Felony DUI: Questions linger about Colorado law

When Colorado lawmakers established the state's first felony penalty for driving under the influence in 2015, they did so without reaching consensus on how the new law's success would be measured.

More than 1,000 arrests later, that remains the case as debate continues over the pros, cons and inconsistencies in the law's enforcement.

The new law carries harsher potential penalties, including the possibility of a prison sentence, for anyone arrested for driving under the influence or alcohol or drugs who already has three or more DUI convictions on their criminal record. In 2016, the first full year the felony DUI law was in effect, it was charged 78 times in Larimer County and 88 times in Weld County.

Previously, a DUI conviction, regardless of how many a person had previously acquired, meant a misdemeanor penalty punishable by no more than a year in jail. There were approximately 3,200 misdemeanor DUI-related filings last year in Larimer County.

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"Colorado's felony DUI law has absolutely been successful in our eyes," Weld County District Attorney Michael Rourke said in a statement this week, adding penalties weren't strict enough for those repeatedly convicted. "There wasn't enough accountability. This law gives us another tool to go after those who simply refuse to stop drinking and driving. Repeat DUI offenders pose an enormous risk to public safety, but now their poor decisions are leading to appropriate prison sentences."

Statewide data from 2016 is not readily available, but Colorado Judicial Branch records from the fiscal year — July. 1, 2015, to June 30, 2016 — tally 1,133 felony filings for driving under the influence. There is no readily accessible database tracking sentencing outcomes for those cases.

Fort Collins police officer Shane Hasebroock called the process for enforcing the felony DUI law "a mess" last year, especially for officers working on the side of College Avenue after the bars let out.

"It's still not easy," Hasebroock said this week.

Determining whether someone has three or more previous DUI convictions has been a haphazard and inconsistent process that has resulted in people eligible for the felony penalty instead being charged with a misdemeanor. Not all states document crimes the same way, and records management systems can vary widely.

Today, officers and emergency dispatchers better know what to look for in a suspect's criminal history reports. If any indication exists of three separate DUI charges, the case will progress as a felony until the local district attorney can review the case.

The process of dropping a DUI charge from a felony to a misdemeanor is easier than pushing a misdemeanor to a felony.

"We had really nailed our process down for determining who was a felony DUI," Larimer County Chief Deputy District Attorney Daniel McDonald said in explaining the statistics and prevalence of cases. "We kind of got the process figured out."

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The difficulty in enforcing the law mirrors that of getting it passed, as efforts to make repeat convictions of drunk driving a felony stalled in the Colorado Legislature prior to 2015.

Elected officials balked at the associated costs to courts and prisons, and criminal justice reform advocates argued felony penalties for DUI contributes to the mass incarceration of nonviolent offenders in the U.S.

Those on both sides of the argument said the change in law needed to be associated with bolstering access to treatment for addiction and substance abuse — often the root problem behind drunken driving. Some also argued people with multiple DUI convictions would not be rehabilitated in prison and would be left jobless and more likely to return to substance abuse upon their release.

Jay Tiftickjian, a Denver attorney specializing in DUI cases, was among those most critical of the effort to make a fourth impaired driving arrest a felony. He testified against it as it worked through the Colorado Legislature on two main fronts: incarceration only further disrupted the lives of those with drinking problems, and funding and focus on DUI-related education was sorely lacking in the proposal.

Those criticisms hold true today, he said.

“I don’t think the amount of felony DUIs is going to go down at all until we come up with a better way to work on the rehabilitation part of the sentence and not just be concerned with the punishment portion of the sentence," he said in an interview this week.

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A Denver Post review published in September found inconsistencies in sentencing of habitual drunken drivers. After studying 316 sentences imposed in the first year of the law, the Post found about one in 12 defendants received no incarceration time. Nearly 30 percent of cases resulted in a prison sentence, 48 percent included jail time and the rest of the sentences, about 22 percent, resulted in time served in halfway houses, jail work-release programs or on probation, the review found.

Details about felony DUI sentencing in Larimer County is not easily attainable. No group tracks such records, and compiling the information would require querying each of the closed felony DUI cases.

Since last year was the first full year the law was on the books, determining a trend or finding how commonly felony DUI will be used is not doable.

In 2016, there were 605 traffic fatalities in Colorado, compared to 547 fatalities in 2015, according to the Colorado Department of Transportation. Alcohol was involved in 196, or 33 percent, of those deaths.

More than 26,000 DUI arrests are made annually in Colorado.

This story has been corrected to reflect that Colorado's fiscal year spans July 1 to June 30 annually. 

The law

42-4-1301. Driving under the influence

(1) (a) A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof.

Source: Colorado Revised Statutes

Reporter Jason Pohl covers public safety for the Coloradoan. Follow him on Twitter: @pohl_jason.