Colorado Revised Statute pertaining to Ignition Interlock Devices
CRS 42-2-132.5 Mandatory and Voluntary restricted Licenses following DUI conviction –rules
(1) The following persons shall be required to hold a restricted license pursuant to this section for at least one year prior to being eligible to obtain any other driver's license issued under this article:
(a) Any person who has been convicted on two or more occasions of DUI or DUI per se, which offenses were committed within a period of five years and one of the offenses occurred on or after July 1, 1999, and on or before June 30, 2000;
(b) Any person whose privilege to drive was revoked pursuant to section 42-2-125 (1) (g) (I) or (1) (i) and one of the offenses giving rise to the revocation occurred on or after July 1, 2000;
(b.5) Any person whose license has been revoked pursuant to the provisions of section 42-2-126 when the person's BAC was 0.17 or more at the time of driving or within two hours after driving;
(c) Any person whose privilege to drive was revoked under section 42-2-203 where the revocation was due in part to a DUI, DUI per se, DWAI, or habitual user conviction and one of the offenses giving rise to the revocation occurred on or after July 1, 2000; or
(d) Any person whose privilege to drive was revoked pursuant to subsection (5) of this section.
(1.5) (a) (I) A person whose privilege to drive has been revoked for more than one year because of a DUI, DUI per se, or DWAI conviction or has been revoked for more than one year under any provision of section 42-2-126 may voluntarily apply for an early reinstatement with a restricted license under the provisions of this section after the person's privilege to drive has been revoked for one year. Except as provided in subparagraph (II) of this paragraph (a) or subsection (1.7) of this section, the restrictions imposed pursuant to this section shall remain in effect for the longer of one year or the total time period remaining on the license restraint prior to early reinstatement.
(II) (A) For revocations under section 42-2-125 (1) (b.5) or 42-2-126 (3) (a) (I) for a first violation that requires only a nine-month revocation, a person twenty-one years of age or older at the time of the offense may voluntarily apply for an early reinstatement with a restricted license under the provisions of this section after the person's privilege to drive has been revoked for at least one month. Except as provided in paragraph (b.5) of subsection (1) of this section, subsection (1.7) of this section, and sub-subparagraph (B) of this subparagraph (II), the restrictions imposed pursuant to this subparagraph (II) shall remain in effect for eight months.
(B) For a person with a restricted license issued pursuant to sub-subparagraph (A) of this subparagraph (II), if the department's monthly monitoring reports required by paragraph (c) of subsection (4) of this section show that, for four consecutive monthly reporting periods, the approved ignition interlock device did not prevent the operation of the motor vehicle due to an excessive blood alcohol content or did not detect that there has been tampering with the device, there have been no other reports of circumvention or tampering, and there are no grounds to extend the restriction pursuant to paragraph (a) of subsection (5) of this section, then the person shall be eligible for a license without the restriction required by this section. If the department determines that a person is eligible for a license without the restriction required by this section pursuant to this sub-subparagraph (B), the department shall serve upon the person a notice of such eligibility. A person eligible for a license without the restriction required by this section pursuant to this sub-subparagraph (B) may request a hearing on the person's eligibility. The provisions of this sub-subparagraph (B) shall not apply to a person covered by subsection (1.7) of this section.
(C) The department shall establish a program to assist persons who apply for a restricted license under this subparagraph (II) who are unable to pay the full cost of an ignition interlock device. The program shall be funded from the first time drunk driving offender account in the highway users tax fund established pursuant to section 42-2-132 (4) (b) (II). The executive director of the department may promulgate rules governing the program.
(b) (I) To be eligible for early reinstatement with a restricted license pursuant to this subsection (1.5), a person must have satisfied all conditions for reinstatement imposed by law including time periods for non-alcohol-related restraints; except that a person whose license was restrained pursuant to section 42-2-138 may be eligible for early reinstatement under this section so long as the restraint was caused in part by driving activity occurring after an alcohol-related offense and the length of any license restriction under this section includes the period of restraint under section 42-2-138.
(II) Before being eligible for early reinstatement with a restricted license under this section, a person must provide proof of financial responsibility to the department pursuant to the requirements of the "Motor Vehicle Financial Responsibility Act", article 7 of this title. Such person must maintain such proof of financial responsibility with the department for the longer of three years or the period that the person's license is restricted under this section.
(c) No person who has been designated an habitual offender under the provisions of section 42-2-202 for any offense other than a violation of section 42-4-1301, 42-2-138, or 42-4-1401 shall be eligible for a restricted license pursuant to this subsection (1.5).
(d) Repealed.
(1.7) A person required to hold a restricted license pursuant to this section who is a persistent drunk driver as defined in section 42-1-102 (68.5), based on an offense that occurred on or after July 1, 2004, shall be required to hold the restricted license for at least two years prior to being eligible to obtain any other driver's license issued under this article.
(1.8) As soon as a person meets the conditions of subsection (1) of this section, the department shall note on the driving record of any person required to hold a restricted license under this section that the person is required to have an ignition interlock device. A person whose driving record contains the notation required by this subsection (1.8) shall not operate a motor vehicle without an approved ignition interlock device until the restriction is removed pursuant to this section.
(2) (Deleted by amendment, L. 2000, p. 1076, § 4, effective July 1, 2000.)
(3) (a) (I) The department shall issue a restricted license under this section if the department receives from a person described in subsection (1), (1.5), or (1.7) of this section an affidavit stating that the person has obtained:
(A) A signed lease agreement for the installation and use of an approved ignition interlock device in each motor vehicle on which the person's name appears on the registration and any other vehicle that the person may drive during the period of the restricted license; and
(B) The written consent of all other owners, if any, of each motor vehicle in which the approved ignition interlock device is installed.
(II) A copy of each signed lease agreement shall be attached to the affidavit.
(a.5) (I) Notwithstanding the requirements of paragraph (a) of this subsection (3), the department shall issue a restricted license to any person who is required to hold a restricted license pursuant to subsection (1) of this section who is not the registered owner or co-owner of a motor vehicle if the person submits an affidavit stating that the person is not the owner or co-owner of any motor vehicle and has no access to a motor vehicle in which to install an approved ignition interlock device.
