On July 1, 2010, the law regarding sentencing for alcohol-related driving offenses (DUI or DWAI) changed dramatically. Individuals convicted of a DUI or DWAI that have a prior DUI or DWAI are now subjected to mandatory sentencing guidelines. Specifically, repeat DUI and DWAI offenders now must be sentenced as follows: (1) imprisonment in the county jail for at least ten days (for a second offense) or sixty days (for a third and subsequent offense), and up to one year; (2) two years of probation, with an additional year of jail suspended; (3) a costly combination of useful public service, treatment, fines, and court costs. In addition, if the individual violates probation, the court may “impose all or part of the suspended sentence[,]” but the “cumulative period . . . imposed . . . shall not exceed one year.” These new sentencing requirements conflict with other statutory sentencing and probation provisions and clearly established Colorado case law, raising a number of questions:
1) Can an individual convicted of a second or subsequent alcohol-related offense opt out of probation?
2) Is it legal for the court to order an individual to serve more than sixty days in jail as a condition of probation?
3) Is it legal for the legislature to strip the court of its otherwise statutorily-mandated sentencing discretion?
The questions raised by the new DUI and DWAI sentencing requirements arise in the context of the competing concerns between the rule of lenity and rules of statutory construction. The rule of lenity requires that “ambiguous criminal statutes, for which express legislative intent cannot be found, be strictly construed in favor of the accused.” By contrast, the rules of statutory construction state that, where two statutory provisions conflict, the more specific provision controls.
Opting out of Probation
An individual convicted of an alcohol-related offense that has at least one prior alcohol-related offense “shall be punished by . . . [a] period of probation of at least two years . . .” However, clearly established Colorado case law provides that “without defendant’s consent, the trial court ha[s] no power to impose a sentence of probation.” The issue of whether a defendant may refuse probation pursuant to the new DUI law is unsettled and has yet to be addressed by the appellate courts. The rule of lenity suggests that the ambiguity should be resolved in favor of the defendant. In other words, a defendant that is facing one year of jail should have the option to refuse an additional two years of probation. However, arguably, the sentencing scheme of the new DUI law is more specific than the general rule that a defendant can refuse probation. Therefore, the rules of statutory construction suggest that, under these particular circumstances, a defendant can be sentenced to probation regardless of his refusal.
Serving more than sixty days in jail as a condition of probation
If an individual is on probation (with one year of jail suspended, as required by statute) for a second or subsequent alcohol-related offense, and that individual violates probation, “[t]he court may impose all or part of the suspended sentence . . .” However, “[d]uring the period of imprisonment, the person shall continue serving the probation sentence . . .” The statute, therefore, appears to authorize the court to order a person to serve up to one year in jail as a condition of probation. This is in direct contrast to the statute giving courts the power to order probation, which states that, “[i]n addition to imposing other conditions, the court has the power to commit the defendant to any [county] jail . . .” However, the statute explicitly limits jail as a condition of probation to “sixty days for a misdemeanor . . .”
As above, the rule of lenity dictates that the conflict between the two statutory provisions be resolved in favor of the defendant, so that a defendant violating probation on a second or subsequent DUI could not serve more than sixty days as a condition of probation. However, rules of statutory construction suggest that, since the new DUI law is, arguably, more specific than the general provision regarding jail as a condition of probation, the new DUI law controls.
Stripping the court of its discretion
As discussed above, the new DUI law requires the court to sentence repeat offenders to at least two years of probation. However, the statutes defining when probation is appropriate explicitly state that the court has discretion to order probation “[w]hen it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby . . .” The court, though, does not have to order probation when it determines, “in its discretion . . . that imprisonment is the more appropriate sentence for the protection of the public . . .” The new DUI law, therefore, appears to strip sentencing courts of their legislatively-mandated discretion when sentencing repeat DUI offenders.
Once again, the rule of lenity dictates that the conflict between the above statutory provisions be resolved in favor of the defendant. Therefore, if the court does not believe probation is appropriate (and especially if the defendant refuses probation), the court should have the option of ordering just a jail sentence, and should not be required to also require two years of probation. By contrast, rules of statutory construction suggest that, since the new DUI law is arguably more specific than the general provisions regarding probation, the new DUI law controls.
The new sentencing requirements for repeat DUI offenders raises a host of questions regarding the discretion of the courts and the rights of criminal defendants. The new DUI law has been in effect for less than a year, so many repeat offenders are likely still serving jail sentences. Therefore, there has yet to be a meaningful challenge to the mandatory sentencing requirements. However, the new law is sure to create a number of legal challenges that will ultimately need to be resolved by the Colorado Supreme Court.
 Ari Krichiver works for the Colorado State Public Defender's Office. After spending 1 ½ years in the appellate division, Mr. Krichiver transferred to the Brighton Regional Trial Office. Mr. Krichiver currently handles primarily misdemeanors and major traffic offenses, including DUI's.
 Colo. Rev. Stat. §§ 42-4-1307(5) & (6).
 § 42-4-1307(7)(c)(I).
 People v. Terry, 791 P.2d 374, 377 n.4 (Colo. 1990).
 See, e.g., Martin v. People, 27 P.3d 846, 852 (Colo. 2001).
 Colo. Rev. Stat. §§ 42-4-1307(5)(a)(IV) & (6)(a)(IV).
 People v. Rollins, 771 P.2d 32, 34 (Colo. App. 1989).
 Colo. Rev. Stat. § 42-4-1307(7)(c)(I).
 § 18-1.3-202(1).
 See §§ 42-4-1307(5)(a)(IV) & (6)(a)(IV).
 § 18-1.3-202(1).
 § 18-1.3-203(1).