Colo. Rev. Stat. § 42-4-1301

Current through 11/5/2024 election

Section 42-4-1301 - Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties

(1)

(a) A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof.

(b) A person who drives a motor vehicle or vehicle while impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, commits driving while ability impaired. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof.

(c) Repealed.

(d) As used in this section, one or more drugs means any drug, as defined in section 27-80-203 (13), C.R.S., any controlled substance, as defined in section 18-18-102 (5), C.R.S., and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 18-18-412, C.R.S.

(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".

(j) For the purposes of this section, a person is deemed to have a prior conviction for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; or vehicular assault, as described in section 18-3-205 (1)(b), C.R.S., 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 any of these offenses. The prosecution shall set forth such prior convictions in the indictment or information.

(k) Repealed.

(2)

(a) A person who drives 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 commits DUI per se. 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 subsection (2)(a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving. DUI per se is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b); vehicular assault, as described in section 18-3-205 (1)(b); or any combination thereof.

(a.5) Repealed.

(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 any 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".

(d)

(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 order, in addition to any penalty imposed under a class A traffic infraction, 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 (d) is a class 2 traffic misdemeanor.

(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 or DUI per se; 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 or drug content 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.

(IV) If at such time the driver's blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.

(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)

(I) 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.

(II) Nothing in this paragraph (c) prevents the necessity of establishing during a trial that the testing devices used were working properly and were properly operated. Nothing in this paragraph (c) precludes a defendant from offering evidence concerning the accuracy of testing devices.

(III) The database compiled by the department of public health and environment containing personal identifying information relating to the results of tests of persons' breath alcohol content, and all personal identifying information thereof, are not public information. The department of public health and environment shall disclose such information only to:

(A) The individual who is the subject of the test, or to his or her legal representative;

(B) A named interested party in a civil or criminal action in which the test results are directly related, or to his or her legal representative;

(C) Any prosecuting attorney, law enforcement officer, state agency, or state and local public official legally authorized to utilize such information to carry out his or her duties; or

(D) Any party who obtains an order in a pending civil or criminal case if the court finds the party has shown good cause to have the information. In determining whether there is good cause, the court shall consider whether the materials sought exist; whether the materials sought are evidentiary and relevant; whether the materials are not otherwise procurable reasonably in advance of the proceeding by the exercise of due diligence; whether the party cannot properly prepare for the proceeding without such production and inspection in advance of the proceeding, and the failure to obtain such inspection may tend to unreasonably delay the proceeding; and whether the request for the information is made in good faith and is not for the purposes of general discovery.

(IV) The department of public health and environment may release nonpersonal identifying information from the database in accordance with sections 24-72-101 to 24-72-309.

(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, 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.

(j) In any trial for a violation of this section, if, at the time of the alleged offense, the person possessed a valid medical marijuana registry identification card, as defined in section 25-1.5-106 (2)(e), C.R.S., issued to himself or herself, the prosecution shall not use such fact as part of the prosecution's case in chief.

(k) In any traffic stop, the driver's possession of a valid medical marijuana registry identification card, as defined in section 25-1.5-106 (2)(e), C.R.S., issued to himself or herself shall not, in the absence of other contributing factors, constitute probable cause for a peace officer to require the driver to submit to an analysis of his or her blood.

(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.

C.R.S. § 42-4-1301

Amended by 2023 Ch. 366,§ 12, eff. 8/7/2023.

Amended by 2022 Ch. 68, § 37, eff. 3/1/2022.

Amended by 2021 Ch. 462, § 732, eff. 3/1/2022.

Amended by 2017 Ch. 387, § 2, eff. 8/9/2017.

Amended by 2016 Ch. 221, § 1, eff. 8/10/2016.

Amended by 2015 Ch. 262, § 1, eff. 8/5/2015.

Amended by 2013 Ch. 331, § 1, eff. 5/28/2013.

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 1/1/1995. 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 1/1/2004. 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 1/1/2007. 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. 1278, p. 1278, § 56, effective October 1; (7)(d)(IV) added, (HB 09-1119), ch. 2146, p. 2146, § 3, effective 1/1/2010. L. 2010: (7)(d)(IV)(A) and (7)(d)(IV)(B) amended, (SB 10-175), ch. 807, p. 807, § 86, effective April 29; (7) repealed, (HB 10-1347), ch. 1149, p. 1149, § 1, effective July 1. L. 2012: (1)(c) and (1)(d) amended, (HB 12-1311), ch. 1632, p. 1632, § 91, effective July 1. L. 2013: (1)(c) repealed, (1)(d), (2)(b), (4), IP(6)(a), and (6)(e) amended, and (6)(a)(IV), (6)(j), and (6)(k) added, (HB 13-1325), ch. 1877, p. 1877, § 1, effective May 28. L. 2015: (1)(a), (1)(b), and (2)(a) amended, (1)(j), (1)(k), and (2)(d) added, and (2)(a.5) repealed, (HB 15-1043), ch. 990, p. 990, § 1, effective August 5. L. 2016: (6)(c) amended, (SB 16-132), ch. 839, p. 839, § 1, effective August 10. L. 2017: (1)(k) repealed, (HB 17-1288), ch. 2004, p. 2004, § 2, effective August 9. L. 2021: (1)(a), (1)(b), and (2)(a) amended, (SB 21-271), ch. 3306, p. 3306, § 732, effective 3/1/2022.

(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.

(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) Section 47 of chapter 68 (HB 22-1229), Session Laws of Colorado 2022, provides that the act changing this section is effective March 1, 2022, but the governor did not approve the act until April 7, 2022.

2023 Ch. 366, was passed without a safety clause. See Colo. Const. art. V, § 1(3).

2021 Ch. 462, was passed without a safety clause. See Colo. Const. art. V, § 1(3).

(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.