2019 Colorado Revised Statutes
Title 18 - Criminal Code


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Colorado Revised Statutes 2019 TITLE 18 CRIMINAL CODE Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index. ARTICLE 1 Provisions Applicable to Offenses Generally Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading. Law reviews: For article, "Criminal Law", which discusses Tenth Circuit decisions relating to criminal law, see 61 Den. L.J. 255 (1984); for article, "Criminal Law", which discusses Tenth Circuit decisions dealing with criminal law, see 62 Den. U. L. Rev. 125 (1985); for a discussion of Tenth Circuit decisions dealing with criminal law, see 66 Den. U. L. Rev. 711 (1989) and 67 Den. U. L. Rev. 691 (1990); for article, "Felony Sentencing in Colorado", see 18 Colo. Law. 1689 (1989); for article, "1990 Criminal Law Legislative Update", see 19 Colo. Law. 2049 (1990). PART 1 PURPOSE AND SCOPE OF CODE CLASSIFICATION OF OFFENSES 18-1-101. Citation of title 18. (1) This title shall be known and may be cited as the "Colorado Criminal Code"; within this title, the "Colorado Criminal Code" is sometimes referred to as "this code". (2) The portion of any section, subsection, paragraph, or subparagraph contained in this code which precedes a list of examples, requirements, conditions, or other items may be referred to and cited as the "introductory portion" of the section, subsection, paragraph, or subparagraph. Source: L. 71: R&RE, p. 388, § 1. C.R.S. 1963: § 40-1-101. Colorado Revised Statutes 2019 Page 1 of 695 Uncertified Printout 18-1-102. Purpose of code, statutory construction. (1) This code shall be construed in such manner as to promote maximum fulfillment of its general purposes, namely: (a) To define offenses, to define adequately the act and mental state which constitute each offense, to place limitations upon the condemnation of conduct as criminal when it is without fault, and to give fair warning to all persons concerning the nature of the conduct prohibited and the penalties authorized upon conviction; (b) To forbid the commission of offenses and to prevent their occurrence through the deterrent influence of the sentences authorized; to provide for the rehabilitation of those convicted and their punishment when required in the interests of public protection; (c) To differentiate on reasonable grounds between serious and minor offenses, and prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities as between individual offenders; (d) To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses and to identify certain minimum standards for criminal justice which, within the concept of due process of law, have the stature of substantive rights of persons accused of crime; (e) To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices. Source: L. 71: R&RE, p. 388, § 1. C.R.S. 1963: § 40-1-102. L. 2011: (1)(e) added, (HB 11-1032), ch. 296, p. 1401, § 4, effective August 10. 18-1-102.5. Purposes of code with respect to sentencing. (1) The purposes of this code with respect to sentencing are: (a) To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense; (b) To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences; (c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses; (d) To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders; (e) To select a sentence, a sentence length, and a level of supervision that addresses the offender's individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence; and (f) To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices. Source: L. 79: Entire section added, p. 668, § 15, effective July 1. L. 2011: (1)(c) and (1)(d) amended and (1)(e) added, (HB 11-1180), ch. 96, p. 282, § 1, effective August 10; (1)(c) and (1)(d) amended and (1)(f) added, (HB 11-1032), ch. 296, p. 1402, § 5, effective August 10. Colorado Revised Statutes 2019 Page 2 of 695 Uncertified Printout 18-1-103. Scope and application of code. (1) Except as otherwise expressly provided by sections 18-1.3-402 and 18-1.3-504, or unless the context otherwise requires, the provisions of this code govern the construction of and punishment for any offense defined in any statute of this state, whether in this title or elsewhere, and which is committed on or after July 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense. (2) Except as otherwise provided by section 18-1-410, the provisions of this code do not apply to or govern the construction of, prosecution for, and punishment for any offense committed prior to July 1, 1972, or the construction and application of any defense to a prosecution for such an offense. Such an offense shall be tried and disposed of according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted. All pending actions shall proceed to final disposition in the same manner as if this code had not been enacted. (3) The provisions of this code do not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil action for any conduct which this code makes punishable; and the civil injury is not merged in the offense. Source: L. 71: R&RE, p. 389, § 1. C.R.S. 1963: § 40-1-103. L. 73: p. 533, § 1. L. 95: (3) amended, p. 16, § 8, effective March 9. L. 2002: (1) amended, p. 1509, § 176, effective October 1. Cross references: For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-104. "Offense" defined - offenses classified - common-law crimes abolished. (1) The terms "offense" and "crime" are synonymous and mean a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed. (2) Each offense falls into one of eleven classes, one of six drug offense levels, or one unclassified category. There are six classes of felonies as described in section 18-1.3-401 and four levels of drug felonies as described in section 18-1.3-401.5, three classes of misdemeanors as described in section 18-1.3-501 and two levels of drug misdemeanors as described in section 18-1.3-501, two classes of petty offenses as described in section 18-1.3-503, and the category of drug petty offense as described in section 18-1.3-501 (1)(e). (3) Common-law crimes are abolished and no conduct shall constitute an offense unless it is described as an offense in this code or in another statute of this state, but this provision does not affect the power of a court to punish for contempt, or to employ any sanction authorized by law for the enforcement of an order lawfully entered, or a civil judgment or decree; nor does it affect the use of case law as an interpretive aid in the construction of the provisions of this code. Source: L. 71: R&RE, p. 389, § 1. C.R.S. 1963: § 40-1-104. L. 89: (2) amended, p. 829, § 39, effective July 1. L. 2002: (2) amended, p. 1510, § 177, effective October 1. L. 2014: (2) amended, (SB 14-163), ch. 391, p. 1969, § 5, effective June 6. Cross references: For the legislative declaration contained in the 2002 act amending subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002. Colorado Revised Statutes 2019 Page 3 of 695 Uncertified Printout 18-1-105. Felonies classified - presumptive penalties. (Repealed) Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-105. L. 72: p. 267, § 4. L. 73: p. 531, § 83. L. 74: (1) and (2) amended, p. 409, §§ 26, 27, effective April 11; (3) and (4) added, p. 251, § 3, effective January 1, 1975. L. 76: (1) amended, p. 548, § 7, effective July 1. L. 77: Entire section R&RE, p. 867, § 15, effective July 1, 1979. L. 79: (1), (6), and (7) R&RE and (1)(c) amended, pp. 669, 700, §§ 16, 69, effective July 1. L. 81: (1)(b), (1)(c), and (7) amended and (8) and (9) added, pp. 969, 970, 972, 986, §§ 1, 1, 1, 2, effective July 1. L. 82: (8) repealed, p. 312, § 3, effective July 1. L. 84: (1)(a) amended, p. 513, § 5, effective July 1. L. 85: (9)(d) added, p. 675, § 4, effective June 7; (1)(a)(II), (2), and (4) amended and (1)(a)(III), (1)(a)(IV), (9)(a)(VI), and (9)(e) added, pp. 622, 652, 655, 667, 675, §§ 5, 7, 1, 3, effective July 1. L. 86: (9)(a)(VII), (9)(a)(VIII), and (9)(f) added, p. 769, §§ 1, 2, effective July 1. L. 87: (9)(a)(IV.5) added, p. 606, § 9, effective April 16. L. 88: (1)(a)(III), IP(9)(a), (9)(d)(I), and (9)(e)(I) amended, (1)(b)(IV), (1)(b)(VI) to (1)(b)(VIII), and (10) added, and (1)(b)(V) added and amended, pp. 680, 681, 716, 711, 1439 §§ 3, 5, 2, 4, 14, 44, effective July 1. L. 89: (1)(a)(III)(A), (1)(a)(IV), (1)(b)(I), (2), and (9)(a)(V) amended and (1)(b)(V) to (1)(b)(VIII) repealed, pp. 829, 861, §§ 40, 156, effective July 1. L. 90: (11) added, p. 989, § 1, effective April 16; (9)(a)(IV), (9)(a)(IV.5), (9)(a)(VI), and (9)(a)(VII) repealed and (9.5) added, p. 955, §§ 27, 25, effective June 7. L. 91: (4) and (10) amended, p. 404, §§ 5, 6, effective June 6. L. 92: (11) repealed, p. 393, § 25, effective July 1. L. 93: (1)(a)(IV), (1)(c), and (10) amended and (1)(a)(V) and (9.7) added, pp. 1983, 54, 1730, 1981, §§ 8, 19, 12, 7, 9, effective July 1. L. 95: (1)(a)(V)(D) amended, p. 879, § 15, effective May 24; (4) amended, p. 1293, § 3, effective July 1. L. 96: (1)(a)(III)(A) and (1)(b)(II) amended and (1)(a)(III)(E) added, p. 1841, § 4, effective July 1; (9)(a)(III) amended, p. 736, § 7, effective July 1. L. 97: (9)(a)(IX), (9.5)(a.5), (9.5)(c.5), and (9.5)(c.7) added, p. 1546, §§ 17, 18, effective July 1; (1)(b)(IV) amended, p. 1009, § 11, effective August 6. L. 98: (1)(a)(V)(C) amended, p. 399, § 6, effective April 21; (1)(a)(VI) added, p. 1447, § 38, effective July 1; (9)(g) added, p. 1264, § 1, effective July 1; (1)(a)(V)(C), (1)(a)(V)(D), (1)(c), and (9)(e)(I) amended and (1)(a)(V)(C.3), (1)(a)(V)(C.5), (1)(b)(II.5), (9)(e.5), and (9.7)(c) added, pp. 1289, 1290, §§ 4, 5, 6, 7, effective November 1. L. 99: (9.5)(a) amended and (9.7)(b)(XIII) added, pp. 800, 794, §§ 22, 3, effective July 1. L. 2000: IP(9.7)(b), (9.7)(b)(I), (9.7)(b)(II), and (9.7)(b)(III) amended, p. 702, § 25, effective July 1; (1)(a)(III)(A.5) added, p. 1107, § 3, effective August 2; (12) added, p. 1049, § 12, effective September 1. L. 2001: (13) added, p. 1009, § 1, effective July 1. L. 2002: (1)(a)(V)(C) and (1)(a)(V)(C.3) amended and (1)(a)(V)(C.7) added, p. 124, § 1, effective March 26; (1)(a)(V)(C.7) amended, p. 1192, § 41, effective July 1; (9)(e.5) amended, p. 758, § 3, effective July 1; (1)(a)(V)(C.7) amended and entire section repealed, pp. 1566, 1463, §§ 387, 3, effective October 1. L. 2002, 3rd Ex. Sess.: (4) amended, p. 15, § 7, effective July 12. Editor's note: This section was relocated to § 18-1.3-401 in 2002. Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(a)(V)(C.7) and repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-106. Misdemeanors classified - penalties. (Repealed) Colorado Revised Statutes 2019 Page 4 of 695 Uncertified Printout Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-106. L. 79: Entire section amended, p. 700, § 70, effective July 1. L. 87: Entire section amended, p. 626, § 1, effective April 1. L. 88: (1) amended and (1.5) added, p. 717, § 3, effective July 1. L. 89: (1.5)(a) amended, p. 1643, § 4, effective June 5. L. 93: (1) amended and (3) added, pp. 55, 1984, §§ 20, 10, effective July 1. L. 97: (3)(b) amended, p. 1539, § 1, effective July 1; (1.5) amended, p. 1009, § 12, effective August 6. L. 98: IP(3)(b) amended and (3)(b)(V) added, p. 1231, § 1, effective July 1. L. 99: (3)(b)(I.5) added, p. 347, § 3, effective July 1. L. 2000: (3)(b)(I.5) and (3)(b)(II) amended, p. 703, § 26, effective July 1; (4) added, p. 1108, § 4, effective August 2; (5) added, p. 1049, § 13, effective September 1. L. 2001: (3)(b)(III) and (3)(b)(V) amended and (3)(b)(VI) added, p. 568, § 3, effective May 29; (6) added, p. 1010, § 2, effective July 1. L. 2002: (3)(b)(VI) amended, p. 1186, § 21, effective July 1; entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-501 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-107. Petty offenses classified - penalties. (Repealed) Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-107. L. 73: p. 499, § 5. L. 79: Entire section amended, p. 700, § 71, effective July 1. L. 81: Entire section amended, p. 2025, § 17, July 14. L. 93: Entire section amended, p. 55, § 21, effective July 1. L. 2000: Entire section amended, p. 1049, § 14, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-503 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-108. Offenses not classified. (Repealed) Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-108. L. 76, Ex. Sess.: 10, § 1. L. 79: Entire section amended, p. 671, § 21, effective July 1. L. 93: Entire section amended, p. 1985, § 11, effective July 1. L. 2000: Entire section amended, p. 1050, § 15, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-504 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-109. Penalty not fixed by statute - punishment. (Repealed) Colorado Revised Statutes 2019 Page 5 of 695 Uncertified Printout Source: L. 72: p. 268, § 5. C.R.S. 1963: § 40-1-109. L. 79: Entire section amended, p. 701, § 72, effective July 1. L. 85: Entire section amended, p. 657, § 6, effective July 1. L. 93: Entire section amended, p. 1985, § 12, effective July 1. L. 2000: Entire section amended, p. 1050, § 16, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-505 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-110. Payment and collection of fines for class 1, 2, or 3 misdemeanors and class 1 or 2 petty offenses - release from incarceration. (Repealed) Source: L. 89: Entire section added, p. 886, § 1, effective April 6. L. 97: (3) amended, p. 1571, § 5, effective July 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-506 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. PART 2 JURISDICTION AND PLACE OF TRIAL 18-1-201. State jurisdiction. (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Colorado Revised Statutes 2019 Page 6 of 695 Uncertified Printout Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-201. 18-1-202. Place of trial - applicability. (1) Except as otherwise provided by law, criminal actions shall be tried in the county where the offense was committed, or in any other county where an act in furtherance of the offense occurred. (2) If a person committing an offense upon the person of another is in one county and his victim is in another county at the time of the commission of an act constituting an element of the offense, the offense is committed and trial may be had in either of said counties. (3) In a case involving the death of a person, the offense is committed and the offender may be tried in any county in which the cause of death is inflicted, or in which death occurs, or in which the body of the deceased or any part of such body is found. (4) Theft of property is committed and the offender may be tried in any county in which he exercised control over the property. (5) If the commission of an offense commenced outside the state is consummated within this state, the offense is committed and the offender shall be tried in the county where the offense is consummated. (6) If an offense is committed in or upon any automobile, trailer, railroad car, aircraft, or other vehicle of transportation passing within or over this state, the offense is deemed to have been committed and the offender may be tried in any county through or over which the vehicle of transportation passed. (7) (a) When multiple crimes are based upon the same act or series of acts arising from the same criminal episode and are committed in several counties, the offender may be tried in any county in which any one of the individual crimes could have been tried, regardless of whether or not the counties are in the same judicial district. (b) (I) For purposes of this subsection (7), when a person commits one of the offenses listed in subparagraph (II) of this paragraph (b) on two or more occasions within a six-month period, it may be considered part of the same criminal episode. Nothing in this subsection (7) shall bar prosecution of an offense that could have been joined in another prosecution. (II) The provisions of subsection (7)(b)(I) of this section shall apply to the following offenses: (A) Theft, as defined in section 18-4-401; (B) and (C) Repealed. (D) Criminal mischief, as defined in section 18-4-501; (E) Fraud by check, as defined in section 18-5-205; (F) Defrauding a secured creditor or debtor, as defined in section 18-5-206; (G) Failure to pay over assigned accounts, as defined in section 18-5-502; (H) Concealment or removal of secured property, as defined in section 18-5-504; (I) Failure to pay over proceeds, as defined in section 18-5-505; (J) Unauthorized use of a financial transaction device, as defined in section 18-5-702; (K) Cybercrime, as defined in section 18-5.5-102; (L) Procuring food or accommodation with intent to defraud, as defined in section 6-25103; (M) Trafficking in food stamps, as defined in section 26-2-306, C.R.S.; (N) Unlawful use of a patient personal needs trust fund, as defined in section 25.5-6-206, C.R.S.; Colorado Revised Statutes 2019 Page 7 of 695 Uncertified Printout (O) Criminal tampering with a motor vehicle, as defined in section 42-5-103, C.R.S.; (P) Theft of motor vehicle parts, as defined in section 42-5-104, C.R.S.; (Q) Theft in connection with assistive technology, as described in section 6-1-409, C.R.S.; (R) Theft of farm products, as defined in section 35-37-121; (S) Fraud in connection with obtaining public assistance, as described in section 26-1127, C.R.S.; (T) Fraud in connection with obtaining food stamps, as described in section 26-2-305, C.R.S.; (U) An offense described in part 1 of article 5 of this title; (V) Forgery, as defined in sections 18-5-102 and 18-5-104; and (W) Identity theft, as defined in section 18-5-902. (c) (I) For an indictment or information that includes an offense described in article 5 of this title, the offender may be tried in a county where the offense occurred, in a county where an act in furtherance of the offense occurred, or in a county where a bank, savings and loan, credit union, or government agency processed a document or transaction related to the offense. (II) For the purpose of this section, "processed" means to physically handle a document or to make a written or electronic entry in a permanent or temporary record of the transaction, whether the entry is made manually or through automated means. (8) An inchoate offense is committed and the offender may be tried in any county in which any act which is an element of the offense, including formation of the agreement in conspiracy, is committed. (9) When a person in one county solicits, abets, agrees, aids, or attempts to aid another in the planning or commission of an offense in another county, the offense is committed and the offender may be tried for the offense in either county, or in any other county in which the principal offense could be tried. (10) When an offense is committed on the boundary line between two counties, or so close thereto as to be difficult to readily ascertain in which county the offense occurred, the offense is committed and the offender may be tried for the offense in either county. (11) Proof of the county in which the offense occurred or which county is the proper place for trial pursuant to this section shall not constitute an element of any offense and need not be proven by the prosecution at trial unless required by the statute defining the offense. Any challenge to the place of trial pursuant to this section shall be made by motion in writing no later than twenty-one days after arraignment, except for good cause shown. The court shall determine any such issue prior to the commencement of the trial and the selection of a jury. If the court finds that trial is not proper in the county in which the charges were filed, the court shall transfer the case to a court of appropriate jurisdiction in the proper county. Failure to challenge the place of trial as provided in this subsection (11) shall constitute a waiver of any objection to the place of trial. Pursuant to section 16-12-102 (2), C.R.S., the prosecution may file an interlocutory appeal of a decision transferring the case to another county. (12) If a person commits the offense of failure to register as a sex offender as provided in section 18-3-412.5, the offense is committed and the offender may be tried in the county in which the offender was released from incarceration for commission of the offense requiring registration, in the county in which the offender resides, in the county in which the offender completed his or her last registration, or in the county in which the offender is apprehended. Colorado Revised Statutes 2019 Page 8 of 695 Uncertified Printout (13) If a person commits identity theft as described in section 18-5-902, identity theft is committed and the offender may be tried in any county where a prohibited act was committed, in any county where an act in furtherance of the offense was committed, or in any county where the victim resides during all or part of the offense. For purposes of this subsection (13), a business entity resides in any county in which it maintains a physical location. (14) (a) If a person commits sexual assault on a child as described in section 18-3-405 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405 (2)(d), or commits sexual assault on a child by one in a position of trust as described in section 18-3-405.3 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405.3 (2)(b), the offender may be tried for all acts: (I) In a county where at least one of the acts constituting the offense or the pattern of sexual abuse was committed; or (II) In a county where an act in furtherance of the offense was committed. (b) This subsection (14) takes effect on April 4, 2017, and applies to an act constituting a pattern of sexual abuse for which the offense's statute of limitations has not yet run on April 4, 2017. (c) Nothing in this subsection (14) allows for a defendant to be placed in jeopardy twice for the same incident of sexual conduct involving a child that has been previously alleged as an incident necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5) in violation of the prohibition against second trials in sections 18-1-301, 18-1-302, and 18-1-303. Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-202. L. 84: (10) added, p. 536, § 4, effective July 1. L. 87: (7) amended, p. 606, § 10, effective April 16. L. 92: (3) amended and (11) added, p. 402, § 12, effective June 3. L. 95: (12) added, p. 469, § 17, effective July 1. L. 98: (7) amended, p. 793, § 2, effective July 1. L. 2002: (12) amended, p. 1181, § 4, effective July 1. L. 2003: (7)(b)(II) amended and (7)(c) added, p. 976, § 15, effective April 17; (7)(b)(II)(S) and (7)(b)(II)(T) amended and (7)(b)(II)(V) added, p. 1019, § 1, effective April 17. L. 2004: (7)(c)(I) amended, p. 1738, § 3, effective July 1. L. 2006: (7)(b)(II)(N) amended, p. 2005, § 60, effective July 1; (7)(b)(II)(W) and (13) added, p. 1317, §§ 2, 1, effective July 1. L. 2011: (12) amended, (SB 11-007), ch. 107, p. 335, § 1, effective August 10; (12) amended, (HB 11-1278), ch. 224, p. 964, § 8, effective August 10. L. 2012: (11) amended, (SB 12-175), ch. 208, p. 862, § 101, effective July 1. L. 2013: (7)(b)(II)(B) and (7)(b)(II)(C) repealed, (HB 13-1160), ch. 373, p. 2200, § 9, effective June 5. L. 2017: (14) added, (HB 17-1109), ch. 97, p. 292, § 1, effective April 4; IP(7)(b)(II) and (7)(b)(II)(L) amended, (HB 17-1245), ch. 240, p. 989, § 2, effective August 9; IP(7)(b)(II) and (7)(b)(II)(R) amended, (SB 17-225), ch. 262, p. 1246, § 5, effective August 9. L. 2018: (7)(b)(II)(K) amended, (HB 18-1200), ch. 379, p. 2293, § 5, effective August 8. Editor's note: (1) Amendments to subsection (7)(b)(II) by Senate Bill 03-147 and House Bill 03-1020 were harmonized. (2) Subsection (7)(b)(II)(V) was originally numbered as (7)(b)(II)(U) in House Bill 031020 but has been renumbered on revision for ease of location. Colorado Revised Statutes 2019 Page 9 of 695 Uncertified Printout Cross references: For similar provisions concerning the place of trial, see Crim. P. 18; for change of venue, see part 1 of article 6 of title 16; for the place of trial of an action for violation of a custody order, see § 18-3-304 (4). PART 3 WHEN PROSECUTION BARRED BY FORMER PROCEEDINGS Cross references: For constitutional provisions concerning double jeopardy, see § 18 of art. II, Colo. Const. Law reviews: For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to double jeopardy, see 15 Colo. Law. 1572 (1986). 18-1-301. Second trial barred by former prosecution for same offense. (1) If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: (a) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense even though the conviction is subsequently set aside. (b) The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense. (c) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction that has not been reversed or vacated, a verdict of guilty that has not been set aside and that is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two instances, failure to enter judgment must be for a reason other than a motion of the defendant. (d) The former prosecution was improperly terminated. Except as otherwise provided in subsection (2) of this section, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury is sworn if the case is tried by a jury or after the first prosecution witness is sworn if trial is by court following waiver of jury trial. (2) Termination is not improper under any of the following circumstances: (a) The defendant consents to the termination or waives his right to object to the termination. The defendant is deemed to have waived all objections to a termination of the trial unless his objections to the order of termination are made of record at the time of the entry thereof. (b) The trial court finds that: (I) The termination is necessary because it is physically impossible to proceed with the trial in conformity with the law; or Colorado Revised Statutes 2019 Page 10 of 695 Uncertified Printout (II) There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law; or (III) Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial; or (IV) The jury is unable to agree upon a verdict; or (V) False statements of a juror on voir dire prevent a fair trial. Source: L. 71: R&RE, p. 396, § 1. C.R.S. 1963: § 40-1-401. 18-1-302. Second trial barred by former prosecution for different offense. (1) Although a prosecution is for a violation of a different provision of law than a former prosecution or is based on different facts, it is barred by the former prosecution under the following circumstances: (a) The former prosecution resulted in an acquittal or a conviction as defined in section 18-1-301 (1)(a) and (1)(c) and the subsequent prosecution is for: (I) Any offense of which the defendant could have been convicted under the allegation of the complaint, information, or indictment of the first prosecution; or (II) The same conduct, unless the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began. (b) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense. (c) The former prosecution was improperly terminated, as improper termination is defined in section 18-1-301 (1)(d) and (2), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-402. 18-1-303. Second trial barred by prosecution in another jurisdiction. (1) If conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States, or another state, or of a municipality, a prosecution in any other of these jurisdictions is a bar to a subsequent prosecution in this state under either of the following circumstances: (a) The first prosecution resulted in a conviction or an acquittal as defined in section 181-301 (1)(a) and (1)(c), and the subsequent prosecution is based on the same conduct, unless: (I) The offense for which the defendant was formerly convicted or acquitted requires proof of a fact not required by the offense for which he is subsequently prosecuted and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or (II) The second offense was not consummated when the former trial began. (b) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily Colorado Revised Statutes 2019 Page 11 of 695 Uncertified Printout required a determination inconsistent with a fact that must be established for conviction of the offense for which the defendant is subsequently prosecuted. Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-403. 18-1-304. Former prosecution not a bar. (1) A former prosecution is not a bar within the meaning of sections 18-1-301 to 18-1-303, if the former prosecution: (a) Was before a court that lacked jurisdiction over the defendant or the offense; or (b) Was procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed; or (c) Resulted in a judgment of conviction that was set aside, reversed, or vacated upon appeal or in any other subsequent judicial proceeding. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-404. PART 4 RIGHTS OF DEFENDANT 18-1-401. Purpose. It is the intent of this part 4 to confer upon every person accused of an offense the benefits arising from said part 4 as a matter of substantive right, in implementation of minimum standards of criminal justice within the concept of due process of law. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-501. 18-1-402. Presumption of innocence. Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-502. 18-1-403. Legal assistance and supporting services. All indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-503. L. 81: Entire section amended, p. 928, § 2, September 1. L. 96: Entire section amended, p. 1016, § 4, effective May 23. L. 2014: Entire section amended, (HB 14-1363), ch. 302, p. 1264, § 11, effective May 31. Cross references: For other provisions concerning legal counsel for the indigent, see § 16 of art. II, Colo. Const., and Crim. P. 44. Colorado Revised Statutes 2019 Page 12 of 695 Uncertified Printout 18-1-404. Preliminary hearing or waiver - dispositional hearing. (1) Every person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information has been committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by direct information or felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406, or is a sexual offense under part 4 of article 3 of this title, shall have the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. The procedure to be followed in asserting the right to a preliminary hearing, and the time within which demand therefor must be made, as well as the time within which the hearing, if demanded, shall be had, shall be as provided by rule of the supreme court of the state of Colorado. A failure to observe and substantially comply with such rule is a waiver of the right to a preliminary hearing. (2) (a) No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, or which are sexual offenses under part 4 of article 3 of this title, shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution. (b) Any defendant accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony who is not otherwise entitled to a preliminary hearing pursuant to paragraph (a) of this subsection (2), may demand and shall receive a preliminary hearing within a reasonable time pursuant to subsection (1) of this section, if the defendant is in custody; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-504. L. 98: Entire section amended, p. 1272, § 2, effective July 1. L. 2002: (1) and (2)(a) amended, p. 1510, § 178, effective October 1. L. 2014: Entire section amended, (SB 14-163), ch. 391, p. 1970, § 6, effective June 6. Cross references: (1) For the rule of the supreme court on preliminary hearings, see Crim. P. 5. (2) For the legislative declaration contained in the 2002 act amending subsections (1) and (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-405. Speedy trial. (1) Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode. Colorado Revised Statutes 2019 Page 13 of 695 Uncertified Printout (2) If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court. (3) If a trial date has been fixed by the court, and thereafter the defendant requests and is granted a continuance for trial, the period within which the trial shall be had is extended for an additional six-month period from the date upon which the continuance was granted. (3.5) If a trial date has been fixed by the court and the defendant fails to make an appearance in person on the trial date, the period within which the trial shall be had is extended for an additional six-month period from the date of the defendant's next appearance. (4) If a trial date has been fixed by the court, and thereafter the prosecuting attorney requests and is granted a continuance, the time is not thereby extended within which the trial shall be had, as is provided in subsection (1) of this section, unless the defendant in person or by his counsel in open court of record expressly agrees to the continuance or unless the defendant without making an appearance before the court in person or by his counsel files a dated written waiver of his rights to a speedy trial pursuant to this section and files an agreement to the continuance signed by the defendant. The time for trial, in the event of such agreement, is then extended by the number of days intervening between the granting of such continuance and the date to which trial is continued. (5) To be entitled to a dismissal under subsection (1) of this section, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under this section. (5.1) If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section. (6) In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded: (a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised; (b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution; (c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance; (d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial; (e) The period of delay caused by any mistrial, not to exceed three months for each mistrial; Colorado Revised Statutes 2019 Page 14 of 695 Uncertified Printout (f) The period of any delay caused at the instance of the defendant; (g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if: (I) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or (II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification; (h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months; (i) The period of delay between the filing of a motion pursuant to section 18-1-202 (11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply. (7) If a trial date has been fixed by the court and the case is subsequently transferred to a court in another county, the period within which trial must be had is extended for an additional three months from the date of the first appearance of all of the parties in a court of appropriate jurisdiction in the county to which the case has been transferred. Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-505. L. 79: (2) amended, p. 725, § 1, effective October 1. L. 85: (4) and (5) amended and (5.1) and (6)(h) added, pp. 622, 623, §§ 6, 7, effective July 1. L. 87: (3.5) added, p. 606, § 11, effective April 16. L. 88: (3.5) amended, p. 664, § 4, effective July 1. L. 92: (6) amended and (7) added, p. 402, § 13, effective June 3. L. 94: (6)(a) amended, p. 1716, § 4, effective July 1. L. 99: (6)(a) amended, p. 404, § 7, effective July 1. 18-1-406. Right to jury trial. (1) Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving petty offenses, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S. (2) Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record. (3) A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial. (4) Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the Colorado Revised Statutes 2019 Page 15 of 695 Uncertified Printout approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled. (5) Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial. (6) Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case. (7) Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict. Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-506. L. 72: p. 268, § 6. L. 86: (1) amended, p. 769, § 3, effective July 1. L. 91: (4) amended, p. 405, § 7, effective June 6. L. 94: (1) amended and (7) added, p. 1716, § 5, effective July 1. Cross references: For similar provisions concerning the right to trial by jury, see Crim. P. 23. 18-1-407. Affirmative defense. (1) "Affirmative defense" means that unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue. (2) If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense. Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-507. Cross references: For the affirmative defense of impaired mental condition, see §§ 16-8103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see §§ 18-1710 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 through 15 of this title 18. 18-1-408. Prosecution of multiple counts for same act. (1) When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if: (a) One offense is included in the other, as defined in subsection (5) of this section; or (b) One offense consists only of an attempt to commit the other; or (c) Inconsistent findings of fact are required to establish the commission of the offenses; or (d) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or Colorado Revised Statutes 2019 Page 16 of 695 Uncertified Printout (e) The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods or instances of such conduct constitute separate offenses. (2) If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited. (3) When two or more offenses are charged as required by subsection (2) of this section and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences. (4) When a defendant is charged with two or more offenses based on the same act or series of acts arising from the same criminal episode, the court, on application of either the defendant or the district attorney, may order any such charge to be tried separately, if it is satisfied that justice so requires. (5) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when: (a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. (6) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. (7) If the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier. (8) Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant Colorado Revised Statutes 2019 Page 17 of 695 Uncertified Printout is guilty of a greater offense submitted for the jury's consideration, the retrial of which would be barred by conviction of the lesser offense. Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-508. L. 85: (3) amended, p. 661, § 1, effective July 1. L. 94: (2) amended, p. 1049, § 2, effective July 1. L. 2000: (8) added, p. 452, § 6, effective April 24. Cross references: For the sentencing of a defendant convicted of multiple crimes of violence arising out of the same incident, see § 18-1.3-406 (1)(a). 18-1-409. Appellate review of sentence for a felony. (1) When sentence is imposed upon any person following a conviction of any felony, other than a class 1 felony in which a death sentence is automatically reviewed pursuant to section 18-1.3-1201 (6), 18-1.3-1302 (6), or 18-1.4-102 (6), the person convicted shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based; except that, if the sentence is within a range agreed upon by the parties pursuant to a plea agreement, the defendant shall not have the right of appellate review of the propriety of the sentence. The procedures to be employed in the review shall be as provided by supreme court rule. (2) No appellate court shall review any sentence which is imposed unless, within fortynine days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based. (2.1) and (2.2) Repealed. (3) The reviewing court shall have power to affirm the sentence under review, substitute for the sentence under review any penalty that was open to the sentencing court other than granting probation or other conditional release, or remand the case for any further proceedings that could have been conducted prior to the imposition of the sentence under review, and for resentencing on the basis of such further proceedings. No sentence in excess of the one originally imposed shall be given unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court during the hearing conducted under this section. If the court imposes a sentence in excess of the one first given, it shall specifically identify the additional aggravating facts considered by it in imposing the increased sentence. Source: L. 71: R&RE, p. 401, § 1. C.R.S. 1963: § 40-1-509. L. 76: (2) R&RE, p. 549, § 8, effective July 1. L. 79: (2.1) repealed and (2.2) R&RE, pp. 670, 672, §§ 17, 24, effective July 1; (1) amended, p. 675, § 2, effective August 1. L. 81: (2.2) repealed, p. 969, § 2, effective July 1. L. 91, 2nd Ex. Sess.: (1) amended, p. 14, § 2, effective September 20; (1) amended, p. 22, § 2, effective October 11. L. 93: (2) amended, p. 1460, § 4, effective June 6. L. 99: (1) amended, p. 799, § 21, effective July 1. L. 2002: (1) amended, p. 1510, § 179, effective October 1. L. 2002, 3rd Ex. Sess.: (1) amended, pp. 33, 34, §§ 29, 30, effective July 12. L. 2012: (2) amended, (SB 12-175), ch. 208, p. 862, § 102, effective July 1. Colorado Revised Statutes 2019 Page 18 of 695 Uncertified Printout Cross references: (1) For the supreme court rule concerning appellate review of felony sentences, see rule C.A.R. 4(c). (2) For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (1), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. 18-1-409.5. (Repealed) Appellate review of sentence not within the presumptive range. Source: L. 79: Entire section added, p. 670, § 18, effective July 1. L. 81: Entire section repealed, p. 969, § 2, effective July 1. 18-1-410. Postconviction remedy. (1) Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make applications for postconviction review. Except as otherwise required by subsection (1.5) of this section, an application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon: (a) That the conviction was obtained or sentence imposed in violation of the constitution or laws of the United States or the constitution or laws of this state; (b) That the applicant was convicted under a statute that is in violation of the constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected; (c) That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter; (d) That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law; (e) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned of by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice; (f) (I) That there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard. (II) The ground set forth in this paragraph (f) may not be asserted if, prior to filing for relief pursuant to this paragraph (f), a person has not sought appeal of a conviction within the time prescribed therefor or if a judgment of conviction has been affirmed upon appeal. (g) Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or (h) That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release. (1.5) An application for postconviction review in a class 1 felony case where a sentence of death has been imposed shall be limited to claims of newly discovered evidence and ineffective assistance of counsel; except that, for any sentence of death imposed on or after the Colorado Revised Statutes 2019 Page 19 of 695 Uncertified Printout date upon which the Colorado supreme court adopts rules implementing the unitary system of review established by part 2 of article 12 of title 16, C.R.S., any application for postconviction review in such case shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S. (2) (a) Except as otherwise required by paragraph (b) of this subsection (2), procedures to be followed in implementation of the right to postconviction remedy shall be as prescribed by rule of the supreme court of the state of Colorado. (b) In any class 1 felony case where a sentence of death has been imposed, the district court shall expeditiously consider an application for postconviction remedy. It is the general assembly's intent that the district court give priority to cases in which a sentence of death has been imposed. (3) (a) Except as otherwise provided in paragraph (b) of this subsection (3), an appeal of any order by the district court granting or denying postconviction relief in a case in which a sentence of death has been imposed shall be to the Colorado supreme court as provided by section 13-4-102 (1)(h), C.R.S. The procedures to be followed in the implementation of such review shall be in accordance with any rules adopted by the Colorado supreme court in response to the legislative intent expressed in section 16-12-101.5 (1), C.R.S. (b) In any class 1 felony case in which a sentence of death is imposed on or after the date upon which the Colorado supreme court adopts rules implementing the unitary system of review established under part 2 of article 12 of title 16, C.R.S., the procedures for appealing any order by the district court granting or denying postconviction relief and review by the Colorado supreme court of such order shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S., and by such rules adopted by the supreme court. Source: L. 71: R&RE, p. 402, § 1. C.R.S. 1963: § 40-1-510. L. 73: p. 533, § 2. L. 75: (1)(f) amended, p. 211, § 28, effective July 16. L. 94: IP(1) and (2) amended and (1.5) and (3) added, p. 1474, § 2, effective July 1. L. 97: (1.5) and (3) amended, p. 1583, § 5, effective June 4. Cross references: For limitations on collateral attacks, see § 16-5-402; for similar provisions concerning postconviction remedies, see Crim. P. 35. 18-1-410.5. Relief from improperly entered guilty pleas - legislative declaration. (1) The general assembly finds that: (a) A criminal defendant cannot challenge an unconstitutional guilty plea when that plea has been withdrawn and the underlying charges dismissed following the successful completion of a deferred judgment or the dismissal of charges pursuant to section 18-18-404 (3) prior to its repeal in 2010; (b) Based on the statutory language of sections 18-1.3-102 and 18-18-404 (3), together with the written deferred judgment agreement and court colloquy that accompanies such agreements, many noncitizen defendants did not understand that the guilty plea would continue to constitute a conviction for immigration purposes and result in adverse immigration consequences, despite the subsequent withdrawal of the guilty plea and dismissal of the charges upon successful completion of the deferred judgment or dismissal pursuant to section 18-18-404 (3); and (c) In the absence of an appropriate mechanism, many noncitizen defendants have been unfairly deprived of the opportunity to challenge guilty pleas that were entered in violation of the Colorado Revised Statutes 2019 Page 20 of 695 Uncertified Printout constitution or laws of the United States or of this state that resulted in adverse immigration consequences. (2) Notwithstanding the time limitation contained in section 16-5-402, at any time following the withdrawal of the guilty plea and dismissal of the charges upon successful completion of a deferred judgment, or upon the dismissal of charges pursuant to section 18-18404 (3) prior to its repeal, a criminal defendant may challenge the guilty plea on the grounds set forth in subsection (3) of this section. The court in which the guilty plea was originally entered has jurisdiction and authority to decide the motion. (3) A defendant moving to vacate a guilty plea that has already been withdrawn following the successful completion of a deferred judgment or upon the dismissal of charges pursuant to section 18-18-404 (3) prior to its repeal must, in good faith, allege the following: (a) As a result of the guilty plea, the defendant has suffered, is currently suffering, or will suffer, an adverse immigration consequence; and (b) The guilty plea was obtained in violation of the constitution or laws of the United States or of this state under one or more of the following grounds: (I) The defendant was not informed that the guilty plea would continue to result in adverse immigration consequences despite the subsequent withdrawal of the guilty plea and dismissal of the charges with prejudice; (II) The defendant was not adequately advised of the immigration consequences of the guilty plea; or (III) The guilty plea was constitutionally infirm for any other reason set forth in section 18-1-410 (1). (4) (a) Upon receipt of the motion, the court shall direct the prosecution to respond within twenty-one days or request additional time for good cause shown. If a response is not filed, the motion is deemed unopposed and the court shall grant the motion. If the prosecution opposes the motion, it shall allege, in good faith, the facts upon which it bases its opposition. If the response raises an issue of material fact, the court shall set the matter for an evidentiary hearing. (b) Unless the prosecution proves by a preponderance of the evidence that the defendant will not suffer an immigration consequence or that the guilty plea was constitutionally entered, the court shall grant the motion. (c) For claims raised pursuant to subsection (3)(b)(I) of this section, the prosecution can neither raise an issue of material fact to obtain an evidentiary hearing nor defeat a claim at the hearing by relying on written documents, such as a deferred judgment agreement, plea paperwork, or transcript of a court colloquy, unless those documents clearly show that the defendant was informed that the immigration consequences resulting from a guilty plea would remain despite the subsequent withdrawal of that guilty plea and the dismissal of the charges with prejudice. (5) If the defendant succeeds in challenging a guilty plea under subsection (3) of this section, the court shall vacate the guilty plea as constitutionally infirm. The order constitutes an additional independent basis for the vacatur of the guilty plea and does not result in the reinstatement of charges. Source: L. 2019: Entire section added, (SB 19-030), ch. 301, p. 2770, § 1, effective May 28. Colorado Revised Statutes 2019 Page 21 of 695 Uncertified Printout Editor's note: Section 3 of chapter 301 (SB 19-030), Session Laws of Colorado 2019, provides that the act adding this section applies to charges dismissed before, on, or after May 28, 2019. 18-1-411. Postconviction testing of DNA - definitions. As used in this section and in sections 18-1-412 to 18-1-416, unless the context otherwise requires: (1) "Actual innocence" means clear and convincing evidence such that no reasonable juror would have convicted the defendant. (2) "Actual or constructive possession" means the biological evidence is maintained or stored on the premises of the law enforcement agency or at another location or facility under the custody or control of the law enforcement agency, including pursuant to an agreement or contract with the law enforcement agency and a third-party service provider, in Colorado or elsewhere. (3) "DNA" means deoxyribonucleic acid. (4) "Incarcerated" means physically housed in a department of corrections facility, a private correctional facility under contract with the department of corrections, or a county jail following a felony conviction, or in a juvenile facility following adjudication for an offense that would have been a felony if committed by an adult, or under parole supervision. Source: L. 2003: Entire section added, p. 815, § 1, effective August 6. 18-1-412. Procedure for application for DNA testing - appointment of counsel. (1) An incarcerated person may apply to the district court in the district where the conviction was secured for DNA testing concerning the conviction and sentence the person is currently serving. (2) A motion filed pursuant to this section shall include specific facts sufficient to support a prima facie showing that post-conviction relief is warranted under the criteria set forth in section 18-1-413. The motion shall include the results of all prior DNA tests, regardless of whether a test was performed by the defense or the prosecution. (3) If the motion, files, and record of the case show to the satisfaction of the court that the petitioner is not entitled to relief based on the criteria specified in section 18-1-413, the court shall deny the motion without a hearing and without appointment of counsel. The court may deny a second or subsequent motion requesting relief pursuant to this section. (4) If the court does not deny the petitioner's motion for testing, the court shall appoint counsel if the court determines the petitioner is indigent and has requested counsel. The court shall forward a copy of the motion for DNA testing to the district attorney. (5) Counsel for the defendant may request the court to set the matter for a hearing, if, upon investigation of the petitioner's motion for testing, counsel believes sufficient grounds exist to support an order for DNA testing. If the petitioner represents himself or herself, the court may set the matter for a hearing upon his or her request. (6) Following a request for a hearing, the court shall allow the district attorney a reasonable amount of time, but not less than thirty-five days, to respond to the motion and any supplement filed by the petitioner's counsel and to prepare for the hearing. (7) A court shall not order DNA testing without a hearing, except upon written stipulation of the district attorney. Colorado Revised Statutes 2019 Page 22 of 695 Uncertified Printout (8) The court shall deny a motion for production of transcripts unless the petitioner makes a prima facie showing that a transcript will be necessary at a hearing conducted pursuant to this section. (9) Upon motion of the defendant or his or her counsel, the court shall order a database search by a law enforcement agency if the court determines that a reasonable probability exists that the database search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing. DNA profiles must meet current national DNA database index system eligibility standards and conform to current federal bureau of investigation quality assurance standards in order to be eligible for search against the state index system. Source: L. 2003: Entire section added, p. 816, § 1, effective August 6. L. 2009: (9) added, (SB 09-241), ch. 295, p. 1582, § 11, effective July 1. L. 2012: (6) amended, (SB 12-175), ch. 208, p. 862, § 103, effective July 1. 18-1-413. Content of application for DNA testing. (1) A court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that: (a) Favorable results of the DNA testing will demonstrate the petitioner's actual innocence; (b) A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing; (c) (I) Conclusive DNA results were not available prior to the petitioner's conviction; and (II) The petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and (d) The petitioner consents to provide a biological sample for DNA testing. Source: L. 2003: Entire section added, p. 816, § 1, effective August 6. 18-1-414. Preservation of evidence. (1) A petitioner shall not be entitled to relief based solely on an allegation that a law enforcement agency failed to preserve biological evidence. (2) (a) A court granting a motion for hearing pursuant to section 18-1-412 shall order the appropriate law enforcement agency to preserve existing biological evidence for DNA testing. (b) If a law enforcement agency, through negligence, destroys, loses, or otherwise disposes of biological evidence that is the subject of an order pursuant to this subsection (2) before the evidence may be tested, the court shall set a hearing to determine whether a remedy is warranted. If the court determines that a remedy is warranted, the court may order whatever remedy the court finds is just, equitable, and appropriate. Nothing in this subsection (2) shall be construed to limit or eliminate the court's authority to order any remedy otherwise available under law for the destruction, loss, or disposal of evidence. (c) For the purposes of this subsection (2), "negligence" means a departure from the ordinary standard of care. (3) Except as provided in subsection (2) of this section, this section does not create a duty to preserve biological evidence. Notwithstanding the provisions of subsection (2) of this Colorado Revised Statutes 2019 Page 23 of 695 Uncertified Printout section, this section does not create a liability on the part of a law enforcement agency for failing to preserve biological evidence. Source: L. 2003: Entire section added, p. 817, § 1, effective August 6. L. 2008: (2) and (3) amended, p. 1513, § 2, effective May 28. Cross references: For the legislative declaration contained in the 2008 act amending subsections (2) and (3), see section 1 of chapter 322, Session Laws of Colorado 2008. 18-1-415. Testing - payment. All testing shall be performed at a law enforcement facility, and the petitioner shall pay for the testing. If the petitioner is indigent and represented by either the public defender or alternate defense counsel, and with the approval of the public defender or the alternate defense counsel, the costs of the testing shall be paid from their budget. Source: L. 2003: Entire section added, p. 817, § 1, effective August 6. L. 2010: Entire section amended, (HB 10-1422), ch. 419, p. 2073, § 31, effective August 11. 18-1-416. Results of the DNA test. (1) Notwithstanding any law or rule of procedure that bars a motion for post-conviction review as untimely, a petitioner may use the results of a DNA test ordered pursuant to section 18-1-413 as the grounds for filing a motion for postconviction review under section 18-1-410 and the Colorado rules of criminal procedure. (2) The testing laboratory shall make the results of a DNA test ordered pursuant to section 18-1-413 available to the combined DNA index system and to any Colorado, federal, or other law enforcement DNA databases. Source: L. 2003: Entire section added, p. 817, § 1, effective August 6. 18-1-417. Ineffective assistance of counsel claims - waiver of confidentiality. (1) Notwithstanding any other provision of law, whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives any confidentiality, including attorney-client and work-product privileges, between counsel and defendant, and between the defendant or counsel and any expert witness retained or appointed in connection with the representation, but only with respect to the information that is related to the defendant's claim of ineffective assistance. After the defendant alleges ineffective assistance of counsel, the allegedly ineffective counsel and an expert witness may discuss with, may disclose any aspect of the representation that is related to the defendant's claim of ineffective assistance to, and may produce documents related to such representation that are related to the defendant's claim of ineffective assistance to the prosecution without the need for an order by the court that confidentiality has been waived. (2) If the allegedly ineffective counsel or an expert witness has released his or her file or a portion thereof to defendant or defendant's current counsel, defendant or current counsel shall permit the prosecution to inspect and copy any or all portions of the file that are related to the defendant's claim of ineffective assistance upon request of the prosecution. Source: L. 2005: Entire section added, p. 424, § 2, effective April 29. Colorado Revised Statutes 2019 Page 24 of 695 Uncertified Printout PART 5 PRINCIPLES OF CRIMINAL CULPABILITY Law reviews: For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to erroneous malice presumption, see 15 Colo. Law. 1616 (1986). 18-1-501. Definitions. The following definitions are applicable to the determination of culpability requirements for offenses defined in this code: (1) "Act" means a bodily movement, and includes words and possession of property. (2) "Conduct" means an act or omission and its accompanying state of mind or, where relevant, a series of acts or omissions. (3) "Criminal negligence". A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists. (4) "Culpable mental state" means intentionally, or with intent, or knowingly, or willfully, or recklessly, or with criminal negligence, as these terms are defined in this section. (5) "Intentionally" or "with intent". All offenses defined in this code in which the mental culpability requirement is expressed as "intentionally" or "with intent" are declared to be specific intent offenses. A person acts "intentionally" or "with intent" when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred. (6) "Knowingly" or "willfully". All offenses defined in this code in which the mental culpability requirement is expressed as "knowingly" or "willfully" are declared to be general intent crimes. A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully", with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result. (7) "Omission" means a failure to perform an act as to which a duty of performance is imposed by law. (8) "Recklessly". A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists. (9) "Voluntary act" means an act performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it. Source: L. 71: R&RE, p. 403, § 1. C.R.S. 1963: § 40-1-601. L. 75: (3), (5), (6), and (8) R&RE, p. 616, § 1, effective July 21. L. 77: (4) amended and (5) and (6) R&RE, p. 959, §§ 1, 2, effective July 1. 