Colorado Traffic Ticket and Speeding Ticket Laws

Colorado Distracted Driving Laws include:

– A ban on all cell phone use( hands free and handheld) for drivers under 18 years of age. (Primary law)

– A ban on texting for all drivers. (Primary law)

Colorado Traffic Statutes

(1) It is a traffic infraction for any person to violate any of the provisions of articles 1 to 3 of this title and parts 1 to 3 and 5 to 19 of this article unless such violation is, by articles 1 to 3 of this title and parts 1 to 3 and 5 to 19 of this article or by any other law of this state, declared to be a felony, misdemeanor, petty offense, or misdemeanor traffic offense. Such a traffic infraction shall constitute a civil matter.

(2) (a) For the purposes of this part 17, “judge” shall include any county court magistrate who hears traffic infraction matters, but no person charged with a traffic violation other than a traffic infraction or class 2 misdemeanor traffic offense shall be taken before a county court magistrate. (b) For the purposes of this part 17, “magistrate” shall include any county court judge who is acting as a county court magistrate in traffic infraction and class 2 misdemeanor traffic offense matters.

(3) (a) (I) Except as provided in subsections (4) and (5) of this section, traffic infractions are divided into two classes which shall be subject to the following penalties which are authorized upon entry of judgment against the defendant:

Class:

Minimum Penalty- (A) $15 penalty (B) $15 penalty

Maximum Penalty- (A) $100 penalty (B) $100 penalty

(II) (A) Except as provided in subsections (4) and (5) of this section and in sections 42-4-1301 (7), 42-4-1301.2 (2), 42-4-1301.3, and 42-4-1301.4, misdemeanor traffic offenses are divided into two classes which are distinguished from one another by the following penalties which are authorized upon conviction:

Class Minimum Maximum Sentence Sentence 1 Ten days imprisonment, One year imprisonment, or $100 fine, or both. or $1000 fine, or both. 2 Ten days imprisonment, Ninety days imprisonment, or $10 fine, or both. or $300 fine, or both.

(B) Any person convicted of a class 1 or class 2 misdemeanor traffic offense shall be required to pay restitution as required by article 18.5 of title 16, C.R.S., and may be sentenced to perform a certain number of hours of community or useful public service in addition to any other sentence provided by sub-subparagraph (A) of this subparagraph (II), subject to the conditions and restrictions of section 18-1.3-507, C.R.S. (b) Any traffic infraction or misdemeanor traffic offense defined by law outside of articles 1 to 4 of this title shall be punishable as provided in the statute defining it or as otherwise provided by law. (c) The department has no authority to assess any points under section 42-2-127 upon entry of judgment for any class B traffic infractions. (4) (a) (I) Except as provided in paragraph (c) of subsection (5) of this section, every person who is convicted of, who admits liability for, or against whom a judgment is entered for a violation of any provision of this title to which the provisions of paragraph (a) or (b) of subsection (5) of this section apply shall be fined or penalized, and have a surcharge levied thereon pursuant to sections 24-4.1-119 (1) (f) and 24-4.2-104 (1) (b) (I), C.R.S., in accordance with the penalty and surcharge schedule set forth in sub-subparagraphs (A) to (P) of this subparagraph (I); or, if no penalty or surcharge is specified in the schedule, the penalty for class A and class B traffic infractions shall be fifteen dollars, and the surcharge shall be four dollars. These penalties and surcharges shall apply whether the defendant acknowledges the defendant’s guilt or liability in accordance with the procedure set forth by paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction or has judgment entered against the defendant by a county court magistrate. Penalties and surcharges for violating specific sections shall be as follows:

Section Violated Penalty Surcharge

(A) Colorado Drivers’ license violations:

42-2-101 (1) or (4) $ 35.00 $ 10.00
42-2-101 (2), (3), or (5) 15.00 6.00
42-2-103 15.00 6.00
42-2-105 35.00 10.00
42-2-105.5 (5)(a) 35.00 10.00
42-2-106 35.00 10.00
42-2-116 (6)(a) 15.00 6.00
42-2-119 15.00 6.00
42-2-134 35.00 10.00
42-2-136 35.00 10.00
42-2-139 35.00 10.00
42-2-140 35.00 10.00
42-2-141 35.00 10.00

(B) Registration and taxation violations:

42-3-103 $ 50.00 $ 16.00
42-3-113 15.00 6.00
42-3-202 15.00 6.00
42-3-116 50.00 16.00
42-3-121 (1)(a) 75.00 24.00
42-3-121 (1)(c) 35.00 10.00
42-3-121 (1)(f), (1)(g),and (1)(h) 75.00 24.00
42-3-304 to 42-3-306 50.00 16.00

42-4-1412 $ 15.00 $ 6.00
42-4-109 (13) (a) 15.00 6.00
42-4-109 (13) (b) 100.00 15.00
42-4-1211 15.00 6.00
42-4-1405 15.00 6.00

(D) Equipment violations:

42-4-201 $ 35.00 $ 10.00
42-4-202 35.00 10.00
42-4-204 15.00 6.00
42-4-205 15.00 6.00
42-4-206 15.00 6.00
42-4-207 15.00 6.00
42-4-208 15.00 6.00
42-4-209 15.00 6.00
42-4-210 15.00 6.00
42-4-211 15.00 6.00
42-4-212 15.00 6.00
42-4-213 15.00 6.00
42-4-214 15.00 6.00
42-4-215 15.00 6.00
42-4-216 15.00 6.00
42-4-217 15.00 6.00
42-4-218 15.00 6.00
42-4-219 15.00 6.00
42-4-220 15.00 6.00
42-4-221 15.00 6.00
42-4-222 (1) 15.00 6.00
42-4-223 15.00 6.00
42-4-224 15.00 6.00
42-4-225 (1) 15.00 6.00
42-4-226 15.00 6.00
42-4-227 (1) 50.00 16.00
42-4-227 (2) 15.00 6.00
42-4-228 (1), (2), (3),(5), or (6) 15.00 6.00
42-4-229 15.00 6.00
42-4-230 15.00 6.00
42-4-231 15.00 6.00
42-4-232 15.00 6.00

