Articles Posted in Traffic

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pexels-photo-1550136Governor Polis recently signed into law Colorado’s Vulnerable Road User.  It’s essentially “careless driving on steroids” that carries strict new punishments.  If there is an accident with what is defined as “serious bodily injury”, the alleged violator is subject to stiff new penalties including 12 points against a driver’s license, the possibility of up to 1 year in jail, up to 320 community service hours, restitution for current and future medical expenses, and a mandatory suspended license.  Needless to say, the stakes are very high under this new law.

Although the new law applies statewide, it seems to be especially impactful to traffic in downtown Denver.  When driving through downtown Denver, a driver must be extremely aware of his/her surroundings and account for all of the other drivers and riders on and off the road.  When driving through downtown Denver, a driver can be inundated with the task of not colliding with electric motorized scooters riders, skateboarders, walkers, joggers, rollerbladers, gas moped riders, motorcyclists, hoverboard riders, electric bicyclists, other automobile drivers, and this seemingly never-ending list goes on and on.

The drafters of this new Vulnerable Road User law attempted to incorporate this never ending list of roadway users.  Accordingly, the following persons are defined as “vulnerable road users” if they are lawfully using a public right-of-way, crosswalk, or shoulder of the roadway: motorcyclists, scooter riders, moped riders, roller skaters, inline skaters, skateboarders, sled riders, farm equipment riders, animal-drawn wheeled vehicle users, off-highway vehicle riders, electric personal assistive mobility device users, wheelchair users, baby stroller users, pull wagon users (non motorized), farm tractor riders or users of other vehicles designed for farm use, bicyclists, tricyclists, electrical assisted bicyclists, or users of other-pedal powered vehicles, pedestrians, peace officers outside his/her vehicle performing the peace officer’s duties in a right-of-way, persons riding or leading an animal.

The existing careless driving law is incorporated by reference in the new Vulnerable Road User law.  Thus, if a person drives a motor vehicle, bicycle, electric scooter, low powered scooter, or electrical assisted bicycle in a careless and imprudent manner without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, he/she is guilty of careless driving.  Thus under the Vulnearble Road User Law, one has to be guilty of careless driving plus serious bodily injury.

So, if you’ve been charged under this new law, what’s your defense?

The possible defenses depend upon the circumstances and evidence in each case. Some examples may include whether or not the prosecutor can prove serious bodily injury.  Perhaps the defendant’s driving wasn’t careless. Maybe the “Vulnerable Road User” wasn’t lawfully using the public right of way, crosswalk, or shoulder.  Perhaps the defendant’s actions were not the proximate cause of serious bodily injury.

What’s serious bodily injury?  According to the statute, serious bodily injury includes a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

If a driver is convicted of Vulnerable Road User, restitution attaches.  This means that a driver can potentially be liable for pecuniary expenses not covered by automobile insurance.  Restitution awards accrue interest if not paid in full when ordered.  Restitution can also include the cost of future medical expenses.

Because the Vulnerable Road User charge is a 12-point Class 1 Misdemeanor Criminal Traffic Offense, a driver is subject to a mandatory driver’s license suspension and up to 1 year in jail.

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auto-racing-558089_1920-1024x683Drag Racing, Speed Contest, Speed Exhibition, and Street Racing charges are becoming more prevalent in both county and municipal courts throughout Colorado.  Law enforcement is really cracking down on this type of activity.  What may start out as a seemingly innocent acceleration with a car next to you at a traffic light can quickly turn into multiple and serious criminal charges with a real possibility of jail and loss of a driver’s license.  Drag racing/speed contest charges are criminal offenses in both county court and municipal court and each drag racing/speed contest charge carries 12 points against a driver’s license, which is significant enough to suspend a license for the accumulation of too many points.

Increasingly, other drivers who witness the alleged “race” are getting involved and completing witness statements, calling 911, speaking to the cops, and are willing to testify against the alleged racers.  Sometimes other drivers even present video of the “races” from the dash cameras in their own vehicles.  Although no one is advocating that street racing is “ok” or acceptable, the police have unbridled discretion to charge street racing/speed contest in some of the most benign situations where a simple revving of the motor and quick acceleration grabs anyone’s attention.  Colorado law on the issue in both county and municipal courts is very broad and covers many activities that one would not typically equate with racing.