18-1-502. Requirements for criminal liability in general and for offenses of strict liability and of mental culpability. The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform Colorado Revised Statutes 2019 Page 25 of 695 Uncertified Printout an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of "strict liability". If a culpable mental state on the part of the actor is required with respect to any material element of an offense, the offense is one of "mental culpability". Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-602. 18-1-503. Construction of statutes with respect to culpability requirements. (1) When the commission of an offense, or some element of an offense, requires a particular culpable mental state, that mental state is ordinarily designated by use of the terms "intentionally", "with intent", "knowingly", "willfully", "recklessly", or "criminal negligence" or by use of the terms "with intent to defraud" and "knowing it to be false" describing a specific kind of intent or knowledge. (2) Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state. (3) If a statute provides that criminal negligence suffices to establish an element of an offense, that element also is established if a person acts recklessly, knowingly, or intentionally. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally. (4) When a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears. Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-603. L. 77: (1) amended, p. 960, § 3, effective July 1. 18-1-503.5. Principles of criminal culpability. (1) If the criminality of conduct depends on a child being younger than eighteen years of age and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust. (2) If the criminality of conduct depends on a child's being younger than eighteen years of age and the child was in fact younger than fifteen years of age, there shall be no defense that the defendant reasonably believed the child was eighteen years of age or older. (3) If the criminality of conduct depends on a child being younger than fifteen years of age, it shall be no defense that the defendant did not know the child's age or that the defendant reasonably believed the child to be fifteen years of age or older. Source: L. 2001: Entire section added, p. 859, § 6, effective July 1. L. 2007: (1) amended, p. 1687, § 4, effective July 1. Colorado Revised Statutes 2019 Page 26 of 695 Uncertified Printout Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-1-504. Effect of ignorance or mistake upon culpability. (1) A person is not relieved of criminal liability for conduct because he engaged in that conduct under a mistaken belief of fact, unless: (a) It negatives the existence of a particular mental state essential to commission of the offense; or (b) The statute defining the offense or a statute relating thereto expressly provides that a factual mistake or the mental state resulting therefrom constitutes a defense or exemption; or (c) The factual mistake or the mental state resulting therefrom is of a kind that supports a defense of justification as defined in sections 18-1-701 to 18-1-707. (2) A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless the conduct is permitted by one or more of the following: (a) A statute or ordinance binding in this state; (b) An administrative regulation, order, or grant of permission by a body or official authorized and empowered to make such order or grant the permission under the laws of the state of Colorado; (c) An official written interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting a statute, ordinance, regulation, order, or law. If such interpretation is by judicial decision, it must be binding in the state of Colorado. (3) Any defense authorized by this section is an affirmative defense. Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-604. Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 through 18 of this title 18. 18-1-505. Consent. (1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense. (2) When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under sections 181-701 to 18-1-707. (3) Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if: (a) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or Colorado Revised Statutes 2019 Page 27 of 695 Uncertified Printout (b) It is given by a person who, by reason of immaturity, behavioral or mental health disorder, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or (c) It is given by a person whose consent is sought to be prevented by the law defining the offense; or (d) It is induced by force, duress, or deception. (4) Any defense authorized by this section is an affirmative defense. Source: L. 71: R&RE, p. 405, § 1. C.R.S. 1963: § 40-1-605. L. 81: (2) amended, p. 980, § 1, effective May 13. L. 2017: (3)(b) amended, (SB 17-242), ch. 263, p. 1305, § 138, effective May 25. Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. PART 6 PARTIES TO OFFENSES - ACCOUNTABILITY Law reviews: For article, "Colorado Law Concerning Accomplices and Complicity", see 18 Colo. Law. 2317 (1989); for article, "1992 Criminal Law Legislative Update", see 21 Colo. Law. 2200 (1992). 18-1-601. Liability based upon behavior. A person is guilty of an offense if it is committed by the behavior of another person for which he is legally accountable as provided in sections 18-1-602 to 18-1-607. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-701. 18-1-602. Behavior of another. (1) A person is legally accountable for the behavior of another person if: (a) He is made accountable for the conduct of that person by the statute defining the offense or by specific provision of this code; or (b) He acts with the culpable mental state sufficient for the commission of the offense in question and he causes an innocent person to engage in such behavior. (2) As used in subsection (1) of this section, "innocent person" includes any person who is not guilty of the offense in question, despite his behavior, because of duress, legal incapacity or exemption, or unawareness of the criminal nature of the conduct in question or of the defendant's criminal purpose, or any other factor precluding the mental state sufficient for the commission of the offense in question. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-702. Colorado Revised Statutes 2019 Page 28 of 695 Uncertified Printout 18-1-603. Complicity. A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-703. L. 97: Entire section amended, p. 1540, § 3, effective July 1. 18-1-604. Exemptions from liability based upon behavior of another. (1) Unless otherwise provided by the statute defining the offense, a person shall not be legally accountable for behavior of another constituting an offense if he is a victim of that offense or the offense is so defined that his conduct is inevitably incidental to its commission. (2) It shall be an affirmative defense to a charge under section 18-1-603 if, prior to the commission of the offense, the defendant terminated his effort to promote or facilitate its commission and either gave timely warning to law enforcement authorities or gave timely warning to the intended victim. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-704. Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-1-605. Liability based on behavior of another - no defense. In any prosecution for an offense in which criminal liability is based upon the behavior of another pursuant to sections 18-1-601 to 18-1-604, it is no defense that the other person has not been prosecuted for or convicted of any offense based upon the behavior in question or has been convicted of a different offense or degree of offense, or the defendant belongs to a class of persons who by definition of the offense are legally incapable of committing the offense in an individual capacity. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-705. 18-1-606. Criminal liability of business entities - definitions. (1) A business entity is guilty of an offense if: (a) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on the business entity by law; or (b) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or knowingly tolerated by the governing body or individual authorized to manage the affairs of the business entity or by a high managerial agent acting within the scope of his or her employment or in behalf of the business entity. (2) As used in this section: (a) "Agent" means any director, officer, or employee of a business entity, or any other person who is authorized to act in behalf of the business entity, and "high managerial agent" means an officer of a business entity or any other agent in a position of comparable authority with respect to the formulation of the business entity's policy or the supervision in a managerial capacity of subordinate employees. Colorado Revised Statutes 2019 Page 29 of 695 Uncertified Printout (b) "Business entity" means a corporation or other entity that is subject to the provisions of title 7, C.R.S.; foreign corporations qualified to do business in this state pursuant to article 115 of title 7, C.R.S., specifically including federally chartered or authorized financial institutions; a corporation or other entity that is subject to the provisions of title 11, C.R.S.; or a sole proprietorship or other association or group of individuals doing business in the state. (3) Every offense committed by a corporation prior to July 1, 1985, which would be a felony if committed by an individual shall subject the corporation to the payment of a fine of not less than one thousand dollars nor more than fifteen thousand dollars. For such offenses committed on or after July 1, 1985, the corporation shall be subject to the payment of a fine within the presumptive ranges authorized by section 18-1.3-401 (1)(a)(III). Every offense committed by a corporation which would be a misdemeanor or petty offense if committed by an individual shall subject the corporation to the payment of a fine within the minimum and maximum fines authorized by sections 18-1.3-501 and 18-1.3-503 for the particular offense of which the corporation is convicted. For an offense committed on or after July 1, 2003, a business entity shall be subject to the payment of a fine within the presumptive ranges authorized by section 18-1.3-401 (1)(a)(III). An offense committed by a business entity that would be a misdemeanor or petty offense if committed by an individual shall subject the business entity to the payment of a fine within the minimum and maximum fines authorized by sections 18-1.3501 and 18-1.3-503 for the particular offense of which the business entity is convicted. Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-706. L. 85: (3) amended, p. 658, § 7, effective July 1. L. 2002: (3) amended, p. 1511, § 180, effective October 1. L. 2003: Entire section amended, p. 982, § 18, effective April 17. Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-1-607. Criminal liability of an individual for corporate conduct. A person is criminally liable for conduct constituting an offense which he performs or causes to occur in the name of or in behalf of a corporation to the same extent as if that conduct were performed or caused by him in his own name or behalf. Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-707. PART 7 JUSTIFICATION AND EXEMPTIONS FROM CRIMINAL RESPONSIBILITY 18-1-701. Execution of public duty. (1) Unless inconsistent with other provisions of sections 18-1-702 to 18-1-710, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in Colorado. (2) A "provision of law" and a "judicial decree" in subsection (1) of this section mean: Colorado Revised Statutes 2019 Page 30 of 695 Uncertified Printout (a) Laws defining duties and functions of public servants; (b) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions; (c) Laws governing the execution of legal process; (d) Laws governing the military service and conduct of war; (e) Judgments and orders of court. Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-801. 18-1-702. Choice of evils. (1) Unless inconsistent with other provisions of sections 181-703 to 18-1-707, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. (2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification. Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-802. 18-1-703. Use of physical force - special relationships. (1) The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: (a) A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person. (b) A superintendent or other authorized official of a jail, prison, or correctional institution may, in order to maintain order and discipline, use reasonable and appropriate physical force when and to the extent that he reasonably believes it necessary to maintain order and discipline, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious bodily injury. (c) A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use reasonable and appropriate physical force when and to the extent that it is necessary to maintain order and discipline, but he may use deadly physical force only when it is reasonably necessary to prevent death or serious bodily injury. Colorado Revised Statutes 2019 Page 31 of 695 Uncertified Printout (d) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious bodily injury upon himself may use reasonable and appropriate physical force upon that person to the extent that it is reasonably necessary to thwart the result. (e) A duly licensed physician, advanced practice nurse, or a person acting under his or her direction, may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if: (I) The treatment is administered with the consent of the patient, or if the patient is a minor or an incompetent person, with the consent of his parent, guardian, or other person entrusted with his care and supervision; or (II) The treatment is administered in an emergency when the physician or advanced practice nurse reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent. Source: L. 71: R&RE, p. 408, § 1. C.R.S. 1963: § 40-1-803. L. 76: (1)(b) amended, p. 534, § 15, effective April 9. L. 81: (1)(b) to (1)(d) amended, p. 980, § 2, effective May 13. L. 2008: IP(1)(e) and (1)(e)(II) amended, p. 128, § 8, effective January 1, 2009. Cross references: For the justified use of weapons or other aid to enforce obedience at state correctional facilities, see § 17-20-122; for the use of force in preventing escape from a detention facility, see § 18-1-707 (8); for provisions concerning child abuse, see §§ 18-6-401 and 19-3-102 and part 3 of article 3 of title 19; for the use of force in administering medication to persons with mental illness, see § 27-65-111 (5). 18-1-704. Use of physical force in defense of a person. (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or Colorado Revised Statutes 2019 Page 32 of 695 Uncertified Printout (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding selfdefense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of selfdefense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-804. L. 72: p. 274, § 1. L. 75: (2)(c) amended, p. 632, § 4, effective July 1. L. 79: (2)(c) amended, p. 726, § 1, effective July 1. L. 81: (2)(a) and (3)(a) amended, p. 981, § 3, effective May 13. L. 2000: (2)(c) amended, p. 703, § 27, effective July 1. L. 2003: (4) added, p. 795, § 1, effective March 25. Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119. 18-1-704.5. Use of deadly physical force against an intruder. (1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant. (3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force. (4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force. (5) As used in this section, unless the context otherwise requires, "dwelling" does not include any place of habitation in a detention facility, as defined in section 18-8-211 (4). Source: L. 85: Entire section added, p. 662, § 1, effective June 6. L. 2016: (5) added, (HB 16-1190), ch. 87, p. 245, § 1, effective August 10. Colorado Revised Statutes 2019 Page 33 of 695 Uncertified Printout Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119. 18-1-705. Use of physical force in defense of premises. A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson. Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-805. Cross references: For first degree arson, see § 18-4-102. 18-1-706. Use of physical force in defense of property. A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704. Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-806. Cross references: For theft, see part 4 of article 4 of this title 18; for criminal mischief, see § 18-4-501; for criminal tampering, see §§ 18-4-505 and 18-4-506. 18-1-706.5. Justification and exemption from liability when rendering emergency assistance to an at-risk person or animal in a locked vehicle. A person is justified and exempt from criminal liability for criminal mischief, criminal trespass, or criminal tampering involving property if such action occurred when he or she rendered emergency assistance to an at-risk person or animal in a locked vehicle, provided the person rendering assistance acted in accordance with the provisions of section 13-21-108.4. Source: L. 2017: Entire section added, (HB 17-1179), ch. 127, p. 436, § 2, effective August 9. 18-1-707. Use of physical force in making an arrest or in preventing an escape definitions. (1) Except as provided in subsections (2) and (2.5) of this section, a peace officer is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary: (a) To effect an arrest or to prevent the escape from custody of an arrested person unless he knows that the arrest is unauthorized; or Colorado Revised Statutes 2019 Page 34 of 695 Uncertified Printout (b) To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent such an escape. (2) A peace officer is justified in using deadly physical force upon another person for a purpose specified in subsection (1) of this section only when he reasonably believes that it is necessary: (a) To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes: (I) Has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or (II) Is attempting to escape by the use of a deadly weapon; or (III) Otherwise indicates, except through a motor vehicle violation, that he is likely to endanger human life or to inflict serious bodily injury to another unless apprehended without delay. (2.5) (a) A peace officer is justified in using a chokehold upon another person for the purposes specified in subsection (1) of this section only when he or she reasonably believes that it is necessary: (I) To defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force or infliction of bodily injury; or (II) To effect an arrest, or to prevent the escape from custody, of a person whom he or she reasonably believes: (A) Has committed or attempted to commit a felony involving or threatening the use of a deadly weapon; or (B) Is attempting to escape by the use of physical force; or (C) Indicates, except through a motor vehicle, that he or she is likely to endanger human life or to inflict serious bodily injury to another unless he or she is apprehended without delay. (b) For the purposes of this subsection (2.5), "chokehold" means a method by which a person holds another person by putting his or her arm around the other person's neck with sufficient pressure to make breathing difficult or impossible and includes, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air. (3) Nothing in subsection (2)(b) or subsection (2.5) of this section shall be deemed to constitute justification for reckless or criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent persons whom he is not seeking to arrest or retain in custody. (4) For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances that if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of force to make an arrest or to prevent an escape from custody. A peace officer who is effecting an arrest pursuant to a warrant is justified in using the physical force prescribed in subsections (1), (2), and (2.5) of this section unless the warrant is invalid and is known by the officer to be invalid. Colorado Revised Statutes 2019 Page 35 of 695 Uncertified Printout (5) Except as provided in subsection (6) of this section, a person who has been directed by a peace officer to assist him to effect an arrest or to prevent an escape from custody is justified in using reasonable and appropriate physical force when and to the extent that he reasonably believes that force to be necessary to carry out the peace officer's direction, unless he knows that the arrest or prospective arrest is not authorized. (6) A person who has been directed to assist a peace officer under circumstances specified in subsection (5) of this section may use deadly physical force to effect an arrest or to prevent an escape only when: (a) He reasonably believes that force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or (b) He is directed or authorized by the peace officer to use deadly physical force and does not know, if that happens to be the case, that the peace officer himself is not authorized to use deadly physical force under the circumstances. (7) A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force. (8) A guard or peace officer employed in a detention facility is justified: (a) In using deadly physical force when he reasonably believes it necessary to prevent the escape of a prisoner convicted of, charged with, or held for a felony or confined under the maximum security rules of any detention facility as such facility is defined in subsection (9) of this section; (b) In using reasonable and appropriate physical force, but not deadly physical force, in all other circumstances when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the escape of a prisoner from a detention facility. (9) "Detention facility" as used in subsection (8) of this section means any place maintained for the confinement, pursuant to law, of persons charged with or convicted of an offense, held pursuant to the "Colorado Children's Code", held for extradition, or otherwise confined pursuant to an order of a court. Source: L. 71: R&RE, p. 410, § 1. C.R.S. 1963: § 40-1-807. L. 75: (2)(b) R&RE, p. 616, § 2, effective July 21. L. 2016: IP(1), (3), and (4) amended and (2.5) added, (HB 16-1264), ch. 341, p. 1390, § 1, effective July 1. Cross references: For the "Colorado Children's Code", see title 19. 18-1-708. Duress. A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in Colorado Revised Statutes 2019 Page 36 of 695 Uncertified Printout addition to the defense of duress provided under this section unless separate facts exist which warrant its application. Source: L. 71: R&RE, p. 411, § 1. C.R.S. 1963: § 40-1-808. L. 88: Entire section amended, p. 712, § 15, effective July 1. 18-1-709. Entrapment. The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used. Source: L. 71: R&RE, p. 411, § 1. C.R.S. 1963: § 40-1-809. 18-1-710. Affirmative defense. The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-810. Cross references: For the affirmative defense of impaired mental condition, see §§ 16-8103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see §§ 18-1407 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18. 18-1-711. Immunity for persons who suffer or report an emergency drug or alcohol overdose event - definitions. (1) A person is immune from arrest and prosecution for an offense described in subsection (3) of this section if: (a) The person reports in good faith an emergency drug or alcohol overdose event to a law enforcement officer, to the 911 system, or to a medical provider; (b) The person remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives or the person remains at the facilities of the medical provider until a law enforcement officer arrives; (c) The person identifies himself or herself to, and cooperates with, the law enforcement officer, emergency medical responder, or medical provider; and (d) The offense arises from the same course of events from which the emergency drug or alcohol overdose event arose. (2) The immunity described in subsection (1) of this section also extends to the person who suffered the emergency drug or alcohol overdose event if all of the conditions of subsection (1) of this section are satisfied. (3) [Editor's note: This version of subsection (3) introductory portion is effective until March 1, 2020.] The immunity described in subsection (1) of this section shall apply to the following criminal offenses: Colorado Revised Statutes 2019 Page 37 of 695 Uncertified Printout (3) [Editor's note: This version of subsection (3) introductory portion is effective March 1, 2020.] The immunity described in subsection (1) of this section applies to the following criminal offenses: (a) Unlawful possession of a controlled substance, as described in section 18-18-403.5 (2); (b) Unlawful use of a controlled substance, as described in section 18-18-404; (c) [Editor's note: This version of subsection (3)(c) is effective until March 1, 2020.] Unlawful possession of two ounces or less of marijuana, as described in section 18-18-406 (5)(a)(I); or more than two ounces of marijuana but no more than six ounces of marijuana, as described in section 18-18-406 (4)(c); or more than six ounces of marijuana but no more than twelve ounces of marijuana or three ounces or less of marijuana concentrate as described in section 18-18-406 (4)(b); (c) [Editor's note: This version of subsection (3)(c) is effective March 1, 2020.] If committed on or after March 1, 2020, unlawful possession of two ounces or less of marijuana, as described in section 18-18-406 (5)(a)(I); or more than two ounces of marijuana but not more than six ounces of marijuana or not more than three ounces of marijuana concentrate, as described in section 18-18-406 (4)(c); or more than six ounces of marijuana, or more than three ounces of marijuana concentrate as described in section 18-18-406 (4)(b); (d) Open and public display, consumption, or use of less than two ounces of marijuana as described in section 18-18-406 (5)(b)(I); (e) Transferring or dispensing two ounces or less of marijuana from one person to another for no consideration, as described in section 18-18-406 (5)(c); (f) Use or possession of synthetic cannabinoids or salvia divinorum, as described in section 18-18-406.1; (g) Possession of drug paraphernalia, as described in section 18-18-428; and (h) Illegal possession or consumption of ethyl alcohol or marijuana by an underage person or illegal possession of marijuana paraphernalia by an underage person, as described in section 18-13-122. (4) Nothing in this section shall be interpreted to prohibit the prosecution of a person for an offense other than an offense listed in subsection (3) of this section or to limit the ability of a district attorney or a law enforcement officer to obtain or use evidence obtained from a report, recording, or any other statement provided pursuant to subsection (1) of this section to investigate and prosecute an offense other than an offense listed in subsection (3) of this section. (5) As used in this section, unless the context otherwise requires, "emergency drug or alcohol overdose event" means an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled substance, or of alcohol, or another substance with which a controlled substance or alcohol was combined, and that a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance. Source: L. 2012: Entire section added, (SB 12-020), ch. 225, p. 986, § 2, effective May 29. L. 2013: (3)(c), (3)(d), and (3)(e) amended, (SB 13-250), ch. 333, p. 1934, § 52, effective October 1. L. 2014: (3)(h) amended, (SB 14-129), ch. 387, p. 1938, § 6, effective June 6. L. 2016: IP(1) amended, (HB 16-1390), ch. 184, p. 649, § 1, effective August 10. L. 2017: (3)(a) Colorado Revised Statutes 2019 Page 38 of 695 Uncertified Printout amended, (SB 17-294), ch. 264, p. 1393, § 37, effective May 25. L. 2019: IP(3) and (3)(c) amended, (HB 19-1263), ch. 291, p. 2679, § 5, effective March 1, 2020. Editor's note: Section 11(2) of chapter 291 (HB 19-1263), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after March 1, 2020. Cross references: For the legislative declaration in the 2012 act adding this section, see section 1 of chapter 225, Session Laws of Colorado 2012. 18-1-712. Immunity for a person who administers an opiate antagonist during an opiate-related drug overdose event - definitions. (1) Legislative declaration. The general assembly hereby encourages the administration of opiate antagonists for the purpose of saving the lives of people who suffer opiate-related drug overdose events. A person who administers an opiate antagonist to another person is urged to call for emergency medical services immediately. (2) General immunity. (a) A person, other than a health care provider or a health care facility, who acts in good faith to furnish or administer an opiate antagonist to an individual the person believes to be suffering an opiate-related drug overdose event or to an individual who is in a position to assist the individual at risk of experiencing an opiate-related overdose event is immune from criminal prosecution for the act or for any act or omission made if the opiate antagonist is stolen. (b) This subsection (2) also applies to: (I) A law enforcement agency or first responder; an employee or volunteer of a harm reduction organization; or a school district, school, or employee or agent of a school acting in accordance with section 12-30-110 (1)(b), (2)(b), and (4)(b) and, as applicable, section 22-1119.1; and (II) A person who acts in good faith to furnish or administer an opiate antagonist in accordance with section 25-20.5-1001. (3) (a) Licensed prescribers and dispensers. An individual who is licensed by the state under title 12 and is permitted by section 12-30-110 or by other applicable law to prescribe or dispense an opiate antagonist is immune from criminal prosecution for: (I) Prescribing or dispensing an opiate antagonist in accordance with the applicable law; or (II) Any outcomes resulting from the eventual administration of the opiate antagonist by a layperson. (b) Repealed. (4) The provisions of this section shall not be interpreted to establish any duty or standard of care in the prescribing, dispensing, or administration of an opiate antagonist. (5) Definitions. As used in this section, unless the context otherwise requires: (a) "Health care facility" means a hospital, a hospice inpatient residence, a nursing facility, a dialysis treatment facility, an assisted living residence, an entity that provides homeand community-based services, a hospice or home health care agency, or another facility that provides or contracts to provide health care services, which facility is licensed, certified, or otherwise authorized or permitted by law to provide medical treatment. (b) (I) "Health care provider" means: Colorado Revised Statutes 2019 Page 39 of 695 Uncertified Printout (A) A licensed or certified physician, nurse practitioner, physician assistant, or pharmacist; or (B) A health maintenance organization licensed and conducting business in this state. (II) "Health care provider" does not include a podiatrist, optometrist, dentist, or veterinarian. (c) "Opiate" has the same meaning as set forth in section 18-18-102 (21). (d) "Opiate antagonist" means naloxone hydrochloride or any similarly acting drug that is not a controlled substance and that is approved by the federal food and drug administration for the treatment of a drug overdose. (e) "Opiate-related drug overdose event" means an acute condition, including a decreased level of consciousness or respiratory depression, that: (I) Results from the consumption or use of a controlled substance or another substance with which a controlled substance was combined; (II) A layperson would reasonably believe to be an opiate-related drug overdose event; and (III) Requires medical assistance. Source: L. 2013: Entire section added, (SB 13-014), ch. 178, p. 656, § 2, effective May 10. L. 2015: (2), IP(3)(a), (3)(a)(I), and (5)(e) amended and (3)(b) repealed, (SB 15-053), ch. 78, p. 216, § 9, effective April 3. L. 2019: (2) amended, (SB 19-227), ch. 273, p. 2579, § 7, effective May 23; (2) and IP(3)(a) amended, (HB 19-1172), ch. 136, p. 1674, § 90, effective October 1. Editor's note: (1) Section 17(2) of chapter 273 (SB 19-227), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 23, 2019. (2) Amendments to subsection (2) by SB 19-227 and HB 19-1172 were harmonized. Cross references: For the legislative declaration in the 2013 act adding this section, see section 1 of chapter 178, Session Laws of Colorado 2013. 18-1-713. Victims of human trafficking of a minor for involuntary servitude or sexual servitude - affirmative defenses. (1) Except as provided in section 18-7-209, it is an affirmative defense to any charge, other than a class 1 felony, if the minor being charged proves, by a preponderance of the evidence, that he or she was, at the time of the offense: (a) A victim of human trafficking of a minor for involuntary servitude pursuant to section 18-3-503 or human trafficking of a minor for sexual servitude pursuant to section 18-3504; and (b) Forced or coerced into engaging in the criminal act charged. Source: L. 2019: Entire section added, (SB 19-185), ch. 147, p. 1766, § 5, effective May 6. Cross references: For the legislative declaration in SB 19-185, see section 1 of chapter 147, Session Laws of Colorado 2019. Colorado Revised Statutes 2019 Page 40 of 695 Uncertified Printout PART 8 RESPONSIBILITY 18-1-801. Insufficient age. The responsibility of a person for his conduct is the same for persons between the ages of ten and eighteen as it is for persons over eighteen except to the extent that responsibility is modified by the provisions of the "Colorado Children's Code", title 19, C.R.S. No child under ten years of age shall be found guilty of any offense. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-901. 18-1-802. Insanity. (1) (a) A person who is insane, as defined in section 16-8-101, C.R.S., is not responsible for his or her conduct defined as criminal. Insanity as a defense shall not be an issue in any prosecution unless it is raised by a plea of not guilty by reason of insanity as provided in section 16-8-103, C.R.S. (b) This subsection (1) applies to offenses committed before July 1, 1995. (2) (a) A person who is insane, as defined in section 16-8-101.5, C.R.S., is not responsible for his or her conduct defined as criminal. Insanity as a defense shall not be an issue in any prosecution unless it is raised by a plea of not guilty by reason of insanity as provided in section 16-8-103, C.R.S. (b) This subsection (2) shall apply to offenses occurring on or after July 1, 1995. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-902. L. 72: p. 268, § 7. L. 96: Entire section amended, p. 5, § 4, effective January 31. Cross references: (1) For pleading the defense of insanity, see Crim. P. 11(e). (2) For the legislative intent of the 1996 amendments to this section, see §16-8-101.3. 18-1-803. Impaired mental condition. (1) Evidence of an impaired mental condition, as defined in section 16-8-102 (2.7), C.R.S., though not legal insanity may be offered in a proper case as bearing upon the capacity of the accused to form the culpable mental state which is an element of the offense charged. (2) An intention to assert the affirmative defense of impaired mental condition shall be made pursuant to section 16-8-103.5, C.R.S. (3) When the affirmative defense of impaired mental condition has been raised, the jury will be given special verdict forms containing interrogatories. The trier of fact shall decide first the question of guilt as to felony charges which are before the court. If the trier of fact concludes that guilt has been proven beyond a reasonable doubt as to one or more of the felony charges submitted for consideration, the special interrogatories shall not be answered. Upon completion of its deliberations on the felony charges as previously set forth in this subsection (3), the trier of fact shall consider any other charges before the court in a similar manner; except that it shall not answer the special interrogatories regarding such charges if it has previously found guilt beyond a reasonable doubt with respect to one or more felony charges. The interrogatories shall provide for specific findings of the jury with respect to the affirmative defense of impaired mental condition in accordance with the Colorado rules of criminal procedure. When the court sits as Colorado Revised Statutes 2019 Page 41 of 695 Uncertified Printout the trier of fact, it shall enter appropriate specific findings with respect to the affirmative defense of impaired mental condition. If the trier of fact finds that the defendant is not guilty by reason of the affirmative defense of impaired mental condition, the court shall commit the defendant to the department of human services pursuant to section 16-8-103.5 (5), C.R.S. (4) This section shall apply to offenses committed before July 1, 1995. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-903. L. 83: Entire section amended, p. 677, § 11, effective July 1. L. 94: (3) amended, p. 2654, § 136, effective July 1. L. 96: (4) added, p. 5, § 5, effective January 31. Cross references: (1) For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18. (2) For the legislative declaration contained in the 1994 act amending subsection (3), see section 1 of chapter 345, Session Laws of Colorado 1994. 18-1-804. Intoxication. (1) Intoxication of the accused is not a defense to a criminal charge, except as provided in subsection (3) of this section, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged. (2) Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 18-1-802. (3) A person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law. (4) "Intoxication", as used in this section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. (5) "Self-induced intoxication" means intoxication caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he knowingly introduced or allowed to be introduced into his body, unless they were introduced pursuant to medical advice or under circumstances that would afford a defense to a charge of crime. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-904. 18-1-805. Responsibility - affirmative defense. The issue of responsibility under sections 18-1-801 to 18-1-804 is an affirmative defense. Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-905. Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407 and 18-1-710; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18. PART 9 Colorado Revised Statutes 2019 Page 42 of 695 Uncertified Printout DEFINITIONS 18-1-901. Definitions. (1) Definitions set forth in any section of this title apply wherever the same term is used in the same sense in another section of this title unless the definition is specifically limited or the context indicates that it is inapplicable. (2) The terms defined in section 18-1-104 and in section 18-1-501, as well as the terms defined in subsection (3) of this section, are terms which appear in various articles of this code. Other terms which need definition but which are used only in a limited number of sections of this code are defined in the particular section or article in which the terms appear. (3) (a) "To aid" or "to assist" includes knowingly to give or lend money or extend credit to be used for, or to make possible or available, or to further the activity thus aided or assisted. (b) "Benefit" means any gain or advantage to the beneficiary including any gain or advantage to another person pursuant to the desire or consent of the beneficiary. (c) "Bodily injury" means physical pain, illness, or any impairment of physical or mental condition. (d) "Deadly physical force" means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death. (e) "Deadly weapon" means: (I) A firearm, whether loaded or unloaded; or (II) A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury. (III) and (IV) (Deleted by amendment, L. 2013.) (f) "Deface" means to alter the appearance of something by removing, distorting, adding to, or covering all or a part of the thing. (g) "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation. (h) "Firearm" means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges. (i) "Government" includes the United States, any state, county, municipality, or other political unit, any branch, department, agency, or subdivision of any of the foregoing, and any corporation or other entity established by law to carry out any governmental function. (j) "Governmental function" includes any activity which a public servant is legally authorized to undertake on behalf of government. (k) "Motor vehicle" includes any self-propelled device by which persons or property may be moved, carried, or transported from one place to another by land, water, or air, except devices operated on rails, tracks, or cables fixed to the ground or supported by pylons, towers, or other structures. (l) Repealed. (m) "Pecuniary benefit" means benefit in the form of money, property, commercial interests, or anything else, the primary significance of which is economic gain. (n) "Public place" means a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, Colorado Revised Statutes 2019 Page 43 of 695 Uncertified Printout places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities. (o) "Public servant" means any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses. (o.5) "Restorative justice practices" means practices that emphasize repairing the harm caused to victims and the community by offenses. Restorative justice practices include victimoffender conferences, family group conferences, circles, community conferences, and other similar victim-centered practices. Restorative justice practices are facilitated meetings attended voluntarily by the victim or victim's representatives, the victim's supporters, the offender, and the offender's supporters and may include community members. By engaging the parties to the offense in voluntary dialogue, restorative justice practices provide an opportunity for the offender to accept responsibility for the harm caused to the victim and community, promote victim healing, and enable the participants to agree on consequences to repair the harm, to the extent possible, including but not limited to apologies, community service, reparation, restoration, and counseling. Restorative justice practices may be used in addition to any other conditions, consequences, or sentence imposed by the court. (p) "Serious bodily injury" means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree. (q) "Tamper" means to interfere with something improperly, to meddle with it, or to make unwarranted alterations in its condition. (r) "Thing of value" includes real property, tangible and intangible personal property, contract rights, choses in action, services, confidential information, medical records information, and any rights of use or enjoyment connected therewith. (s) "Utility" means an enterprise which provides gas, sewer, electric, steam, water, transportation, or communication services, and includes any carrier, pipeline, transmitter, or source, whether publicly or privately owned or operated. Source: L. 71: R&RE, p. 413, § 1. C.R.S. 1963: § 40-1-1001. L. 73: p. 534, § 1. L. 75: (3)(l) amended, p. 1315, § 8, effective July 14. L. 77: (3)(l) amended, p. 949, § 11, effective August 1. L. 79: (3)(l) amended, p. 1212, § 1, effective June 21; (3)(r) amended, p. 726, § 2, effective July 1; (3)(e) amended, p. 731, § 1, effective October 1. L. 80: (3)(l) amended, p. 531, § 1, effective January 29. L. 81: (3)(e) and (3)(l) amended, p. 972, §§ 2, 3, effective July 1. L. 82: (3)(l) amended, p. 384, § 2, effective April 30. L. 84: (3)(l) amended, p. 921, § 8, effective January 1, 1985. L. 85: (3)(p) amended, p. 664, § 1, effective March 1. L. 86: (3)(l) R&RE, p. 773, § 1, effective July 1; (3)(l)(III) amended, p. 1236, § 45, effective July 1. L. 87: (3)(l)(III) amended, p. 1489, § 1, effective April 30; (3)(l)(IV) amended, p. 817, § 20, effective October 1. L. 88: (3)(l)(II) and (3)(l)(IV) amended and (3)(l)(IV.5) added, pp. 664, 720, §§ 5, 1, effective July 1. L. 89: (3)(l)(II) and (3)(l)(III) amended, p. 888, § 1, effective April 6; (3)(l)(II) amended, p. 890, § 1, effective April 8. L. 90: (3)(l)(IV) and (3)(l)(IV.5)(C) amended, pp. 1613, 565, §§ 8, 38, effective July 1. L. 91: (3)(l)(III) amended, p. 1582, § 7, effective June 4; (3)(p) amended, p. 405, § 8, effective June 6. L. 92: (3)(l)(I), (3)(l)(II), and IP(3)(l)(IV.5) amended, p. 1097, § 6, effective March 6; (3)(l)(II) and (3)(l)(III) amended, p. 431, § 1, effective April 23. L. 93: Colorado Revised Statutes 2019 Page 44 of 695 Uncertified Printout (3)(l)(IV.5)(A) and (3)(l)(IV.5)(B) amended, p. 56, § 1, effective March 22; (3)(l)(II)(B) amended, p. 1776, § 38, effective June 6; (3)(l)(IV) amended, p. 1236, § 5, effective July 1. L. 94: (3)(l)(III) amended, p. 1731, § 11, effective May 31; (3)(l)(II)(A) amended, p. 1716, § 6, effective July 1; (3)(l)(IV) amended, p. 1311, § 11, effective July 1. L. 95: (3)(l)(II)(A) and (3)(l)(III) amended, p. 870, § 1, effective May 24; (3)(l)(III) amended, p. 109, § 1, effective July 1. L. 96: (3)(l)(III) and (3)(l)(IV) amended, p. 1004, § 10, effective May 23; (3)(l)(IV.5) and (3)(l)(V) amended and (3)(l)(IV.7) added, p. 1574, § 6, effective June 3; (3)(l)(IV) amended, p. 1691, § 24, effective January 1, 1997. L. 97: (3)(l)(III) amended, p. 301, § 12, effective July 1. L. 98: (3)(l)(III) amended, p. 1186, § 3, effective July 1. L. 99: (3)(l)(II)(A) and (3)(l)(III) amended, p. 424, § 4, effective April 30. L. 2000: (3)(l)(II)(A) amended, p. 42, § 1, effective March 10; (3)(l)(II)(A) amended, p. 230, § 4, effective March 29. L. 2002: (3)(l)(I) and (3)(l)(III) amended, p. 839, § 1, effective May 30; (3)(l)(II)(A) amended, p. 1212, § 8, effective June 3; (3)(l)(III) amended, p. 71, § 4, effective August 7; (3)(l)(III) amended, p. 1511, § 181, effective October 1. L. 2003: (3)(l) repealed, p. 1605, § 1, effective August 6. L. 2011: (3)(o.5) added, (HB 11-1032), ch. 296, p. 1402, § 6, effective August 10. L. 2013: (3)(e) amended, (HB 13-1043), ch. 39, p. 110, § 1, effective March 15; (3)(o.5) amended, (HB 13-1254), ch. 341, p. 1981, § 1, effective August 7. Editor's note: Amendments to subsection (3)(l)(II) in House Bill 89-1236 and Senate Bill 89-66 were harmonized. Amendments to subsection (3)(l)(II) in House Bill 92-1192 and House Bill 92-1276 were harmonized. Amendments to subsection (3)(l)(III) in House Bill 951087 and House Bill 95-1280 were harmonized. Amendments to subsection (3)(l)(IV) in Senate Bill 96-176 and House Bill 96-1005 were harmonized, effective January 1, 1997. Amendments to subsection (3)(l)(II)(A) in Senate Bill 00-077 and House Bill 00-1421 were harmonized. Amendments to subsection (3)(l)(III) by House Bill 02-1313, House Bill 02-1046, and Senate Bill 02-005 were harmonized. Cross references: For the legislative declaration contained in the 1992 act amending subsections (3)(l)(I), (3)(l)(II), and IP(3)(l)(IV.5), see section 12 of chapter 167, Session Laws of Colorado 1992. For the legislative declaration contained in the 2002 act amending subsection (3)(l)(III), see section 1 of chapter 318, Session Laws of Colorado 2002. PART 10 ORDERS AND PROCEEDINGS AGAINST DEFENDANT Law reviews: For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994); for article, "Dissolution of Marriage and Domestic Violence: Considerations for the Family Law Practitioner", see 37 Colo. Law. 43 (Oct. 2008). 18-1-1001. Protection order against defendant - definitions. (1) There is hereby created a mandatory protection order against any person charged with a violation of any of the provisions of this title, which order shall remain in effect from the time that the person is advised of his or her rights at arraignment or the person's first appearance before the court and informed of such order until final disposition of the action. Such order shall restrain the person charged Colorado Revised Statutes 2019 Page 45 of 695 Uncertified Printout from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. The protection order issued pursuant to this section shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected parties. (2) At the time of arraignment or the person's first appearance before the court, the court shall inform the defendant of the protection order effective pursuant to this section and shall inform the defendant that a violation of such order is punishable by contempt. (3) Nothing in this section precludes the defendant from applying to the court at any time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same. The trial court retains jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney or on the court's own motion for the protection of the alleged victim or witness, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1) and cases involving crimes listed in section 24-4.1-302, except those listed in subsections (1)(cc.5) and (1)(cc.6) of that section, enter any of the following further orders against the defendant: (a) An order to vacate or stay away from the home of the alleged victim or witness and to stay away from any other location where the victim or witness is likely to be found; (b) An order to refrain from contact or direct or indirect communication with the alleged victim or witness; (c) An order prohibiting possession or control of firearms or other weapons; (d) An order prohibiting possession or consumption of alcohol or controlled substances; (e) An order prohibiting the taking, transferring, concealing, harming, disposing of, or threatening to harm an animal owned, possessed, leased, kept, or held by an alleged victim or witness; and (f) Any other order the court deems appropriate to protect the safety of the alleged victim or witness. (4) Any person failing to comply with a protection order issued pursuant to this section commits the crime of violation of a protection order and may be punished as provided in section 18-6-803.5. (5) Before a defendant is released on bail pursuant to article 4 of title 16, C.R.S., the court shall, in cases involving domestic violence as defined in section 18-6-800.3 (1), in cases of stalking pursuant to section 18-3-602, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., state the terms of the protection order issued pursuant to this section, including any additional provisions added pursuant to subsection (3) of this section, to the defendant on the record, and the court shall further require the defendant to acknowledge the protection order in court and in writing prior to release as a condition of any bond for the release of the defendant. The prosecuting attorney shall, in such domestic violence cases, stalking cases, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., notify the alleged victim, the complainant, and the protected person of the order if such persons are not present at the time the protection order is issued. (6) The defendant or, in cases involving domestic violence as defined in section 18-6800.3 (1), in cases of stalking pursuant to section 18-3-602, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., the prosecuting attorney may Colorado Revised Statutes 2019 Page 46 of 695 Uncertified Printout request a hearing before the court to modify the terms of a protection order issued pursuant to this section. Upon such a request, the court shall set a hearing and the prosecuting attorney shall send notice of the hearing to the defendant and the alleged victim. At the hearing the court shall review the terms of the protection order and any further orders entered and shall consider the modifications, if any, requested by the defendant or the prosecuting attorney. (7) The duties of peace officers enforcing orders issued pursuant to this section shall be in accordance with section 18-6-803.5 and any rules adopted by the Colorado supreme court pursuant to said section. (8) For purposes of this section: (a) "Court" means the trial court or a designee of the trial court. (a.5) "Protection order" shall include a restraining order entered pursuant to this section prior to July 1, 2003. (b) "Until final disposition of the action" means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence. Any defendant sentenced to probation is deemed to have completed his or her sentence upon discharge from probation. A defendant sentenced to incarceration is deemed to have completed his or her sentence upon release from incarceration and discharge from parole supervision. (9) (a) When the court subjects a defendant to a mandatory protection order that qualifies as an order described in 18 U.S.C. sec. 922 (g)(8), the court, as part of such order: (I) Shall order the defendant to: (A) Refrain from possessing or purchasing any firearm or ammunition for the duration of the order; and (B) Relinquish, for the duration of the order, any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control; and (II) May require that before the defendant is released from custody on bond, the defendant shall relinquish, for the duration of the order, any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control. (b) Upon issuance of an order pursuant to paragraph (a) of this subsection (9), the defendant shall relinquish any firearm or ammunition not more than twenty-four hours after being served with the order; except that a court may allow a defendant up to seventy-two hours to relinquish a firearm or up to five days to relinquish ammunition pursuant to this paragraph (b) if the defendant demonstrates to the satisfaction of the court that he or she is unable to comply within twenty-four hours. To satisfy this requirement, the defendant may: (I) Sell or transfer possession of the firearm or ammunition to a federally licensed firearms dealer described in 18 U.S.C. sec. 923, as amended; except that this provision shall not be interpreted to require any federally licensed firearms dealer to purchase or accept possession of any firearm or ammunition; (II) Arrange for the storage of the firearm or ammunition by a law enforcement agency; except that this provision shall not be interpreted to require any law enforcement agency to provide storage of firearms or ammunition for any person; or (III) Sell or otherwise transfer the firearm or ammunition to a private party who may legally possess the firearm or ammunition; except that a defendant who sells or transfers a firearm pursuant to this subparagraph (III) shall satisfy all of the provisions of section 18-12Colorado Revised Statutes 2019 Page 47 of 695 Uncertified Printout 112, concerning private firearms transfers, including but not limited to the performance of a criminal background check of the transferee. (c) If a defendant is unable to satisfy the provisions of paragraph (b) of this subsection (9) because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the defendant to satisfy such provisions not more than twenty-four hours after his or her release from incarceration or custody or be held in contempt of court. Notwithstanding any provision of this paragraph (c), the court may, in its discretion, require the defendant to relinquish any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control before the end of the defendant's incarceration. In such a case, a defendant's failure to relinquish a firearm or ammunition as required shall constitute contempt of court. (d) A federally licensed firearms dealer who takes possession of a firearm or ammunition pursuant to this section shall issue a receipt to the defendant at the time of relinquishment. The federally licensed firearms dealer shall not return the firearm or ammunition to the defendant unless the dealer: (I) Contacts the bureau to request that a background check of the defendant be performed; and (II) Obtains approval of the transfer from the bureau after the performance of the background check. (e) A local law enforcement agency may elect to store firearms or ammunition for persons pursuant to this subsection (9). If an agency so elects: (I) The agency may charge a fee for such storage, the amount of which shall not exceed the direct and indirect costs incurred by the agency in providing such storage; (II) The agency may establish policies for disposal of abandoned or stolen firearms or ammunition; and (III) The agency shall issue a receipt to each defendant at the time the defendant relinquishes possession of a firearm or ammunition. (f) If a local law enforcement agency elects to store firearms or ammunition for a defendant pursuant to this subsection (9), the law enforcement agency shall not return the firearm or ammunition to the defendant unless the agency: (I) Contacts the bureau to request that a background check of the defendant be performed; and (II) Obtains approval of the transfer from the bureau after the performance of the background check. (g) (I) A law enforcement agency that elects to store a firearm or ammunition for a defendant pursuant to this subsection (9) may elect to cease storing the firearm or ammunition. A law enforcement agency that elects to cease storing a firearm or ammunition for a defendant shall notify the defendant of such decision and request that the defendant immediately make arrangements for the transfer of the possession of the firearm or ammunition to the defendant or, if the defendant is prohibited from possessing a firearm, to another person who is legally permitted to possess a firearm. (II) If a law enforcement agency elects to cease storing a firearm or ammunition for a person and notifies the defendant as described in subparagraph (I) of this paragraph (g), the law enforcement agency may dispose of the firearm or ammunition if the defendant fails to make Colorado Revised Statutes 2019 Page 48 of 695 Uncertified Printout arrangements for the transfer of the firearm or ammunition and complete said transfer within ninety days of receiving such notification. (h) If a defendant sells or otherwise transfers a firearm or ammunition to a private party who may legally possess the firearm or ammunition, as described in subparagraph (III) of paragraph (b) of this subsection (9), the defendant shall acquire: (I) From the transferee, a written receipt acknowledging the transfer, which receipt shall be dated and signed by the defendant and the transferee; and (II) From the licensed gun dealer who requests from the bureau a background check of the transferee, as described in section 18-12-112, a written statement of the results of the background check. (i) (I) Not more than three business days after the relinquishment, the defendant shall file a copy of the receipt issued pursuant to paragraph (d), (e), or (h) of this subsection (9) and, if applicable, the written statement of the results of a background check performed on the defendant as described in subparagraph (II) of paragraph (h) of this subsection (9), with the court as proof of the relinquishment. If a defendant fails to timely file a receipt or written statement as described in this paragraph (i): (A) The failure constitutes a violation of the protection order pursuant to section 18-6803.5 (1)(c); and (B) The court shall issue a warrant for the defendant's arrest. (II) In any subsequent prosecution for a violation of a protection order described in this paragraph (i), the court shall take judicial notice of the defendant's failure to file a receipt or written statement, which will constitute prima facie evidence of a violation of the protection order pursuant to section 18-6-803.5 (1)(c), C.R.S., and testimony of the clerk of the court or his or her deputy is not required. (j) Nothing in this subsection (9) shall be construed to limit a defendant's right to petition the court for dismissal of a protection order. (k) A person subject to a mandatory protection order issued pursuant to this subsection (9) who possesses or attempts to purchase or receive a firearm or ammunition while the protection order is in effect violates the order pursuant to section 18-6-803.5 (1)(c). (l) (I) A law enforcement agency that elects in good faith to not store a firearm or ammunition for a defendant pursuant to subsection (9)(b)(II) of this section shall not be held criminally or civilly liable for such election not to act. (II) A law enforcement agency that returns possession of a firearm or ammunition to a defendant in good faith as permitted by paragraph (f) of this subsection (9) shall not be held criminally or civilly liable for such action. (10) The issuance of a protection order pursuant to this section does not preclude a court from issuing a protective order in a civil proceeding. Source: L. 84: Entire part added, p. 500, § 3, effective July 1. L. 85: (1) and (2) amended, p. 617, § 10, effective July 1. L. 91: Entire section amended, p. 419, § 3, effective May 31. L. 94: (1) and (3) amended, p. 2023, § 3, effective June 3; (3) amended and (5) and (6) added, p. 2041, § 24, effective July 1; (1) amended and (7) added, p. 2009, § 6, effective January 1, 1995. L. 98: (1) and IP(3) amended and (8) added, p. 1442, § 28, effective July 1. L. 2003: (1), (2), IP(3), (4), (5), and (6) amended and (8)(a.5) added, pp. 1002, 1003, §§ 4, 5, effective July 1. L. 2011: IP(3), (3)(a), (3)(b), and (3)(e) amended, (HB 11-1267), ch. 273, p. 1234, § 1, Colorado Revised Statutes 2019 Page 49 of 695 Uncertified Printout effective June 2. L. 2012: (5) and (6) amended, (HB 12-1114), ch. 176, p. 632, § 3, effective May 11. L. 2013: (9) added, (SB 13-197), ch. 366, p. 2134, § 4, effective June 5; (8)(b) amended, (HB 13-1109), ch. 33, p. 79, § 1, effective August 7. L. 2015: (5) and (6) amended, (HB 15-1060), ch. 45, p. 112, § 2, effective March 20. L. 2018: (9)(l)(I) amended, (HB 181375), ch. 274, p. 1701, § 21, effective May 29; IP(3), (3)(d), and (3)(e) amended and (3)(f) and (10) added, (SB 18-060), ch. 50, p. 487, § 1, effective November 1. Editor's note: Amendments to subsection (1) in House Bill 94-1092 and House Bill 941090 were harmonized. Amendments to subsection (3) in House Bill 94-1092 and House Bill 941253 were harmonized. Cross references: (1) For protection orders against children under the "Colorado Children's Code", see § 19-2-707; for additional provisions concerning protection orders, see the "Colorado Victim and Witness Protection Act of 1984", part 7 of article 8 of this title 18. (2) For the legislative declaration in the 2013 act adding subsection (9), see section 1 of chapter 366, Session Laws of Colorado 2013. 