Criminal Law Terms

Criminal law involves prosecution by the government of a person for an act that has been classified as a crime. Civil cases, on the other hand, involve individuals and organizations seeking to resolve legal disputes. In a criminal case the state, through a prosecutor, initiates the suit, while in a civil case the victim brings the suit. Persons convicted of a crime may be incarcerated, fined, or both. However, persons found liable in a civil case may only have to give up property or pay money, but are not incarcerated.

A “crime” is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law (court created) crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state.

Crimes include both felonies (more serious offenses — like murder or rape) and misdemeanors (less serious offenses — like petty theft or jaywalking). Felonies are usually crimes punishable by imprisonment of a year or more, while misdemeanors are crimes punishable by less than a year. However, no act is a crime if it has not been previously established as such either by statute or common law. Recently, the list of Federal crimes, dealing with activities extending beyond state boundaries or having special impact on federal operations, has grown.

All statutes describing criminal behavior can be broken down into their various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or “actus reus,” and a mental state, or “mens rea.” Prosecutors have to prove each and every element of the crime to yield a conviction. Furthermore, the prosecutor must persuade the jury or judge “beyond a reasonable doubt” of every fact necessary to constitute the crime charged. In civil cases, the plaintiff needs to show a defendant is liable only by a “preponderance of the evidence,” or more than 50%.

Bail is a means by which a court secures the appearance of a criminal defendant. The court orders a person charged with a criminal offense to post some form of bail, usually in cash, with the clerk of court. The amount of bail is determined by a judge, and it will be higher for increased severity of the offense.

Upon completion of the defendant’s criminal trial, the amount of bail posted will be returned to the defendant. Bail may be denied to any defendant that the court determines to be either a flight risk or a danger to the public.

The judge may require a defendant to obtain a surety bond, which means the defendant must receive the bond through a bonding company.

This hearing allows the defendant to be informed of the criminal charges against him as well as his rights under the law. At this point, the defendant will plead guilty or not guilty to the charges.

This is a hearing where the court will determine whether there is probable cause for the case to go to trial. Two things must be demonstrated to the court by the prosecution at a pretrial conference: (1) that there was a crime committed and (2) that the defendant committed the crime. If the court does not find both parts to be satisfied, the case may be dismissed.

A jury trial allows a criminal defendant to be judged by a jury made up of citizens. The jury determines, after all of the evidence is presented, whether the defendant is guilty or not guilty.

A bench trial is similar to a jury trial, only that instead the judge will determine whether the defendant is guilty or not guilty.

A motion is a request by an attorney. Motions are used to object, admit, notice, exclude, or raise defenses (among other purposes). Reasons for excluding evidence usually arise from violations of a defendant’s constitutional rights.

A brief accompanies a motion, and it contains legal and factual reasoning in support of the parties’ motion.

DUI-Driving Under the Influence
It is a misdemeanor for any person to drive any vehicle in this state when the person’s BAC ( Blood Alcohol level) is .08 or more at the time of driving or within two hours after driving.

DWAI-Driving While Ability Impaired
It is a misdemeanor to drive a vehicle when a person has consumed alcohol or one or more drugs affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically , or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

UDD-Underage Drinking and Driving
It is a class A traffic infraction for any person under age 21 to drive any vehicle in this state when the person BAC (Blood Alcohol Level) is at least .02 but not more than .05 at the time of driving or within two hours after driving.

Average penalties for DUI Offenses:

Colorado has two misdemeanor driving offenses for driving intoxicated, Driving Under the Influence (DUI) and Driving While Ability Impaired (DWAI). DUI has been defined to mean “driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affects the person to a degree that the person is substantially incapable, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”

There is an inference if your BAC is .080 or above you are DUI. DWAI has been defined to mean “driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” There is an inference if your BAC is above .050 but less than .080 you are DWAI.

If you are found guilty of a DUI or DWAI there are consequences the Court will impose which usually includes: probation; an alcohol program; useful public service; fine; fees and costs. Jail is not mandatory for a first offense, unless the BAC is .200 or above. For subsequent offenses, jail is mandatory.

When the Court enters a conviction for DUI or DWAI, the conviction will be sent to the DMV. Depending on your age or prior driving history, the DMV may revoke your privilege to drive in Colorado based on the conviction.

Colorado has an express consent law, which requires a suspected intoxicated driver to consent to a chemical test of his/her blood, breath or urine. This is an administrative action and is not considered a criminal proceeding by the Colorado Supreme Court. As such, the burden of proof at the hearing is a preponderance of evidence. A Notice of Revocation is the form used by DMV to start the process (this is usually a yellow form given to you by the law enforcement officer) when a person has a blood alcohol content (BAC) of .080 or above. Upon receiving the Notice of Revocation, you have seven days to request a hearing or the revocation goes into effect on the eighth day after service.

Upon requesting a hearing, the DMV must schedule the hearing within 60 days of the request. Additionally, the DMV must provide a minimum of 10 days notice of the hearing. You can request the officer to be present at the hearing or waive the officer’s appearance. If the Officer is requested he/she must appear at the hearing or the action is dismissed. Obviously, when the officer appears, he/she will testify. If the officer is not requested, the DMV will determined whether to revoke your license based on the report prepared by the officers who contacted you.

The elements that must be proven to revoke a license under the express consent law are as follows:
1. You were in control of a motor vehicle.
2. The officer had a basis to contact you.
3. The officer had a reasonable belief that you were intoxicated.
4. The officer advised you of the express consent law.
5. A blood or breath test was administered in conformity with the Colorado Department of Health Regulations or if this is a refusal that you refused to take a test.
6. If a test was given, the BAC is .080 or above.
7. If a test was administered, the sample had to be given within two hours of the time of driving.

If all of the elements are proven, the DMV will revoke your privilege to drive in Colorado, there are no exceptions. For a first offense with a BAC of .080 or above, the length of revocation will be three months. A recent law change allows for a provisional driver’s license 30 days after the revocation goes into effect. For a subsequent revocation based on a BAC of .080 or above, the length will be one year. If the revocation is for a refusal, the length will be one year. For a subsequent revocation based on a refusal, the length will be two years.

There are three classes of misdemeanors (See table below)

Misdemeanors & Penalties

** Please note that Community service may also be added

There are six classes of felonies (See table below):

Felony Penalties

Revocation
The simple answer is that if you are revoked you are generally not eligible for a work license or any other driving privilege, this usually results from a DUI.

Suspension
A suspension usually results from getting too many points and you are usually eligible for limited driving privileges for work, school and medical purposes.

YOU DO NOT have to complete roadside maneuvers(touch the nose, walk the line, stand on one foot…) they are all voluntary. You have the absolute right to decline to participate. The officer is entitled to ask and it is NOT UNCOMMON for it to sound like an order, not a request, but you may absolutely decline to take those tests.

*If you are age 16-17 you are subject to suspension if you accumulate 6 points or more during any 12-month period or 7 points or more for the duration of your license.

*If you are 18-20 you are subject to suspension if you accumulate 9 points or more in any 12-month period, 12 points or more during any 24-month period or 14 points or more for the period of the license.

*If you are 21 or older you are subject to suspension if you accumulate 12 points or more in any 12-month period or 18 points or more over any 24-month period.
However, for people under 21 years of age any drunk driving conviction, regardless of the number of points, results in a one year revocation.
Figuring points may be difficult remember that points are figured based on date(s) of violation(s), NOT the day you pay the fine or show up in court and plead guilty. It is also based on the age you were on the date(s) of violation(s). If you should have any doubt or concerns contact us to be sure.