This blog post focuses on municipal court.  Most municipal courts follow the model traffic code.  The model traffic code indicates that it’s illegal to engage in a “speed contest”.  A “speed contest” is defined very broadly to include rapid acceleration, exceeding reasonable and prudent speeds for highways and existing traffic conditions, changing lanes to gain an advantage over other “race participants”, and vying for position.  More than one vehicle is not required to be charged with a speed contest under the model traffic code.  In other words a single driver may be charged (no other vehicles are required to be involved) if the police believe that the driver is involved in a race or a time trial.

Speed exhibitions under the model traffic code are defined as operating a motor vehicle to present a display of speed or power.  Simply squealing the tires from a stop or while in motion is defined as “speed exhibition”.  Speed exhibition also includes “burning rubber” (leaving tire marks on the highway or ground), accelerating rapidly, swerving or weaving in and out of traffic, and creating smoke from burning tires.

Placing a barricade on a highway, placing an “obstruction” on a highway, assisting in placing a barricade or obstruction, and participating in placing a barricade or obstruction are all considered to be “aiding and facilitating” in a speed contest or speed exhibition.  These persons are deemed to have committed the actual offense that they are accused of aiding or facilitating.  Thus if “Joe” parks his car down the street to block off one lane of a roadway for a friendly run of “Challenger vs. Tesla”, Joe too can be charged with engaging in a speed contest (as well as the Challenger and Tesla drivers- assuming the cops could catch them).

Interestingly enough, for a 2nd violation of a speed contest or speed exhibition, the court may order the police to place an “immobilizer” on the vehicle involved for up to 14 days (typically a yellow wheel lock/boot).  The 14 days increases to up to 30 days for a 3rd or subsequent violation.  This added immobilizer penalty is in addition to any period during which the vehicle may have been seized during the pendency of the case.  Under the model traffic code, the owner of the immobilized vehicle has to pay $35 per day for the “privilege” of having his vehicle immobilized.  If the owner doesn’t pay for the removal of the boot within 14 days after the end of the “immobilization period”, then the vehicle may be deemed an “abandoned motor vehicle” and could be sold to pay for the past-due boot charges (harsh penalty!).

Further, if the owner grabs a hack saw and cuts the boot off his car (during or after the immobilization period), he could be criminally charged with a Class 2 Misdemeanor Traffic Offense.  If an immobilization device/boot is not available to the law enforcement agency because they simply aren’t equipped with the device or because they currently don’t have enough of them, the Court may order that the vehicle is impounded during the length of the immobilization period.

Speed contest and speed exhibition charges in municipal court have far reaching consequences and should not be taken lightly.  Careful investigation and preparation of these cases is critical to achieving optimal results.

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Revoked out-of-state? Even a lifetime/permanent revocation? Welcome to Colorado!  Colorado has some of the most generous laws in the country in terms of issuing driver’s licenses.  You may be eligible for a Colorado driver’s license even though you have been denied elsewhere.  Perhaps you live in New York and have received 5 or more convictions on your driving record for alcohol/drug driving offenses.  Or perhaps you caught a 10 year revocation in Florida on a 3rd DUI.  Whatever the case may be, if you are a legal Colorado resident, you might be able to get a license here regardless of the revocation imposed out-of-state.

Accordingly, even though a person is under restraint in another state, Colorado might issue that person a driver’s license under Colorado law.  In other words, a Hearing Officer may apply Colorado law to the person’s out-of-state driving record to determine when the person would be eligible for a license in Colorado had the driving violations occurred in Colorado.  If the driver would currently be eligible in Colorado had the violations occurred here, the driver may be issued a license.

“Is this legal?” The simple answer is yes.  “How can Colorado do this, doesn’t Colorado belong to the Driver License Compact?”  Yes, Colorado belongs to the Driver License Compact a/k/a “Interstate Compact” which essentially indicates that Colorado will check “the national list” (National Driver Registry) to determine if a Colorado driver’s license applicant has any outstanding holds from other states.  Colorado motor vehicle will typically advise an applicant to go clear the holds before they may be issued a Colorado driver’s license.  However, Colorado is one of the only states that has an exception to the general rule that out of state holds must be cleared first.  Colorado may issue an applicant a driver’s license after a hearing before the Hearings Division of the Colorado Department of Revenue.  Not all applicants will qualify for this type of driver’s license depending upon the nature of the hold(s) and other criteria the Hearings Division will utilize.

Not all states belong to the Driver License Compact.  Michigan, Tennessee, Massachusetts, Wisconsin, and Georgia are not members.  Some US states will even take action based upon violations that a driver receives in Canada.  These states are New York, Florida, Maine, and Michigan.