(G) Signals, signs, and markings violations:

42-4-603 $ 35.00 $ 10.00
42-4-604 35.00 10.00
42-4-605 35.00 10.00
42-4-606 15.00 6.00
42-4-607 (1) 50.00 16.00
42-4-607 (2)(a) 100.00 32.00
42-4-608 15.00 6.00
42-4-609 15.00 6.00
42-4-610 15.00 6.00
42-4-612 35.00 10.00
42-4-613 35.00 10.00

(H) Rights-of-way violations in Colorado:

42-4-701 $ 35.00 $ 10.00
42-4-702 35.00 10.00
42-4-703 35.00 10.00
42-4-704 35.00 10.00
42-4-705 50.00 16.00
42-4-706 35.00 10.00
42-4-707 35.00 10.00
42-4-708 35.00 10.00
42-4-709 35.00 10.00
42-4-710 35.00 10.00
42-4-711 35.00 10.00
42-4-712 35.00 10.00

(I) Colorado Pedestrian violations:

42-4-801 $ 15.00 $ 6.00
42-4-802 15.00 6.00
42-4-803 15.00 6.00
42-4-805 15.00 6.00
42-4-806 35.00 10.00
42-4-807 35.00 10.00
42-4-808 35.00 10.00

(J) Turning and stopping violations in Colorado:

42-4-901 $ 35.00 $ 10.00
42-4-902 35.00 10.00
42-4-903 35.00 10.00

(K) Driving, overtaking, and passing violations in Colorado:

42-4-1001 $ 35.00 $ 10.00
42-4-1002 35.00 10.00
42-4-1003 35.00 10.00
42-4-1004 35.00 10.00
42-4-1005 35.00 10.00
42-4-1006 35.00 10.00
42-4-1007 35.00 10.00
42-4-1008 35.00 10.00
42-4-1009 35.00 10.00
42-4-1010 35.00 10.00
42-4-1011 100.00 32.00
42-4-1012 (3)(a) 65.00 (NONE)
42-4-1012 (3)(b) 125.00 (NONE)

(L) Speeding violations:

42-4-1101 (1) or (8)(b) (1 to 4 miles per hour over the reasonable and prudent speed or over the maximum lawful speed limit of 75 miles per hour) $ 15.00 $ 6.00
42-4-1101 (1) or (8)(b) (5 to 9 miles per hour over the reasonable and prudent speed or over the maximum lawful speed limit of 75 miles per hour) 35.00 10.00
42-4-1101 (1) or (8)(b) (10 to 19 miles per hour over the reasonable and prudent speed or over the maximum lawful speed limit of 75 miles per hour) 50.00 16.00
42-4-1101 (1) or (8)(b) (20 to 24 miles per hour over the reasonable and prudent speed or over the maximum lawful speed limit of 75 miles per hour) 100.00 32.00
42-4-1101 (3) 35.00 10.00
42-4-1103 15.00 6.00
42-4-1104 15.00 6.00

(M) Parking violations:

42-4-1201 $ 15.00 $ 6.00
42-4-1202 15.00 6.00
42-4-1204 15.00 6.00
42-4-1205 15.00 6.00
42-4-1206 15.00 6.00
42-4-1207 15.00 6.00
42-4-1208 (6) or (9) 100.00 32.00

(N) Other offenses:

42-4-1301 (2) (a.5) $ 50.00 $ 16.00
42-4-1305 50.00 16.00
42-4-1402 50.00 16.00
42-4-1403 15.00 6.00
42-4-1404 15.00 6.00
42-4-1406 35.00 10.00
42-4-1407 (3) (a) 35.00 10.00
42-4-1407 (3) (b) 100.00 30.00
42-4-1407 (3) (c) 500.00 200.00
42-4-314 35.00 10.00
42-4-1408 15.00 6.00
42-4-1414 (2) (a) 500.00 156.00
42-4-1414 (2) (b) 1,000.00 312.00
42-4-1414 (2) (c) 5,000.00 1,560.00
42-20-109 (2) 250.00 66.00

(O) Motorcycle violations:

42-4-1502 (1), (2), (3), or (4) $ 15.00 $ 6.00
42-4-1502 (4.5) 100.00 15.00
42-4-1503 15.00 6.00
42-4-1504 15.00 6.00

(P) Offenses by persons controlling vehicles:

42-4-1704 $ 15.00 $ 6.00
(II) Any person convicted of violating section 42-4-507 or 42-4-508 shall be fined pursuant to this subparagraph (II), whether the defendant acknowledges the defendant’s guilt pursuant to the procedure set forth in paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction. Any violation of section 42-4-507 or 42-4-508 shall be punished by a fine and surcharge as follows:

Excess Weight – Pounds Penalty Surcharge

1 – 3,000 $ 15.00 $ 14.00
3,001 – 4,250 25.00 24.00
4,251 – 4,500 50.00 46.00
4,501 – 4,750 55.00 52.00
4,751 – 5,000 60.00 58.00
5,001 – 5,250 65.00 62.00

(III) Any person convicted of violating any of the rules and regulations promulgated pursuant to section 42-4-510, except section 42-4-510 (2) (b) (IV), shall be fined as follows, whether the violator acknowledges the violator’s guilt pursuant to the procedure set forth in paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction:

(A) Any person who violates the maximum permitted weight on an axle or on gross weight shall be punished by a fine and surcharge as follows:

(B) Any person who violates any of the requirements of the rules and regulations pertaining to transport permits for the movement of overweight or oversize vehicles or loads, other than those violations specified in sub-subparagraph (A) or (C) of this subparagraph (III), shall be punished by a fine of fifty dollars.