18-1-1001.5. Protection order against defendant - transfer of wireless telephone service in domestic violence cases - definitions. (1) In addition to the options described in section 18-1-1001 (3), upon a discretionary motion of the district attorney or on the court's own motion for the protection of an alleged victim or witness in a case involving domestic violence, as defined in section 18-6-800.3 (1), and cases involving crimes listed in section 24-4.1-302 (1), except those listed in subsections (1)(cc.5) and (1)(cc.6) of that section, the court may enter an order directing a wireless telephone service provider to transfer the financial responsibility for and rights to a wireless telephone number or numbers to the alleged victim or witness if the alleged victim or witness: (a) Is not the account holder; and (b) Proves by a preponderance of the evidence that the alleged victim or witness and any minor children in his or her care are the primary users of each wireless telephone number that will be ordered to be transferred by a court pursuant to this section. (2) (a) An order transferring the financial responsibility for and rights to a wireless telephone number or numbers to an alleged victim or witness pursuant to this section must be a separate written order that is directed to the wireless telephone service provider. (b) The order must list the name and billing telephone number of the account holder, the name and contact information of the alleged victim or witness to whom the telephone number or numbers will be transferred, and each telephone number to be transferred to the alleged victim or witness. (c) The court shall ensure that the alleged victim's or witness's contact information is not provided to the account holder in proceedings held pursuant to this section. (d) The order must be sent or delivered in person or electronically by the protected party to the wireless telephone service provider's registered agent. (e) A wireless telephone service provider shall terminate the account holder's use of a telephone number that the court has ordered to be transferred to the alleged victim or witness pursuant to this section unless the wireless telephone service provider notifies the alleged victim or witness and the court within five business days after the wireless telephone service provider Colorado Revised Statutes 2019 Page 50 of 695 Uncertified Printout receives the order either that an account holder named in the order has terminated the account or that the requested transfer cannot be effectuated due to differences in network technology that prevent functionality of a device on the network or due to geographic limitations on network or service availability. (3) A transfer ordered pursuant to this section does not preclude a wireless telephone service provider from applying any routine and customary requirements for account establishment to the alleged victim or witness as part of the transfer of financial responsibility for a wireless telephone number or numbers and any devices attached to the number or numbers, including, without limitation, identification, financial information, and customer preferences. (4) A wireless telephone service provider is immune from civil liability for complying with an order to transfer a telephone number pursuant to this section. (5) The issuance of a protection order pursuant to this section does not preclude a court from issuing a protective order in a civil proceeding. (6) For purposes of this section: (a) "Account holder" means a defendant who: (I) Is charged with an offense, the underlying basis of which includes an act of domestic violence, as defined in section 18-6-800.3 (1), or a crime listed in section 24-4.1-302 (1), except for those crimes listed in subsections (1)(cc.5) and (1)(cc.6) of that section; and (II) Maintains an account with a wireless telephone service provider. (b) "Financial responsibility" means an obligation to pay service fees and other costs and charges associated with any telephone number. (c) "Wireless telephone service provider" means a person or entity that provides or resells commercial mobile service, as defined in section 47 U.S.C. sec. 332 (d)(1). Source: L. 2018: Entire section added, (SB 18-060), ch. 50, p. 488, § 2, effective November 1. 18-1-1002. Criminal contempt proceedings - notice to district attorney. Before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions. Source: L. 94: Entire section added, p. 1717, § 7, effective July 1. PART 11 PRESERVATION OF DNA EVIDENCE Editor's note: This part 11 was added in 2008 and was not amended prior to 2009. The substantive provisions of this part 11 were repealed and reenacted in 2009, resulting in the addition, relocation, and elimination of sections as well as subject matter. For the text of this part 11 prior to 2009, consult the 2008 Colorado Revised Statutes. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. Colorado Revised Statutes 2019 Page 51 of 695 Uncertified Printout 18-1-1101. Definitions. As used in this part 11, unless the context otherwise requires: (1) "Disposed of" means evidence is destroyed, thrown away, or returned to the owner or his or her designee. (2) "DNA" means deoxyribonucleic acid. (3) "DNA evidence" means all evidence collected by law enforcement in a criminal investigation, which evidence may be reasonably believed to contain DNA that is relevant to a disputed issue in the investigation and prosecution of the case. (4) "DNA profile" means an identifier obtained as a result of a specific DNA analysis. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 97, § 1, effective March 18. Editor's note: This section is similar to former § 18-1-1101 as it existed prior to 2009. 18-1-1102. Scope. (1) The provisions of this part 11 shall apply to the preservation of DNA evidence only when: (a) The investigation of a felony does not result in or has not resulted in charges being filed; or (b) The filed charges resulted in a conviction for a class 1 felony or for a sex offense that carries an indeterminate sentence pursuant to section 18-1.3-1004; or (c) The filed charges resulted in a conviction for a felony not covered by paragraph (b) of this subsection (1); or (d) The filed charges resulted in a conviction for any offense not covered by paragraphs (b) and (c) of this subsection (1), and at least one of the charges filed involved a sex offense as defined in section 18-1.3-1003 (5). (2) For purposes of subsection (1) of this section, conviction shall include a verdict of guilty by a judge or jury, a plea of guilty or nolo contendere, or a deferred judgment and sentence. For purposes of paragraph (d) of subsection (1) of this section, conviction shall also include a juvenile delinquent adjudication or deferred adjudication. (3) This part 11 does not impose a statutory duty to retain or store evidence other than in the situations described in this section. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 97, § 1, effective March 18. Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009. 18-1-1103. Duty to preserve DNA evidence. (1) A law enforcement agency that collects DNA evidence in conducting a criminal investigation of a felony that does not result in or has not resulted in charges being filed shall preserve the DNA evidence for the length of the statute of limitations for the felony crime that was investigated. (2) Except as provided in sections 18-1-1105 to 18-1-1107, a law enforcement agency that collects DNA evidence in conducting a criminal investigation that results in a conviction listed in section 18-1-1102 (1) shall preserve the DNA evidence for the life of the defendant who is convicted. Colorado Revised Statutes 2019 Page 52 of 695 Uncertified Printout Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 98, § 1, effective March 18. Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009. 18-1-1104. Manner and location of preservation of DNA evidence. (1) When DNA evidence that is subject to preservation pursuant to section 18-1-1103 is processed for the development of a DNA profile, the DNA profile shall be preserved by the accredited laboratory in Colorado that develops the DNA profile. If the DNA profile is not developed by an accredited laboratory in Colorado, the laboratory that processes the DNA profile shall send the DNA profile to an accredited laboratory in Colorado for preservation. (2) A law enforcement agency that has custody of DNA evidence that is subject to preservation pursuant to section 18-1-1103 shall preserve the evidence in an amount and manner sufficient to develop a DNA profile, based on the best scientific practices at the time of collection, from the biological material contained in or included on the evidence. If DNA evidence is of such a size, bulk, or physical character as to render retention impracticable, the law enforcement agency shall remove and preserve portions of the evidence likely to contain DNA related to the offense in a quantity sufficient, based on the best scientific practices at the time of collection, to permit future DNA testing. The preserved DNA evidence shall, whenever possible, include a sample sufficient to allow for independent testing by the defendant. After preserving the necessary amount of the DNA evidence, the law enforcement agency may dispose of the remainder of the evidence. (3) If a law enforcement agency is asked to produce DNA evidence that is subject to preservation pursuant to section 18-1-1103 and cannot produce the evidence, the chief evidence custodian for the law enforcement agency shall provide an affidavit in which he or she describes, under penalty of perjury, the efforts taken to locate the DNA evidence and affirms that the DNA evidence could not be located. (4) If upon request a law enforcement agency cannot produce DNA evidence that is subject to preservation pursuant to section 18-1-1103, the court shall determine whether the disposal of the DNA evidence violated the defendant's due process rights, and, if so, the court shall order an appropriate remedy. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 98, § 1, effective March 18. Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009. 18-1-1105. Law enforcement agency request for permission to dispose of evidence procedures. (1) A law enforcement agency may not request permission to dispose of DNA evidence in cases described in section 18-1-1102 (1)(a) and (1)(b). (2) In cases described in section 18-1-1102 (1)(c) and (1)(d), a law enforcement agency may seek to dispose of DNA evidence by providing notice, in the form developed pursuant to section 18-1-1108, to the district attorney that prosecuted the charges arising out of the investigation. Colorado Revised Statutes 2019 Page 53 of 695 Uncertified Printout (3) Upon receipt of the notice described in subsection (2) of this section, the district attorney shall determine whether to object to the disposal of the DNA evidence. The district attorney may determine that a portion of the DNA evidence may be disposed of and a portion of the DNA evidence shall be preserved. (4) (a) If the district attorney determines that the DNA evidence should not be disposed of, the district attorney shall provide notice to the law enforcement agency that the DNA evidence shall be preserved. Upon the receipt of the notice from the district attorney to preserve the DNA evidence, the law enforcement agency shall preserve the DNA evidence until such time as the law enforcement agency is permitted by a court order to dispose of the DNA evidence. (b) (I) If the district attorney determines that all or a portion of the DNA evidence may be disposed of, he or she shall send notice to the defendant and the law enforcement agency specifying which DNA evidence may be disposed of. Notice to the defendant shall include a copy of the notice form prepared by the law enforcement agency pursuant to subsection (2) of this section. (II) The defendant shall have ninety-eight days from the date the notice was sent by the district attorney to file a motion to preserve DNA evidence in the court in which the defendant was convicted. The motion shall state specific grounds supporting the preservation of the DNA evidence, and the defendant shall provide copies of the motion to the district attorney and the law enforcement agency. (III) If no motion is filed within the ninety-eight-day period, the district attorney or the law enforcement agency requesting disposal of the evidence shall file with the court a copy of the notice sent to the defendant pursuant to subparagraph (I) of this paragraph (b), and the court shall forthwith, without hearing, enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency. (IV) If the defendant files a motion, the court shall follow the procedure set forth in subsection (6) of this section. (c) (I) If the law enforcement agency does not receive notice from the district attorney as described in paragraph (a) or (b) of this subsection (4) within a reasonable amount of time or does receive timely notice from the district attorney pursuant to paragraph (a) of this subsection (4), the law enforcement agency may file a motion with the court that entered the conviction in the case in which the evidence was collected, asking for a court order to dispose of the DNA evidence. The motion shall include a copy of the notice the law enforcement agency provided to the district attorney. The law enforcement agency shall provide a copy of the disposal motion to the district attorney and the defendant contemporaneously with the filing of the motion. The law enforcement agency shall specify the DNA evidence for which disposal is requested in the motion. (II) The defendant or the district attorney shall have ninety-eight days after the disposal motion is sent to file an objection in the court in which the disposal motion was filed. The objection shall state specific grounds supporting the preservation of the DNA evidence. If the district attorney files an objection, the district attorney shall provide copies of the objection to the defendant and the law enforcement agency. If the defendant files an objection, the defendant shall provide copies of the objection to the district attorney and the law enforcement agency. (5) The defendant, through legal counsel, shall have a reasonable right to review the DNA evidence to prepare the filing of a timely objection to the disposal motion or the district attorney's notice received pursuant to paragraph (b) of subsection (4) of this section. Colorado Revised Statutes 2019 Page 54 of 695 Uncertified Printout (6) (a) Upon receipt pursuant to subparagraph (II) of paragraph (c) of subsection (4) of this section of a timely filed objection, the court may deny the objection without a hearing if it finds on the face of the objection no grounds supporting the request to preserve the DNA evidence. The court shall then enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency. (b) If the court determines that a timely filed objection or motion to preserve states adequate grounds to require preservation of the DNA evidence, the court may set a hearing on the objection or motion to preserve, with notice to the district attorney, the law enforcement agency, and the defendant, or the court may deny the disposal motion without a hearing. (c) In considering an objection or motion to preserve pursuant to this subsection (6), the court shall consider the following factors in determining whether to order preservation of the DNA evidence: (I) Whether identification was a disputed issue; (II) Whether the evidence contains known DNA; (III) Whether it is possible to perform DNA testing on the evidence that has not previously been performed; (IV) Whether the defendant has served all of his or her sentence; and (V) Whether the defendant has state appellate or collateral attack rights that have not been exhausted, in which case there shall be a presumption that the DNA evidence should be preserved. (d) Following a hearing on a disposal motion or motion to preserve, the court shall enter an order either authorizing disposal of the DNA evidence or ordering the DNA evidence to be preserved. If the court orders preservation, the order may state the length of time the DNA evidence shall be preserved or establish a condition precedent for the disposition of the DNA evidence. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 99, § 1, effective March 18. L. 2012: (4)(b)(II), (4)(b)(III), and (4)(c)(II) amended, (SB 12-175), ch. 208, p. 863, § 104, effective July 1. Editor's note: This section is similar to former § 18-1-1103 as it existed prior to 2009. 18-1-1106. Defendant request for disposition of or waiver of preservation of DNA evidence - procedures. (1) In a case described in section 18-1-1102 (1), a defendant may petition the court on his or her own behalf for the disposal of DNA evidence in his or her case. The defendant shall provide a copy of the petition to the district attorney, who may join with or object to the defendant's petition. Upon the filing of the petition, the timing and procedures of section 18-1-1105 shall apply. By filing a petition for disposition of DNA evidence, the defendant waives any right to preservation of that evidence under this part 11. However, a defendant may not be compelled to file a motion under this section in order to obtain a plea or sentence agreement. (2) In a case described in section 18-1-1102 (1), a defendant may waive his or her right to preservation of DNA evidence under this part 11 at any stage of the proceeding by making a knowing and voluntary waiver. A waiver executed as a part of a plea bargain or sentencing Colorado Revised Statutes 2019 Page 55 of 695 Uncertified Printout agreement shall be voluntarily agreed to by all parties and shall include a written list describing all evidence to be disposed of. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 101, § 1, effective March 18. 18-1-1107. Victim request for disposition of DNA evidence - procedures. In a case described in section 18-1-1102 (1), if DNA evidence is being held that is the property of the victim, as defined in section 24-4.1-302 (5), C.R.S., of the crime, the victim may request the district attorney to review whether the DNA evidence may be returned. If the district attorney determines the DNA evidence may be returned, the district attorney may file a petition with the court for the return of the DNA evidence. The district attorney shall provide notice to the defendant of the petition. Upon the filing of the petition, the timing and procedures of section 18-1-1105 shall apply. Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18. 18-1-1108. Notice - form and sufficiency. (1) Notice to the defendant as required by this part 11 shall be proper if it is sent by United States mail or hand-delivered to the attorney of record for the defendant as defined in rule 44 of the Colorado rules of criminal procedure. If there is no attorney of record, notice to the defendant shall be proper if it is sent by United States mail to the last-known address of the defendant as reflected in the current motor vehicle records or, if no such record exists, the last-known address in the court file. Prior to sending notice by United States mail, however, the district attorney shall first review the department of corrections records to determine whether the defendant is in the physical custody of the department of corrections or on parole. If the defendant is in the physical custody of the department of corrections or on parole, the district attorney shall send notice by United States mail to the correctional facility in which, according to the department's records, the defendant is housed or to the address to which the defendant has been paroled. If the letter is returned because the defendant has been transferred to a different correctional facility, the district attorney shall send notice to the new facility in which the defendant is housed. (2) The department of public safety, in consultation with state and local law enforcement agencies, shall develop a form to be used by all law enforcement agencies for providing notice to the district attorney and the defendant as described in section 18-1-1105 (2). Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18. 18-1-1109. Court data collection - DNA evidence cases - repeal. (Repealed) Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18. Colorado Revised Statutes 2019 Page 56 of 695 Uncertified Printout Editor's note: (1) This section was similar to former § 18-1-1104 as it existed prior to 2009. (2) Subsection (4) provided for the repeal of this section, effective July 1, 2010. (See L. 2009, p. 102.) ARTICLE 1.3 Sentencing in Criminal Cases Editor's note: (1) This article was added with relocations in 2002 containing provisions of some sections formerly located in title 16. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index. (2) Amendments made by House Bills 02-1141, 02-1223, 02-1225, 02-1229, 02-1258, and 02-1352 and Senate Bills 02-010, 02-018, 02-019, 02-036, and 02-057 to sections containing criminal sentencing provisions have been harmonized with the provisions of this article pursuant to section 398 of House Bill 02-1046. See the former sections as contained in titles 16, 17, and 18 of the 2001 Colorado Revised Statutes. See the comparative table located in the back of the index. Cross references: For the legislative declaration contained in the 2002 act enacting this article, see section 1 of chapter 318, Session Laws of Colorado 2002. PART 1 ALTERNATIVES IN SENTENCING 18-1.3-101. Pretrial diversion. (1) Legislative intent. The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant's ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system. Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney's office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney's office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney's office must comply with the provisions of this section. (2) Period of diversion. In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years. The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney. Colorado Revised Statutes 2019 Page 57 of 695 Uncertified Printout (3) Guidelines for eligibility. Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction. In determining whether an individual is appropriate for diversion, the district attorney shall consider: (a) The nature of the crime charged and the circumstances surrounding it; (b) Any special characteristics or circumstances of the defendant; (c) Whether diversion is consistent with the defendant's rehabilitation and reintegration; and (d) Whether the public interest will be best served by diverting the individual from prosecution. (4) Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program. The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S. (5) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3 (1), is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, the individual is appropriate for the program. (6) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003 (5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sexoffense-specific evaluation, which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, the individual is appropriate for the program. Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7-102 (2)(a)(II) and 16-22-103 (2)(d), C.R.S., the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period. Colorado Revised Statutes 2019 Page 58 of 695 Uncertified Printout (7) Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section: (a) Sexual assault as described in section 18-3-402; (b) Sexual assault on a child as described in section 18-3-405; (c) Any sexual offense committed against an at-risk adult or an at-risk juvenile, as defined in section 18-6.5-102 (2) and (4); (d) Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901 (3)(e); (e) Enticement of a child, as described in section 18-3-305; (f) Sexual exploitation of a child as described in section 18-6-403; (g) Procurement of a child for exploitation, as described in section 18-6-404; (h) Sexual assault on a child by one in a position of trust, as described in section 18-3405.3; or (i) Any child prostitution offense in part 4 of article 7 of this title. (8) Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to "deferred prosecution" in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section. (9) Diversion agreements. (a) All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant's attorney if the defendant is represented by an attorney, and the district attorney. (b) The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement. Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204 (2)(a)(V), or participation in restorative justice practices as defined in section 18-1-901 (3)(o.5). Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice. (c) The diversion agreement may require an assessment of the defendant's criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney. Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services. (d) The diversion agreement may include a statement of the facts the charge is based upon authored by the defendant and agreed to by the defendant's attorney if the defendant is Colorado Revised Statutes 2019 Page 59 of 695 Uncertified Printout represented by an attorney and the district attorney. The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed. (e) A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion. A defendant's or counsel's statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged. (f) If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings. (10) Diversion outcomes. (a) During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement. (b) Upon the defendant's satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose. (c) At any point after a diversion agreement is completed, a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense using the procedure described in sections 24-72-704 and 24-72-705. Unless otherwise prohibited under section 2472-703 (11), the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement. (d) If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution. The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred. The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing pursuant to section 16-11-206, C.R.S., shall apply. The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding. If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue. If the court finds the district attorney has Colorado Revised Statutes 2019 Page 60 of 695 Uncertified Printout not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement. (e) If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence. Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose. Source: L. 2002: Entire article added with relocations, p. 1365, § 2, effective October 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 863, § 105, effective July 1. L. 2013: Entire section R&RE, (HB 13-1156), ch. 336, p. 1952, § 1, effective August 7. L. 2014: (10)(c) amended, (SB 14-206), ch. 317, p. 1377, § 1, effective August 1. L. 2016: (7)(c) amended, (SB 16-189), ch. 210, p. 759, § 28, effective June 6. L. 2019: (10)(c) amended, (HB 19-1275), ch. 295, p. 2747, § 2, effective August 2. 18-1.3-101.5. Alternative pilot programs to divert individuals with mental health conditions - legislative intent - eligibility - process of diversion - grant program - program management - definitions - repeal. (1) The intent of this section is to establish and facilitate four pre-plea local-level mental health pilot programs in selected judicial districts that will identify individuals with mental health conditions who have been charged with a low-level criminal offense and divert such individuals out of the criminal justice system and into community treatment programs in accordance with the principles and proposed model recommended by the Colorado commission on criminal and juvenile justice, adopted on January 12, 2018. In addition, proceeding pursuant to the model recommended by the Colorado commission on criminal and juvenile justice encourages and facilitates flexible and locally controlled programs in a manner that can accommodate and respect the availability or limitation of resources in each jurisdiction while still maintaining the core integrity and objectives of the effort to foster the use of mental health diversion programs throughout the state. (2) As used in this section, unless the context otherwise requires: (a) "Colorado commission on criminal and juvenile justice" means the commission established pursuant to section 16-11.3-102. (b) "Grant program" means the mental health criminal justice diversion grant program established pursuant to subsection (6) of this section. (c) "Low-level criminal offense" means any petty offense or misdemeanor, excluding those offenses enumerated in section 24-4.1-302 (1). "Low-level criminal offense" may also include, if agreed to by the district attorney in a given pilot program site, any class 4, class 5, or class 6 felony or any level 3 or level 4 felony drug offense, excluding any felony offenses enumerated in section 24-4.1-302 (1). (d) "Pilot program" means any alternative program created pursuant to this section that diverts individuals with mental health conditions into community treatment programs. (e) "State court administrator" means the state court administrator established pursuant to section 13-3-101. (3) There are created up to four pilot programs in judicial districts in the state. The state court administrator and the Colorado district attorneys' council shall collaborate to identify Colorado Revised Statutes 2019 Page 61 of 695 Uncertified Printout potential pilot program sites with the agreement of the elected district attorneys and chief judges in a judicial district. The state court administrator and the Colorado district attorneys' council shall consider geographic diversity in identifying pilot program sites. The purpose of the pilot programs is to identify individuals with mental health conditions who have been charged with a low-level criminal offense and divert such individuals out of the criminal justice system and into community treatment programs. The district attorney and the chief judge for a judicial district selected as a pilot program site pursuant to this subsection (3) shall work collaboratively and through consensus with interested and necessary participants within the judicial district, including but not limited to law enforcement, jail officials, public defenders, judges, pretrial service providers, and local community mental and behavioral health service providers, to decide which courts and counties within the judicial district are best suited to implement the pilot program. (4) The chief judge or his or her designee of any county or district court where a pilot program is created pursuant to subsection (3) of this section is responsible for establishing and facilitating the pilot program in compliance with the principles and model adopted by the Colorado commission on criminal and juvenile justice on January 12, 2018. The duties of the chief judge with respect to the pilot program may include, but need not be limited to: (a) Initiating and coordinating organization meetings among the various local entities necessary to the implementation of the pilot program; (b) Establishing policies for the pilot program; (c) Facilitating any formal agreements or memoranda of understanding required to create the pilot program; (d) Brokering services through contracting with local community treatment programs that provide a continuum of community-based mental health care and treatment to accomplish the goals of the pilot program; and (e) Administering the pilot program once it is implemented. (5) The state court administrator is responsible for administration and oversight of the pilot programs, including certifying that, on or before January 1, 2019, each pilot program site implements a design that is consistent with the principles and proposed model adopted by the Colorado commission on criminal and juvenile justice and the legislative intent of this section. The duties of the state court administrator with respect to the pilot programs include, but are not limited to: (a) Establishing pilot program procedures and timelines; and (b) Establishing grant funding guidelines and acceptable expenses for the distribution of grant program grant money to the pilot program sites based upon specific allocations required by the grant program and other pilot program needs and any other criteria, such as case volume, geographical complexity, and density of need. (6) There is created in the office of the state court administrator the mental health criminal justice diversion grant program. The state court administrator is responsible for administering and monitoring the grant program including, but not limited to: (a) Establishing grant funding guidelines and acceptable expenses for the distribution of grant program grant money to the pilot program sites based upon specific allocations required by the grant program, the specific award to the district attorney's office in each of the four designated judicial districts, other pilot program needs, and any other criteria, such as case volume, geographical complexity, and density of need. In addition to any other allowable Colorado Revised Statutes 2019 Page 62 of 695 Uncertified Printout expenses to be paid for by the grant program, each district attorney's office participating in the pilot program shall receive fifty thousand dollars per year from the grant funding for each year of the grant program. Such money must be used to assist in covering the costs related to personnel and administrative requirements to establish and operate pilot programs in four designated judicial districts. (b) Awarding annual grants to the pilot programs; (c) Disbursing grant money; except that the state court administrator shall distribute the first round of grant awards on or before January 1, 2019. (6.5) (a) On or before November 1, 2019, and on or before each November 1 thereafter, the state court administrator shall submit a report to the joint budget committee of the general assembly and to the judiciary committees of the senate and house of representatives, or any successor committees, on the pilot program and the grant program for the preceding state fiscal year. The report must include: (I) A description of the programs, including eligibility criteria, screening and assessment processes, and differences among judicial districts; (II) A discussion of problems and obstacles the programs are encountering; (III) Nonidentifying demographic information on individuals evaluated and participants enrolled in the programs, including age, gender, race, and ethnicity; (IV) Participant status, including the number of individuals who successfully completed the programs; the number of participants remaining in the programs; the number of participants terminated from the grant program, and the primary reasons for termination; and the average duration of stay in the programs; (V) An accounting of expenditures under the grant program, including the costs of the state court administrator; and (VI) Information regarding the adequacy of and need for money to cover district attorney program-related personnel and administrative costs, including the nature of such costs and the extent of any program-related prosecutorial cost savings. (b) In addition to the information required in subsection (6.5)(a) of this section, the report due on or before November 1, 2021, must also include an evaluation component with recommendations for best practices, including target populations, participant treatment and oversight, funding, and any proposed revisions to the model recommended by the Colorado commission on criminal and juvenile justice. (7) This section is repealed, effective June 30, 2022. Source: L. 2018: Entire section added, (SB 18-249), ch. 320, p. 1921, § 1, effective May 30. L. 2019: (6)(a), (6)(b), and (7) amended and (6.5) added, (SB 19-211), ch. 119, p. 499, § 1, effective April 16. 18-1.3-102. Deferred sentencing of defendant. (1) (a) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case. (b) The period may be extended for an additional time: Colorado Revised Statutes 2019 Page 63 of 695 Uncertified Printout (I) Up to one hundred eighty-two days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department; or (II) Up to two years if the deferred judgment is for an offense listed in section 16-11.7102 (3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension. (2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation. A person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 186-800.3 (1), shall stipulate to the conditions specified in section 18-1.3-204 (2)(b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto. Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. The stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon the guilty plea; except that, if the offense is a violation of article 18 of this title, the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment. If the court makes those findings and continues the deferred judgment over the objection of the prosecution, the court shall also impose additional and immediate sanctions upon the defendant to address the violation, to include, but not be limited to, the imposition of further terms and conditions that will enhance the likelihood of the defendant's success, respond to the defendant's noncompliance, and promote further individual accountability, including extending the time period of the deferred judgment for up to two additional years or incarceration in the county jail for a period not to exceed ninety days consistent with the provisions of section 18-1.3-202 (1), or both. When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than seven days to the defendant or the defendant's attorney of record. Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty-five days thereafter. The burden of proof at the hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply. Colorado Revised Statutes 2019 Page 64 of 695 Uncertified Printout (3) When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405. (4) A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found. Source: L. 2002: Entire article added with relocations, p. 1366, § 2, effective October 1. L. 2012: (1) amended, (HB 12-1310), ch. 268, p. 1396, § 11, effective June 7; (1) and (2) amended, (SB 12-175), ch. 208, p. 863, § 106, effective July 1. L. 2013: (2) amended, (SB 13250), ch. 333, p. 1941, § 64, effective October 1. Editor's note: (1) This section is similar to former § 16-7-403 as it existed prior to 2002. (2) Amendments to subsection (1) by House Bill 12-1310 and Senate Bill 12-175 were harmonized. 18-1.3-103. Deferred sentencing - drug offenders - legislative declaration demonstration program - repeal. (Repealed) Source: L. 2002: Entire article added with relocations, p. 1367, § 2, effective October 1. Editor's note: (1) This section was similar to former § 16-7-403.7 as it existed prior to 2002. (2) Subsection (6) provided for the repeal of this section, effective July 1, 2006. (See L. 2002, p. 1367.) 18-1.3-103.4. Senate Bill 13-250 - legislative intent - clarification of internal reference to level 4 drug felonies. The intent of the general assembly in enacting Senate Bill 13-250 was to allow courts, for offenses committed on and after October 1, 2013, to vacate certain level 4 drug felony convictions and enter misdemeanor convictions if the offender completes community-based sentencing. While the term "level 4 drug felony" to which section 18-1.3-103.5 (3)(b) refers was described in section 18-18-405 (2)(c)(II) of the introduced version of Senate Bill 13-250, an amendment to the bill during the legislative process moved the level 4 drug felony description to section 18-18-405 (2)(d). The conforming change was not made to the internal reference in section 18-1.3-103.5 (3)(b), resulting in an incorrect internal reference being published in the 2013 version of the Colorado Revised Statutes. When enacting Senate Bill 13250, it was the intent of the general assembly that the level 4 drug felonies to which section 181.3-103.5 (3)(b) refers be those described in section 18-18-405 (2)(d). Accordingly, by the passage of Senate Bill 14-163, enacted in 2014, the general assembly corrects the internal reference found in section 18-1.3-103.5 (3)(b). The correction to the internal reference is Colorado Revised Statutes 2019 Page 65 of 695 Uncertified Printout effective as of the effective date of Senate Bill 13-250, October 1, 2013, and applies to offenses committed on or after October 1, 2013. Source: L. 2014: Entire section added, (SB 14-163), ch. 391, p. 1970, § 7, effective June 6. L. 2018: Entire section amended, (HB 18-1375), ch. 274, p. 1701, § 22, effective May 29. 18-1.3-103.5. Felony convictions - vacate and enter conviction on misdemeanor after successful completion. (1) In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment. (2) (a) In a case in which the defendant enters a plea of guilty or is found guilty by the court or a jury for a crime listed in subsection (3) of this section, the court shall order, upon successful completion of any community-based sentence to probation or to a community corrections program, the drug felony conviction vacated and shall enter a conviction for a level 1 drug misdemeanor offense of possession of a controlled substance pursuant to section 18-18403.5. Upon entry of the judgment of conviction pursuant to section 18-18-403.5, the court shall indicate in its order that the judgment of conviction is entered pursuant to the provisions of this section. (b) Whether a sentence is successfully completed shall be determined by the court without a jury with notice to the district attorney and the defendant or the defendant's attorney of record. A community-based sentence is not successfully completed if the defendant has not successfully completed the treatment as ordered by the court and determined appropriate to address the defendant's treatment needs. (3) This section applies to convictions for the following offenses: (a) [Editor's note: This version of subsection (3)(a) is effective until March 1, 2020.] Possession of a controlled substance; but only when the quantity of the controlled substance is not more than four grams of a schedule I or schedule II controlled substance, not more than two grams of methamphetamine, heroin, ketamine, or cathinones, or not more than four milligrams of flunitrazepam. The district attorney and defendant may stipulate to the amount of the controlled substance possessed by the defendant at the time of sentencing, or the court shall determine the amount at the time of sentencing. (a) [Editor's note: This version of subsection (3)(a) is effective March 1, 2020.] On or after March 1, 2020, possession of a controlled substance; but only when the quantity of the controlled substance is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; not more than two grams of ketamine or cathinones; or not more than four milligrams of flunitrazepam. The district attorney and defendant may stipulate to the amount of the controlled substance possessed by the defendant at the time of sentencing, or the court shall determine the amount at the time of sentencing. (b) A level 4 drug felony for distribution pursuant to the provisions of section 18-18-405 (2)(d)(II); Colorado Revised Statutes 2019 Page 66 of 695 Uncertified Printout (c) Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate; or (d) A violation of section 18-18-415. (4) Notwithstanding any provision of this section to the contrary, a defendant is not eligible for relief under this section if: (a) The defendant has a prior conviction for a crime of violence as described in section 18-1.3-406 or a prior conviction for an offense that is required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a crime of violence or an offense required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state; (b) The defendant is ineligible for probation pursuant to section 18-1.3-201; or (c) (I) The defendant has two or more prior felony convictions for a drug offense pursuant to this title, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a drug offense violation of this title. (II) For purposes of this paragraph (c), a felony conviction includes any diversion, deferred prosecution, or deferred judgment and sentence, whether or not completed, for a felony, and any conviction entered as a result of relief previously granted pursuant to this section or as a result of a guilty plea to a misdemeanor offense, as described in article 18 of this title, originally charged as a felony drug offense, as described in article 18 of this title. Source: L. 2013: Entire section added, (SB 13-250), ch. 333, p. 1900, § 1, effective October 1. L. 2014: (2)(a), (3), (4)(a), and (4)(c) amended, (SB 14-163), ch. 391, p. 1971, § 8, effective July 1. L. 2019: (3)(a) amended, (HB 19-1263), ch. 291, p. 2681, § 7, effective March 1, 2020. Editor's note: Section 11(2) of chapter 291 (HB 19-1263), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after March 1, 2020. 18-1.3-104. Alternatives in imposition of sentence. (1) Within the limitations of the applicable statute pertaining to sentencing and subject to the provisions of this title, the trial court has the following alternatives in entering judgment imposing a sentence: (a) The defendant may be granted probation unless any provision of law makes him or her ineligible for probation. The granting or denial of probation and the conditions of probation including the length of probation shall not be subject to appellate review unless probation is granted contrary to the provisions of this title. (b) Subject to the provisions of sections 18-1.3-401 and 18-1.3-401.5, in class 2, class 3, class 4, class 5, and class 6 felonies and level 1, level 2, level 3, and level 4 drug felonies, the defendant may be sentenced to imprisonment for a definite period of time. (b.5) (I) Except as otherwise provided by subparagraph (II) of this paragraph (b.5), any defendant who, in the determination of the court, is a candidate for an alternative sentencing option and who would otherwise be sentenced to imprisonment pursuant to paragraph (b) of this subsection (1) may, as an alternative, be sentenced to a specialized restitution and community service program pursuant to section 18-1.3-302, which may include restorative justice practices, as defined in section 18-1-901 (3)(o.5), if such defendant is determined eligible and is accepted Colorado Revised Statutes 2019 Page 67 of 695 Uncertified Printout into such program. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. If the court orders the defendant to attend a restorative justice practices victim-offender conference, the facilitator of the conference shall provide his or her services for a fee of no more than one hundred twenty-five dollars, based on a sliding scale; however, the fee may be waived by the court. Any statements made during the conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference. (II) (A) The court shall consider and may sentence any defendant who is a nonviolent offender as defined in sub-subparagraph (B) of this subparagraph (II) pursuant to subsection (2) of this section. (B) As used in this section, "nonviolent offender" means a person convicted of a felony other than a crime of violence as defined in section 18-1.3-406 (2), one of the felonies set forth in section 18-3-104, 18-4-203, 18-4-301, or 18-4-401 (2)(c), (2)(d), or (5), or a felony offense committed against a child as set forth in articles 3, 6, and 7 of this title, and who is not subject to the provisions of section 18-1.3-801. (c) The defendant shall be sentenced to death in those cases in which a death sentence is required under section 18-1.3-1201, 18-1.3-1302, or 18-1.4-102. (d) The defendant may be sentenced to the payment of a fine or to a term of imprisonment or to both a term of imprisonment and the payment of a fine; except that a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced is not eligible to receive a fine in lieu of imprisonment. No fine shall be imposed for conviction of a felony except as provided in sections 18-1.3-401 and 25-15-310, articles 22 to 29 of title 39, or article 3 of title 42, C.R.S. (e) The defendant may be sentenced to comply with any other court order authorized by law. (f) The defendant may be sentenced to payment of costs. (g) The defendant may be sentenced pursuant to part 4 or 5 of this article. (h) (I) If the defendant is eligible pursuant to section 18-1.3-407.5 or section 19-2-517 (6), C.R.S., the defendant may be sentenced to the youthful offender system in accordance with section 18-1.3-407. (II) Repealed. (i) Notwithstanding any provision of this subsection (1) to the contrary, the court shall sentence any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, pursuant to the provisions of part 10 of this article. (2) (a) The sentencing court shall consider the following factors in sentencing nonviolent offenders: (I) The nature and character of the offense; (II) The character and record of the nonviolent offender, including whether the offender is a first-time offender; (III) The offender's employment history; Colorado Revised Statutes 2019 Page 68 of 695 Uncertified Printout (IV) The potential rehabilitative value of the sentencing alternatives available to the court; (V) Any potential impact on the safety of the victim, the victim's family, and the general public based upon sentencing alternatives available to the court; and (VI) The offender's ability to pay restitution to the victim or the victim's family based upon the sentencing alternatives available to the court. (b) Repealed. (c) The court shall consider and may sentence a nonviolent offender to any one or any combination of the sentences described in this paragraph (c) if, upon consideration of the factors described in paragraph (a) of this subsection (2), the court does not grant probation pursuant to paragraph (b) of this subsection (2) or does not sentence the offender to the department of corrections as provided under paragraph (d) of this subsection (2): (I) A community corrections program pursuant to section 18-1.3-301; (II) A home detention program pursuant to section 18-1.3-105; or (III) A specialized restitution and community service program pursuant to section 181.3-302. (d) Nothing in this subsection (2) shall be construed as prohibiting a court from exercising its discretion in sentencing a nonviolent offender to the department of corrections based upon, but not limited to, any one or more factors described in paragraph (a) of this subsection (2). (3) (a) In determining the appropriate sentencing alternative for a defendant who has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), the sentencing court shall consider the defendant's previous criminal and juvenile delinquency records, if any, set forth in the presentence investigation report prepared pursuant to section 16-11-102 (1)(a), C.R.S. (b) For purposes of this subsection (3), "convicted" means a conviction by a jury or by a court and shall also include a deferred judgment and sentence, a deferred adjudication, an adjudication, and a plea of guilty or nolo contendere. Source: L. 2002: Entire article added with relocations, p. 1368, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(c) amended, p. 32, § 24, effective October 1. L. 2003: IP(1), (1)(a), and (1)(b) amended, p. 975, § 12, effective April 17. L. 2004: (1)(h)(II) repealed, p. 243, § 1, effective April 5. L. 2009: (1)(h)(I) amended, (HB 09-1122), ch. 77, p. 280, § 3, effective October 1. L. 2010: (1)(h)(I) amended, (HB 10-1413), ch. 264, p. 1204, § 4, effective August 11. L. 2011: (1)(b.5)(I) amended, (HB 11-1032), ch. 296, p. 1402, § 7, effective August 10. L. 2013: (1)(b) amended and (2)(b) repealed, (SB 13-250), ch. 333, p. 1935, § 53, effective October 1. L. 2014: (1)(b) amended, (SB 14-163), ch. 391, p. 1972, § 9, effective June 6. Editor's note: This section is similar to former § 16-11-101 as it existed prior to 2002. Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(c), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. Colorado Revised Statutes 2019 Page 69 of 695 Uncertified Printout 18-1.3-104.5. Alternatives in imposition of sentence in drug felony cases exhaustion of remedies. (1) The general assembly finds that it is essential in certain level 4 drug felony cases that the court consider all sentencing options to ensure that the state's costly prison resources are used for those offenders for whom another sentence is not appropriate or will not properly meet the goals of community safety and rehabilitation of the offender. (2) (a) Prior to the imposition of any sentence to the department of corrections for a level 4 drug felony offense at sentencing or at resentencing after a revocation of probation or community corrections sentence, the court shall exhaust all reasonable and appropriate alternative sentences for the offense considering all factors outlined in paragraph (b) of this subsection (2). (b) If the court sentences the defendant to the department of corrections for a level 4 drug felony offense, it must determine that incarceration is the most suitable option given the facts and circumstances of the case, including the defendant's willingness to participate in treatment. Further, the court must also determine that all other reasonable and appropriate sanctions and responses to the violation that are available to the court have been tried and failed, do not appear likely to be successful if tried, or present an unacceptable risk to public safety. (c) In making the determination in paragraph (b) of this subsection (2), the court shall review, to the extent available, the information provided by the supervising agency, which includes, but is not limited to, a complete statement as to what treatment and sentencing options have been tried and have failed, what other community options are available and the reasons why any other available community options appear to be unlikely to be successful. The supervising agency shall provide to the court the risk level of the offender as determined by an evidencebased risk assessment tool employed by the supervising agency and any other information relevant to the defendant's risk to public safety. Source: L. 2013: Entire section added, (SB 13-250), ch. 333, p. 1902, § 2, effective October 1. 18-1.3-105. Authority of sentencing courts to utilize home detention programs. (1) (a) A sentencing judge is authorized to sentence any offender, as defined in subsection (5) of this section, to a home detention program operated pursuant to a contractual agreement with the department of public safety pursuant to this article for all or part of such offender's sentence. (b) Prior to sentencing any offender directly to a home detention program, the sentencing judge shall consider the following factors: (I) The safety of victims and witnesses of the offender's criminal acts; (II) The safety of the public at large; (III) The seriousness of any offense committed by the offender together with any information relating to the original charge against the offender; (IV) The offender's prior criminal record; and (V) The ability of the offender to pay for the costs of home detention and any restitution to victims of his or her criminal acts. (c) The sentencing judge shall make every reasonable effort to notify the victims of crime that the offender has been sentenced to a home detention program. Such notice shall be sent to the last address in the possession of the court, and the victim of the crime has the duty to keep the court informed of his or her most current address. Colorado Revised Statutes 2019 Page 70 of 695 Uncertified Printout (d) An offender who has been convicted of a crime, the underlying factual basis of which was found by the court to include an act of domestic violence, as defined in section 18-6800.3 (1), shall not be eligible for home detention in the home of the victim pursuant to this article. (2) Any offender who is directly sentenced to a home detention program pursuant to subsection (1) of this section and fails to carry out the terms and conditions prescribed by the sentencing court in his or her sentence to a home detention program shall be returned to the court and resentenced as soon as possible. (3) A sentencing judge is authorized to require any offender, as defined in subsection (5) of this section, as a condition of probation, to serve an appropriate period of time extending from ninety days to one year in a home detention program operated directly by the judicial department, or in a home detention program operated pursuant to a contractual agreement with the department of public safety. (4) The general assembly hereby declares that this section shall be effective July 1, 1990, only in the counties of Boulder, Larimer, and Pueblo in order to facilitate a pilot program in Boulder, Larimer, and Pueblo counties which shall extend from July 1, 1990, until July 1, 1992. (5) As used in this section, unless the context otherwise requires: (a) "Home detention" means an alternative correctional sentence or term of probation supervision wherein a defendant convicted of any felony, other than a class 1 or violent felony, is allowed to serve his or her sentence or term of probation, or a portion thereof, within his or her home or other approved residence. Such sentence or term of probation shall require the offender to remain within his or her approved residence at all times except for approved employment, court-ordered activities, and medical needs. (b) "Offender" means any person who has been convicted of or who has received a deferred sentence for a felony, other than a class 1 or violent felony. Source: L. 2002: Entire article added with relocations, p. 1371, § 2, effective October 1. Editor's note: This section is similar to former § 17-27.8-102 as it existed prior to 2002. 