The National Driver Registry is what I refer to as the “black list”.  It is a computerized database of drivers who have been convicted of major traffic violations, have been revoked, or have been suspended.  This is the list that may prevent a driver from obtaining a driver’s license.

In Colorado, a driver’s license “revocation” refers to an action where a person’s license is cancelled for a set period of time based upon a conviction for any of the following enumerated offenses: manslaughter or negligent homicide when a motor vehicle was involved, DUI alcohol or DUI drugs, a Felony offense when a motor vehicle was used, leaving the scene of an accident involving death or injury, and other convictions.

If a person applies for a driver’s license in Colorado and thereafter is denied due to an out-of-state hold, the person may contact the state where the hold originated in an attempt to obtain a letter of clearance.  If a letter of clearance is not attainable, then the applicant may request a hearing in Colorado under the Interstate Driver License Compact Rule before the Hearings Division.  Once the Hearings Division receives the request, DMV will obtain the applicant’s out-of-state driver record which will be utilized at the hearing.

In order to qualify for a license in Colorado an applicant with an out-of-state hold/revocation must be able to show that she has not driven for at least one year.  Further, an applicant must be safe to drive in Colorado and it must be determined that the applicant would not endanger others (or property).  The applicant must be a Colorado resident (established by employment, phone bill/utility bill, voter registration, or other documentation that proves that the applicant resides in Colorado).

A reinstatement eligibility date will be determined at the hearing and an applicant should receive credit for any amount of time already served without driving privileges in the home state which issued the revocation.

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dpd-traffic-letterDid you receive one of these letters in the mail?  If so, you need to speak with a Denver criminal defense attorney who has handled multiple Denver Hit and Run cases and Investigations.  If a detective from the Denver Police Traffic Investigations Unit contacts you via a letter and/or phone call it is critical that you not make any statements and to simply and politely decline to answer any questions until you speak with a lawyer.  You are not required to answer any questions and you are not required to make any statements.

It’s worth noting that detectives are trained to get people to talk.  Your statements can (and often will) be used as evidence against you.  Often times detectives will pretend that they’re your friend and may even downplay the seriousness of the matter in order to get you to talk.  Thus it’s best to avoid the situation altogether and simply decline to make any statements and indicate that you need to speak with your lawyer.

Thereafter, once you have retained a lawyer, the lawyer can contact the detective.   Typical evidence in a hit and run case may include a description of the vehicle, a description of the driver, any physical evidence left at the scene, license plate number, cell phone photos, cell phone video, business video, government video, witness statements/interviews, and the direction the vehicle allegedly fled to.  The owner of the vehicle (if the vehicle is identified) is often assumed to also be the driver.  However, as we all know, sometimes vehicles are loaned out to friends or relatives.  Thus, there can be a lot of “moving parts” to these types of cases.

Once the lawyer has contacted the detective (and hopefully gathered as much information as possible), the lawyer can thereafter advise the person being investigated of the options in the case and whether or not it makes sense to do an “interview” with the detective.  If the vehicle involved has been seized by the police it will often be held as evidence in the case.  If the vehicle has not been seized, often times the detective will want to inspect the vehicle as part of a proposed meeting at the Denver Police Department Traffic Investigations Unit located at 3381 Park Avenue West in Denver.

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The Denver Police Traffic Investigations Unit (aka “Traffic Investigations Bureau”) is a specialized unit of the Denver Police Department that investigates cases of Hit and Run, Eluding, accidents involving serious bodily injury (SBI) and accidents involving fatalities.

There are multiple counts of Hit and Run that can be charged in just a single case.  Each charge is a criminal offense punishable by the possibility of jail and each charge carries 12 points against a driver’s license.  For an adult driver 21 years of age or older, 12 points is all it takes to suspend a person’s driver’s license.  In addition to Hit and Run charges, a driver will also typically face Careless Driving or Reckless Driving.  Depending upon the evidence, Hit and Run cases in Denver can often result in a driver being charged with 20, 30, or even 40 or more points in total charges. If the Hit and Run accident resulted in serious bodily injury to another person it is a Class 4 Felony, if the accident results in death it is a Class 3 Felony.