(C) Any person who fails to have an escort vehicle when such vehicle is required by the rules and regulations pertaining to transport permits for the movement of overweight or oversize vehicles or loads or who fails to reduce speed when such speed reduction is required by said rules and regulations shall be punished by a fine of two hundred fifty dollars.

(IV) (A) Any person convicted of violating section 42-3-114 who has not been convicted of a violation of section 42-3-114 in the twelve months preceding such conviction shall be fined as follows, whether the defendant acknowledges the defendant’s guilt pursuant to the procedure set forth in paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction:

Number of days beyond renewal period that registration has been expired Penalty Surcharge
1 – 29 $ 35.00 $ 8.00
30 – 59 50.00 12.00
60 and over 75.00 18.00

(B) Any person convicted of violating section 42-3-114 who has been convicted of violating said section within the twelve months preceding such conviction shall be fined pursuant to subparagraph (I) of paragraph (a) of subsection (3) of this section.

(V) Any person convicted of violating section 42-20-204 (2) shall be fined twenty-five dollars, whether the violator acknowledges guilt pursuant to the procedure set forth in paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction.

(VI) (A) Except as provided in paragraph (c) of subsection (5) of this section, every person who is convicted of, who admits liability for, or against whom a judgment is entered for a violation of any provision of this title to which the provisions of paragraph (a) or (b) of subsection (5) of this section apply, shall, in addition to any other fine or penalty or surcharge, be assessed a surcharge of one dollar, which amount shall be transmitted to the state treasurer for deposit in the family-friendly court program cash fund created in section 13-3-113 (6), C.R.S. This surcharge shall apply whether the defendant acknowledges the defendant’s guilt or liability in accordance with the procedure set forth by paragraph (a) of subsection (5) of this section or is found guilty by a court of competent jurisdiction or has judgment entered against the defendant by a county court magistrate.

(B) Repealed.

(VII) The penalties and surcharges for a second or subsequent violation of section 42-20-109 (2) within twelve months shall be doubled.

(b) (I) The schedule in subparagraph (I) of paragraph (a) of this subsection (4) shall not apply when the provisions of paragraph (c) of subsection (5) of this section prohibit the issuance of a penalty assessment notice for a violation of the aforesaid traffic violation.

(II) The schedules in subparagraphs (II) and (III) of paragraph (a) of this subsection (4) shall apply whether the violator is issued a penalty assessment notice or a summons and complaint.

(c) (I) The penalties and surcharges imposed for speeding violations under subsection (4) (a) (I) (L) of this section shall be doubled if a speeding violation occurs within a maintenance, repair, or construction zone that is designated by the department of transportation pursuant to section 42-4-614. (II) (A) The penalties and surcharges imposed for violations under subsections (4) (a) (I) (C), (4) (a) (I) (G), (4) (a) (I) (H), (4) (a) (I) (I), (4) (a) (I) (J), (4) (a) (I) (K), (4) (a) (I) (N), and (4) (a) (I) (O) of this section shall be doubled if a violation occurs within a maintenance, repair, or construction zone that is designated by the department of transportation pursuant to section 42-4-614; except that the fines for violating sections 42-4-314, 42-4-610, 42-4-613, 42-4-706, 42-4-707, 42-4-708, 42-4-709, 42-4-710, 42-4-1011, 42-4-1012, 42-4-1404, 42-4-1408, and 42-4-1414 shall not be doubled under this subparagraph (II).

(B) There is hereby created, within the highway users tax fund, the highway construction workers’ safety account.

(C) If a fine is doubled under this paragraph (c), one-half of the fine allocated to the state by sections 42-1-217 and 43-4-205, C.R.S., shall be transferred to the state treasurer, who shall deposit it in the highway construction workers’ safety account within the highway users tax fund to be continuously appropriated to the department of transportation for work zone safety equipment, signs, and law enforcement.

(D) This subparagraph (II) is effective July 1, 2006. (d) The penalty and surcharge imposed for any moving traffic violation under subparagraph (I) of paragraph (a) of this subsection (4) are doubled if the violation occurs within a school zone pursuant to section 42-4-615.

(e) (I) An additional ten dollars shall be assessed for speeding violations under sub-subparagraph (L) of subparagraph (I) of paragraph (a) of this subsection (4) in addition to the penalties and surcharge stated in said sub-subparagraph (L). Moneys collected pursuant to this paragraph (e) shall be transmitted to the state treasurer who shall deposit such moneys in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S., within fourteen days after the end of each quarter, to be used for the purposes set forth in sections 26-1-301 to 26-1-310, C.R.S.

(II) If the surcharge is collected by a county or municipal court, the surcharge shall be twelve dollars of which two dollars shall be retained by the county or municipality and the remaining ten dollars shall be transmitted to the state treasurer and credited to the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S., within fourteen days after the end of each quarter, to be used for the purposes set forth in sections 26-1-301 to 26-1-310, C.R.S.

(III) An additional ten dollars shall be assessed for a violation of a traffic regulation under sub-subparagraph (C) of subparagraph (I) of paragraph (a) of this subsection (4) for a violation of section 42-4-109 (13) (b), in addition to the penalties stated in sub-subparagraph (C). An additional ten dollars shall be assessed for a motorcycle violation under sub-subparagraph (O) of subparagraph (I) of paragraph (a) of this subsection (4) for a violation of section 42-4-1502 (4.5), in addition to the penalties stated in sub-subparagraph (O). Moneys collected pursuant to this subparagraph (III) shall be transmitted to the state treasurer, who shall deposit the moneys in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S., to be used for the purposes set forth in sections 26-1-301 to 26-1-310, C.R.S.

