42-2-202. Habitual offenders - frequency and type of violations.

(1) An habitual offender is any person, resident or nonresident, who has accumulated convictions for separate and distinct offenses described in subsection (2) of this section committed during a seven-year period or committed during a five-year period for separate and distinct offenses described in subsection (3) of this section; except that, where more than one included offense is committed within a one-day period, such multiple offenses shall be treated for the purposes of this part 2 as one offense. The record as maintained in the office of the department shall be considered prima facie evidence of the said convictions.

(2) (a) An habitual offender is a person having three or more convictions of any of the following separate and distinct offenses arising out of separate acts committed within a period of seven years:

(I) DUI, DUI per se, DWAI, or habitual user;

(II) Driving a motor vehicle in a reckless manner, in violation of section 42-4-1401;

(III) Driving a motor vehicle upon a highway while such person's license or privilege to drive a motor vehicle has been denied, suspended, or revoked, in violation of section 42-2-138;

(IV) Knowingly making any false affidavit or swearing or affirming falsely to any matter or thing required by the motor vehicle laws or as to information required in the administration of such laws;

(V) Vehicular assault or vehicular homicide, or manslaughter or criminally negligent homicide which results from the operation of a motor vehicle, or aggravated motor vehicle theft, as such offenses are described in title 18, C.R.S.;

(VI) Conviction of the driver of a motor vehicle involved in any accident involving death or personal injuries for failure to perform the duties required of such person under section 42-4-1601.

(b) The offenses included in subparagraphs (I), (II), (III), and (V) of paragraph (a) of this subsection (2) shall be deemed to include convictions under any federal law, any law of another state, or any ordinance of a municipality that substantially conforms to the statutory provisions of this state regulating the operation of motor vehicles. For purposes of this paragraph (b), the term "municipality" means any home rule or statutory city or town, a territorial charter city, or a city and county.

(3) A person is also an habitual offender if such person has ten or more convictions of separate and distinct offenses arising out of separate acts committed within a period of five years involving moving violations which provide for an assessment of four or more points each or eighteen or more convictions of separate and distinct offenses arising out of separate acts committed within a period of five years involving moving violations which provide for an assessment of three or less points each in the operation of a motor vehicle, which convictions are required to be reported to the department and result in the assessment of points under section 42-2-127, including any violations specified in subsection (2) of this section.

(4) For the purpose of this section, the term "conviction" has the meaning specified in section 42-2-127 (6) and includes entry of judgment for commission of a traffic infraction as set forth in section 42-4-1701.

Source: L. 94: Entire title amended with relocations, p. 2158, § 1, effective January 1, 1995. L. 97: (2)(a)(I) amended, p. 1466, § 9, effective July 1. L. 2008: (2)(a)(I) amended, p. 251, § 15, effective July 1.

Cross references: For collateral attacks of traffic convictions, see §§ 42-4-1702 and 42-4-1708.

Am. Jur.2d. See 7A Am. Jur.2d, Automobiles and Highway Traffic, §§ 127, 157.

C.J.S. See 60 C.J.S., Motor Vehicles, §§ 312-315.

Driver is not denied due process by the automatic revocation of his license under § 42-2-205 upon obtaining his third alcohol-related conviction within seven years. The hearing officer is not required to consider any medical condition of alcoholism. Hedstrom v. Motor Vehicle Div., 662 P.2d 173 (Colo. 1983).

Statute not aimed at driver committing single transgression. The habitual traffic offender statute is aimed at drivers who chronically disregard traffic laws, rather than those who commit one serious transgression. Crocker v. Colo. Dept. of Rev., 652 P.2d 1067 (Colo. 1982).

The offense of driving under denial of driving privileges is within the ambit of this section. Reyher v. State, Dept. of Rev., 39 Colo. App. 510, 571 P.2d 729 (1977).

Categorization of alcohol-related driving offenses is reasonably related to governmental interest. To the extent that one might consider as a classification the categorization of alcohol-related driving offenses in § 42-2-122 (1)(g) and (i) and subsection (2)(a)(I) of this section, such classification is reasonably related to the expressed governmental interest of providing maximum safety for all persons who travel or otherwise use the public highway. Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980).

Failure to warn violator of point accumulation not breach of constitutional protections. The failure to warn a person charged with a traffic offense that he will accumulate a designated number of points against his driving record upon conviction does not breach any constitutional protections. People v. Hampton, 619 P.2d 48 (Colo. 1980).

Where a driver testifies at an administrative hearing that he had not been convicted of one offense that appears on his driving history record, and that, as to another offense, he entered a guilty plea without having been advised as to the number of points to be assessed, this testimony is insufficient to bring into question the constitutionality of the underlying convictions. Reasoner v. Dept. of Rev., 628 P.2d 187 (Colo. App. 1981).

