Felony DUI Entitled to Preliminary Hearing

The Colorado Supreme Court recently ruled in the Huckabay case 463 P.3d 283 (2020), a case originally out of Pueblo County District Court, that defendants who are not in custody for their felony DUI cases are still entitled to a preliminary hearing. This ruling may have caught some defense attorneys by surprise if they haven’t been following recent Colorado Supreme Court rulings. The Court reasoned that a felony DUI charge is a Class 4 Felony and because a felony DUI Conviction requires mandatory sentencing, a defendant is therefore entitled to a preliminary hearing, even if she is out of custody.

The Court further elaborated that a defendant who is charged with a class four, five, or six felony and if the penalty for the offense requires mandatory sentencing, then he is entitled to a preliminary hearing. Essentially creating a two-pronged test.

Felony DUI sentencing in Colorado requires one of two alternatives. Upon conviction, a judge may sentence a defendant to a presumptive range of two (2) to six (6) years in the Colorado Department of Corrections (prison), with a three (3) year mandatory term of parole. The other alternative in Felony DUI sentencing permits the Court to sentence a defendant to probation with 90-180 days in the county jail or 120-730 days in the county jail with work release or education release. Of note, the felony DUI statute refers to the jail component as a “mandatory period of imprisonment”.

The Court, in its ruling, made this rule absolute: you’re entitled to a preliminary hearing in Colorado on felony DUI cases.

Determining preliminary hearing eligibility in Colorado on other matters can be somewhat complex. Preliminary hearings in Colorado are granted to defendants who are charged with class 1, 2, or 3 felonies and level 1 or 2 drug felonies, by felony complaint or direct information. The general purpose of the hearing is to determine whether or not probable cause exists that the person who is charged committed the offense or offenses alleged. Furthermore, it’s a safeguard for a defendant in ensuring that the state has, at minimum, probable cause before dragging a person through what could be a costly and lengthy criminal proceeding. Of note, a preliminary hearing is not a full blown trial. It is simply a probable cause determination.

Defendants who are charged with class 4, 5, or 6 felonies or a level 3 or 4 drug felony are not entitled to a preliminary hearing unless an exception applies. The exceptions under the law exist for offenses that require mandatory sentencing, are crimes of violence (C.R.S. 18-1.3-406), or certain sexual offenses (part 4 of article 3 of title 18, C.R.S.). By statute, those not entitled to a preliminary hearing will proceed to a dispositional hearing. Additionally, those charged with class 4, 5, or 6 felonies, including level 3 or 4 drug felonies, who are not entitled to a preliminary hearing may demand and receive a preliminary hearing (within a reasonable time) if the person is in custody for the offense for which the preliminary hearing is requested. Of note, if the person is later released from custody he is no longer entitled to a preliminary hearing.

The request for preliminary hearing must be made within seven (7) days after the person is “brought before the county court for or following the filing of the felony complaint in that court” (Rule 5 of the Colorado Rules of Criminal Procedure). The preliminary hearing must be held within 35 days of the setting of the hearing, unless good cause is shown to set the case beyond the 35 day deadline.

Were you or a loved one charged with felony DUI in Colorado? DUI Attorney Monte Robbins has over 16 years experience in defending good people charged with DUI cases throughout the state of Colorado. Contact Felony DUI Lawyer Monte Robbins today for a free no obligation consultation regarding your Colorado felony DUI case: 303-355-5148. Office appointments are available in Denver, and Fort Collins.