(II) Any restricted license issued pursuant to this paragraph (a.5) shall require that if the license holder becomes an owner or co-owner of a motor vehicle or otherwise has access to a motor vehicle in which an approved ignition interlock device may be installed, he or she shall submit to the department a signed lease agreement for the installation and use of an approved ignition interlock device on such vehicle for a period equal to the remaining period of the restricted license.
(b) The terms of the restricted license shall include that the person shall not drive a motor vehicle other than a vehicle in which an approved ignition interlock device is installed.
(c) The department shall not issue a license under this section that would authorize operation of a commercial motor vehicle as defined in section 42-2-402 (4) until the restriction created by this section has expired.
(4) (a) and (b) Repealed.
(c) The leasing agency for any approved ignition interlock device shall provide monthly monitoring reports for the device to the department to monitor compliance with the provisions of this section. The leasing agency shall check the device at least once every sixty days to ensure that the device is operating and that there has been no tampering with the device. If the leasing agency detects that there has been tampering with the device, the leasing agency shall notify the department of that fact within five days of the detection.
(5) (a) Upon receipt of a conviction under section 42-2-116 (6) (b), the department shall revoke any license of such person issued under this section and shall not reinstate the license for a period of the longer of one year or the remaining period of license restraint imposed prior to the issuance of a license pursuant to this section. A person shall be entitled to a hearing on the question of whether the revocation is sustained and the length of the ineligibility.
(b) Upon receipt of a record other than a conviction described in paragraph (a) of this subsection (5) indicating that any person who is subject to the restrictions of this section has operated a motor vehicle other than a vehicle in which an approved ignition interlock device is installed or has circumvented or attempted to circumvent the proper use of an approved ignition interlock device, the department may revoke any license of such person issued under this section and not reinstate the license for a period of one year or the remaining period of license restraint imposed prior to the issuance of a license pursuant to this section, whichever is longer. A person shall be entitled to a hearing on the question of whether the license should be revoked and the length of the ineligibility.
(c) If a lease for an approved ignition interlock device is terminated for any reason prior to the expiration of the period of the restriction and no other such lease has been provided by the licensee, the department shall notify the licensee that the license shall be suspended unless and until a new signed lease agreement for the remaining period of the restriction is filed with the department.
(d) If the monthly monitoring reports required by paragraph (c) of subsection (4) of this section show that the approved ignition interlock device prevented the operation of the vehicle due to excessive blood alcohol content in three of any twelve consecutive reporting periods, the restriction on the person's license shall be extended for an additional twelve months after the expiration of the existing restriction. The department shall notify the person that the ignition interlock restriction provision is being extended and that any license shall be suspended unless the person provides a new signed lease agreement for the use of an approved ignition interlock device for the extended period. The person shall be entitled to a hearing on the extension of the restriction. Based upon findings at the hearing, including aggravating and mitigating factors, the hearing office may sustain the extension, rescind the extension, or reduce the period of extension.
(6) The department may promulgate rules to implement the provisions of this section.
(7) (a) For the purposes of this section, "approved ignition interlock device" means a device approved by the department of public health and environment that is installed in a motor vehicle and that measures the breath alcohol content of the driver before a vehicle is started and that periodically requires additional breath samples during vehicle operation. The device may not allow a motor vehicle to be started or to continue normal operation if the device measures an alcohol level above the level established by the department of public health and environment.
(b) The state board of health may promulgate rules to implement the provisions of this subsection (7) concerning approved ignition interlock devices.
Source: L. 99: Entire section added, p. 1160, § 4, effective July 1. L. 2000: (1) and (2) amended, (3)(a.5) added, and (4)(a) and (4)(b) repealed, pp. 1076, 1077, §§ 4, 5, 6, effective July 1; (1.5), (6), and (7) added and (3), (4)(c), and (5) amended, p. 1079, § 10, effective January 1, 2001. L. 2002: (1)(a) amended, p. 1918, § 7, effective July 1. L. 2004: (5)(b) amended, p. 170, § 1, effective March 23; (1.7) added and (3)(a) amended, p. 1130, § 1, effective July 1. L. 2006: (1)(b.5) and (1.8) added, p. 1368, §§ 6, 7, effective January 1, 2007. L. 2008: (1)(a), (1)(b.5), (1)(c), and (1.5)(a) amended, p. 249, § 12, effective July 1; (1.5)(a) and (3)(a) amended, p. 835, § 6, effective January 1, 2009.
Editor's note: (1) Subsection (1.5)(d)(II) provided for the repeal of subsection (1)(d) effective July 1, 2002. (See L. 2000, p. 1079.)
(2) Amendments to subsection (1.5)(a) by House Bill 08-1166 and House Bill 08-1194 were harmonized, effective January 1, 2009.
Cross references: For the legislative declaration contained in the 2008 act amending subsections (1.5)(a) and (3)(a), see section 1 of chapter 221, Session Laws of Colorado 2008.
Sunday, January 31, 2010
Saturday, January 30, 2010
Level I and Level II alcohol treatment
Alcohol Treatment and Therapy
If you are convicted of an alcohol related driving offense in Colorado you can count on having to complete some form of alcohol treatment and possibly some alcohol therapy. The courts can order you to complete a treatment program as part of your sentence. The Colorado department of motor vehicles can also require you to complete alcohol treatment in order to reinstate your driver’s license.
The Department of Behavioral Health of the Colorado Department of Health has defined the treatment standards for alcohol treatment and therapy. Alcohol treatment is categorized by levels and tracks. Your BAC and other factors will play a part in what alcohol treatment is necessary in your case. Courts may rely on a completed alcohol evaluation before determining what treatment is appropriate for you.
The Department of Behavioral Health of the Colorado Department of Health oversees the licensing of treatment providers. They require licensed treatment providers to follow an approved DUI specific curriculum. Level I and Level II services must be completed by a licensed treatment provider.
Level I is the first level of alcohol treatment. Level I is often completed by people who are charged with minor in possession of alcohol or of an under 21 drinking and driving with a BAC of at least 0.02 but less than 0.05. Level I alcohol education consists of 12 hours of DUI education and usually takes place over a 2 day period. Level 1 alcohol education usually takes place in a group class setting.