18-1.3-106. County jail sentencing alternatives - work, educational, and medical release - home detention - day reporting - definition. (1) (a) Any county may provide a program whereby any person sentenced to the county jail upon conviction for a crime, nonpayment of any fine or forfeiture, or contempt of court may be granted by the court the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes: (I) Seeking employment; (II) Working at his or her employment; (III) Conducting his or her own business or other self-employed occupation including housekeeping and attending to the needs of the family; (IV) Attendance at an educational institution; (V) Medical treatment; (VI) Home detention; or (VII) Day reporting. Colorado Revised Statutes 2019 Page 71 of 695 Uncertified Printout (b) A court may order a person who would otherwise be sentenced to the county jail upon conviction of a crime to be sentenced directly to an available day reporting program if the court deems such a sentence to be appropriate for the offender. (1.1) For purposes of this section, "home detention" means an alternative correctional sentence or term of legal supervision wherein a defendant charged or convicted of a misdemeanor, felony, nonpayment of any fine, or contempt of court is allowed to serve his or her sentence or term of supervision, or a portion thereof, within his or her home or other approved residence. Such sentence or term of supervision shall cause the defendant to remain within such defendant's approved residence at all times except for approved employment, court-ordered activities, and medical needs. Supervision of the defendant shall include personal monitoring by an agent or designee of the referring unit of government and monitoring by electronic or global positioning devices that are capable of detecting and reporting the defendant's absence or presence within the approved residence. (1.3) Before a court may grant a person sentenced to the county jail the privilege of leaving the jail to attend a postsecondary educational institution, the court shall first notify the prosecuting attorney and the postsecondary educational institution of its intention to grant the privilege and request their comments thereon. The notice shall include all relevant information pertaining to the person and the crime for which he or she was convicted. Both the prosecuting attorney and the postsecondary institution shall reply to the court in writing within fourteen days after receipt of the notification or within such other reasonable time in excess of fourteen days as specified by the court. The postsecondary educational institution's reply shall include a statement of whether or not it will accept the person as a student. Acceptance by a state postsecondary educational institution shall be pursuant to section 23-5-106, C.R.S. (2) Unless directly sentenced to a day reporting program pursuant to paragraph (b) of subsection (1) of this section or unless such privilege is otherwise expressly granted by the sentencing court, the prisoner shall be confined as sentenced. The prisoner may petition the court for such privilege at the time of sentencing or thereafter and, in the discretion of the court, may renew his or her petition. The court may withdraw the privilege at any time by order entered with or without notice. (3) The sheriff or the director of an alternative sentencing program may endeavor to secure employment for unemployed prisoners under this section. If a prisoner is employed for wages or salary, the sheriff may collect the same or require the prisoner to turn over his or her wages or salary in full when received, and the sheriff shall deposit the same in a trust checking account and shall keep a ledger showing the status of the account of each prisoner. (4) Every prisoner gainfully employed shall be liable for the cost of his or her board in the jail or the cost of the supervision and administrative services if he or she is home-detained, as fixed by the board of county commissioners. If necessarily absent from jail at mealtime, he or she shall, at his or her request, be furnished with an adequate nourishing lunch to carry to work. The sheriff or the director of the alternative sentencing program, as may be applicable, shall charge his or her account, if he or she has one, for such board. If the prisoner is gainfully selfemployed, he or she shall pay the sheriff or the director of the alternative sentencing program for such board, in default of which his or her privilege under this section is automatically forfeited. If the jail food is furnished directly by the county, the sheriff or the director of the alternative sentencing program shall account for and pay over such board payments to the county treasurer. The board of county commissioners may, by resolution, provide that the county furnish or pay Colorado Revised Statutes 2019 Page 72 of 695 Uncertified Printout for the transportation of prisoners employed under this section to and from the place of employment. The sheriff or the director of the alternative sentencing program shall reimburse the county or other disbursing agent for all such expenses incurred in accordance with this section and article 26 of title 17 as soon as adequate funds are available in the prisoner's account and in accordance with subsection (5)(b) of this section. (5) By order of the court, the wages or salaries of employed prisoners shall be disbursed by the sheriff for the following purposes, in the order stated: (a) Payment of any current child support order; (b) Payment of any child support arrearage; (b.3) Payment of any child support debt order; (c) Payment of any spousal maintenance; (d) Payment of costs for the crime victim compensation fund, pursuant to section 24-4.1119, C.R.S.; (e) Payment of surcharges for the victims and witnesses assistance and law enforcement fund, pursuant to section 24-4.2-104, C.R.S.; (f) Payment of restitution; (g) Payment of a time payment fee; (h) Payment of late fees; (i) Payment of any other fines, fees, or surcharges; (j) Payment of the board of the prisoner; (k) Payment of the supervision and administrative services provided to the prisoner during his or her home detention; (l) Payment of necessary travel expense to and from work and other incidental expenses of the prisoner; (m) Payment, either in full or ratably, of the prisoner's obligations acknowledged by him or her in writing or which have been reduced to judgment; and (n) The balance, if any, to the prisoner upon his or her discharge. (6) The court may by order authorize the sheriff to whom the prisoner is committed to arrange with another sheriff for the employment or home detention of the prisoner in the other's county and, while so employed or so detained, for the prisoner to be in the other's custody but in other respects to be and continue subject to the commitment. (7) If the prisoner was convicted in a court in another county, the court of record having criminal jurisdiction may, at the request or with the concurrence of the committing court, make all determinations and orders under this section which might otherwise be made by the sentencing court after the prisoner is received at the jail. (8) The board of county commissioners may, by resolution, direct that functions of the sheriff pursuant to either subsection (3) or (5) of this section, or both, be performed by the county department of human or social services; or, if the board of county commissioners has not so directed, a court of record may order that the prisoner's earnings be collected and disbursed by the clerk of the court. Such order must remain in force until rescinded by the board or the court, whichever made it. (9) The county department of human or social services shall, at the request of the court, investigate and report to the court the amount necessary for the support of the prisoner's dependents. Colorado Revised Statutes 2019 Page 73 of 695 Uncertified Printout (10) The sheriff may refuse to permit the prisoner to exercise his or her privilege to leave the jail as provided in subsection (1) of this section for any breach of discipline or other violation of jail regulations. Any such breach of discipline or other violation of jail regulations shall be reported to the sentencing court. (11) A prisoner who has been convicted of one of the crimes of violence as defined in section 18-1.3-406 (2), who has been convicted of a sex offense as defined in sections 18-1.3903 (5) and 18-3-411, who has been convicted of a crime, the underlying factual basis of which was found by the court to include an act of domestic violence, as defined in section 18-6-800.3 (1), or who has been convicted of a class 1 misdemeanor in which a deadly weapon is used shall not be eligible for home detention pursuant to this section. (12) Repealed. Source: L. 2002: Entire article added with relocations, p. 1372, § 2, effective October 1. L. 2006: (1.1) amended, p. 18, § 2, effective March 8. L. 2008: (5)(d) amended, p. 1888, § 51, effective August 5. L. 2012: (1.3) amended, (SB 12-175), ch. 208, p. 864, § 107, effective July 1. L. 2017: (3) and (4) amended and (12) repealed, (HB 17-1015), ch. 71, p. 225, § 10, effective August 9. L. 2018: (8) and (9) amended, (SB 18-092), ch. 38, p. 405, § 24, effective August 8. Editor's note: This section is similar to former § 17-26-128 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. 18-1.3-107. Conviction - collateral relief - definitions. (1) At the time of conviction or at any time thereafter, upon the request of the defendant or upon the court's own motion, a court may enter an order of collateral relief in the criminal case for the purpose of preserving or enhancing the defendant's employment or employment prospects and to improve the defendant's likelihood of success in the community. (2) Application contents. (a) An application for an order of collateral relief must cite the grounds for granting the relief, the type of relief sought, and the specific collateral consequence from which the applicant is seeking relief and must include a copy of a recent criminal history record check. The state court administrator may produce an application form that an applicant may submit in application. (b) The applicant shall provide a copy of the application to the district attorney and to the regulatory or licensing body that has jurisdiction over the collateral consequence from which the applicant is seeking relief, if any, by certified mail or personal service within ten days after filing the application with the court. (c) An application filed after a sentence has been imposed must include a copy of a recent Colorado bureau of investigation fingerprint-based criminal history record check, the filing fee required by law, and an additional filing fee of thirty dollars to cover the actual costs related to the application. A court shall waive the filing fees if it finds that the defendant is indigent. (3) An order of collateral relief may relieve a defendant of any collateral consequences of the conviction, whether in housing or employment barriers or any other sanction or disqualification that the court shall specify, including but not limited to statutory, regulatory, or Colorado Revised Statutes 2019 Page 74 of 695 Uncertified Printout other collateral consequences that the court may see fit to relieve that will assist the defendant in successfully reintegrating into the community. (4) (a) Notwithstanding any other provision of law, an order of collateral relief cannot relieve any collateral consequences imposed by law for licensure by the department of education or any collateral consequences imposed by law for employment with the judicial branch, the department of corrections, division of youth services in the department of human services, or any other law enforcement agency in the state of Colorado. (b) A court shall not issue an order of collateral relief if the defendant: (I) Has been convicted of a felony that included an element that requires a victim to suffer a serious bodily injury and the victim suffered a permanent impairment of the function of any part or organ of the body; (II) Has been convicted of a crime of violence as described in section 18-1.3-406; or (III) Is required to register as a sex offender pursuant to section 16-22-103, C.R.S. (5) Hearing. (a) The court may conduct a hearing on any matter relevant to the granting or denial of an application or include a hearing on the matter at the defendant's sentencing hearing and may take testimony under oath. (b) The court may hear testimony from victims or any proponent or opponent of the application and may hear argument from the petitioner and the district attorney. (6) Standard for granting relief. (a) A court may issue an order of collateral relief if the court finds that: (I) The order of collateral relief is consistent with the applicant's rehabilitation; and (II) Granting the application would improve the applicant's likelihood of success in reintegrating into society and is in the public's interest. (b) The court that previously issued an order of collateral relief, on its own motion or either by cause shown by the district attorney or on grounds offered by the applicant, may at any time issue a subsequent judgment to enlarge, limit, or circumscribe the relief previously granted. (c) Upon the motion of the district attorney or probation officer or upon the court's own motion, a court may revoke an order of collateral relief upon evidence of a subsequent criminal conviction or proof that the defendant is no longer entitled to relief. Any bars, prohibitions, sanctions, and disqualifications thereby relieved may be reinstated as of the date of the written order of revocation. The court shall provide a copy of the order of revocation to the holder and to any regulatory or licensing entity that the defendant noticed in his or her motion for relief. (7) If the court issues an order of collateral relief, it shall send a copy of the order of collateral relief through the Colorado integrated criminal justice information system to the Colorado bureau of investigation, and the Colorado bureau of investigation shall note in the applicant's record in the Colorado crime information center that the order of collateral relief was issued. (8) Definitions. As used in this section, unless the context otherwise requires: (a) "Collateral consequence" means a collateral sanction or a disqualification. (b) "Collateral sanction" means a penalty, prohibition, bar, or disadvantage, however denominated, imposed on an individual as a result of the individual's conviction of an offense, which penalty, prohibition, bar, or disadvantage applies by operation of law regardless of whether the penalty, prohibition, bar, or disadvantage is included in the judgment or sentence. "Collateral sanction" does not include imprisonment, probation, parole, supervised release, Colorado Revised Statutes 2019 Page 75 of 695 Uncertified Printout forfeiture, restitution, fine, assessment, costs of prosecution, or a restraint or sanction on an individual's driving privilege. (c) "Conviction" or "convicted" means a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by the court or a conviction of a crime under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, which, if committed within this state, would be a crime. "Conviction" or "convicted" also includes having received a deferred judgment and sentence. (d) "Disqualification" means a penalty, prohibition, bar, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding is authorized, but not required, to impose on an individual on grounds relating to the individual's conviction of an offense. Source: L. 2013: Entire section added, (SB 13-123), ch. 289, p. 1548, § 11, effective May 24. L. 2017: (4)(a) amended, (HB 17-1329), ch. 381, p. 1971, § 21, effective June 6. L. 2018: (1), (2)(a), (3), (4)(b)(I), (5)(a), (6)(c), and (8)(c) amended and (2)(c) added, (HB 181344), ch. 259, p. 1589, § 1, effective July 1. PART 2 PROBATION 18-1.3-201. Application for probation. (1) (a) A person who has been convicted of an offense, other than a class 1 felony or a class 2 petty offense, is eligible to apply to the court for probation. (b) Repealed. (2) (a) The provisions of this subsection (2) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred before May 25, 2010. (a.5) A person who has been twice or more convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation. (b) Notwithstanding any other provision of law except the provisions of paragraph (c) of this subsection (2), a person who has been convicted of one or more felonies under the laws of this state, any other state, or the United States within ten years prior to a class 1, 2, or 3 felony conviction on which his or her application is based shall not be eligible for probation. (c) Notwithstanding the provisions of paragraph (a.5) of this subsection (2) and subsection (4) of this section, an offender convicted of a violation of section 18-18-403.5 may be eligible for probation upon recommendation of the district attorney. (d) Repealed. (2.1) Repealed. (2.5) (a) The provisions of this subsection (2.5) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred on or after May 25, 2010. (b) Except as described in paragraph (a) of subsection (4) of this section, a person who has been twice or more convicted of a felony upon charges separately brought and tried and Colorado Revised Statutes 2019 Page 76 of 695 Uncertified Printout arising out of separate and distinct criminal episodes under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation if the current conviction or a prior conviction is for: (I) First or second degree murder, as described in section 18-3-102 or 18-3-103; (II) Manslaughter, as described in section 18-3-104; (III) First or second degree assault, as described in section 18-3-202 or 18-3-203; (IV) First or second degree kidnapping, as described in section 18-3-301 or 18-3-302; (V) A sexual offense as described in part 4 of article 3 of this title; (VI) First degree arson, as described in section 18-4-102; (VII) First or second degree burglary, as described in section 18-4-202 or 18-4-203; (VIII) Robbery, as described in section 18-4-301; (IX) Aggravated robbery, as described in section 18-4-302 or 18-4-303; (X) Theft from the person of another, as described in section 18-4-401 (5); (XI) Any felony offense committed against a child, as described in article 3, 6, or 7 of this title; or (XII) Any criminal attempt or conspiracy to commit any of the offenses specified in this paragraph (b). (c) Failure to register as a sex offender, as described in section 18-3-412.5, shall not constitute a sexual offense for the purposes of subparagraph (V) of paragraph (b) of this subsection (2.5). (3) An application for probation shall be in writing upon forms furnished by the court, but, when the defendant has been convicted of a misdemeanor or any petty offense, the court, in its discretion, may waive the written application for probation. (4) (a) (I) The restrictions upon eligibility for probation in subsections (2) and (2.5) of this section may be waived by the sentencing court regarding a particular defendant upon recommendation of the district attorney approved by an order of the sentencing court. (II) Repealed. (b) Upon entry of an order pursuant to this subsection (4) regarding a particular defendant, such defendant shall be deemed to be eligible to apply to the court for probation pursuant to this section. (5) For purposes of paragraph (a.5) of subsection (2) of this section and paragraph (a) of subsection (2.5) of this section, "conviction" means a verdict of guilty or the entry of a plea of guilty or nolo contendere. "Conviction" does not include a plea to a deferred judgment and sentence pursuant to section 18-1.3-102 until the deferred judgment and sentence is revoked. Source: L. 2002: Entire article added with relocations, p. 1375, § 2, effective October 1. L. 2003: (2) amended and (2.1) added, p. 2689, § 7, effective July 1. L. 2007: (2)(d) and (2.1) repealed, p. 1689, § 10, effective July 1. L. 2010: (1)(b) and (4)(a)(II) repealed, (2) and (4)(a)(I) amended, and (2.5) added, (HB 10-1338), ch. 257, pp. 1147, 1145, §§ 2, 1, effective May 25; (2)(c) amended, (HB 10-1352), ch. 259, p. 1173, § 16, effective August 11. L. 2012: (5) added, (HB 12-1310), ch. 268, p. 1396, § 12, effective June 7. L. 2013: (3) amended, (SB 13-250), ch. 333, p. 1935, § 54, effective October 1. Editor's note: (1) This section is similar to former § 16-11-201 as it existed prior to 2002. Colorado Revised Statutes 2019 Page 77 of 695 Uncertified Printout (2) Amendments to subsection (2)(c) by House Bill 10-1338 and House Bill 10-1352 were harmonized. Cross references: (1) For procedures relevant to application for probation, see Crim. P. 32. (2) For the legislative intent contained in the 2003 act amending subsection (2) and enacting subsection (2.1), see section 1 of chapter 424, Session Laws of Colorado 2003. 18-1.3-202. Probationary power of court. (1) (a) When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best. The length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted but shall not exceed five years for any misdemeanor or petty offense. If the court chooses to grant the defendant probation, the order placing the defendant on probation shall take effect upon entry and, if any appeal is brought, shall remain in effect pending review by an appellate court unless the court grants a stay of probation pursuant to section 16-4-201. Unless an appeal is filed that raises a claim that probation was granted contrary to the provisions of this title, the trial court shall retain jurisdiction of the case for the purpose of adjudicating complaints filed against the defendant that allege a violation of the terms and conditions of probation. In addition to imposing other conditions, the court has the power to commit the defendant to any jail operated by the county or city and county in which the offense was committed during such time or for such intervals within the period of probation as the court determines. Except as described in subsection (1)(b) of this section, the aggregate length of any such commitment whether continuous or at designated intervals may not exceed ninety days for a felony, sixty days for a misdemeanor, or ten days for a petty offense unless it is a part of a work release program pursuant to section 181.3-207. That the defendant submit to commitment imposed under this section is deemed a condition of probation. (b) For a defendant who is convicted of a felony offense described in section 42-4-1301 (1)(a), (1)(b), or (2)(a), the aggregate length of any commitment to a county jail is determined as provided in section 42-4-1307 (6.5)(b). (2) The probation department in each judicial district may enter into agreements with any state agency or other public agency, any corporation, and any private agency or person to provide supervision or other services for defendants placed on probation by the court. The agreements shall not include management of any intensive supervision probation programs created pursuant to section 18-1.3-208. Source: L. 2002: Entire article added with relocations, p. 1376, § 2, effective October 1. L. 2003: (1) amended, p. 976, § 13, effective April 17. L. 2013: (2) amended, (SB 13-250), ch. 333, p. 1942, § 68, effective October 1. L. 2017: (1) amended, (HB 17-1288), ch. 387, p. 2005, § 3, effective August 9. Editor's note: This section is similar to former § 16-11-202 as it existed prior to 2002. Colorado Revised Statutes 2019 Page 78 of 695 Uncertified Printout 18-1.3-203. Criteria for granting probation. (1) The court, subject to the provisions of this title and title 16, C.R.S., and having considered the purposes of sentencing described in section 18-1-102.5, in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because: (a) There is undue risk that during a period of probation the defendant will commit another crime; or (b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 18-1.3-104; or (c) A sentence to probation will unduly depreciate the seriousness of the defendant's crime or undermine respect for law; or (d) His or her past criminal record indicates that probation would fail to accomplish its intended purposes; or (e) The crime, the facts surrounding it, or the defendant's history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation. (2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section: (a) The defendant's criminal conduct neither caused nor threatened serious harm to another person or his or her property; (b) The defendant did not plan or expect that his or her criminal conduct would cause or threaten serious harm to another person or his or her property; (c) The defendant acted under strong provocation; (d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant's conduct; (e) The victim of the defendant's conduct induced or facilitated its commission; (f) The defendant has made or will make restitution or reparation to the victim of his or her conduct for the damage or injury which was sustained; (g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense; (h) The defendant's conduct was the result of circumstances unlikely to recur; (i) The character, history, and attitudes of the defendant indicate that he or she is unlikely to commit another crime; (j) The defendant is particularly likely to respond affirmatively to probationary treatment; (k) The imprisonment of the defendant would entail undue hardship to himself or herself or his or her dependents; (l) The defendant is elderly or in poor health; (m) The defendant did not abuse a public position of responsibility or trust; (n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise. (3) Nothing in this section shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing. Colorado Revised Statutes 2019 Page 79 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1377, § 2, effective October 1. L. 2011: IP(1) amended, (HB 11-1180), ch. 96, p. 283, § 3, effective August 10. Editor's note: This section is similar to former § 16-11-203 as it existed prior to 2002. Cross references: For provisions concerning the presentence or probation investigation, see § 16-11-102 and Crim. P. 32(a). 18-1.3-204. Conditions of probation - interstate compact probation transfer cash fund - creation. (1) (a) The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so. The court shall provide as explicit conditions of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation, that the defendant make restitution pursuant to part 6 of this article and article 18.5 of title 16, C.R.S., that the defendant comply with any court orders regarding substance abuse testing and treatment issued pursuant to sections 18-1.3-209 and 181.3-211 and article 11.5 of title 16, C.R.S., and that the defendant comply with any court orders regarding the treatment of sex offenders issued pursuant to article 11.7 of title 16, C.R.S. The court shall provide as an explicit condition of every sentence to probation that the defendant not harass, molest, intimidate, retaliate against, or tamper with the victim of or any prosecution witnesses to the crime, unless the court makes written findings that such condition is not necessary. (b) [Editor's note: This version of subsection (1)(b) is effective until January 1, 2020.] Notwithstanding the provisions of subsection (1)(a) of this section, unless the defendant is sentenced to probation for a conviction of a crime under article 11 of title 44, the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, shall not be considered another offense such that its use constitutes a violation of the terms of probation. (b) [Editor's note: This version of subsection (1)(b) is effective January 1, 2020.] Notwithstanding the provisions of subsection (1)(a) of this section, unless the defendant is sentenced to probation for a conviction of a crime under article 10 of title 44, the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, shall not be considered another offense such that its use constitutes a violation of the terms of probation. (1.5) If the defendant is being sentenced to probation as a result of a conviction of a felony offense or a qualifying misdemeanor offense pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., a condition of probation shall be that the court shall require the defendant to execute or subscribe a written prior waiver of extradition stating that the defendant consents to extradition to this state and waives all formal proceedings in the event that he or she is arrested in another state while at liberty on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state. If the offender is returned to the state pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., a court may not impose the cost of the offender's return on the offender. Colorado Revised Statutes 2019 Page 80 of 695 Uncertified Printout (2) (a) When granting probation, the court may, as a condition of probation, require that the defendant: (I) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the defendant for suitable employment; (II) Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose. In any case where inpatient psychiatric treatment is indicated, the court shall proceed in accordance with article 65 of title 27, C.R.S., and require the defendant to comply with the recommendation of the professional person in charge of the evaluation required pursuant to section 27-65-105 or 27-65-106, C.R.S. (III) Attend or reside in a facility established for the instruction, recreation, or residence of persons on probation; (III.5) Participate in restorative justice practices, as defined in section 18-1-901 (3)(o.5), if available in the jurisdiction, and the defendant is determined suitable by a designated restorative justice practices facilitator. If a defendant wants to participate in restorative justice practices, the defendant must make the request to the district attorney or the law enforcement agency administering the program and may not make the request to the victim. If requested by the defendant, district attorney, or law enforcement agency, a victim-offender conference may only be conducted after the victim is consulted by the district attorney and offered the opportunity to participate or submit a victim impact statement. If a victim elects not to attend, a victim offender conference may be held with a suitable victim surrogate or victim advocate, and the victim may submit a victim-impact statement. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6-800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. Any statements made during a restorative justice conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference. Failure to complete the requirements arising from a restorative justice conference may be considered a violation of probation. Nothing in this subparagraph (III.5) shall be construed to require a victim to participate in restorative justice practices or a restorative justice victim-offender conference. (IV) Support the defendant's dependents and meet other family responsibilities, including arranging and fulfilling a payment plan for current child support, child support arrearages, and child support debt due under a court or administrative order through any delegate child support enforcement unit that may have a child support case with the defendant; (V) Pay reasonable costs of the court proceedings or costs of supervision of probation, or both. The probation supervision fee shall be fifty dollars per month for the length of ordered probation. Notwithstanding the amount specified in this subparagraph (V), the court may lower the costs of supervision of probation to an amount the defendant will be able to pay. The court shall fix the manner of performance for payment of the fee. If the defendant receives probation services from a private provider, the court shall order the defendant to pay the probation supervision fee directly to the provider. The fee shall be imposed for the length of ordered probation. (VI) Pay any fines or fees imposed by the court; Colorado Revised Statutes 2019 Page 81 of 695 Uncertified Printout (VI.5) Repay all or part of any reward paid by a crime stopper organization that led to the defendant's arrest and conviction in accordance with article 15.7 of title 16, C.R.S.; (VII) Refrain from possessing a firearm, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer; (VIII) Refrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102 (5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless: (A) [Editor's note: This version of subsection (2)(a)(VIII)(A) is effective until January 1, 2020.] The defendant is sentenced to probation for conviction of a crime under article 11 of title 44; or (A) [Editor's note: This version of subsection (2)(a)(VIII)(A) is effective January 1, 2020.] The defendant is sentenced to probation for conviction of a crime under article 10 of title 44; or (B) The court determines, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section 18-1-102.5; (IX) Report to a probation officer at reasonable times as directed by the court or the probation officer; (X) Permit the probation officer to visit the defendant at reasonable times at the defendant's home and elsewhere; (XI) Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer; (XII) Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment; (XIII) Be subject to home detention as defined in section 18-1.3-106 (1.1); (XIV) Be restrained from contact with the victim or the victim's family members in cases in which the defendant was convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1); (XIV.5) Be subject to electronic or global position monitoring; (XV) Satisfy any other conditions reasonably related to the defendant's rehabilitation and the purposes of probation. (b) When granting probation, in addition to the consideration of the provisions set forth in paragraph (a) of this subsection (2), the court shall order as a condition of probation in cases in which the defendant was convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), that the defendant: (I) Comply with existing court orders regarding family support; (II) Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support; (III) Comply with the terms of any protection order in effect against the defendant during the probation period; (IV) Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or probation officer which shall not be granted in such domestic violence cases unless: Colorado Revised Statutes 2019 Page 82 of 695 Uncertified Printout (A) It is required by the defendant's employment; and (B) The court finds that the defendant's possession of the weapon does not endanger the victim or the victim's children; and (C) The weapon is stored away from the home and the yard surrounding the home. (c) If the court orders counseling or treatment as a condition of probation, unless the court makes a specific finding that treatment in another facility or with another person is warranted, the court shall order that the treatment or counseling be at a facility or with a person: (I) Approved by the office of behavioral health in the department of human services, established in article 80 of title 27, if the treatment is for alcohol or drug abuse; (II) Certified or approved by the sex offender management board, established in section 16-11.7-103, C.R.S., if the offender is a sex offender; (III) Certified or approved by the domestic violence offender management board created in section 16-11.8-103, C.R.S., if the offender was convicted of or the underlying factual basis of the offense included an act of domestic violence as defined in section 18-6-800.3; or (IV) Licensed or certified by the division of adult parole in the department of corrections, the department of regulatory agencies, the office of behavioral health in the department of human services, the state board of nursing, or the Colorado medical board, whichever is appropriate for the required treatment or counseling. (d) Notwithstanding the provisions of paragraph (c) of this subsection (2), if the court orders counseling or treatment as a condition of probation for an offender convicted of an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., the court shall order such treatment or counseling be at a facility or with a person listed in paragraph (c) of this subsection (2), and the court may not make a specific finding that treatment in another facility or with another person is warranted. (e) If the defendant is convicted of an offense that subjects the defendant to genetic testing pursuant to section 16-11-102.4, C.R.S., the court shall assess to the defendant the cost of collecting and testing a biological substance sample from the defendant as required in section 16-11-102.4, C.R.S. (2.2) When granting probation, the court may include as a condition of probation a requirement that the defendant participate in drug treatment. If the defendant's assessed treatment need is for residential treatment, the court may make residential drug treatment a condition of probation and may place the offender in a community corrections program that can provide the appropriate level of treatment subject to the provision of section 18-1.3-301 (4). (2.3) (a) When granting probation, the court may, as a condition of probation, require any defendant who is less than eighteen years of age at the time of sentencing to attend school or an educational program or to work toward the attainment of a high school diploma or the successful completion of a high school equivalency examination, as that term is defined in section 22-33-102 (8.5), C.R.S.; except that the court shall not require any such juvenile to attend a school from which he or she has been expelled without the prior approval of that school's local board of education. (b) Following specification of the terms and conditions of probation for a defendant who is less than eighteen years of age at the time of sentencing, where the conditions of probation include the requirement that the defendant attend school, the court shall notify the school district in which the defendant will be enrolled of such requirement. Colorado Revised Statutes 2019 Page 83 of 695 Uncertified Printout (2.5) The order of priority for any payments required of a defendant pursuant to subparagraph (IV), (V), (VI), or (VI.5) of paragraph (a) of subsection (2) of this section shall be as follows: (a) Payment of a current child support order; (b) Payment of child support arrearage; (c) Payment of child support debt order; (d) Payment of spousal maintenance; (e) Payment of costs for the crime victim compensation fund, pursuant to section 24-4.1119, C.R.S.; (f) Payment of surcharges for the victims and witnesses assistance and law enforcement fund, pursuant to section 24-4.2-104, C.R.S.; (g) Payment of restitution; (h) Payment of a time payment fee; (i) Payment of late fees; (i.2) Payment of probation supervision fees; (i.4) Payment of a drug offender surcharge pursuant to article 19 of this title; (i.6) Payment of a sex offender surcharge pursuant to article 21 of this title; (i.7) Payment of a surcharge for a crime against an at-risk person pursuant to section 186.5-107; (i.8) Payment of collection and chemical testing of a biological substance to determine the genetic markers thereof; (i.9) Payment of a surcharge related to the address confidentiality program pursuant to section 24-30-2114, C.R.S.; (j) Payment of any other fines, fees, or surcharges; and (k) Repayment of all or part of any reward paid by a crime stopper organization that led to the defendant's arrest and conviction. (3) When a defendant is granted probation, he or she shall be given a written statement explicitly setting forth the conditions on which he or she is being released. (4) (a) For good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it, the judge may reduce or increase the term of probation or alter the conditions or impose new conditions. (b) (I) If an offender applies to transfer his or her probation to another state, the offender shall pay a filing fee of one hundred dollars, unless the offender is indigent. (II) (A) The clerk of the court shall transmit all moneys collected pursuant to this paragraph (b) to the state treasurer, who shall credit the same to the interstate compact probation transfer cash fund, which fund is hereby created and referred to in this paragraph (b) as the "fund". Beginning January 1, 2013, the moneys in the fund are subject to annual appropriation by the general assembly to the judicial department for the direct and indirect costs associated with returning probationers to Colorado. The state treasurer may invest any moneys in the fund not expended for the purpose of this paragraph (b) as provided by law. The state treasurer shall credit all interest and income derived from the investment and deposit of moneys in the fund 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. Colorado Revised Statutes 2019 Page 84 of 695 Uncertified Printout (B) On or after January 1, 2013, a law enforcement agency may submit to the state court administrator a request to be reimbursed for the costs of returning a probationer pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., incurred on or after January 1, 2013. The state court administrator shall, to the extent that funds are available, reimburse reasonable costs incurred by a law enforcement agency for the return of the probationer. Source: L. 2002: Entire article added with relocations, p. 1378, § 2, effective October 1. L. 2003: (2)(a)(V) amended, p. 2016, § 116, effective May 22; (2)(b)(III) amended, p. 1014, § 21, effective July 1. L. 2006: (2)(a)(XIV.5) added, p. 19, § 3, effective March 8; (1.5) added, p. 342, § 4, effective July 1; (2)(e) amended p. 1690, § 9, effective July 1, 2007. L. 2007: (2.5)(i.9) added, p. 1700, § 3, effective July 1. L. 2008: (2)(c)(III) and (2.5)(e) amended, p. 1889, § 52, effective August 5. L. 2010: (2)(a)(II) and (2)(c)(I) amended, (SB 10-175), ch. 188, p. 785, § 28, effective April 29; (2)(c)(IV) amended, (HB 10-1260), ch. 403, p. 1987, § 77, effective July 1. L. 2011: (2.5)(i.9) amended, (HB 11-1080), ch. 256, p. 1123, § 6, effective June 2; (2)(a)(III.5) added, (HB 11-1032), ch. 296, p. 1403, § 8, effective August 10; (2)(c)(IV) amended, (HB 111303), ch. 264, p. 1157, § 32, effective August 10. L. 2012: (2.3)(a) amended, (HB 12-1345), ch. 188, p. 748, § 37, effective May 19; (1.5) and (4) amended, (HB 12-1310), ch. 268, p. 1396, § 13, effective June 7; (2)(a)(VIII) amended, ch. 281, p. 1618, § 37, effective July 1; (2.5)(i.7) added, (HB 12-1226), ch. 279, p. 1489, § 3, effective August 15. L. 2013: (2)(a)(III.5) amended, (HB 13-1254), ch. 341, p. 1981, § 2, effective August 7; (2.2) added, (SB 13-250), ch. 333, p. 1925, § 33, effective October 1. L. 2014: (2.3)(a) amended, (SB 14-058), ch. 102, p. 379, § 5, effective April 7. L. 2015: (1) and (2)(a)(VIII) amended, (HB 15-1267), ch. 168, p. 515, § 1, effective May 8. L. 2016: (2.2) amended, (HB 16-1278), ch. 188, p. 664, § 1, effective May 20; (2)(a)(VIII) amended, (HB 16-1359), ch. 349, p. 1420, § 1, effective August 10. L. 2017: IP(2)(c), (2)(c)(I), and (2)(c)(IV) amended, (SB 17-242), ch. 263, p. 1254, § 13, effective May 25. L. 2018: (1)(b) and (2)(a)(VIII)(A) amended, (HB 18-1023), ch. 55, p. 586, § 12, effective October 1. L. 2019: (1)(b) and (2)(a)(VIII)(A) amended, (SB 19-224), ch. 315, p. 2937, § 16, effective January 1, 2020. Editor's note: This section is similar to former § 16-11-204 as it existed prior to 2002. Cross references: (1) For the legislative declaration contained in the 2007 act adding subsection (2.5)(i.9), see section 4 of chapter 385, Session Laws of Colorado 2007. For the legislative declaration in the 2012 act amending subsection (2.3)(a), see section 21 of chapter 188, Session Laws of Colorado 2012. However, section 21 of chapter 188 was repealed by section 7 of chapter 323 (HB 15-1273), Session Laws of Colorado 2015. (2) For the legislative declaration stating the purpose of and the provision directing legislative staff agencies to conduct a post-enactment review pursuant to § 2-2-1201 scheduled in 2016, see sections 21 and 46 of chapter 188, Session Laws of Colorado 2012. However, sections 21 and 46 of chapter 188 were repealed by sections 7 and 8 of chapter 323 (HB 151273), Session Laws of Colorado 2015. (3) For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. Colorado Revised Statutes 2019 Page 85 of 695 Uncertified Printout 18-1.3-205. Restitution as a condition of probation. As a condition of every sentence to probation, the court shall order that the defendant make full restitution pursuant to the provisions of part 6 of this article and article 18.5 of title 16, C.R.S. Such order shall require the defendant to make restitution within a period of time specified by the court. Such restitution shall be ordered by the court as a condition of probation. Source: L. 2002: Entire article added with relocations, p. 1382, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-204.5 as it existed prior to 2002. Cross references: For administrative proceedings to compensate victims of crime, see article 4.1 of title 24; for restitution as a condition of parole, see § 17-2-201 (5)(c); for restitution to victims of crime generally, see article 28 of title 17; for charges for bad checks received as a restitution payment ordered as a condition of a plea agreement, see § 16-7-304; for charges for bad checks received as a restitution payment ordered as a condition of a deferred prosecution or deferred sentence, see § 16-7-404; for restitution by delinquent children under the "Colorado Children's Code", see § 19-2-918. 18-1.3-206. Repayment of crime stopper reward as a condition of probation. (1) As a condition of every sentence to probation where information received through a crime stopper organization led to the arrest and felony conviction of a defendant, the court may require such defendant, as a condition of probation, to repay all or part of any reward paid by such organization. The amount of such repayment shall not exceed the actual reward paid by any crime stopper organization and shall be used solely for paying rewards. The court shall fix the manner and time of repayment. (2) In the event the defendant fails to repay the crime stopper reward in accordance with an order of the court, the defendant shall be returned to the sentencing court and the court, upon proof of failure to pay, may: (a) Modify the amount of the repayment; (b) Extend the period of probation; (c) Order the defendant committed to jail with work release privileges; or (d) Revoke probation and impose the sentence otherwise required by law. (3) When, as a result of a plea bargain agreement, a defendant is ordered to repay a reward pursuant to subsection (1) of this section, the department or agency supervising the collection of such repayment may assess a charge of fifteen dollars to the defendant for collection of each bad check or each bad check received as a repayment. (4) Any order for the repayment of all or part of a crime stopper reward as a condition of probation shall be prioritized in accordance with section 18-1.3-204 (2.5). (5) As used in this section, unless the context otherwise requires: (a) "Bad check" has the same meaning provided in section 16-7-404. (b) "Crime stopper organization" has the same meaning provided in section 16-15.7-102 (1), C.R.S. Source: L. 2002: Entire article added with relocations, p. 1382, § 2, effective October 1. Colorado Revised Statutes 2019 Page 86 of 695 Uncertified Printout Editor's note: This section is similar to former § 16-11-204.6 as it existed prior to 2002. 18-1.3-207. Work and education release programs. (1) As a specific condition of probation for a person convicted of a felony or misdemeanor, the court may require the probationer to participate for a period not to exceed two years or the term to which he or she might be sentenced for the offense committed, whichever is less, in a supervised work release or education release program. Utilization of the county jail, a municipal jail, or any other facility may be used for the probationer's full-time confinement, care, and maintenance, except for the time he or she is released for scheduled work or education. (1.1) Before a final ruling by the court authorizing a probationer to participate in a supervised education release program, the court shall notify the prosecuting attorney and the postsecondary educational institution requesting their comments on the pending release. The notice shall include all relevant information pertaining to the probationer and to the nature of the crime for which he or she was convicted. Both the prosecuting attorney and the postsecondary educational institution shall reply to the court in writing within fourteen days after receipt of the notification or within such other reasonable time in excess of fourteen days as specified by the court. The postsecondary educational institution's reply shall include a statement of whether or not it will accept the probationer as a student. Acceptance by a state postsecondary educational institution shall be pursuant to section 23-5-106, C.R.S. (2) All employment income of a probationer participating in a work release program shall be received and deposited by the probation officer in the registry of the court. The court shall order disbursement of the funds so deposited in payment of the following items which are listed in the order of their priority: (a) Any current child support order; (b) Any child support arrearage; (c) Any child support debt order; (d) Any spousal maintenance; (e) Costs for the crime victim compensation fund, pursuant to section 24-4.1-119, C.R.S.; (f) Surcharges for the victims and witnesses assistance and law enforcement fund, pursuant to section 24-4.2-104, C.R.S.; (g) Restitution; (h) A time payment fee; (i) Late fees; (j) Any other fines, fees, or surcharges; (k) Room, board, and work supervision inside and outside the county jail or other facility; and (l) The probationer. (3) Any acts by the probationer in violation of the conditions of probation under subsection (1) of this section may be asserted as a basis for revocation of probation as provided in sections 16-11-205 and 16-11-206, C.R.S., and any willful failure to return to the jail or other facility may be punishable as an escape under section 18-8-208. Colorado Revised Statutes 2019 Page 87 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1383, § 2, effective October 1. L. 2008: (2)(e) amended, p. 1889, § 53, effective August 5. L. 2012: (1.1) amended, (SB 12175), ch. 208, p. 865, § 108, effective July 1. Editor's note: This section is similar to former § 16-11-212 as it existed prior to 2002. 18-1.3-208. Intensive supervision probation programs - legislative declaration. (1) The general assembly finds and declares that intensive supervision probation programs are an effective and desirable alternative to sentences to imprisonment, community corrections, or jail. It is the purpose of this section to encourage the judicial department to establish programs for the intensive supervision of selected probationers. It is the intent of the general assembly that such programs be formulated so that they protect the safety and welfare of the public in the community where the programs are operating and throughout the state of Colorado. (2) The judicial department may establish an intensive supervision probation program in any judicial district or combination of judicial districts in order to provide supervision tailored to the specific characteristics that produce a risk classification requiring intensive services for the offender and to facilitate the offender's participation in rehabilitative programs intended to address those characteristics. When establishing such programs, the judicial department shall seek the counsel of the chief judge of the district court, the office of the district attorney, the state public defender or his or her designee, the county sheriff, the chief probation officer in the judicial district, the department of corrections, the local community corrections board, and members of the public at-large. (3) The judicial department shall require that offenders in the program receive the highest level of supervision that is provided to probationers. (4) When the court sentences any offender to probation, the probation department shall complete an initial assessment of the offender's risk and needs, using valid assessment tools approved by the state court administrator's office. Offenders who are determined through assessment to be high risk and who meet the acceptance criteria may be placed in an intensive supervision probation program by probation. Furthermore, intensive supervision probation may be used for an offender who has been under the supervision of probation for a period of time and a reassessment indicates the offender's risk of reoffense has increased to high and the offender meets the acceptance criteria of the intensive program. For purposes of this section, "offender" shall have the same meaning as that set forth in section 17-27-102 (6), C.R.S. (5) The judicial department shall have the power to establish and enforce standards and criteria for the administration of intensive supervision probation programs. (6) (a) It is the intent of the general assembly in enacting this subsection (6) to recognize that high-risk offenders can be managed in the community with the appropriate supervision and the use of evidence-based treatment programs and practices. (b) The judicial department is directed to create and implement intensive supervision probation programs based on the current evidence for reducing recidivism by October 1, 2013. Intensive supervision probation programs must require the use of validated assessments to determine the offender's risk of reoffending. The judicial department shall develop acceptance criteria for placement in all intensive supervision probation programs. The judicial department shall develop criteria for offenders to transition from intensive supervision probation programs to regular probation, based on assessment of risk and need and program compliance. An offender Colorado Revised Statutes 2019 Page 88 of 695 Uncertified Printout may not be placed in or transferred out of an intensive supervision probation program without meeting established criteria. Source: L. 2002: Entire article added with relocations, p. 1384, § 2, effective October 1. L. 2013: Entire section amended, (SB 13-250), ch. 333, p. 1925, § 35, effective October 1. Editor's note: This section is similar to former § 16-11-213 as it existed prior to 2002. 18-1.3-209. Substance abuse assessment required. (1) Each person convicted of a felony committed on or after July 1, 1992, and each person convicted of a misdemeanor or petty offense on or after July 1, 2008, who is to be considered for probation or a deferred judgment and sentence that includes supervision by the probation department, shall be required to submit to an assessment for the use of controlled substances or alcohol developed pursuant to section 16-11.5-102 (1)(a), C.R.S., as part of the presentence or probation investigation required pursuant to section 16-11-102, C.R.S., or, if the investigation is waived pursuant to section 1611-102 (4), C.R.S., and the person is sentenced to probation or supervised by a probation officer, then as a part of intake. (2) The court shall order each person required to submit to an assessment pursuant to subsection (1) of this section to comply with the recommendations of the alcohol and drug assessment. If the person is sentenced to probation, a deferred judgment and sentence that includes supervision by the probation department, or any other sentence except a sentence only to jail, the person shall be ordered to comply with the recommendations as a condition or as part of the sentence imposed, at the person's own expense, unless the person is indigent. (3) The assessment required by subsection (1) of this section shall be at the expense of the person assessed, unless the person is indigent. Source: L. 2002: Entire article added with relocations, p. 1385, § 2, effective October 1. L. 2008: Entire section amended, p. 1714, § 1, effective July 1. L. 2011: (1) amended, (HB 111200), ch. 158, p. 544, § 1, effective August 10. Editor's note: This section is similar to former § 16-11.5-103 as it existed prior to 2002. 18-1.3-210. Counseling or treatment for alcohol or drug abuse or substance use disorder. (1) In any case in which treatment or counseling for alcohol or drug abuse or a substance use disorder is authorized in connection with a deferred prosecution, deferred judgment and sentence, or probation, the court may require the defendant to obtain counseling or treatment for the condition. If the court orders the counseling or treatment, the court shall order that the counseling or treatment is obtained from a treatment facility or person approved by the office of behavioral health in the department of human services, established in article 80 of title 27, unless the court makes a finding that counseling or treatment in another facility or with another person is warranted. If the defendant voluntarily submits himself or herself for treatment or counseling, the district attorney and the court may consider his or her willingness to correct his or her condition as a basis for granting deferred prosecution or deferred judgment and sentence. Colorado Revised Statutes 2019 Page 89 of 695 Uncertified Printout (2) Notwithstanding the provisions of subsection (1) of this section, in any case in which treatment or counseling for alcohol or drug abuse or a substance use disorder is authorized and ordered by the court in connection with a deferred prosecution, deferred judgment and sentence, or probation for an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), the court shall order that the counseling or treatment is obtained from a treatment facility or person approved by the office of behavioral health in the department of human services, established in article 80 of title 27. Source: L. 2002: Entire article added with relocations, p. 1385, § 2, effective October 1. L. 2008: Entire section amended, p. 1715, § 2, effective July 1. L. 2010: Entire section amended, (SB 10-175), ch. 188, p. 785, § 29, effective April 29. L. 2017: Entire section amended, (SB 17242), ch. 263, p. 1305, § 139, effective May 25. Editor's note: This section is similar to former § 16-7-402 as it existed prior to 2002. Cross references: (1) For the duties of the office of behavioral health in the department of human services concerning alcohol and drug abuse or substance use disorders, see article 80 of title 27. (2) For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. 18-1.3-211. Sentencing of felons - parole of felons - treatment and testing based upon assessment required. (1) Each person sentenced by the court for a felony committed on or after July 1, 1992, is required, as a part of any sentence to probation, community corrections, or incarceration with the department of corrections, to undergo periodic testing and treatment for substance abuse that is appropriate to the felon based upon the recommendations of the assessment made pursuant to section 18-1.3-209, or based upon any subsequent recommendations by the department of corrections, the judicial department, or the division of criminal justice of the department of public safety, whichever is appropriate. Any testing or treatment must be at a facility or with a person approved by the office of behavioral health in the department of human services, established in article 80 of title 27, and at the felon's own expense, unless he or she is indigent. (2) Each person placed on parole by the state board of parole on or after July 1, 1992, is required, as a condition of parole, to undergo periodic testing and treatment for substance abuse that is appropriate to the parolee based upon the recommendations of the assessment made pursuant to section 18-1.3-209 or any assessment or subsequent reassessment made regarding the parolee during his or her incarceration or any period of parole. Any testing or treatment must be at a facility or with a person approved by the office of behavioral health in the department of human services, established in article 80 of title 27, and at the parolee's own expense, unless he or she is indigent. Source: L. 2002: Entire article added with relocations, p. 1385, § 2, effective October 1. L. 2010: Entire section amended, (SB 10-175), ch. 188, p. 786, § 30, effective April 29. L. 2017: Entire section amended, (SB 17-242), ch. 263, p. 1254, § 14, effective May 25. Colorado Revised Statutes 2019 Page 90 of 695 Uncertified Printout Editor's note: This section is similar to former § 16-11.5-104 as it existed prior to 2002. Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. 18-1.3-212. Drug testing of offenders by judicial department - pilot program. The judicial department is hereby authorized and directed to develop as soon as possible a pilot program for the drug testing of persons during presentence investigation and on probation. Such program shall include testing of persons during presentence investigation and may include random drug testing when an offender is assigned to specialized treatment and rehabilitation programs. Source: L. 2002: Entire article added with relocations, p. 1386, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-102.5 as it existed prior to 2002. 