint that is the basis of the violation.
Proving Driving Under Revocation § 42-2-138 – In The State Of Colorado
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