Colorado Law

42-2-125 - Mandatory revocation of license and permit.

(1) The department shall immediately revoke the license or permit of any driver or minor driver upon receiving a record showing that such driver has:

(a) Been convicted of vehicular homicide or vehicular assault as described in sections 18-3-106 and 18-3-205, C.R.S., or of criminally negligent homicide as described in section 18-3-105, C.R.S., while driving a motor vehicle;

(b) Been convicted of driving a motor vehicle while under the influence of a controlled substance, as defined in section 12-22-303 (7), C.R.S., or while an habitual user of such a controlled substance;

(b.5) In the case of a driver twenty-one years of age or older, been convicted of an offense described in section 42-4-1301 (1)(a) or (2) (a). Except as provided in section 42-2-132.5, the period of revocation beased upon paragraph (b.5) shall be nine months. The provisions of this paragraph (b.5) shall not apply to a person whose driving privilege was revoked pursuant to section 42-2-126 (3) (a) (1) for a first offense based on the same driving incident.

(c) Been convicted of any felony in the commission of which a motor vehicle was used;

(d) Been convicted of failing to stop and render aid as required by section 42-4-1601;

(e) Been convicted of perjury in the first or second degree or the making of a false affidavit or statement under oath to the department under any law relating to the ownership or operation of a motor vehicle;

(f) Been three times convicted of reckless driving of a motor vehicle for acts committed within a period of two years;

(g) (I) Been twice convicted of any combination of DUI, DUI per se, DWAI or habitual user for acts committed within a period of five years;

(II) In the case of a minor driver, been convicted of DUI, DUI per se, DWAI or habitual user for acts committed while such driver was under twenty-one years of age;

(g.5) In the case of a minor driver, been convicted of UDD committed when such driver was under twenty-one years of age;

(h) Been determined to be mentally incompetent by a court of competent jurisdiction and for whom a court has entered, pursuant to part 3 or part 4 of article 14 of title 15, C.R.S., or section 27-65-109 (4) or 27-65-127, C.R.S., an order specifically finding that the mental incompetency is of such a degree that the person is incapable of safely operating a motor vehicle;

(i) Been convicted of DUI, DUI per se, DWAI, or habitual user and has two previous convictions of any of such offenses. The license of any driver shall be revoked for an indefinite period and shall only be reissued upon proof to the department that said driver has completed a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, icluding those related to mental health and substance abuse pursuant to section 42-4-1301.3 and that said driver has demonstrated knowledge of the laws and driving ability through the regular motor vehicle testing process. In no event shall such license be reissued in less than two years.

(j) Been required to file and maintain proof of financial responsibility for the future as provided by section 42-4-1410 or article 7 of this title and who, at the time of a violation of any provision of this title, had not filed or was not maintaining such proof;

(k) Repealed

(l) Been found to have knowingly and willfully left the scene of an accident involving a commercial motor vehicle driven by the person;

(m) (I) Been convicted of violating section 12-47-901 (1) (b) or (1) (c), or 18-13-122 (2), C.R.S., or any counterpart municipal charter or ordinance offense to such sections and having failed to complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program ordered by the court in connection with such conviction; or

(II) Been convicted of violating section 12-47-901 (1) (b) or (1) (c) or 18-13-122 (2), C.R.S., or any counterpart municipal charter or ordinance offense to such sections and has a previous conviction for such offenses;

(n) (Deleated by amendment, L.2009, (HB 09-1266), ch.347, p. 1816, 8, effective August 5, 2009

(o) Been:

(I) (Deleated by amendment, L. 2009, (HB 09-1266), ch.347, p. 1816, 8, effective August 5, 2009

(II) Convicted of, or has received a deferred judgment for, an offense described in section 18-4-409 or 18-4-503 (1) (c), C.R.S., or a comparable municipal charter or ordinance offense.

(III) (Deleated by amendment, L.2007, p.504, 3, effective July 1,2007 

(2) Unless otherwise provided in this section, the period of revocation shall be not less than one year; except that the period of revocation based on paragraphs (b) and (c) of subsection (1) of this section involving a commercial motor vehicle transporting hazardous materials as defined under section 42-2-402 (7) shall result in a revocation period of three years.

(2.3) (Deleated by amendment, L.2007, p. 504, 3, effective July 1,2007.)

(2.4) After the expiration of the period of revocation pursuant to this section and any subsequently imposed periods of revocation, any person whose license is revoked under subparagraph (I) of paragraph (g) or paragraph (i) of subsection (1) of this section shall be required to have a restricted license pursuant to the provisions of section 42-2-132.5.

(2.5) The period of revocation under paragraph (g.5) of subsection (1) of this section for a person who is less than twenty-one years of age at the time of the offense and who is convicted of driving with an alcohol content of at least 0.02 but not more than 0.05 under section 42-4-1301 (2) (a.5) is as follows:

(a) Except as provided in subsection (2.7) of this section, three months for a first offense;

(b) Six months for a second offense;

(c) One year for a third or subsequent offense.

(2.7) (a) A person whose license is revoked for a first offense under paragraph (g.5) of subsection (1) of this section may request that, in lieu of the three-month revocation, the person's license be revoked for a period of not less than thirty days, to be followed by a suspension period of such length that the total period of revocation and suspension equals three months. If the hearing officer approves such request, the hearing officer may grant such person a probationary license that may be used only for the reasons provided in section 42-2-127 (14) (a).

(b) The hearing to consider a request under paragraph (a) of this subsection (2.7) may be held at the same time as the hearing held under subsection (4) of this section; except that a probationary license may not become effective until at least thirty days have elapsed since the beginning of the revocation period.

(2.8) A person whose license has been revoked pursuant to paragraph (o) of subsection (1) of this section shall not be eligible for reinstatement of his or her license until the department receives proof that the person has satisfied any order for restitution entered in connection with the conviction.

(3) Upon revoking the license of any person as required by this section, the department shall immediately notify the licensee as provided in section 42-2-119 (2). Where a minor driver's license is revoked under paragraph (m) of subsection (1) of this section, such revocation shall not run concurrently with any previous or subsequent suspension, revocation, cancellation, or denial that is provided for by law.

(4) Upon receipt of the notice of revocation, the licensee or the licensee's attorney may request a hearing in writing, if the licensee has returned said license to the department in accordance with the provisions of section 42-2-133. The department, upon notice to the licensee, shall hold a hearing at the district office of the department closest to the residence of the licensee; except that, at the discretion of the department, all or part of the hearing may be conducted in real time, by telephone or other electronic means in accordance with section 42-1-218.5. The department shall hold the hearing not less than thirty days after receiving such license and request through a hearing commissioner appointed by the executive director of the department, which hearing shall be conducted in accordance with the provisions of section 24-4-105, C.R.S. After such hearing, the licensee may appeal the decision of the department to the district court as provided in section 42-2-135. Should a driver who has had hir or her license revoked under this section be subsequently acquitted of such a charge by a court of record, the department shall immediately, in any event not later than ten days after receipt of such notice of acquittal, reinstate said license to the driver affected.

(5) Except where more than one revocation occurs as a result of the same episode of driving, license revocations made pursuant to this section shall not run concurrently with any previous or subsequent revocation or denial in lieu of revocation which is provided for by law. Any revocation unused pursuant to this section shall not preclude other actions which the department is required to take pursuant to the provisions of this title, and unless otherwise provided by law, this subsection (5) shall not prohibit revocations from being served concurrently with any suspension or denial in lieu of suspension of driving privileges.

(6) (a) Any person who has a license revoked pursuant to paragraph (m) of subsection (1) of this section shall be subject to the following revocation periods:

(I) After a first conviction and failure to complete an ordered evaluation, assessment, or program, three months;

(II) After a secong conviction, six months;

(III) After a third or subsequent conviction, one year

(b) (Deleated by amendment, L.2007, p. 504, 3, effective July1, 2007.)

(c) Repealed.

(7) (Deleated by amendment, L. 2009, (HB09-1266), ch.347, p.1816,8, effective August 5,2009.)

(8) If a suspension or revocation of a license is authorized or required for conviction of an offense under state law, a final finding of guilt for a violation of a municipal ordinance governing a substantially equivalent offense in a municipality, county, or another state for purposes of a suspension or revocation shall be deemed as a conviction of the corresponding offense under state law. A stay of sentence or a pending appeal shall not deprive the department of the authority to suspend, revoke, or deny a driver's license or minor's driver license pending a final determination of a conviction on appeal.

Source: L.94: Entire title amended with relocations, p. 2133, § 1, effective January 1,1995. L.95: (1)(m) amended, p.314, §2, effective July 1. L.96: (1)(j) amended, p.1207, §1, effective July 1. L.97: (1)(g) and (1)(i) amended and (1)(g.5), (2.5), and (2.7) added, p. 1460, §§ 3,2, effective July1; (1)(m) amended, p.305,§ 22, effective July 1; (1)(n) and (7) added and (3) amended, p. 1537, §§ 3,4, effective July 1. L.98: IP (2.5) amended, p. 173, § 2, effective April 6; (1)(k), (3), and (6) amended, p. 1434, § 3, effective July 1. L.99: (1)(n) amended, p.391,§ 2, effective July 1; (2.3) and (2.4) added, p.1158, § 1, effective July 1. L.2000: (1)(g) and (2.4) amended, p. 1075, § 2, effective July 1; IP(1), (1),(g),(II),(3), and (7) amended, p. 1353, §24, effective July 1, 2001; (6)(c)(II) added by revision, pp. 1353, 1362, §§ 24,49. L.2001: (4) amended, p.553, § 3, effective May 23. L.2002: (1)(i)amended, p.1921, § 17, effective July 1; (1)(k) repealed, p. 1585, §16, effective July 1. L.2003: (1)(n) amended, p. 1905, § 5, effective July 1; (1)(o) and (2.8) added, pp. 1845, 1846, §§ 3, 5, effective July 1. L.2005: IP (1)(o) amended and (8) added, p. 647, § 15, effective May 27. L.2007: (1)(d), (1)(o), (2), (2.3), (2.8), (3), IP(6)(a), (6)(b), and (8) amended, p. 504 § 3, effective July 1. L.2008: (1)(g), (1)(g.5), and (1)(i) amended, p. 245, § 7, effective July 1; (1)(b.5) added and (1)(g)(I) and (2) amended, p. 832, § 2, effective January 1,2009. L.2009: (1)(m), (1)(n), (1)(o)(I), (3), (6)(a), and (7) amended, (HB09-1266), ch. 347, p. 1816,§ 8, effective August 5. L.2010:(1)(h) amended, (SB 10-175), ch.188, p.807, §85, effective April 29. L.2011: (1)(i) amended, (HB 11-1303), ch.264, p. 1179, §101, effective August 10.

Editor's note: (1) This section is similar to former §42-2-122 as it existed prior to 1994, and the former § 42-2-125 was relocated to §42-2-133.

(2) Amendments to subsection (1)(g)(II) by Senate Bill 00-018 and Senate Bill 00-011 were harmonized, effective July 1, 2001. Amendments to subsection (1)(g)(I) by House Bill 08-1166 and House Bill 08-1194 were harmonized, effective January 1, 2009.

(3) Subsection (6)(c)(II) provided for the repeal of subsection (6)(c), effective July 1, 2001. (See L.2000, pp. 1353, 1362.)

Cross references: For the legislative declaration contained in the 2008 act enacting subsection (1) (b.5) and amending subsections (1)(g)(I) and (2), see section 1 of chapter 221, Session Laws of Colorado 2008.

 

42-2-126 - Revocation of license based on administrative determination.

(1) The purposes of this section are:

(a) To provide safety for all persons using the highways of this state by quickly revoking the driver's license of any person who has shown himself or herself to be a safety hazard by driving with an excessive amount of alcohol in his or her body and any person who has refused to submit to an analysis as required by section 42-4-1301 (7);

(b) To guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for a full hearing;

(c) Following the revocation period, to prevent the re-licensing of any person until the department is satisfied that such person's alcohol problem is under control and that such person no longer constitutes a safety hazard to other highway users.

(2) (a) The department shall revoke the license of any person upon its determination that the person:

(I) Drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person's blood or breath, in such person's blood was 0.08 or more grams of alcohol per one hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum 0.08 blood or breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(I.5) Drove a vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol, as shown by analysis of the person's blood or breath, in such person's blood was in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood or in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum required blood or breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(I.7) Drove a vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol, as shown by analysis of the person's breath, subject to section 42-4-1301 (7), in such person's blood was at least 0.02 but not in excess of 0.05 grams of alcohol per one hundred milliliters of blood at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum 0.02 breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(II) Refused to take or to complete, or to cooperate in the completing of, any test or tests of the person's blood, breath, saliva, or urine as required by section 42-4-1301 (7), 18-3-106 (4), or 18- 3-205 (4), C.R.S. If a law enforcement officer requests a test under the provisions of section 42-4-1301 (7) (a) (II), the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving.

(III) Drove a commercial motor vehicle in this state when the amount of alcohol, as shown by analysis of such person's blood or breath, in such person's blood was 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or any time thereafter; or

(IV) Drove a commercial motor vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol in such person's blood, as shown by analysis of such person's breath, subject to section 42-4-1301 (7), was at least 0.02 but less than 0.04 grams of alcohol per two hundred ten liters of breath at the time of driving or any time thereafter.

