By H. Michael Steinberg Colorado DUI-DWAi-DUDI- Criminal Defense Lawyer
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Colorado 42-2-206 Habitual Offender – Driving After Revocation Prohibited Crime – Reduced To A Misdemeanor In 2015.
Colorado 42-2-206 Habitual Offender – Driving After Revocation Prohibited Crime – Reduced To A Misdemeanor In 2015. In a little noticed section of a major new law – Colorado House Bill – 1043 – Colorado’s Felony DUI Bill, the Colorado State legislature reduced in severity what was previously the Felony Aggravated Driving After Judgment Prohibited 42-2-206.
The effective date of the amended law is August 5, 2015 and it applies to crimes allegedly committed after that date. This may have been done for budget reasons but it constitutes a sea change to those previously facing a felony conviction for Habitual Traffic Offenders who drive under certain circumstances.
The law – 42-2-206 essentially defines two crimes – the regular Driving After Judgment Prohibited and Aggravated Driving After Judgment Prohibited. The former is not affected by the change.
The Changes To 42-2-206 – The Good, The Bad, and The Ugly
The Good: As of August 5, 2015, what is referred to as Aggravated Driving With A Revoked License will no longer be a Class 6 felony. Under the new law – the penalty for a conviction of Aggravated Driving After Judgement Prohibited – is reduced to a Class 1 misdemeanor.
The law also removes DUI, DUI Per Se and DWAI as possible foundational crimes for committing the offense. That means that a person can no longer be charged with Aggravated Driving After Judgment Prohibited if the basis for the aggravated driving charge is a DUI or DWAI.
Put another way, the new law repeals those provisions to the crime of aggravated driving with a revoked license when the offender also commits the crimes of DUI, DUI per se, or DWAI as part of the same criminal episode. (See below)
The Bad: While the new crime is reduced to a Class 1 misdemeanor, it has a new mandatory jail provision requiring the Judge to sentence the convicted person to a minimum of 60 days in the custody of the county jail.
The Ugly: The change in the law did NOT mitigate other sentencing provisions of the law. The unenhanced or non-aggravated version of Driving After Judgement Prohibited still requires a mandatory 30 days in the county jail.
Many unfamiliar with Colorado’s 42-2-206 Habitual Offender – Aggravated Driving After Revocation Prohibited Crime may benefit from reading the newly enacted law.
Here is the new law – effective August 5, 2015 for crimes occurring on or after that date:
§ 42-2-206. [Effective 8/5/2015] Driving after Revocation Prohibited
(1) (a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
(II) Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both.
The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service.
In no event shall the court sentence the convicted person to probation
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. Upon the defendant’s successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II). (b) (I)
A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses:
(A) [Repealed by 2015 amendment.] [HMS – This was DUI and DUI per se]
(B) [Repealed by 2015 amendment.] [HMS – This was DWAI]
(C) Reckless driving, as described in section 42-4-1401;
(D) Eluding or attempting to elude a police officer, as described in section 42-4-1413 ;
(E) Violation of any of the requirements specified for accidents and accident reports in sections 42-4-1601 to 42-4-1606 ; or
(F) Vehicular eluding, as described in section 18-9-116.5, C.R.S.
(II) Aggravated driving with a revoked license is a class 1 misdemeanor, punishable as provided in section 18-1.3-501, C.R.S.; except that a court shall sentence the offender to a mandatory minimum term of imprisonment of sixty days in the custody of a county jail.
(III) If a defendant is convicted of aggravated driving with a revoked license based upon the commission of DUI, DUI per se, or DWAI pursuant to sub-subparagraph (A) or (B) of subparagraph (I) of this paragraph (b), as that crime existed before the effective date of House Bill 15-1043, as enacted in 2015:
(A) The court shall convict and sentence the offender for each offense separately;
(B) The court shall impose all of the penalties for the alcohol-related driving offense, as such penalties are described in section 42-4-1307
(C) The provisions of section 18-1-408, C.R.S, shall not apply to the sentences imposed for either conviction;
(D) Any probation imposed for a conviction under this section may run concurrently with any probation required by section 42-4-1307 ; and
(E) The department shall reflect both convictions on the defendant’s driving record.
(2) For the purpose of enforcing this section in any case in which the accused is charged with driving a motor vehicle while such person’s license, permit, or privilege to drive is revoked or is charged with driving without a license, the court, before hearing such charges, shall require the district attorney to determine whether such person has been determined to be an habitual offender and by reason of such determination is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that the accused has been so held, the district attorney shall cause the appropriate criminal charges to be lodged against the accused.
Good Luck – HMS
Colorado 42-2-206 Habitual Offender – Driving After Revocation Prohibited Crime – Reduced To A Misdemeanor In 2015