(5) (a) (I) At the time that any person is arrested for the commission of any misdemeanors, petty offenses, or misdemeanor traffic offenses set forth in subsection (4) of this section, the arresting officer may, except when the provisions of paragraph (c) of this subsection (5) prohibit it, offer to give a penalty assessment notice to the defendant. At any time that a person is charged with the commission of any traffic infraction, the peace officer shall, except when the provisions of paragraph (c) of this subsection (5) prohibit it, give a penalty assessment notice to the defendant. Such penalty assessment notice shall contain all the information required by section 42-4-1707 (3) or by section 42-4-1709, whichever is applicable. The fine or penalty specified in subsection (4) of this section for the violation charged and the surcharge thereon may be paid at the office of the department of revenue, either in person or by postmarking such payment within twenty days from the date the penalty assessment notice is served upon the defendant; except that the fine or penalty charged and the surcharge thereon shall be paid to the county if it relates to a traffic offense authorized by county ordinance. The department of revenue shall accept late payment of any penalty assessment up to twenty days after such payment becomes due. Except as otherwise provided in subparagraph (II) of this paragraph (a), in the case of an offense other than a traffic infraction, a defendant who otherwise would be eligible to be issued a penalty assessment notice but who does not furnish satisfactory evidence of identity or who the officer has reasonable and probable grounds to believe will disregard the summons portion of such notice may be issued a penalty assessment notice if the defendant consents to be taken by the officer to the nearest mailbox and to mail the amount of the fine or penalty and surcharge thereon to the department. The peace officer shall advise the person arrested or cited of the points to be assessed in accordance with section 42-2-127. Except as otherwise provided in section 42-4-1710 (1) (b), acceptance of a penalty assessment notice and payment of the prescribed fine or penalty and surcharge thereon to the department shall be deemed a complete satisfaction for the violation, and the defendant shall be given a receipt which so states when such fine or penalty and surcharge thereon is paid in currency or other form of legal tender. Checks tendered by the defendant to and accepted by the department and on which payment is received by the department shall be deemed sufficient receipt.

(II) In the case of an offense other than a traffic infraction that involves a minor under the age of eighteen years, the officer shall proceed in accordance with the provisions of section 42-4-1706 (2) or 42-4-1707 (1) (b) or (3) (a.5). In no case may an officer issue a penalty assessment notice to a minor under the age of eighteen years and require or offer that the minor consent to be taken by the officer to the nearest mailbox to mail the amount of the fine or penalty and surcharge thereon to the department.

(b) In the case of an offense other than a traffic infraction, should the defendant refuse to accept service of the penalty assessment notice when such notice is tendered, the peace officer shall proceed in accordance with section 42-4-1705 or 42-4-1707. Should the defendant charged with an offense other than a traffic infraction accept service of the penalty assessment notice but fail to post the prescribed penalty and surcharge thereon within twenty days thereafter, the notice shall be construed to be a summons and complaint unless payment for such penalty assessment has been accepted by the department of revenue as evidenced by receipt. Should the defendant charged with a traffic infraction accept the notice but fail to post the prescribed penalty and surcharge thereon within twenty days thereafter, and should the department of revenue not accept payment for such penalty and surcharge as evidenced by receipt, the defendant shall be allowed to pay such penalty and surcharge thereon and the docket fee in the amount set forth in section 42-4-1710 (4) to the clerk of the court referred to in the summons portion of the penalty assessment notice during the two business days prior to the time for appearance as specified in the notice. If the penalty for a misdemeanor, misdemeanor traffic offense, or a petty offense and surcharge thereon is not timely paid, the case shall thereafter be heard in the court of competent jurisdiction prescribed on the penalty assessment notice in the same manner as is provided by law for prosecutions of the misdemeanors not specified in subsection (4) of this section. If the penalty for a traffic infraction and surcharge thereon is not timely paid, the case shall thereafter be heard in the court of competent jurisdiction prescribed on the penalty assessment notice in the manner provided for in this article for the prosecution of traffic infractions. In either case, the maximum penalty that may be imposed shall not exceed the penalty set forth in the applicable penalty and surcharge schedule in subsection (4) of this section.

(b.5) The provisions of section 42-4-1710 (1) (b) shall govern any case described in paragraph (b) of this subsection (5) in which a minor under the age of eighteen years submits timely payment for an infraction or offense in a penalty assessment notice but such payment is not accompanied by the penalty assessment notice signed and notarized in the manner required by section 42-4-1707 (3) (a.5) or 42-4-1709 (1.5).

(c) (I) The penalty and surcharge schedules of subsection (4) of this section and the penalty assessment notice provisions of paragraphs (a) and (b) of this subsection (5) shall not apply to violations constituting misdemeanors, petty offenses, or misdemeanor traffic offenses not specified in said subsection (4) of this section, nor shall they apply to the violations constituting misdemeanors, petty offenses, misdemeanor traffic offenses, or traffic infractions specified in said subsection (4) of this section when it appears that:

(A) (Deleted by amendment, L. 96, p. 580, § 4, effective May 25, 1996.)
(B) In a violation of section 42-4-1101 (1) or (8) (b), the defendant exceeded the reasonable and prudent speed or the maximum lawful speed of seventy-five miles per hour by more than twenty-four miles per hour;
(C) The alleged violation has caused, or contributed to the cause of, an accident resulting in appreciable damage to property of another or in injury or death to any person;
(D) The defendant has, in the course of the same transaction, violated one of the provisions of this title specified in the penalty and surcharge schedules in subsection (4) of this section and has also violated one or more provisions of this title not so specified, and the peace officer charges such defendant with two or more violations, any one of which is not specified in the penalty and surcharge schedules in subsection (4) of this section.
(II) In all cases where this paragraph (c) prohibits the issuance of a penalty assessment notice, the penalty and surcharge schedule contained in subparagraph (I) of paragraph (a) of subsection (4) of this section shall be inapplicable; except that the penalty and surcharge provided in the schedule contained in sub-subparagraph (B) of subparagraph (I) of paragraph (a) of subsection (4) of this section for any violation of section 42-3-121 (1) (a) shall always apply to such a violation. In all cases where the penalty and surcharge schedule contained in subparagraph (I) of paragraph (a) of subsection (4) of this section is inapplicable, the provisions of subsection (3) of this section shall apply. (d) In addition to any other cases governed by this section, the penalty and surcharge schedule contained in subparagraph (I) of paragraph (a) of subsection (4) of this section shall apply in the following cases:
(I) In all cases in which a peace officer was authorized by the provisions of this subsection (5) to offer a penalty assessment notice for the commission of a misdemeanor, petty offense, or misdemeanor traffic offense but such peace officer chose not to offer such penalty assessment notice;
(II) In all cases involving the commission of a misdemeanor, petty offense, or misdemeanor traffic offense in which a penalty assessment notice was offered by a peace officer but such penalty assessment notice was refused by the defendant. (6) An officer coming upon an unattended vehicle that is in apparent violation of any provision of the state motor vehicle law may place upon the vehicle a penalty assessment notice indicating the offense or infraction and directing the owner or operator of the vehicle to remit the penalty assessment provided for by subsection (4) of this section and the surcharges thereon pursuant to sections 24-4.1-119 (1) (f) and 24-4.2-104 (1), C.R.S., to the Colorado department of revenue within ten days. If the penalty assessment and surcharge thereon is not paid within ten days of the issuance of the notice, the department shall mail a notice to the registered owner of the vehicle, setting forth the offense or infraction and the time and place where it occurred and directing the payment of the penalty assessment and surcharge thereon within twenty days from the issuance of the notice. If the penalty assessment and surcharge thereon is not paid within the twenty days from the date of mailing of such notice, the department shall request the police officer who issued the original penalty assessment notice to file a complaint with a court having jurisdiction and issue and serve upon the registered owner of the vehicle a summons to appear in court at a time and place specified therein as in the case of other offenses or infractions. (7) Notwithstanding the provisions of paragraph (b) of subsection (5) of this section, receipt of payment by mail by the department or postmarking such payment on or prior to the twentieth day after the receipt of the penalty assessment notice by the defendant shall be deemed to constitute receipt on or before the date the payment was due.

History

Source: L. 94: Entire title amended with relocations, p. 2406, § 1, effective January 1, 1995; (3)(a)(I), (4)(a)(I), and (4)(a)(IV)(A) amended, p. 683, § 1, effective January 1, 1995. L. 95: (1), (4)(a)(I)(A), (4)(a)(I)(D), and (4)(a)(I)(M) amended, p. 958, § 18, effective May 25. L. 96: (4)(a)(I)(F) amended, p. 278, § 2, effective April 11; (4)(a)(I)(F) amended, p. 385, § 2, effective April 17; (4)(a)(I)(I) amended, p. 565, § 30, effective April 24; (5)(a) and (6) amended, p. 638, § 4, effective May 1; (4)(a)(I)(L), (5)(c)(I)(A), and (5)(c)(I)(B) amended, p. 580, § 4, effective May 25; (4)(a)(I)(D) amended, p. 959, § 6, effective July 1; (4)(a)(I)(K) amended, p. 1358, § 6, effective July 1. L. 97: (4)(a)(I)(N) amended, p. 1468, § 14, effective July 1; (4)(c) added, p. 1386, § 6, effective July 1; (4)(a)(I)(G) amended, p. 498, § 3, effective August 6; (4)(a)(I)(B) amended, p. 1074, § 6, effective January 1, 1998. L. 98: (4)(a)(I)(B) amended, p. 1019, § 4, effective May 27; (4)(d) added, p. 589, § 2, effective July 1; (4)(a)(I)(K) amended, p. 1206, § 2, effective August 5. L. 99: (4)(a)(I)(N) amended, p. 666, § 3, effective May 18; (4)(a)(I)(A) amended, p. 1381, § 6, effective July 1; (4)(a)(I)(M) amended, p. 712, § 4, effective July 1; (4)(a)(I)(B) amended, p. 631, § 48, effective August 4; (5)(a) amended, p. 368, § 5, effective August 4. L. 2000: (5)(a), (5)(b), and (6) amended, p. 1643, § 31, effective June 1; (4)(a)(I)(D) amended, p. 1100, § 2, effective August 2; (3)(a)(II)(B) amended, p. 1051, § 22, effective September 1. L. 2002: IP(3)(a)(II)(A) amended, p. 1923, § 21, effective July 1; (4)(a)(VI) added, p. 631, § 3, effective July 1; (3)(a)(II)(B) amended, p. 1562, § 370, effective October 1; (4)(e) added, p. 1610, § 5, effective January 1, 2004. L. 2003: (4)(a)(I), (4)(a)(II), and (4)(a)(III)(A) amended, p. 1545, § 8, effective May 1. L. 2004: (4)(a)(I)(N) amended, p. 241, § 2, effective July 1; (5)(a) amended and (5)(b.5) added, p. 1331, § 2, effective July 1, 2005. L. 2005: (4)(a)(VI)(B) repealed, p. 1004, § 3, effective June 2; (4)(a)(I)(N) amended, p. 1188, § 2, effective July 1; (4)(a)(I)(B), (4)(a)(IV), and (5)(c)(II) amended, p. 1177, § 19, effective August 8; (4)(a)(I)(D) amended, p. 268, § 3, effective August 8; (4)(c) amended, p. 1221, § 3, effective August 8. L. 2006: (4)(a)(I)(G) amended, p. 1712, § 2, effective June 6; (4)(a)(I)(A) amended, p. 439, § 4, effective July 1; (4)(a)(I)(N) amended and (4)(a)(VII) added, p. 1064, § 4, effective July 1; (4)(a)(I)(A) amended, p. 1370 § 10, effective January 1, 2007. L. 2007: (4)(a)(I), (4)(a)(II), (4)(a)(III)(A), (4)(a)(IV)(A), and (6) amended, p. 1114, § 5, effective July 1; (4)(a)(I)(C) and (4)(a)(I)(O) amended and (4)(e)(III) added, pp. 1481, 1482, §§ 3, 4, effective July 1; (4)(a)(I)(F) amended, p. 1333, § 3, effective August 3.