(b) The department shall make a determination of these facts on the basis of the documents and affidavit of a law enforcement officer as specified in subsection (3) of this section, and this determination shall be final unless a hearing is requested and held as provided in subsection (8) of this section.

(c) The determination of these facts by the department is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect any revocation under this section.

(d) For purposes of this section, "license" includes driving privilege.

(2.5) If the department revokes a person's license pursuant to subparagraph (I), (II), or (III) of paragraph (a) of subsection (2) of this section, the department shall mail a notice to the owner of the motor vehicle used in the violation informing the owner that:

(a) Such motor vehicle was driven in an alcohol-related driving violation; and

(b) Additional alcohol-related violations involving the motor vehicle by the same driver may result in a requirement that the owner file proof of financial responsibility under the provisions of section 42-7-406 (1.5).

(3) (a) Whenever a law enforcement officer has probable cause to believe that a person has violated section 42-4-1301 (2) or whenever a person refuses to take or to complete, or to cooperate with the completing of any test or tests of such person's blood, breath, saliva, or urine as required by section 42-4-1301 (7), the law enforcement officer having such probable cause or requesting such test or tests shall forward to the department an affidavit containing information relevant to legal issues and facts which must be considered by the department to legally determine if a person's driving privilege should be revoked as provided in subsection (2) of this section. The executive director of the department shall specify to law enforcement agencies the form of the affidavit, the types of information needed in the affidavit, and any additional documents or copies of documents needed by the department to make its determination in addition to the affidavit. The affidavit shall be dated, signed, and sworn to by the law enforcement officer under penalty of perjury, but need not be notarized or sworn to before any other person.

(b) A law enforcement officer who has probable cause to believe that a person was driving a commercial motor vehicle with a blood alcohol concentration of 0.04 or more if the person was twenty-one years of age or older or 0.02 or more if the person was under twenty-one years of age shall forward to the department a verified report of all information relevant to the enforcement action, including information that adequately identifies the person, a statement of the officer's probable cause for belief that the person committed such violation, a report of the results of any tests that were conducted, and a copy of the citation and complaint, if any, filed with the court.

(4) (a) Upon receipt of the affidavit of the law enforcement officer and the relevant documents required by subsection (3) of this section, the department shall make the determination described in subsection (2) of this section. The determination shall be based upon the information contained in the affidavit and the relevant documents. If the department determines that the person is subject to license revocation, the department shall issue a notice of revocation if such notice has not already been served upon the person by the enforcement officer as required in subsection (5) of this section.

(b) The notice of revocation which is sent by the department shall be mailed in accordance with the provisions of section 42-2-119 (2) to the person at the last-known address shown on the department's records, if any, and to any address provided in the law enforcement officer's affidavit if that address differs from the address of record. The notice shall be deemed received three days after mailing.

(c) The notice of revocation shall clearly specify the reason and statutory grounds for the revocation, the effective date of the revocation, the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which that request for a hearing must be made.

(d) If the department determines that the person is not subject to license revocation, the department shall notify the person of its determination and shall rescind any order of revocation served upon the person by the enforcement officer.

(5) (a) (I) Whenever a law enforcement officer requests a person to take any test or tests as required by section 42-4-1301 (7) and such person refuses to take or to complete or to cooperate in the completing of such test or tests or whenever such test results are available to the law enforcement officer and such tests show an alcohol concentration of 0.08 or more grams of alcohol per one hundred milliliters of blood as shown by analysis of such person's blood or 0.08 or more grams of alcohol per two hundred ten liters of breath as shown by analysis of such person's breath if the person is twenty-one years of age or older or, subject to section 42-4-1301 (7), at least 0.02 but not in excess of 0.05 grams of alcohol per two hundred ten liters of breath as shown by analysis of such person's breath if the person is under twenty-one years of age and when the person who is tested or who refuses to take or to complete or to cooperate in the completing of any test or tests is still available to the law enforcement officer, the officer, acting on behalf of the department, shall serve the notice of revocation personally on such person.

(II) Whenever a law enforcement officer requests a person who is under twenty-one years of age to take any test or tests as required by section 42-4-1301 (7) and such person refuses to take or to complete or to cooperate in the completing of such test or tests or whenever such test results are available to the law enforcement officer and such tests show an alcohol concentration in excess of 0.05 grams of alcohol per one hundred milliliters of blood as shown by analysis of such person's blood or in excess of 0.05 grams of alcohol per two hundred ten liters of breath as shown by analysis of such person's breath and when the person who is tested or who refuses to take or to complete or to cooperate in the completing of any test or tests is still available to the law enforcement officer, the officer, acting on behalf of the department, shall serve the notice of revocation personally on such person.

(b) When the law enforcement officer serves the notice of revocation, the officer shall take possession of any driver's license issued by this state or any other state which is held by the person. When the officer takes possession of a valid driver's license issued by this state or any other state, the officer, acting on behalf of the department, shall issue a temporary permit which is valid for seven days after its date of issuance.

(c) A copy of the completed notice of revocation form, a copy of any completed temporary permit form, and any driver's, minor driver's, or temporary driver's license or any instruction permit taken into possession under this section shall be forwarded to the department by the officer along with the affidavit and documents required in subsections (2) and (3) of this section.

(d) The department shall provide forms for notice of revocation and for temporary permits to law enforcement agencies. The department shall establish a format for the affidavits required by this section and shall give notice of such format to all law enforcement agencies which submit affidavits to the department. Such law enforcement agencies shall follow the format determined by the department.

(e) A temporary permit may not be issued to any person who is already driving with a temporary permit issued pursuant to paragraph (b) of this subsection (5).

(6) (a) The license revocation shall become effective seven days after the subject person has received the notice of revocation as provided in subsection (5) of this section or is deemed to have received the notice of revocation by mail as provided in subsection (4) of this section. If a written request for a hearing is received by the department within that same seven-day period, the effective date of the revocation shall be stayed until a final order is issued following the hearing; except that any delay in the hearing which is caused or requested by the subject person or counsel representing that person shall not result in a stay of the revocation during the period of delay.

(b) (I) The period of license revocation under subparagraph (I) of paragraph (a) of subsection (2) of this section for a first violation shall be three months.

(II) The period of license revocation under subparagraph (I) of paragraph (a) of subsection (2) of this section for a second or subsequent revocation shall be one year.

(II.5) The period of license revocation under subparagraph (I.5) of paragraph (a) of subsection (2) of this section shall be:

(A) Except as provided in subparagraph (IX) of this paragraph (b), three months for a first violation;

(B) Six months for a second violation; and

(C) One year for a third or subsequent violation.

(III) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section or for a first violation under subparagraph (III) of paragraph (a) of subsection (2) of this section shall be one year.

(IV) The period of license revocation under subparagraph (II) or (III) of paragraph (a) of subsection (2) of this section involving a commercial motor vehicle that was transporting hazardous materials as defined in section 42-2-402 (7) shall be no less than three years.

(V) The second or subsequent revocation under subparagraph (II) or (III) of paragraph (a) of subsection (2) of this section involving a commercial motor vehicle shall result in a cancellation or denial as provided for under section 42-2-405 (3).

(VI) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section for a second refusal shall be two years.

(VII) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section for a third or subsequent refusal shall be three years.

(VIII) The period of license revocation for a violation under subparagraph (IV) of paragraph (a) of subsection (2) shall be:

(A) Except as provided in subparagraph (IX) of this paragraph (b), three months for a first violation;

(B) Six months for a second violation; and

(C) One year for a third or subsequent violation.

(IX) (A) A person whose license is revoked for a first offense under subparagraph (I.5) of paragraph (a) of subsection (2) of this section and whose blood alcohol content was not more than 0.05 grams of alcohol per one hundred milliliters of blood or not more than 0.05 grams of alcohol per two hundred ten liters of breath may request that, in lieu of the three-month revocation, the person's license be revoked for a period of not less than thirty days, to be followed by a suspension period of such length that the total period of revocation and suspension equals three months. If the hearing officer approves such request, the hearing officer may grant such person a probationary license that may be used only for the reasons provided in section 42-2-127

(14) (a).

(B) The hearing to consider a request under sub-subparagraph (A) of this subparagraph (IX) may be held at the same time as the hearing held under subsection (8) of this section; except that a probationary license may not become effective until at least thirty days have elapsed since the beginning of the revocation period.

(c) (I) Where a license is revoked under subparagraph (I), (I.5), (III), or (IV) of paragraph (a) of subsection (2) of this section and the person is also convicted on criminal charges arising out of the same occurrence for a violation of section 42-4-1301 (1) (a) or (2), both the revocation under this section and any suspension, revocation, cancellation, or denial which results from such conviction shall be imposed, but the periods shall run concurrently, and the total period of revocation, suspension, cancellation, or denial shall not exceed the longer of the two periods.

(II) Where a license is revoked under subparagraph (II) of paragraph (a) of subsection (2) of this section and the person is also convicted on criminal charges arising out of the same occurrence for a violation of section 42-4-1301 (1) (a) or (2), any suspension, revocation, cancellation, or denial which results from such conviction and is imposed shall run consecutively with the revocation under this section.

(III) Any revocation pursuant to this section shall run consecutively and not concurrently with any other revocation pursuant to this section.

(7) (a) The periods of revocation specified by subsection (6) of this section are intended to be minimum periods of revocation for the described conduct. No license shall be restored under any circumstances, and no probationary license shall be issued during the revocation period; except that:

(I) A person whose privilege to drive a commercial motor vehicle has been revoked because the person drove a commercial motor vehicle when the person's blood alcohol content was 0.04 or greater, but less than 0.08, grams of alcohol per one hundred milliliters of blood or per two hundred ten liters of breath and who was twenty-one years of age or older at the time of the offense may apply for a driver's license of another class or type as long as there is no other statutory reason to deny the person a license. Such person may not operate any commercial motor vehicle during the period of revocation of such person's privilege to operate commercial motor vehicles. The department may not issue such person a probationary license that would authorize such person to operate any commercial motor vehicle.

(II) Repealed.

(b) Upon the expiration of the period of revocation under this section, if the person's license is still suspended or revoked on other grounds, the person may seek a probationary license as authorized by section 42-2-127 (14) subject to the requirements of paragraph (c) of this subsection (7).

(c) (I) Following a license revocation, the department shall not issue a new license or otherwise restore the driving privilege unless it is satisfied, after an investigation of the character, habits, and driving ability of the person, that it will be safe to grant the privilege of driving a motor vehicle on the highways. The department may not require a person to undergo skills or knowledge testing prior to issuance of a new license or restoration of such person's driving privilege if such person's license was revoked for a first violation of driving with excessive alcohol content pursuant to subparagraph (I) of paragraph (b) of subsection (6) of this section.

(II) If the person was determined to be in violation of subparagraph (I) of paragraph (a) of subsection (2) of this section and the person had a blood alcohol level, as shown by analysis of such person's blood or breath, that was 0.20 or more grams of alcohol per one hundred milliliters of blood or 0.20 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving; or if the person's driving record otherwise indicates a designation as a persistent drunk driver as defined in section 42-1-102 (68.5), the department shall require such person to complete a level II alcohol and drug education and treatment program certified by the division of alcohol and drug abuse pursuant to section 42-4-1301 (10) before driving privileges may be restored.

(III) If the total period of license restraint under this paragraph (c) is not sufficient to allow for the completion of level II alcohol and drug education and treatment, or the documentation of completion of such education and treatment is incomplete at the time of reinstatement, proof of current enrollment in a level II alcohol and drug education and treatment program certified by the division of alcohol and drug abuse pursuant to section 42-4-1301 (10), on a form approved by the department shall be filed with the department.

(8) (a) Any person who has received a notice of revocation may make a written request for a review of the department's determination at a hearing. The request may be made on a form available at each office of the department. If the person's driver's license has not been previously surrendered, it must be surrendered at the time the request for a hearing is made.

(b) The request for a hearing must be made in writing within seven days after the day the person received the notice of revocation as provided in subsection (5) of this section or is deemed to have received the notice by mail as provided in subsection (4) of this section. If written request for a hearing is not received within the seven-day period, the right to a hearing is waived, and the determination of the department which is based upon the documents and affidavit required by subsections (2) and (3) of this section becomes final.

(c) If a written request for a hearing is made after expiration of the seven-day period and if it is accompanied by the applicant's verified statement explaining the failure to make a timely request for a hearing, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request due to lack of actual notice of the revocation or due to factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the hearing request. In such a case, a stay of the revocation pending issuance of the final order following the hearing shall not be granted.

(d) At the time the request for a hearing is made, if it appears from the record that the person is the holder of a valid driver's or minor driver's license or any instruction permit issued by this state or temporary permit issued pursuant to subsection (5) of this section and that the license has been surrendered as required pursuant to subsection (5) of this section, the department shall issue a temporary permit which will be valid until the scheduled date for the hearing. If necessary, the department may later issue an additional temporary permit or permits in order to stay the effective date of the revocation until the final order is issued following the hearing, as required by subsection (6) of this section.