Level II alcohol education or therapy is the most common category of treatment seen in Colorado DUI and DWAI cases. Level II alcohol education and therapy is also a common reinstatement requirement of the Colorado department of motor vehicles. Level II education consists of 24 hours of DUI education and takes place over the course of 12 weeks. Level II education is usually provided in a group class setting.
In addition to Level II education sometimes a person convicted of an alcohol related driving offense will be required to complete Level II therapy. If Level II therapy is required then it will be completed after the completion of Level II education. Level II therapy treatment can take place over a 5 to 10 month time frame depending on the track you are assigned to complete. The track you are assigned to will be determined by an alcohol evaluator or the treatment provider. Factors used in considering what track to assign a person to complete include: prior alcohol related offenses, the BAC and other clinical factors.
The track guidelines are:
Track A, 42 hours over 21 weeks, first time offender with a BAC below 0.17 (0.2 if the offense happened before 1/1/07)
Track B, 52 hours over 26 weeks, first time offender with a BAC of 0.17 or higher (0.2 if the offense happened before 1/1/07)
Track C, 68 hours over 34 weeks, prior DUI/DWAI, with a BAC below 0.17 (0.2 if the offense happened before 1/1/07)
Track D, 86 hours over 43 weeks, prior DUI/DWAI, with a BAC above 0.17 (0.2 if the offense happened before 1/1/07)
If you are convicted of an alcohol related driving offense in Colorado you can count on having to complete some form of alcohol treatment and possibly some alcohol therapy. The courts can order you to complete a treatment program as part of your sentence. The Colorado department of motor vehicles can also require you to complete alcohol treatment in order to reinstate your driver’s license.
The Department of Behavioral Health of the Colorado Department of Health has defined the treatment standards for alcohol treatment and therapy. Alcohol treatment is categorized by levels and tracks. Your BAC and other factors will play a part in what alcohol treatment is necessary in your case. Courts may rely on a completed alcohol evaluation before determining what treatment is appropriate for you.
The Department of Behavioral Health of the Colorado Department of Health oversees the licensing of treatment providers. They require licensed treatment providers to follow an approved DUI specific curriculum. Level I and Level II services must be completed by a licensed treatment provider.
Level I is the first level of alcohol treatment. Level I is often completed by people who are charged with minor in possession of alcohol or of an under 21 drinking and driving with a BAC of at least 0.02 but less than 0.05. Level I alcohol education consists of 12 hours of DUI education and usually takes place over a 2 day period. Level 1 alcohol education usually takes place in a group class setting.
Level II alcohol education or therapy is the most common category of treatment seen in Colorado DUI and DWAI cases. Level II alcohol education and therapy is also a common reinstatement requirement of the Colorado department of motor vehicles. Level II education consists of 24 hours of DUI education and takes place over the course of 12 weeks. Level II education is usually provided in a group class setting.
In addition to Level II education sometimes a person convicted of an alcohol related driving offense will be required to complete Level II therapy. If Level II therapy is required then it will be completed after the completion of Level II education. Level II therapy treatment can take place over a 5 to 10 month time frame depending on the track you are assigned to complete. The track you are assigned to will be determined by an alcohol evaluator or the treatment provider. Factors used in considering what track to assign a person to complete include: prior alcohol related offenses, the BAC and other clinical factors.
The track guidelines are:
Track A, 42 hours over 21 weeks, first time offender with a BAC below 0.17 (0.2 if the offense happened before 1/1/07)
Track B, 52 hours over 26 weeks, first time offender with a BAC of 0.17 or higher (0.2 if the offense happened before 1/1/07)
Track C, 68 hours over 34 weeks, prior DUI/DWAI, with a BAC below 0.17 (0.2 if the offense happened before 1/1/07)
Track D, 86 hours over 43 weeks, prior DUI/DWAI, with a BAC above 0.17 (0.2 if the offense happened before 1/1/07)
Friday, January 29, 2010
Colorado Ignition Interlock Restricted Licenses for DUI offenders
Colorado Ignition Interlock Restricted Licenses for DUI offenders
What is an Ignition Interlock Device?
An interlock device is a portable breath testing machine that is attached to the ignition system of a car. The interlock device will prevent the car from starting if the person taking the breath test has been consuming alcohol. The interlock device also requires the driver to submit to random breathe tests while driving the car. If one of the random tests detects alcohol then the car will stop running. The interlock device records all test results and problems to the interlock service provider. Colorado requires the driver to pay the costs associated with the ignition interlock device.
Approved Interlock Service Providers for Colorado
The State of Colorado has contracts with four interlock device providers at this time. The contact information for these interlock device providers are as follows:
Smart Start, Inc
1-800-880-3394
Westminister, CO 80030
National Interlock Services, Ltd
1-800-475-5490
Aurora, CO 80011
Guardian Interlock Systems
1-800-499-0994
Denver, CO 80022
Draeger Safety Diagnostics, Inc.
1-800-332-6858
Denver, CO 80216
What is an Ignition Interlock Device?
An interlock device is a portable breath testing machine that is attached to the ignition system of a car. The interlock device will prevent the car from starting if the person taking the breath test has been consuming alcohol. The interlock device also requires the driver to submit to random breathe tests while driving the car. If one of the random tests detects alcohol then the car will stop running. The interlock device records all test results and problems to the interlock service provider. Colorado requires the driver to pay the costs associated with the ignition interlock device.
Approved Interlock Service Providers for Colorado
The State of Colorado has contracts with four interlock device providers at this time. The contact information for these interlock device providers are as follows:
Smart Start, Inc
1-800-880-3394
Westminister, CO 80030
National Interlock Services, Ltd
1-800-475-5490
Aurora, CO 80011
Guardian Interlock Systems
1-800-499-0994
Denver, CO 80022
Draeger Safety Diagnostics, Inc.
1-800-332-6858
Denver, CO 80216
Thursday, January 28, 2010
Drinking and Driving while under 21 years old sometimes referred to as a "baby dui"
Underage driving with a BAC of at least 0.02 but not more than 0.05.
