2016 Colorado Revised Statutes
Title 18 - Criminal Code
Article 13 - Miscellaneous Offenses
§ 18-13-122. Illegal possession or consumption of ethyl alcohol or marijuana by an underage person - illegal possession of marijuana paraphernalia by an underage person - definitions - adolescent substance abuse prevention and treatment fund - legislative declaration

(1) (a) The general assembly finds and declares that it is necessary for the state of Colorado to educate Colorado youth about the dangers of early use of alcohol and marijuana, to actively promote programs that prevent the illegal use of alcohol and marijuana, and to teach Colorado youth about responsible use and the healthy choices available to an adult once he or she is able to legally consume alcohol or marijuana.

(b) The Colorado general assembly finds it is necessary for the state of Colorado to provide more adolescent substance abuse education and treatment in a developmentally, intellectually, and socially appropriate manner. Therefore, it is necessary to create the adolescent substance abuse prevention and treatment fund for that purpose.

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

(a) "Establishment" means a business, firm, enterprise, service or fraternal organization, club, institution, entity, group, or residence; any real property, including buildings and improvements, connected therewith; and any members, employees, and occupants associated therewith.

(b) "Ethyl alcohol" means any substance which is or contains ethyl alcohol.

(c) "Marijuana" has the same meaning as in section 16 (2) (f) of article XVIII of the Colorado constitution.

(d) "Marijuana paraphernalia" has the same meaning as marijuana accessories in section 16 (2) (g) of article XVIII of the Colorado constitution.

(e) "Possession of ethyl alcohol" means that a person has or holds any amount of ethyl alcohol anywhere on his or her person or that a person owns or has custody of ethyl alcohol or has ethyl alcohol within his or her immediate presence and control.

(f) "Possession of marijuana" means that a person has or holds any amount of marijuana anywhere on his or her person or that a person owns or has custody of marijuana or has marijuana within his or her immediate presence and control.

(g) "Private property" means any dwelling and its curtilage which is being used by a natural person or natural persons for habitation and which is not open to the public and privately owned real property which is not open to the public. "Private property" shall not include:

(I) Any establishment which has or is required to have a license pursuant to article 46, 47, or 48 of title 12, C.R.S.;

(II) Any establishment which sells ethyl alcohol or upon which ethyl alcohol is sold; or

(III) Any establishment which leases, rents, or provides accommodations to members of the public generally.

(3) (a) Except as described by section 18-1-711 and subsection (6) of this section, a person under twenty-one years of age who possesses or consumes ethyl alcohol anywhere in the state of Colorado commits illegal possession or consumption of ethyl alcohol by an underage person. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense.

(b) Except as described by section 14 of article XVIII of the Colorado constitution and section 18-18-406.3, a person under twenty-one years of age who possesses one ounce or less of marijuana or consumes marijuana anywhere in the state of Colorado commits illegal possession or consumption of marijuana by an underage person. Illegal possession or consumption of marijuana by an underage person is a strict liability offense.

(c) Except as described by section 14 of article XVIII of the Colorado constitution and section 18-18-406.3, a person under twenty-one years of age who possesses marijuana paraphernalia anywhere in the state of Colorado and knows or reasonably should know that the drug paraphernalia could be used in circumstances in violation of the laws of this state commits illegal possession of marijuana paraphernalia by an underage person. Illegal possession of marijuana paraphernalia by an underage person is a strict liability offense.

(d) A violation of this subsection (3) is an unclassified petty offense.

(4) (a) Upon conviction of a first offense of subsection (3) of this section, the court shall sentence the underage person to a fine of not more than one hundred dollars, or the court shall order that the underage person complete a substance abuse education program approved by the division of behavioral health in the department of human services, or both.

(b) Upon conviction of a second offense of subsection (3) of this section, the court shall sentence the underage person to a fine of not more than one hundred dollars, and the court shall order the underage person to:

(I) Complete a substance abuse education program approved by the division of behavioral health in the department of human services;

(II) If determined necessary and appropriate, submit to a substance abuse assessment approved by the division of behavioral health in the department of human services and complete any treatment recommended by the assessment; and

(III) Perform up to twenty-four hours of useful public service, subject to the conditions and restrictions specified in section 18-1.3-507.