(e) (I) The hearing shall be scheduled to be held as quickly as practicable but not more than sixty days after the day that the request for a hearing is received by the department; except that, if a hearing is rescheduled because of the unavailability of a law enforcement officer or the hearing officer in accordance with subparagraph (III) or (IV) of this paragraph (e), the hearing may be rescheduled more than sixty days after the day that the request for the hearing is received by the department, and the department shall continue any temporary driving privileges held by the respondent until the date that such hearing is rescheduled. The department shall provide a written notice of the time and place of the hearing to the party requesting the hearing in the manner provided in section 42-2-119 (2) at least ten days prior to the scheduled or rescheduled hearing, unless the parties agree to waive this requirement. Notwithstanding the provisions of section 42-2-119, the last-known address of the respondent for purposes of notice for any hearing pursuant to this section shall be the address stated on the hearing request form.

(II) The law enforcement officer who submits the documents and affidavit required by subsection (3) of this section need not be present at the hearing unless the presiding hearing officer requires that the law enforcement officer be present and the hearing officer issues a written notice for the law enforcement officer's appearance or unless the respondent or attorney for the respondent determines that the law enforcement officer should be present and serves a timely subpoena upon such officer in accordance with subparagraph (II.5) of this paragraph (e). If the respondent notifies the department in writing at the time that the hearing is requested that the respondent desires the law enforcement officer's presence at the hearing, the department shall issue a written notice for the officer to appear at the hearing. An officer required to appear at a hearing may, at the discretion of the hearing officer, appear in real time by telephone or other electronic means in accordance with section 42-1-218.5.

(II.5) Any subpoena served upon a law enforcement officer for attendance at a hearing conducted pursuant to this section shall be served at least five calendar days before the day of the hearing.

(III) If a law enforcement officer, after receiving a notice or subpoena to appear from either the department or the respondent, is unable to appear at any original or rescheduled hearing date set by the department due to a reasonable conflict, including but not limited to training, vacation, or personal leave time, the officer or the officer's supervisor shall contact the department not less than forty-eight hours prior to the hearing and reschedule the hearing to a time when the officer will be available. If the law enforcement officer cannot appear at any original or rescheduled hearing because of medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate just cause as determined by the department and the officer or the officer's supervisor gives notice of such officer's inability to appear to the department prior to the dismissal of the revocation proceeding, the department shall reschedule the hearing following consultation with the officer or the officer's supervisor at the earliest possible time when the officer and the hearing officer will be available.

(IV) If a hearing officer cannot appear at any original or rescheduled hearing because of medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate just cause, such hearing officer or the department may reschedule the hearing at the earliest possible time when the law enforcement officer and the hearing officer will be available.

(V) At the time that a respondent requests a hearing, written notice shall be given to the respondent advising such respondent of the right to subpoena the law enforcement officer for the hearing, that such subpoena must be served upon the officer in accordance with subparagraph (II.5) of this paragraph (e), and of the respondent's right, at the time that the respondent requests the hearing, to notify the department in writing that the respondent desires the officer's presence at the hearing, and that, upon such notification, the department shall issue a written notice for the officer to appear at the hearing. The written notice shall also state that, if the law enforcement officer does not appear at the hearing, documents and an affidavit prepared and submitted by the law enforcement officer will be used at the hearing. The written notice shall further state that the affidavit and documents submitted by the law enforcement officer may be reviewed by the respondent prior to the hearing.

(f) If a hearing is held pursuant to this subsection (8), the department shall review the matter and make a final determination on the basis of the documents and affidavit submitted to the department pursuant to subsections (2) and (3) of this section. Except as provided in paragraph (e) of this subsection (8), the law enforcement officer who submitted the affidavit required by subsection (3) of this section need not be present at the hearing. The department shall consider all other relevant evidence at the hearing, including the testimony of law enforcement officers and the reports of such officers which are submitted to the department. The reports of law enforcement officers shall not be required to be made under oath, but such reports shall identify the officers making the reports. The department may consider evidence contained in affidavits from persons other than the respondent, so long as such affidavits include the affiant's home or work address and phone number and are dated, signed, and sworn to by the affiant under penalty of perjury. The affidavit need not be notarized or sworn to before any other person.

(9) (a) The hearing shall be held in the district office nearest to where the violation occurred, unless the parties agree to a different location; except that, at the discretion of the department, all or part of the hearing may be conducted in real time, by telephone or other electronic means in accordance with section 42-1-218.5. The person requesting the hearing may be referred to as the respondent.

(b) The presiding hearing officer shall be the executive director of the department or an authorized representative designated by the executive director. The presiding hearing officer shall have authority to administer oaths and affirmations; to consider the affidavit of the law enforcement officer filing such affidavit as specified in subsection (3) of this section; to consider other law enforcement officers' reports which are submitted to the department, which reports need not be under oath but shall identify the officers making the reports; to examine and consider documents and copies of documents containing relevant evidence; to consider other affidavits which are dated, signed, and sworn to by the affiant under penalty of perjury, which affidavits need not be notarized or sworn to before any other person but shall contain the affiant's home or work address and phone number; to take judicial notice as defined by rule 201 of article II of the Colorado rules of evidence, subject to the provisions of section 24-4-105 (8), C.R.S., which shall include judicial notice of general, technical, or scientific facts within the hearing officer's knowledge, judicial notice of appropriate and reliable scientific and medical information contained in studies, articles, books, and treatises, and judicial notice of charts prepared by the department of public health and environment pertaining to the maximum blood or breath alcohol levels that people can obtain through the consumption of alcohol when such charts are based upon the maximum absorption levels possible of determined amounts of alcohol consumed in relationship to the weight and gender of the person consuming such alcohol; to compel witnesses to testify or produce books, records, or other evidence; to examine witnesses and take testimony; to receive and consider any relevant evidence necessary to properly perform the hearing officer's duties as required by this section; to issue subpoenas duces tecum to produce books, documents, records, or other evidence; to issue subpoenas for the attendance of witnesses; to take depositions, or cause depositions or interrogatories to be taken; to regulate the course and conduct of the hearing; and to make a final ruling on the issues.

(c) (I) Where a license is revoked under subparagraph (I), (I.5), or (I.7) of paragraph (a) of subsection (2) of this section, the sole issue at the hearing shall be whether, by a preponderance of the evidence, the person drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person's blood or breath, in such person's blood was 0.08 or more grams of alcohol per one hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was twenty-one years of age or older at the time of driving the vehicle or, subject to section 42-4-1301 (7), at least 0.02 but not in excess of 0.05 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was under twenty-one years of age at the time of driving the vehicle, or in excess of 0.05 grams of alcohol per one hundred milliliters of blood or in excess of 0.05 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was under twenty-one years of age at the time of driving the vehicle. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time that testing occurred, the preponderance of the evidence must also establish that the minimum 0.08 blood or breath alcohol content required in subparagraph (I) of paragraph (a) of subsection (2) of this section, the minimum 0.05 blood or breath alcohol content required in subparagraph (I.5) of paragraph (a) of subsection (2) of this section, or the minimum 0.02 breath alcohol content required in subparagraph (I.7) of paragraph (a) of subsection (2) of this section was reached as a result of alcohol consumed before the person stopped driving; or, where a license is revoked under subparagraph (II) of paragraph (a) of subsection (2) of this section, whether the person refused to take or to complete or to cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine as required by section 42-4-1301 (7). If the presiding hearing officer finds the affirmative of the issue, the revocation order shall be sustained. If the presiding hearing officer finds the negative of the issue, the revocation order shall be rescinded.

(II) When the determination of the issue pursuant to this paragraph (c) is based upon an analysis of the respondent's blood or breath and evidence is offered by the respondent to show a disparity between the results of the analysis done on behalf of the law enforcement agency and the results of an analysis done on behalf of the respondent, and when a preponderance of the evidence establishes that the blood analysis conducted on behalf of the law enforcement agency was properly conducted by a qualified person associated with a laboratory certified by the department of public health and environment using properly working testing devices or when a preponderance of the evidence establishes that the law enforcement breath test was administered using a properly working breath testing device certified by the department of public health and environment, which device was properly operated by a qualified operator, there shall be a presumption favoring the accuracy of the analysis done on behalf of the law enforcement agency if such analysis showed the amount of alcohol in the respondent's blood or breath to be 0.12 or more grams of alcohol per hundred milliliters of blood or 0.12 or more grams of alcohol per two hundred ten liters of breath. If the respondent offers evidence of blood or breath analysis, the respondent shall be required to state under oath the number of analyses done in addition to the one offered as evidence and the names of the laboratories that performed the analyses and the results of all analyses.

(III) Where a license is revoked under subparagraph (III) or subparagraph (IV) of paragraph (a) of subsection (2) of this section, the sole issue at the hearing shall be whether, by a preponderance of the evidence, the person drove a commercial motor vehicle in this state when the amount of alcohol, as shown by analysis of the person's blood or breath, in such person's blood was 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person twentyone years of age or older or, subject to section 42-4-1301 (7), 0.02 but less than 0.04 grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person under twenty-one years of age, or 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person under twenty-one years of age, if the preponderance of the evidence establishes that such person did not consume any alcohol between the time of driving and the time of testing. If the presiding hearing officer finds the affirmative of the issue, the revocation order shall be sustained. If the presiding hearing officer finds the negative of the issue, the revocation order shall be rescinded.

(IV) Under no circumstances shall the presiding hearing officer consider any issue not specified in this paragraph (c).

(d) The hearing shall be recorded. The decision of the presiding hearing officer shall be rendered in writing, and a copy will be provided to the person who requested the hearing.

(e) If the person who requested the hearing fails to appear without just cause, the right to a hearing shall be waived, and the determination of the department which is based upon the documents and affidavit required in subsections (2) and (3) of this section shall become final.

(10) (a) Within thirty days of the issuance of the final determination of the department under this section, a person aggrieved by the determination shall have the right to file a petition for judicial review in the district court in the county of the person's residence.

(b) The review shall be on the record without taking additional testimony. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the department's determination.

(c) The filing of a petition for judicial review shall not result in an automatic stay of the revocation order. The court may grant a stay of the order only upon motion and hearing and upon a finding that there is a reasonable probability that the petitioner will prevail upon the merits and that the petitioner will suffer irreparable harm if the order is not stayed.

(11) The "State Administrative Procedure Act", article 4 of title 24, C.R.S., shall apply to this section to the extent it is consistent with subsections (8), (9), and (10) of this section relating to administrative hearings and judicial review.

 

42-2-132. Period of suspension or revocation.

(1) The department shall not suspend a driver's or minor driver's license to drive a motor vehicle on the public highways for a period of more than one year, except as permitted under section 42-2-138 and except for noncompliance with the provisions of subsection (4) of this section or section 42-7-406, or both.

(2)(a)(I) Any person whose license or privilege to drive a motor vehicle on the public highways has been revoked is not entitled to apply for a probationary license, and, except as provided in sections 42-2-125, 42-2-126, 42-2-132.5, 42-2-138, 42-2-205, and 42-7-406, the person is not entitled to make application for a new license until the expiration of one year from the effective date of the revocation; then the person may make application for a new license as provided by law.

(II)(A) Following the period of revocation set forth in this subsection (2), the department shall not issue a new license unless and until it is satisfied that the person has demonstrated knowledge of the laws and driving ability through the appropriate motor vehicle testing process and that the person whose license was revoked pursuant to section 42-2-125 for a second or subsequent alcohol- or drug- related driving offense has completed not less than a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3.

(B) If the person was determined to be in violation of section 42-2-126 (3) (a) and the person had a BAC that was 0.17 or more at the time of driving or within two hours after driving, or if the person's driving record otherwise indicates a designation as a persistant drunk driver as defined in section 42-1-102 (68.5), the department shall require the person to complete a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3.

(C) If a person seeking reinstatement has not completed required level II alcohol and drug education and treatment, the person shall file with the department proof of current enrollment in a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3, on a form approved by the department.

(III) In the case of a minor driver whose license has been revoked as a result of one conviction for DUI, DUI per se, DWAI, habitual user, or UDD, the minor driver, unless otherwise required after an evaluation made pursuant to section 42-4-1301.3, must complete a level I alcohol and drug education program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse.

(IV) Any person whose license or privilege to drive a motor vehicle on the public highways has been revoked under section 42-2-125 (1) (g) (I) or (1) (i) or 42-2-203 where the revocation was due in part to a DUI, DUI per se, DWAI, or habitual user conviction shall be required to present an affidavit stating that the person has obtained at the person's own expense a signed lease agreement for the installation and use of an approved ignition interlock device, as defined in section 42-2-132.5 (7), 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 a copy of each signed lease agreement.

(V) The department shall take into consideration any probationary terms imposed on such person by any court in determining whether any revocation shall be continued.

(b) Repealed

(c) A person whose driving privilege is restored prior to a hearing on the merits of any driving restraint waives the person's right to a hearing the merits of the driving restraint.

(3) A person making a false application for a new license before the expiration of the period of suspension or revocation commits a class 2 misdemeanor traffic offense. The department shall notify the district attornney's office in the county where such violation occured, in writing, of all violations of this section.

(4)(a)(I) A person whose license or other driving privilege to operate a motor vehicle in this state has been suspended, cancelled, or revoked, pursuant to either this article or article 4 or 7 of this title, shall pay a restoration fee of ninety-five dollars to the executive director of the department prior to the issuance to the person of a new license or the restoration of the license or privilege.

(II) Notwithstanding the amount specified for the fee in subparagraph (I) of this paragraph (a), the executive director of the department by rule or as otherwise provided by law may reduce the amount of the fee if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of the fee is credited. After the uncommitted reserves of the fund are sufficiently reduced, the executive director of the department by rule or as otherwise provided by law may increase the amount of the fee as provided in section 24-75-402 (4), C.R.S.