Minors who are caught driving under the influence in Colorado are sometimes prosecuted under a separate statute. The decision of what the minor is charged with depends a lot on the blood or breath alcohol content of the driver. If the bac is over a 0.05 the minor will be prosecuted under the normal DUI statute and face the same consequences as an adult driver who is caught driving under the influence. Some minors who are caught driving under the influence have less than 0.05 but still face charges because they should not be consuming alcohol underage. If the driver is under 21 years old but has a bac of at least 0.02 but not more than 0.05 then they will face what is sometimes called a baby DUI. The consequences of a baby DUI are different but still carry potential criminal and administrative penalties.
(a.5) (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, in addition to any penalty imposed under a class A traffic infraction, order 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 (a.5) shall be a class 2 traffic misdemeanor.
Minors who are caught driving under the influence in Colorado are sometimes prosecuted under a separate statute. The decision of what the minor is charged with depends a lot on the blood or breath alcohol content of the driver. If the bac is over a 0.05 the minor will be prosecuted under the normal DUI statute and face the same consequences as an adult driver who is caught driving under the influence. Some minors who are caught driving under the influence have less than 0.05 but still face charges because they should not be consuming alcohol underage. If the driver is under 21 years old but has a bac of at least 0.02 but not more than 0.05 then they will face what is sometimes called a baby DUI. The consequences of a baby DUI are different but still carry potential criminal and administrative penalties.
(a.5) (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, in addition to any penalty imposed under a class A traffic infraction, order 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 (a.5) shall be a class 2 traffic misdemeanor.
Wednesday, January 27, 2010
Possible DUI and DWAI Penalities in Colorado
Possible Colorado DUI and DWAI Penalties
Criminal Penalties
| Offense | Jail | Fine | Community Service |
| 1st DWAI | 2 days-180 days | $200-$500 | 24 hours-48 hours |
| 2nd DWAI | 45 days-1 year | $600-$1000 | 48 hours-96 hours |
| DWAI with a previous DUI | 60 days-1 year | $800-$1200 | 52 hours-104 hours |
| 1st DUI | 5 days-1 year | $600-$1000 | 48 hours-96 hours |
| 2nd DUI | 90 days-1 year | $1000-$1500 | 60 hours-120 hours |
| DUI with previous DWAI | 70 days-1 year | $900-$1500 | 56 hours-112 hours |
| 1st Drinking and Driving while under 21 years old with BAC of at least 0.02 but less than 0.05 | None | $100 | Up to 24 hours |
Administrative/Department of Motor Vehicles penalties
| Violation | License Suspension | Points |
| BAC test of at least 0.08 | 9 months | |
| 2nd BAC test of at least 0.08 | 1 year | |
| 3rd or subsequent BAC test of at least 0.08 | 2 years | |
| DWAI | None | 8 points |
| 1st DUI | 9 months | 12 points |
| 2nd DUI or DWAI | 12 months | DWAI 8 points DUI 12 points |
| 3rd DUI or DWAI | 24 months | DWAI 8 points DUI 12 points |
| 1st under 21 years old drinking and driving with BAC of at least 0.02 but less than 0.05 | 1st offense- 3 months 2nd offense- 6 months 3rd or subsequent offense- 1 year | 4 points |
Tuesday, January 26, 2010
Introduction to DUI or DWAI in Colorado
Introduction to DUI in Colorado
If you are currently charged with DUI or DWAI in Colorado then you are not alone. The Denver Post reports that each year around 31,000 people are charged in the state of Colorado with DUI or DWAI. 10,000 of those arrested for DUI or DWAI are being arrested for at least their second DUI or DWAI. The Colorado Department of Transportation estimates that getting a dui in Colorado will cost you over $10,000.
In the state of Colorado there are two main drunk driving charges. A driver can be charged with DUI which stands for driving under the influence or DWAI which stands for driving while ability is impaired. Both of these charges are taken seriously by the courts and come with serious consequences.
If you are charged with either of these offenses the information on the information on this blog might be helpful. It is probably a good idea to contact a licensed attorney as well.
http://www.denverpost.com/ci_12229173
If you are currently charged with DUI or DWAI in Colorado then you are not alone. The Denver Post reports that each year around 31,000 people are charged in the state of Colorado with DUI or DWAI. 10,000 of those arrested for DUI or DWAI are being arrested for at least their second DUI or DWAI. The Colorado Department of Transportation estimates that getting a dui in Colorado will cost you over $10,000.
In the state of Colorado there are two main drunk driving charges. A driver can be charged with DUI which stands for driving under the influence or DWAI which stands for driving while ability is impaired. Both of these charges are taken seriously by the courts and come with serious consequences.
If you are charged with either of these offenses the information on the information on this blog might be helpful. It is probably a good idea to contact a licensed attorney as well.
http://www.denverpost.com/ci_12229173
Monday, January 25, 2010
Introduction to Colorado DUI Resources
Colorado DUI Help
If you are facing Drunk driving charges in Colorado you might have many questions running through your head. Many people who are facing DUI charges in Colorado and throughout the country look online for basic information on the situation they find themselves in. The internet is full of DUI information that is helpful but that information is usually spread out and not always easy to locate. This blog will try to provide you information that might answer some of your questions and provide helpful resources regarding DUI and DWAI charges in the state of Colorado. This is an informational blog and is in no way legal advice. If you are facing an alcohol related driving charge, it is in your best interest to contact a licensed Colorado attorney who specializes in DUI and DWAI defense.
If you are facing Drunk driving charges in Colorado you might have many questions running through your head. Many people who are facing DUI charges in Colorado and throughout the country look online for basic information on the situation they find themselves in. The internet is full of DUI information that is helpful but that information is usually spread out and not always easy to locate. This blog will try to provide you information that might answer some of your questions and provide helpful resources regarding DUI and DWAI charges in the state of Colorado. This is an informational blog and is in no way legal advice. If you are facing an alcohol related driving charge, it is in your best interest to contact a licensed Colorado attorney who specializes in DUI and DWAI defense.
Sunday, January 24, 2010
Colorado Revised Statute Regarding DUI--Colorado DUI Law
42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties.
(1) (a) It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to drive a motor vehicle or vehicle.
(b) It is a misdemeanor for any person who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive a motor vehicle or vehicle.
(c) It is a misdemeanor for any person who is an habitual user of any controlled substance defined in section 12-22-303 (7), C.R.S., to drive a motor vehicle, vehicle, or low-power scooter in this state.