(c) Upon conviction of a third or subsequent offense of subsection (3) of this section, the court shall sentence the defendant to a fine of up to two hundred fifty dollars, and the court shall order the underage person to:

(I) Submit to a substance abuse assessment approved by the division of behavioral health in the department of human services and complete any treatment recommended by the assessment; and

(II) Perform up to thirty-six hours of useful public service, subject to the conditions and restrictions specified in section 18-1.3-507.

(d) Nothing in this section prohibits a prosecutor from entering into a diversion or deferred judgment agreement with any underage person for any offense under this section, and prosecutors are encouraged to enter into those agreements when they are consistent with the legislative declaration of this section and in the interests of justice.

(e) A person convicted of a violation of this section is subject to an additional penalty surcharge of twenty-five dollars, which may be waived by the court upon a showing of indigency, that shall be transferred to the adolescent substance abuse prevention and treatment fund created pursuant to subsection (18) of this section.

(5) It is an affirmative defense to the offense described in paragraph (a) of subsection (3) of this section that the ethyl alcohol was possessed or consumed by a person under twenty-one years of age under the following circumstances:

(a) While such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his or her parent or legal guardian who was present during such possession or consumption;

(b) When the existence of ethyl alcohol in a person's body was due solely to the ingestion of a confectionery which contained ethyl alcohol within the limits prescribed by section 25-5-410 (1) (i) (II), C.R.S.; or the ingestion of any substance which was manufactured, designed, or intended primarily for a purpose other than oral human ingestion; or the ingestion of any substance which was manufactured, designed, or intended solely for medicinal or hygienic purposes; or solely from the ingestion of a beverage which contained less than one-half of one percent of ethyl alcohol by weight; or

(c) The person is a student who:

(I) Tastes but does not imbibe an alcohol beverage only while under the direct supervision of an instructor who is at least twenty-one years of age and employed by a post-secondary school;

(II) Is enrolled in a university or a post-secondary school accredited or certified by an agency recognized by the United States department of education, a nationally recognized accrediting agency or association, or the "Private Occupational Education Act of 1981", article 59 of title 12, C.R.S.;

(III) Is participating in a culinary arts, food service, or restaurant management degree program; and

(IV) Tastes but does not imbibe the alcohol beverage for instructional purposes as a part of a required course in which the alcohol beverage, except the portion the student tastes, remains under the control of the instructor.

(6) The possession or consumption of ethyl alcohol or marijuana shall not constitute a violation of this section if such possession or consumption takes place for religious purposes protected by the first amendment to the United States constitution.

(7) (a) An underage person is immune from arrest and prosecution under this section if he or she establishes the following:

(I) The underage person called 911 and reported in good faith that another underage person was in need of medical assistance due to alcohol or marijuana consumption;

(II) The underage person who called 911 provided his or her name to the 911 operator;

(III) The underage person was the first person to make the 911 report; and

(IV) The underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance or law enforcement personnel on the scene.

(b) The immunity described in paragraph (a) of this subsection (7) also extends to the underage person who was in need of medical assistance due to alcohol or marijuana consumption if the conditions of said paragraph (a) are satisfied.

(8) Prima facie evidence of a violation of subsection (3) of this section shall consist of:

(a) Evidence that the defendant was under twenty-one years of age and possessed or consumed ethyl alcohol or marijuana or possessed marijuana paraphernalia anywhere in this state; or

(b) Evidence that the defendant was under the age of twenty-one years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment or marijuana impairment while present anywhere in this state.

(9) During any trial for a violation of subsection (3) of this section, any bottle, can, or any other container with labeling indicating the contents of such bottle, can, or container shall be admissible into evidence, and the information contained on any label on such bottle, can, or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol or marijuana. A label which identifies the contents of any bottle, can, or other container as "beer", "ale", "malt beverage", "fermented malt beverage", "malt liquor", "wine", "champagne", "whiskey" or "whisky", "gin", "vodka", "tequila", "schnapps", "brandy", "cognac", "liqueur", "cordial", "alcohol", or "liquor" shall constitute prima facie evidence that the contents of the bottle, can, or other container was composed in whole or in part of ethyl alcohol.

