By H. Michael Steinberg Colorado Criminal Defense Lawyer
The Right Of A Colorado Judge To Impose Alcohol – Drug Abstention And Monitoring In Second And Subsequent DUI Cases
Colorado Law actually, without a conviction and in the face of the presumption of innocence, forces a judge – as a matter of the judge’s pretrial authority – to order – as a condition of release on bond – that the individual accused of a second or subsequent Colorado Alcohol or Drug-related driving offense such as DWAI, DUI or DUID,
…..to abstain from the use of alcohol or illegal drugs and to undergo alcohol and drug monitoring.
Here is the relevant section of the law 16-4-105 CRS:
6) (a) If a person is arrested for driving under the influence or driving while ability impaired, pursuant to section 42-4-1301, C.R.S., and the person has one or more previous convictions for an offense in section 42-4-1301, C.R.S., or one or more convictions in any other jurisdiction that would constitute a violation of section 42-4-1301, C.R.S., as a condition of any bond, the court shall order that the person abstain from the use of alcohol or illegal drugs, and such abstinence shall be monitored.
Escape Hatch Provision
The law does provide for an “escape hatch” that would permit the accused to object to the court’s order – and which requires the judge to conduct a hearing to make a determination as to whether the person aggrieved by the law – be excepted from the requirements of the new DUI law.
To obtain relief from the Court’s Order, the accused has the right to file a motion and request a hearing to consider whether the Court’s Order setting the condition is in the interest of justice and whether public safety would be endangered if the condition were not enforced.
A key part of the Court’s decision to lift the requirement of monitoring and abstention is whether the accused is enrolled in and participating in a substance abuse program.