(d) For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, and the inhalation of any other toxic vapor or vapors.
(e) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state, including, but not limited to, the medical use of marijuana pursuant to section 18-18-406.3, C.R.S., shall not constitute a defense against any charge of violating this subsection (1).
(f) "Driving under the influence" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
(g) "Driving while ability impaired" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
(h) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI, it shall be sufficient to describe the offense charged as "drove a vehicle under the influence of alcohol or drugs or both".
(i) Pursuant to section 16-2-106, C.R.S., in charging the offense of DWAI, it shall be sufficient to describe the offense charged as "drove a vehicle while impaired by alcohol or drugs or both".
(2) (a) It is a misdemeanor for any person to drive a motor vehicle or vehicle when the person's BAC is 0.08 or more at the time of driving or within two hours after driving. During a trial, if the state's evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.
(a.5) (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, in addition to any penalty imposed under a class A traffic infraction, order 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 (a.5) shall be a class 2 traffic misdemeanor.
(b) In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what the tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person's blood or breath.
(c) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI per se, it shall be sufficient to describe the offense charged as "drove a vehicle with excessive alcohol content".
(3) The offenses described in subsections (1) and (2) of this section are strict liability offenses.
(4) No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI, DUI per se, or habitual user; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.
(5) Notwithstanding the provisions of section 18-1-408, C.R.S., during a trial of any person accused of both DUI and DUI per se, the court shall not require the prosecution to elect between the two violations. The court or a jury may consider and convict the person of either DUI or DWAI, or DUI per se, or both DUI and DUI per se, or both DWAI and DUI per se. If the person is convicted of more than one violation, the sentences imposed shall run concurrently.
(6) (a) In any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.
(II) If at such time the defendant's BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.
(III) If at such time the defendant's BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.
(c) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person's alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person's blood, breath, saliva, or urine to determine such person's alcohol or drug level. The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a second sample of a person's blood, saliva, or urine or the collection and preservation of a delayed breath alcohol specimen is not required. This paragraph (c) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this paragraph (c) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.
(d) If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.
(e) Involuntary blood test - admissibility. Evidence acquired through an involuntary blood test pursuant to section 42-4-1301.1 (3) shall be admissible in any prosecution for DUI, DUI per se, DWAI, habitual user, or UDD, and in any prosecution for criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S.
(f) Chemical test - admissibility. Strict compliance with the rules and regulations prescribed by the department of public health and environment shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results.
(g) It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.
(h) In any trial for a violation of this section, the testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who the law enforcement officer reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained.
(i) (I) Following the lawful contact with a person who has been driving a motor vehicle or vehicle and when a law enforcement officer reasonably suspects that a person was driving a motor vehicle or vehicle while under the influence of or while impaired by alcohol, the law enforcement officer may conduct a preliminary screening test using a device approved by the executive director of the department of public health and environment after first advising the driver that the driver may either refuse or agree to provide a sample of the driver's breath for such preliminary test; except that, if the driver is under twenty-one years of age, the law enforcement officer may, after providing such advisement to the person, conduct such preliminary screening test if the officer reasonably suspects that the person has consumed any alcohol.
(II) The results of this preliminary screening test may be used by a law enforcement officer in determining whether probable cause exists to believe such person was driving a motor vehicle or vehicle in violation of this section and whether to administer a test pursuant to section 42-4-1301.1 (2).
(III) Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver's attorney on request.
(7) Penalties. (a) (I) Except as otherwise provided in subparagraphs (II) and (IV) of this paragraph (a), every person who is convicted of DUI, DUI per se, or habitual user shall be punished by:
(A) Imprisonment in the county jail for not less than five days nor more than one year, the minimum period of which shall be mandatory except as otherwise provided in section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than six hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(II) Upon conviction of a violation described in sub-subparagraph (A) or (B) of subparagraph
(III) of this paragraph (a), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than ninety days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to eighty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than one thousand dollars nor more than one thousand five hundred dollars; and
(C) Not less than sixty hours nor more than one hundred twenty hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(III) Subparagraph (II) of this paragraph (a) shall apply to:
(A) A conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction, for DUI, DUI per se, or habitual user, or for vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person's driver's license was under restraint pursuant to section 42-2-138 (4) (b); or
(B) A conviction for DUI, DWAI, or DUI per se when the person's BAC was 0.20 or more at the time of driving or within two hours after driving.
(IV) Upon a conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction for DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than seventy days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to sixty-three days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than nine hundred dollars nor more than one thousand five hundred dollars; and
(C) Not less than fifty-six hours nor more than one hundred twelve hours of useful public service, the performance of the minimum period of service which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(b) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (b), every person who is convicted of DWAI shall be punished by:
(A) Imprisonment in the county jail for not less than two days nor more than one hundred eighty days, the minimum period of which shall be mandatory except as provided in section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than two hundred dollars nor more than five hundred dollars; and
(C) Not less than twenty-four hours nor more than forty-eight hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(II) Upon conviction of a second or subsequent offense of DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than forty-five days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to forty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than six hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(III) Upon conviction for DWAI, which violation occurred at any time after the date of a previous violation, for which there has been a conviction for DUI, DUI per se, habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person's driver's license was under restraint as described in section 42-2-138 (4) (b), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than sixty days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to fifty-four days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than eight hundred dollars nor more than one thousand two hundred dollars; and
(C) Not less than fifty-two hours nor more than one hundred four hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(IV) (Deleted by amendment, L. 2002, p. 1898, § 2, effective July 1, 2002.)
(c) (I) For the purposes of paragraphs (a) and (b) of this subsection (7), a person shall be deemed to have a previous conviction for DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., if such person has been convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an act that, if committed within this state, would constitute the offense of DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S.
(II) For sentencing purposes concerning convictions for second and subsequent offenses, prima facie proof of a defendant's previous convictions shall be established when the prosecuting attorney and the defendant stipulate to the existence of the prior conviction or convictions or the prosecuting attorney presents to the court a copy of the driving record of the defendant provided by the department of revenue of this state, or provided by a similar agency in another state, that contains a reference to such previous conviction or convictions or presents an authenticated copy of the record of the previous conviction or judgment from any court of record of this state or from a court of any other state, the United States, or any territory subject to the jurisdiction of the United States. The court shall not proceed to immediate sentencing when there is not a stipulation to prior convictions or if the prosecution requests an opportunity to obtain a driving record or a copy of a court record. The prosecuting attorney shall not be required to plead or prove any previous convictions at trial, and sentencing concerning convictions for second and subsequent offenses shall be a matter to be determined by the court at sentencing.
