In Colorado, underage drinking and driving (UDD) – also called “Baby DUI” – is driving while under 21 years old with a low blood alcohol content (BAC) of 0.02% to 0.05%.
UDD laws reflect Colorado’s “zero tolerance” policy for underage drinking. A first offense is only a class A traffic infraction, which is not a crime. Instead of jail, the judge imposes:
- a 3-month license revocation,
- 24 hours of useful public service,
- $100 in fines, and
- alcohol/drug classes.
However, any subsequent UDDs you pick up are crimes and therefore carry jail.
In this article, our Colorado DUI defense attorneys discuss:
- 1. What are UDD penalties in Colorado?
- 2. Fighting the Charges
- 3. Can my parents get into trouble?
- 4. What if my BAC was over 0.05%?
- 5. Can my criminal record be sealed?
- 6. Restrictions on Teen Driving
- 7. Can one drink really affect my driving?
- Additional Resources
1. What are UDD penalties in Colorado?
The punishments for underage driving under the influence of alcohol increase with each successive offense:
|
UDD in Colorado |
Basic Penalties |
| First UDD | Class A traffic infraction:
|
| Second UDD | Class 2 traffic misdemeanor:
|
| Third of subsequent UDD | Class 2 traffic misdemeanor:
|
Note that UDD carries the following additional punishments no matter how many prior convictions you have:
- Court costs and surcharges;
- Up to 24 hours of useful public service plus a $120 fee;
- 4 DMV points;
- An alcohol and drug evaluation; and
- An alcohol and drug education or treatment program.
You can request a DMV administrative hearing to contest your license revocation. Though if you win, your license will still be revoked if you lose your criminal case (which is entirely separate from the DMV case).
As your attorney, we appear on your behalf in both cases in attempt to save your license.1
CRS 42-4-1301(2)(d) prohibits underage DUI, which is people under 21 driving with a BAC of 0.02% or higher.
2. Fighting the Charges
Here at Colorado Legal Defense Group, we have represented literally thousands of young people charged with UDD. In our experience, the following three defenses have proven very effective with prosecutors and judges.
- The police did not have reasonable suspicion to pull you over. For example, perhaps the police were racially profiling you.
- You were suffering from a medical condition – such as a diabetic coma or a seizure – that the officer mistook for intoxication.
- The breathalyzer was defective or not administered correctly. Therefore, any results it returned were unreliable.
It is not a defense that you were driving safely. This is because UDD a strict liability offense: All that matters is your BAC, not whether you were impaired.
- school/college admissions
- scholarships
- jobs
- housing
- professional licenses
- liability insurance coverage
3. Can my parents get into trouble?
Under Colorado’s social host laws, your parents could potentially be sued for any property damage or injuries your baby DUI caused if they knowingly gave you alcohol.2
Even if you cause no accident, your parents could face class 2 misdemeanor charges for furnishing you alcohol if they knew you were going out.3
A second conviction of underage DUI is a class 2 traffic misdemeanor.
4. What if my BAC was over 0.05%?
If you are under 21, you will be prosecuted the same as adults if your BAC is higher than 0.05%.
|
Blood Alcohol Concentration |
Colorado Driving Offense |
| BAC above 0.05% to less than 0.08% |
DWAI (driving while ability impaired) A first-time offense is a misdemeanor:
|
| BAC of 0.08% or higher |
A first-time offense is a misdemeanor:
If you had a BAC of at least 0.15%, the DMV designates you as a persistent drunk driver (PDD). |
Note that driving under the influence of drugs carries the same penalties as DUI per se.4
5. Can my criminal record be sealed?
A Colorado UDD conviction may be expunged once you turn 21 years old if:
- You have not had any more underage drunk driving convictions; and
- The case has closed; and
- You have never held a commercial driver’s license (CDL) and were not driving a commercial motor vehicle at the time of the offense.
To expunge your underage DUI conviction, file a petition for expungement – JDF 305 – with the court. There is no filing fee. If your UDD case was dismissed, you can file for expungement right away.
Note that a regular DWAI or DUI conviction can never be sealed from your record.5
6. Restrictions on Teen Driving
If you are under 18, the following rules apply under Colorado’s Graduated Driver Licensing program:
- You may not drive passengers under 21 (other than your siblings) unless you had your license for more than six months or it is an emergency.
- You may not drive more than one passenger under 21 at a time until you have had your license for at least one year.
- You may not drive between midnight and 5 a.m. unless either:
- you have had your license for at least one year;
- a parent or guardian is with you;
- there is a medical emergency;
- you are emancipated;
- you are driving to or from school (or school-authorized activity); or
- you are driving to or from your job (with a signed letter from your employer).
You also have to abide by the same rules as adult drivers, such as:
- not having more passengers than seat belts,
- not having more than one passenger in the front passenger seat,
- carrying proof of insurance, and
- abiding by all traffic laws.6
7. Can one drink really affect my driving?
Yes. Even one 12 oz. beer can impair your driving as much as a 5 oz. glass of wine or a 1 oz. shot of hard liquor. Young drivers crash at a higher rate than adult drivers, even with low BACs.