18-1.3-213. Sentencing order - collateral relief - definitions. (Repealed) Source: L. 2013: Entire section added, (SB 13-123), ch. 289, p. 1550, § 12, effective May 24. L. 2017: (4)(a) amended, (HB 17-1329), ch. 381, p. 1971, § 22, effective June 6. L. 2018: Entire section repealed, (HB 18-1344), ch. 259, p. 1590, § 2, effective July 1. PART 3 COMMUNITY CORRECTIONS AND SPECIALIZED RESTITUTION AND COMMUNITY SERVICE PROGRAMS 18-1.3-301. Authority to place offenders in community corrections programs. (1) (a) Any judge of a district court may refer any offender convicted of a felony to a community corrections program unless such offender is required to be sentenced pursuant to section 18-1.3406 (1) or a sentencing provision that requires a sentence to the department of corrections. If an offender who is sentenced pursuant to section 18-1.3-406 (1) has such sentence modified upon the finding of unusual and extenuating circumstances pursuant to such section, such offender may be referred to a community corrections program if such offender is otherwise eligible for such program and is approved for placement pursuant to section 17-27-103 (5), C.R.S., and section 17-27-104 (3), C.R.S. For the purposes of this article, persons sentenced pursuant to the provisions of sections 19-2-908 (1)(a)(I) and (1)(c)(I)(B) and 19-2-910 (2), C.R.S., shall be deemed to be offenders. (b) In making a direct sentence to a community corrections program, the sentencing court may impose a sentence to community corrections which includes terms, lengths, and conditions pursuant to section 18-1.3-401. The sentencing court may also refer any offender to a community corrections program as a condition of probation pursuant to section 18-1.3-202. Any placement of offenders referred as a direct sentence or as a condition of probation shall be subject to approval pursuant to section 17-27-103 (5), C.R.S., and section 17-27-104 (3), C.R.S. Colorado Revised Statutes 2019 Page 91 of 695 Uncertified Printout (b.5) As a condition of every placement in a community corrections program, the court shall require the offender, as a condition of placement, to execute or subscribe a written prior waiver of extradition stating that the offender consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that the offender is arrested in another state upon an allegation that the offender has violated the terms of his or her community corrections placement, and acknowledging that the offender shall not be admitted to bail in any other state pending extradition to this state. (c) A probation officer, in making a presentence report to the court pursuant to section 16-11-102, C.R.S., or in making a report to the court after a probation violation, may recommend the utilization of a community corrections program in sentencing or resentencing an offender. (d) If an offender is rejected by a community corrections board or a community corrections program before placement in a program, the court shall promptly resentence the offender. If a sentence to the department of corrections was imposed upon the offender prior to the referral of the offender to community corrections, the resentence shall not exceed the sentence which was originally imposed upon the offender. (e) If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender's sentence does not exceed the sentence which was originally imposed upon the offender. (f) The probation department of the judicial district in which a community corrections program is located shall have jurisdiction over all offenders sentenced directly to a community corrections program. Such probation department shall initiate arrest warrants, process reports or other official documents regarding offenders at the direction of the court, coordinate with community corrections boards and community corrections programs, review offender supervision and treatment, authorize offender transfers between residential and nonresidential phases of placement, and carry out such other duties as the court directs. (g) The sentencing court may make appropriate orders for the detention, transfer, or resentencing of any offender whose placement in a community corrections program is terminated pursuant to section 17-27-103 (7), C.R.S., or section 17-27-104 (5), C.R.S. As to any offender held pursuant to section 17-27-104 (6), C.R.S., in a jail operated by a unit of local government in a county other than where the offender's original conviction occurred, the sentencing court shall order the transfer of the offender to the jail of the county where the original conviction occurred as soon as possible. The sentencing court is not required to provide the offender with an evidentiary hearing pertaining to the rejection of placement in a community corrections program prior to resentencing. (g.5) Notwithstanding any other provision of law to the contrary, if an offender is terminated or rejected from a community corrections program after having been sentenced to the program for a level 4 drug felony, the court shall conduct a resentencing hearing in order to comply with each exhaustion of remedy provision in section 18-1.3-104.5 or shall make written findings regarding resentencing after consideration of all the information provided to the court pursuant to section 18-1.3-104.5 (2)(c). Nothing in this section requires that a community corrections program accept or maintain an offender who has been terminated from a community corrections program. Colorado Revised Statutes 2019 Page 92 of 695 Uncertified Printout (h) (I) The sentencing court shall have the authority to modify the sentence of an offender who has been directly sentenced to a community corrections program in the same manner as if the offender had been placed on probation. (II) A defendant who successfully completes the residential phase of a community corrections sentence, has paid the costs of the residential program in full, and is being supervised on nonresidential status at either a minimum or administrative level is eligible for consideration for early termination of his or her community corrections sentence by the court. (III) When the defendant has met the eligibility criteria enumerated in subparagraph (II) of this paragraph (h), the defendant's probation officer shall submit a petition for early termination of sentence to the court and notify the district attorney and the defendant. (IV) If victim notification is required, the probation officer shall provide victim notification pursuant to part 3 of article 4.1 of title 24, C.R.S. (V) In determining whether to grant or deny the petition, the court may consider the following factors: (A) The defendant's assessed risk of reoffense; (B) Victim input, if any; (C) The defendant's compliance with the terms and conditions of the sentence or community corrections program; (D) Completion of any treatment required by the court or community corrections program; and (E) Other factors deemed relevant by the court. (VI) The fact that the defendant owes restitution, costs, fees, fines, or surcharges shall not prohibit the court from granting the motion for early termination if the court finds the motion otherwise appropriate. (i) (I) An offender sentenced directly to a community corrections program by the sentencing court pursuant to this subsection (1) shall be eligible for time credit deductions from the offender's sentence not to exceed ten days for each month of placement upon a demonstration to the program administrator by the offender that the offender has made consistent progress in the following categories: (A) Maintenance of employment, education, or training, including attendance, promptness, performance, cooperation, care of materials, and safety; (B) Development and maintenance of positive social and domestic relations; (C) Compliance with rules, regulations, and requirements of residential or nonresidential program placement; (D) Completion and compliance with components of the individualized program plan; and (E) Demonstration of financial responsibility and accountability. (II) The administrator of each community corrections program shall develop objective standards for measuring progress in the categories listed in subparagraph (I) of this paragraph (i), shall apply such standards consistently to evaluations of all such offenders, and shall develop procedures for recommending the award of time credits to such offenders. (III) The administrator of each community corrections program shall review the performance record of each offender directly sentenced to such program. Such review shall be conducted at intervals to be determined by each program administrator. Such reviews shall be conducted at least once every six months, but may be conducted at more frequent intervals as Colorado Revised Statutes 2019 Page 93 of 695 Uncertified Printout determined by the program administrator. If the program administrator determines that the offender engaged in criminal activity during the time period for which the time credits were granted, the program administrator may withdraw the time credits granted during such period. Prior to the time of the offender's release, the program administrator shall submit to the sentencing court the time credit deductions granted, withdrawn, or restored consistent with the provisions of this paragraph (i). Such time credit deductions shall be submitted on standardized forms prepared by the division of criminal justice of the department of public safety that include verification by the program administrator that the time credit deductions are true and accurate. The sentencing court shall certify such time credit deductions as part of the offender's permanent record. Any time credits authorized under this paragraph (i) shall vest upon certification of time credit deductions by the sentencing court at the time of the offender's release from the program. (IV) An offender shall not be credited with more than one-half the allowable time credits for any month or portion thereof unless the offender was employed, was unable to be employed due to a disability waiver, or was participating in training, education, or treatment programs which precluded the ability to remain employed. This subparagraph (IV) shall not apply to those offenders excused from such employment or training by the program administrator or for medical reasons. (V) No time credit deductions shall be granted to any offender for time spent in jail, whether awaiting sentencing, placement in the program, disciplinary action, or as a result of a subsequent arrest, unless such time spent in jail was a prearranged component of the offender's individualized program plan and the offender has made consistent progress in the categories listed in subparagraph (I) of this paragraph (i). (VI) (Deleted by amendment, L. 2011, (SB 11-254), ch. 274, p. 1236, § 1, effective June 2, 2011.) (j) Except as otherwise provided in paragraph (k) of this subsection (1), any offender sentenced to the department of corrections subsequent to placement in a community corrections program is entitled to credit against the term of confinement as described in section 17-27-104 (9), C.R.S. The court shall make a finding of the amount of such time credits and include such finding in the mittimus that orders the offender to be placed in the custody of the department of corrections. The department of corrections shall apply credits for residential and nonresidential time completed in a community corrections program in the same manner as credits for time served in a department of corrections facility. (k) Any offender who escapes from a residential community corrections program or who absconds from a nonresidential community corrections program shall forfeit any time credit deductions earned pursuant to paragraph (i) of this subsection (1) and shall not be credited with any time on escape or absconder status. Within thirty-five days after an offender's escape or abscondment, the program administrator shall submit to the sentencing court a statement on the form described in subparagraph (III) of paragraph (i) of this subsection (1) of the time credit deductions that would have been earned by the offender. (2) (a) (I) Initial referral. The executive director of the department of corrections may transfer any offender who is eligible pursuant to this subsection (2) to a community corrections program if such offender is accepted for placement by a community corrections board pursuant to section 17-27-103, and a community corrections program pursuant to section 17-27-104. (II) When the executive director makes a referral or subsequent referral request, the referral packet must include the following related to the offender: Colorado Revised Statutes 2019 Page 94 of 695 Uncertified Printout (A) A current risk and needs assessment that was administered in the last twelve months; (B) Projected release dates; (C) Prior supervision outcomes; (D) Institutional programming recommendations including participation and completion information; (E) A verified parole plan or community plan; (F) A victim statement, if applicable; (G) An offender statement, if submitted; (H) The parole board action sheet, if applicable; (I) A recommendation or the reason why placement is or is not recommended from the case manager for the community placement based on an individualized review that considers risk, institutional conduct, and responsivity factors; (J) The number of prior referrals; (K) A mental health assessment, if available; (L) A substance use disorder assessment, if available; (M) A sex offender assessment, if applicable; and (N) The specific referral being requested. (b) Unless the offender has an active felony warrant or detainer or has refused community placement, the executive director of the department of corrections shall refer an offender who has displayed acceptable institutional behavior for placement in a community corrections program according to the following timeline: (I) Repealed. (II) No more than sixteen months prior to the offender's parole eligibility date for any offender who is not serving a sentence for an offense referred to in section 18-1.3-406; and (III) No more than one hundred eighty days prior to the parole eligibility date for any other offender not described in subsection (2)(b)(II) of this section. (c) Prior to placement of an offender in any community corrections program, the executive director of the department of corrections shall give the first right to refuse placement of such offender to the community corrections board and community corrections programs in the community where the offender intends to reside after release from custody of the department of corrections or parole by the state board of parole; except that the first right to refuse does not apply if the executive director seeks to place the offender in a specialized community corrections program or the offender requests a specific community corrections program placement, subject to acceptance by the community corrections board pursuant to section 17-27-103 and the community corrections program pursuant to section 17-27-104. (d) As to any offender held in a county jail pursuant to section 17-27-104 (6), the executive director of the department of corrections shall order transfer of such offender to a facility of the department of corrections as soon as possible. (e) Subsequent referrals. (I) For an offender who is serving a sentence for a class 1 or 2 felony that constitutes a crime of violence under section 18-1.3-406, excluding escape, and whose parole hearing has been deferred for at least thirty-six months, the executive director of the department of corrections shall not refer the offender for placement in community corrections earlier than six months prior to the date of the offender's second or any subsequent parole hearing. Colorado Revised Statutes 2019 Page 95 of 695 Uncertified Printout (II) (A) When an offender is denied placement in a community corrections program, the executive director shall make a subsequent referral for that offender who is eligible pursuant to subsection (2)(e)(II)(B) of this section no sooner than six months after the denial and no later than twelve months after the denial unless the offender is subject to section 17-2-201 (4)(a). (B) An offender is eligible for a subsequent referral if he or she has had no class I code of penal discipline violations in the last twelve months, the offender does not have a consecutive misdemeanor sentence to serve, the offender does not have an immigration and customs enforcement detainer, the offender does not have pending felony charges, or the offender does not have an extraditable warrant. (III) When an offender refuses placement in a community corrections program, the executive director may make a subsequent referral for the offender, if eligible pursuant to subsection (2)(e)(II)(B) of this section, after the offender informs the executive director that the circumstance that formed the basis for the refusal has changed or resolved. (3) The state board of parole may refer any parolee for placement in a community corrections program. Such placement, if approved by the community corrections board pursuant to section 17-27-103, C.R.S., and the community corrections program pursuant to section 17-27104, C.R.S., may be made a condition of release on parole or as a modification of the conditions of an offender's parole after release or upon temporary revocation of parole pursuant to section 17-2-103 (11), C.R.S. (4) (a) District courts, county courts, and other local criminal justice officials may enter into agreements with community corrections programs which include the use of such programs to supervise offenders awaiting trial for felony or misdemeanor offenses, offenders convicted of misdemeanors, or offenders under deferred judgments. Such agreements are subject to review and approval by the community corrections board of the jurisdiction in which any community corrections program making such agreement is located. Any such use of a community corrections program may be supported with funding from local governments, public or private grants, offender fees, and other sources other than the state general fund. (b) A district court, county court, and any other criminal justice official may enter into agreements with community corrections programs that provide residential drug treatment, for the placement and supervision of offenders as a term and condition of probation when assessed treatment need levels indicate that residential drug treatment is necessary and appropriate. The agreement is subject to review and approval by the community corrections board in the jurisdiction where a community corrections program is located. A community corrections program used pursuant to this paragraph (b) may receive funds from the correctional treatment cash fund, as well as local funding, public or private grants, or offender fees. Source: L. 2002: Entire article added with relocations, p. 1386, § 2, effective October 1. L. 2003: (1)(a) amended, p. 1429, § 14, effective April 29. L. 2006: (1)(b.5) added, p. 342, § 6, effective July 1. L. 2011: (1)(h), IP(1)(i)(I), (1)(i)(IV), (1)(i)(VI), (1)(j), and (1)(k) amended, (SB 11-254), ch. 274, pp. 1237, 1236, §§ 3, 1, effective June 2; (2)(b) amended and (2)(e) added, (HB 11-1085), ch. 48, p. 124, § 1, effective August 10. L. 2012: (1)(k) amended, (SB 12-175), ch. 208, p. 865, § 109, effective July 1. L. 2013: (1)(g.5) added and (4) amended, (SB 13-250), ch. 333, p. 1902, § 3, effective October 1. L. 2016: (4)(b) amended, (HB 16-1278), ch. 188, p. 664, § 2, effective May 20. L. 2017: (1)(g.5) amended, (SB 17-294), ch. 264, p. 1393, § 38, Colorado Revised Statutes 2019 Page 96 of 695 Uncertified Printout effective May 25. L. 2018: (2) amended, (HB 18-1251), ch. 272, p. 1670, § 3, effective August 8. Editor's note: This section is similar to former § 17-27-105 as it existed prior to 2002. 18-1.3-302. Legislative declaration - offenders who may be sentenced to the specialized restitution and community service program. (1) The general assembly hereby finds that: (a) The taxpayer costs to incarcerate nonviolent offenders, most of whom have committed property-related offenses, usually outbalances the need to incarcerate such persons to protect the public's safety and that imprisonment generally renders offenders less able to compensate their victims. Therefore, the general assembly declares that the purpose for enacting this article regarding specialized restitution and community service programs is to increase the cost-efficiency and the effectiveness of Colorado corrections. This article authorizes the establishment of an intermediate sanction whereby nonviolent offenders, at less taxpayer cost than imprisonment, would be required to work under strict supervision in a highly structured program in order to compensate their victims and society for the damage they have caused; and (b) Using incarceration as a routine punishment for nonviolent offenders, either upon sentencing or upon the revocation of parole or probation, punishes Colorado's taxpayers. The general assembly finds that limiting the pool of offenders eligible for the specialized restitution and community service program to first-time offenders unreasonably restricts entrance into the program and that the level of supervision mandated for repeat offenders by this article is adequate to ensure public safety from such offenders. The general assembly further finds that the vast majority of repeat offenders do not possess the requisite skills to obtain legitimate employment and that the specialized restitution and community service program will train such repeat offenders for legitimate employment. Therefore, it is in the best interests of the people of the state of Colorado to allow nonviolent repeat offenders and offenders with technical violations of parole or probation into such program. (2) Any offender shall be eligible to be placed in a specialized restitution and community service program if: (a) The offender is not eligible for probation pursuant to section 18-1.3-201, and has been convicted of an offense other than a crime of violence, as described in section 18-1.3-406 (2)(a), or any felony offense committed against a child set forth in articles 3, 6, and 7 of this title, or an offense that requires incarceration or imprisonment in the department of corrections or community corrections, or any sexual offense as defined in section 18-1.3-1003; and (b) (I) A determination is made by the court that the offender would be incarcerated, either pursuant to section 18-1.3-104 (1)(b) or pursuant to a probation revocation, if such offender is not placed in the specialized restitution and community service program; or (II) A determination is made by the parole board that the offender would be incarcerated pursuant to a parole violation. (3) Prior to sentencing an eligible offender to a specialized restitution and community service program pursuant to this section, the court shall make the determinations required in subsection (2) of this section and such offender must have been accepted by both of the following: Colorado Revised Statutes 2019 Page 97 of 695 Uncertified Printout (a) The provider of the specialized restitution and community service program in which it is proposed that the offender be placed; and (b) The community corrections board, as defined in section 17-27-102 (2), C.R.S., of the community in which the program is located. (4) If an eligible offender is accepted by a provider pursuant to subsection (3) of this section, the court may sentence an offender to pay restitution or perform community service, or both, in an amount commensurate with the seriousness of the crime and to the custody of any specialized restitution and community service program adopted pursuant to this section or article 27.9 of title 17, C.R.S. Notwithstanding any other provision of law to the contrary, a minimum of full restitution may be imposed in an amount that exceeds any actual losses or damages suffered by a victim of the crime. An offender shall be supervised in accordance with and subject to the provisions of article 27 of title 17, C.R.S. (5) The parole board may place parole violators who meet the eligibility criteria of subsection (2) of this section and who have been accepted pursuant to paragraphs (a) and (b) of subsection (3) of this section in specialized restitution and community service programs. Such parole violators shall be supervised in accordance with and subject to the provisions of article 27 of title 17, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1390, § 2, effective October 1. L. 2003: (2)(a) amended, p. 1430, § 15, effective April 29. Editor's note: This section is similar to former §§ 17-27.9-101 and 17-27.9-103 as they existed prior to 2002. 18-1.3-303. Sentencing order - collateral relief - definitions. (Repealed) Source: L. 2013: Entire section added, (SB 13-123), ch. 289, p. 1553, § 13, effective May 24. L. 2017: (4)(a) amended, (HB 17-1329), ch. 381, p. 1971, § 23, effective June 6. L. 2018: Entire section repealed, (HB 18-1344), ch. 259, p. 1590, § 2, effective July 1. PART 4 SENTENCES TO IMPRISONMENT 18-1.3-401. Felonies classified - presumptive penalties. (1) (a) (I) As to any person sentenced for a felony committed after July 1, 1979, and before July 1, 1984, felonies are divided into five classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon conviction: Class Presumptive Range 1 2 3 4 Life imprisonment or death Eight to twelve years plus one year of parole Four to eight years plus one year of parole Two to four years plus one year of parole Colorado Revised Statutes 2019 Page 98 of 695 Uncertified Printout 5 One to two years plus one year of parole (II) As to any person sentenced for a felony committed on or after July 1, 1984, and before July 1, 1985, felonies are divided into five classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon conviction: Class Presumptive Range 1 Life imprisonment or death 2 Eight to twelve years 3 Four to eight years 4 Two to four years 5 One to two years (III) (A) As to any person sentenced for a felony committed on or after July 1, 1985, except as otherwise provided in subsection (1)(a)(III)(E) or (1)(a)(III)(F) of this section, in addition to, or in lieu of, any sentence to imprisonment, probation, community corrections, or work release, a fine within the following presumptive ranges may be imposed for the specified classes of felonies: Class Minimum Sentence Maximum Sentence 1 No fine No fine 2 Five thousand dollars One million dollars 3 Three thousand dollars Seven hundred fifty thousand dollars 4 Two thousand dollars Five hundred thousand dollars 5 One thousand dollars One hundred thousand dollars 6 One thousand dollars One hundred thousand dollars (A.5) Notwithstanding any provision of law to the contrary, any person who attempts to commit, conspires to commit, or commits against an elderly person any felony set forth in part 4 of article 4 of this title, part 1, 2, 3, or 5 of article 5 of this title, article 5.5 of this title, or section 11-51-603, C.R.S., shall be required to pay a mandatory and substantial fine within the limits permitted by law. However, all moneys collected from the offender shall be applied in the following order: Costs for crime victim compensation fund pursuant to section 24-4.1-119, C.R.S.; surcharges for victims and witnesses assistance and law enforcement fund pursuant to section 24-4.2-104, C.R.S.; restitution; time payment fee; late fees; and any other fines, fees, or surcharges. For purposes of this sub-subparagraph (A.5), an "elderly person" or "elderly victim" means a person sixty years of age or older. (B) Failure to pay a fine imposed pursuant to this subparagraph (III) is grounds for revocation of probation or revocation of a sentence to community corrections, assuming the defendant's ability to pay. If such a revocation occurs, the court may impose the maximum sentence allowable in the given sentencing ranges. (C) Each judicial district shall have at least one clerk who shall collect and administer the fines imposed under this subparagraph (III) and under section 18-1.3-501 in accordance with the provisions of sub-subparagraph (D) of this subparagraph (III). (D) All fines collected pursuant to this subparagraph (III) shall be deposited in the fines collection cash fund, which fund is hereby created. The general assembly shall make annual Colorado Revised Statutes 2019 Page 99 of 695 Uncertified Printout appropriations out of such fund for administrative and personnel costs incurred in the collection and administration of said fines. All unexpended balances shall revert to the general fund at the end of each fiscal year. (E) Notwithstanding the provisions of sub-subparagraph (A) of this subparagraph (III), a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced shall not be eligible to receive a fine in lieu of any sentence to imprisonment, community corrections, or work release but shall be sentenced to at least the minimum sentence specified in subparagraph (V) of this paragraph (a) and may receive a fine in addition to said sentence. (F) On and after June 6, 2018, if a person is convicted of second degree burglary as described in section 18-4-203 (2)(c), in addition to any other sentence, the court may require the person to pay a fine of at least five thousand dollars but not exceeding seven hundred fifty thousand dollars. (IV) As to any person sentenced for a felony committed on or after July 1, 1985, but prior to July 1, 1993, felonies are divided into six classes which are distinguished from one another by the following presumptive ranges of penalties which are authorized upon conviction: Class Minimum Sentence Maximum Sentence 1 Life imprisonment Death 2 Eight years imprisonment Twenty-four years imprisonment 3 Four years imprisonment Sixteen years imprisonment 4 Two years imprisonment Eight years imprisonment 5 One year imprisonment Four years imprisonment 6 One year imprisonment Two years imprisonment (V) (A) Except as otherwise provided in section 18-1.3-401.5 for offenses contained in article 18 of this title 18 committed on or after October 1, 2013, as to any person sentenced for a felony committed on or after July 1, 1993, and before July 1, 2018, felonies are divided into six classes that are distinguished from one another by the following presumptive ranges of penalties that are authorized upon conviction: Class Minimum Sentence Maximum Sentence Mandatory Period of Parole 1 2 Death Twenty-four years imprisonment Twelve years imprisonment Six years imprisonment Three years imprisonment Eighteen months imprisonment None Five years 3 4 5 6 Life imprisonment Eight years imprisonment Four years imprisonment Two years imprisonment One year imprisonment One year imprisonment Colorado Revised Statutes 2019 Page 100 of 695 Five years Three years Two years One year Uncertified Printout (A.1) As to any person sentenced for a felony committed on or after July 1, 2018, felonies are divided into six classes that are distinguished from one another by the following presumptive ranges of penalties that are authorized upon conviction: Class Minimum Sentence Maximum Sentence Mandatory Period of Parole 1 2 Death Twenty-four years imprisonment None Five years if the offense is a crime of violence as described in section 18-1.3-406 (2) Three years if the offense is not a crime of violence as described in section 18-1.3-406 (2) Three years Life imprisonment Eight years imprisonment 3 Four years Twelve years imprisonment imprisonment 4 Two years Six years Three years imprisonment imprisonment 5 One year Three years Two years imprisonment imprisonment 6 One year Eighteen months One year imprisonment imprisonment (B) Any person who is paroled pursuant to section 17-22.5-403, or any person who is not paroled and is discharged pursuant to law, shall be subject to the mandatory period of parole established pursuant to subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section. Such mandatory period of parole may not be waived by the offender or waived or suspended by the court and shall be subject to the provisions of section 17-22.5-403 (6), which permits the state board of parole to discharge the offender at any time during the term of parole upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision. (C) Notwithstanding subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section, the mandatory period of parole for a person convicted of a felony offense committed prior to July 1, 1996, pursuant to part 4 of article 3 of this title 18, or part 3 of article 6 of this title 18, shall be five years. Notwithstanding subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section, and except as otherwise provided in subsection (1)(a)(V)(C.5) of this section, the period of parole for a person convicted of a felony offense committed on or after July 1, 1996, but prior to July 1, 2002, pursuant to part 4 of article 3 of this title, or part 3 of article 6 of this title, shall be set by the state board of parole pursuant to section 17-2-201 (5)(a.5), but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court. (C.3) (Deleted by amendment, L. 2002, p. 124, 1, effective March 26, 2002.) (C.5) Notwithstanding the provisions of subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section, any person sentenced for a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, shall be sentenced pursuant to the provisions of part 10 of this article 1.3. Colorado Revised Statutes 2019 Page 101 of 695 Uncertified Printout (C.7) Any person sentenced for a felony committed on or after July 1, 2002, involving unlawful sexual behavior, as defined in section 16-22-102 (9), or for a felony, committed on or after July 1, 2002, the underlying factual basis of which involved unlawful sexual behavior, and who is not subject to the provisions of part 10 of this article 1.3, shall be subject to the mandatory period of parole specified in subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section. (D) The mandatory period of parole imposed pursuant to subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section shall commence immediately upon the discharge of an offender from imprisonment in the custody of the department of corrections. If the offender has been granted release to parole supervision by the state board of parole, the offender shall be deemed to have discharged the offender's sentence to imprisonment provided for in subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section in the same manner as if such sentence were discharged pursuant to law; except that the sentence to imprisonment for any person sentenced as a sex offender pursuant to part 10 of this article 1.3 shall not be deemed discharged on release of said person on parole. When an offender is released by the state board of parole or released because the offender's sentence was discharged pursuant to law, the mandatory period of parole shall be served by such offender. An offender sentenced for nonviolent felony offenses, as defined in section 17-22.5-405 (5), may receive earned time pursuant to section 17-22.5-405, while serving a mandatory parole period in accordance with this section, but not while such offender is reincarcerated after a revocation of the mandatory period of parole. An offender who is sentenced for a felony committed on or after July 1, 1993, and paroled on or after January 1, 2009, shall be eligible to receive any earned time while on parole or after reparole following a parole revocation. The offender shall not be eligible for earned time while the offender is reincarcerated after revocation of the mandatory period of parole pursuant to this subsection (1)(a)(V). (E) If an offender is sentenced consecutively for the commission of two or more felony offenses pursuant to subsection (1)(a)(V)(A) or (1)(a)(V)(A.1) of this section, the mandatory period of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted. (VI) Any person sentenced for a class 2, 3, 4, or 5 felony, or a class 6 felony that is the offender's second or subsequent felony offense, committed on or after July 1, 1998, regardless of the length of the person's sentence to incarceration and the mandatory period of parole, shall not be deemed to have fully discharged his or her sentence until said person has either completed or been discharged by the state board of parole from the mandatory period of parole imposed pursuant to subparagraph (V) of this paragraph (a). (b) (I) Except as provided in subsection (6) and subsection (8) of this section and in section 18-1.3-804, a person who has been convicted of a class 2, class 3, class 4, class 5, or class 6 felony shall be punished by the imposition of a definite sentence which is within the presumptive ranges set forth in paragraph (a) of this subsection (1). In imposing the sentence within the presumptive range, the court shall consider the nature and elements of the offense, the character and record of the offender, and all aggravating or mitigating circumstances surrounding the offense and the offender. The prediction of the potential for future criminality by a particular defendant, unless based on prior criminal conduct, shall not be considered in determining the length of sentence to be imposed. (II) As to any person sentenced for a felony committed on or after July 1, 1985, a person may be sentenced to imprisonment as described in subparagraph (I) of this paragraph (b) or to Colorado Revised Statutes 2019 Page 102 of 695 Uncertified Printout pay a fine that is within the presumptive ranges set forth in subparagraph (III) of paragraph (a) of this subsection (1) or to both such fine and imprisonment; except that any person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced shall not be eligible to receive a fine in lieu of any sentence to imprisonment as described in subparagraph (I) of this paragraph (b) but shall be sentenced to at least the minimum sentence specified in subparagraph (V) of paragraph (a) of this subsection (1) and may receive a fine in addition to said sentence. (II.5) Notwithstanding anything in this section to the contrary, any person sentenced for a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, may be sentenced to pay a fine in addition to, but not instead of, a sentence for imprisonment or probation pursuant to section 18-1.3-1004. (III) Notwithstanding anything in this section to the contrary, as to any person sentenced for a crime of violence, as defined in section 18-1.3-406, committed on or after July 1, 1985, a person may be sentenced to pay a fine in addition to, but not instead of, a sentence for imprisonment. (IV) If a person is convicted of assault in the first degree pursuant to section 18-3-202 or assault in the second degree pursuant to section 18-3-203 (1)(c.5), and the victim is a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, as defined in section 18-1.3-501 (1.5)(b), notwithstanding the provisions of subparagraph (III) of paragraph (a) of this subsection (1) and subparagraph (II) of this paragraph (b), the court shall sentence the person to the department of corrections. In addition to a term of imprisonment, the court may impose a fine on the person pursuant to subparagraph (III) of paragraph (a) of this subsection (1). (c) Except as otherwise provided by statute, felonies are punishable by imprisonment in any correctional facility under the supervision of the executive director of the department of corrections. Nothing in this section shall limit the authority granted in part 8 of this article to increase sentences for habitual criminals. Nothing in this section shall limit the authority granted in parts 9 and 10 of this article to sentence sex offenders to the department of corrections or to sentence sex offenders to probation for an indeterminate term. Nothing in this section shall limit the authority granted in section 18-1.3-804 for increased sentences for habitual burglary offenders. (2) (a) A corporation which has been found guilty of a class 2 or class 3 felony shall be subject to imposition of a fine of not less than five thousand dollars nor more than fifty thousand dollars. A corporation which has been found guilty of a class 4, class 5, or class 6 felony shall be subject to imposition of a fine of not less than one thousand dollars nor more than thirty thousand dollars. (b) A corporation which has been found guilty of a class 2, class 3, class 4, class 5, or class 6 felony, for an act committed on or after July 1, 1985, shall be subject to imposition of a fine which is within the presumptive ranges set forth in subparagraph (III) of paragraph (a) of subsection (1) of this section. (3) Every person convicted of a felony, whether defined as such within or outside this code, shall be disqualified from holding any office of honor, trust, or profit under the laws of this state or from practicing as an attorney in any of the courts of this state during the actual time of confinement or commitment to imprisonment or release from actual confinement on conditions of probation. Upon his or her discharge after completion of service of his or her sentence or after Colorado Revised Statutes 2019 Page 103 of 695 Uncertified Printout service under probation, the right to hold any office of honor, trust, or profit shall be restored, except as provided in section 4 of article XII of the state constitution. (4) (a) A person who has been convicted of a class 1 felony shall be punished by life imprisonment in the department of corrections unless a proceeding held to determine sentence according to the procedure set forth in section 18-1.3-1201, 18-1.3-1302, or 18-1.4-102, results in a verdict that requires imposition of the death penalty, in which event such person shall be sentenced to death. As to any person sentenced for a class 1 felony, for an act committed on or after July 1, 1985, and before July 1, 1990, life imprisonment shall mean imprisonment without the possibility of parole for forty calendar years. As to any person sentenced for a class 1 felony, for an act committed on or after July 1, 1990, life imprisonment shall mean imprisonment without the possibility of parole. (b) (I) Notwithstanding the provisions of sub-subparagraph (A) of subparagraph (V) of paragraph (a) of subsection (1) of this section and notwithstanding the provisions of paragraph (a) of this subsection (4), as to a person who is convicted as an adult of a class 1 felony following direct filing of an information or indictment in the district court pursuant to section 19-2-517, C.R.S., or transfer of proceedings to the district court pursuant to section 19-2-518, C.R.S., the district court judge shall sentence the person to a term of life imprisonment with the possibility of parole after serving a period of forty years, less any earned time granted pursuant to section 17-22.5-405, C.R.S. Regardless of whether the state board of parole releases the person on parole, the person shall remain in the legal custody of the department of corrections for the remainder of the person's life and shall not be discharged. (II) The provisions of this paragraph (b) shall apply to persons sentenced for offenses committed on or after July 1, 2006. (c) (I) Notwithstanding the provisions of sub-subparagraph (A) of subparagraph (V) of paragraph (a) of subsection (1) of this section and notwithstanding the provisions of paragraphs (a) and (b) of this subsection (4), as to a person who is convicted as an adult of a class 1 felony following a direct filing of an information or indictment in the district court pursuant to section 19-2-517, C.R.S., or transfer of proceedings to the district court pursuant to section 19-2-518, C.R.S., or pursuant to either of these sections as they existed prior to their repeal and reenactment, with amendments, by House Bill 96-1005, which felony was committed on or after July 1, 1990, and before July 1, 2006, and who received a sentence to life imprisonment without the possibility of parole: (A) If the felony for which the person was convicted is murder in the first degree, as described in section 18-3-102 (1)(b), then the district court, after holding a hearing, may sentence the person to a determinate sentence within the range of thirty to fifty years in prison, less any earned time granted pursuant to section 17-22.5-405, C.R.S., if, after considering the factors described in subparagraph (II) of this paragraph (c), the district court finds extraordinary mitigating circumstances. Alternatively, the court may sentence the person to a term of life imprisonment with the possibility of parole after serving forty years, less any earned time granted pursuant to section 17-22.5-405, C.R.S. (B) If the felony for which the person was convicted is not murder in the first degree, as described in section 18-3-102 (1)(b), then the district court shall sentence the person to a term of life imprisonment with the possibility of parole after serving forty years, less any earned time granted pursuant to section 17-22.5-405, C.R.S. Colorado Revised Statutes 2019 Page 104 of 695 Uncertified Printout (II) In determining whether extraordinary mitigating circumstances exist, the court shall conduct a sentencing hearing, make factual findings to support its decision, and consider relevant evidence presented by either party regarding the following factors: (A) The diminished culpability and heightened capacity for change associated with youth; (B) The offender's developmental maturity and chronological age at the time of the offense and the hallmark features of such age, including but not limited to immaturity, impetuosity, and inability to appreciate risks and consequences; (C) The offender's capacity for change and potential for rehabilitation, including any evidence of the offender's efforts toward, or amenability to, rehabilitation; (D) The impact of the offense upon any victim or victim's immediate family; and (E) Any other factors that the court deems relevant to its decision, so long as the court identifies such factors on the record. (III) If a person is sentenced to a determinate range of thirty to fifty years in prison pursuant to this paragraph (c), the court shall impose a mandatory period of ten years parole. (IV) If a person is sentenced to a term of life imprisonment with the possibility of parole after serving forty years, less any earned time granted pursuant to section 17-22.5-405, C.R.S., regardless of whether the state board of parole releases the person on parole, the person shall remain in the legal custody of the department of corrections for the remainder of his or her life and shall not be discharged. (5) In the event the death penalty as provided for in this section is held to be unconstitutional by the Colorado supreme court or the United States supreme court, a person convicted of a crime punishable by death under the laws of this state shall be punished by life imprisonment. In such circumstance, the court which previously sentenced a person to death shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment. (6) In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense. (7) In all cases, except as provided in subsection (8) of this section, in which a sentence which is not within the presumptive range is imposed, the court shall make specific findings on the record of the case, detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive sentence. (8) (a) The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony: (I) The defendant is convicted of a crime of violence under section 18-1.3-406; Colorado Revised Statutes 2019 Page 105 of 695 Uncertified Printout (II) The defendant was on parole for another felony at the time of commission of the felony; (III) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony; (IV) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony at the time of the commission of a felony; (V) At the time of the commission of the felony, the defendant was on appeal bond following his or her conviction for a previous felony; (VI) At the time of the commission of a felony, the defendant was on probation for or on bond while awaiting sentencing following revocation of probation for a delinquent act that would have constituted a felony if committed by an adult. (b) In any case in which one or more of the extraordinary aggravating circumstances provided for in paragraph (a) of this subsection (8) exist, the provisions of subsection (7) of this section shall not apply. (c) Nothing in this subsection (8) shall preclude the court from considering aggravating circumstances other than those stated in paragraph (a) of this subsection (8) as the basis for sentencing the defendant to a term greater than the presumptive range for the felony. (d) (I) If the defendant is convicted of the class 2 or the class 3 felony of child abuse under section 18-6-401 (7)(a)(I) or (7)(a)(III), the court shall be required to sentence the defendant to the department of corrections for a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of that class felony. (II) In no case shall any defendant sentenced pursuant to subparagraph (I) of this paragraph (d) be eligible for suspension of sentence or for probation or deferred prosecution. (e) (I) If the defendant is convicted of the class 2 felony of sexual assault in the first degree under section 18-3-402 (3), commission of which offense occurs prior to November 1, 1998, the court shall be required to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of that class of felony. (II) In no case shall any defendant sentenced pursuant to subparagraph (I) of this paragraph (e) be eligible for suspension of sentence or probation. (III) As a condition of parole under section 17-2-201 (5)(e), C.R.S., a defendant sentenced pursuant to this paragraph (e) shall be required to participate in a program of mental health counseling or receive appropriate treatment to the extent that the state board of parole deems appropriate to effectuate the successful reintegration of the defendant into the community while recognizing the need for public safety. (e.5) If the defendant is convicted of the class 2 felony of sexual assault under section 18-3-402 (5) or the class 2 felony of sexual assault in the first degree under section 18-3-402 (3) as it existed prior to July 1, 2000, commission of which offense occurs on or after November 1, 1998, the court shall be required to sentence the defendant to the department of corrections for an indeterminate sentence of at least the midpoint in the presumptive range for the punishment of that class of felony up to the defendant's natural life. Colorado Revised Statutes 2019 Page 106 of 695 Uncertified Printout (f) The court may consider aggravating circumstances such as serious bodily injury caused to the victim or the use of a weapon in the commission of a crime, notwithstanding the fact that such factors constitute elements of the offense. (g) If the defendant is convicted of class 4 or class 3 felony vehicular homicide under section 18-3-106 (1)(a) or (1)(b), and while committing vehicular homicide the defendant was in immediate flight from the commission of another felony, the court shall be required to sentence the defendant to the department of corrections for a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of the class of felony vehicular homicide of which the defendant is convicted. (9) The presence of any one or more of the following sentence-enhancing circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony: (a) At the time of the commission of the felony, the defendant was charged with or was on bond for a felony in a previous case and the defendant was convicted of any felony in the previous case; (a.5) At the time of the commission of the felony, the defendant was charged with or was on bond for a delinquent act that would have constituted a felony if committed by an adult; (b) At the time of the commission of the felony, the defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony; (c) The defendant was under a deferred judgment and sentence for another felony at the time of the commission of the felony; (c.5) At the time of the commission of the felony, the defendant was on bond in a juvenile prosecution under title 19, C.R.S., for having pled guilty to a lesser delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult; (c.7) At the time of the commission of the felony, the defendant was under a deferred judgment and sentence for a delinquent act that would have constituted a felony if committed by an adult; (d) At the time of the commission of the felony, the defendant was on parole for having been adjudicated a delinquent child for an offense which would constitute a felony if committed by an adult. (10) (a) The general assembly hereby finds that certain crimes which are listed in paragraph (b) of this subsection (10) present an extraordinary risk of harm to society and therefore, in the interest of public safety, for such crimes which constitute class 3 felonies, the maximum sentence in the presumptive range shall be increased by four years; for such crimes which constitute class 4 felonies, the maximum sentence in the presumptive range shall be increased by two years; for such crimes which constitute class 5 felonies, the maximum sentence in the presumptive range shall be increased by one year; for such crimes which constitute class 6 felonies, the maximum sentence in the presumptive range shall be increased by six months. (b) Crimes that present an extraordinary risk of harm to society shall include the following: (I) to (VIII) Repealed. (IX) Aggravated robbery, as defined in section 18-4-302; (X) Child abuse, as defined in section 18-6-401; Colorado Revised Statutes 2019 Page 107 of 695 Uncertified Printout (XI) Unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance with the intent to sell, distribute, manufacture, or dispense, as defined in section 18-18-405; (XII) Any crime of violence, as defined in section 18-1.3-406; (XIII) Stalking, as described in section 18-9-111 (4), as it existed prior to August 11, 2010, or section 18-3-602; (XIV) Sale or distribution of materials to manufacture controlled substances, as described in section 18-18-412.7; (XV) Felony invasion of privacy for sexual gratification, as described in section 18-3405.6; (XVI) A class 3 felony offense of human trafficking for involuntary servitude, as described in section 18-3-503; (XVII) A class 3 felony offense of human trafficking for sexual servitude, as described in section 18-3-504; and (XVIII) Assault in the second degree, as described in section 18-3-203 (1)(i). (c) Repealed. (11) When it shall appear to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be best served thereby, the court shall have the power to suspend the imposition or execution of sentence for such period and upon such terms and conditions as it may deem best; except that in no instance shall the court have the power to suspend a sentence to a term of incarceration when the defendant is sentenced pursuant to a sentencing provision that requires incarceration or imprisonment in the department of corrections, community corrections, or jail. In no instance shall a sentence be suspended if the defendant is ineligible for probation pursuant to section 18-1.3-201, except upon an express waiver being made by the sentencing court regarding a particular defendant upon recommendation of the district attorney and approval of such recommendation by an order of the sentencing court pursuant to section 18-1.3-201 (4). (12) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. (13) (a) The court, if it sentences a defendant who is convicted of any one or more of the offenses specified in paragraph (b) of this subsection (13) to incarceration, shall sentence the defendant to a term of at least the midpoint, but not more than twice the maximum, of the presumptive range authorized for the punishment of the offense of which the defendant is convicted if the court makes the following findings on the record: (I) The victim of the offense was pregnant at the time of commission of the offense; and (II) The defendant knew or reasonably should have known that the victim of the offense was pregnant. (III) (Deleted by amendment, L. 2003, p. 2163, § 3, effective July 1, 2003.) (b) The provisions of this subsection (13) shall apply to the following offenses: (I) Murder in the second degree, as described in section 18-3-103; (II) Manslaughter, as described in section 18-3-104; (III) Criminally negligent homicide, as described in section 18-3-105; (IV) Vehicular homicide, as described in section 18-3-106; (V) Assault in the first degree, as described in section 18-3-202; (VI) Assault in the second degree, as described in section 18-3-203; Colorado Revised Statutes 2019 Page 108 of 695 Uncertified Printout (VII) Vehicular assault, as described in section 18-3-205. (c) Notwithstanding any provision of this subsection (13) to the contrary, for any of the offenses specified in paragraph (b) of this subsection (13) that constitute crimes of violence, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. (14) The court may sentence a defendant to the youthful offender system created in section 18-1.3-407 if the defendant is an eligible young adult offender pursuant to section 181.3-407.5. Source: L. 2002: Entire article added with relocations, p. 1392, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (4) amended, p. 15, § 8, effective October 1. L. 2003: (1)(b)(IV), (4), (8)(d)(I), (8)(e.5), (8)(g), (10)(c), and (11) amended, pp. 1425, 1435, 1429, §§ 4, 32, 13, effective April 29; (1)(a)(VI) amended, p. 2679, § 5, effective July 1; (8)(a)(VI), (9)(a.5), (9)(c.5), and (9)(c.7) amended, p. 1431, § 18, effective July 1; (13)(a)(II) and (13)(a)(III) amended, p. 2163, § 3, effective July 1; (10)(b)(XII) and (10)(b)(XIII) amended and (10)(b)(XIV) added, p. 2387, § 3, effective July 1, 2004. L. 2004: (10)(b)(I) to (10)(b)(VIII) and (10)(c) repealed, p. 633, § 1, effective August 4. L. 2006: (4) amended, p. 1052, § 2, effective May 25. L. 2008: (1)(a)(V)(D) amended, p. 1757, § 6, effective July 1; (1)(a)(III)(A.5) amended, p. 1889, § 54, effective August 5. L. 2009: (14) added, (HB 09-1122), ch. 77, p. 280, § 4, effective October 1. L. 2010: (10)(b)(XIII) amended, (HB 10-1233), ch. 88, p. 296, § 5, effective August 11; (10)(b)(XIII) and (10)(b)(XIV) amended and (10)(b)(XV) added, (SB 10-128), ch. 415, p. 2046, § 5, effective July 1, 2012. L. 2014: IP(1)(a)(V)(A) amended, (SB 14-163), ch. 391, p. 1972, § 10, effective June 6; (10)(b)(XIV) amended and (10)(b)(XVI) and (10)(b)(XVII) added, (HB 14-1273), ch. 282, p. 1154, § 15, effective July 1; (1)(b)(IV) amended, (HB 14-1214), ch. 336, p. 1494, § 1, effective August 6. L. 2015: (1)(a)(V)(B) amended, (HB 15-1122), ch. 37, p. 92, § 7, effective March 20; (1)(b)(IV) amended, (HB 15-1303), ch. 211, p. 772, § 2, effective September 1. L. 2016: (4)(b)(I) amended and (4)(c) added, (SB 16-181), ch. 353, p. 1447, § 1, effective June 10; (10)(b)(XVI) and (10)(b)(XVII) amended and (10)(b)(XVIII) added, (HB 16-1080), ch. 327, p. 1328, § 3, effective July 1. L. 2018: (1)(a)(V) amended, (HB 18-1029), ch. 153, p. 1084, § 1, effective April 23; (1)(a)(III)(A) amended and (1)(a)(III)(F) added, (HB 18-1077), ch. 376, p. 2280, § 2, effective June 6. Editor's note: (1) This section is similar to former § 18-1-105 as it existed prior to 2002. (2) This section was amended in 2002 prior to its relocation on October 1, 2002. For that history, see the source note to § 18-1-105. (3) Amendments to subsection (10)(b)(XIII) by House Bill 10-1233 and Senate Bill 10128 were harmonized, effective July 1, 2012. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration contained in the 2003 act amending subsections (10)(b)(XII) and (10)(b)(XIII) and enacting subsection (10)(b)(XIV), see section 1 of chapter 360, Session Laws of Colorado 2003. For the legislative declaration contained in the 2003 act amending subsections (13)(a)(II) and (13)(a)(III), see section 1 of chapter 340, Session Laws of Colorado 2003. For the legislative declaration contained in the Colorado Revised Statutes 2019 Page 109 of 695 Uncertified Printout 2006 act amending subsection (4), see section 1 of chapter 228, Session Laws of Colorado 2006. For the legislative declaration in HB 15-1122, see section 1 of chapter 37, Session Laws of Colorado 2015. 