(III) As used in this part 13, "convicted" includes a plea of no contest accepted by the court.
(d) In addition to the penalties prescribed in this subsection (7):
(I) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to the costs imposed by section 24-4.1-119 (1) (c), C.R.S., relating to the crime victim compensation fund.
(II) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to an additional penalty surcharge of not less than fifty dollars and not more than five hundred dollars for programs to address persistent drunk drivers. The minimum penalty surcharge shall be mandatory, and the court shall have no discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge for a defendant determined by the court to be indigent. Any moneys collected for such surcharge shall be transmitted to the state treasurer, who shall credit the same to the persistent drunk driver cash fund created by section 42-3-303.
(III) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to a surcharge of twenty dollars to be transmitted to the state treasurer who shall deposit said surcharges in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S.
(IV) (A) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to an additional penalty surcharge of not less than one dollar and not more than ten dollars for programs to address alcohol and substance abuse problems among persons in rural areas. The minimum penalty surcharge shall be mandatory, and the court shall have no discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge for a defendant determined by the court to be indigent. Any moneys collected for the surcharge shall be transmitted to the state treasurer, who shall credit the same to the rural alcohol and substance abuse cash fund created in section 25-1-217 (3), C.R.S.
(B) This subparagraph (IV) is repealed, effective July 1, 2016, unless the general assembly extends the repeal of the rural alcohol and substance abuse prevention and treatment program created in section 25-1-217, C.R.S.
Editor's note: Subparagraph (IV) is effective January 1, 2010.
(e) In addition to any other penalty provided by law, the court may sentence a defendant who is convicted pursuant to this section to a period of probation for purposes of treatment not to exceed two years; in addition, a court may also sentence a defendant who is twice or more convicted pursuant to this section to a period of probation not to exceed two additional years for the purpose of monitoring compliance with court orders. As a condition of probation, the defendant shall be required to make restitution in accordance with the provisions of section 18-1.3-205, C.R.S.
(f) In addition to any other penalty provided by law, the court may sentence a defendant to attend and pay for one appearance at a victim impact panel approved by the court, for which the fee assessed to the defendant shall not exceed twenty-five dollars.
(g) In addition to any fines, fees, or costs levied against a person convicted of DUI, DUI per se, DWAI, habitual user, and UDD, the judge shall assess each such person for the cost of the presentence or postsentence alcohol and drug evaluation and supervision services.
(h) In addition to any other penalties prescribed in this part 13, the court shall assess an amount, not to exceed one hundred twenty dollars, upon any person required to perform useful public service.
(8) A second or subsequent violation of this section committed by a person under eighteen years of age may be filed in juvenile court.
Source: L. 94: Entire title amended with relocations, p. 2376, § 1, effective January 1, 1995. L. 95: (9)(a) and (9)(b) amended, p. 956, § 17, effective May 25; (9)(e)(II) and (12) amended, p. 315, § 3, effective July 1; (10)(d) amended, p. 224, § 3, effective July 1. L. 97: (2)(a.5) added and (6) and (8) amended, p. 1467, §§ 12, 13, effective July 1. L. 98: (2)(a.5), (9)(a), and (9)(b)(III) amended, p. 174, § 6, effective April 6; (9)(b)(IV) added and (9)(g) amended, p. 1240, §§ 5, 6, effective July 1; (10)(a), (10)(b), (10)(c), (10)(d), and (10)(e) amended, p. 716, § 1, effective July 1. L. 99: (9)(a)(II), (9)(g), and (10)(c) amended, p. 1158, § 3, effective July 1. L. 2000: (2)(a.5) and (7)(a)(II) amended, p. 514, § 2, effective May 12; (9)(e)(II) amended, p. 1643, § 30, effective June 1; (9)(g)(III) amended, p. 1078, § 7, effective July 1. L. 2001: (1)(e) amended, p. 474, § 3, effective April 27; (9)(a), (9)(b), and (9)(f)(I) amended, p. 789, § 8, effective July 1. L. 2001, 2nd Ex. Sess.: (9)(a), (9)(b), and (9)(f)(I) amended, p. 2, § 3, effective September 25. L. 2002: Entire section amended with relocations, p. 1898, § 2, effective July 1; (7)(e) and (7)(f) amended, p. 1561, § 368, effective October 1; (7)(d)(III) added, p. 1609, § 4, effective January 1, 2004. L. 2003: (7)(h) amended, p. 2004, § 73, effective May 22. L. 2004: (6)(c) amended, p. 234, § 1, effective April 1; (2)(a), (4), (6)(a)(II), and (6)(a)(III) amended, p. 780, § 1, effective July 1; (2)(a.5) and (7)(e) amended and (8) added, p. 1130, § 2, effective July 1. L. 2005: (7)(d)(II) amended, p. 1177, § 17, effective August 8. L. 2006: (7)(d)(II) amended, p. 1369, § 9, effective January 1, 2007. L. 2008: (7)(a)(I)(B), (7)(a)(II)(B), (7)(a)(IV)(B), (7)(b)(I)(B), (7)(b)(II)(B), and (7)(b)(III)(B) amended, p. 2086, § 4, effective July 1. L. 2009: (7)(d)(III) amended, (SB 09-133), ch. 392, p. 2119, § 2, effective August 5; (1)(a), (1)(b), (1)(c), (1)(f), (1)(g), (2)(a), (2)(a.5)(I), (6)(a)(I), (6)(a)(II), (6)(b), (6)(i)(I), and (6)(i)(II) amended, (HB 09-1026), ch. 281, p. 1278, § 56, effective October 1; (7)(d)(IV) added, (HB 09-1119), ch. 397, p. 2146, § 3, effective January 1, 2010.
(1) (a) It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to drive a motor vehicle or vehicle.
(b) It is a misdemeanor for any person who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive a motor vehicle or vehicle.