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motorcycles-race-helmets-pilots-163221-e1525892766279I’m often asked by clients why the police have charged them with certain traffic or criminal charges.  Unfortunately, that’s a difficult question to answer.  However, the thing to keep in mind is that the prosecutor has the burden of proving the charge beyond a reasonable doubt.  The driver who is charged has no burden.  Cops who charge people with reckless driving have determined that the driver’s conduct “fits” the definition of the charge (or at least that’s their opinion anyway).  In other words, the cop has made a determination that he/she has probable cause to charge the driver.

Reckless driving is no doubt a serious charge.  It’s 8 points against a driver’s license, it’s a criminal charge, and it’s a habitual traffic offender charge.  A driver in Colorado may be charged with Reckless Driving under the state statute or a similar municipal code section.  State statute Reckless Driving charges are heard by the county court where the alleged bad driving occurred.  These charges are prosecuted by the district attorney’s office for the corresponding county.   Whereas, municipal code Reckless Driving charges are brought forth by the city or town prosecutor where the alleged violation occurred and are typically prosecuted under the Model Traffic Code- adopted by the particular municipal court.

Reckless driving is a Class 2 misdemeanor criminal traffic offense under the state statute.  The penalty ranges from a minimum of 10 days in jail up to a maximum of 90 days in jail and a fine of $150 up to a maximum of $300.  Both a jail and fine may be imposed.  Additionally, 8-points will be assessed against a driver’s DMV record.  Under the state statute, a district attorney would have to prove that the driver drove a motor vehicle with a wanton or willful disregard for the safety of persons or property.  Bicycles, electrical assisted bicycles, and low-power scooters also qualify under the reckless driving statute.  Reckless driving is often charged in cases when there is an accident, when a high speed is alleged, where drag racing is alleged, when hit-and-run is alleged, and where aggressive driving is alleged.

The possible penalty for reckless driving is even greater in most municipal courts throughout Colorado.  For example, in Greenwood Village Municipal Court, reckless driving is punishable by a possible penalty of $2650 and up to 180 days in jail.  8-points are also assessed against a driver’s record in municipal court.  In Commerce City Municipal Court, reckless driving carries a maximum penalty of 1 year in jail and a $2650 fine, or both.  The same penalty of 1 year in jail and a $2650 fine applies to reckless driving offenses in Brighton Municipal Court.

The elements for reckless driving under the Model Traffic Code are the same as the elements under the state statute.  Those elements are that the person drove a motor vehicle with a wanton or willful disregard for the safety of persons or property.  Bicycles, electrical assisted bicycles, and low power scooters also qualify for reckless driving charges under the model traffic code.

Jury trials are available in both county court and municipal court for reckless driving charges.  However, in municipal court the defendant must submit a written jury demand and pay the jury demand fee to the Court within the allotted time period.  Written jury demands must be filed within 21 days after entry of a not guilty plea and must accompany a jury payment of $25.00 pursuant to CRS 13-10-114 and CMCR 223(a).  Some municipal courts require a higher fee for jury trials, thus it’s best to check with the municipal court clerk where the case is being heard to confirm the jury demand fee prior to payment.  No jury demand filing or payment is required in county court.

According to the Yanaga case, 635 P.2d 295 (Colo. App. 1981), “knowing” or “wilful” conduct is sufficient to establish the culpable mental state of “recklessness”.  Although the police sometimes charge both careless and reckless driving, careless driving is a lesser included offense of reckless driving according to the Chapman case, 557 P.2d 1211 (Colo. 1977).  Thus, a driver cannot be found guilty of both careless and reckless driving.

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automobile-automotive-autumn-228094-1024x683Driving after revocation prohibited in Colorado is a Class 1 Misdemeanor punishable by a minimum of 6 months in jail up to 18 months jail and a fine of $500 up to $5000.  Clearly, driving after revocation prohibited in Colorado is a serious offense.

A driving after revocation prohibited charge occurs when a person who has been found to be a habitual traffic offender at DMV drives a motor vehicle in Colorado.  A separate provision of the statue provides that there is a mandatory minimum 30 days jail to be imposed for a conviction for driving after revocation prohibited (DARP), however the court may suspend the mandatory 30 days jail (or a portion of it) if the person completes at least 40 hours of community service up to a maximum of 300 hours of community service.  A lot of courts and district attorneys seem to not like this provision of the statute.  Many courts and district attorneys believe that jail should be served in all DARP cases and won’t consider community service as a substitute.