(b) All restoration fees collected pursuant to this subsection (4) shall be transmitted to the state treasurer, who shall credit:

(I) (A) Sixty dollars to the driver's license administrative revocation account in the highway users tax fund, which account is hereby created and referred to in this subparagraph (I) as the "account".

(B) The moneys in the account shall be subject to annual appropriation by the general assembly for the direct and indirect costs incurred by the department in the administration of driver's licenserestraints pursuant to either this article or article 4 or article 7 of this title, including, but not limited to, the direct and indirect costs of providing administrative hearings under this title, without the use of moneys from the general fund. At the end of each fiscal year, any unexpended and unencumbered moneys remaining in the account shall be transferred out of the account, credited to the highways users tax fund, and allocated and expended as specified in section 43-4-205 (5.5) (c), C.R.S.; and

(II) (A) Thirty-five dollars to the first time drunk driving offender account in the highway users tax fund, which account is hereby created and referred to in this subparagraph (II) as the "account".

(B) The moneys in the account shall be subject to annual appropriation by the general assembly on and after January 1, 2009, first to the department of revenue to pay its costs associated with the implementation of House Bill 08-1194, as enacted at the second regular session of the sixty-sixth general assembly; second, to the department of revenue to pay a portion of the costs for an ignition interlock device as required by section 42-2-132.5 (1.5) (a) (II) for a first time drunk driving offender who is unable to pay the costs of the device; and then to provide two million dollars to the department of transportation for high visibility drunk driving enforcement pursuant to section 43-4-901, C.R.S. Any moneys in the account not expended for these purposes may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the account shall be credited to the account. At the end of each fiscal year, any unexpended and unencumbered moneys remaining in the account shall remain in the account and shall not be credited or transferred to the general fund, the highway users tax fund, or another fund.

Source:L.94: Entire title amended with relocations, p. 2152, 1, effective January 1, 1995. L.98: (4)(a) amended, p. 1353, 99, effective June1. L.99: (2)(a) amended, p. 1162, 6, effective July 1. L.2000: (2)(a)(IV) amended, p. 1076, 3, effective July 1; (1) amended, p. 1357, 32, effective July 1, 2001. L.2001: (2)(a)(II) amended, p.788, 6, effective June 1; (2)(a)(IV) amended, p. 1284, 69, effective June 5. L.2002: (2)(a)(III) amended, p. 1034, 74, effective June 1; (2)(a)(II) and (2)(a)(III) amended, p. 1922, 18, effective July 1; (2)(b) amended, p.1586, 19, effective July 1. L.2003: (4)(a)(I) and (4)(b) amended, p.448, 1, effective March5. L.2005: (4)(b) amended, p.142, 7, effective April 5. L.2006: (2)(a)(II)(B) amended, p. 1368, 5, effective January 1, 2007. L.2008: (2)(a)(II)(B), (2)(a)(II)(C), (2)(a)(III), and (2)(a)(IV) amended, p248, 11, effective July 1; (4)(a)(I) and (4)(b) amended, p.837, 7, effective September 1; (1), (2)(a)(I), and (2)(a)(II)(A) amended and (2)(c) added, p.835, 5, effective January 1, 2009. L.2009: (2)(b) repealed, (HB 09-1266), ch 347, p.1820, 14, effective August 5. L.2011: (2)(a)(II) and (2)(a)(III) amended, (HB 11-1303), ch.264, p.1180, 104, effective August 10.

Editor's note: (1) This section is similar to former 42-2-124 as it existed prior to 1994, and the former 42-2-132 was relocated to 42-2-140.

(2) Amendments to subsection (2)(a)(III) by Senate Bill 02-159 and Senate Bill 02-057 were harmonized.

Cross references: (1) For the penalty for a class 2 misdemeanor traffic offense, see 42-4-1701 (3)(a)(II).

(2) For the legislative declaration contained in the 2001 act amending subsection (2)(a)(II), see section 1 of chapter 229. Session Laws of Colorado 2001. For the legislative declaration contained in the 2008 act amending subsections (1), (2)(a)(I), and (2)(a)(II)(A) and enacting subsection (2)(c), see section 1 of chapter 221, Session Laws of Colorado 2008. 

 

42-2-132.5. Mandatory and Voluntary Restricted Licenses Following Alcohol Convictions - 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.

History. 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.

 

 

42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties - repeal.
  
(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) Repealed.
  
(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: (2.5), (3)(a)(II), (3)(b)(I), and (6) amended, p. 2814, § 594, effective July 1; 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. L. 2010: (7)(d)(IV)(A) and (7)(d)(IV)(B) amended, (SB 10-175), ch. 188, p. 807, § 86, effective April 29; (7) repealed, (HB 10-1347), ch. 258, p. 1149, § 1, effective July 1.
  
Editor's note: (1) This title was amended with relocations in 1994, effective January 1, 1995, and this section was subsequently amended with relocations in 2002, resulting in the relocation of provisions. Some portions of this section have been relocated to §§ 42-4-1301.1, 42-4-1301.2, 42-4-1301.3, and 42-4-1301.4. For a detailed comparison of this section, see the comparative tables located in the back of the index.
  
(2) Amendments to subsections (2.5), (3)(a)(II), (3)(b)(I), and (6) by House Bill 94-1029 were harmonized with Senate Bill 94-001.
  
(3) Subsections (7)(e) and (7)(f) were originally numbered as subsection (9)(h), and the amendments to it in House Bill 02-1046 were harmonized with subsections (7)(e) and (7)(f) as they appeared in Senate Bill 02-057.
  
(4) Amendments to subsections (7)(d)(IV)(A) and (7)(d)(IV)(B) by Senate Bill 10-175 were superseded by the repeal of subsection (7) in House Bill 10-1347. For the amendments to subsections (7)(d)(IV)(A) and (7)(d)(IV)(B) that were in effect from April 29, 2010, to July 1, 2010, see chapter 188, Session Laws of Colorado 2010. (L. 2010, p. 807.)
  
(5) Section 14 of chapter 258, Session Laws of Colorado 2010, provides that the act repealing subsection (7) applies to offenses committed on or after July 1, 2010; except that, House Bill 10-1347 shall only take effect if House Bill 10-1338 is enacted and becomes law; the final fiscal estimate for House Bill 10-1338, as determined from the appropriations enacted in said bill, shows a net reduction in the amount of general fund revenues appropriated for the state fiscal year 2010-11 that is equal to or greater than the amount of the general fund appropriation made for the implementation of House Bill 10-1347 for the state fiscal year 2010-11; and the staff director of the joint budget committee files written notice with the revisor of statutes no later than July 15, 2010, that these fiscal requirements are met. The governor signed House Bill 10-1338 on May 25, 2010, and the revisor of statutes received notice that the fiscal requirements have been met.
  
Cross references: (1) For community or useful public service for persons convicted of misdemeanors, see § 18-1.3-507; for community service for juvenile offenders, see § 19-2-308; for additional costs imposed on criminal actions and traffic offenses, see §§ 24-4.1-119 and 24-4.2-104; for provision that the operation of vehicles and the movement of pedestrians pursuant to this section apply upon streets and highways and elsewhere throughout the state, see § 42-4-103 (2)(b); for additional costs levied on alcohol- and drug-related traffic offenses, see § 43-4-402; for community or useful public service for class 1 and class 2 misdemeanor traffic offenders, see § 42-4-1701; for collateral attacks of alcohol- or drug-related traffic offenses, see § 42-4-1702.
  
(2) For the legislative declaration contained in the 2002 act amending subsections (7)(e) and (7)(f), see section 1 of chapter 318, Session Laws of Colorado 2002.
  
ANNOTATION  
 
Analysis
 
I. General Consideration.
II. Presumptions.
III. Prior Convictions.
IV. Useful Public Service.
 
   
I. GENERAL CONSIDERATION.  
 
Am. Jur.2d. See 7A Am. Jur.2d, Automobiles and Highway Traffic, §§ 332-349.
  
C.J.S. See 61A C.J.S., Motor Vehicles, §§ 1382-1389.
  
Law reviews. For comment, "The Theory and Practice of Implied Consent in Colorado", see 47 U. Colo. L. Rev. 723 (1976). For article, "Review of new Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "The New Colorado Per Se DUI Law", see 12 Colo. Law. 1451 (1983). For article, "Drunk Driving Laws: A Study of the Views of Colorado Trial Judges", see 14 Colo. Law. 189 (1985). For article, "DUI Defense Under the Per Se Law", see 14 Colo. Law. 2155 (1985). For comment, "The Constitutionality of Drunk Driving Roadblocks", see 58 U. Colo. L. Rev. 109 (1986-87). For article, "A DUI Primer", see 16 Colo. Law. 2179 (1987). For comment, "Greathouse: Has Colorado Abandoned the Protections of Garcia?", see 59 U. Colo. L. Rev. 351 (1988). For article, "Drinking and Driving: An Update on the 1989 Legislation", see 18 Colo. Law. 1943 (1989). For article, "A Young Lawyer's Guide to DUI Suppression Motions", see 25 Colo. Law. 63 (April 1996). For article, "Plea Bargaining, Legislative Limits, and the Separation of Powers", see 32 Colo. Law. 63 (March 2003).
  
Annotator's note. Since § 42-4-1301 is similar to § 42-4-1301 as it existed prior to its 2002 amendment and § 42-4-1202 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, relevant cases construing those provisions have been included in the annotations to this section.
  
Procedural due process violated when guilty plea to serious offense entered in summary proceeding. In view of the serious consequences which follow the entry of a plea of guilty to driving under the influence of alcohol, the summary disposal immediately after arrest, notwithstanding the belief of the officer, evidenced by the fact that he filed the charge, that the accused was under the influence of liquor, constitutes a serious deprivation of the constitutional right of the accused to a fair trial. It is axiomatic that justice delayed is justice denied, but there are limits to the acceleration process, and the instant procedure was so unjustifiably sudden as to constitute a violation of the constitutional guarantee of procedural due process of law. Toland v. Strohl, 147 Colo. 577, 364 P.2d 588 (1961).
  
A first-time charge of driving while ability impaired is not a petty offense. The general assembly's placement of numerous alcohol and drug-related offenses in a single statute demonstrates an intention to not treat first-time driving while ability impaired offenses as petty offenses. The penalties are dependant upon circumstances that may not be known by the court at the time of arraignment. The penalties for a first-time offense may easily exceed those of a petty offense under §16-10-109. Therefore, defendants are not required to file with a court under §16-10-109 to obtain a trial by jury. Byrd v. Stavely, 113 P.3d 1273 (Colo. App. 2005).
  
Failure to preserve a second sample of the defendant's blood for independent testing did not violate his due process rights under the state constitution because the test for materiality of evidence set forth in People v. Greathouse (742 P.2d 334 (Colo. 1987)) was not met. People v. Humes, 762 P.2d 665 (Colo. 1988).
  
Defendant, who was convicted of vehicular assault while under the influence, vehicular assault by driving recklessly, and driving under the influence, was not denied her right to procedural due process by the prosecution's failure to preserve a second sample of her breath at the time the breathalyzer test was administered to her or to keep the victim's car in storage. Defendant failed to meet the test of materiality set forth in People v. Greathouse (742 P.2d 334 (Colo. 1987)) or the test for bad faith set forth in Arizona v. Youngblood (488 U.S. 51 (1988)). People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).
  
Challenge raised initially on appeal to supreme court not considered. An equal protection challenge to this section not raised during the license revocation review proceedings will not be considered if raised for the first time on appeal to the supreme court. Colgan v. State Dept. of Rev., 623 P.2d 871 (Colo. 1981).
  
Governmental purpose. The implied consent statute serves the distinct governmental purpose of facilitating citizen cooperation in achieving traffic safety by the use of the administrative sanction of revocation upon a refusal to submit to a test, while the statutory authorization for a probationary license is expressly directed towards the "alcohol and drug traffic driving education or treatment" of the convicted traffic offender. DeScala v. Motor Vehicle Div., 667 P.2d 1360 (Colo. 1983).
  
Legislative policy of this state has been to create a graduated scale of penalties arising from driving an automobile after the use of intoxicants. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
The primary purpose of this section is to obtain scientific evidence of the amount of alcohol in the bloodstream in order to curb drunk driving through prosecution for that offense. Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977); Hess v. Tice, 43 Colo. App. 47, 598 P.2d 536 (1979).
  
This section's purpose is to assist in the prosecution of the drinking driver. Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).
  
The terms "intoxicated", "drunk", and "under the influence of intoxicating liquor" are substantially synonymous. There is no reason to allow opinion testimony by a lay witness phrased in one of these terms and to prohibit it when it is phrased in another of these terms. People v. Norman, 194 Colo. 372, 572 P.2d 819 (1977).
  
The terms "drive" and "drove" as used in this section and for purposes of the DUI statute include "actual physical control" of a vehicle, even if the vehicle is not actually moving. Proof that a person is in actual physical control of a vehicle is sufficient to prove that the person drove the vehicle. People v. Swain, 959 P.2d 426 (Colo. 1998).
  