(c) It is a misdemeanor for any person who is an habitual user of any controlled substance defined in section 12-22-303 (7), C.R.S., to drive a motor vehicle, vehicle, or low-power scooter in this state.
(d) For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, and the inhalation of any other toxic vapor or vapors.
(e) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state, including, but not limited to, the medical use of marijuana pursuant to section 18-18-406.3, C.R.S., shall not constitute a defense against any charge of violating this subsection (1).
(f) "Driving under the influence" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
(g) "Driving while ability impaired" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
(h) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI, it shall be sufficient to describe the offense charged as "drove a vehicle under the influence of alcohol or drugs or both".
(i) Pursuant to section 16-2-106, C.R.S., in charging the offense of DWAI, it shall be sufficient to describe the offense charged as "drove a vehicle while impaired by alcohol or drugs or both".
(2) (a) It is a misdemeanor for any person to drive a motor vehicle or vehicle when the person's BAC is 0.08 or more at the time of driving or within two hours after driving. During a trial, if the state's evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.
(a.5) (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, in addition to any penalty imposed under a class A traffic infraction, order 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 (a.5) shall be a class 2 traffic misdemeanor.
(b) In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what the tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person's blood or breath.
(c) Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI per se, it shall be sufficient to describe the offense charged as "drove a vehicle with excessive alcohol content".
(3) The offenses described in subsections (1) and (2) of this section are strict liability offenses.
(4) No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI, DUI per se, or habitual user; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.
(5) Notwithstanding the provisions of section 18-1-408, C.R.S., during a trial of any person accused of both DUI and DUI per se, the court shall not require the prosecution to elect between the two violations. The court or a jury may consider and convict the person of either DUI or DWAI, or DUI per se, or both DUI and DUI per se, or both DWAI and DUI per se. If the person is convicted of more than one violation, the sentences imposed shall run concurrently.
(6) (a) In any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.
(II) If at such time the defendant's BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.
(III) If at such time the defendant's BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.
(c) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person's alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person's blood, breath, saliva, or urine to determine such person's alcohol or drug level. The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a second sample of a person's blood, saliva, or urine or the collection and preservation of a delayed breath alcohol specimen is not required. This paragraph (c) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this paragraph (c) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.
(d) If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.
(e) Involuntary blood test - admissibility. Evidence acquired through an involuntary blood test pursuant to section 42-4-1301.1 (3) shall be admissible in any prosecution for DUI, DUI per se, DWAI, habitual user, or UDD, and in any prosecution for criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S.
(f) Chemical test - admissibility. Strict compliance with the rules and regulations prescribed by the department of public health and environment shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results.
(g) It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.
(h) In any trial for a violation of this section, the testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who the law enforcement officer reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained.
(i) (I) Following the lawful contact with a person who has been driving a motor vehicle or vehicle and when a law enforcement officer reasonably suspects that a person was driving a motor vehicle or vehicle while under the influence of or while impaired by alcohol, the law enforcement officer may conduct a preliminary screening test using a device approved by the executive director of the department of public health and environment after first advising the driver that the driver may either refuse or agree to provide a sample of the driver's breath for such preliminary test; except that, if the driver is under twenty-one years of age, the law enforcement officer may, after providing such advisement to the person, conduct such preliminary screening test if the officer reasonably suspects that the person has consumed any alcohol.
(II) The results of this preliminary screening test may be used by a law enforcement officer in determining whether probable cause exists to believe such person was driving a motor vehicle or vehicle in violation of this section and whether to administer a test pursuant to section 42-4-1301.1 (2).
(III) Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver's attorney on request.
(7) Penalties. (a) (I) Except as otherwise provided in subparagraphs (II) and (IV) of this paragraph (a), every person who is convicted of DUI, DUI per se, or habitual user shall be punished by:
(A) Imprisonment in the county jail for not less than five days nor more than one year, the minimum period of which shall be mandatory except as otherwise provided in section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than six hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(II) Upon conviction of a violation described in sub-subparagraph (A) or (B) of subparagraph
(III) of this paragraph (a), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than ninety days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to eighty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than one thousand dollars nor more than one thousand five hundred dollars; and
(C) Not less than sixty hours nor more than one hundred twenty hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(III) Subparagraph (II) of this paragraph (a) shall apply to:
(A) A conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction, for DUI, DUI per se, or habitual user, or for vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person's driver's license was under restraint pursuant to section 42-2-138 (4) (b); or
(B) A conviction for DUI, DWAI, or DUI per se when the person's BAC was 0.20 or more at the time of driving or within two hours after driving.
(IV) Upon a conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction for DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than seventy days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to sixty-three days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than nine hundred dollars nor more than one thousand five hundred dollars; and
(C) Not less than fifty-six hours nor more than one hundred twelve hours of useful public service, the performance of the minimum period of service which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(b) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (b), every person who is convicted of DWAI shall be punished by:
(A) Imprisonment in the county jail for not less than two days nor more than one hundred eighty days, the minimum period of which shall be mandatory except as provided in section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than two hundred dollars nor more than five hundred dollars; and
(C) Not less than twenty-four hours nor more than forty-eight hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(II) Upon conviction of a second or subsequent offense of DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than forty-five days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to forty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than six hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(III) Upon conviction for DWAI, which violation occurred at any time after the date of a previous violation, for which there has been a conviction for DUI, DUI per se, habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person's driver's license was under restraint as described in section 42-2-138 (4) (b), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than sixty days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to fifty-four days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than eight hundred dollars nor more than one thousand two hundred dollars; and
(C) Not less than fifty-two hours nor more than one hundred four hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
(IV) (Deleted by amendment, L. 2002, p. 1898, § 2, effective July 1, 2002.)
(c) (I) For the purposes of paragraphs (a) and (b) of this subsection (7), a person shall be deemed to have a previous conviction for DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., if such person has been convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an act that, if committed within this state, would constitute the offense of DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S.