A mandatory minimum fine of $3000 shall be imposed in lieu of jail or in addition to jail.   The mandatory minimum fine may be suspended entirely or partially if the person completes 40 to 300 hours of community service.  The court does not have the discretion to place someone on probation for a DARP offense.  If the court agrees to community service instead of jail, the court may vacate a suspended jail sentence upon the person’s successful completion of the community service hours.  If the person does not complete the community service hours (if ordered) the court has to impose the mandatory jail and/or mandatory fine.

In prosecuting the charge, the district attorney’s office has to prove that the driver had “knowledge” of the revocation.  Knowledge it is an essential element of the charge.  The mailing of the notice of the order of revocation from DMV is only prima facie proof of receipt, and it is not conclusive proof.  The district attorney’s office also has to show that the person operated a motor vehicle in Colorado while the order of revocation of the person’s driver’s license as a habitual traffic offender (HTO) was in effect.

Aggravated driving with a revoked license occurs when an HTO driver commits any of the following offenses while driving a motor vehicle: reckless driving, vehicular eluding, hit-and-run/failure to report an accident, and eluding or attempted eluding of a police officer.  Aggravated driving with a revoked license is punishable as a Class 1 Misdemeanor with a minimum sentence of 60 days jail.  It’s important to note that there is no provision in the statute for a person to complete community service in lieu of jail under an aggravated driving with a revoked license charge.  Probation may also be imposed for aggravated driving with a revoked license.

If a person is found to be driving under the influence (DUI), driving under the influence per se (DUI per se), or driving while ability impaired (DWAI) and at the same time driving after revocation prohibited, she will be subject to a separate sentence for each offense.  Probation for the aggravated DARP charge may run concurrent with the DUI/DWAI charge.  Both convictions, if applicable, will be reported on the person’s driving history.

By statute, district attorneys are required to screen all cases where a person is charged with driving under revocation or driving without a driver’s license to determine if the person should actually be charged with the greater offense of driving after revocation prohibited (DARP).  Essentially, the district attorney is required to screen all cases to determine if the person charged has been found to be a habitual traffic offender (HTO) at DMV.  If so, the district attorney’s office is required by law to charge the person under the DARP law.

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adventure-automobile-automotive-787476-1024x683Three (3) or more major offenses in a seven (7) year period will cause the Colorado Department of Revenue, Division of Motor Vehicles (DMV), to impose severe driver’s license sanctions against a driver.  These major offenses include: driving under the influence (DUI), driving while ability impaired (DWAI), driving under the influence per se (DUI per se), reckless driving, driving under revocation, false affidavit or false swearing to DMV, vehicular homicide, vehicular assault, manslaughter-motor vehicle related, criminally negligent homicide-motor vehicle related, aggravated motor vehicle theft, and hit-and-run/leaving the scene of an accident involving injuries or death.

Some out-of-state convictions also qualify.  This is an enhanced provision of the statute.  If Colorado DMV is aware of a conviction for any of the following offenses out-of-state, charged federally, or charged in a municipal court it may factor in the non-Colorado conviction in reaching a determination that a driver is a Habitual Traffic Offender (HTO).  Out-of-state (or charged federally) convictions for DUI, DUI per se, DWAI, reckless driving, driving under restraint, vehicular assault, vehicular homicide, manslaughter-motor vehicle related, and criminally negligent homicide-motor vehicle related may trigger an HTO sanction/determination at Colorado DMV.  According to the law, it does not matter if the driver is a Colorado resident or out-of-state resident for determination of status as HTO.

If more than one HTO offense is committed on the same day, the law reads that the multiple offenses shall be treated as one offense for purposes of determining HTO status.  Thus, if a driver is convicted of both DUI and driving under restraint on the same day, only one HTO strike shall be imposed upon the driver at DMV.

When Colorado DMV has made a determination that a driver is HTO, it will immediately revoke the driver’s license pursuant to CRS 42-2-203.  A habitual traffic offender (HTO) will be revoked for a period of 5 years from the HTO determination.  However, sometimes HTO drivers may be reinstated early with ignition interlock.

A driver will also be designated as a Habitual Traffic Offender if she accumulates 10 or more traffic convictions of 4 or more points within a 5 year period, based upon date of violation (not date of conviction).  Or, she will also be designated as a Habitual Traffic Offender (HTO) is she accumulates 18 or more convictions having a point assessment of 3 or fewer points within a 5 year period (based upon date of violation, note date of conviction).