Driving a motor vehicle means exercising physical control over a motor vehicle. Although the court did not instruct the jury that it must find the vehicle was reasonably capable of being rendered operable, it did not err because there was undisputed testimony that the vehicle's alleged inoperability was a result only of a lack of fuel and a dead battery. These circumstances do not, as a matter of law, render a vehicle not reasonably capable of being rendered operable. People v. VanMatre, 190 P.3d 770 (Colo. App. 2008).
  
For general explanation of provisions of this section, see Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).
  
This section is not vague, indefinite, nor uncertain as there are reasonable ascertainable standards by which the guilt of an accused can be determined. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
This section, when read as a whole, provides standards sufficiently precise to inform the defendant of the crime charged. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
Defendant not deprived of his constitutional right to equal protection under this section since all class 2 misdemeanors do not reflect similar criminal conduct to which similar sanctions must be applied, the general assembly is entitled to establish more severe penalties for acts that it believes have greater social impact and graver consequences, and the defendant failed to prove that the mandatory sentencing scheme has impacted him differently from all other persons convicted of similar criminal conduct of driving under the influence. People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).
  
For even a full reading of the penalty section of this section would not apprise the accused of the consequences of the guilty plea. If, as the charge suggests, the accused was under the influence of liquor, he could not give an effectual waiver. The fact that the accused evidenced a desire to accept the impetuous proceedings tendered does not in the present circumstances justify the summary disposition of the charge. Toland v. Strohl, 147 Colo. 577, 364 P.2d 588 (1961).
  
It is a misdemeanor for any person under the influence of intoxicating liquor to drive an automobile on the public highways. Solt v. People, 130 Colo. 1, 272 P.2d 638 (1954); People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).
  
Proceedings under the implied consent law are civil in nature. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976).
  
Traffic laws and revocation procedures contained in §§ 42-2-122 and 42-2-203 are aimed at all drivers who operate a motor vehicle while under the influence of alcohol or while their ability is impaired, regardless of their status as alcoholics or problem drinkers. Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980).
  
Subsection (1)(b) intended to be a less serious offense than subsection (1)(a). The penalty and presumptions of this section clearly show a legislative intent that subsection (1)(b) is a less serious offense than subsection (1)(a), and demonstrates that the general assembly intended to establish two levels of prohibited conduct. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
And is a lesser included offense. Driving while one's ability is impaired due to consumption of alcohol is considered a lesser included offense of driving under the influence of intoxicating liquor if the evidence warrants. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
Driving under the influence is a lesser included offense of aggravated driving after revocation. Merger principles preclude conviction for a lesser included offense of a crime for which a defendant has also been convicted in the same prosecution. People v. Mersman, 148 P.3d 199 (Colo. App. 2006).
  
Misdemeanor offenses under this section are not the same as the felony offenses under § 18-3-205 because the elements and the required proof for conviction are different. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).
  
The misdemeanor count of driving while under the influence of intoxicating liquor is not the same offense as the felony count of inflicting bodily injury by operating an automobile in a reckless manner while under the influence of intoxicating liquor. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).
  
And are not lesser included offenses. Driving under the influence of intoxicating liquor and driving while ability is impaired are not lesser included offenses of the felony charge of inflicting bodily injury while under the influence of intoxicating liquor by driving an automobile in a reckless manner. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).
  
Dismissal of count under this section not bar to prosecution under § 18-3-205. The court's dismissal of a misdemeanor count under this section, which placed the defendant in jeopardy as to that count, did not bar prosecution on felony count under § 18-3-205. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).
  
Dismissal by hearing officer not bar to subsequent action. Absent the sworn report of the law enforcement officer, a hearing officer may dismiss a case without prejudice; and such dismissal is not on the merits and does not bar a subsequent action on the same incident. McBride v. State Dept. of Rev., 626 P.2d 760 (Colo. App. 1981).
  
The refusal of nondriver to take sobriety test is not within the scope of this section. Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).
  
Failure of police to obtain test from unconscious victim pursuant to subsection (7)(c) does not entitle defendant to a dismissal of the charges under this section when the defendant cannot show that the failure was in bad faith. People v. Kearns, 988 P.2d 189 (Colo. App. 1999).
  
Section not applicable to person not driving on public highway. The driver's license revocation provisions of this section do not apply to one who is not driving upon a public highway. Dayhoff v. State Motor Vehicle Div., 42 Colo. App. 91, 595 P.2d 1051 (1979), aff'd, 199 Colo. 363, 609 P.2d 119 (1980).
  
Express consent provision not applicable to federal reservations. The federal Assimilative Crimes Act does not assimilate the express consent provision because the provision is part of state administrative proceedings. United States v. Hopp, 943 F. Supp. 1313 (D. Colo. 1996).
  
There is no requirement in this section that there be both a driving violation and evidence of operating a vehicle while under the influence of or impaired by alcohol. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976); Gilbert v. Dolan, 41 Colo. App. 173, 586 P.2d 233 (1978).
  
Under this section, an officer may make an arrest of one who commits a moving violation and then, if he has probable cause to believe that the person is driving under the influence of alcohol, can request that the driver take a chemical test, even though he is not under arrest at the time for driving under the influence. On the other hand, the officer may, in the first instance, arrest the suspect for driving while under the influence and then request a test be taken. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976).
  
Advisement form must contain reasons for believing driver under influence. The advisement form must contain the officer's reasons for believing a driver was under the influence of alcohol and the officer may not later supplement those reasons by testimony at the implied consent hearing. Marquez v. Charnes, 632 P.2d 640 (Colo. App. 1981).
  
But not reason for stopping driver. It is not necessary for the officer to set out the reason on the advisement form for stopping a driver. Marquez v. Charnes, 632 P.2d 640 (Colo. App. 1981).
  
Grounds for believing driver under the influence limited. The grounds relied on by an officer for believing that a person was driving under the influence of alcohol must be limited to the grounds set forth in the advisement. Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).
  
Inference that person behind wheel was driver held appropriate. The inference drawn by a police officer, that one seated behind the wheel of, and attempting to start, a vehicle stopped in a highway travel lane was a driver thereof, was not inappropriate, and served as an adequate basis for the officer to proceed pursuant to this section. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976).
  
Standard of proof necessary for conviction of driving while under the influence of intoxicating liquor is "substantially under the influence". Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).
  
Standard of intoxication in prosecution for driving while impaired is impairment to the "slightest degree". Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(g)).
  
Reasonable grounds to arrest driver. Evidence that a driver's automobile was weaving across traffic lanes and speeding, that there was an odor of alcohol on the driver's breath, and that the driver did not satisfactorily perform the roadside sobriety tests, is sufficient to support a hearing officer's finding that there existed "reasonable grounds" to believe that the driver was driving under the influence of alcohol. Hall v. Charnes, 42 Colo. App. 111, 590 P.2d 516 (1979).
  
Reasonable grounds to believe licensee was driving under the influence of or impaired by alcohol. Based on his own observations, the information received from the investigating officer and the fact that the licensee did not deny the written allegation in the advisement form that he had been driving a motor vehicle, the officer had reasonable grounds to believe that the licensee had been driving under the influence of or impaired by alcohol. Colo. Dept. of Rev. v. Kirke, 743 P.2d 16 (Colo. 1987) (decided under law in effect prior to 1983 amendment).
  
Police officer is not authorized to request and to direct an arrested driver to submit to alcohol testing absent probable cause for the DUI arrest and also for the initial stop. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).
  
Express consent provision does not apply to roadside sobriety tests. Instead it deals only with the express consent given by any driver on state roads to take a blood or breath test if a peace officer has probable cause to arrest for an alcohol driving offense. United States v. Hopp, 943 F. Supp. 1313 (D. Colo. 1996).
  
Failure to request suppression of test results is waiver of objection. Where defendant not only failed to request suppression of the breath test results but also stipulated to those results and permitted them to be received in evidence without objection, he has waived any right to object on appeal to the admission of this evidence, absent a showing of plain error. People v. Dee, 638 P.2d 749 (Colo. 1981).
  
Defective complaint does not bar prosecution. A complaint charging driving a vehicle "while under the influence of intoxicating liquor or drugs," in the disjunctive, is defective in form only, and an amendment should be allowed to cure this technical irregularity. People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979).
  
Evidence held admissible. Video portion of movie film taken at the time of arrest, showing defendant's refusal to take some of the sobriety tests requested by the police and pictures of his going through one test, later was admissible in prosecution for driving under the influence regardless of fact that the sound on the film had been ordered suppressed by the court because it revealed that defendant invoked his constitutional right to remain silent. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
The appellant's erratic driving behavior constituted sufficient probable cause to stop his car. Thus, the results of the roadside sobriety tests conducted by a deputy sheriff were validly included in the evidence adduced at the hearing under this section. Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974).
  
Claim that roadside sobriety test results should be suppressed from evidence after defendant voluntary consented to performing such tests is without merit. People v. Lowe, 687 P.2d 454 (1984).
  
Evidence of refusal to take a blood or breath test is admissible in evidence at a revocation of license proceeding or at a trial for driving under the influence or while ability impaired, and the effect of subsection (3)(e) is to allow admission of such evidence in every case without a determination of relevancy on a case-by-case basis. Cox v. People, 735 P.2d 153 (Colo. 1987).
  
Weight of toxicologist's testimony is for trier of fact. The weight of a toxicologist's testimony for purposes of establishing whether the defendant was under the influence of intoxicating liquor in prosecution for vehicular homicide is for the trier of fact. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973).
  
Sufficiency of foundation to admit test results as evidence. Prima facie case for introduction of intoxilyzer test results is made when breath testing device is operated by a person certified to use the device and when it is administered in accordance with administrative rules and regulations. Aultman v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 5 (Colo. App. 1985); Malone v. Dept. of Rev., 707 P.2d 363 (Colo. App. 1985).
  
Introduction of operational checklist and testimony that checklist procedures were followed establishes a sufficient foundation to allow admission of breath test results. State does not have to establish by current inspection and certification that breath testing device performed accurately. Aultman v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 5 (Colo. App. 1985); Malone v. Dept. of Rev., 707 P.2d 363 (Colo. App. 1985).
  
Arresting officer's testimony and police report are prima facie evidence that blood test was administered in compliance with rules and regulations. Miller v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 10 (Colo. App. 1985).
  
The failure of the arresting officer to identify which particular nurse drew driver's blood and the failure to establish whether such nurse met the criteria set forth in regulations went to the weight, rather than the admissibility, of blood alcohol test results in driver's license revocation proceeding. Dye v. Charnes, 757 P.2d 1162 (Colo. App. 1988).
  
The delay in obtaining samples did not affect the validity or reliability of the test nor did it affect the admissibility of the test results. The "reasonable time" limitation is to ensure that the request for the test is made close enough in time to the alleged offense that the results will be relevant in the determination of defendant's sobriety at the time of the incident. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
While the timeliness of the blood test may affect its accuracy, evidence which relates to the accuracy of a chemical test affects the weight to be accorded the evidence, rather than its admissibility. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
No error in hearing officer's ruling that testing request made one hour and 58 minutes after the accident was within a "reasonable time". Poe v. Dept. of Rev., 859 P.2d 906 (Colo. App. 1993).
  
Admission of blood test results does not limit any efforts by the defendant to challenge the accuracy of the results, or the weight they are to be given. Nor does it prohibit the jury from considering any other competent evidence regarding the inference of intoxication. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
Evidence held sufficient. When the toxicologist's testimony is considered together with the testimony of the two investigating officers concerning the alcoholic odor about the defendant immediately after the accident and the testimony that defendant was driving on the wrong side of the road, the evidence of defendant being under the influence of intoxicating liquor is abundant and sustains the verdict of guilty of vehicular homicide. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973).
  
Common signs of intoxication and refusal to take a field sobriety and blood alcohol tests constitute sufficient evidence to prove that defendant drove while under the influence of alcohol. People v. Mersman, 148 P.3d 199 (Colo. App. 2006).
  
Odor of alcohol is not inconsistent with ability to operate a motor vehicle in compliance with Colorado law. People v. Roybal, 655 P.2d 410 (Colo. 1982).
  
Sufficient facts for reasonable grounds for implied consent test request. The odor of alcohol on a driver's breath, coupled with the position of his vehicle on an interstate highway, are sufficient facts to constitute reasonable grounds for an officer to request an implied consent test. Stephens v. State Dept. of Rev., 671 P.2d 1348 (Colo. App. 1983).
  
Determining whether one is substantially under influence is jury issue. Given the rebuttable presumptions, if chemical analysis of a defendant's blood is taken or other evidence is offered, juries of common experience can determine whether one is substantially under the influence so as to be incapable of operating a vehicle safely, as distinguished from merely driving while ability is impaired. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
Jury instruction is too broad where it does not recognize the two levels of intoxication created by the general assembly in this section. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).
  
A trial court's instruction on the meaning of "intoxication" is not erroneous where it states that one drink of an intoxicating liquor might produce such a mental and physical condition as to render the defendant "under the influence" of alcohol within the meaning of the statute. Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966).
  
Proper instruction defining "under the influence". Jury should be instructed that in order for one to be found guilty of the charge of "driving while under the influence", the degree of influence must be substantial so as to render the defendant incapable of safely operating a vehicle. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).
  
It is error for an instruction to be given which defines "under the influence" as meaning anything from the slightest to the greatest effect. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).
  
The specific statutory provisions of this section that contain a mandatory sentencing scheme for alcohol-related driving offenses and that provide for extended treatment of the underlying cause of the criminal conduct, prevail over the general provisions of § 16-11-202. People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).
  