(II) For sentencing purposes concerning convictions for second and subsequent offenses, prima facie proof of a defendant's previous convictions shall be established when the prosecuting attorney and the defendant stipulate to the existence of the prior conviction or convictions or the prosecuting attorney presents to the court a copy of the driving record of the defendant provided by the department of revenue of this state, or provided by a similar agency in another state, that contains a reference to such previous conviction or convictions or presents an authenticated copy of the record of the previous conviction or judgment from any court of record of this state or from a court of any other state, the United States, or any territory subject to the jurisdiction of the United States. The court shall not proceed to immediate sentencing when there is not a stipulation to prior convictions or if the prosecution requests an opportunity to obtain a driving record or a copy of a court record. The prosecuting attorney shall not be required to plead or prove any previous convictions at trial, and sentencing concerning convictions for second and subsequent offenses shall be a matter to be determined by the court at sentencing.
(III) As used in this part 13, "convicted" includes a plea of no contest accepted by the court.
(d) In addition to the penalties prescribed in this subsection (7):
(I) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to the costs imposed by section 24-4.1-119 (1) (c), C.R.S., relating to the crime victim compensation fund.
(II) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to an additional penalty surcharge of not less than fifty dollars and not more than five hundred dollars for programs to address persistent drunk drivers. The minimum penalty surcharge shall be mandatory, and the court shall have no discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge for a defendant determined by the court to be indigent. Any moneys collected for such surcharge shall be transmitted to the state treasurer, who shall credit the same to the persistent drunk driver cash fund created by section 42-3-303.
(III) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to a surcharge of twenty dollars to be transmitted to the state treasurer who shall deposit said surcharges in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S.
(IV) (A) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to an additional penalty surcharge of not less than one dollar and not more than ten dollars for programs to address alcohol and substance abuse problems among persons in rural areas. The minimum penalty surcharge shall be mandatory, and the court shall have no discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge for a defendant determined by the court to be indigent. Any moneys collected for the surcharge shall be transmitted to the state treasurer, who shall credit the same to the rural alcohol and substance abuse cash fund created in section 25-1-217 (3), C.R.S.
(B) This subparagraph (IV) is repealed, effective July 1, 2016, unless the general assembly extends the repeal of the rural alcohol and substance abuse prevention and treatment program created in section 25-1-217, C.R.S.
Editor's note: Subparagraph (IV) is effective January 1, 2010.
(e) In addition to any other penalty provided by law, the court may sentence a defendant who is convicted pursuant to this section to a period of probation for purposes of treatment not to exceed two years; in addition, a court may also sentence a defendant who is twice or more convicted pursuant to this section to a period of probation not to exceed two additional years for the purpose of monitoring compliance with court orders. As a condition of probation, the defendant shall be required to make restitution in accordance with the provisions of section 18-1.3-205, C.R.S.
(f) In addition to any other penalty provided by law, the court may sentence a defendant to attend and pay for one appearance at a victim impact panel approved by the court, for which the fee assessed to the defendant shall not exceed twenty-five dollars.
(g) In addition to any fines, fees, or costs levied against a person convicted of DUI, DUI per se, DWAI, habitual user, and UDD, the judge shall assess each such person for the cost of the presentence or postsentence alcohol and drug evaluation and supervision services.
(h) In addition to any other penalties prescribed in this part 13, the court shall assess an amount, not to exceed one hundred twenty dollars, upon any person required to perform useful public service.
(8) A second or subsequent violation of this section committed by a person under eighteen years of age may be filed in juvenile court.
Source: L. 94: Entire title amended with relocations, p. 2376, § 1, effective January 1, 1995. L. 95: (9)(a) and (9)(b) amended, p. 956, § 17, effective May 25; (9)(e)(II) and (12) amended, p. 315, § 3, effective July 1; (10)(d) amended, p. 224, § 3, effective July 1. L. 97: (2)(a.5) added and (6) and (8) amended, p. 1467, §§ 12, 13, effective July 1. L. 98: (2)(a.5), (9)(a), and (9)(b)(III) amended, p. 174, § 6, effective April 6; (9)(b)(IV) added and (9)(g) amended, p. 1240, §§ 5, 6, effective July 1; (10)(a), (10)(b), (10)(c), (10)(d), and (10)(e) amended, p. 716, § 1, effective July 1. L. 99: (9)(a)(II), (9)(g), and (10)(c) amended, p. 1158, § 3, effective July 1. L. 2000: (2)(a.5) and (7)(a)(II) amended, p. 514, § 2, effective May 12; (9)(e)(II) amended, p. 1643, § 30, effective June 1; (9)(g)(III) amended, p. 1078, § 7, effective July 1. L. 2001: (1)(e) amended, p. 474, § 3, effective April 27; (9)(a), (9)(b), and (9)(f)(I) amended, p. 789, § 8, effective July 1. L. 2001, 2nd Ex. Sess.: (9)(a), (9)(b), and (9)(f)(I) amended, p. 2, § 3, effective September 25. L. 2002: Entire section amended with relocations, p. 1898, § 2, effective July 1; (7)(e) and (7)(f) amended, p. 1561, § 368, effective October 1; (7)(d)(III) added, p. 1609, § 4, effective January 1, 2004. L. 2003: (7)(h) amended, p. 2004, § 73, effective May 22. L. 2004: (6)(c) amended, p. 234, § 1, effective April 1; (2)(a), (4), (6)(a)(II), and (6)(a)(III) amended, p. 780, § 1, effective July 1; (2)(a.5) and (7)(e) amended and (8) added, p. 1130, § 2, effective July 1. L. 2005: (7)(d)(II) amended, p. 1177, § 17, effective August 8. L. 2006: (7)(d)(II) amended, p. 1369, § 9, effective January 1, 2007. L. 2008: (7)(a)(I)(B), (7)(a)(II)(B), (7)(a)(IV)(B), (7)(b)(I)(B), (7)(b)(II)(B), and (7)(b)(III)(B) amended, p. 2086, § 4, effective July 1. L. 2009: (7)(d)(III) amended, (SB 09-133), ch. 392, p. 2119, § 2, effective August 5; (1)(a), (1)(b), (1)(c), (1)(f), (1)(g), (2)(a), (2)(a.5)(I), (6)(a)(I), (6)(a)(II), (6)(b), (6)(i)(I), and (6)(i)(II) amended, (HB 09-1026), ch. 281, p. 1278, § 56, effective October 1; (7)(d)(IV) added, (HB 09-1119), ch. 397, p. 2146, § 3, effective January 1, 2010.
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