Driving in Colorado while your license or driving privilege is restrained because of a DUI can lead to a separate driving under restraint charge under Colorado Revised Statutes section 42-2-138. A DUI-related violation under section 42-2-138(1)(d) is a class 2 misdemeanor traffic offense. For a first conviction, the general class 2 misdemeanor traffic sentencing range allows 10 to 90 days in jail, a $150 to $300 fine, or both. A second or subsequent DUI-related driving under restraint conviction carries a $500 to $3,000 fine. If a second or subsequent conviction occurs within five years of the first, you can also become ineligible for a Colorado driver license or driving privilege for four years, subject to any restricted-license provision that applies.
Colorado law can also extend the licensing consequences. When the requirements of section 42-2-138(3) are met, the Department of Revenue can add an additional year before you would otherwise be eligible to apply for a new license or reinstatement.
If you have been cited for driving while your license was suspended, revoked, or denied after a DUI, the charge is not established only because an officer says that your license was invalid. The prosecution must prove the required elements, including a qualifying restraint and the knowledge required by the statute. Your DMV record, notice history, the reason for the restraint, and any restricted driving privilege can affect the case.
Hebets & McCallin P.C. represents people facing DUI and driving privilege issues in Denver, Colorado, and nearby areas.
What Does Colorado Mean by Driving Under Restraint? 
Colorado Revised Statutes section 42-2-138 uses the term “driving under restraint.” For this statute, a restraint includes the denial, revocation, or suspension of a license or privilege to drive.
A DUI-related driving under restraint charge can apply when you drive on a Colorado highway with knowledge that your driving privilege is restrained under section 42-2-126(3), is restrained solely or partly because of a conviction for DUI, DUI per se, DWAI, or underage drinking and driving, or is restrained in another state solely or partly because of an alcohol-related driving offense.
You may hear the phrase “suspended license” used broadly after a DUI. Colorado law can use different terms, including suspension, revocation, and denial. The exact status on your DMV record matters because different restraints can lead to different legal consequences.
For more information about Colorado DUI charges and how they can affect your driving privilege, visit:
https://www.hebetsmccallin.com/denver-dui-lawyers/
What Are the Penalties for Driving on a DUI-Related Restrained License?
When a DUI-related restraint falls within Colorado Revised Statutes section 42-2-138(1)(d), driving under restraint is a class 2 misdemeanor traffic offense.
For a first conviction, the general sentencing range for a class 2 misdemeanor traffic offense allows:
- 10 to 90 days in jail
• A fine of $150 to $300
• Jail, a fine, or both
• Restitution when required by law
• Community or useful public service when ordered by the court
These are authorized sentencing ranges. They do not predict the sentence in a specific case.
A second or subsequent DUI-related driving under restraint conviction is treated differently. Section 42-2-138(1)(d) provides for a fine of $500 to $3,000 upon a second or subsequent conviction.
If a second or subsequent DUI-related driving under restraint conviction occurs within five years of the first, section 42-2-138(1)(e) can make you ineligible for a driver license or driving privilege in Colorado for four years after that conviction, except as permitted by Colorado law for certain restricted driving privileges.
A DUI-related restraint does not necessarily end simply because a date on an old notice has passed. Confirm your current driving status before you drive.
Just like anything else, practice leads to proficiency. With over 35 years of combined experience, we've gathered extensive knowledge inside and outside the courtroom.
The DMV Consequences Can Last Longer Than the Court Case
The court case is only one part of a driving under restraint matter. Colorado Revised Statutes section 42-2-138(3) directs the Department of Revenue to review its records when it receives a qualifying record involving an offense committed while a person was under restraint.
When the statute applies, the Department of Revenue can add an additional one-year period after the date when you would otherwise have been eligible to apply for a new license or reinstatement. This licensing consequence can affect your ability to drive to work, school, medical appointments, and family obligations.
Your actual reinstatement date depends on your complete driving record and the conditions tied to the original DUI or administrative action. Do not rely only on the passage of time. Confirm your current status and the steps required for reinstatement before driving.
For information about Colorado DMV hearings, visit:
https://www.hebetsmccallin.com/denver-dmv-hearing-lawyers/
For information about ignition interlock issues, visit:
https://www.hebetsmccallin.com/denver-ignition-interlock-attorneys/
A Restricted License Does Not Mean You Can Drive Without Conditions
Colorado law allows certain drivers to seek restricted driving privileges under specified conditions. An ignition interlock restricted license is not the same as unrestricted driving privileges.
If your driving privilege requires an ignition interlock device or another restriction, you must follow the conditions attached to that privilege. Driving outside those conditions can create new court or DMV issues.
Before you drive, confirm:
- Whether your privilege is currently valid
• Whether your privilege is restricted
• Whether an ignition interlock device is required
• Whether the vehicle you plan to drive complies with the restriction
• Whether you have completed every reinstatement step required by the DMV
For more information about suspended and restrained license cases, visit:
https://www.hebetsmccallin.com/denver-suspended-license-defense-lawyers/
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What Must the Prosecution Prove?