(10) A parent or legal guardian of a person under twenty-one years of age or any natural person who has the permission of such parent or legal guardian may give or permit the possession and consumption of ethyl alcohol to or by a person under twenty-one years of age under the conditions described in paragraph (a) of subsection (5) of this section. This subsection (10) shall not be construed to permit any establishment which is licensed or is required to be licensed pursuant to article 46, 47, or 48 of title 12, C.R.S., or any members, employees, or occupants of any such establishment to give, provide, make available, or sell ethyl alcohol to a person under twenty-one years of age.

(11) Nothing in this section shall be construed to prohibit any statutory or home rule municipality from enacting any ordinance which prohibits persons under twenty-one years of age from possessing or consuming ethyl alcohol or marijuana or possessing marijuana paraphernalia, which ordinance is at least as restrictive or more restrictive than this section.

(12) Nothing in this section shall be construed to limit or preclude prosecution for any offense pursuant to article 46, 47, or 48 of title 12, C.R.S., except as provided in such articles.

(13) Sealing of record. (a) Upon dismissal of a case pursuant to this section after completion of a deferred judgment or diversion or any other action resulting in dismissal of the case or upon completion of the court-ordered substance abuse education and payment of any fine for a first conviction of subsection (3) of this section, the court shall immediately order the case sealed and provide to the underage person and the prosecutor a copy of the order sealing the case for distribution by the appropriate party to all law enforcement agencies in the case.

(b) Upon the expiration of one year from the date of a second or subsequent conviction for a violation of subsection (3) of this section, the underage person convicted of such violation may petition the court in which the conviction was assigned for an order sealing the record of the conviction. The petitioner shall submit a verified copy of his or her criminal history, current through at least the twentieth day prior to the date of the filing of the petition, along with the petition at the time of filing, but in no event later than the tenth day after the petition is filed. The petitioner shall be responsible for obtaining and paying for his or her criminal history record. The court shall grant the petition if the petitioner has not been arrested for, charged with, or convicted of any felony, misdemeanor, or petty offense during the period of one year following the date of the petitioner's conviction for a violation of subsection (3) of this section.

(14) The qualitative result of an alcohol or marijuana test or tests shall be admissible at the trial of any person charged with a violation of subsection (3) of this section upon a showing that the device or devices used to conduct such test or tests have been approved as accurate in detecting alcohol or marijuana by the executive director of the department of public health and environment.

(15) Official records of the department of public health and environment relating to the certification of breath test instruments, certification of operators and operator instructors of breath test instruments, certification of standard solutions, and certification of laboratories shall be official records of the state. Copies of such records, attested by the executive director of the department of public health and environment or his or her designee and accompanied by a certificate bearing the official seal for said department, which state that the executive director of the department has custody of such records, shall be admissible in all courts of record and shall constitute prima facie evidence of the information contained in such records. The official seal of the department described in this subsection (15) may consist of a watermark of the state seal within the document.

(16) In any judicial proceeding in any court of this state concerning a charge under subsection (3) of this section, the court shall take judicial notice of methods of testing a person's blood, breath, saliva, or urine for the presence of alcohol or marijuana and of the design and operation of devices certified by the department of public health and environment for testing a person's blood, breath, saliva, or urine for the presence of alcohol or marijuana. This subsection (16) shall not prevent the necessity of establishing during a trial that the testing devices were working properly and that such testing devices were properly operated. Nothing in this subsection (16) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

(17) A law enforcement officer may not enter upon any private property to investigate any violation of this section without probable cause.

(18) Cash fund. The surcharge collected pursuant to paragraph (e) of subsection (4) of this section must be transmitted to the state treasurer, who shall credit the same to the adolescent substance abuse prevention and treatment fund, which fund is created and referred to in this section as the "fund". The moneys in the fund are subject to annual appropriation by the general assembly to the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, established in article 80 of title 27, C.R.S., for adolescent substance abuse prevention and treatment programs. The unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, is authorized to seek and accept gifts, grants, or donations from private or public sources for the purposes of this section. All private and public funds received through gifts, grants, or donations must be transmitted to the state treasurer, who shall credit the same to the fund. Any unexpended moneys in the fund may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the fund must be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year remain in the fund and shall not be credited or transferred to the general fund or another fund.