In 2020, the Colorado Court of Appeals reversed three felony convictions for driving under the influence (DUI).

Last year, Colorado’s State Supreme Court put into effect a directive that all elements of a DUI crime must be established beyond a reasonable doubt to a jury (not a judge as the law previously expressed) as a result of Linnebur v. Colorado (November 2020). The Court of Appeals has been reversing felony DUI convictions since.

What is at the root of sudden changes in DUI cases, and is there a loophole?

Changes began with drunk drivers in Colorado seeing their cases dismissed in court and hearings following the police’s refusal to provide DUI suspects with breathalyzer tests, saying the implied spreading of Sars-CoV-2 (or Covid) has made the administration of breath tests more perilous for officers than before. Although Colorado’s Department of Public Health and Environment determined breath tests during the pandemic are “safe,” major Colorado police agencies have chosen to bypass the guidance by refusing to administer tests.

In hearings across Colorado, the term “extraordinary circumstances” has arisen as Covid is perceived as such a circumstance.

Supreme Court ruling affects felony DUIs

In 2015, Colorado’s General Assembly established a measure where individuals may be charged with a felony DUI if they hold three or more previous convictions. Yet, a lower responsibility of proof was established, enabling judges to conclude whether sufficient evidence existed. Often, this ended in felony charges for repeat offenders leading to extended jail time and more significant fines.

In November, the Colorado Supreme Court decided, in a 4-2 ruling, that the 2015 law requires a jury – and not a judge – to determine if a defendant has at least three proven DUI convictions before increases to charges and penalties could occur. The decision has resulted in several appeals for individuals convicted of felony DUI. The original law was deemed too ambiguous in wording.

The possibility of retrying DUI cases has arisen for reversed convictions. However, attorneys can bring up the clause of double jeopardy. Double jeopardy (if you are not familiar with the term) is derived from the Fifth Amendment and exists to protect individuals from being tried twice for the same crime in the same jurisdiction. Guidance and clarity from the Colorado Supreme Court are needed if the double jeopardy clause is to stand or if there is to be an exception.

What does this mean for someone facing a DUI conviction in Colorado?

Suppose you or someone you love faces a DUI (whether you have previously been convicted of a DUI or not). In that case, it is an exceptionally precarious time to be a defendant facing this type of charge in Colorado. First, suspects should have the right to a breath test. Defendants’ rights are muddled by not being administered a breathalyzer along with the possibility of having prior convictions of the same kind utilized as a sentence determinant. The lack of clarity on being retried in the future for the same crime weakens the double jeopardy clause and further clouds legal proceedings. For the time being, the decision has been deferred by the Court of Appeals and left to trial court judges to determine.

If you are facing a DUI charge, it may seem favorable to learn that many prior felony convictions are being reversed to lesser misdemeanors. Still, it is simply a result of good timing. In the not-too-distant future, jurors may be granted access to the defendant’s prior convictions and history. This makes it hard to imagine jurors would arrive at unbiased verdicts.

A DUI is a severe charge best approached with experienced legal representation that is confident and fluent in all applicable laws. However, now more than ever, it’s crucial that a defendant has a highly skilled and prepared Colorado DUI attorney, especially one up to date with all ongoing changes and interpretations to related rulings, laws, and legalities.