It is a myth that coffee, cold showers, or fresh air sobers you up more quickly. It can take hours before one drink works its way out of your body.
Remember that your body may metabolize alcohol slower than your peers depending on your:
- age,
- gender,
- weight,
- health, and
- whether you have slept.7
Additional Resources
If you are a young person struggling with alcoholism, refer to the following for help:
- Teen Alcohol Abuse & Treatment Guide – Information and resources by American Addiction Centers.
- Alcoholics Anonymous – 12-step program to overcome alcoholism.
- Underage Drinking – Fact sheet by the Centers for Disease Control and Prevention (CDC).
- Get the Facts About Underage Drinking – Statistics provided by the National Institute on Alcohol Abuse and Alcoholism.
- SAMHSA’s National Helpline – 24/7 treatment referral and information service.
Legal References
- CRS 42-4-1301(2)(d) – Driving under the influence – driving while impaired – driving with excessive alcoholic content – definitions – penalties..
(I) It is a class A traffic infraction for any person under twenty-one years of age to drive a motor vehicle or vehicle when the person’s BAC, as shown by analysis of the person’s breath, is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving. The court, upon sentencing a defendant pursuant to this subparagraph (I), may order, in addition to any penalty imposed under a class A traffic infraction, that the defendant perform up to twenty-four hours of useful public service, subject to the conditions and restrictions of section 18-1.3-507, C.R.S., and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant’s own expense.
(II) A second or subsequent violation of this paragraph (d) is a class 2 traffic misdemeanor.Driver Services – Frequently Asked Questions, Colorado Department of Revenue. Probationary driver’s licenses are also called “restricted licenses”, “provisional licenses”, or “red licenses.” CRS 42-2-126. CRS 42-2-125 – Mandatory revocation of license and permit.
(1) The department shall immediately revoke the license or permit of any driver or minor driver upon receiving a record showing that the driver has:
(a) Been convicted of vehicular homicide or vehicular assault as described in sections 18-3-106 and 18-3-205, C.R.S., or of criminally negligent homicide as described in section 18-3-105, C.R.S., while driving a motor vehicle;
(b) Been convicted of driving a motor vehicle while under the influence of a controlled substance, as defined in section 18-18-102 (5), C.R.S.;
(b.5) In the case of a driver twenty-one years of age or older, been convicted of an offense described in section 42-4-1301 (1)(a) or (2)(a). Except as provided in section 42-2-132.5, the period of revocation based upon this paragraph (b.5) shall be nine months. The provisions of this paragraph (b.5) shall not apply to a person whose driving privilege was revoked pursuant to section 42-2-126 (3)(a)(I) for a first offense based on the same driving incident.
(c) Been convicted of any felony in the commission of which a motor vehicle was used;
(d) Been convicted of failing to stop and render aid as required by section 42-4-1601;
(e) Been convicted of perjury in the first or second degree or the making of a false affidavit or statement under oath to the department under any law relating to the ownership or operation of a motor vehicle;
(f) Been three times convicted of reckless driving of a motor vehicle for acts committed within a period of two years;
(g)
(I) Been twice convicted of any combination of DUI, DUI per se, or DWAI for acts committed within a period of five years;
(II) In the case of a minor driver, been convicted of DUI, DUI per se, or DWAI committed while such driver was under twenty-one years of age;
(g.5) In the case of a minor driver, been convicted of UDD committed when such driver was under twenty-one years of age;
(h) Been determined to be mentally incompetent by a court of competent jurisdiction and for whom a court has entered, pursuant to part 3 or part 4 of article 14 of title 15 or section 27-65-110 (4) or 27-65-127, an order specifically finding that the mental incompetency is of such a degree that the person is incapable of safely operating a motor vehicle;
(i) Been convicted of DUI, DUI per se, or DWAI and has two previous convictions of any of those offenses. The department shall revoke the license of any driver for an indefinite period and only reissue it upon proof to the department that the driver has completed a level II alcohol and drug education and treatment program certified by the behavioral health administration in the department of human services pursuant to section 42-4-1301.3 and that the driver has demonstrated knowledge of the laws and driving ability through the regular motor vehicle testing process. The department shall not reissue the license in less than two years.
(j) Been required to file and maintain proof of financial responsibility for the future as provided by section 42-4-1410 or article 7 of this title and who, at the time of a violation of any provision of this title, had not filed or was not maintaining such proof;
(k) Repealed.
(l) Been found to have knowingly and willfully left the scene of an accident involving a commercial motor vehicle driven by the person;
(m)
(I) (Deleted by amendment, L. 2021.)
(II) Been convicted of violating section 18-13-122 (3) or 44-3-901 (1)(c) or (1)(d) or any counterpart municipal charter or ordinance offense to such sections and having failed to complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program ordered by the court in connection with the present conviction, and has a previous conviction for such offenses.
(n) (Deleted by amendment, L. 2009, (HB 09-1266), ch. 347, p. 1816, § 8, effective August 5, 2009.)