Annotations

Editor’s note: (1) This section was formerly numbered as 42-4-1501. (2) Subsections (3)(a)(I), (4)(a)(I), and (4)(a)(IV)(A) were originally numbered as 42-4-1501 (2)(a)(I), (3)(a)(I.1), and (3)(a)(IV)(A), and the amendments to them in Senate Bill 94-017 were harmonized with Senate Bill 94-001. (3) Amendments to subsection (4)(a)(I)(F) by Senate Bill 96-029, Senate Bill 96-084, and House Bill 96-1055 were harmonized.

(4) Amendments to subsection (4)(a)(I)(A) by House Bill 06-1171 and House Bill 06-1162 were harmonized.

(5) Amendments to subsection (4)(a)(I) by Senate Bill 07-055 and to subsections (4)(a)(I)(C) and (4)(a)(I)(O) by House Bill 07-1117 were harmonized.

(6) Amendments to subsection (4)(a)(I) by Senate Bill 07-055 and to subsection (4)(a)(I)(F) by House Bill 07-1117 were harmonized.

(7) This section is amended by chapters 275, 313, and 344, Session Laws of Colorado 2007. Section 10 of chapter 275 provides that the act set out in that chapter amending subsections (4)(a)(I), (4)(a)(II), (4)(a)(III)(A), (4)(a)(IV)(A), and (6) applies to offenses or infractions committed on or after July 1, 2007. Section 5 of chapter 344 provides that the act set out in that chapter amending subsections (4)(a)(I)(C) and (4)(a)(I)(O) and enacting subsection (4)(e)(III) applies to traffic infractions committed on or after July 1, 2007. Section 6 of chapter 313 provides that the act set out in that chapter amending subsection (4)(a)(I)(F) applies to offenses committed on or after August 3, 2007.

(8) Subsection (4)(a)(I)(F) was contained in a 2007 act that was passed without a safety clause. For further explanation concerning the effective date, see page vii of this volume.

Annotations

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 useful public service for persons convicted of alcohol- or drug-related traffic offenses, see §§ 42-4-1301 and 42-4-1301.4; for surcharges levied on criminal actions and traffic offenses, see § 24-4.2-104. (2) For the legislative declaration contained in the 1999 act amending subsection (4)(a)(I)(A), see section 1 of chapter 334, Session Laws of Colorado 1999. For the legislative declaration contained in the 2002 act amending subsection (3)(a)(II)(B), see section 1 of chapter 318, Session Laws of Colorado 2002. For the short title and the legislative declaration contained in the 2005 act amending subsection (4)(c), see sections 1 and 2 of chapter 276, Session Laws of Colorado 2005.

Annotator’s note. Since § 42-4-1701 is similar to § 42-4-1501 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, relevant cases construing that provision have been included with the annotations to this section. The simplified procedures of the penalty assessment statute do not impermissibly offend the due process clauses of either the constitution of the state or the constitution of the United States. Since the penalty assessment statute does not deprive an offender accused of a traffic violation of his right to a trial, on the contrary, the statute not only expressly preserves the accused’s right to a trial but also affords him an alternative procedure which he may accept or reject, and therefore the statute does not violate any constitutional rights. Cave v. Colo. Dept. of Rev., 31 Colo. App. 185, 501 P.2d 479 (1972).

Section 42-2-123 and this section give a licensee notice of the ramifications of his failure to appear and the forfeiture of his bond for traffic violation charge and due process requirements are satisfied. Lopez v. Motor Vehicle Div., 189 Colo. 133, 538 P.2d 446 (1975).

Due process standard for using penalty assessment as conviction. Through the provisions of § 42-2-121 (3), the general assembly has mandated a minimum standard of due process which must be followed before payment of a penalty assessment under this section may be used as a conviction for purposes of suspension or revocation of a driver’s license pursuant to § 42-2-123 (1)(a). Stortz v. Colo. Dept. of Rev., 195 Colo. 325, 578 P.2d 229 (1978).

Speeding classifications constitutional. Decision to treat higher rates of speeding as more serious making them criminal acts is within legislature’s discretion and does not create a suspect class or infringe on a fundamental right. Drawing a distinction based on speed is rationally related to legislative purpose of safety and fuel conservation. People v. Lewis, 745 P.2d 668 (Colo. 1987).

Traffic violations not decriminalized. The general assembly did not intend to decriminalize minor traffic violations by denominating them “misdemeanor traffic offenses” and prescribing a fine-only penalty scheme for certain grades of these offenses. City of Greenwood Village v. Fleming, 643 P.2d 511 (Colo. 1982) (decided prior to 1982 amendments).

Jurisdiction of county courts includes offenses reclassified as “misdemeanor traffic offenses” under this section. Phillips v. County Court, 42 Colo. App. 187, 591 P.2d 600 (1979).

When points not assessable. If a traffic violation does not appear on the summons, to be issued under the notice provisions of subsection (4)(a), and the offender is not advised by the arresting officer in reference to the points chargeable for the traffic violation, points cannot be assessed against him for that offense. Stortz v. Colo. Dept. of Rev., 195 Colo. 325, 578 P.2d 229 (1978). Payment of ticket, and subsequent lack of protest, precludes challenge of conviction. Where a party pays a traffic ticket without a court judgment or a signed acknowledgment of guilt, but does not challenge the validity of the conviction and affirms the accuracy of his driving record at a departmental hearing, the party may not then challenge the conviction. Martinez v. Dolan, 41 Colo. App. 513, 591 P.2d 588 (1978).

Failure of penalty assessment to contain points for traffic violation in no way invalidates the penalty assessment, or a guilty plea entered thereon. Stortz v. Colo. Dept. of Rev., 195 Colo. 325, 578 P.2d 229 (1978).

Section furthers policy against custodial arrests. The modern policy against custodial arrests and favoring the issuance of citations and summonses is given effect by requiring the issuance of a penalty assessment notice or summons in ordinary traffic violations. People v. Clyne, 189 Colo. 412, 541 P.2d 71 (1975), overruled in People v. Meredith, 763 P.2d 562 (Colo. 1988).

