Is a Sentence to House Arrest Possible for a Third DUI in Colorado?

One of the biggest concerns my clients have with a third DUI charge in Colorado is the mandatory jail time. This is a hard conversation as a defense attorney, as the answers provided are never what a client or potential client wants to hear.

A third DUI or DWAI conviction in Colorado results in mandatory jail time of at least 60 days and up to one year. While work-release is possible, mandatory incarceration cannot be served on electronic home monitoring or in-home detention pursuant to C.R.S. § 42-4-1307(6). In addition, the incarceration must be consecutive, meaning, for example, it cannot be split over weekends. The mandatory penalties for DUI, Driving with Excessive Alcohol Content (DUI per se), and DWAI when a person has two prior convictions are the same across the board and include the mandatory jail time as well as a mandatory term of probation from two to four years.

The only exception to this, and it is a very limited exception, is in C.R.S. § 42-4-1307(6)(I.5). This subsection allows home detention for a third DUI if the county the case is pending in does not provide work-release or community corrections. In addition, a sentencing judge can impose house arrest “only if the court finds that an alternative sentence of home detention is necessary to address the individual circumstances of the case and fulfill the statutory purposes of sentencing … and when a sentence to home detention will not undermine the seriousness of the offense.” The legislature added this provision during the COVID pandemic to address sentences where no county jails were running a work-release program, and some defendants had medical issues that would cause a jail sentence with the potential exposure to COVID a fatal health risk. It is very, very rare that judges look to this exception in the DUI sentencing statute as an alternative to incarceration for a multiple offense DUI or DWAI conviction.

In addition, most judges in Colorado sentence third offenders to more than the minimum term of incarceration. In some Metro-Denver counties like Denver County, Jefferson County, and Douglas County, it is common to see sentences of 6 months to one year on third DUI offenses, regardless of the age of the priors or the mitigating steps a defendant takes in anticipation of the sentencing hearing. Judges are simply not sympathetic to multiple offenses.

In addition to the mandatory incarceration involved with a third DUI/DWAI offense, judges must impose but suspend an additional one-year jail sentence on the condition that the defendant successfully completes probation. The term of probation is two to four years and includes fines up to $1,500 with mandatory court cost, probation fees, and cost of care, community service up to 120 hours, the installation and compliance with an ignition interlock device, and state-mandated level II DUI education and therapy, which can take over a year to complete.

A third-DUI charge is one of the most difficult cases I have. The Colorado sentencing laws are harsh, and mandatory sentencing ties judges’ hands in ways that no client facing a third offense wants to experience.