18-1.3-401.5. Drug felonies classified - presumptive and aggravated penalties. (1) The provisions of this section only apply to a conviction for a drug felony offense described in article 18 of this title committed on or after October 1, 2013. For purposes of this section, "felony" means any felony or drug felony defined in the state statutes. (2) (a) For offenses committed on or after October 1, 2013, drug felonies are divided into four levels that are distinguished from one another by the ranges of penalties, which are authorized upon conviction of a drug felony: Level Presumptive Range DF1 DF2 DF3 DF4 Eight years Four years Two years Six months Level Aggravated Range Period of Parole Thirty-two years Eight years Four years One year Three years Two years One year One year Period of Parole DF2 Eight years Sixteen years Two years DF3 Four years Six years One year DF4 One year Two years One year (b) (I) As to any person sentenced for a drug felony committed on or after October 1, 2013, except as otherwise provided in subparagraph (V) of this paragraph (b) and in subsection (7) of this section, in addition to, or in lieu of, any sentence to imprisonment, probation, community corrections, or work release, a fine within the following ranges may be imposed for the specified level of drug felonies: Level Minimum Sentence Maximum Sentence DF1 Five thousand dollars One million dollars DF2 Three thousand dollars Seven hundred fifty thousand dollars DF3 Two thousand dollars Five hundred thousand dollars DF4 One thousand dollars One hundred thousand dollars (II) Failure to pay a fine imposed pursuant to this paragraph (b) is grounds for revocation of probation, community corrections, or a suspended sentence, if the defendant has the ability to pay the fine. (III) If a revocation occurs pursuant to subparagraph (II) of this paragraph (b), the court may impose any sentence legally available, subject to the provisions of section 18-1.3-104.5 (2). (IV) All fines collected pursuant to this paragraph (b) must be deposited in the fines collection fund created in section 18-1.3-401 (1)(a)(III)(D) and are subject to the provisions of that section. Colorado Revised Statutes 2019 Page 110 of 695 Uncertified Printout (V) Notwithstanding the provisions of subparagraph (I) of this paragraph (b), a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced shall not be eligible to receive a fine in lieu of any sentence to imprisonment, community corrections, or work release but shall be sentenced to at least the minimum sentence specified in paragraph (a) of this subsection (2) and may receive a fine in addition to said sentence. (3) A person who is paroled pursuant to section 17-22.5-403, C.R.S., or any person who is not paroled and is discharged pursuant to law, shall be subject to the mandatory period of parole established pursuant to paragraph (a) of subsection (2) of this section. The mandatory period of parole may not be waived by the offender or waived or suspended by the court and is subject to the provisions of section 17-22.5-403 (6), C.R.S., which permits the state board of parole to discharge the offender at any time during the term of parole upon a determination that the offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision. (4) The mandatory period of parole imposed pursuant to paragraph (a) of subsection (2) of this section commences immediately upon the discharge of an offender from imprisonment in the custody of the department of corrections. If the offender has been granted release to parole supervision by the state board of parole, the offender is deemed to have discharged the offender's sentence to imprisonment provided for in subsection (2) of this section in the same manner as if such sentence were discharged pursuant to law. When an offender is released by the state board of parole or released because the offender's sentence was discharged pursuant to law, the mandatory period of parole must be served by the offender. An offender sentenced for a drug felony may receive earned time pursuant to section 17-22.5-405, C.R.S., while serving a mandatory parole period in accordance with this section. (5) If an offender is sentenced consecutively for the commission of two or more felony offenses pursuant to sentencing provisions in this section or section 18-1.3-401, the mandatory period of parole for the offender must be the longest mandatory period of parole established for a felony for which the offender was convicted. (6) Any person sentenced for a level 1, 2, 3, or 4 drug felony that is the offender's second or subsequent felony or drug felony offense, regardless of the length of the person's sentence to incarceration and the mandatory period of parole, is not deemed to have fully discharged his or her sentence until the person either completes, or is discharged by the state board of parole from, the mandatory period of parole imposed pursuant to paragraph (a) of subsection (2) of this section. (7) Notwithstanding any provision of this section to the contrary, if the defendant is convicted of a level 1 drug felony, the court shall sentence the defendant to a term of incarceration in the department of corrections of at least eight years but not more than thirty-two years. The presence of one or more of the aggravating circumstances provided in paragraph (a) of subsection (10) of this section or in section 18-18-407 (1) requires the court to sentence a defendant convicted of a level 1 drug felony to a term of incarceration in the department of corrections of at least twelve years but no more than thirty-two years. The court may impose a fine in addition to imprisonment. (8) In imposing a sentence to incarceration, the court shall impose a definite sentence that is within the presumptive ranges set forth in subsection (2) of this section; except that, for level 2, level 3, and level 4 drug felonies, the court may sentence the defendant in the aggravated Colorado Revised Statutes 2019 Page 111 of 695 Uncertified Printout range if it concludes aggravating circumstances exist. The aggravating circumstances must be based on evidence in the record of the sentencing hearing, the presentence report, and any factors agreed to by the parties and must support a different sentence that better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. (9) In all cases, except as provided in subsection (10) of this section, in which a sentence that is not within the presumptive range is imposed, the court shall make specific findings on the record, detailing the aggravating circumstances that constitute the reasons for varying from the presumptive sentence. (10) (a) Except for a level 1 drug felony, the presence of one or more of the following aggravating circumstances at the time of the commission of a drug felony offense requires the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than the maximum term of the aggravated range: (I) The defendant was on parole for another felony; (II) The defendant was on probation or was on bond while awaiting sentencing following revocation of probation for another felony; (III) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony; or (III.5) The defendant was on appeal bond following his or her conviction for a previous felony; (IV) The defendant was on probation for or on bond while awaiting sentencing following revocation of probation for a delinquent act that would have constituted a felony if committed by an adult. (b) In any case in which one or more of the aggravating circumstances provided for in paragraph (a) of this subsection (10) exist, the provisions of subsection (9) of this section do not apply. (c) Nothing in this subsection (10) precludes the court from considering aggravating circumstances other than those stated in paragraph (a) of this subsection (10) as the basis for sentencing the defendant to a term greater than the presumptive range for the drug felony. (11) Except for a level 1 drug felony, the presence of any one or more of the following sentence-enhancing circumstances allows the court, if it sentences the defendant to incarceration, to sentence the defendant to a term in the presumptive or aggravated range: (a) At the time of the commission of the drug felony, the defendant was charged with or was on bond for a felony in a previous case and the defendant was convicted of any felony in the previous case; (b) At the time of the commission of the drug felony, the defendant was charged with or was on bond for a delinquent act that would have constituted a felony if committed by an adult; (c) At the time of the commission of the drug felony, the defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony; (c.5) At the time of the commission of the drug felony, the defendant was under a deferred judgment and sentence for another felony; (d) At the time of the commission of the drug felony, the defendant was on bond in a juvenile prosecution under title 19, C.R.S., for having pled guilty to a lesser delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult; Colorado Revised Statutes 2019 Page 112 of 695 Uncertified Printout (e) At the time of the commission of the drug felony, the defendant was under a deferred judgment and sentence for a delinquent act that would have constituted a felony if committed by an adult; or (f) At the time of the commission of the drug felony, the defendant was on parole for having been adjudicated a delinquent child for an offense that would constitute a felony if committed by an adult. (12) When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be best served thereby, the court has the power to suspend the imposition or execution of sentence for such period and upon such terms and conditions as it may deem best; except that the court may not suspend a sentence when the defendant is convicted of a level 1 drug felony. In no instance may a sentence be suspended if the defendant is ineligible for probation pursuant to section 18-1.3-201, except upon an express waiver being made by the sentencing court regarding a particular defendant upon recommendation of the district attorney and approval of such recommendation by an order of the sentencing court pursuant to section 18-1.3-201 (4). (13) Every sentence entered under this section must include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2013: Entire section added, (SB 13-250), ch. 333, p. 1903, § 4, effective October 1. L. 2014: IP(2)(b)(I), (4), (7), (11), and (12) amended and (2)(b)(V) and (10)(a)(III.5) added, (SB 14-163), ch. 391, p. 1972, § 11, effective June 6. L. 2015: (3) amended, (HB 151122), ch. 37, p. 92, § 8, effective March 20. Cross references: For the legislative declaration in HB 15-1122, see section 1 of chapter 37, Session Laws of Colorado 2015. 18-1.3-402. Felony offenses not classified. (1) Any felony defined by state statute without specification of its class shall be punishable as provided in the statute defining it. For felony offenses committed on or after July 1, 1993, if the sentencing court sentences an offender to incarceration pursuant to the provisions of this section, the sentencing court shall also impose a mandatory period of parole of two years. (2) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1402, § 2, effective October 1. Editor's note: This section is similar to former § 18-1-108 as it existed prior to 2002. 18-1.3-403. Penalty for felony not fixed by statute - punishment. (1) In all cases where an offense is denominated by statute as being a felony and no penalty is fixed in the statute therefor, the punishment shall be imprisonment for not more than five years in a correctional facility, as defined in section 17-1-102, C.R.S., or a fine of not more than fifteen thousand dollars, or both such imprisonment and fine. For offenses committed on or after July 1, 1985, a fine of not more than one hundred thousand dollars may be levied. For offenses committed on or after July 1, 1993, if the sentencing court sentences an offender to incarceration Colorado Revised Statutes 2019 Page 113 of 695 Uncertified Printout pursuant to the provisions of this section, the sentencing court shall also impose a mandatory period of parole of two years. (2) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1402, § 2, effective October 1. Editor's note: This section is similar to former § 18-1-109 as it existed prior to 2002. 18-1.3-404. Duration of sentences for felonies. (1) Unless otherwise provided by law and except as otherwise provided in the "Colorado Children's Code", title 19, C.R.S., courts sentencing any person for the commission of a felony to the custody of the executive director of the department of corrections shall fix a definite term as provided by section 18-1.3-401. The persons so sentenced shall be imprisoned and discharged as provided by other applicable statutes. No person sentenced to a correctional facility for the commission of a felony shall be subjected to imprisonment for a term exceeding the term provided by the statute fixing the length of the sentence for the crime of which the person was convicted and for which the person was sentenced. (2) (a) If a court sentences a defendant to the custody of the department of corrections, the court shall, after fixing a definite term of imprisonment, read the following statement: "The defendant may spend less time incarcerated than the term announced here today. The actual time served will be influenced by a number of factors including, but not limited to, previous criminal activities, eligibility for earned time for good behavior, correctional education program earned time, credit for time served, or community corrections eligibility." (b) By requiring the court to read the statement contained in paragraph (a) of this subsection (2), the general assembly does not intend to grant any additional rights to the defendant. Failure of a court to comply with the requirements of paragraph (a) of this subsection (2) shall not be grounds for a defendant to withdraw a guilty plea or in any way gain a reversal of a conviction or reduction in sentence. (3) (a) Nothing in subsection (2) of this section shall be construed to affect the duties otherwise imposed by law on the court or on the executive director of the department of corrections. (b) Nothing in subsection (2) of this section shall be construed to limit, expand, or otherwise affect any provision of law concerning the availability, administration, entitlement, or award of good time credits and earned time credits. Source: L. 2002: Entire article added with relocations, p. 1403, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-302 as it existed prior to 2002. 18-1.3-405. Credit for presentence confinement. A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled Colorado Revised Statutes 2019 Page 114 of 695 Uncertified Printout and shall include such finding in the mittimus. The period of confinement shall be deducted from the sentence by the department of corrections. A person who is confined pending a parole revocation hearing is entitled to credit for the entire period of such confinement against any period of reincarceration imposed in the parole revocation proceeding. The period of confinement shall be deducted from the period of reincarceration by the department of corrections. If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a new offense and he or she continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense. Source: L. 2002: Entire article added with relocations, p. 1403, § 2, effective October 1. L. 2009: Entire section amended, (HB 09-1263), ch. 105, p. 383, § 3, effective August 5. Editor's note: This section is similar to former § 16-11-306 as it existed prior to 2002. 18-1.3-406. Mandatory sentences for violent crimes - definitions. (1) (a) Any person convicted of a crime of violence shall be sentenced pursuant to the provisions of section 18-1.3401 (8) to the department of corrections for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in section 18-1.3-401 (1)(a), as modified for an extraordinary risk crime pursuant to section 18-1.3401 (10), without suspension; except that, within ninety-one days after he or she has been placed in the custody of the department of corrections, the department shall transmit to the sentencing court a report on the evaluation and diagnosis of the violent offender, and the court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence, effective not earlier than one hundred nineteen days after his or her placement in the custody of the department. Such modification may include probation if the person is otherwise eligible therefor. Whenever a court finds that modification of a sentence is justified, the judge shall notify the state court administrator of his or her decision and shall advise said administrator of the unusual and extenuating circumstances that justified such modification. The state court administrator shall maintain a record, which shall be open to the public, summarizing all modifications of sentences and the grounds therefor for each judge of each district court in the state. Except as described in paragraph (c) of this subsection (1), a court shall sentence a person convicted of two or more separate crimes of violence arising out of the same incident so that his or her sentences are served consecutively rather than concurrently. (b) Notwithstanding the provisions of subsection (1)(a) of this section, any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401 (1)(a)(V)(A) or 18-1.3-401 (1)(a)(V)(A.1) up to a maximum of the person's natural life, as provided in section 18-1.3-1004 (1). (c) The court may require a defendant to serve his or her sentences concurrently rather than consecutively if the defendant is convicted of two or more separate crimes of violence arising out of the same incident and one of such crimes is: (I) Aggravated robbery, as described in section 18-4-302; Colorado Revised Statutes 2019 Page 115 of 695 Uncertified Printout (II) Assault in the second degree, as described in section 18-3-203; or (III) Escape, as described in section 18-8-208. (2) (a) (I) "Crime of violence" means any of the crimes specified in subparagraph (II) of this paragraph (a) committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person: (A) Used, or possessed and threatened the use of, a deadly weapon; or (B) Caused serious bodily injury or death to any other person except another participant. (II) Subparagraph (I) of this paragraph (a) applies to the following crimes: (A) Any crime against an at-risk adult or at-risk juvenile; (B) Murder; (C) First or second degree assault; (D) Kidnapping; (E) A sexual offense pursuant to part 4 of article 3 of this title; (F) Aggravated robbery; (G) First degree arson; (H) First degree burglary; (I) Escape; (J) Criminal extortion; or (K) First or second degree unlawful termination of pregnancy. (b) (I) "Crime of violence" also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim. For purposes of this subparagraph (I), "unlawful sexual offense" shall have the same meaning as set forth in section 18-3-411 (1), and "bodily injury" shall have the same meaning as set forth in section 18-1-901 (3)(c). (II) The provisions of subparagraph (I) of this paragraph (b) shall apply only to felony unlawful sexual offenses. (c) As used in this section, "at-risk adult" has the same meaning as set forth in section 18-6.5-102 (2), and "at-risk juvenile" has the same meaning as set forth in section 18-6.5-102 (4). (3) In any case in which the accused is charged with a crime of violence as defined in subsection (2)(a) of this section, the indictment or information shall so allege in a separate count, even though the use or threatened use of such deadly weapon or infliction of such serious bodily injury or death is not an essential element of the crime charged. (4) The jury, or the court if no jury trial is had, in any case as provided in subsection (3) of this section shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime or whether such serious bodily injury or death was caused by the accused. If the jury or court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was caused by the accused, the penalty provisions of this section shall be applicable. (5) In any case in which the accused is charged with a crime of violence as defined in subsection (2)(b)(I) of this section, the indictment or information shall so allege in a separate count, even though the use of threat, intimidation, or force or the infliction of bodily injury is not an essential element of the crime charged. Colorado Revised Statutes 2019 Page 116 of 695 Uncertified Printout (6) The jury, or the court if no jury trial is had, in any case as provided in subsection (5) of this section shall make a specific finding as to whether the accused did or did not use threat, intimidation, or force during the commission of such crime or whether such bodily injury was caused by the accused. If the jury or court finds that the accused used threat, intimidation, or force or that such bodily injury was caused by the accused, the penalty provisions of this section shall be applicable. (7) (a) In any case in which the accused is charged with a crime of violence as defined in this section and the indictment or information specifies the use of a dangerous weapon as defined in sections 18-12-101 and 18-12-102, or the use of a semiautomatic assault weapon as defined in paragraph (b) of this subsection (7), upon conviction for said crime of violence, the judge shall impose an additional sentence to the department of corrections of five years for the use of such weapon. The sentence of five years shall be in addition to the mandatory sentence imposed for the substantive offense and shall be served consecutively to any other sentence and shall not be subject to suspension or probation. (b) For the purposes of this subsection (7), "semiautomatic assault weapon" means any semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition. Source: L. 2002: Entire article added with relocations, p. 1403, § 2, effective October 1. L. 2003: (1), (2)(a)(II)(E), and (7)(a) amended, pp. 1424, 1432, §§ 3, 21, effective April 29. L. 2004: (1) amended, p. 634, § 2, effective August 4. L. 2012: (1)(a) amended, (SB 12-175), ch. 208, p. 865, § 110, effective July 1. L. 2013: (2)(c) amended, (SB 13-111), ch. 233, p. 1127, § 11, effective May 16; (2)(a)(II)(I) and (2)(a)(II)(J) amended and (2)(a)(II)(K) added, (HB 131154), ch. 372, p. 2193, § 7, effective July 1. L. 2016: (3) and (5) amended, (SB 16-189), ch. 210, p. 760, § 29, effective June 6; (1)(a) amended and (1)(c) added, (SB 16-051), ch. 85, p. 241, § 1, effective July 1; IP(1)(c) amended, (SB 16-189), ch. 210, p. 798, § 124, effective July 1. L. 2018: (1)(b) amended, (HB 18-1029), ch. 153, p. 1087, § 3, effective April 23. Editor's note: This section is similar to former § 16-11-309 as it existed prior to 2002. Cross references: (1) For the sentencing of a defendant for multiple counts arising from the same act, see § 18-1-408 (3). (2) For the legislative declaration in the 2013 act amending subsections (2)(a)(II)(I) and (2)(a)(II)(J) and adding subsection (2)(a)(II)(K), see section 1 of chapter 372, Session Laws of Colorado 2013. For the legislative declaration in the 2013 act amending subsection (2)(c), see section 1 of chapter 233, Session Laws of Colorado 2013. 18-1.3-407. Sentences - youthful offenders - legislative declaration - powers and duties of district court - authorization for youthful offender system - powers and duties of department of corrections - definitions. (1) (a) It is the intent of the general assembly that the youthful offender system established pursuant to this section shall benefit the state by providing as a sentencing option for certain youthful offenders a controlled and regimented environment that affirms dignity of self and others, promotes the value of work and self-discipline, and develops useful skills and abilities through enriched programming. Colorado Revised Statutes 2019 Page 117 of 695 Uncertified Printout (b) It is the further intent of the general assembly in enacting this section that female and male offenders who are eligible for sentencing to the youthful offender system pursuant to section 18-1.3-407.5 or section 19-2-517 (6) or 19-2-518 (1)(d)(II), C.R.S., receive equitable treatment in sentencing, particularly in regard to the option of being sentenced to the youthful offender system. Accordingly, it is the general assembly's intent that necessary measures be taken by the department of corrections to establish separate housing for female and male offenders who are sentenced to the youthful offender system without compromising the equitable treatment of either. (c) (I) It is the intent of the general assembly that offenders sentenced to the youthful offender system be housed and serve their sentences in a facility specifically designed and programmed for the youthful offender system and that offenders so sentenced be housed separate from and not brought into daily physical contact with inmates older than twenty-four years sentenced to the department of corrections who have not been sentenced to the youthful offender system, except as specifically provided under subsection (5) of this section. (II) For the purposes of public safety, academic achievement, rehabilitation, the development of pro-social behavior, or reentry planning for youthful offenders, the executive director or his or her designee may transfer any offender age twenty-four years or younger and sentenced to the department of corrections into and out of the youthful offender system at his or her discretion. (III) The facility that houses offenders sentenced to the youthful offender system shall be limited to two hundred fifty-six beds. (IV) (A) The department of corrections shall develop policies and procedures for decision-making regarding the transfer of any offender not sentenced to the youthful offender system into the youthful offender system in order to ensure that the goals of the youthful offender system, as described in this section; the operations of the rehabilitative program within the youthful offender system; and the delivery of services to those offenders directly sentenced to the youthful offender system are not compromised in any way by the comingled population. (B) The department of corrections shall include in its annual report to the judiciary committees of the house of representatives and senate, or to any successor committees, pursuant to section 2-7-203, C.R.S., and in any annual youthful offender system report produced by the department, information regarding the policies and procedures developed by the department pursuant to sub-subparagraph (A) of this subparagraph (IV), the characteristics of the population of youthful offenders transferred pursuant to this paragraph (c), and the impact, if any, of transferred inmates on any youthful offender system programming or department of corrections programming. (C) Notwithstanding any provisions of this section to the contrary, the department of corrections shall not initiate any transfers of inmates to the youthful offender system until the department has developed the policies and procedures described in sub-subparagraph (A) of this subparagraph (IV). (d) It is the intent of the general assembly that offenders sentenced to the youthful offender system be sentenced as adults and be subject to all laws and department of corrections rules, regulations, and standards pertaining to adult inmates, except as otherwise provided in this section. (2) (a) (I) A juvenile may be sentenced to the youthful offender system created pursuant to this section under the circumstances set forth in section 19-2-517 (6)(a)(II) or 19-2-518 Colorado Revised Statutes 2019 Page 118 of 695 Uncertified Printout (1)(d)(II), C.R.S. A young adult offender may be sentenced to the youthful offender system created pursuant to this section under the circumstances set forth in section 18-1.3-407.5. In order to sentence a juvenile or young adult offender to the youthful offender system, the court shall first impose upon such person a sentence to the department of corrections in accordance with section 18-1.3-401. The court shall thereafter suspend such sentence conditioned on completion of a sentence to the youthful offender system, including a period of community supervision. The court shall impose any such sentence to the youthful offender system for a determinate period of not fewer than two years nor more than six years; except that a juvenile or young adult offender convicted of a class 2 felony may be sentenced for a determinate period of up to seven years. In imposing such sentence, the court shall grant authority to the department of corrections to place the offender under a period of community supervision for a period of not fewer than six months and up to twelve months any time after the date on which the offender has twelve months remaining to complete the determinate sentence. The court may award an offender sentenced to the youthful offender system credit for presentence confinement; except that such credit shall not reduce the offender's actual time served in the youthful offender system to fewer than two years. The court shall have a presentence investigation conducted before sentencing a juvenile or young adult offender pursuant to this section. Upon the request of either the prosecution or the defense, the presentence report shall include a determination by the warden of the youthful offender system whether the offender is acceptable for sentencing to the youthful offender system. When making a determination, the warden shall consider the nature and circumstances of the crime; the age, circumstances, and criminal history of the offender; the available bed space in the youthful offender system; and any other appropriate considerations. (II) Upon the successful completion of the determinate sentence to the youthful offender system, including the mandatory period of community supervision, the suspended sentence pursuant to section 18-1.3-401 shall have been completed. Whenever an offender is returned to the district court for revocation pursuant to subsection (5) of this section, the court shall impose the original sentence following the revocation of the sentence to the youthful offender system, except as otherwise provided in paragraph (b) of subsection (5) of this section. (III) For the purposes of this section, unless the context otherwise requires: (A) "Juvenile" means a person who is under eighteen years of age when the crime is committed and under twenty-one years of age at the time of sentencing pursuant to this section. (B) "Young adult offender" means a person who is at least eighteen years of age but under twenty years of age when the crime is committed and under twenty-one years of age at the time of sentencing pursuant to this section. (C) "Youthful offender" or "offender" means a juvenile or a young adult offender who has been sentenced to the youthful offender system or who is eligible for sentencing to the youthful offender system. (IV) As used in this section, "community supervision" shall not be construed to mean a community corrections program, as defined in section 17-27-102, C.R.S. (a.5) During any period of incarceration under the youthful offender system, privileges including, but not limited to, televisions, radios, and entertainment systems, shall not be available for an offender unless such privileges have been earned under a merit system. (b) Article 22.5 of title 17, C.R.S., concerning time credits, shall not apply to any person sentenced to the youthful offender system; except that an offender whose sentence to the youthful offender system is revoked pursuant to subsection (5) of this section may receive one Colorado Revised Statutes 2019 Page 119 of 695 Uncertified Printout day of credit against the suspended sentence imposed by the court following revocation of the sentence to the youthful offender system for each day the offender served in the youthful offender system, excluding any period of time during which the offender was under community supervision. (2.1) (a) As originally enacted, this section applied only to offenses committed by juveniles on or after September 13, 1993. For purposes of extending the availability of sentencing options, a juvenile who meets the criteria set forth in section 19-2-517 (6)(a)(II), C.R.S., may be sentenced to the youthful offender system pursuant to this section, under the following circumstances: (I) The juvenile is sentenced on or after June 3, 1994, for an offense committed prior to, on, or after September 13, 1993; (II) The juvenile committed an offense prior to September 13, 1993, and was sentenced for the offense on or after September 13, 1993, but prior to June 3, 1994. Such a juvenile may only be resentenced to the youthful offender system if a court, in its discretion, so orders in response to a motion filed in accordance with rule 35 of the Colorado rules of criminal procedure. (b) A juvenile who committed an offense prior to September 13, 1993, and who was sentenced prior to September 13, 1993, shall not be eligible to be sentenced to the youthful offender system. (c) A juvenile described in paragraph (a) of this subsection (2.1) may be sentenced pursuant to this section only if the juvenile meets the age requirement set forth in subparagraph (III) of paragraph (a) of subsection (2) of this section. (3) The department of corrections shall develop and implement a youthful offender system for offenders sentenced in accordance with subsection (2) of this section. The youthful offender system shall be under the direction and control of the executive director of the department of corrections. The youthful offender system shall be based on the following principles: (a) The system should provide for teaching offenders self-discipline by providing clear consequences for inappropriate behavior; (b) The system should include a daily regimen that involves offenders in physical training, self-discipline exercises, educational and work programs, and meaningful interaction, with a component for a tiered system for swift and strict discipline for noncompliance; (c) The system should use staff models and mentors to promote within an offender the development of socially accepted attitudes and behaviors; (d) The system should provide offenders with instruction on problem-solving skills and should incorporate methods to reinforce the use of cognitive behavior strategies that change offenders' orientation toward criminal thinking and behavior; (e) The system should promote among offenders the creation and development of new group cultures which result in a transition to prosocial behavior; and (f) The system should provide offenders the opportunity to gradually reenter the community while demonstrating the capacity for self-discipline and the attainment of respect for the community. (3.3) The youthful offender system consists of the following components, and the department of corrections has the authority described in paragraphs (a) to (d) of this subsection (3.3) in connection with the administration of the components: Colorado Revised Statutes 2019 Page 120 of 695 Uncertified Printout (a) An intake, diagnostic, and orientation phase; (b) Phase I, during which time a range of core programs, supplementary activities, and educational and prevocational programs and services are provided to offenders; (c) (I) Phase II, which may be administered during the last three months of the period of institutional confinement and during which time the department of corrections is authorized to transfer an offender to a twenty-four-hour custody residential program that serves youthful offenders. (II) In connection with the component described in subparagraph (I) of this paragraph (c), the department of corrections is authorized to operate or to contract with a prerelease residential program for those sentenced as youthful offenders. The department of corrections or the contract provider shall provide for twenty-four-hour custody of offenders in phase II. (d) (I) Phase III, which is to be administered for the period of community supervision that remains after the completion of phase II and during which the offender is monitored during reintegration into society. (II) After the department determines appropriate phase III placement, the department shall notify, no later than thirty days prior to placement, the local law enforcement agency for the jurisdiction in which the offender shall be placed for phase III. The notice shall include the offender's name, the crime committed by the offender, the disposition of the offender's case, and the basis for the placement. The local law enforcement agency may appeal the placement, if the placement is in a jurisdiction other than the jurisdiction where the offender was convicted, it may appeal to the executive director of the department at least fifteen days prior to the placement. Except that the local law enforcement agency may not appeal if the placement is in the jurisdiction where the offender was residing at the time the offense was committed. If there is an appeal, after considering the department's basis for placement and the local law enforcement's basis for appeal, the executive director shall make the final determination of the placement. (3.4) In addition to the powers granted to the department of corrections in subsection (3.3) of this section, the department of corrections may: (a) Transfer a youthful offender to an appropriate facility for the purpose of accomplishing the offender's redirection goals, as long as the transfer does not jeopardize the safety and welfare of the offender; (b) Operate an emancipation program and provide other support or monitoring services and residential placement for offenders participating in phase II and phase III under the youthful offender system for whom family reintegration poses difficulties. The department of corrections shall provide reintegration support services to an offender placed in an emancipation house. (c) Contract with any public or private entity, including but not limited to a school district, for provision or certification of educational services. Offenders receiving educational services or diplomas from a school district under an agreement entered into pursuant to this paragraph (c) shall not be included in computing the school district's student performance on statewide assessments pursuant to section 22-7-1006.3, C.R.S., or the school district's levels of attainment of the performance indicators pursuant to article 11 of title 22, C.R.S. (3.5) The executive director of the department of corrections shall have final approval on the hiring and transferring of staff for the youthful offender system. In staffing the youthful offender system, the executive director shall select persons who are trained in the treatment of youthful offenders or will be trained in the treatment of youthful offenders prior to working with such population, are trained to act as role models and mentors pursuant to paragraph (c) of Colorado Revised Statutes 2019 Page 121 of 695 Uncertified Printout subsection (3) of this section, and are best equipped to enable the youthful offender system to meet the principles specified in subsection (3) of this section. The executive director shall make a recommendation to the department of personnel regarding the classification of positions with the youthful offender system, taking into account the level of education and training required for such positions. (4) The youthful offender system shall provide for community supervision which shall consist of highly structured surveillance and monitoring and educational and treatment programs. Community supervision shall be administered by the department of corrections, and revocation of the inmate's supervision status shall be subject to the provisions of subsections (2) and (5) of this section. (4.3) The youthful offender system shall provide sex offender treatment services for an offender who is sentenced to the youthful offender system and who has a history of committing a sex offense as defined in section 16-11.7-102 (3), C.R.S., or who has a history of committing any other offense, the underlying factual basis of which includes a sex offense. Prior to July 1, 2002, the sex offender treatment services provided pursuant to this subsection (4.3) shall comply with any existing national standards for juvenile sex offender treatment. On and after July 1, 2002, the sex offender treatment services provided pursuant to this subsection (4.3) shall comply with the sex offender treatment standards adopted by the sex offender management board pursuant to section 16-11.7-103, C.R.S. (4.5) The consent of the parent, parents, or legal guardian of an offender under the age of eighteen years who has been sentenced to the youthful offender system pursuant to this section shall not be necessary in order to authorize hospital, medical, mental health, dental, emergency health, or emergency surgical care. In addition, neither the department nor any hospital, physician, surgeon, mental health care provider, dentist, trained emergency health care provider, or agent or employee thereof who, in good faith, relies on such a minor offender's consent shall be liable for civil damages for failure to secure the consent of such an offender's parent, parents, or legal guardian prior to rendering such care. However, the parent, parents, or legal guardian of a minor offender described in this subsection (4.5) may be liable, as provided by law, to pay the charges for the care provided the minor on said minor's consent. (5) (a) Except as otherwise provided by paragraph (b) of this subsection (5), the department of corrections shall implement a procedure for the transfer of an offender to another facility when an offender in the system poses a danger to himself or herself or others. The executive director of the department of corrections shall review any transfer determination by the department prior to the actual transfer of an inmate, including a transfer back to the district court for revocation of the sentence to the youthful offender system. A transfer pursuant to this paragraph (a) shall be limited to a period not to exceed sixty days, at which time the offender shall be returned to the youthful offender facility to complete his or her sentence or returned to the district court for revocation of the sentence to the youthful offender system. In no case shall an offender initially sentenced to the youthful offender system be held in isolation or segregation or in an adult facility for longer than sixty consecutive days without action by the sentencing court. (b) (I) An offender who is thought to have a behavioral or mental health disorder or an intellectual and developmental disability by a mental health clinician, as defined by regulation of the department of corrections, may be transferred to another facility for a period not to exceed sixty days for diagnostic validation of said disorder or disability. At the conclusion of the sixtyColorado Revised Statutes 2019 Page 122 of 695 Uncertified Printout day period, the psychiatrists or other appropriate professionals conducting the diagnosis shall forward to the executive director of the department of corrections their findings, which at a minimum must include a statement of whether the offender has the ability to withstand the rigors of the youthful offender system. If the diagnosis determines that the offender is incapable of completing his or her sentence to the youthful offender system due to a behavioral or mental health disorder or an intellectual and developmental disability, the executive director shall forward such determination to the sentencing court. Based on the determination, the sentencing court shall review the offender's sentence to the youthful offender system and may: (A) Impose the offender's original sentence to the department of corrections; or (B) Reconsider and reduce the offender's sentence to the department of corrections in consideration of the offender's behavioral or mental health disorder or intellectual and developmental disability. (II) Any offender who is resentenced pursuant to this paragraph (b) shall continue to be treated as an adult for purposes of sentencing and shall not be sentenced pursuant to article 2 of title 19, C.R.S. (III) In no event shall the sentencing court, after reviewing the offender's sentence to the youthful offender system pursuant to this subsection (5)(b), increase the offender's sentence to the department of corrections due to the offender's diagnosis of a behavioral or mental health disorder or determination of an intellectual and developmental disability. (IV) Any offender who is diagnosed as having a behavioral or mental health disorder or determined to have an intellectual and developmental disability and is therefore incapable of completing his or her sentence to the youthful offender system may be housed in any department of corrections facility deemed appropriate by the executive director or transferred in accordance with procedures set forth in section 17-23-101 pending action by the sentencing court with regard to the offender's sentence. (c) The department of corrections shall implement a procedure for returning offenders who cannot successfully complete the sentence to the youthful offender system, or who fail to comply with the terms or conditions of the youthful offender system, to the district court. An offender returned to the district court pursuant to subsection (5)(a) of this section or because he or she cannot successfully complete the sentence to the youthful offender system for reasons other than a behavioral or mental health disorder or an intellectual and developmental disability, or because he or she fails to comply with the terms or conditions of the youthful offender system, shall receive imposition of the original sentence to the department of corrections. After the executive director of the department upholds the department's decision, the offender may be held in any correctional facility deemed appropriate by the executive director; except that an offender who cannot successfully complete the sentence to the youthful offender system for reasons other than a behavioral or mental health disorder or an intellectual and developmental disability, or because he or she fails to comply with the terms or conditions of the youthful offender system, shall be transferred, within thirty-five days after the executive director upholds the department's decision, to a county jail for holding prior to resentencing. The department shall notify the district attorney of record, and the district attorney of record shall be responsible for seeking the revocation or review of the offender's sentence and the imposition of the original sentence or modification of the original sentence pursuant to subsection (5)(b)(I)(B) of this section. The district court shall review the offender's sentence within one hundred twenty-six days after notification to the district attorney of record by the department of corrections that the Colorado Revised Statutes 2019 Page 123 of 695 Uncertified Printout offender is not able to complete the sentence to the youthful offender system or fails to comply with the terms or conditions of the youthful offender system. (6) The department of corrections shall establish and enforce standards for the youthful offender system. Offenders in the youthful offender system, including those under community supervision, shall be considered inmates for the purposes of section 17-1-111, C.R.S. (7) The number of offenders in any program element under the youthful offender system shall be determined by the department within available appropriations. (8) The department of corrections may and is encouraged to contract with any private or public entity for the provision of services and facilities under the youthful offender system. (9) On or before November 1, 1993, the department, in conjunction with the division of criminal justice, shall develop and the department shall implement a process for monitoring and evaluating the youthful offender system. In implementing such system, the department may contract with a private agency for assistance. (10) (a) (Deleted by amendment, L. 2002, p. 881, § 19, effective August 7, 2002.) (b) The division of criminal justice shall independently monitor and evaluate, or contract with a public or private entity to independently monitor and evaluate, the youthful offender system. Notwithstanding section 24-1-136 (11)(a)(I), on or before November 1, 2002, and on or before November 1 every two years thereafter, the division of criminal justice shall report its findings, or the findings of the contract entity, to the judiciary committees of the senate and the house of representatives. The department of corrections shall cooperate in providing the necessary data to the division of criminal justice or an entity designated by the division of criminal justice to complete the evaluation required in this section. (11) Any district attorney in the state shall maintain records regarding juveniles who are sentenced to the youthful offender system and such records shall indicate which juveniles have been filed on as adults or are sentenced to the system and the offenses committed by such juveniles. (11.5) (a) (I) An offender who is sentenced to the youthful offender system shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. (II) Collection of the biological substance sample shall occur as soon as possible after being sentenced to the youthful offender system, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request. (b) The department of corrections or its designee or contractor may use reasonable force to obtain biological substance samples in accordance with paragraph (a) of this subsection (11.5). (c) Any moneys received from offenders pursuant to paragraph (a) of this subsection (11.5) shall be deposited in the offender identification fund created in section 24-33.5-415.6, C.R.S. (d) The Colorado bureau of investigation is directed to conduct the chemical testing of the biological substance samples obtained pursuant to this subsection (11.5). (12) The general assembly recognizes that the increased number of violent crimes committed by juveniles and young adults is a problem faced by all the states of this nation. By creating the youthful offender system, Colorado stands at the forefront of the states in creating a new approach to addressing this problem. The general assembly also declares that the cost of Colorado Revised Statutes 2019 Page 124 of 695 Uncertified Printout implementing and operating the youthful offender system will create a burden on the state's limited resources. Accordingly, the general assembly directs the department of corrections to seek out and accept available federal, state, and local public funds, including project demonstration funds, and private moneys and private systems for the purpose of conducting the youthful offender system. (13) Repealed. Source: L. 2002: Entire article added with relocations, p. 1406, § 2, effective October 1. L. 2003: (5)(c) amended, p. 983, § 19, effective April 17. L. 2004: (1)(c) amended and (13) repealed, pp. 243, 244, §§ 2, 3, effective April 5; (3.4)(c) amended, p. 1662, § 14, effective June 3. L. 2006: IP(5)(b)(I) amended, p. 1399, § 49, effective August 7; (11.5)(a)(I) amended, p. 1690, § 10, effective July 1, 2007. L. 2008: (4.3) and (4.5) amended, p. 39, § 1, effective March 13; (1)(b) and (2)(a)(I) amended, p. 1507, § 3, effective May 28. L. 2009: (3.4)(c) amended, (SB 09-163), ch. 293, p. 1546, § 55, effective May 21; (1)(b), (1)(c), (1)(d), (2)(a)(I), (2)(a)(II), (2)(a)(III), (2)(a.5), (2)(b), (3.3), (3.4)(a), (3.4)(b), (3.5), IP (5)(b)(I), (5)(c), (11.5)(a)(I), (11.5)(c), and (12) amended, (HB 09-1122), ch. 77, p. 280, § 5, effective October 1. L. 2010: (1)(b), (2)(a)(I), and IP(2.1)(a) amended, (HB 10-1413), ch. 264, p. 1205, § 5, effective August 11. L. 2012: (5)(c) amended, (SB 12-175), ch. 208, p. 866, § 111, effective July 1. L. 2015: (3.4)(c) amended, (HB 15-1323), ch. 204, p. 719, § 16, effective May 20; (1)(c) amended, (SB 15-182), ch. 146, p. 442, § 1, effective August 5. L. 2017: IP(5)(b)(I), (5)(b)(I)(B),(5)(b)(III), (5)(b)(IV), and (5)(c) amended, (SB 17-242), ch. 263, p. 1306, § 140, effective May 25; (10)(b) amended, (HB 17-1059), ch. 91, p. 277, § 2, effective August 9. Editor's note: (1) This section is similar to former § 16-11-311 as it existed prior to 2002. (2) This section was amended in 2002 prior to its relocation on October 1, 2002. For that history, see the source note to § 16-11-311. Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. 18-1.3-407.5. Sentences - young adult offenders - youthful offender system definitions. (1) (a) A young adult offender may be sentenced to the youthful offender system in the department of corrections in accordance with section 18-1.3-407, under the following circumstances: (I) The young adult offender is convicted of a felony enumerated as a crime of violence pursuant to section 18-1.3-406; (II) The young adult offender is convicted of a felony offense described in part 1 of article 12 of this title; (III) The young adult offender used, or possessed and threatened the use of, a deadly weapon during the commission of a felony offense against a person, as set forth in article 3 of this title; (IV) The young adult offender is convicted of vehicular homicide, as described in section 18-3-106, vehicular assault, as described in section 18-3-205, or felonious arson, as described in part 1 of article 4 of this title; Colorado Revised Statutes 2019 Page 125 of 695 Uncertified Printout (V) The young adult offender is convicted of a felony offense described in section 181.3-401 as a class 3 felony, other than the felonies described in section 18-3-402 (1)(d) and section 18-3-403 (1)(e), as it existed prior to July 1, 2000, and has, within the two previous years, been adjudicated a juvenile delinquent for a delinquent act that would constitute a felony if committed by an adult; or (VI) The young adult offender is convicted of a felony offense, and is determined to have been an "habitual juvenile offender", as defined in section 19-1-103 (61), C.R.S. (b) The offenses described in paragraph (a) of this subsection (1) shall include the attempt, conspiracy, or solicitation to commit such offenses. (2) (a) Notwithstanding the circumstances described in subsection (1) of this section, a young adult offender shall be ineligible for sentencing to the youthful offender system if the young adult offender is convicted of any of the following: (I) A class 1 or class 2 felony; (II) A sexual offense described in section 18-6-301, section 18-6-302, or part 4 of article 3 of this title; or (III) Any offense, if the young adult offender has received a sentence to the youthful offender system for any prior conviction. (b) Notwithstanding the provisions of paragraph (a) of this subsection (2), a young adult offender who is charged with first degree murder as described in section 18-3-102 (1)(b) and pleads guilty to a class 2 felony as a result of a plea agreement is eligible for sentencing to the youthful offender system if the young adult offender would be eligible for sentencing to the youthful offender system for a conviction of the felony underlying the charge of first degree murder as described in section 18-3-102 (1)(b). (3) As used in this section, unless the context otherwise requires, a "young adult offender" means a person who is at least eighteen years of age but under twenty years of age at the time the crime is committed and under twenty-one years of age at the time of sentencing pursuant to this section. Source: L. 2009: Entire section added, (HB 09-1122), ch. 77, p. 278, § 1, effective October 1. L. 2013: Entire section RC&RE, (SB 13-216), ch. 171, p. 617, § 1, effective May 10. Editor's note: Prior to the recreation and reenactment of this section in 2013, subsection (4) provided for the repeal of this section, effective October 1, 2012. (See L. 2009, p. 278.) 