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ARVADA, Colo. -- An admitted drunk driver, whose DUI history dates back to 1997, won’t spend a full day in jail for his fifth conviction despite Colorado’s new felony DUI Law.

Albert Torres, 45, has been arrested seven times for DUI and convicted in five of those cases. Torres pleaded guilty Monday to his fifth DUI conviction before Chief Judge Phillip McNulty at the Jefferson County Courthouse.

McNulty sentenced Torres to one year of work release and three years probation, which is more than prosecutors were seeking. A deputy prosecutor struck a plea deal with Torres that only called for probation, a deal that outraged Torres' ex-girlfriend.

“Seven DUIs -- you should not be out in the public, you should not be driving and I believe there should be some stricter punishment for somebody in his shoes,” said Diana, who asked not to reveal her last name.

She has since married and said she doesn’t want Torres to contact her.

Torres’ last DUI arrest came on Nov. 1 when an Arvada police offer stopped Torres at West 64th Avenue and Sheridan Boulevard after Torres nearly T-boned the officer in the intersection after running a red light. In the police report, the officer said Torres’ car "entered the intersection on a steady red light.”

Torres is listed as a habitual traffic offender and was driving on a revoked license at time of his arrest. He refused a breath and blood test but failed roadside sobriety maneuvers. He also gave police a fake address, according to investigators.

Nonetheless, Deputy District Attorney Sarah Domke for the First Judicial District recommended probation for Torres.

In a letter to Torres’ ex-girlfriend, Domke said, "there was no accident in this case” and “the defendant has no prior felony convictions.”

Last year, Colorado legislators passed a felony DUI law that made a fourth DUI conviction a felony. Felony DUI carries a punishment ranging from probation to six years in prison.

The FOX31 Denver Problem Solvers asked Jefferson County District Attorney Pete Weir if Torres would have to hurt or kill someone to get jail time.

“I sure hope not,” Weir said.

Weir admits the prosecutor could have asked for jail time in the case but chose not to.

"Well this is an instance where frankly I disagree with my deputy," Weir said. "I think these are the type of cases where at a minimum (he deserves) jail time.”

Weir said he can’t change the plea deal after the fact but, based on the inquiry, he reviewed every felony DUI sentence attached to his office since the law went to effect nearly a year ago.

So far, 25 people have been sentenced for felony DUI in Jefferson or Gilpin counties, which encompass the First Judicial District. Weir said 11 offenders received jail or prison time, 14 got probation, sometimes combined with work release.

If Torres had been sentenced to his fifth misdemeanor conviction instead of his first felony, he would have faced an automatic 60 days to one year in county jail, Weir said.

But under Colorado’s old DUI law, the most an offender faced was a year in jail, regardless of whether it was the third DUI or the 20th.

By making DUI a felony on the fourth offense, state lawmakers say the punishment range is longer -- two to six years -- but also gave prosecutors and judges the discretion to sentence offenders to just probation.

“We did want to allow for mitigating circumstances if they exist,” said State Sen. Mike Johnston, D-Denver.

Johnston said while the felony DUI measure doesn’t mandate jail time, his assumption was in a case like Torres' that prosecutors would certainly seek it.

“We think someone who had this five, six or seven times ought to face jail. That was the feedback we heard when we passed felony DUI," Johnston said.

When asked if Colorado should mandate jail time for felony DUI, Weir said, “I do.”

Torres’ ex-wife feels the same way.

“Why change your behavior? I mean if it’s working for you. If driving drunk is working for you and you’re not going to go to jail … it’s not really a deterrent," Diana said.

McNulty apparently agreed and took the rare step of imposing a harsher sentence than prosecutors recommended, telling Torres, “It's not my responsibility to keep you out of jail. It's your responsibility to make sure you don't put yourself in the position where you could go to jail.”

Under his one-year sentence of work release, Torres will still be able to work during the day but will have to check into a secure residential facility at nights. His sentence begins Friday.

Weir insists the Torres case is the only one he could find in his office where prosecutors agreed not to seek jail time before sentencing.

“It’s not the message I want to send. It’s an anomaly as far as this office. We take drinking and driving extraordinary seriously," Weir said.

Mothers Against Drunk Driving said it will ask Colorado lawmakers to revisit the felony DUI bill to add mandatory jail time at sentencing.

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