In light of the Hedstrom case, 662 P.2d 173 (Colo. 1983), the DMV does not have any discretion when making an HTO determination.  In other words, if the driver has the reached the threshold qualifying conviction, DMV cannot make an exception to the rule of revoking a driver’s license for 5 years.  Further, in light of the Fuhrer case, 592 P.2d 402 (1979), a DMV hearing officer does not have discretion to issue a probationary driver’s license to a Habitual Traffic Offender.

It is also important to note that Habitual Traffic Offenders remain designated as such, even after the 5 year period has passed, until the driver actually goes therough the reinstatement process at DMV.  In other words, the HTO status is not automatically lifted at DMV after the 5 year sanction has been completed.

The Habitual Traffic Offender laws in Colorado have developed significantly within the past few years.  The HTO designation has become easier for DMV to prove by the use of out-of-state major convictions.  Thus it is imperative for a driver to not “achieve” HTO status at DMV to avoid the severe sanction of a 5-year loss of license.  HTO status can be avoided if the driver is aware of his prior convictions and successfully navigates the court system, when charged, to resolve his matter to a non-HTO strike.

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IMG_0499-1024x768The Aurora Municipal Court located at 14999 East Alameda Parkway, Aurora, Colorado 80012 presides over violations of the Aurora Municipal Code.  These matters include traffic tickets (both traffic criminal offenses and traffic infractions), parks and open space charges, certain criminal matters, neighborhood services charges, overweight commercial truck charges, animal services violations, and fire department related charges.   Other summonses issued by the Aurora Police Department for alleged violations of state statues are heard by either Douglas County Court in Castle Rock, Arapahoe County Court in Centennial, or Adams County Court in Brighton.

The Aurora Police Department has 696 sworn officers, making it the 2nd largest police department in Colorado.  The city of Aurora covers a sprawling 163 square miles.  In light of Aurora’s population (3rd largest city in Colorado) and the number of sworn officers, the Municipal Court sees an abundance of drivers charged with all kinds of traffic offenses and infractions.

Aurora Municipal Court has adopted the Colorado Model Traffic Code.

Traffic infractions in Aurora Municipal Code are punishable by a fine of not more than $2650.00 and points assessed against the person’s driver’s license.  Traffic infractions are not criminal offenses.  People who are charged with a traffic infraction do not have a right to a trial by jury, they only have a right to a bench trial (trial by judge- also known as a final hearing).

Certain traffic offenses in Aurora Municipal Court are categorized as criminal and therefore the possible penalty is up to 1 year in jail and up to a $2650.00 fine.  People who are charged with criminal traffic offenses have the right to a trial by jury but they must pay the jury trial fee and submit a written jury trial demand to the court within the required time period.  Criminal traffic offenses under the Aurora Municipal Code include, but are not limited to: careless driving, reckless Driving, speeding 25mph or more over the limit, no insurance, speed contest/drag racing, use of a radar jamming device, eluding a police officer, failure to yield to an emergency vehicle, and not stopping for a school bus.

If the traffic charge relates to a non-criminal traffic infraction and the person fails to appear in court as directed by the summons, then a “default judgment” will enter including a fine and costs as well as the full points charged in the summons.  An arrest warrant will not issue for a failure to appear on a traffic infraction.  However, a warrant will issue if the person was charged with any criminal traffic offense(s) in the summons.  Sometimes a default judgment that enters for failure to appear on a non-criminal traffic infraction may be set aside for “good cause” or “excusable neglect”.  A motion to Aurora Municipal Court to set aside a default judgment on a traffic infraction must be made not more than 10 days after entry of the default judgment.  The Court may rule on the motion after the 10 day period, however the motion must be submitted within the 10 day period.

Discovery (police report, officer’s notes, etc.) requests for traffic cases must be made to the Aurora City Attorney’s Office – Criminal Justice Division.  Thereafter the person must appear at a scheduled appointment with the City Attorney’s Office to pick up the discovery and review any criminal and/or driving history.

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pexels-photo-236452In Colorado it’s illegal for a driver to drive a motor vehicle when the person knows that their license is “under restraint”.  “Knowledge” of the restraint is an element that the district attorney’s office would have to prove in order to obtain a conviction if the matter were to proceed to trial.  Sometimes the “knowledge” element may be difficult for a district attorney to prove due to various factors such as a driver not receiving a notice of suspension letter in the mail from DMV.  “Knowledge” under this law pertains to actual knowledge of any restraint from whatever source.  “Knowledge” does not mean that the person had to have knowledge of a specific restraint or the length of the restraint.