Police have authority to make custodial arrest for driving without a license under this section and § 42-2-101. People v. Meredith, 763 P.2d 562 (Colo. 1988) (overruling People v. Clyne, 189 Colo. 412, 541 P.2d 71 (1975) and People v. Stark, 682 P.2d 1240 (Colo. App. 1984)).

Presumption of correctness of records held insufficient for suspending driving privileges. Presumption of the correctness of department of revenue records indicating that a motorist charged with driving 41 miles per hour in a 30 mile per hour zone in a city had paid $15 to the municipal court clerk was insufficient for purposes of suspending the motorist’s driving privileges where the evidence at the hearing established that there was neither a specific court judgment nor a signed acknowledgment of guilt as prescribed by subsection (4)(a) of this section and § 42-4-1505 (2)(a). Troutman v. Dept. of Rev., 38 Colo. App. 417, 571 P.2d 726 (1976); Martinez v. Dolan, 41 Colo. App. 513, 591 P.2d 588 (1978).

Statute as basis for jurisdiction. See Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977).

Search of an automobile incident to an arrest for driving without a license under this section and § 42-2-101 is lawful. People v. Meredith, 763 P.2d 562 (Colo. 1988).

Distinction between arrest and notice. Hart v. Herzig, 131 Colo. 458, 283 P.2d 177 (1955); People v. Griffith, 130 Colo. 475, 276 P.2d 559 (1954); Solt v. People, 130 Colo. 1, 272 P.2d 638 (1954). Applied in Purcell v. Tomasi, 43 Colo. App. 540, 608 P.2d 844 (1980); Olinyk v. People, 642 P.2d 490 (Colo. 1982); People v. Mumaugh, 644 P.2d 299 (Colo. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983).

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

Statute text

(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 any vehicle in this state.

(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 any vehicle in this state.

(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 any vehicle 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 vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs 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 vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, 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 any vehicle in this state 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 any vehicle in this state 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 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 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 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 vehicle, and when a law enforcement officer reasonably suspects that a person was driving a 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 vehicle in violation of this section and whether to administer a test pursuant to section 42-4-1301.1 (2).

(III) Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver’s attorney on request.

(7) Penalties. (a) (I) Except as otherwise provided in subparagraphs (II) and (IV) of this paragraph (a), every person who is convicted of DUI, DUI per se, or habitual user shall be punished by:

(A) Imprisonment in the county jail for not less than five days nor more than one year, the minimum period of which shall be mandatory except as otherwise provided in section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than three hundred dollars nor more than one thousand dollars; and

(C) Not less than forty-eight hours nor more than ninety-six hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(II) Upon conviction of a violation described in sub-subparagraph (A) or (B) of subparagraph (III) of this paragraph (a), an offender shall be punished by:

(A) Imprisonment in the county jail for not less than ninety days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to eighty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than five hundred dollars nor more than one thousand five hundred dollars; and

(C) Not less than sixty hours nor more than one hundred twenty hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(III) Subparagraph (II) of this paragraph (a) shall apply to:

(A) A conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction, for DUI, DUI per se, or habitual user, or for vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person’s driver’s license was under restraint pursuant to section 42-2-138 (4) (b); or

(B) A conviction for DUI, DWAI, or DUI per se when the person’s BAC was 0.20 or more at the time of driving or within two hours after driving.

(IV) Upon a conviction for DUI, DUI per se, or habitual user, which violation occurred at any time after the date of a previous violation, for which there has been a conviction, for DWAI, an offender shall be punished by:

(A) Imprisonment in the county jail for not less than seventy days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to sixty-three days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than four hundred fifty dollars nor more than one thousand five hundred dollars; and

(C) Not less than fifty-six hours nor more than one hundred twelve hours of useful public service, the performance of the minimum period of service which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(b) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (b), every person who is convicted of DWAI shall be punished by:

(A) Imprisonment in the county jail for not less than two days nor more than one hundred eighty days, the minimum period of which shall be mandatory except as provided in section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than one hundred dollars nor more than five hundred dollars; and

(C) Not less than twenty-four hours nor more than forty-eight hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(II) Upon conviction of a second or subsequent offense of DWAI, an offender shall be punished by:

(A) Imprisonment in the county jail for not less than forty-five days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to forty days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than three hundred dollars nor more than one thousand dollars; and

(III) Upon conviction for DWAI, which violation occurred at any time after the date of a previous violation, for which there has been a conviction, for DUI, DUI per se, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., or of driving while such person’s driver’s license was under restraint as described in section 42-2-138 (4) (b), an offender shall be punished by: (A) Imprisonment in the county jail for not less than sixty days nor more than one year, the minimum period of which shall be mandatory; except that the court may suspend up to fifty-four days of the period of imprisonment if the offender complies with the provisions of section 42-4-1301.3; and

(B) In the court’s discretion, a fine of not less than four hundred dollars nor more than one thousand two hundred dollars; and

(C) Not less than fifty-two hours nor more than one hundred four hours of useful public service, the performance of the minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(IV) (Deleted by amendment, L. 2002, p. 1898, § 2, effective July 1, 2002.)

(c) (I) For the purposes of paragraphs (a) and (b) of this subsection (7), a person shall be deemed to have a previous conviction for DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S., if such person has been convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an act that, if committed within this state, would constitute the offense of DUI, DUI per se, DWAI, or habitual user, or vehicular homicide pursuant to section 18-3-106 (1) (b) (I), C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b) (I), C.R.S.