Order revoking a driver's license for failure to submit to a chemical test was not stayed by a subsequent district court order declining to order return of the license to the driver but granting him the privilege of driving in the course of his employment. Donelson v. Colo. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).
  
Trial court has no power to award costs to plaintiff in a case challenging revocation of a driver's license under this section, because there is no specific statutory provision allowing for such an award. Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).
  
Before reviewing court sets aside order of revocation as arbitrary or capricious, it must be convinced from the record as a whole that there is a manifest insufficiency of evidence to support the department's decision. Davis v. Colo. Dept. of Rev., 623 P.2d 874 (Colo. 1981).
  
Driving status of "revoked" continues until new license obtained. Until a driver complies with the terms of a denial order and obtains a new license, his driving status as "revoked" or "denied" continues. People v. Lessar, 629 P.2d 577 (Colo. 1981).
  
Expired revocation order continued in effect until driver's application for license approved pursuant to § 42-2-124 (2). Donelson v. Colo. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).
  
A county court has jurisdiction over the subject matter of offenses alleged to have been committed under this section. People v. Griffith, 130 Colo. 475, 276 P.2d 559 (1954).
  
The various degrees of intoxication under this section are all "legal intoxication" for purposes of § 523(a)(9) of the Bankruptcy Code. Dougherty v. Brackett, 51 Bankr. 987 (Bankr. D. Colo. 1985).
  
Categorization of driving under the influence as a vehicular offense precludes a determination that general assembly intended to consider it a drug law offense under the habitual criminal statute (§ 16-13-101 (3)). People v. Wilczynski, 873 P.2d 10 (Colo. App. 1993).
  
Definition of "police officer" is not limited to state, county, or municipal personnel and the Air Force security police are law enforcement officers who can request testing pursuant to subsection (6). Eggleston v. Dept. of Rev. Motor Veh. Div., 895 P.2d 1169 (Colo. App. 1995).
  
County court judge did not abuse his discretion nor exceed his authority in resentencing defendant who was immediately sentenced as provided in subsection (9)(e)(I) after the judge discovered that, contrary to defendant's representations, defendant had a prior charge under this section. Walker v. Arries, 908 P.2d 1180 (Colo. App. 1995).
  
Applied in People v. Oldefest, 192 Colo. 229, 557 P.2d 417 (1976); Rust v. Dolan, 38 Colo. App. 529, 563 P.2d 28 (1977); People v. Smith, 192 Colo. 271, 579 P.2d 1129 (1978); Tobias v. State, 41 Colo. App. 444, 586 P.2d 669 (1978); Zullo v. Charnes, 41 Colo. App. 544, 587 P.2d 1203 (1978); People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); Amon v. People, 198 Colo. 172, 597 P.2d 569 (1979); Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979); Cagle v. Charnes, 43 Colo. App. 401, 604 P.2d 697 (1979); Butters v. Mince, 43 Colo. App. 89, 605 P.2d 922 (1979); Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980); People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980); Charnes v. Kiser, 617 P.2d 1201 (Colo. 1980); Van Gerpen v. Peterson, 620 P.2d 714 (1980); Nix v. Tice, 44 Colo. App. 42, 607 P.2d 399 (1980); Harris v. Charnes, 616 P.2d 996 (Colo. App. 1980); Zamora v. State Dept. of Rev., 616 P.2d 1003 (Colo. App. 1980); People v. Ensor, 632 P.2d 641 (Colo. App. 1981); People v. Beltran, 634 P.2d 1003 (Colo. App. 1981); Zoske v. People, 625 P.2d 1024 (Colo. 1981); People v. Dooley, 630 P.2d 608 (Colo. 1981); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981); State v. Laughlin, 634 P.2d 49 (Colo. 1981); Fish v. Charnes, 652 P.2d 598 (Colo. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983); Stieghorst v. Charnes, 676 P.2d 1227 (Colo. App. 1983); Swim v. Charnes, 717 P.2d 1016 (Colo. App. 1986); Potier v. Dept. of Rev., 739 P.2d 915 (Colo. App. 1987); Knox v. Motor Vehicle Div., 739 P.2d 928 (Colo. App. 1987).
  
II. PRESUMPTIONS.  

 
This section sets up a series of presumptions arising from the amount of alcohol in the blood. Egle v. People, 159 Colo. 217, 411 P.2d 325 (1966).
  
The limitations of this section shall not prevent the consideration of any other competent evidence that defendant was under the influence of intoxicating liquor. Egle v. People, 159 Colo. 217, 411 P.2d 325 (1966).
  
Subsection (2) authorizes only a permissive inference that defendant was under the influence of alcohol. Because of the constitutional conflicts which arise with the use of presumptions in criminal cases and because of the central purposes behind the legislature's enactment of the presumption, subsection (2)(c) is properly construed to authorize only a permissive inference that the defendant was under the influence of alcohol. Barnes v. People, 735 P.2d 869 (Colo. 1987).
  
Instruction which told jurors that they "must accept the presumption as if it had been factually established by the evidence" and that they could reject this presumption only if it was "rebutted by evidence to the contrary" created a mandatory and not a permissive presumption that the petitioner was under the influence of alcohol. Barnes v. People, 735 P.2d 869 (Colo. 1987).
  
Both subsection (2) of this section and § 18-3-106 (2) permit a jury to infer that a defendant was under the influence of alcohol if it finds that the amount of alcohol in his blood at the time of the commission of the alleged offense "or within a reasonable time thereafter," as shown by chemical analysis of the defendant's blood, is 0.10 percent or more. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
Subsection (2)(c) is very specific in limiting the use of its presumption to the misdemeanors of driving any vehicle while under the influence of intoxicating liquor and driving while ability is impaired by the consumption of alcohol. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974).
  
Statutory presumption of subsection (2)(c) is not applicable to a felony charge under § 18-3-106. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974).
  
Defendant's ability to attack validity of presumption that he was driving under the influence of alcohol when he had a blood alcohol level of .10 percent is dependent upon his ability to attack the accuracy of the machine which tested his blood alcohol level. Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979).
  
The blood alcohol test results are statutorily deemed to relate back to the alleged offense for purposes of applying the statutory inferences. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
Jury could infer that the defendant was under the influence at the time of the offense where the prosecution presented evidence that approximately three hours after the accident, defendant's blood alcohol level was above the statutory percentage. Because the circumstances at issue permitted the jury to make such inference, the extrapolation evidence offered to establish a still higher blood alcohol level was neither necessary nor relevant and the admission thereof was harmless error. People v. Emery, 812 P.2d 665 (Colo. App. 1990).
  
Presumption that defendant was under influence specifically does not limit the introduction, reception, or consideration of other competent evidence bearing upon the question of whether or not a defendant was under the influence of intoxicating liquor. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).
  
Thus, moving pictures and their sound are admissible. Moving pictures and their sound, which are relevant and which allegedly show the demeanor and condition of a defendant charged with driving under the influence of either alcohol or drugs, taken at the time of the arrest or soon thereafter, are admissible in evidence even though they show the defendant's refusal to take sobriety and coordination tests, when properly offered in order to show the defendant's demeanor, conduct and appearance, and to show why sobriety and coordination tests were not given. Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966).
  
Even if a defendant objects to the introduction and admission of movies, they still are to be admitted, provided that then the trial court must, at defendant's request, caution the jury as to the limited purpose of the evidence, and again at defendant's request, give a limiting instruction in the general charge for the same purpose. Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966).
  
Evidence of breath analysis results indicating a level of 0.139 grams of alcohol per 210 liters of breath and testimony of both lay witness and law enforcement agents that defendant was driving erratically before the collision and that she exhibited some symptoms of being under the influence after the collision was sufficient to establish that, at the time of the collision, defendant's physical or mental capacities had been adversely affected by her previous consumption of alcohol. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).
  
Jury verdict convicting defendant of driving under the influence and vehicular assault while under the influence is not inconsistent with defendant's acquittal of driving with an excessive blood or breath alcohol content since the jury could well have rejected the reliability of breath tests indicating a level of 0.139 grams of alcohol per 210 liters of breath to show beyond a reasonable doubt an excessive level of alcohol in defendant's breath but could have concluded that her mental and physical capacities had been so affected that she had been under the influence given her admission that she had consumed at least one and one-half glasses of wine. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).
  
 
III. PRIOR CONVICTIONS. 
 
 
Law reviews. For article, "Joinder of Criminal Charges, Election, Duplicity", see 30 Dicta 117 (1953).
  
Subsections (1) and (4) of this section do not create two separate offenses. The obvious purpose of these statutory provisions is to regulate the punishment to be imposed upon the single offense of drunk driving. Righi v. People, 145 Colo. 457, 359 P.2d 656 (1961); Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
Subsection (4) only intended to increase punishment for substantive offense. The guilt of a substantive offense and the proof of prior convictions are clearly severable. Proof of prior convictions or the adjudication that the defendant is an habitual criminal do not involve substantive offenses, but merely provide for increased punishment of those whose prior convictions fall within the scope of these statutes. The important relation between the primary offenses and the prior convictions charged is, therefore, the sentence to be imposed, and the jury does not participate in that. Righi v. People, 145 Colo. 457, 359 P.2d 656 (1961); Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
Former convictions must be in separate counts of the information, and then it appears to be the accepted practice that when arraignment is had, the defendant be fully advised of these counts in the information. Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953); Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
The use of the proof of convictions of second or more offenses cannot obtain until guilt of the substantive offense on trial is established. Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953); Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
The same jury need not be utilized in both segments in the prosecution of a drunk driving charge aggravated by a charge of a prior conviction within five years. Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
However, proof may be offered to the same jury if a guilty verdict has been returned on the substantive count. Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953).
  
Abuse of discretion to set aside guilty verdict on substantive offense and order another trial on second count of prior conviction. Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
When the sole question on remand from an appellate court involves the proof of an alleged prior conviction, there is no reason to require the parties to retry the question of guilt of the primary offenses when the correctness of that determination is not challenged. There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses. Quintana v. People, 169 Colo. 295, 455 P.2d 210 (1969).
  
IV. USEFUL PUBLIC SERVICE.  
 
Although the useful public service statute may not impose specific duties upon a public employee so as to allow application of the doctrine of negligence per se, under the facts of this case, a special relationship between the sheriff and offender under the program was created which brought into existence a duty on the part of the sheriff to use due care in selecting entities for whom service would be rendered and monitoring the offender's work under the program. Felger v. Bd. of County Comm'rs, 776 P.2d 1169 (Colo. App. 1989).

 

42-4-1301.1. Expressed consent for the taking of blood, breath, urine, or saliva sample- testing.

(1) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person's consent to the provisions of this section.

(2)(a)(1) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, habitual user, or UDD. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that the test be a blood test, then the test shall be of his or her blood; but, if the person requests that a specimen of his or her blood not be drawn, then a specimen of the person's breath shall be obtained and tested. A person who is under twenty-one years of age shall be entitled to request a blood test unless the alleged violation is UDD, in which case a specimen of the person's breath shall be obtained and tested, except as provided in subparagraph (II) of this paragraph (a).

(II) Except as otherwise provided in paragraph (a.5) of this subsection (2), if a person elects either a blood test or a breath test, the person shall not be permitted to change the election, and, if the person fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing. If the person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity, or if the person is receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available, the test shall be of the person's blood.

(III) If a law enforcement officer requests a test under this paragraph (a), the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving.

(a.5)(I) if a law enforcement officer who requests a person to take a breath or blood test under paragraph (a) of this subsection (2) determines there are extraordinary circumstances that prevent the completion of the test elected by the person within the two-hour time period required by subparagraph (III) of paragraph (a) of this subsection (2), the officer shall inform the person of the extraordinary circumstances and request and direct the person to take and complete the other test described in paragraph (a) of this subsection (2). The person shall then be required to take and complete, and to cooperate in the completeing of, the other test.

(II) A person who initially requests and elects to take a blood or breath test, but who is requested and directed by the law enforcement officer to take the other test because of extraordinary circumstances described in subparagraph (I) of this paragraph (a.5), may change his or her election for the purpose of complying with the officer's request. The change in the election of which test to take shall not be deemed to be a refusal to submit to testing.

(III) If the person fails to take and complete, and to cooperate in the completeing of, the other test requested by the law enforcement officer pursuant to subparagraph (I) of this paragraph (a.5), the failure shall be deemed to be a refusal to submit to testing.

(IV)(A) As used in this paragraph (a.5), "extraordinary circumstances" means circumstances beyond the control of, and not crested by, the law enforcement officer who requests and directs a person to take a blood or breath test in accordance with this subsection (2) or the law enforcement authority with whom the officer is employed.

(B) "Extraordinary circumstances" includes, but shall not be limited to, weather-related delays, high call volume affecting medical personnel, power outages, malfunctioning breath test equipment, and other circumstances that preclude the timely collection and testing of a blood or breath sample by a qualifies person in accordance with law.

(C) "Extraordinary circumstances" does not include inconvenience, a busy workload on the part of the law enforcement officer or law enforcement authority, minor delay that does not compromise the two-hour test period specified in subparagraph (III) of paragraph (a) of this subsection (2), or routine circumstances that are subject to the control of the law enforcement officer or law enforcement authority.