A driving under restraint case requires more than a DMV record showing a restraint. Under Colorado Revised Statutes section 42-2-138, the prosecution must prove the elements of the offense beyond a reasonable doubt.
In a DUI-related driving under restraint case, key issues can include whether:
- You drove a motor vehicle or off-highway vehicle on a Colorado highway
• Your license or privilege to drive was under a restraint covered by section 42-2-138(1)(d)
• You had the knowledge required by the statute
Colorado law defines “knowledge” to include actual knowledge of a restraint or knowledge of circumstances sufficient to cause a reasonable person to be aware that the driving privilege was under restraint. The statute does not require proof that you knew the exact type or duration of the restraint.
Evidence related to knowledge can include DMV notices, court appearances, documents connected to the DUI case, prior traffic contacts, reinstatement paperwork, and statements made during the traffic stop. The facts will vary from case to case.
What Defense Issues Can Matter?
No single defense applies to every driving under restraint case. The available issues depend on the facts, the DMV record, and the basis for the restraint.
Lack of Knowledge
If the prosecution cannot prove the knowledge required by section 42-2-138, that issue can affect whether the charge can be proven. The timing and delivery of notices, your address history, prior court proceedings, and other surrounding circumstances can matter.
Incorrect or Outdated DMV Information
A driving record can contain several dates, restraint codes, and reinstatement entries. The legal status of your driving privilege at the time of the alleged offense is the key issue. Records should be reviewed carefully rather than relying on a single date or notation.
The Restraint Was Not DUI-Related
Colorado treats DUI-related restraints differently from many other restraints. If the prosecution alleges a DUI-related offense under section 42-2-138(1)(d), it must establish that the restraint fits that part of the statute.
A Lawful Restricted Privilege Existed
If you had a valid restricted driving privilege and were complying with its conditions, the facts may not support the driving under restraint charge as alleged. The restriction documents, interlock records, and DMV status should be reviewed.
The Traffic Stop Can Be Challenged
Police must have a lawful basis for a traffic stop. If the stop violated constitutional protections, a defense attorney can evaluate whether evidence obtained as a result of the stop may be subject to suppression.
Out-of-State Restraint Issues
Colorado Revised Statutes section 42-2-138 includes a specific affirmative defense for certain cases based on an out-of-state restraint when the driver possessed a valid license issued after the restraint. Interstate licensing records should be reviewed before deciding whether this defense applies.
Can Driving Under Restraint Affect a Future DUI Case?
Yes. Colorado DUI sentencing law can treat a prior DUI-related driving under restraint conviction under section 42-2-138(1)(d) as a prior conviction when determining whether a later DUI, DUI per se, or DWAI offense is sentenced as a repeat offense.
Driving under restraint can also matter in habitual traffic offender analysis. Colorado Revised Statutes section 42-2-202 includes driving under restraint among the qualifying major traffic offenses used in determining habitual offender status when the statutory number of separate convictions occurs within the required period.
This does not mean that one driving under restraint conviction automatically makes you a habitual traffic offender. The number, type, timing, and separation of qualifying convictions matter.
A plea to resolve the immediate traffic case can affect later licensing or sentencing issues. Review those consequences before entering a plea.
What Should You Do After Being Cited?
First, stop driving unless you have confirmed that you currently hold a valid driving privilege or a valid restricted privilege that allows the driving you plan to do.
Gather documents related to both the original DUI matter and the new charge, including:
- DMV suspension, revocation, or denial notices
• Reinstatement letters, receipts, or status records
• Ignition interlock documents
• Court paperwork from the DUI case
• The new citation or summons
• Any temporary or restricted license
• Address-change records that may relate to DMV notices
• Records showing when reinstatement requirements were completed
Write down what happened during the traffic stop while the details remain fresh. Note why the officer said the vehicle was stopped, what the officer said about your driving status, and any statements you made about your knowledge of the restraint.
Do not assume that paying a ticket or waiting for a court date will resolve the DMV side of the case. Court proceedings and licensing issues can operate separately.
Speak With a Colorado DUI and Suspended License Attorney
A DUI-related driving under restraint charge can affect your liberty, finances, transportation, and the time required to regain full driving privileges. A defense review can examine the traffic stop, DMV history, notice records, reason for the restraint, restricted-license status, and the prosecution evidence.
Hebets & McCallin P.C. represents clients facing DUI and suspended license issues in Denver, Colorado, and nearby areas. Founding attorneys Russell Hebets and Colin McCallin both have prosecution experience, which gives the firm experience evaluating how the government may approach criminal and traffic evidence.
Call (303) 854-6006 to request a consultation, or visit:
https://www.hebetsmccallin.com/contact-us/
This article is for general informational purposes only and is not legal advice. Every case is different. Speak with a lawyer about your specific circumstances.
