Section 42-2-138 - Driving under restraint - penalty - definitions(1)(a) Except as provided in subsection (1.5) of this section, any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, or UDD is guilty of a class A traffic infraction.(b) Upon a second or subsequent conviction under paragraph (a) of this subsection (1) within five years after the first conviction thereunder, in addition to any penalty imposed pursuant to said paragraph (a) of this subsection (1), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver's or minor driver's license or extended any driving privilege in this state for a period of three years after such second or subsequent conviction.(c) This subsection (1) shall apply only to violations committed on or after July 1, 1974.(d)(I) A person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or nonresident, is restrained under section 42-2-126(3), is restrained solely or partially because of a conviction of DUI, DUI per se, DWAI, or UDD, or is restrained in another state solely or partially because of an alcohol-related driving offense commits a class 2 misdemeanor traffic offense. Upon a second or subsequent conviction, the person shall be punished by a fine of not less than five hundred dollars nor more than three thousand dollars.(II) In any trial for a violation of subparagraph (I) of this paragraph (d), a duly authenticated copy of the record of the defendant's former convictions and judgments for DUI, DUI per se, DWAI, or UDD or an alcohol-related offense committed in another state from any court of record or a certified copy of the record of any denial or revocation of the defendant's driving privilege under section 42-2-126(3) from the department shall be prima facie evidence of the convictions, judgments, denials, or revocations and may be used in evidence against the defendant. Identification photographs and fingerprints that are part of the record of the former convictions, judgments, denials, or revocations and the defendant's incarceration after sentencing for any of the former convictions, judgments, denials, or revocations shall be prima facie evidence of the identity of the defendant and may be used in evidence against the defendant.(e) Upon a second or subsequent conviction under subparagraph (I) of paragraph (d) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said subparagraph (I), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a driver's or minor driver's license or extended any driving privilege in this state for a period of four years after such second or subsequent conviction.(f) Upon a verdict or judgment of guilt for a violation of subsection (1)(a) or (1)(d) of this section, the court shall require the offender to immediately surrender the offender's driver's license, minor driver's license, temporary driver's license, or instruction permit issued by this state, another state, or a foreign country. The court shall forward to the department a notice of the verdict or judgment of guilt on the form prescribed by the department, together with the offender's surrendered license or permit. Any person who violates the provisions of this subsection (1)(f) by failing to surrender his or her license or permit to the court commits a class 2 misdemeanor traffic offense.(1.5) Any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or a nonresident, is under restraint for an outstanding judgment is guilty of a class A traffic infraction as defined in section 42-4-1701(3).(2)(a) In a prosecution for a violation of this section, the fact of the restraint may be established by certification that a notice was mailed by first-class mail pursuant to section 42-2-119(2) to the last-known address of the defendant, or by the delivery of such notice to the last-known address of the defendant, or by personal service of such notice upon the defendant.(b) In a prosecution for a violation of this section, the fact of restraint in another state may be established by certification that notice was given in compliance with such state's law.(2.5) A municipality may enforce violations of subsection (1.5) of this section in municipal court. A municipal court shall not waive or reduce the three-point penalty.(3) The department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle, shall immediately examine its files to determine if the license or operating privilege of such person has been restrained. If it appears that said offense was committed while the license or operating privilege of such person was restrained for a reason other than an outstanding judgment, except as permitted by section 42-2-132.5, the department shall not issue a new license or grant any driving privileges for an additional period of one year after the date such person would otherwise have been entitled to apply for a new license or for reinstatement of a suspended license and shall notify the district attorney in the county where such violation occurred and request prosecution of such person under subsection (1) of this section.(4) For purposes of this section, the following definitions shall apply: (a) "Knowledge" means actual knowledge of any restraint from whatever source or knowledge of circumstances sufficient to cause a reasonable person to be aware that such person's license or privilege to drive was under restraint. "Knowledge" does not mean knowledge of a particular restraint or knowledge of the duration of restraint.(b) "Restraint" or "restrained" means any denial, revocation, or suspension of a person's license or privilege to drive a motor vehicle in this state or another state.(5) It shall be an affirmative defense to a violation of this section, based upon a restraint in another state, that the driver possessed a valid driver's license issued subsequent to the restraint that is the basis of the violation.Amended by 2022 Ch. 68,§36, eff. 3/1/2022.Amended by 2021 Ch. 462,§710, eff. 3/1/2022.Amended by 2020 Ch. 70,§53, eff. 9/14/2020.Amended by 2017 Ch. 208,§1, eff. 8/9/2017.L. 94: Entire title amended with relocations, p. 2155, § 1, effective January 1, 1995. L. 2000: (1)(f) added, p. 683, § 2, effective July 1; (1)(b), (1)(e), and (3) amended, p. 1082, § 12, effective January 1, 2001; (1)(b) and (1)(e) amended, p. 1358, § 34, effective July 1, 2001. L. 2005: (1)(d), (2), (3), and (4)(b) amended and (5) added, p. 648, § 17, effective May 27. L. 2008: (1)(a) and (1)(d) amended, p. 249, § 13, effective July 1. L. 2010: (1)(a), (1)(b), and (1)(f) amended, (HB 10-1090), ch. 171, p. 171, §1, effective August 11. L. 2013: (1)(a) and (1)(d) amended, (HB 13-1325), ch. 1882, p. 1882, § 11, effective May 28. L. 2017: (1)(a) and (3) amended and (1.5) and (2.5) added, (HB 17-1162), ch. 810, p. 810, § 1, effective August 9. L. 2020: (1)(f) amended, (SB 20-136), ch. 299, p. 299, § 53, effective September 14. L. 2021: (1)(a) and (1)(d)(I) amended, (SB 21-271), ch. 3300, p. 3300, § 710, effective March 1, 2022.(1) This section is similar to former § 42-2-130 as it existed prior to 1994.
(2) Amendments to subsections (1)(b) and (1)(e) by Senate Bill 00-018 and Senate Bill 00-011 were harmonized, effective July 1, 2001.
(3) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
2021 Ch. 462, was passed without a safety clause. See Colo. Const. art. V, § 1(3). (1) For the penalty for a class 2 misdemeanor traffic offense, see §42-4-1701(3)(a)(II). (2) For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.