Colorado’s driving under restraint law applies to persons who are driving under suspension, restraint, denial, and revocation.  Further, this law applies to both residents and non-residents of Colorado.  The violation of this law is a misdemeanor with a maximum possible jail sentence of 6 months and a maximum possible fine of $500 for offenses committed when the person’s license is under restraint, suspension, or revocation for reasons not related to alcohol traffic violations such as driving while ability impaired, driving under the influence, driving under the influence per se, or underage drinking and driving.  This statute specifically notes that this penalty applies to offenses that occurred on or after July 1, 1974.

Under Colorado law, if there is a second or subsequent conviction for driving under restraint whereby the restraint is not due to an alcohol traffic violation and the conviction occurs within 5 years of the previous conviction, the division of motor vehicles (DMV) will not issue a driver’s license to an adult or minor for 3 years after the second or subsequent conviction.  This DMV penalty is in addition to any penalty imposed by the court for the driving under restraint charge.

The penalty is enhanced for those drivers who are convicted of driving under restraint when their license is suspended, revoke, or under restraint for alcohol-related traffic violations.  Colorado considers a restraint due to an alcohol-related traffic offense to be more serious or more aggravated than driving under suspension due to accumulating too many points or not having having insurance, for instance.  The restraint in these types of cases can be entirely or partially due to an alcohol-related traffic offense.  This statute applies to both residents and nonresidents of Colorado and to restraints due to convictions in Colorado for DUI, DUI per se, underage drinking and driving (UDD), and DWAI as well as restraints due to Express Consent Revocations pursuant to CRS 42-2-126, as well as out-of-state alcohol-related traffic offenses.  The mandatory penalty is a minimum 30 days jail up to a maximum of 1 year and a fine of $500 dollars up to $1000 dollars.

A second or subsequent conviction carries an even more enhanced penalty of a minimum of 90 days in jail up to a maximum of 2 years and a fine of $500 dollars up to $3000 dollars.  The minimum 90 day jail sentence is mandatory and the Court does not have discretion to grant probation or a suspended sentence.  In cases where a driver is convicted of driving a motor vehicle under restraint (and the restraint due to an alcohol offense) a driver may avoid the mandatory jail provision if she can show that she had to drive due to an emergency.  This, however does not mean that the driver will absolutely avoid any jail, but rather it simply means that the driver is not subject to mandatory jail.  The possible maximum penalty under this factual situation for a first offense is 1 year with a maximum fine of $1000.  For a second or subsequent offense where it is shown that an emergency necessitated the driving under restraint, there is no mandatory jail, however the court may impose in its discretion jail of up to 2 years and a fine not to exceed $3000.  If the second or subsequent driving under restraint due to an alcohol offense occurs within 5 years after the first conviction, then DMV will further sanction the driver in that she will not be eligible for a driver’s license for 4 years after the second or subsequent conviction.

When there is a verdict or judgement of guilt for an alcohol or non-alcohol related driving under restraint, the Court shall require the driver to immediately surrender his driver’s license issued by Colorado or another state.  Thereafter, the Court shall complete a special form notifying the DMV of the notice of verdict or judgment of guilt and send the driver’s license with this form to DMV.  The law further reads that a person who does not surrender her license to the court commits a separate misdemeanor traffic offense.  Thus it is important for drivers (and the courts) to be aware of this additional surrender requirement.

If a person drives a motor vehicle in Colorado and the restraint is due to an outstanding judgment warrant (OJW), then the penalty is reduced to a non-criminal traffic infraction.

If a person is convicted of driving under restraint whereby the restraint was not initiated by an OJW, the person’s eligibility for a driver’s license at DMV will be extended by one (1) year.  In other words, in addition to the criminal penalties provided by the Court, DMV will also impose a sanction whereby a person will not be eligible to reinstate their driver’s license for a period of 1 year on top of their current eligibility date.  This is a very common issue that surfaces when drivers elect to represent themselves in driving under restraint cases in court.  Sometimes a pro se defendant (a person without a lawyer) will achieve a reduced charge in a driving under restraint case and maybe even avoid jail time.  However, the person soon learns thereafter that because they pleaded guilty to a moving violation during the period of restraint that they will now lose their license for 1 year (and they are not eligible for any kind of “red license” , “work license”, or “probationary license” during this 1 year period).  Thus due to the potential collateral consequences at DMV, driving under restraint cases can be much more complex than simply rushing through the court process to get a plea so that one may return home to catch the last few minutes of Orange is the New Black on Netflix.  Achieving a good resolution in the criminal case is only half the battle.