(b)(1)  A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to submit to and to complete, and to cooperate in the completing of, a test or tests of such person's blood, saliva, and urine for the purpose of determining the drug content within the person's system when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI or habitual user and when it is reasonable to require such testing of blood, saliva, and urine to determine whether such person was under the influence of, or impaired by, one or more drugs, or one or more controlled sunstances, or a combination of both alcohol and one or more drugs, or a combination of both alcohol and one or more controlled substances.

(II) If a law enforcement officer requests a test under this paragraph (b), the person must cooperate with the request such that the sample of blood, saliva, or urine can be obtained within two hours of the person's driving.

(3) Any person who is required to take and to complete, and to cooperate in the completeing of, any test or tests shall cooperate with the person authorized to obtain specimens of suck person"s blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to release such specimens, including the signing of any release or consent forms, such as noncooperation shall be considered a refusal to submit to testing. No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person's blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed 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., and the person is refusing to take or to complete, or to cooperate in the completeing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.

(4) Any driver of a commercial motor vehicle requested to submit to a test as provided in paragraph (a) or (b) of subsection (2) of this section shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test shall result in an out-of-service order as defined under section 42-2-402 (8) for a period of twenty-four hours and a revocation of the privilege to operate a commercial motor vehicle for one year as provided under section 42-2-126.

(5) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person had been driving a motor vehicle in violation of section 42-4-1301 and in accordance with rules and regulations prescribed by the department of public health and environment concerning the health of the person being tested and accuracy of such testing.

(6)(a) No person except a physician, a registered nurse, a paramedic, as certified in part 2of article3.5 of title 25, C.R.S., an emergency medical technician, as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein.

(b) No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained as provided in this section as a result of the act of obtaining such specimens from any person submitting thereto if such specimens were obtained according to the rules and regulations prescribed by the department of public health and environment; except that this provision shall not relieve any such person from the liability for negligence in the obtaining of any specimen sample.

(7) A preliminary screening test conducted by a law enforcement officer pursuant to section 42-4-1301 (6)(i) shall not substitute for or qualify as the test or tests required by subsection (2) of this section.

(8) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person's blood or any drug content within such person's system as provided in this section. If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva that was obtained but not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider that shows the alcohol or drug content of the person's blood, urine, or saliva or any drug content within the person's system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have the person's blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made part of the accident report.

Source: L.2002: Entire section added with relocations, p.1907, 3, effective July 1. L.2007: (2)(a) amended and (2)(a.5) added, p.1022, 1, effective July 1.

Editor's note: This section is familiar to former 42-4-1301 (6), (7)(a), (7)(b), and (7)(c) and 42-2-126 (2)(a)(II) as they existed prior to 2002.

 

42-4-1301.3. Alcohol and drug driving safety program.

(1)(a) Upon conviction of a violation of section 42-4-1301, the court shall sentence the defendant in accordance with the provisions of this section and other applicable provisions of this part 13. The court shall consider the alcohol and drug evaluation required pursuant to this section prior to sentencing; except that the court may proceed to immediate sentencing without considering such alcohol and drug evaluation:

(I)(A) If the defendant has no prior convictions or pending charges under this section; or

(B) If the defendant has one or more prior convictions, the prosecuting attorney and the defendant have stipulated to such convictions; and

(II) If neither the defendant nor the prosecuting attorney objects.

(b) If the court proceeds to immediate sentencing, without considering an alcohol and drug evaluation, the alcohol and drug evaluation shall be conducted after sentencing, and the court shall order the defendant to complete the education and treatment program recommended in the alcohol and drug evaluation. If the defendant disagrees with the education and treatment program recommended in the alcohol and drug evaluation, the defendant may request the court to hold a hearing to determine which education and treatment program should be completed by teh defendant.

(2) (Deleated by amendment, L.2011, (HB 11-1268), ch.267, p.1217, 1, effective June 2,2011.)

(3)(a) The judicial department shall administer in each judicial district an alcohol and drug driving safety program that provides presentence and postsentence alcohol and drug evaluation on all persons convicted of a violation of section 42-4-1301. The alcohol and drug driving safety program shall further provide supervision and monitoring of all such persons whose sentences or terms of probation require completion of a program of alcohol and drug driving safety education or treatment.

(b) The presentence and postsentence alcohol and drug evaluations shall be conducted by such persons determined by the judicial department to be qualified to provide evaluation and supervision services as described in this section.

(c)(I) An alcohol and drug evaluation shall be conducted on all persons convicted of a violation of section 42-4-1301, and a copy of the report of the evaluation shall be provided to such person. The report shall be made available to and shall be considered by the court prior to sentencing unless the court proceeds to immediate sentencing pursuant to the provisions of subsection (1) of this section.

(II) The report shall contain the defendant"s prior traffic record, characteristics and history of alcohol or drug problems, and amenability to rehabilitation. The report shall include a recommendation as to alcohol and drug driving safety education or treatment for the defendant.

(III) The alcohol evaluation shall be conducted and the report prepared by a person who is trained and knowledgeable in the diagnosis of chemical dependency. Such person's duties may also include appearing at sentencing and probation hearings as required, referring defendants to education and treatment agencies in accordance with orders of the court, monitoring defendants in education and treatment programs, notifying the probation department and the court of any defendant failing to meet the conditions of probation or referral to education or treatment, appearing at revocation hearings as required, and providing assistance in data reporting and program evaluation.

(IV) For the purpose of this section, "alcohol and drug driving safety education or treatment" means either level I or level II education or treatment programs that are approved by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse. Level I programs are to be short-term, didactic education programs. Level II programs are to be therapeutically oriented education, long-term outpatient, and comprehensive residential programs. Any defendant sentenced to level I or level II programs shall be instructed by the court to meet all financial obligations of such programs. If such financial obligations are not met, the sentencing court shall be notified for the purpose of collection or review and further action on the defendant's sentence. Nothing in this section shall prohibit treatment agencies from applying to the state for funds to recover the costs of level II treatment for defendants determined to be indigent by the court.

(4)(a) There is hereby created an alcohol and drug driving safety program fund in the office of the state treasurer to the credit of which shall be deposited all moneys as directed by this paragraph (a). The assessment in effect on July 1, 1998, shall remain in effect unless the judicial department and the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, have provided to the general assembly a statement of the cost of the program, including costs of administration for the past and current fiscal year to include a proposed change in the assessment. The general assembly shall then consider the proposed new assessment and approve the amount to be assessed against each person during the fiscal year in order to ensure that the alcohol and drug driving safety program established in this section shall be financially self-supporting. Any adjustments in the amount to be assessed shall be so noted in the appropriation to the judicial department and the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, as a footnote or line item related to this program in the general appropriation bill. The state auditor shall periodically audit the costs of the programs to determine that they are reasonable and that the rate charged is accurate based on these costs. Any other fines, fees, or costs levied against such person shall not be part of the program fund. The amount assessed for the alcohol and drug evaluation shall be transmitted by the court to the state treasurer, who shall credit the fees to the alcohol and drug driving safety program fund. Upon appropriation by the general assembly, these funds shall be expended by the judicial department and the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, for the administration of the alcohol and drug driving safety program. In administering the alcohol and drug driving safety program, the judicial department is authorized to contract with any agency for such services as the judicial department deems necessary. Moneys deposited in the alcohol and drug driving safety program fund shall remain in said fund to be used for the purposes set forth in this section and shall not even revert or transfer to the general fund except by further act of the general assembly.

(b) The judicial department shall ensure that qualified personnel are placed in the judicial districts. The judicial department and the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, shall jointly develop and maintain criteria for evaluation techniques, treatment referral, data reporting, and program evaluation.

(c) The alcohol and drug driving safety program shall cooperate in providing services to a defendant who resides in a judicial district other than the one in which the arrest was made. Aqlcohol and drug driving safety programs may cooperate in providing services to any defendant who resides at a location closer to another judicial district's program. The requirements of this section shall not apply to persons who are not residents of Colorado at the time of sentencing.

(d) Notwithstanding any provision of paragraph (a) of this subsection (4) to the contrary, on March 5, 2003, the state treasurer shall deduct one million dollars from the alcohol and drug driving safety program fund and transfer such sum to the general fund.

(5) The provisions of this section are also applicable to any defendant who receives a deferred prosecution in accordance with section 18-1.3-101, C.R.S., or who receives a deferred sentence in accordance with section 18-1.3-102, C.r.S., and the completion of any stipulated alcohol evaluation, level I or level II education program, or level I or level II treatment program to be completed by the defendant shall be ordered by the court in accordance with the condition of such deferred prosecution or deferred sentence as stipulated to by the prosecution and the defendant.

(6) An approved alcohol or drug treatment facility that provides level I or level II programs as provided in paragraph (c) of subsection (3) of this section shall not require a person to repeat any portion of an alcohol and drug driving safety education or treatment program that he or she has successfully completed while he or she was imprisioned for the current offense.

Source: L.2002: Entire section added with relocations, p. 1907, 3, effective July1; (5) amended, p. 1561, 368, effective October 1. L.2003: (4)(d) added, p. 459, 22, effective March 5. L.2010: (4)(a) amended, (SB 10-175), ch.188, p. 808, 87, effective April 29; IP(2)(a)(I) amended and (6) added, (HB 10-1347), ch.258, p.1159, 5, effective July 1. L.2011: (1) and (2) amended, (HB 11-1268), ch.267, p.1217, 1, effective June 2; (3)(c)(IV) and (4)(b) amended, (HB 11-1303), ch.264, p.1182, 110, effective August 10.

Editor's note: (1) This section is similar to former 42-4-1301 (9)(e)(I), (9)(f)(I), (9),(f)(II), and (10) as it existed prior to 2002.

(2) Subsection (5) was originally numbered as 42-4-1301 (10)(g), and the amendments to it in House Bill 02-1046 were harmonized with subsection (5) as it appeared in Senate Bill 02-057.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (5), see section 1 of chapter 318, Session Laws of Colorado 2002.

 

42-4-1305. Open alcoholic beverage container- motor vehicle- prohibited.

(1) Definitions. As used in this section, unless the context otherwise requires:

(a) “Alcoholic beverage” means a beverage as defined in 23 CFR 1270.3 (a).

(b) “Motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways but does not include a vehicle operated exclusively on a rail or rails.

(c) “Open alcoholic beverage container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and:

(I) That is open or has a broken seal; or

(II) The contents of which are partially removed.

(d) “Passenger area” means the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in his or her seating position, including but not limited to the glove compartment.

(2) (a) Except as otherwise permitted in paragraph (b) of this subsection (2), a person while in the passenger area of a motor vehicle that is on a public highway of this state or the right-of-way of a public highway of this state may not knowingly:

(I) Drink an alcoholic beverage; or

(II) Have in his or her possession an open alcoholic beverage container.

(b) The provisions of this subsection (2) shall not apply to:

(I) Passengers, other than the driver or a front seat passenger, located in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation;

(II) The possession by a passenger, other than the driver or a front seat passenger, of an open alcoholic beverage container in the living quarters of a house coach, house trailer, motor home, as defined in section 42-1-102 (57), or trailer coach, as defined in section 42-1-102 (106) (a);

(III) The possession of an open alcoholic beverage container in the area behind the last upright seat of a motor vehicle that is not equipped with a trunk; or

(IV) The possession of an open alcoholic beverage container in an area not normally occupied by the driver or a passenger in a motor vehicle that is not equipped with a trunk.

(c) A person who violates the provisions of this subsection (2) commits a class A traffic infraction and shall be punished by a fine of fifty dollars and a surcharge of seven dollars and eighty cents as provided in section 42-4-1701 (4) (a) (I) (N).

(3) Nothing in this section shall be construed to preempt or limit the authority of any statutory or home rule town, city, or city and county to adopt ordinances that are no less restrictive than the provisions of this section.

Source: L.2005: entire section added, p.1187, 1 effective July 1.

 

42-4-1307. Penalties for traffic offenses involving alcohol and drugs- repeal.

(1) Legislative declaration. The general assembly hereby finds and declares that, for the purposes of sentencing as described in section 18-1-102.5, C.R.S., each sentence for a conviction of a violation of section 42-4-1301 shall include:

(a) A period of imprisonment, which, for a repeat offender, shall include a mandatory minimum period of imprisonment and restrictions on where and how the sentence may be served; and

(b) A period of probation. The purpose of probation is to help the offender change his or her behavior to reduce the risk of future violations of section 42-4-1301. If a court imposes imprisonment as a penalty for a violation of a condition of his or her probation, the penalty shall constitute a separate period of imprisonment that the offender shall serve in addition to the imprisonment component of his or her original sentence.

(2) Definitions. As used in this section, unless the context otherwise requires:

(a) “Conviction” means a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by the court for an offense or adjudication for an offense that would constitute a criminal offense if committed by an adult. “Conviction” also includes having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.

(b) “Driving under the influence” or “DUI” 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, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) “Driving while ability impaired” or “DWAI” 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.

(d) “UDD” shall have the same meaning as provided in section 42-1-102 (109.7).

(3) First offenses – DUI, DUI per se, and habitual user. (a) Except as otherwise provided in subsections (5) and (6) of this section, a person who is convicted of DUI, DUI per se, or habitual user shall be punished by:

(I) Imprisonment in the county jail for at least five days but no more than one year, the minimum period of which shall be mandatory except as otherwise provided in section 42-4-1301.3;

(II) A fine of at least six hundred dollars but no more than one thousand dollars; and

(III) At least forty-eight hours but no more than ninety-six hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of such service.