18-1.3-408. Determinate sentence of imprisonment imposed by court. When a person has been convicted of a felony and a sentence of imprisonment imposed, the court imposing the sentence shall fix a definite term of imprisonment, which shall be not longer than the terms authorized in section 18-1.3-401; except that, for persons convicted on or after November 1, 1998, of a sex offense, as defined in section 18-1.3-1003 (5), the court shall impose an indeterminate sentence as provided in part 10 of this article. Source: L. 2002: Entire article added with relocations, p. 1413, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-304 as it existed prior to 2002. Colorado Revised Statutes 2019 Page 126 of 695 Uncertified Printout 18-1.3-409. Concurrent or consecutive sentences - court to clarify sentencing in mittimus. Before remitting any mittimus to the department of corrections sentencing a defendant to the custody of the department, a court shall confirm that the mittimus properly reflects the sentencing order of the court and includes all necessary information regarding the sentence and any information as to whether a sentence is to be served concurrent with, or consecutive to, the sentence for any other count or any other case. Source: L. 2013: Entire section added, (HB 13-1323), ch. 325, p. 1817, § 2, effective May 28. PART 5 MISDEMEANOR AND PETTY OFFENSE SENTENCING 18-1.3-501. Misdemeanors classified - drug misdemeanors and drug petty offenses classified - penalties - legislative intent - definitions. (1) (a) Except as otherwise provided in subsection (1)(d) of this section, misdemeanors are divided into three classes that are distinguished from one another by the following penalties that are authorized upon conviction except as provided in subsection (1.5) of this section: Class Minimum Sentence 1 2 imprisonment, 3 Maximum Sentence Six months imprisonment, or five Eighteen months imprisonment, hundred dollar fine, or both or five thousand dollar fine, or both Three months imprisonment, or two T h r e e h u n d r e d s i x t y - f o u r d a y s hundred fifty dollar fine, or both Fifty dollar fine or one thousand dollar fine, or both Six months imprisonment, or seven hundred fifty dollar fine, or both (b) A term of imprisonment for conviction of a misdemeanor shall not be served in a state correctional facility unless served concurrently with a term for conviction of a felony. (c) A term of imprisonment in a county jail for a conviction of a misdemeanor, petty, or traffic misdemeanor offense shall not be ordered to be served consecutively to a sentence to be served in a state correctional facility; except that if, at the time of sentencing, the court determines, after consideration of all the relevant facts and circumstances, that a concurrent sentence is not warranted, the court may order that the misdemeanor sentence be served prior to the sentence to be served in the state correctional facility and prior to the time the defendant is transported to the state correctional facility to serve all or the remainder of the defendant's state correctional facility sentence. (d) [Editor's note: This version of subsection (1)(d) is effective until March 1, 2020.] For purposes of sentencing a person convicted of a misdemeanor drug offense described in article 18 of this title 18, committed on or after October 1, 2013, drug misdemeanors are divided Colorado Revised Statutes 2019 Page 127 of 695 Uncertified Printout into two levels that are distinguished from one another by the following penalties that are authorized upon conviction: Level Minimum Sentence Maximum Sentence DM1 Six months imprisonment, Eighteen months imprisonment, five hundred dollar fine, or both five thousand dollar fine, or both DM2 No imprisonment, fifty Three hundred sixty-four days imprisonment, seven dollar fine hundred fifty dollar fine, or both (d) [Editor's note: This version of subsection (1)(d) is effective March 1, 2020.] Except as provided in subsection (1)(d.5) of this section, for purposes of sentencing a person convicted of a misdemeanor drug offense described in article 18 of this title 18, committed on or after October 1, 2013, drug misdemeanors are divided into two levels that are distinguished from one another by the following penalties that are authorized upon conviction: Level Minimum Sentence Maximum Sentence DM1 Six months imprisonment, Eighteen months imprisonment, five hundred dollar fine, or both five thousand dollar fine, or both DM2 No imprisonment, fifty Three hundred sixty-four days imprisonment, seven dollar fine hundred fifty dollar fine, or both (d.5) [Editor's note: Subsection (1)(d.5) is effective March 1, 2020.] (I) It is the intention of the general assembly to classify most drug possession on and after March 1, 2020, as a misdemeanor offense with different sentencing options and limited incarceration penalties. The purpose of this sentencing scheme is to provide offenders who are assessed to be in need of treatment or other intervention with probation supervision in conjunction with effective medical and behavioral intervention and treatment. For those drug possessors who are not in need of treatment, sentencing by the courts system should be limited. This sentencing scheme recognizes that drug use and possession is primarily a health concern and should be treated as such by Colorado courts. (II) Notwithstanding the provisions of subsection (1)(d) of this section, for the purpose of sentencing a person convicted of a level 1 drug misdemeanor committed on or after March 1, 2020, in violation of section 18-18-403.5 or 18-18-406 (4)(b), a court may sentence an offender to probation for up to two years, with the possibility of a total of one hundred eighty days in county jail or, for a third or subsequent offense, a total of up to three hundred sixty-four days in county jail, which may be imposed in whole or in part during the time period of probation as a condition of probation or as a sanction for a violation of probation; or the court may sentence an offender to up to one hundred eighty days in the county jail; except that, for a third or subsequent offense, the court may sentence an offender to up to three hundred sixty-four days in the county jail. In addition to the sentence to probation or to the county jail, the offender may be punished by a fine of not more than one thousand dollars. (III) Notwithstanding the provisions of subsection (1)(d) of this section, for the purpose of sentencing a person convicted of a level 2 drug misdemeanor committed on or after March 1, Colorado Revised Statutes 2019 Page 128 of 695 Uncertified Printout 2020, in violation of section 18-18-404, 18-18-406 (4)(c), 18-18-406.1, or 18-18-412, a court may sentence an offender to probation for up to one year, with the possibility of a total of one hundred twenty days in county jail or, for a third or subsequent offense, a total of up to one hundred eighty days in county jail, which may be imposed in whole or in part during the time period of probation as a condition of probation or as a sanction for a violation of probation; or the court may sentence an offender to up to one hundred twenty days in the county jail; except that, for a third or subsequent offense, the court may sentence an offender to up to one hundred eighty days in the county jail. In addition to the sentence to probation or to the county jail, the offender may be punished by a fine of not more than five hundred dollars. (IV) Nothing in this subsection (1)(d.5) infringes upon the authority and discretion vested with a district attorney to file misdemeanor charges in either district court or county court, which courts, pursuant to section 13-6-106, have concurrent original jurisdiction over violations of state law that constitute misdemeanors. District attorneys are encouraged to file misdemeanor or drug charges in the court where, if there is a conviction, treatment and supervision can most effectively be matched to the defendant's assessed risk and treatment need levels. (e) For each drug petty offense, the sentencing range is stated in the offense statute. (1.5) (a) If a defendant is convicted of assault in the third degree under section 18-3-204 and the victim is a peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties, notwithstanding subsection (1) of this section, the court shall sentence the defendant to a term of imprisonment greater than the maximum sentence but no more than twice the maximum sentence authorized for the same crime when the victim is not a peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties. In addition to the term of imprisonment, the court may impose a fine on the defendant under subsection (1) of this section. At any time after sentencing and before the discharge of the defendant's sentence, the victim may request that the defendant participate in restorative justice practices with the victim. If the defendant accepts responsibility for and expresses remorse for his or her actions and is willing to repair the harm caused by his or her actions, an individual responsible for the defendant's supervision shall make the necessary arrangements for the restorative justice practices requested by the victim. (b) As used in this section, "peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties" means a peace officer as described in section 16-2.5-101, C.R.S., emergency medical service provider as defined in part 1 of article 3.5 of title 25, C.R.S., emergency medical care provider as defined by section 18-3-201 (1), or a firefighter as defined in section 18-3-201 (1.5), who is engaged or acting in or who is present to engage or act in the performance of a duty, service, or function imposed, authorized, required, or permitted by law to be performed by a peace officer, emergency medical service provider, emergency medical care provider, or firefighter, whether or not the peace officer, emergency medical service provider, emergency medical care provider, or firefighter is within the territorial limits of his or her jurisdiction, if the peace officer, emergency medical service provider, emergency medical care provider, or firefighter is in uniform or the person committing an assault upon or offense against or otherwise acting toward the peace officer, emergency medical service provider, emergency medical care provider, or firefighter knows or reasonably should know that the victim is a peace officer, emergency medical service provider, emergency medical care provider, or firefighter or if the peace officer, emergency Colorado Revised Statutes 2019 Page 129 of 695 Uncertified Printout medical service provider, emergency medical care provider, or firefighter is intentionally assaulted in retaliation for the performance of his or her official duties. (1.7) (a) If a defendant is convicted of assault in the third degree pursuant to section 183-204 or reckless endangerment pursuant to section 18-3-208 and the victim is a mental health professional employed by or under contract with the department of human services engaged in the performance of his or her duties, notwithstanding the provisions of subsection (1) of this section, the court may sentence the defendant to a term of imprisonment greater than the maximum sentence but not more than twice the maximum sentence authorized for the crime when the victim is not a mental health professional employed by or under contract with the department of human services engaged in the performance of his or her duties. In addition to a term of imprisonment, the court may impose a fine on the defendant pursuant to subsection (1) of this section. (b) "Mental health professional" means a mental health professional licensed to practice medicine pursuant to article 240 of title 12 or a person licensed as a mental health professional pursuant to article 245 of title 12, a person licensed as a nurse pursuant to article 255 of title 12, a nurse aide certified pursuant to article 260 of title 12, and a psychiatric technician licensed pursuant to article 295 of title 12. (2) The defendant may be sentenced to perform a certain number of hours of community or useful public service in addition to any other sentence provided by subsection (1) of this section, subject to the conditions and restrictions of section 18-1.3-507. An inmate in county jail acting as a trustee shall not be given concurrent credit for community or useful public service when such service is performed in his or her capacity as trustee. For the purposes of this subsection (2), "community or useful public service" means any work which is beneficial to the public, any public entity, or any bona fide nonprofit private or public organization, which work involves a minimum of direct supervision or other public cost and which work would not, with the exercise of reasonable care, endanger the health or safety of the person required to work. (3) (a) The general assembly hereby finds that certain misdemeanors which are listed in paragraph (b) of this subsection (3) present an extraordinary risk of harm to society and therefore, in the interest of public safety, the maximum sentence for such misdemeanors shall be increased by six months. (b) Misdemeanors that present an extraordinary risk of harm to society shall include the following: (I) Assault in the third degree, as defined in section 18-3-204; (I.5) (A) Sexual assault, as defined in section 18-3-402; or (B) Sexual assault in the second degree, as defined in section 18-3-403, as it existed prior to July 1, 2000; (II) (A) Unlawful sexual contact, as defined in section 18-3-404; or (B) Sexual assault in the third degree, as defined in section 18-3-404, as it existed prior to July 1, 2000; (III) Child abuse, as defined in section 18-6-401 (7)(a)(V); (IV) Second and all subsequent violations of a protection order as defined in section 186-803.5 (1.5)(a.5); (V) Misdemeanor failure to register as a sex offender, as described in section 18-3412.5; Colorado Revised Statutes 2019 Page 130 of 695 Uncertified Printout (VI) Misdemeanor invasion of privacy for sexual gratification, as described in section 18-3-405.6; and (VII) False reporting of an emergency, as described in section 18-8-111. (4) Notwithstanding any provision of law to the contrary, any person who attempts to commit, conspires to commit, or commits against an elderly person any misdemeanor set forth in part 4 of article 4 of this title, part 1, 2, 3, or 5 of article 5 of this title, or article 5.5 of this title shall be required to pay a mandatory and substantial fine within the limits permitted by law. However, all moneys collected from the offender shall be applied in the following order: Costs for crime victim compensation fund pursuant to section 24-4.1-119, C.R.S.; surcharges for victims and witnesses assistance and law enforcement fund pursuant to section 24-4.2-104, C.R.S.; restitution; time payment fee; late fees; and any other fines, fees, or surcharges. For purposes of this subsection (4), an "elderly person" or "elderly victim" means a person sixty years of age or older. (5) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. (6) For a defendant who is convicted of assault in the third degree, as described in section 18-3-204, the court, in addition to any fine the court may impose, shall sentence the defendant to a term of imprisonment of at least six months, but not longer than the maximum sentence authorized for the offense, as specified in this section, which sentence shall not be suspended in whole or in part, if the court makes the following findings on the record: (a) The victim of the offense was pregnant at the time of commission of the offense; and (b) The defendant knew or should have known that the victim of the offense was pregnant. (c) (Deleted by amendment, L. 2003, p. 2163, § 4, effective July 1, 2003.) Source: L. 2002: Entire article added with relocations, p. 1413, § 2, effective October 1. L. 2003: (3)(b)(IV) amended, p. 1014, § 22, effective July 1; (6)(b) and (6)(c) amended, p. 2163, § 4, effective July 1; (1.5)(b) amended, p. 1624, § 44, effective August 6. L. 2004: (3)(a) amended, p. 634, § 3, effective August 4. L. 2005: (1.7) added, p. 1009, § 1, effective July 1. L. 2007: (1) amended, p. 557, § 4, effective April 16. L. 2008: (1.7)(b) and (4) amended, p. 1890, § 55, effective August 5. L. 2009: (1.5) amended, (HB 09-1120), ch. 305, p. 1650, § 2, effective July 1. L. 2010: (1.5)(b) amended, (HB 10-1422), ch. 419, p. 2073, § 32, effective August 11; (3)(b)(IV) and (3)(b)(V) amended and (3)(b)(VI) added, (SB 10-128), ch. 415, p. 2046, § 6, effective July 1, 2012. L. 2011: (1.5) amended, (HB 11-1105), ch. 250, p. 1087, § 1, effective August 10. L. 2012: (1.5) amended, (HB 12-1059), ch. 271, p. 1434, § 11, effective July 1. L. 2013: IP(1)(a) amended and (1)(d) and (1)(e) added, (SB 13-250), ch. 333, p. 1907, § 5, effective October 1. L. 2014: (1)(d) amended, (SB 14-163), ch. 391, p. 1974, § 12, effective June 6; (1.5)(b) amended, (HB 14-1214), ch. 336, p. 1498, § 9, effective August 6. L. 2015: (1.5)(b) amended, (SB 15-126), ch. 109, p. 319, § 5, effective July 1; (1.5)(b) amended, (SB 15-067), ch. 337, p. 1367, § 4, effective September 1. L. 2018: (3)(b)(V) and (3)(b)(VI) amended and (3)(b)(VII) added, (SB 18-069), ch. 401, p. 2372, § 3, effective July 1. L. 2019: (1)(a) and (1)(d) amended, (HB 19-1148), ch. 59, p. 201, § 2, effective August 2; (1.7)(b) amended, (HB 191172), ch. 136, p. 1674, § 91, effective October 1; (1)(d) amended and (1)(d.5) added, (HB 191263), ch. 291, p. 2679, § 6, effective March 1, 2020. Colorado Revised Statutes 2019 Page 131 of 695 Uncertified Printout Editor's note: (1) This section is similar to former § 18-1-106 as it existed prior to 2002. (2) Amendments to subsection (1.5)(b) by SB 15-067 and SB 15-126 were harmonized. (3) Section 11(2) of chapter 291 (HB 19-1263), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after March 1, 2020. (4) Amendments to subsection (1)(d) by HB 19-1148 and HB 19-1263 were harmonized, effective March 1, 2020. Cross references: For the legislative declaration contained in the 2003 act amending subsections (6)(b) and (6)(c), see section 1 of chapter 340, Session Laws of Colorado 2003. 18-1.3-502. Duration of sentences for misdemeanors. Courts sentencing any person for the commission of a misdemeanor to the custody of the executive director of the department of corrections shall not fix a minimum term but may fix a maximum term less than the maximum provided by law for the offense. The persons so sentenced shall be imprisoned, released under parole, and discharged as provided by other applicable statutes. No person sentenced to a correctional facility for the commission of a misdemeanor shall be subjected to imprisonment for a term exceeding the maximum term provided by the statute fixing the maximum length of the sentence for the crime of which he or she was convicted and for which he or she was sentenced. A person sentenced to a term of imprisonment for the commission of a misdemeanor shall be entitled to the same time credits as if he or she were sentenced to a term of imprisonment for the commission of a felony. No person committed as a juvenile delinquent shall be imprisoned for a term exceeding two years, except as otherwise provided for aggravated juvenile offenders in section 19-2-601, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1416, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-302.5 as it existed prior to 2002. 18-1.3-503. Petty offenses classified - penalties. (1) A violation of a statute of this state is a petty offense if specifically classified as a class 1 or class 2 petty offense. The penalty for commission of a class 1 petty offense, upon conviction, is a fine of not more than five hundred dollars, or imprisonment for not more than six months other than in state correctional facilities, or both. The penalty for commission of a class 2 petty offense is a fine specified in the section defining the offense. The penalty assessment procedure of section 16-2-201, C.R.S., is available for the payment of fines in class 2 petty offense cases. (2) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1416, § 2, effective October 1. Editor's note: This section is similar to former § 18-1-107 as it existed prior to 2002. Colorado Revised Statutes 2019 Page 132 of 695 Uncertified Printout 18-1.3-504. Misdemeanors and petty offenses not classified. (1) Any misdemeanor or petty offense defined by state statute without specification of its class shall be punishable as provided in the statute defining it. (2) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1416, § 2, effective October 1. Editor's note: This section is similar to former § 18-1-108 as it existed prior to 2002. 18-1.3-505. Penalty for misdemeanor not fixed by statute - punishment. (1) In all cases where an offense is denominated a misdemeanor and no penalty is fixed in the statute therefor, the punishment shall be imprisonment for not more than three hundred sixty-four days in the county jail, or a fine of not more than one thousand dollars, or both imprisonment and fine. (2) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1416, § 2, effective October 1. L. 2019: (1) amended, (HB 19-1148), ch. 59, p. 202, § 3, effective August 2. Editor's note: This section is similar to former § 18-1-109 as it existed prior to 2002. 18-1.3-506. Payment and collection of fines for class 1, 2, or 3 misdemeanors and class 1 or 2 petty offenses - release from incarceration. (1) Whenever the court imposes a fine for a nonviolent class 1, 2, or 3 misdemeanor or for a class 1 or 2 petty offense, if the person who committed the offense is unable to pay the fine at the time of the court hearing or if he or she fails to pay any fine imposed for the commission of such offense, in order to guarantee the payment of such fine, the court may: (a) Require the person to post sufficient bond or collateral; or (b) Enter a judgment in favor of the state or political subdivision to whom the fine is owed and enter an order based on such judgment for the garnishment of the person's earnings in accordance with the provisions of either article 54 or 54.5 of title 13, C.R.S., for the purpose of collecting said fine and the costs incurred in collecting said fine; or (c) Enter a judgment in favor of the state or political subdivision to whom the fine is owed and execute a lien based on such judgment on any chattels, lands, tenements, moneys, and real estate of the person in accordance with article 52 of title 13, C.R.S., for the purpose of collecting said fine and the costs incurred in collecting said fine. (2) The state or a political subdivision may appear before a court of record in this state and request that the court order the release from a county jail or a correctional facility of a person who has been incarcerated as a result of the failure to pay a fine or the failure to appear in court in connection with the commission of a nonviolent class 1, 2, or 3 misdemeanor or a class 1 or 2 petty offense upon the condition that the fine and any costs of collection are collected from the person incarcerated by the use of one of the methods set forth in subsection (1) of this section. Colorado Revised Statutes 2019 Page 133 of 695 Uncertified Printout (3) For the purposes of this section, "nonviolent class 1, 2, or 3 misdemeanor" means a class 1, 2, or 3 misdemeanor that does not involve cruelty to an animal, as described in section 18-9-202 (1)(a), or the use or threat of physical force on or to a person in the commission of the misdemeanor. Source: L. 2002: Entire article added with relocations, p. 1417, § 2, effective October 1. Editor's note: This section is similar to former § 18-1-110 as it existed prior to 2002. 18-1.3-507. Community or useful public service - misdemeanors. (1) Any sentence imposed pursuant to section 18-1.3-501 (2) is subject to the conditions and restrictions of this section. (2) (a) A probation department, sentencing court, county sheriff, board of county commissioners, or any other governmental entity, or a private nonprofit or for-profit entity that has a contract with a governmental entity, may establish a community or useful public service program. It is the purpose of the community or useful public service program: To identify and seek the cooperation of governmental entities and political subdivisions thereof, as well as corporations, associations, or charitable trusts, for the purpose of providing community or useful public service jobs; to interview persons who have been ordered by the court to perform community or useful public service and to assign such persons to suitable community or useful public service jobs; and to monitor compliance or noncompliance of such persons in performing community or useful public service assignments within the time established by the court. (b) Nothing in this subsection (2) limits the authority of an entity that is the recipient of community or useful public service to accept or reject such service, in its sole discretion. (2.5) The following organizations are eligible to provide community or useful public service jobs established under this article 1.3 or any other provision of law so long as they meet any other requirement related to the provision of those jobs, as established by the entity that is the recipient of community or useful public service: (a) A charitable trust or other organization that is exempt from taxation under section 501 (c)(3) of the federal "Internal Revenue Code of 1986", as amended; (b) A civic league or organization that is exempt from taxation under section 501 (c)(4) of the federal "Internal Revenue Code of 1986", as amended, and that also would qualify as a veterans' service organization as defined in section 501 (c)(19) of the federal "Internal Revenue Code of 1986", as amended; and (c) A veterans' service organization that is exempt from taxation under section 501 (c)(19) of the federal "Internal Revenue Code of 1986", as amended. (3) Any general public liability insurance policy obtained pursuant to this section shall provide coverage for injuries caused by a person performing services under this section and shall be in a sum of not less than the current limit on government liability under the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S. (4) For the purposes of the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S., public employee, as defined in section 24-10-103, C.R.S., does not include any person who is sentenced to participate in any type of community or useful public service. (5) No governmental entity or private nonprofit or for-profit entity which has a contract with a governmental entity shall be liable under the "Workers' Compensation Act of Colorado", Colorado Revised Statutes 2019 Page 134 of 695 Uncertified Printout articles 40 to 47 of title 8, C.R.S., or under the "Colorado Employment Security Act", articles 70 to 82 of title 8, C.R.S., for any benefits on account of any person who is sentenced to participate in any type of community or useful public service, but nothing in this subsection (5) shall prohibit a governmental entity or private nonprofit or for-profit entity from electing to accept the provisions of the "Workers' Compensation Act of Colorado" by purchasing and keeping in force a policy of workers' compensation insurance covering such person. (6) (a) The court shall assess a fee, not to exceed one hundred twenty dollars, upon every person required to perform community or useful public service pursuant to section 18-1.3-501 (2), 18-18-432, or 42-4-1301.4. The amount of the fee must be commensurate with the costs of administering the person's community or useful public service program. The court may waive this fee if the court determines the defendant to be indigent. In counties where the judicial department operates the local useful public service program, the court shall transfer each such fee to the state treasurer, who shall credit the fee to the fund created in section 18-1.3-507.5. (b) Money collected as fees pursuant to subsection (6)(a) of this section may be used by the operating agency responsible for overseeing such person's community or useful public service program or by the judicial department, as may be applicable, to pay the cost of administration of the program and the cost of personal services. The proceeds from such amounts may be used by the operating agency only for defraying the cost of personal services and other operating expenses related to the administration of the program, a general liability policy covering such person, and, if such person will be covered by workers' compensation insurance pursuant to subsection (5) of this section or an insurance policy providing such or similar coverage, the cost of purchasing and keeping in force such insurance coverage and may not be used by the operating agency for any other purpose. Source: L. 2002: Entire article added with relocations, p. 1417, § 2, effective October 1. L. 2004: (2)(a) amended and (2.5) added, p. 505, § 1, effective August 4. L. 2017: (1), (2)(b), and (2.5) amended, (HB 17-1056), ch. 56, p. 177, § 1, effective March 20; (6) amended, (HB 171077), ch. 222, p. 858, § 1, effective August 9. Editor's note: This section is similar to former § 16-11-701 as it existed prior to 2002. Cross references: For community service for juvenile offenders, see § 19-2-308; for useful public service for alcohol- or drug-related traffic offenses, see § 42-4-1301; for community or useful public service for class 1 and class 2 misdemeanor traffic offenders, see § 42-4-1701. 18-1.3-507.5. Useful public service cash fund created. (1) The useful public service cash fund, referred to within this section as the "fund", is created in the state treasury. The fund consists of money collected as fees and credited to the fund pursuant to subsection (3) of this section and any other money that the general assembly may appropriate or transfer to the fund. Money in the fund is continuously appropriated to the judicial department for the cost of administering useful public service programs and associated costs for personal services; except that the fund is subject to the limitations on uncommitted reserves described in section 24-75402. Colorado Revised Statutes 2019 Page 135 of 695 Uncertified Printout (2) The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund. Any unexpended and unencumbered money remaining in the fund at the end of a fiscal year remains in the fund and may not be transferred to the general fund or to another fund. (3) In counties where the judicial department operates a useful public service program as provided in section 18-1.3-507, 18-18-432, or 42-4-1301.4, the court shall collect any money assessed as fees pursuant to such sections and transfer such money to the state treasurer, who shall credit the money to the fund. Source: L. 2017: Entire section added, (HB 17-1077), ch. 222, p. 859, § 2, effective August 9. 18-1.3-508. Definite sentence not void. If, through oversight or otherwise, any person is sentenced or committed to the custody of the executive director of the department of corrections for the commission of a misdemeanor for a definite period of time, the sentence or commitment shall not for that reason be void, but the person so sentenced or committed shall be subject to the liabilities and entitled to the benefits which are applicable to those persons who are properly sentenced. Source: L. 2002: Entire article added with relocations, p. 1419, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-303 as it existed prior to 2002. 18-1.3-509. Credit for time served on misdemeanor sentences. A person who is confined for a misdemeanor offense prior to the imposition of a sentence for the misdemeanor offense shall be entitled to credit against the term of his or her sentence for the entire period of the confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include the finding in the mittimus. The period of confinement shall be deducted from the offender's sentence by the county jail. Source: L. 2007: Entire section added, p. 558, § 5, effective April 16. PART 6 RESTITUTION Law reviews: For article, "Restitution in Criminal Cases", see 30 Colo. Law. 125 (Oct. 2001). 18-1.3-601. Legislative declaration. (1) The general assembly finds and declares that: (a) Crime victims endure undue suffering and hardship resulting from physical injury, emotional and psychological injury, or loss of property; (b) Persons found guilty of causing such suffering and hardship should be under a moral and legal obligation to make full restitution to those harmed by their misconduct; Colorado Revised Statutes 2019 Page 136 of 695 Uncertified Printout (c) The payment of restitution by criminal offenders to their victims is a mechanism for the rehabilitation of offenders; (d) Restitution is recognized as a deterrent to future criminality; (e) An effective criminal justice system requires timely restitution to victims of crime and to members of the immediate families of such victims in order to lessen the financial burdens inflicted upon them, to compensate them for their suffering and hardship, and to preserve the individual dignity of victims; (f) Former procedures for restitution assessment, collection, and distribution have proven to be inadequate and inconsistent from case to case; (g) The purposes of this part 6 are to facilitate: (I) The establishment of programs and procedures to provide for and collect full restitution for victims of crime in the most expeditious manner; and (II) The effective and timely assessment, collection, and distribution of restitution requires the cooperation and collaboration of all criminal justice agencies and departments. (2) It is the intent of the general assembly that restitution be ordered, collected, and disbursed to the victims of crime and their immediate families. Such restitution will aid the offender in reintegration as a productive member of society. This part 6 shall be liberally construed to accomplish all such purposes. Source: L. 2002: Entire article added with relocations, p. 1419, § 2, effective October 1. Editor's note: This section is similar to former § 16-18.5-101 as it existed prior to 2002. 18-1.3-602. Definitions. As used in this part 6, unless the context otherwise requires: (1) "Collections investigator" means a person employed by the judicial department whose primary responsibility is to administer, enforce, and collect on court orders or judgments entered with respect to fines, fees, restitution, or any other accounts receivable of the court, judicial district, or judicial department. (2) "Conviction" means a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by the court for a felony, misdemeanor, petty offense, or traffic misdemeanor offense, or adjudication for an offense that would constitute a criminal offense if committed by an adult. "Conviction" also includes having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication. (2.3) "Money advanced by a governmental agency for a service animal" means costs incurred by a peace officer, law enforcement agency, fire department, fire protection district, or governmental search and rescue agency for the veterinary treatment and disposal of a service animal that was harmed while aiding in official duties and for the training of an animal to become a service animal to replace a service animal that was harmed while aiding in official duties, as applicable. (2.5) Repealed. (3) (a) "Restitution" means any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses Colorado Revised Statutes 2019 Page 137 of 695 Uncertified Printout or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. "Restitution" does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages. (a.5) "Restitution" includes, for a person convicted of assault in the first, second, or third degree, as described in section 18-3-202, 18-3-203, or 18-3-204, all or any portion of the financial obligations of medical tests performed on and treatment prescribed for a victim, peace officer, firefighter, emergency medical care provider, or emergency medical service provider. (b) "Restitution" may also include extraordinary direct public and all private investigative costs. (c) (I) "Restitution" shall also include all costs incurred by a government agency or private entity to: (A) Remove, clean up, or remediate a place used to manufacture or attempt to manufacture a controlled substance or which contains a controlled substance or which contains chemicals, supplies, or equipment used or intended to be used in the manufacturing of a controlled substance; (B) Store, preserve, or test evidence of a controlled substance violation; or (C) Sell and provide for the care of and provision for an animal disposed of under the animal cruelty laws in accordance with part 2 of article 9 of this title or article 42 of title 35, C.R.S. (II) Costs under this paragraph (c) shall include, but are not limited to, overtime wages for peace officers or other government employees, the operating expenses for any equipment utilized, and the costs of any property designed for one-time use, such as protective clothing. (d) "Restitution" shall also include costs incurred by a governmental agency or insurer that provides medical benefits, health benefits, or nonmedical support services directly related to a medical or health condition to a victim for losses or injuries proximately caused by an offender's conduct, including but not limited to costs incurred by medicaid and other care programs for indigent persons. (3.5) "Service animal" means any animal, the services of which are used to aid the performance of official duties by a peace officer, law enforcement agency, fire department, fire protection district, or governmental search and rescue agency. (4) (a) "Victim" means any person aggrieved by the conduct of an offender and includes but is not limited to the following: (I) Any person against whom any felony, misdemeanor, petty, or traffic misdemeanor offense has been perpetrated or attempted; (II) Any person harmed by an offender's criminal conduct in the course of a scheme, conspiracy, or pattern of criminal activity; (III) Any person who has suffered losses because of a contractual relationship with, including but not limited to, an insurer, or because of liability under section 14-6-110, C.R.S., for a person described in subparagraph (I) or (II) of this paragraph (a); (IV) Any victim compensation board that has paid a victim compensation claim; (V) If any person described in subparagraph (I) or (II) of this paragraph (a) is deceased or incapacitated, the person's spouse, parent, legal guardian, natural or adopted child, child living with the victim, sibling, grandparent, significant other, as defined in section 24-4.1-302 (4), C.R.S., or other lawful representative; Colorado Revised Statutes 2019 Page 138 of 695 Uncertified Printout (VI) Any person who had to expend resources for the purposes described in paragraphs (b), (c), and (d) of subsection (3) of this section. (b) "Victim" shall not include a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan as defined under the law of this state or of the United States. (c) Any "victim" under the age of eighteen is considered incapacitated, unless that person is legally emancipated or the court orders otherwise. (d) It is the intent of the general assembly that this definition of the term "victim" shall apply to this part 6 and shall not be applied to any other provision of the laws of the state of Colorado that refers to the term "victim". (e) Notwithstanding any other provision of this section, "victim" includes a person less than eighteen years of age who has been trafficked by an offender, as described in section 18-3503 or 18-3-504. Source: L. 2002: Entire article added with relocations, p. 1420, § 2, effective October 1. L. 2003: (2) and (3)(a) amended and (2.5) added, p. 1049, § 2, effective September 1. L. 2004: (2.5) repealed, p. 904, § 27, effective May 21. L. 2005: (2.3) and (3.5) added and (3)(a) amended, p. 192, § 1, effective July 1; (3)(c) and (4)(a)(VI) added, p. 1498, §§ 1, 2, effective July 1. L. 2006: (3)(c)(I) amended, p. 895, § 4, effective August 7. L. 2012: (4)(e) added, (HB 12-1151), ch. 174, p. 626, § 8, effective August 8. L. 2013: (3)(d) added and (4)(a)(VI) amended, (SB 13-229), ch. 272, p. 1429, § 7, effective July 1. L. 2014: (4)(e) amended, (HB 141273), ch. 282, p. 1154, § 16, effective July 1. L. 2016: (3)(a.5) added, (HB 16-1393), ch. 304, p. 1225, § 2, effective July 1. Editor's note: This section is similar to former § 16-18.5-102 as it existed prior to 2002. 18-1.3-603. Assessment of restitution - corrective orders. (1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution. Each such order shall include one or more of the following: (a) An order of a specific amount of restitution be paid by the defendant; (b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined; (c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or (d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered. (2) The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Colorado Revised Statutes 2019 Page 139 of 695 Uncertified Printout Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution. (3) Any order for restitution may be: (a) Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court; or (b) Decreased: (I) With the consent of the prosecuting attorney and the victim or victims to whom the restitution is owed; or (II) If the defendant has otherwise compensated the victim or victims for the pecuniary losses suffered. (4) (a) (I) Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full. The provisions of article 18.5 of title 16, C.R.S., apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication, the entry of an order of expungement pursuant to section 191-306, C.R.S., or an order to seal entered pursuant to part 7 of article 72 of title 24, C.R.S. (II) Notwithstanding the provisions of subparagraph (I) of this paragraph (a), two years after the presentation of the defendant's original death certificate to the clerk of the court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, following notice by the clerk of the court or the court collections investigator to the district attorney, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution. The termination of a judgment and order pursuant to this subparagraph (II) does not terminate an associated judgment against a defendant who is jointly and severally liable with the deceased defendant. (b) Any order for restitution made pursuant to this section is also an order that: (I) Except as provided in subsection (4)(b.5) of this section, the defendant owes simple interest from the date of the entry of the order at the rate of eight percent per annum; and (II) The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant's nonpayment. (b.5) (I) Interest on an order for restitution does not accrue while: (A) The defendant is serving a sentence in a correctional facility operated by or under contract with the department of corrections located within the state; or (B) The defendant is in a juvenile delinquency case and is under twenty-one years of age. (II) In any case where interest was accruing on an order of restitution at the rate of twelve percent per annum, on and after January 1, 2020, interest accrues at the rate of eight percent per annum. (c) The entry of an order for restitution under this section creates a lien by operation of law against the defendant's personal property and any interest that the defendant may have in any personal property. Colorado Revised Statutes 2019 Page 140 of 695 Uncertified Printout (d) Any order of restitution imposed shall be considered a debt for "willful and malicious" injury for purposes of exceptions to discharge in bankruptcy as provided in 11 U.S.C. sec. 523. (e) The clerk of the court is authorized to adjust the unpaid balance in the case upon proof that any restitution or related interest amounts have been or will be satisfied outside of the court registry and receipting process regardless of when the restitution order and judgment were entered. The accounting adjustment does not modify a court's order. (5) If more than one defendant owes restitution to the same victim for the same pecuniary loss, the orders for restitution shall be joint and several obligations of the defendants. (6) Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in any federal or state civil proceeding. (7) When a person's means of identification or financial information was used without that person's authorization in connection with a conviction for any crime in violation of part 2, 3, or 4 of article 4, part 1, 2, 3, or 7 of article 5, or article 5.5 of this title, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from any violation of such laws. In addition, the restitution order shall include any costs incurred by the victim related to section 16-5-103, C.R.S. (8) (a) Notwithstanding the provisions of subsection (1) of this section, for a non-felony conviction under title 42, C.R.S., the court shall order restitution concerning only the portion of the victim's pecuniary loss for which the victim cannot be compensated under a policy of insurance, self-insurance, an indemnity agreement, or a risk management fund. (b) The court, in determining the restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by: (I) A complying policy of insurance or certificate of self-insurance as required by the laws of this state; (II) Self-insurance including but not limited to insurance coverage pursuant to the provisions of part 15 of article 30 of title 24, C.R.S.; or (III) Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim. (c) (I) Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement. (II) (A) A court may award a victim restitution for a deductible amount under his or her policy of insurance. (B) (Deleted by amendment, L. 2004, p. 904, § 28, effective May 21, 2004.) (d) (I) (Deleted by amendment, L. 2004, p. 904, § 28, effective May 21, 2004.) (II) Nothing in this paragraph (d) shall prohibit a nonowner driver or passenger in the vehicle from being awarded restitution if the driver or passenger was not covered by his or her own medical payments coverage policy. (e) (I) Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement. Colorado Revised Statutes 2019 Page 141 of 695 Uncertified Printout (II) Notwithstanding any provision of law, indemnity contract, or insurance contract to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to pay or otherwise satisfy a civil judgment entered pursuant to this part 6, or to indemnify a defendant for an amount awarded in a restitution order. (f) Nothing in this article shall be construed to limit or abrogate the rights and immunities set forth in the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S. (g) The provisions of this subsection (8) shall not preclude the court, pursuant to article 4.1 of title 24, C.R.S., from ordering restitution to reimburse an expenditure made by a victim compensation fund. (9) For a conviction for human trafficking for involuntary servitude, as described in section 18-3-503, or for human trafficking for sexual servitude, as described in section 18-3-504, the court shall order restitution, if appropriate, pursuant to this section even if the victim is unavailable to accept payment of restitution. (10) (a) If, as a result of the defendant's conduct, a crime victim compensation board has provided assistance to or on behalf of a victim pursuant to article 4.1 of title 24, C.R.S., the amount of assistance provided and requested by the crime victim compensation board is presumed to be a direct result of the defendant's criminal conduct and must be considered by the court in determining the amount of restitution ordered. (b) The amount of assistance provided is established by either: (I) A list of the amount of money paid to each provider; or (II) If the identity or location of a provider would pose a threat to the safety or welfare of the victim, summary data reflecting what total payments were made for: (A) Medical and dental expenses; (B) Funeral or burial expenses; (C) Mental health counseling; (D) Wage or support losses; or (E) Other expenses. (c) Records of a crime victim compensation board relating to a claimed amount of restitution are subject to the provisions of section 24-4.1-107.5, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1421, § 2, effective October 1. L. 2003: (8) added, p. 1048, § 1, effective September 1. L. 2004: (8)(c)(I), (8)(c)(II)(B), and (8)(d) amended, p. 904, § 28, effective May 21. L. 2012: (1)(b) and (2) amended, (SB 12-175), ch. 208, p. 866, § 112, effective July 1. L. 2013: (7) amended, (HB 13-1146), ch. 43, p. 119, § 2, effective March 15. L. 2014: (4)(a) amended, (HB 14-1035), ch. 21, p. 152 , § 2, effective March 7; (9) added, (HB 14-1273), ch. 282, p. 1150, § 2, effective July 1. L. 2015: (10) added, (HB 151035), ch. 60, p. 147, § 6, effective March 30. L. 2016: (4)(a), IP(4)(b), and (4)(b)(I) amended and (4)(e) added, (SB 16-065), ch. 277, p. 1142, § 1, effective July 1. L. 2019: (4)(b)(I) amended and (4)(b.5) added, (HB 19-1310), ch. 303, p. 2778, § 1, effective July 1. Editor's note: (1) This section is similar to former § 16-18.5-103 as it existed prior to 2002. (2) Section 5 of chapter 277 (SB 16-065), Session Laws of Colorado 2016, provides that changes to this section by the act apply to orders entered on or after July 1, 2016, and to existing Colorado Revised Statutes 2019 Page 142 of 695 Uncertified Printout instances or future instances in which an offender's death certificate has been presented to the clerk of the court or the court collections investigator. (3) Section 3 of chapter 303 (HB 19-1310), Session Laws of Colorado 2019, provides that the act changing this section applies to orders entered on or after July 1, 2019. PART 7 FINES AND COSTS 18-1.3-701. Judgment for costs and fines - definitions. (1) (a) Where any person, association, or corporation is convicted of an offense, or any juvenile is adjudicated a juvenile delinquent for the commission of an act that would have been a criminal offense if committed by an adult, the court shall give judgment in favor of the state of Colorado, the appropriate prosecuting attorney, or the appropriate law enforcement agency and against the offender or juvenile for the amount of the costs of prosecution, the amount of the cost of care, and any fine imposed. No fine shall be imposed for conviction of a felony except as provided in section 181.3-401 or 18-7-203 (2)(a). Such judgments shall be enforceable in the same manner as are civil judgments, and, in addition, the provisions of section 16-11-101.6, C.R.S., and section 18-1.3702 apply. A county clerk and recorder may not charge a fee for the recording of a transcript or satisfaction of a judgment entered pursuant to this section. (b) Except as otherwise provided in paragraph (c) of this subsection (1), on and after July 1, 2010, all judgments collected pursuant to this section for fees and court costs shall be transmitted to the state treasurer for deposit in the judicial stabilization cash fund created in section 13-32-101 (6), C.R.S. (c) Judgments collected pursuant to this section for fees for auxiliary services provided pursuant to section 13-90-204, and reimbursed pursuant to section 13-90-210, shall be remitted to the Colorado commission for the deaf, hard of hearing, and deafblind in the department of human services created in section 26-21-104. (2) The costs assessed pursuant to subsection (1) of this section or section 16-18-101 may include: (a) Any docket fee required by article 32 of title 13, C.R.S., or any other fee or tax required by statute to be paid to the clerk of the court; (b) The jury fee required by section 13-71-144, C.R.S.; (c) Any fees required to be paid to sheriffs pursuant to section 30-1-104, C.R.S.; (d) Any fees of the court reporter for all or any part of a transcript necessarily obtained for use in the case, including the fees provided for in section 16-18-101 (2), C.R.S., and including the fees for a transcript of any preliminary hearing; (d.5) The actual costs paid to any expert witness; (e) (I) The witness fees and mileage paid pursuant to article 33 of title 13, C.R.S., and section 16-9-203, C.R.S.; (II) For any person required to travel more than fifty miles from the person's place of residence to the place where specified in the subpoena, in addition to the witness fee and mileage specified in subparagraph (I) of this paragraph (e): (A) Actual lodging expenses incurred; and (B) Actual rental car, taxi, or other transportation costs incurred; Colorado Revised Statutes 2019 Page 143 of 695 Uncertified Printout (e.5) If a person under eighteen years of age is required to appear, the amount that a parent or guardian of the person was paid for transportation and lodging expenses incurred while accompanying the person; (f) Any fees for exemplification and copies of papers necessarily obtained for use in the case; (g) Any costs of taking depositions for the perpetuation of testimony, including reporter's fees, witness fees, expert witness fees, mileage for witnesses, and sheriff fees for service of subpoenas; (h) Any statutory fees for service of process or statutory fees for any required publications; (h.5) Any fees for interpreters required during depositions or during trials; (i) Any item specifically authorized by statute to be included as part of the costs; (j) Repealed. (j.5) On proper motion of the prosecuting attorney and at the discretion of the court, any other reasonable and necessary costs incurred by the prosecuting attorney or law enforcement agency that are directly the result of the successful prosecution of the defendant, including the costs resulting from the collection and analysis of any chemical test upon the defendant pursuant to section 42-4-1301.1, which costs the court shall assess against the defendant, collect from the defendant, and transfer to the prosecuting attorney or law enforcement agency. (k) Any costs incurred in obtaining a governor's warrant pursuant to section 16-19-108, C.R.S.; (l) Any costs incurred by the law enforcement agency in photocopying reports, developing film, and purchasing videotape as necessary for use in the case; (m) Any costs of participation in a diversion program if the offender or juvenile unsuccessfully participated in a diversion program prior to the conviction or adjudication. (3) Where any person, association, or corporation is granted probation, the court shall order the offender to make such payments toward the cost of care as are appropriate under the circumstances. In setting the amount of such payments, the court shall take into consideration and make allowances for any restitution ordered to the victim or victims of a crime, which shall take priority over any payments ordered pursuant to this article, and for the maintenance and support of the offender's spouse, dependent children, or other persons having a legal right to support and maintenance from the estate of the offender. If the court determines that the offender has a sufficient estate to pay all or part of the cost of care, the court shall determine the amount which shall be paid by the offender for the cost of care, which amount shall in no event be in excess of the per capita cost of supervising an offender on probation. (4) Where any person is sentenced to a term of imprisonment, whether to a county jail or the department of corrections, the court shall order such person to make such payments toward the cost of care as are appropriate under the circumstances. In setting the amount of such payments, the court shall take into consideration and make allowances for any restitution ordered to the victim or victims of a crime, which shall take priority over any payments ordered pursuant to this article, and for the maintenance and support of the inmate's spouse, dependent children, or any other persons having a legal right to support and maintenance out of the offender's estate. The court shall also consider the financial needs of the offender for the six-month period immediately following the offender's release, for the purpose of allowing said offender to seek employment. If the court determines that the person has a sufficient estate to pay all or part of Colorado Revised Statutes 2019 Page 144 of 695 Uncertified Printout the cost of care, the court shall determine the amount which shall be paid by the offender, which amount in no event shall be in excess of the per capita cost of maintaining prisoners in the institution or facility in which the offender has been residing prior to sentencing for the purpose of reimbursing the appropriate law enforcement agency and the per capita cost of maintaining prisoners in the department of corrections for the purpose of paying the cost of care after sentencing. (4.5) Notwithstanding the entry of an order of expungement pursuant to section 19-1306, the provisions of this part 7 apply. (5) As used in this section, unless the context otherwise requires: (a) "Cost of care" means the cost to the department or the local government charged with the custody of an offender for providing room, board, clothing, medical care, and other normal living expenses for an offender confined to a jail or correctional facility, or any costs associated with maintaining an offender in a home detention program contracted for by the department of public safety, as determined by the executive director of the department of corrections or the executive director of the department of public safety, whichever is appropriate, or the cost of supervision of probation when the offender is granted probation, or the cost of supervision of parole when the offender is placed on parole by the state board of parole, as determined by the court. (b) "Estate" means any tangible or intangible properties, real or personal, belonging to or due to an offender, including income or payments to such person received or earned prior to or during incarceration from salary or wages, bonuses, annuities, pensions, or retirement benefits, or any source whatsoever except federal benefits of any kind. Real property that is held in joint ownership or ownership in common with an offender's spouse, while being used and occupied by the spouse as a place of residence, shall not be considered a part of the estate of the offender for the purposes of this section. (6) After the set-offs for restitution and for maintenance and support as provided in subsection (4) of this section, any amounts recovered pursuant to this section that are available to reimburse the costs of providing medical care shall be used to reimburse the state for the state's financial participation for medical assistance if medical care is provided for the inmate or an infant of a female inmate under the "Colorado Medical Assistance Act", articles 4, 5, and 6 of title 25.5, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1422, § 2, effective October 1. L. 2003: (1) amended, p. 1693, § 1, effective August 6. L. 2006: (1) amended, p. 1091, § 11, effective May 25; (6) amended, p. 2005, § 61, effective July 1. L. 2007: (1) amended, p. 1538, § 29, effective May 31. L. 2008: (1)(b) amended, p. 2146, § 21, effective June 4. L. 2011: (1)(a) amended, (SB 11-085), ch. 257, p. 1129, § 6, effective August 10. L. 2016: (2)(j) amended and (2)(j.5) added, (HB 16-1378), ch. 303, p. 1221, § 1, effective August 10. L. 2017: IP(2) and (2)(j.5) amended and (2)(j) repealed, (HB 17-1252), ch. 367, p. 1912, § 1, effective August 9; (4.5) added, (HB 17-1204), ch. 206, p. 784, § 4, effective November 1. L. 2018: (1)(c) amended, (HB 18-1108), ch. 303, p. 1836, § 8, effective August 8. Editor's note: This section is similar to former § 16-11-501 as it existed prior to 2002. Cross references: (1) For items includable as costs in civil actions, see § 13-16-122. Colorado Revised Statutes 2019 Page 145 of 695 Uncertified Printout (2) For the legislative declaration in the 2008 act amending subsection (1)(b), see section 1 of chapter 417, Session Laws of Colorado 2008. For the legislative declaration in the 2011 act amending subsection (1)(a), see section 1 of chapter 257, Session Laws of Colorado 2011. 18-1.3-702. Monetary payments - due process required. (1) (a) When the court imposes a sentence, enters a judgment, or issues an order that obligates the defendant to pay a monetary amount, the court may direct as follows: (I) That the defendant pay the entire monetary amount at the time sentence is pronounced; (II) That the defendant pay the entire monetary amount at some later date; (III) That the defendant pay as directed by the court or the court's designated official: (A) At a future date certain in its entirety; (B) By periodic payments, which may include payments at intervals, referred to in this section as a "payment plan"; or (C) By other payment arrangement as determined by the court or the court's designated official; (IV) When the defendant is sentenced to a period of probation as well as payment of a monetary amount, that payment of the monetary amount be made a condition of probation. (b) A court's designated official shall report to the court on any failure to pay. (c) As used in this section, "court's designated official" includes, but is not limited to, a "collections investigator" as defined in section 18-1.3-602 (1). (2) When the court imposes a sentence, enters a judgment, or issues an order that obligates a defendant to pay any monetary amount, the court shall instruct the defendant as follows: (a) If at any time the defendant is unable to pay the monetary amount due, the defendant must contact the court's designated official or appear before the court to explain why he or she is unable to pay the monetary amount; (b) If the defendant lacks the present ability to pay the monetary amount due without undue hardship to the defendant or the defendant's dependents, the court shall not jail the defendant for failure to pay; and (c) If the defendant has the ability to pay the monetary amount as directed by the court or the court's designee but willfully fails to pay, the defendant may be imprisoned for failure to comply with the court's lawful order to pay pursuant to the terms of this section. (3) Incarceration for failure to pay is prohibited absent provision of the following procedural protections: (a) When a defendant is unable to pay a monetary amount due without undue hardship to himself or herself or his or her dependents, the court shall not imprison the defendant for his or her failure to pay; (b) Except in the case of a corporation, if the defendant failed to pay a monetary amount due and the record indicates that the defendant has willfully failed to pay that monetary amount, the court, when appropriate, may consider a motion to impose part or all of a suspended sentence, may consider a motion to revoke probation, or may institute proceedings for contempt of court. When instituting contempt of court proceedings, the court, including a municipal court, shall provide all procedural protections mandated in rule 107 of the Colorado rules of civil procedure or rule 407 of the Colorado rules of county court civil procedure. Colorado Revised Statutes 2019 Page 146 of 695 Uncertified Printout (c) The court shall not find the defendant in contempt of court, nor impose a suspended sentence, nor revoke probation, nor order the defendant to jail for failure to pay unless the court has made findings on the record, after providing notice to the defendant and a hearing, that the defendant has the ability to comply with the court's order to pay a monetary amount due without undue hardship to the defendant or the defendant's dependents and that the defendant has not made a good-faith effort to comply with the order. If the defendant fails to appear at the hearing referenced in this paragraph (c) after receiving notice, the court may issue a warrant for his or her arrest for failure to appear. (d) The court shall not accept a defendant's guilty plea for contempt of court for failure to pay or failure to comply with the court's order to pay a monetary amount unless the court has made findings on the record that the defendant has the ability to comply with the court's order to pay a monetary amount due without undue hardship to the defendant or the defendant's dependents and that the defendant has not made a good-faith effort to comply with the order; and (e) The court shall not issue a warrant for failure to pay money, failure to appear to pay money, or failure to appear at any post-sentencing court appearance wherein the defendant was required to appear if he or she failed to pay a monetary amount; however, a court may issue an arrest warrant or incarcerate a defendant related to his or her failure to pay a monetary amount only through the procedures described in paragraphs (a) to (d) of this subsection (3). (4) For purposes of this section, a defendant or a defendant's dependents are considered to suffer undue hardship if he, she, or they would be deprived of money needed for basic living necessities, such as food, shelter, clothing, necessary medical expenses, or child support. In determining whether a defendant is able to comply with an order to pay a monetary amount without undue hardship to the defendant or the defendant's dependents, the court shall consider: (a) Whether the defendant is experiencing homelessness; (b) The defendant's present employment, income, and expenses; (c) The defendant's outstanding debts and liabilities, both secured and unsecured; (d) Whether the defendant has qualified for and is receiving any form of public assistance, including food stamps, temporary assistance for needy families, medicaid, or supplemental security income benefits; (e) The availability and convertibility, without undue hardship to the defendant or the defendant's dependents, of any real or personal property owned by the defendant; (f) Whether the defendant resides in public housing; (g) Whether the defendant's family income is less than two hundred percent of the federal poverty line, adjusted for family size; and (h) Any other circumstances that would impair the defendant's ability to pay. (5) If the court finds a defendant in contempt of court for willful failure to pay, the court may direct that the defendant be imprisoned until the monetary payment ordered by the court is made, but the court shall specify a maximum period of imprisonment subject to the following limits: (a) When the monetary amount was imposed for a felony, the period shall not exceed one year; (b) When the monetary amount was imposed for a misdemeanor, the period shall not exceed one-third of the maximum term of imprisonment authorized for the misdemeanor; Colorado Revised Statutes 2019 Page 147 of 695 Uncertified Printout (c) When the monetary amount was imposed for a petty offense, a traffic violation, or a violation of a municipal ordinance, any of which is punishable by a possible jail sentence, the period shall not exceed fifteen days; (d) There shall be no imprisonment in those cases when no imprisonment is provided for in the possible sentence; and (e) When a sentence of imprisonment and a monetary amount was imposed, the aggregate of the period and the term of the sentence shall not exceed the maximum term of imprisonment authorized for the offense. (6) This section applies to all courts of record in Colorado, including but not limited to municipal courts. (7) Nothing in this section prevents the collection of a monetary amount in the same manner as a judgment in a civil action. Source: L. 2002: Entire article added with relocations, p. 1425, § 2, effective October 1. L. 2014: Entire section amended, (HB 14-1061), ch. 164, p. 575, § 1, effective May 9. L. 2016: Entire section amended, (HB 16-1311), ch. 343, p. 1394, § 1, effective June 10. Editor's note: This section is similar to former § 16-11-502 as it existed prior to 2002. 