(II) For sentencing purposes concerning convictions for second and subsequent offenses, prima facie proof of a defendant’s previous convictions shall be established when the prosecuting attorney and the defendant stipulate to the existence of the prior conviction or convictions or the prosecuting attorney presents to the court a copy of the driving record of the defendant provided by the department of revenue of this state, or provided by a similar agency in another state, that contains a reference to such previous conviction or convictions or presents an authenticated copy of the record of the previous conviction or judgment from any court of record of this state or from a court of any other state, the United States, or any territory subject to the jurisdiction of the United States. The court shall not proceed to immediate sentencing when there is not a stipulation to prior convictions or if the prosecution requests an opportunity to obtain a driving record or a copy of a court record. The prosecuting attorney shall not be required to plead or prove any previous convictions at trial, and sentencing concerning convictions for second and subsequent offenses shall be a matter to be determined by the court at sentencing.

(III) As used in this part 13, “convicted” includes a plea of no contest accepted by the court.

(d) In addition to the penalties prescribed in this subsection (7):

(I) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to the costs imposed by section 24-4.1-119 (1) (c), C.R.S., relating to the crime victim compensation fund.

(II) Persons convicted of DUI, DUI per se, DWAI, and habitual user are subject to an additional penalty surcharge of not less than fifty dollars and not more than five hundred dollars for programs to address persistent drunk drivers. The minimum penalty surcharge shall be mandatory, and the court shall have no discretion to suspend or waive the surcharge; except that the court may suspend or waive the surcharge for a defendant determined by the court to be indigent. Any moneys collected for such surcharge shall be transmitted to the state treasurer, who shall credit the same to the persistent drunk driver cash fund created by section 42-3-303.

(III) Persons convicted of DUI, DUI per se, DWAI, habitual user, and UDD are subject to a surcharge of fifteen dollars to be transmitted to the state treasurer who shall deposit said surcharges in the Colorado traumatic brain injury trust fund created pursuant to section 26-1-309, C.R.S.

(e) In addition to any other penalty provided by law, the court may sentence a defendant who is convicted pursuant to this section to a period of probation for purposes of treatment not to exceed two years; in addition, a court may also sentence a defendant who is twice or more convicted pursuant to this section to a period of probation not to exceed two additional years for the purpose of monitoring compliance with court orders. As a condition of probation, the defendant shall be required to make restitution in accordance with the provisions of section 18-1.3-205, C.R.S.

(f) In addition to any other penalty provided by law, the court may sentence a defendant to attend and pay for one appearance at a victim impact panel approved by the court, for which the fee assessed to the defendant shall not exceed twenty-five dollars.

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

(h) In addition to any other penalties prescribed in this part 13, the court shall assess an amount, not to exceed one hundred twenty dollars, upon any person required to perform useful public service.

(8) A second or subsequent violation of this section committed by a person under eighteen years of age may be filed in juvenile court.

History

Source: L. 94: Entire title amended with relocations, p. 2376, § 1, effective January 1, 1995. L. 95: (9)(a) and (9)(b) amended, p. 956, § 17, effective May 25; (9)(e)(II) and (12) amended, p. 315, § 3, effective July 1; (10)(d) amended, p. 224, § 3, effective July 1. L. 97: (2)(a.5) added and (6) and (8) amended, p. 1467, §§ 12, 13, effective July 1. L. 98: (2)(a.5), (9)(a), and (9)(b)(III) amended, p. 174, § 6, effective April 6; (9)(b)(IV) added and (9)(g) amended, p. 1240, §§ 5, 6, effective July 1; (10)(a), (10)(b), (10)(c), (10)(d), and (10)(e) amended, p. 716, § 1, effective July 1. L. 99: (9)(a)(II), (9)(g), and (10)(c) amended, p. 1158, § 3, effective July 1. L. 2000: (2)(a.5) and (7)(a)(II) amended, p. 514, § 2, effective May 12; (9)(e)(II) amended, p. 1643, § 30, effective June 1; (9)(g)(III) amended, p. 1078, § 7, effective July 1. L. 2001: (1)(e) amended, p. 474, § 3, effective April 27; (9)(a), (9)(b), and (9)(f)(I) amended, p. 789, § 8, effective July 1. L. 2001, 2nd Ex. Sess.: (9)(a), (9)(b), and (9)(f)(I) amended, p. 2, § 3, effective September 25. L. 2002: Entire section amended with relocations, p. 1898, § 2, effective July 1; (7)(e) and (7)(f) amended, p. 1561, § 368, effective October 1; (7)(d)(III) added, p. 1609, § 4, effective January 1, 2004. L. 2003: (7)(h) amended, p. 2004, § 73, effective May 22. L. 2004: (6)(c) amended, p. 234, § 1, effective April 1; (2)(a), (4), (6)(a)(II), and (6)(a)(III) amended, p. 780, § 1, effective July 1; (2)(a.5) and (7)(e) amended and (8) added, p. 1130, § 2, effective July 1. L. 2005: (7)(d)(II) amended, p. 1177, § 17, effective August 8. L. 2006: (7)(d)(II) amended, p. 1369, § 9, effective January 1, 2007.

Annotations

Editor’s note: (1) Prior to 1994, this section was formerly numbered as 42-4-1202 and the former section 42-4-1301 was relocated to section 42-4-1501. In 2002, this section was amended resulting in the relocation of provisions. Some portions of this section have been relocated to sections 42-4-1301.1, 42-4-1301.2, 42-4-1301.3, and 42-4-1301.4. For the location of specific provisions, see the comparative table 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.

Annotations

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 1998 act amending this section, see section 1 of chapter 295, Session Laws of Colorado 1998. For the legislative declaration contained in the 2001 act amending subsections (9)(a), (9)(b), and (9)(f)(I), see section 1 of chapter 229, Session Laws of Colorado 2001. For the legislative declaration contained in the 2001 Second Extraordinary Session act amending this section, see section 1 of chapter 1, Session Laws of Colorado 2001, Second Extraordinary Session. 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.

Annotations

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, §§ 356-372.

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).

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 Colorado 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 Colorado 457, 359 P.2d 656 (1961); Quintana v. People, 169 Colorado 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 Colorado 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 Colorado 54, 253 P.2d 596 (1953); Quintana v. People, 169 Colorado 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 Colorado 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).

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