(o) Repealed.
(2) Unless otherwise provided in this section, the period of revocation shall be not less than one year; except that the period of revocation based on paragraphs (b) and (c) of subsection (1) of this section involving a commercial motor vehicle transporting hazardous materials as defined under section 42-2-402 (7) shall result in a revocation period of three years.
(2.3) (Deleted by amendment, L. 2007, p. 504, § 3, effective July 1, 2007.)
(2.4) After the expiration of the period of revocation pursuant to this section and any subsequently imposed periods of revocation, any person whose license is revoked under subparagraph (I) of paragraph (g) or paragraph (i) of subsection (1) of this section shall be required to have a restricted license pursuant to the provisions of section 42-2-132.5.
(2.5) The period of revocation under paragraph (g.5) of subsection (1) of this section for a person who is less than twenty-one years of age at the time of the offense and who is convicted of driving with an alcohol content of at least 0.02 but not more than 0.05 under section 42-4-1301 (2)(d) is as follows:
(a) Except as provided in subsection (2.7) of this section, three months for a first offense;
(b) Six months for a second offense;
(c) One year for a third or subsequent offense.
(2.7)
(a) A person whose license is revoked for a first offense under paragraph (g.5) of subsection (1) of this section may request that, in lieu of the three-month revocation, the person’s license be revoked for a period of not less than thirty days, to be followed by a suspension period of such length that the total period of revocation and suspension equals three months. If the hearing officer approves such request, the hearing officer may grant such person a probationary license that may be used only for the reasons provided in section 42-2-127 (14)(a).
(b) The hearing to consider a request under paragraph (a) of this subsection (2.7) may be held at the same time as the hearing held under subsection (4) of this section; except that a probationary license may not become effective until at least thirty days have elapsed since the beginning of the revocation period.
(2.8) Repealed.
(3) Upon revoking the license of any person as required by this section, the department shall immediately notify the licensee as provided in section 42-2-119 (2). Where a minor driver’s license is revoked pursuant to subsection (1)(m) of this section, such revocation may run concurrently with any previous or subsequent suspension, revocation, cancellation, or denial that is provided for by law.
(4) Upon receipt of the notice of revocation, the licensee or the licensee’s attorney may request a hearing in writing, if the licensee has returned said license to the department in accordance with the provisions of section 42-2-133. The department, upon notice to the licensee, shall hold a hearing at the district office of the department closest to the residence of the licensee; except that, at the discretion of the department, all or part of the hearing may be conducted in real time, by telephone or other electronic means in accordance with section 42-1-218.5. The department shall hold the hearing not less than thirty days after receiving such license and request through a hearing commissioner appointed by the executive director of the department, which hearing shall be conducted in accordance with the provisions of section 24-4-105, C.R.S. After such hearing, the licensee may appeal the decision of the department to the district court as provided in section 42-2-135. Should a driver who has had his or her license revoked under this section be subsequently acquitted of such charge by a court of record, the department shall immediately, in any event not later than ten days after the receipt of such notice of acquittal, reinstate said license to the driver affected.
(5) Except where more than one revocation occurs as a result of the same episode of driving, license revocations made pursuant to this section shall not run concurrently with any previous or subsequent revocation or denial in lieu of revocation which is provided for by law. Any revocation unused pursuant to this section shall not preclude other actions which the department is required to take pursuant to the provisions of this title, and unless otherwise provided by law, this subsection (5) shall not prohibit revocations from being served concurrently with any suspension or denial in lieu of suspension of driving privileges.
(6)
(a) Any person who has a license revoked pursuant to subsection (1)(m) of this section is subject to the following revocation periods:
(I) (Deleted by amendment, L. 2021.)
(II) After a second conviction and failure to complete an ordered evaluation, assessment, or program, six months;
(III) After any third or subsequent conviction and failure to complete an ordered evaluation, assessment, or program, one year.
(b) (Deleted by amendment, L. 2007, p. 504, § 3, effective July 1, 2007.)
(c) Repealed.
(7) (Deleted by amendment, L. 2009, (HB 09-1266), ch. 347, p. 1816, § 8, effective August 5, 2009.)
(8) If a suspension or revocation of a license is authorized or required for conviction of an offense under state law, a final finding of guilt for a violation of a municipal ordinance governing a substantially equivalent offense in a municipality, county, or another state for purposes of a suspension or revocation shall be deemed as a conviction of the corresponding offense under state law. A stay of sentence or a pending appeal shall not deprive the department of the authority to suspend, revoke, or deny a driver’s license or minor driver’s license pending a final determination of a conviction on appeal. - CRS 44-3-801.
- CRS 44-3-901. CRS 44-3-904.
- CRS 42-4-1301; see also Reyna-Abarca v. People (2017) 390 P.3d 816; see also Turbyne v. People (2007) 151 P.3d 563.
- CRS 42-2-121. CRS 24-72-706.
- See Teen Driving Restrictions, Colorado Department of Transportation.
- Teen Drivers and Passengers: Get the Facts, Centers for Disease Control. What is a Standard Drink, NIAAA.