Court must state assessable points before plea of guilty. A traffic violation conviction is insufficient for the purpose of assessing points against the licensee where municipal court summons fails to state the number of points which could be assessed upon a plea of guilty. Dunn v. Tice, 43 Colo. App. 55, 598 P.2d 530 (1979).

Similarity in treatment accorded to prior convictions comports with equal protection. The similarity in treatment accorded by the habitual traffic offender act to prior convictions for driving while one's ability is impaired and driving while under the influence is reasonably related to the public-safety goals of the statute and comports with equal protection of the laws. Van Gerpen v. Peterson, 620 P.2d 714 (Colo. 1980).

There is no denial of equal protection in imposition of statutory sanctions on habitual offender. Charnes v. Kiser, 617 P.2d 1201 (Colo. 1980).

To assert constitutional invalidity of traffic offense conviction, a defendant must make a prima facie showing of invalidity; the prosecution must then prove the conviction was obtained in a manner consistent with the defendant's constitutional rights. People v. DeLeon, 625 P.2d 1010 (Colo. 1981); Reasoner v. Dept. of Rev., 628 P.2d 187 (Colo. App. 1981).

Driver may collaterally attack constitutionality of underlying conviction which forms the basis for the determination that he is an habitual traffic offender. Reasoner v. Dept. of Rev., 628 P.2d 187 (Colo. App. 1981).

Section 42-2-202 (2)(b), which identifies "major traffic offenses" for habitual traffic offender purposes, is more specific in application than §§ 42-2-202 (4), 42-2-127 (6), and 42-2-124 (3), and must be given effect as an exception to the general rule established by the latter statutes. The latter are general statutes of broad application that can be given full effect by authorizing the department to consider municipal court reckless driving convictions in revocation and suspension proceedings. Rudlong v. Dept. of Rev., MVD, 865 P.2d 941 (Colo. App. 1993).

Convictions under the law of another state that "substantially conform" to the statutory provisions of Colorado may be included for purposes of habitual traffic offender status. Thus, even if plaintiff's Idaho convictions are the equivalent of Colorado driving while ability impaired convictions, they may be considered for purposes of imposing habitual traffic offender status. Kramer v. Colo. Dept. of Rev., 964 P.2d 629 (Colo. App. 1998).

Right to counsel. Absent a valid waiver of the right to counsel, a conviction obtained against a defendant who is not represented by counsel may not be used to establish habitual traffic offender status for the purpose of imposing punishment for violation of § 42-2-206. People v. Hampton, 619 P.2d 48 (Colo. 1980).

Compliance with Rule 11(b), Crim. P., required. A trial court must comply with the requirements of Rule 11(b), Crim. P., before accepting a guilty plea to the charge of driving while impaired. Laughlin v. State, 44 Colo. App. 341, 618 P.2d 689 (1980), rev'd on other grounds, 634 P.2d 49 (Colo. 1981).

Driver's history record is prima facie evidence of its contents. Hoehl v. Motor Vehicle Div., 624 P.2d 907 (Colo. App. 1980), overruled on other grounds, Anadale v. Dept. of Rev., 674 P.2d 372 (Colo. 1984).

Attack on accuracy of record raises question of fact for resolution by hearing officer. Where evidence is presented which rebuts the accuracy of any item in a person's driving record, there is a fact question to be resolved by the hearing officer. Hoehl v. Motor Vehicle Div., 624 P.2d 907 (Colo. App. 1980), overruled on other grounds, Anadale v. Dept. of Rev., 674 P.2d 372 (Colo. 1984).

Applied in Fuhrer v. Dept. of Motor Vehicles, 197 Colo. 325, 592 P.2d 402 (1979); Gillespie v. Dir. of Dept. of Rev., 41 Colo. App. 561, 592 P.2d 418 (1978); Peshel v. Motor Vehicle Div., 43 Colo. App. 58, 602 P.2d 875 (1979); Cagle v. Charnes, 43 Colo. App. 401, 604 P.2d 697 (1979); Walker v. District Court, 199 Colo. 128, 606 P.2d 70 (1980); People v. Roybal, 617 P.2d 800 (Colo. 1980); People v. Torres, 625 P.2d 1034 (Colo. 1981); People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Dooley, 630 P.2d 608 (Colo. 1981); State v. Laughlin, 634 P.2d 49 (Colo. 1981); Schmidt v. Colo. Dept. of Rev., 656 P.2d 710 (Colo. App. 1982); People v. Clements, 665 P.2d 624 (Colo. 1983); People v. Lesh, 668 P.2d 1362 (Colo. 1983).