Once a person either pleads guilty to or is convicted by a jury for a driving under the influence (DUI) or driving while ability impaired (DWAI) offense in Colorado, there is a very good chance that he or she will face a sentence that involves some term of probation. Probation is an alternative to serving a prison sentence.[i] Whereas a prison sentence is punitive, the focus in probation is rehabilitation.[ii] Probation is also a privilege, and a defendant must apply for it.[iii] The trial court has the discretion to determine the length of probation so long as it does not exceed the sentence that may be imposed for the underlying conviction.[iv]
The trial court also has discretion to impose the conditions necessary “to ensure that the defendant will lead a law-abiding life.”[v] Examples of what the court can impose on a defendant include:
- faithfully pursuing employment or schooling;
- undergoing medical or psychiatric treatment;
- residing at a facility specially designated for individuals who are on probation;
- refraining from owning or possessing firearms or other dangerous weapons;
- participating in restorative justice programs;
- refraining from use of alcohol or other controlled substances; and
- meeting with a probation officer as directed by the court.[vi]
There are a variety of other conditions the court can impose on a defendant. So long as the individual abides by the conditions set by the judge, he or she can be reasonably certain that there will be no incarceration time.
For alcohol related driving offenses, the length of a probation sentence is generally set by the language in § 42-4-1307, C.R.S. Misdemeanor probation sentences typically can be up to two (2) years in length. However, there are provisions for probation sentences that exceed two years in length for serious offenses, such as a person’s third or more DUI conviction or for felony driving offenses that involve alcohol consumption.
An important consideration regarding the subject of probation is that, if a probationer is accused of violating the terms and conditions of the sentence, it becomes much easier for the prosecution to prove the case. In revocation proceedings, the probationer is not entitled to the full range of constitutional guarantees available to one not yet convicted of a crime. A probation revocation hearing may be conducted informally, and the court is not bound by the strict rules of evidence.[vii] For example, hearsay statements are admissible in probation revocation hearings.[viii] Furthermore, the burden of proof is lower for the prosecution. The standard of proof is preponderance of the evidence (think of fifty percent plus whatever little more is necessary to prove something in the affirmative) versus beyond a reasonable doubt.[ix]
Probation is a potentially huge benefit for someone accused of DUI or DWAI in Colorado. It holds the opportunity to carry on with a normal life while serving the debt one accrues to society for a criminal conviction. However, the terms of conditions of probation must be strictly satisfied. Failure to abide by them could mean loss of the privilege and incarceration. If you are facing an alcohol-related driving offense, the attorneys at Mile High Legal have the necessary experience to assist you in negotiating with the prosecution to see if probation is appropriate in your case. The firm also has handled many probation revocation hearings, and can help navigate the complexities of these. Contact our office for help today.
[i] People v. Smith, 2014 CO 10, ¶ 8
[ii] Id.
[iii] Id.
[iv] § 18-1.3-202(1)(a), C.R.S.
[v] § 18-1.3-204(1)(a), C.R.S.
[vi] § 18-1.3-204(2)(a), C.R.S.
[vii] People v. Moses, 64 P.3d 904, 907-08 (Colo. App. 2002)
[viii] Id.
[ix] Id.