(b) Notwithstanding the provisions of subparagraph (I) of paragraph (a) of this subsection (3), and except as described in paragraphs (a) and (b) of subsection (5) and paragraph (a) of subsection (6) of this section, a person who is convicted of DUI 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 shall be punished by imprisonment in the county jail for at least ten days but not more than one year; except that the court shall have the discretion to employ the sentencing alternatives described in section 18-1.3-106, C.R.S.

(c) In addition to any penalty described in paragraph (a) of this subsection (3), the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.

(4) First offenses – DWAI.(a) Except as otherwise provided in subsections (5) and (6) of this section, a person who is convicted of DWAI shall be punished by:

(I) Imprisonment in the county jail for at least two days but no more than one hundred eighty days, the minimum period of which shall be mandatory except as provided in section 42-4-1301.3; and

(II) A fine of at least two hundred dollars but no more than five hundred dollars; and

(III) At least twenty-four hours but no more than forty-eight hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of such service.

(b) Notwithstanding the provisions of subparagraph (I) of paragraph (a) of this subsection (4), and except as described in paragraphs (a) and (b) of subsection (5) and paragraph (a) of subsection (6) of this section, a person who is convicted of DWAI when the person’s BAC was 0.20 or more at the time of driving or within two hours after driving shall be punished by imprisonment in the county jail for at least ten days but not more than one year; except that the court shall have the discretion to employ the sentencing alternatives described in section 18-1.3-106, C.R.S.

(c) In addition to any penalty described in paragraph (a) of this subsection (4), the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.

(5) Second offenses. (a) Except as otherwise provided in subsection (6) of this section, a person who is convicted of DUI, DUI per se, DWAI, or habitual user who, at the time of sentencing, has a prior conviction of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person’s driver’s license was under restraint pursuant to section 42-2-138 (1) (d), shall be punished by:

(I) Imprisonment in the county jail for at least ten consecutive days but no more than one year; except that the court shall have discretion to employ the sentencing alternatives described in section 18-1.3-106, C.R.S. During the mandatory ten-day period of imprisonment, the person shall not be eligible for earned time or good time pursuant to section 17-26-109, C.R.S., or for trusty prisoner status pursuant to section 17-26-115, C.R.S.; except that the person shall receive credit for any time that he or she served in custody for the violation prior to his or her conviction.

(II) A fine of at least six hundred dollars but no more than one thousand five hundred dollars;

(III) At least forty-eight hours but no more than one hundred twenty hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of the service; and

(IV) A period of probation of at least two years, which period shall begin immediately upon the commencement of any part of the sentence that is imposed upon the person pursuant to this section, and a suspended sentence of imprisonment in the county jail for one year, as described in subsection (7) of this section.

(b) If a person is convicted of DUI, DUI per se, DWAI, or habitual user and the violation occurred less than five years after the date of a previous violation for which the person was convicted of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person’s driver’s license was under restraint pursuant to section 42-2-138 (1) (d), the court shall not have discretion to employ any sentencing alternatives described in section 18-1.3-106, C.R.S., during the minimum period of imprisonment described in subparagraph (I) of paragraph (a) of this subsection (5); except that a court may allow the person to participate in a program pursuant to section 18-1.3-106 (1) (a) (II), (1) (a) (IV), or (1) (a) (V), C.R.S., only if the program is available through the county in which the person is imprisoned and only for the purpose of:

(I) Continuing a position of employment that the person held at the time of sentencing for said violation;

(II) Continuing attendance at an educational institution at which the person was enrolled at the time of sentencing for said violation; or

(III) Participating in a court-ordered level II alcohol and drug driving safety education or treatment program, as described in section 42-4-1301.3 (3) (c) (IV).

(c) Notwithstanding the provisions of section 18-1.3-106 (12), C.R.S., if, pursuant to paragraph (a) or (b) of this subsection (5), a court allows a person to participate in a program pursuant to section 18-1.3-106, C.R.S., the person shall not receive one day credit against his or her sentence for each day spent in such a program, as provided in said section 18-1.3-106 (12), C.R.S.

(6) Third and subsequent offenses.(a) A person who is convicted of DUI, DUI per se, DWAI, or habitual user who, at the time of sentencing, has two or more prior convictions of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person’s driver’s license was under restraint pursuant to section 42-2-138 (1) (d) shall be punished by:

(I) Imprisonment in the county jail for at least sixty consecutive days but no more than one year. During the mandatory sixty-day period of imprisonment, the person shall not be eligible for earned time or good time pursuant to section 17-26-109, C.R.S., or for trusty prisoner status pursuant to section 17-26-115, C.R.S.; except that a person shall receive credit for any time that he or she served in custody for the violation prior to his or her conviction. During the mandatory period of imprisonment, the court shall not have any discretion to employ any sentencing alternatives described in section 18-1.3-106, C.R.S.; except that the person may participate in a program pursuant to section 18-1.3-106 (1) (a) (II), (1) (a) (IV), or (1) (a) (V), C.R.S., only if the program is available through the county in which the person is imprisoned and only for the purpose of:

(A) Continuing a position of employment that the person held at the time of sentencing for said violation;

(B) Continuing attendance at an educational institution at which the person was enrolled at the time of sentencing for said violation; or

(C) Participating in a court-ordered level II alcohol and drug driving safety education or treatment program, as described in section 42-4-1301.3 (3) (c) (IV);

(II) A fine of at least six hundred dollars but no more than one thousand five hundred dollars;

(III) At least forty-eight hours but no more than one hundred twenty hours of useful public service, and the court shall not have discretion to suspend the mandatory minimum period of performance of the service; and

(IV) A period of probation of at least two years, which period shall begin immediately upon the commencement of any part of the sentence that is imposed upon the person pursuant to this section, and a suspended sentence of imprisonment in the county jail for one year, as described in subsection (7) of this section.

(b) Notwithstanding the provisions of section 18-1.3-106 (12), C.R.S., if, pursuant to paragraph (a) of this subsection (6), a court allows a person to participate in a program pursuant to section 18-1.3-106 (1) (a) (II), (1) (a) (IV), or (1) (a) (V), C.R.S., the person shall not receive one day credit against his or her sentence for each day spent in such a program, as provided in said section 18-1.3-106 (12), C.R.S.

(7) Probation-related penalties. When a person is sentenced to a period of probation pursuant to subparagraph (IV) of paragraph (a) of subsection (5) of this section or subparagraph (IV) of paragraph (a) of subsection (6) of this section:

(a) The court shall impose, in addition to any other condition of probation, a sentence to one year of imprisonment in the county jail, which sentence shall be suspended, and against which sentence the person shall not receive credit for any period of imprisonment to which he or she is sentenced pursuant to subparagraph (I) of paragraph (a) of subsection (5) of this section or subparagraph (I) of paragraph (a) of subsection (6) of this section;

(b) The court:

(I) Shall include, as a condition of the person’s probation, a requirement that the person complete a level II alcohol and drug driving safety education or treatment program, as described in section 42-4-1301.3 (3) (c) (IV), at the person’s own expense;

(II) May impose an additional period of probation for the purpose of monitoring the person or ensuring that the person continues to receive court-ordered alcohol or substance abuse treatment, which additional period shall not exceed two years, as described in subsection (11) of this section;

(III) May require that the person commence the alcohol and drug driving safety education or treatment program described in subparagraph (I) of this paragraph (b) during any period of imprisonment to which the person is sentenced;

(IV) May require the person to appear before the court at any time during the person’s period of probation;

(V) May require the person to use an approved ignition interlock device, as defined in section 42-2-132.5 (7) (a), during the period of probation at the person’s own expense;

(VI) May require the person to submit to continuous alcohol monitoring using such technology or devices as are available to the court for such purpose; and

(VII) May impose such additional conditions of probation as may be permitted by law.

(c) (I) The court may impose all or part of the suspended sentence described in subparagraph (IV) of paragraph (a) of subsection (5) of this section or subparagraph (IV) of paragraph (a) of subsection (6) of this section at any time during the period of probation if the person violates a condition of his or her probation. During the period of imprisonment, the person shall continue serving the probation sentence with no reduction in time for the sentence to probation.A cumulative period of imprisonment imposed pursuant to this paragraph (c) shall not exceed one year.

(II) In imposing a sentence of imprisonment pursuant to subparagraph (I) of this paragraph (c), the court shall consider the nature of the violation, the report or testimony of the probation department, the impact on public safety, the progress of the person in any court-ordered alcohol and drug driving safety education or treatment program, and any other information that may assist the court in promoting the person’s compliance with the conditions of his or her probation. Any imprisonment imposed upon a person by the court pursuant to subparagraph (I) of this paragraph (c) shall be imposed in a manner that promotes the person’s compliance with the conditions of his or her probation and not merely as a punitive measure.

(d) The prosecution, the person, the person’s counsel, or the person’s probation officer may petition the court at any time for an early termination of the period of probation, which the court may grant upon a finding of the court that:

(I) The person has successfully completed a level II alcohol and drug driving safety education or treatment program pursuant to subparagraph (I) of paragraph (b) of this subsection (7);

(II) The person has otherwise complied with the terms and conditions of his or her probation; and

(III) Early termination of the period of probation will not endanger public safety.

(8) Ignition interlock devices. In sentencing a person pursuant to this section, courts are encouraged to require the person to use an approved ignition interlock device, as defined in section 42-2-132.5 (7) (a), as a condition of bond, probation, and participation in programs pursuant to section 18-1.3-106, C.R.S.

(9) Previous convictions. (a) For the purposes of subsections (5) and (6) of this section, a person shall be deemed to have a previous conviction for DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person’s driver’s license was under restraint pursuant to section 42-2-138 (1) (d), if the person has been convicted under the laws of this state or 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, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person’s driver’s license was under restraint pursuant to section 42-2-138 (1) (d).

(b) (I) For sentencing purposes concerning convictions for second and subsequent offenses, prima facie proof of a person’s previous convictions shall be established when:

(A) The prosecuting attorney and the person stipulate to the existence of the prior conviction or convictions;

(B) The prosecuting attorney presents to the court a copy of the person’s driving record provided by the department of revenue or by a similar agency in another state, which record contains a reference to the previous conviction or convictions; or

(C) The prosecuting attorney presents an authenticated copy of the record of the previous conviction or judgment from a 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.

(II) The court shall not proceed to immediate sentencing if the prosecuting attorney and the person have not stipulated to previous convictions or if the prosecution has requested 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.

(10) Additional costs and surcharges. In addition to the penalties prescribed in this section:

(a) 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;

(b) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to a surcharge of at least one hundred dollars but no more than five hundred dollars to fund programs to reduce the number of persistent drunk drivers. The surcharge shall be mandatory, and the court shall not have discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge if the court determines that a person is indigent. Moneys collected for the surcharge shall be transmitted to the state treasurer, who shall credit the amount collected to the persistent drunk driver cash fund created in section 42-3-303.

(c) 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 moneys collected for the surcharge in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S.;

(d) (I) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to a surcharge of at least one dollar but no more than ten dollars for programs to fund efforts to address alcohol and substance abuse problems among persons in rural areas. The surcharge shall be mandatory, and the court shall not have discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge if the court determines that a person is 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 27-80-117 (3), C.R.S.

(II) This paragraph (d) 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 27-80-117, C.R.S.

(11) Additional probation.In addition to any other penalty provided by law, a court may sentence a person who is twice or more convicted of DUI, DUI per se, DWAI, habitual user, or UDD to a period of probation not to exceed two additional years to monitor the person’s compliance with court orders. As a condition of any sentence to probation, the person shall be required to make restitution in accordance with the provisions of section 18-1.3-205, C.R.S.

(12) Victim impact panels. In addition to any other penalty provided by law, the court may sentence a person convicted of DUI, DUI per se, DWAI, habitual user, or UDD to attend and pay for one appearance at a victim impact panel approved by the court, for which the fee assessed to the person shall not exceed twenty-five dollars.

(13) Alcohol and drug evaluation and supervision costs. In addition to any fines, fees, or costs levied against a person convicted of DUI, DUI per se, DWAI, habitual user, or UDD, the judge shall assess each such person for the cost of the presentence or postsentence alcohol and drug evaluation and supervision services.

(14) Public service penalty. 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 a person required to perform useful public service.

(15) If a defendant is convicted of aggravated driving with a revoked license based upon the commission of DUI, DUI per se, or DWAI pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B):

(a) The court shall convict and sentence the offender for each offense separately;

(b) The court shall impose all of the penalties for the alcohol-related driving offense, as such penalties are described in this section;

(c) The provisions of section 18-1-408, C.R.S, shall not apply to the sentences imposed for either conviction;

(d) Any probation imposed for a conviction under section 42-2-206 may run concurrently with any probation required by this section; and

(e) The department shall reflect both convictions on the defendant’s driving record.

Source: L.2010: Entire section added, (HB 10-1347), ch. 258, p. 1149, 2, effective July 1. L.2011: (1)(b), (3)(a)(I), (3)(a)(II), (4)(a)(I), (4)(a)(II), (5)(a)(II), (6)(a)(II), (7)(b)(II), and (11) amended, (HB 11-1268), ch. 267, p.1218, 2, effective June 2.

 

 
 
     

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