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file00059914429Picture yourself enjoying Colorado’s blue sky and sunshine and reaching into your mailbox to find this little “gem”:

Colorado Department of Revenue records indicate that your ignition interlock device has prevented the operation of a motor vehicle in three of twelve consecutive reporting periods due to excessive blood alcohol content.  In accordance with CRS 42-2-132.5 the period of your driver license interlock restriction is hereby extended for an additional one (1) year from the current expiration of your restriction.  If we do not receive a new lease agreement by the Order of Suspension effective (date indicated in letter) through the extended restricted licensing period, your privilege to operate a motor vehicle in Colorado will be suspended.  If suspended, you must immediately surrender any driver licenses and/or permits in your possession to any driver license office.”  [Credit to: Colorado Department of Revenue, Driver Control Section, Colorado Division of Motor Vehicles, Standard Letter to Respondent, Letter# dL408 (2017)]

What should you do? Panic?  Ask you neighbor for advice?  Sign-up for another year with that damn interlock machine?  The answer is no, no, and no.  You should immediately request a hearing.  As of the date of this blog post, DMV ignition interlock violation hearings are backlogged  6-8 weeks just to receive a Notice of Hearing letter and you must first secure a spot on a waiting list.  As soon as your name appears at the top of the waiting list, the Hearings Division will mail you a Notice of Hearing letter setting the hearing.  Most of the hearings anymore are held via telephone.  If at all possible an in-person hearing is typically better than a telephone hearing.  However more and more hearings are being scheduled telephonically and a Respondent may not have a choice.  If a hearing is requested, the Hearings Division may postpone the effective date of the extension until after the hearing.  It is vitally important for a Respondent to clarify this information with the Hearings Division and determine the status of the driver’s license until the hearing.

What does 3 out of 12 reporting periods mean?  This can be confusing.  A “reporting period” is a month, and is defined the Code of Colorado Regulations as the first and last days of a calendar month.  The violations must occur in 3 out of 12 consecutive months.  The 12 months must be consecutive, the 3 months reporting violations do not need to be consecutive.

What is “excessive blood alcohol content”?  Excessive alcohol content for purposes of the ignition interlock machine means a BAC of .025 or greater.

How does DMV monitor the ignition interlock device?  At least every 60 days, a driver must have the interlock device inspected by the interlock company.  There are 4 ignition interlock companies approved in Colorado at the current time:  Guardian, Intoxalock, #1 A LifeSafer of CO, and 1A Smart Start, Inc.  At this inspection, the interlock company will download the data records and forward them to DMV.  An interlock provider is supposed to notify a driver at the time of inspection if there are any violations.  However, a failure of the interlock company to advise a driver of any violations will not win an ignition interlock violation hearing for a Respondent.

What if a driver gets their regular unrestricted license back before violations are reported to Colorado DMV- can Colorado DMV still cause an ignition interlock extension?  The short answer is yes.  Even if a driver gets their unrestricted full privileges back, they can still be subjected to an ignition interlock extension for violations that occurred before the driver got their license back.

According to the Code of Colorado Regulations, if there is evidence of circumvention of an interlock device, an ignition interlock company will file a report of circumvention to the Colorado Department of Revenue.  If a police officer detects circumvention of the interlock device, he/she may file a report with the Colorado Department of Revenue and may file criminal charges in the appropriate county court.

The sole issue at a hearing for an extension of an ignition interlock period is whether “lockouts” occurred in 3 of any 12 consecutive reporting periods, and if proven, to then determine the length of the extension.

A Hearing Officer may determine the following as “aggravating factors” in determining an extension period: 2 or more lockouts in 1 month, a prior extension for lockouts, a pattern of readings consistent with attempted drinking and driving, any BAC readings of .05 or higher, lockouts in more than 3 of the 12 consecutive months at issue, and any lockouts in the last 6 months of an ignition interlock lease agreement.

A Hearing Officer may determine the following as “mitigating factors” in determining an extension period: any factors the driver may submit in mitigation (obviously this is very subjective), attendance at alcohol treatment after the last lockout, only 1 lockout in each of the 3 months and no lockouts in any other months at issue, more than 1 year remaining of the interlock requirement, and alcohol readings subsequent to the last lockout indicating that the driver walked away from the vehicle and did not re-attempt to start it after consuming alcohol.

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