18-1.3-703. Reimbursement of amounts paid following a vacated conviction or amended order for restitution - petition. (1) The following persons are eligible under this section for a refund of monetary payments actually paid: (a) A defendant whose court-ordered fines, fees, costs, surcharges, restitution, interest, or other monetary amounts resulting from a criminal conviction in a district or county court of this state have been paid if the amount paid relates solely to a conviction: (I) That is vacated after postconviction proceedings or is overturned on appeal; and (II) The charge on which the conviction was based is dismissed or the person is acquitted of the charge after a new trial; (b) A defendant whose court-ordered restitution and interest resulting from a criminal conviction in a district or county court of this state have been paid and: (I) The restitution ordered by the court is reversed on appeal; or (II) The amount of restitution ordered by the court is reversed on appeal and the restitution, including interest, that has been paid is in excess of the amount upheld on appeal. (2) (a) A defendant may file a written motion in the court in which the conviction was entered for a refund of any monetary amounts described in subsection (1) of this section within one year after the defendant becomes eligible for the refund. The court may only extend the oneyear time limit for good cause. (b) The defendant bears the burden of proving by a preponderance of the evidence that the amount was actually paid and that the defendant is eligible for a refund pursuant to subsection (1) of this section. If the court finds that the defendant has established eligibility for a refund, the court shall issue an order directing the state court administrator to issue a refund for the total monetary amount found to be due. (3) Nothing in this section requires a victim to repay restitution received as a result of a criminal conviction. Colorado Revised Statutes 2019 Page 148 of 695 Uncertified Printout Source: L. 2017: Entire section added, (HB 17-1071), ch. 70, p. 219, § 1, effective September 1. Editor's note: Section 3 of chapter 70 (HB 17-1071), Session Laws of Colorado 2017, provides that the act adding this section applies to convictions vacated and restitution orders reversed on or after September 1, 2017. PART 8 SPECIAL PROCEEDINGS SENTENCING OF HABITUAL CRIMINALS 18-1.3-801. Punishment for habitual criminals. (1) (a) A person shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment if the person: (I) Is convicted of: (A) Any class 1 or 2 felony or level 1 drug felony; or (B) Any class 3 felony that is a crime of violence, as defined in section 18-1.3-406 (2); and (II) Has been twice convicted previously for any of the offenses described in subparagraph (I) of this paragraph (a). (b) A felony described in subparagraph (I) of paragraph (a) of this subsection (1) is: (I) One based upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, in this or any other state; or (II) A crime under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, which, if committed within this state, would be such a felony described in paragraph (a) of this subsection (1). (c) No person sentenced pursuant to this subsection (1) shall be eligible for parole until such person has served at least forty calendar years. (d) Nothing in this subsection (1) prohibits the governor from issuing a pardon or a clemency order on a case-by-case basis; however, the governor shall submit a report to the general assembly on each such pardon or clemency order in accordance with section 7 of article IV of the state constitution. (e) Nothing in this subsection (1) is to be construed to prohibit a person convicted of a class 1 felony from being sentenced pursuant to section 18-1.3-1201, 18-1.3-1302, or 18-1.4102. (f) This subsection (1) shall not apply to a person convicted of first or second degree burglary, which person shall be subject to subsections (1.5), (2), and (2.5) of this section and section 18-1.3-804. (1.5) Except as otherwise provided in subsection (5) of this section, every person convicted in this state of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime Colorado Revised Statutes 2019 Page 149 of 695 Uncertified Printout which, if committed within this state, would be a felony shall be adjudged an habitual criminal and shall be punished: (a) For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of three times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class or level of felony of which such person is convicted; or (b) For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of forty-eight years. (2) (a) (I) Except as otherwise provided in paragraph (b) of this subsection (2) and in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished: (A) For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class or level of felony of which such person is convicted; or (B) For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of sixty-four years. (II) Such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment or information. Nothing in this part 8 shall abrogate or affect the punishment by death in any and all crimes punishable by death on or after July 1, 1972. (b) [Editor's note: This version of subsection (2)(b) is effective until March 1, 2020.] The provisions of paragraph (a) of this subsection (2) shall not apply to a conviction for a level 4 drug felony pursuant to section 18-18-403.5 (2), or a conviction for a level 4 drug felony for attempt or conspiracy to commit unlawful possession of a controlled substance, as described in section 18-18-403.5 (2), if the amount of the schedule I or schedule II controlled substance possessed is not more than four grams or not more than two grams of methamphetamine, heroin, cathinones, or ketamine or not more than four milligrams of flunitrazepam, even if the person has been previously convicted of three or more qualifying felony convictions. (b) [Editor's note: This version of subsection (2)(b) is effective March 1, 2020.] The provisions of subsection (2)(a) of this section do not apply to a conviction for a level 4 drug felony committed on or after March 1, 2020, pursuant to section 18-18-403.5 (2), or a conviction for a level 4 drug felony committed on or after March 1, 2020, for attempt or conspiracy to commit unlawful possession of a controlled substance, as described in section 18-18-403.5 (2), if the amount of the controlled substance possessed is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers, or not more than two grams of cathinones or ketamine, or not more than four milligrams of flunitrazepam, even if the person has been previously convicted of three or more qualifying felony convictions. (2.5) Any person who is convicted and sentenced pursuant to subsection (2) of this section, or section 16-13-101 (2), C.R.S., as it existed prior to October 1, 2002, who is thereafter convicted of a felony which is a crime of violence pursuant to section 18-1.3-406, shall be Colorado Revised Statutes 2019 Page 150 of 695 Uncertified Printout adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment. No person sentenced pursuant to this subsection (2.5) shall be eligible for parole until such person has served at least forty calendar years. (3) No drug law conviction shall be counted as a prior felony conviction under this section unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense. (4) A person who meets the criteria set forth in subsection (1) of this section shall be adjudged an habitual criminal and sentenced only in accordance with that subsection and not pursuant to subsections (1.5), (2), and (2.5) of this section. (5) A current or prior conviction for escape, as described in section 18-8-208 (1), (2), or (3), or attempt to escape, as described in section 18-8-208.1 (1), (1.5), or (2), may not be used for the purpose of adjudicating a person an habitual criminal as described in subsection (1.5) or subsection (2) of this section unless the conviction is based on the offender's escape or attempt to escape from a correctional facility, as defined in section 17-1-102, or from physical custody within a county jail; except that, for the purposes of this section, "correctional facility" does not include a community corrections facility, as defined in section 17-27-102 (2.5), or a halfway house, as defined in section 19-1-103 (62). Source: L. 2002: Entire article added with relocations, p. 1426, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(e) amended, p. 33, § 28, effective October 1. L. 2003: (2.5) amended, p. 978, § 16, effective April 17; IP(1)(a), (1.5), (2), and (2.5) amended, p. 1426, § 5, effective April 29. L. 2011: (2) amended, (SB 11-096), ch. 57, p. 151, § 1, effective March 25. L. 2012: (1.5) and (2)(a) amended and (5) added, (HB 12-1213), ch. 183, p. 695, § 1, effective May 17. L. 2013: (1)(a)(I)(A), (1.5), and (2) amended, (SB 13-250), ch. 333, p. 1927, § 36, effective October 1. L. 2014: (2)(b) amended, (SB 14-163), ch. 391, p. 1975, § 13, effective July 1. L. 2017: (5) amended, (HB 17-1330), ch. 374, p. 1937, § 1, effective August 9. L. 2019: (2)(b) amended, (HB 19-1263), ch. 291, p. 2681, § 8, effective March 1, 2020. Editor's note: (1) This section is similar to former § 16-13-101 as it existed prior to 2002. (2) Amendments to subsection (2.5) by Senate Bill 03-147 and House Bill 03-1236 were harmonized. (3) Section 11(2) of chapter 291 (HB 19-1263), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after March 1, 2020. Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(e), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. 18-1.3-802. Evidence of former convictions - identity. On any trial under the provisions of this section and sections 18-1.3-801 and 18-1.3-803, a duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. Identification photographs and fingerprints that Colorado Revised Statutes 2019 Page 151 of 695 Uncertified Printout are part of the record of such former convictions and judgments, or are part of the records kept at the place of such party's incarceration or by any custodian authorized by the executive director of the department of corrections after sentencing for any of such former convictions and judgments, shall be prima facie evidence of the identity of such party and may be used in evidence against him or her. Source: L. 2002: Entire article added with relocations, p. 1428, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-102 as it existed prior to 2002. 18-1.3-803. Verdict of jury. (1) If the allegation of previous convictions of other felony offenses is included in an indictment or information and if a verdict of guilty of the substantive offense with which the defendant is charged is returned, the court shall conduct a separate sentencing hearing to determine whether or not the defendant has suffered such previous felony convictions. As soon as practicable, the hearing shall be conducted by the judge who presided at trial or before whom the guilty plea was entered or a replacement for said judge in the event he or she dies, resigns, is incapacitated, or is otherwise disqualified as provided in section 16-6-201, C.R.S. (2) An information or indictment seeking the increased penalties authorized by section 18-1.3-801 shall identify by separate counts each alleged former conviction and shall allege that the defendant on a date and at a place specified was convicted of a specific felony. If any such conviction was had outside this state, the information or indictment shall allege that the offense, if committed in this state, would be a felony. (3) Upon arraignment of the defendant, such defendant shall be required to admit or deny that such defendant has been previously convicted of the crimes identified in the information or indictment. If the defendant refuses to admit or deny the previous convictions, such refusal shall be treated as a denial by such defendant that the defendant has been convicted as alleged. If the defendant admits to having been convicted as alleged in any count charging a previous conviction, no proof of such previous conviction is required. Such admission shall constitute conclusive proof in determining whether the defendant has been previously convicted of an alleged felony and the court shall sentence the defendant in accordance with section 181.3-801. (4) If the defendant denies that he or she has been previously convicted as alleged in any count of an information or indictment, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall determine by separate hearing and verdict whether the defendant has been convicted as alleged. The procedure in any case in which the defendant does not become a witness in his or her own behalf upon the trial of the substantive offense shall be as follows: (a) The jury shall render a verdict upon the issue of the defendant's guilt or innocence of the substantive offense charged; (b) If the verdict is that the defendant is guilty of the substantive offense charged, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall proceed to try the issues of whether the defendant has been previously convicted as alleged. The prosecuting attorney has the burden of proving beyond a reasonable doubt that the defendant has been previously convicted as alleged. Colorado Revised Statutes 2019 Page 152 of 695 Uncertified Printout (5) (a) If, upon the trial of the issues upon the substantive offense charged, the defendant testifies in his or her own defense and denies that he or she has been previously convicted as alleged, the prosecuting attorney on rebuttal may present all evidence relevant to the issues of previous convictions for the sole purpose of impeachment of the defendant's credibility, subject to the rules governing admission of evidence at criminal trials. (b) If, upon the trial of the issues upon the substantive offense charged, the defendant testifies in his or her own defense and, after having denied the previous conviction under subsection (3) of this section, admits that he or she has been previously convicted as alleged, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall, in any sentencing hearing, consider any admissions of prior convictions elicited from the defendant in connection with his or her testimony on the substantive offense only as they affect the defendant's credibility. In any sentencing hearing, the prosecution shall be required to meet its burden of proving beyond a reasonable doubt the defendant's prior convictions by evidence independent of the defendant's testimony. (6) If the prosecuting attorney does not have any information indicating that the defendant has been previously convicted of a felony prior to the time a verdict of guilty is rendered on a felony charge and if thereafter the prosecuting attorney learns of the felony conviction prior to the time that sentence is pronounced by the court, he or she may file a new information in which it shall be alleged in separate counts that the defendant has been convicted of the particular offense upon which judgment has not been entered and that prior thereto at a specified date and place the defendant has been convicted of a felony warranting application of increased penalties authorized in this section and sections 18-1.3-801 and 18-1.3-802. The defendant shall be arraigned upon the new information, and, if the defendant denies the previous conviction, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall try the issue prior to imposition of sentence. Source: L. 2002: Entire article added with relocations, p. 1428, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-103 as it existed prior to 2002. 18-1.3-804. Habitual burglary offenders - punishment - legislative declaration. (1) Every person convicted in this state of first degree burglary, first degree burglary of controlled substances, or second degree burglary of a dwelling who, within ten years of the date of the commission of the said offense, has been previously convicted upon charges separately brought and tried, either in this state or elsewhere, of first degree burglary, first degree burglary of drugs or first degree burglary of controlled substances, or second degree burglary of a dwelling or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a felony which, if committed within this state, would be first degree burglary, first degree burglary of drugs or first degree burglary of controlled substances, or second degree burglary of a dwelling shall be adjudged a habitual burglary offender and shall be sentenced to the department of corrections for a term of incarceration greater than the maximum in the presumptive range, but not more than twice the maximum term, provided for such offense in section 18-1.3-401 (1)(a). (2) Every person convicted in this state of first degree burglary, first degree burglary of controlled substances, or second degree burglary of a dwelling who has been previously Colorado Revised Statutes 2019 Page 153 of 695 Uncertified Printout convicted of two or more felonies shall be subject to the applicable provisions of section 18-1.3801. (3) Such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment or information. (4) In no case shall any person who is subject to the provisions of this section be eligible for suspension of sentence or probation. (5) Insofar as they may be applicable, sections 18-1.3-802 and 18-1.3-803 shall govern trials which are held as a result of the provisions of this section. (6) The general assembly hereby finds and declares that the frequency of incidence of the crime of burglary, together with particularly high rates of recidivism among burglary offenders and the extensive economic impact which results from the crime of burglary, requires the special classification and punishment of habitual burglary offenders as provided in this section. Source: L. 2002: Entire article added with relocations, p. 1430, § 2, effective October 1. L. 2003: (1) amended, p. 1427, § 6, effective April 29. Editor's note: This section is similar to former § 18-4-202.1 as it existed prior to 2002. Cross references: For limitations on collateral attacks of prior convictions, see § 16-5402. PART 9 SENTENCING OF SEX OFFENDERS 18-1.3-901. Short title. This part 9 shall be known and may be cited as the "Colorado Sex Offenders Act of 1968". Source: L. 2002: Entire article added with relocations, p. 1430, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-201 as it existed prior to 2002. 18-1.3-902. Applicability of part. The provisions of this part 9 shall apply to persons sentenced for offenses committed prior to November 1, 1998. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-201.5 as it existed prior to 2002. 18-1.3-903. Definitions. As used in this part 9, unless the context otherwise requires: (1) "Board" means the state board of parole. (2) "Conviction" means conviction after trial by court or jury or acceptance of a plea of guilty. (3) "Department" means the department of corrections. Colorado Revised Statutes 2019 Page 154 of 695 Uncertified Printout (4) "Sex offender" means a person convicted of a sex offense. (5) "Sex offense" means sexual assault, except misdemeanor sexual assault in the third degree, as set forth in section 18-3-404 (2), as it existed prior to July 1, 2000; sexual assault on a child, as defined in section 18-3-405; aggravated incest, as defined in section 18-6-302; and an attempt to commit any of the offenses mentioned in this subsection (5). Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. L. 2008: (5) amended, p. 1890, § 56, effective August 5. Editor's note: This section is similar to former § 16-13-202 as it existed prior to 2002. 18-1.3-904. Indeterminate commitment. The district court having jurisdiction may, subject to the requirements of this part 9, in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the department for an indeterminate term having a minimum of one day and a maximum of his or her natural life. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-203 as it existed prior to 2002. 18-1.3-905. Requirements before acceptance of a plea of guilty. Before the district court may accept a plea of guilty from any person charged with a sex offense, the court shall, in addition to any other requirement of law, advise the defendant that he or she may be committed to the custody of the department, including any penal institution under the jurisdiction of the department, as provided in section 18-1.3-904. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-204 as it existed prior to 2002. 18-1.3-906. Commencement of proceedings. Within twenty-one days after the conviction of a sex offense, upon the motion of the district attorney, the defendant, or the court, the court shall commence proceedings under this part 9 by ordering the district attorney to prepare a notice of the commencement of proceedings and to serve that notice upon the defendant personally. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 867, § 113, effective July 1. Editor's note: This section is similar to former § 16-13-205 as it existed prior to 2002. 18-1.3-907. Defendant to be advised of rights. (1) Upon the commencement of proceedings, the court shall advise the defendant, orally and in writing, that: (a) The defendant is to be examined in accordance with the provisions of section 18-1.3908; Colorado Revised Statutes 2019 Page 155 of 695 Uncertified Printout (b) The defendant has a right to counsel, and, if the defendant is indigent, counsel will be appointed to represent him or her; (c) The defendant has a right to remain silent; (d) An evidentiary hearing will be held pursuant to section 18-1.3-911, and the defendant and his or her counsel will be furnished with copies of all reports prepared for the court pursuant to sections 18-1.3-908 and 18-1.3-909 at least fourteen days prior to the evidentiary hearing. (2) The written advisement of rights may be incorporated into the notice of commencement of proceedings. Source: L. 2002: Entire article added with relocations, p. 1431, § 2, effective October 1. L. 2012: (1)(d) amended, (SB 12-175), ch. 208, p. 867, § 114, effective July 1. Editor's note: This section is similar to former § 16-13-206 as it existed prior to 2002. 18-1.3-908. Psychiatric examination and report. (1) (a) After advising the defendant of his or her rights, the court shall forthwith commit the defendant to the Colorado mental health institute at Pueblo, the university of Colorado psychiatric hospital, or the county jail. (b) If committed to the Colorado mental health institute at Pueblo or the university of Colorado psychiatric hospital, the defendant shall be examined by two psychiatrists of the receiving institution. (c) If committed to the county jail, the defendant shall be examined by two psychiatrists appointed by the court. (2) (a) The examining psychiatrists shall make independent written reports to the court which shall contain the opinion of the psychiatrist as to whether the defendant, if at large, constitutes a threat of bodily harm to members of the public. (b) The written reports shall also contain opinions concerning: (I) Whether the defendant is mentally deficient; (II) Whether the defendant could benefit from psychiatric treatment; and (III) Whether the defendant could be adequately supervised on probation. (3) The examinations shall be made and the reports filed with the court and the probation department within sixty-three days after the commencement of proceedings, and this time may not be enlarged by the court. Source: L. 2002: Entire article added with relocations, p. 1432, § 2, effective October 1. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 867, § 115, effective July 1. Editor's note: This section is similar to former § 16-13-207 as it existed prior to 2002. 18-1.3-909. Report of probation department. (1) Upon the commencement of proceedings under this part 9, the court shall order an investigation and report to be made by the probation officer similar to the presentence report provided for in section 16-11-102, C.R.S. (2) The report shall be filed with the court within seventy-seven days after the commencement of proceedings, and this time may not be enlarged by the court. Colorado Revised Statutes 2019 Page 156 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1432, § 2, effective October 1. L. 2012: (2) amended, SB 12-175), ch. 208, p. 867, § 116, effective July 1. Editor's note: This section is similar to former § 16-13-208 as it existed prior to 2002. 18-1.3-910. Termination of proceedings. After reviewing the reports of the psychiatrists and the probation officer, the court may terminate proceedings under this part 9 and proceed with sentencing as otherwise provided by law. Source: L. 2002: Entire article added with relocations, p. 1432, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-209 as it existed prior to 2002. 18-1.3-911. Evidentiary hearing. (1) (a) The court shall set a hearing date at least fourteen days and no more than twenty-eight days after service upon the defendant and his or her counsel of the reports required by sections 18-1.3-908 and 18-1.3-909. (b) The court may, in its discretion, upon the motion of the defendant, continue the hearing an additional twenty-one days. (2) (a) The court shall, upon motion of the district attorney or the defendant, subpoena all witnesses required by the moving party in accordance with the Colorado rules of criminal procedure. (b) The district attorney shall serve upon the defendant and his or her counsel a list of all witnesses to be called by the district attorney at least fourteen days before the evidentiary hearing. (3) In the evidentiary hearing, the court shall receive evidence bearing on the issue of whether the defendant, if at large, constitutes a threat of bodily harm to members of the public. (4) In the evidentiary hearing, the following procedure shall govern: (a) The district attorney may call and examine witnesses, and the defendant shall be allowed to cross-examine those witnesses. (b) The defendant may call and examine witnesses, and the district attorney shall be allowed to cross-examine those witnesses. (c) The defendant may call and cross-examine as adverse witnesses the psychiatrists and probation officers who have filed reports pursuant to sections 18-1.3-908 and 18-1.3-909. (5) The reports of the psychiatrists and probation officers filed with the court pursuant to sections 18-1.3-908 and 18-1.3-909 may be received into evidence. (6) Except as otherwise provided in this section, the laws of this state concerning evidence in criminal trials shall govern in the evidentiary hearing. Source: L. 2002: Entire article added with relocations, p. 1433, § 2, effective October 1. L. 2012: (1) and (2)(b) amended, (SB 12-175), ch. 208, p. 867, § 117, effective July 1. Editor's note: This section is similar to former § 16-13-210 as it existed prior to 2002. Cross references: For subpoenas to compel attendance of witnesses, see Crim. P. 17. Colorado Revised Statutes 2019 Page 157 of 695 Uncertified Printout 18-1.3-912. Findings of fact and conclusions of law. (1) After the evidentiary hearing, the court shall, within seven days, make oral or written findings of fact and conclusions of law. (2) If the court finds beyond a reasonable doubt that the defendant, if at large, constitutes a threat of bodily harm to members of the public, the court shall commit the defendant pursuant to section 18-1.3-904. (3) If the court does not find as provided in subsection (2) of this section, it shall terminate proceedings under this part 9 and proceed with sentencing as otherwise provided by law. (4) If the findings and conclusions are oral, they shall be reduced to writing and filed within fourteen days, and the defendant shall not be committed to the custody of the department pursuant to section 18-1.3-904 until the findings and conclusions are filed. Source: L. 2002: Entire article added with relocations, p. 1433, § 2, effective October 1. L. 2012: (1) and (4) amended, (SB 12-175), ch. 208, p. 868, § 118, effective July 1. Editor's note: This section is similar to former § 16-13-211 as it existed prior to 2002. 18-1.3-913. Appeal. The defendant may appeal an adverse finding made pursuant to section 18-1.3-912 in the same manner as is provided by law for other criminal appeals. Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-212 as it existed prior to 2002. 18-1.3-914. Time allowed on sentence. If the proceedings under this part 9 are terminated by the court, as provided in section 18-1.3-910 or 18-1.3-912 (3), the court shall deduct the time from the commencement of proceedings to the termination of proceedings from the minimum sentence of the defendant. Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-213 as it existed prior to 2002. 18-1.3-915. Costs. The costs of the maintenance of the prisoner during the pendency of proceedings under this part 9 and the costs of the psychiatric examinations and reports shall be paid by the state of Colorado. Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-214 as it existed prior to 2002. 18-1.3-916. Diagnostic center as receiving center. The diagnostic center, as defined in section 17-40-101 (1.5), C.R.S., shall be the receiving center for all persons committed pursuant to section 18-1.3-904. Colorado Revised Statutes 2019 Page 158 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-215 as it existed prior to 2002. PART 10 LIFETIME SUPERVISION OF SEX OFFENDERS Law reviews: For article, "Felony Sex Offender Sentencing", see 33 Colo. Law. 11 (Dec. 2004). 18-1.3-1001. Legislative declaration. The general assembly hereby finds that the majority of persons who commit sex offenses, if incarcerated or supervised without treatment, will continue to present a danger to the public when released from incarceration and supervision. The general assembly also finds that keeping all sex offenders in lifetime incarceration imposes an unacceptably high cost in both state dollars and loss of human potential. The general assembly further finds that some sex offenders respond well to treatment and can function as safe, responsible, and contributing members of society, so long as they receive treatment and supervision. The general assembly therefore declares that a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state. Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-801 as it existed prior to 2002. 18-1.3-1002. Short title. This part 10 shall be known and may be cited as the "Colorado Sex Offender Lifetime Supervision Act of 1998". Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-802 as it existed prior to 2002. 18-1.3-1003. Definitions. As used in this part 10, unless the context otherwise requires: (1) "Department" means the department of corrections. (2) "Management board" means the sex offender management board created in section 16-11.7-103, C.R.S. (3) "Parole board" means the state board of parole created in section 17-2-201, C.R.S. (4) "Sex offender" means a person who is convicted of or pleads guilty or nolo contendere to a sex offense. (5) (a) "Sex offense" means any of the following offenses: (I) (A) Sexual assault, as described in section 18-3-402; or (B) Sexual assault in the first degree, as described in section 18-3-402 as it existed prior to July 1, 2000; Colorado Revised Statutes 2019 Page 159 of 695 Uncertified Printout (II) Sexual assault in the second degree, as described in section 18-3-403 as it existed prior to July 1, 2000; (III) (A) Felony unlawful sexual contact, as described in section 18-3-404 (2); or (B) Felony sexual assault in the third degree, as described in section 18-3-404 (2) as it existed prior to July 1, 2000; (IV) Sexual assault on a child, as described in section 18-3-405; (V) Sexual assault on a child by one in a position of trust, as described in section 18-3405.3; (VI) Aggravated sexual assault on a client by a psychotherapist, as described in section 18-3-405.5 (1); (VII) Enticement of a child, as described in section 18-3-305; (VIII) Incest, as described in section 18-6-301; (IX) Aggravated incest, as described in section 18-6-302; (X) Patronizing a prostituted child, as described in section 18-7-406; (XI) Class 4 felony internet luring of a child, in violation of section 18-3-306 (3); (XII) Internet sexual exploitation of a child, in violation of section 18-3-405.4; or (XIII) Class 3 felony unlawful sexual conduct by a peace officer, in violation of section 18-3-405.7. (b) "Sex offense" also includes criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in paragraph (a) of this subsection (5) if such criminal attempt, conspiracy, or solicitation would constitute a class 2, 3, or 4 felony. Source: L. 2002: Entire article added with relocations, p. 1434, § 2, effective October 1. L. 2005: (5)(b) amended, p. 765, § 26, effective June 1. L. 2006: (5)(a)(XI) and (5)(a)(XII) added, p. 2055, § 3, effective July 1. L. 2012: (4) amended, (HB 12-1310), ch. 268, p. 1402, § 23, effective June 7. L. 2019: (5)(a)(XI) and (5)(a)(XII) amended and (5)(a)(XIII) added, (HB 19-1250), ch. 287, p. 2664, § 4, effective July 1. Editor's note: (1) This section is similar to former § 16-13-803 as it existed prior to 2002. (2) Section 8 of chapter 287 (HB 19-1250), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after July 1, 2019. 18-1.3-1004. Indeterminate sentence. (1) (a) Except as otherwise provided in this subsection (1) and in subsection (2) of this section, the district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.3-401 for the level of offense committed and a maximum of the sex offender's natural life. (b) If the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 18-1.3-406, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. (c) If the sex offender committed a sex offense that makes him or her eligible for sentencing as an habitual sex offender against children pursuant to section 18-3-412, the district court shall sentence the sex offender to the custody of the department for an indeterminate term Colorado Revised Statutes 2019 Page 160 of 695 Uncertified Printout of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. (d) If the sex offender committed a sex offense that constitutes a sexual offense, as defined in section 18-3-415.5, and the sex offender, prior to committing the offense, had notice that he or she had tested positive for the human immunodeficiency virus (HIV) and HIV infection, and the infectious agent of the HIV infection was in fact transmitted, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. (e) (I) Notwithstanding any other provision of law, the district court shall sentence a sex offender to the custody of the department for an indeterminate term as specified in subparagraph (II) of this paragraph (e) if the sex offender: (A) Committed a class 2, class 3, or class 4 sex offense in violation of section 18-3-402, 18-3-405, or 18-3-405.3 when the act includes sexual intrusion as defined in section 18-3-401 (5) or sexual penetration as defined in section 18-3-401 (6); (B) Committed the act against a child who was under twelve years of age at the time of the offense; and (C) Was at least eighteen years of age and at least ten years older than the child. (II) The district court shall sentence a sex offender to the department of corrections for an indeterminate term of incarceration of: (A) At least ten to sixteen years for a class 4 felony to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e); (B) At least eighteen to thirty-two years for a class 3 felony to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e); and (C) At least twenty-four to forty-eight years for a class 2 felony, to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e). (III) If the defendant is placed on parole, the parole board shall order the defendant to wear electronic monitoring for the duration of his or her period of parole. (2) (a) The district court having jurisdiction, based on consideration of the evaluation conducted pursuant to section 16-11.7-104, C.R.S., and the factors specified in section 18-1.3203, may sentence a sex offender to probation for an indeterminate period of at least ten years for a class 4 felony or twenty years for a class 2 or 3 felony and a maximum of the sex offender's natural life; except that, if the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 18-1.3-406, or committed a sex offense that makes him or her eligible for sentencing as a habitual sex offender against children pursuant to section 18-3-412, or a sex offense requiring sentencing pursuant to paragraph (e) of subsection (1) of this section, the court shall sentence the sex offender to the department of corrections as provided in subsection (1) of this section. For any sex offender sentenced to probation pursuant to this subsection (2), the court shall order that the sex offender, as a condition of probation, participate in an intensive supervision probation program established pursuant to section 18-1.3-1007, until further order of the court. Colorado Revised Statutes 2019 Page 161 of 695 Uncertified Printout (b) The court, as a condition of probation, may sentence a sex offender to a residential community corrections program pursuant to section 18-1.3-301 for a minimum period specified by the court. Following completion of the minimum period, the sex offender may be released to intensive supervision probation as provided in section 18-1.3-1008 (1.5). (3) Each sex offender sentenced pursuant to this section shall be required as a part of the sentence to undergo treatment to the extent appropriate pursuant to section 16-11.7-105, C.R.S. (4) Repealed. (5) (a) Any sex offender sentenced pursuant to subsection (1) of this section and convicted of one or more additional crimes arising out of the same incident as the sex offense shall be sentenced for the sex offense and such other crimes so that the sentences are served consecutively rather than concurrently. (b) (I) Except as otherwise provided in subparagraph (II) of this paragraph (b), if a sex offender sentenced pursuant to this part 10 is convicted of a subsequent crime prior to being discharged from parole pursuant to section 18-1.3-1006 or discharged from probation pursuant to section 18-1.3-1008, any sentence imposed for the second crime shall not supersede the sex offender's sentence pursuant to the provisions of this part 10. If the sex offender commits the subsequent crime while he or she is on parole or probation and the sex offender receives a sentence to the department of corrections for the subsequent crime, the sex offender's parole or probation shall be deemed revoked pursuant to section 18-1.3-1010, and the sex offender shall continue to be subject to the provisions of this part 10. (II) The provisions of subparagraph (I) of this paragraph (b) shall not apply if the sex offender commits a subsequent crime that is a class 1 felony. Source: L. 2002: Entire article added with relocations, p. 1435, § 2, effective October 1. L. 2006: (4)(b)(II) amended, p. 2044, § 3, effective July 1. L. 2010: (4)(b)(I) amended, (SB 10140), ch. 156, p. 538, § 8, effective April 21. L. 2012: (4) repealed and (5)(a) amended, (HB 121310), ch. 268, pp. 1397, 1402, § § 14, 24, effective June 7. L. 2014: (1)(e) added and (2)(a) amended, (HB 14-1260), ch. 345, p. 1538, § 2, effective July 1. L. 2016: (1)(d) amended, (SB 16-146), ch. 230, p. 915, § 8, effective July 1. Editor's note: This section is similar to former § 16-13-804 as it existed prior to 2002. Cross references: For the legislative declaration in HB 14-1260, see section 1 of chapter 345, Session Laws of Colorado 2014. 18-1.3-1005. Parole - intensive supervision program. (1) The department shall establish an intensive supervision parole program for sex offenders sentenced to incarceration and subsequently released on parole pursuant to this part 10. In addition, the parole board may require a person, as a condition of parole, to participate in the intensive supervision parole program established pursuant to this section if the person is convicted of: (a) Indecent exposure, as described in section 18-7-302; (b) Criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in section 18-1.3-1003 (5)(a), which attempt, conspiracy, or solicitation would constitute a class 5 felony; or Colorado Revised Statutes 2019 Page 162 of 695 Uncertified Printout (c) Any of the offenses specified in section 16-22-102 (9)(j), (9)(k), (9)(l), (9)(n), (9)(o), (9)(p), (9)(q), (9)(r), or (9)(s), C.R.S. (1.5) In addition to the persons specified in subsection (1) of this section, the parole board shall require, as a condition of parole, any person convicted of felony failure to register as a sex offender, as described in section 18-3-412.5, who is sentenced to incarceration and subsequently released on parole, to participate in the intensive supervision parole program established pursuant to this section. (2) The department shall require that sex offenders and any other persons in the intensive supervision parole program established pursuant to this section receive the highest level of supervision that is provided to parolees. The intensive supervision parole program may include, but is not limited to, severely restricted activities, daily contact between the sex offender or other person and the community parole officer, monitored curfew, home visitation, employment visitation and monitoring, drug and alcohol screening, treatment referrals and monitoring, including physiological monitoring, and payment of restitution. In addition, the intensive supervision parole program shall be designed to minimize the risk to the public to the greatest extent possible. (3) The executive director of the department shall establish and enforce standards and criteria for administration of the intensive supervision parole program created pursuant to this section. Source: L. 2002: Entire article added with relocations, p. 1438, § 2, effective October 1. L. 2008: (2) amended, p. 659, § 13, effective April 25. L. 2012: (1)(c) amended, (HB 12-1310), ch. 268, p. 1402, § 25, effective June 7. Editor's note: This section is similar to former § 16-13-805 as it existed prior to 2002. 18-1.3-1006. Release from incarceration - parole - conditions. (1) (a) On completion of the minimum period of incarceration specified in a sex offender's indeterminate sentence, less any earned time credited to the sex offender pursuant to section 17-22.5-405, C.R.S., the parole board shall schedule a hearing to determine whether the sex offender may be released on parole. In determining whether to release the sex offender on parole, the parole board shall determine whether the sex offender has successfully progressed in treatment and would not pose an undue threat to the community if released under appropriate treatment and monitoring requirements and whether there is a strong and reasonable probability that the person will not thereafter violate the law. The department shall make recommendations to the parole board concerning whether the sex offender should be released on parole and the level of treatment and monitoring that should be imposed as a condition of parole. The recommendation shall be based on the criteria established by the management board pursuant to section 18-1.3-1009. (b) If a sex offender is released on parole pursuant to this section, the sex offender's sentence to incarceration shall continue and shall not be deemed discharged until such time as the parole board may discharge the sex offender from parole pursuant to subsection (3) of this section. The period of parole for any sex offender convicted of a class 4 felony shall be an indeterminate term of at least ten years and a maximum of the remainder of the sex offender's natural life. The period of parole for any sex offender convicted of a class 2 or 3 felony shall be Colorado Revised Statutes 2019 Page 163 of 695 Uncertified Printout an indeterminate term of at least twenty years and a maximum of the remainder of the sex offender's natural life. (c) If the parole board does not release the sex offender on parole pursuant to paragraph (a) of this subsection (1), the parole board shall review such denial pursuant to the time periods set forth in section 17-2-201 (4)(a), C.R.S. At each review, the department shall make recommendations, based on the criteria established by the management board pursuant to section 18-1.3-1009, concerning whether the sex offender should be released on parole. (2) (a) As a condition of release on parole pursuant to this section, a sex offender shall participate in the intensive supervision parole program created by the department pursuant to section 18-1.3-1005. Participation in the intensive supervision parole program shall continue until the sex offender can demonstrate that he or she has successfully progressed in treatment and would not pose an undue threat to the community if paroled to a lower level of supervision, at which time the sex offender's community parole officer may petition the parole board for a reduction in the sex offender's level of supervision. The sex offender's community parole officer and treatment provider shall make recommendations to the parole board concerning whether the sex offender has met the requirements specified in this subsection (2) such that the level of parole supervision should be reduced. The recommendations shall be based on the criteria established by the management board pursuant to section 18-1.3-1009. (b) Following reduction in a sex offender's level of parole supervision pursuant to paragraph (a) of this subsection (2), the sex offender's community parole officer may return the sex offender to the intensive supervision parole program if the community parole officer determines that an increased level of supervision is necessary to protect the public safety. The community parole officer shall notify the parole board as soon as possible after returning the sex offender to the intensive supervision parole program. To subsequently reduce the sex offender's level of supervision, the community parole officer may petition the parole board as provided in paragraph (a) of this subsection (2). (3) (a) On completion of twenty years on parole for any sex offender convicted of a class 2 or 3 felony or on completion of ten years of parole for any sex offender convicted of a class 4 felony, the parole board shall schedule a hearing to determine whether the sex offender may be discharged from parole. In determining whether to discharge the sex offender from parole, the parole board shall determine whether the sex offender has successfully progressed in treatment and would not pose an undue threat to the community if allowed to live in the community without treatment or supervision. The sex offender's community parole officer and treatment provider shall make recommendations to the parole board concerning whether the sex offender has met the requirements specified in this subsection (3) such that the sex offender should be discharged from parole. The recommendations shall be based on the criteria established by the management board pursuant to section 18-1.3-1009. (b) If the parole board does not discharge the sex offender from parole pursuant to paragraph (a) of this subsection (3), the parole board shall review such denial at least once every three years until it determines that the sex offender meets the criteria for discharge specified in paragraph (a) of this subsection (3). At each review, the sex offender's community parole officer and treatment provider shall make recommendations, based on the criteria established by the management board pursuant to section 18-1.3-1009, concerning whether the sex offender should be discharged. Colorado Revised Statutes 2019 Page 164 of 695 Uncertified Printout (4) In determining whether to release a sex offender on parole, reduce the level of supervision, or discharge a sex offender from parole pursuant to this section, the parole board shall consider the recommendations of the department and the sex offender's community parole officer and treatment provider. If the parole board chooses not to follow the recommendations made, it shall make findings on the record in support of its decision. Source: L. 2002: Entire article added with relocations, p. 1438, § 2, effective October 1. L. 2003: (1)(a) amended, p. 975, § 11, effective April 17. L. 2008: (2), (3), and (4) amended, p. 660, §14, effective April 25. L. 2015: (1)(c) amended, (HB 15-1122), ch. 37, p. 91, § 6, effective March 20. Editor's note: This section is similar to former § 16-13-806 as it existed prior to 2002. Cross references: For the legislative declaration in SB 15-1122, see section 1 of chapter 37, Session Laws of Colorado 2015. 18-1.3-1007. Probation - intensive supervision program. (1) (a) The judicial department shall establish an intensive supervision probation program for sex offenders sentenced to probation pursuant to this part 10. In addition, the court shall require a person, as a condition of probation, to participate in the intensive supervision probation program established pursuant to this section if the person is convicted of one of the following offenses and sentenced to probation: (I) Indecent exposure, as described in section 18-7-302 (4); (II) Criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in section 18-1.3-1003 (5)(a), which attempt, conspiracy, or solicitation would constitute a class 5 felony; (III) Any of the offenses specified in section 16-22-102 (9)(j), (9)(k), (9)(l), (9)(n), (9)(o), (9)(p), (9)(q), (9)(r), (9)(s), or (9)(dd); (IV) Any felony offense that involves unlawful sexual behavior or any felony offense with an underlying factual basis, as determined by the court, resulting in a conviction or plea of guilty or nolo contendere on or after July 1, 2001; (V) Sexual assault in the third degree, in violation of section 18-3-404 (2), as it existed prior to July 1, 2000. (b) The judicial department may establish the intensive supervision probation program in any judicial district or combination of judicial districts. (1.5) In addition to the persons specified in subsection (1) of this section, the court may require any person convicted of felony failure to register as a sex offender, as described in section 18-3-412.5, and sentenced to probation to participate, as a condition of probation and until further order of the court, in the intensive supervision probation program established pursuant to this section. (2) The judicial department shall require that sex offenders and any other persons participating in the intensive supervision probation program created pursuant to this section receive the highest level of supervision that is provided to probationers. The intensive supervision probation program may include but not be limited to severely restricted activities, daily contact between the sex offender or other person and the probation officer, monitored Colorado Revised Statutes 2019 Page 165 of 695 Uncertified Printout curfew, home visitation, employment visitation and monitoring, drug and alcohol screening, treatment referrals and monitoring, including physiological monitoring, and payment of restitution. In addition, the intensive supervision probation program shall be designed to minimize the risk to the public to the greatest extent possible. (3) The judicial department shall establish and enforce standards and criteria for administration of the intensive supervision probation program created pursuant to this section. (4) For the purposes of this section, "convicted" means having entered a plea of guilty, including a plea of guilty entered pursuant to a deferred sentence under section 18-1.3-102, or a plea of no contest, accepted by the court, or having received a verdict of guilty by a judge or jury. Source: L. 2002: Entire article added with relocations, p. 1440, § 2, effective October 1. L. 2011: (1.5) amended, (HB 11-1278), ch. 224, p. 965, § 9, effective May 27. L. 2012: (1)(a)(III) amended, (HB 12-1310), ch. 268, p. 1402, § 26, effective June 7. L. 2019: (1)(a)(III) amended, (HB 19-1250), ch. 287, p. 2664, § 5, effective July 1. Editor's note: (1) This section is similar to former § 16-13-807 as it existed prior to 2002. (2) Section 8 of chapter 287 (HB 19-1250), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after July 1, 2019. 18-1.3-1008. Probation - conditions - release. (1) If the court sentences a sex offender to probation, in addition to any conditions imposed pursuant to section 18-1.3-204, the court shall require as a condition of probation that the sex offender participate until further order of the court in the intensive supervision probation program created pursuant to section 18-1.3-1007. (1.5) If the court as a condition of probation sentences a sex offender to a residential community corrections program, following completion of the minimum period of sentence specified by the court, the community corrections program shall notify the judicial department when it determines that the sex offender has successfully progressed in treatment and would not pose an undue threat to the community if allowed to live in the community while continuing on intensive supervision probation. The community corrections program shall base its determination on the criteria established by the management board pursuant to section 18-1.3-1009. The judicial department shall file the recommendations of the community corrections program with the court. Upon order of the court, the sex offender shall be released from the community corrections program, and the court shall order the sex offender, as a condition of probation, to participate in the intensive supervision program created in section 18-1.3-1007. The sex offender shall participate in such program until further order of the court. (2) On completion of twenty years of probation for any sex offender convicted of a class 2 or 3 felony or on completion of ten years of probation for any sex offender convicted of a class 4 felony, the court shall schedule a review hearing to determine whether the sex offender should be discharged from probation. In making its determination, the court shall determine whether the sex offender has successfully progressed in treatment and would not pose an undue threat to the community if allowed to live in the community without treatment or supervision. The sex offender's probation officer and treatment provider shall make recommendations to the court Colorado Revised Statutes 2019 Page 166 of 695 Uncertified Printout concerning whether the sex offender has met the requirements of this section such that he or she should be discharged from probation. (3) (a) In determining whether to discharge a sex offender from probation pursuant to this section, the court shall consider the recommendations of the sex offender's probation officer and treatment provider. The recommendations of the probation officer and the treatment provider shall be based on the criteria established by the management board pursuant to section 18-1.31009. If the court chooses not to follow the recommendations made, the court shall make findings on the record in support of its decision. (b) If the court does not discharge the sex offender from probation pursuant to paragraph (a) of this subsection (3), the court shall review such denial at least once every three years until it determines that the sex offender meets the criteria for discharge as specified in paragraph (a) of this subsection (3). At each review, the sex offender's probation officer and treatment provider shall make recommendations, based on the criteria established by the management board pursuant to section 18-1.3-1009, concerning whether the sex offender should be discharged. Source: L. 2002: Entire article added with relocations, p. 1441, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-808 as it existed prior to 2002. 18-1.3-1009. Criteria for release from incarceration, reduction in supervision, and discharge. (1) On or before July 1, 1999, the management board, in collaboration with the department of corrections, the judicial department, and the parole board, shall establish: (a) The criteria by and the manner in which a sex offender may demonstrate that he or she would not pose an undue threat to the community if released on parole or to a lower level of supervision while on parole or probation or if discharged from parole or probation. The court and the parole board may use the criteria to assist in making decisions concerning release of a sex offender, reduction of the level of supervision for a sex offender, and discharge of a sex offender. (b) The methods of determining whether a sex offender has successfully progressed in treatment; and (c) Standards for community entities that provide supervision and treatment specifically designed for sex offenders who have developmental disabilities. At a minimum, the standards shall determine whether an entity would provide adequate support and supervision to minimize any threat that the sex offender may pose to the community. Source: L. 2002: Entire article added with relocations, p. 1442, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-809 as it existed prior to 2002. 18-1.3-1010. Arrest of parolee or probationer - revocation. (1) (a) A sex offender paroled pursuant to section 18-1.3-1006 is subject to arrest and revocation of parole as provided in sections 17-2-103 and 17-2-103.5, C.R.S. At any revocation proceeding, the sex offender's community parole officer and the treatment provider shall submit written recommendations concerning the level of treatment and monitoring that should be imposed as a condition of parole if parole is not revoked or whether the sex offender poses a sufficient threat to the community Colorado Revised Statutes 2019 Page 167 of 695 Uncertified Printout that parole should be revoked. The recommendations shall be based on the criteria established by the management board pursuant to section 18-1.3-1009. If the parole board revokes the sex offender's parole, the sex offender shall continue to be subject to the provisions of this part 10. (b) At a revocation hearing held pursuant to this subsection (1), the parole board shall consider the recommendations of the community parole officer and the treatment provider, in addition to evidence concerning any of the grounds for revocation of parole specified in sections 17-2-103 and 17-2-103.5, C.R.S. If the parole board chooses not to follow the recommendations made, it shall make findings on the record in support of its decision. (2) (a) A sex offender sentenced to probation pursuant to section 18-1.3-1004 (2) is subject to arrest and revocation of probation as provided in sections 16-11-205 and 16-11-206, C.R.S. At any revocation proceeding, the sex offender's probation officer and the sex offender's treatment provider shall submit recommendations concerning the level of treatment and monitoring that should be imposed as a condition of probation if probation is not revoked or whether the sex offender poses a sufficient threat to the community that probation should be revoked. The recommendations shall be based on the criteria established by the management board pursuant to section 18-1.3-1009. If the court revokes the sex offender's probation, the court shall sentence the sex offender as provided in section 18-1.3-1004, and the sex offender shall be subject to the provisions of this part 10. (b) At a revocation hearing held pursuant to this subsection (2), the court shall consider the recommendations of the probation officer and the treatment provider, in addition to evidence concerning any of the grounds for revocation of probation specified in sections 16-11-205 and 16-11-206, C.R.S. If the court chooses not to follow the recommendations made, it shall make findings on the record in support of its decision. Source: L. 2002: Entire article added with relocations, p. 1442, § 2, effective October 1. L. 2008: (1) amended, p. 661, § 15, effective April 25. Editor's note: This section is similar to former § 16-13-810 as it existed prior to 2002. 18-1.3-1011. Annual report. (1) Notwithstanding section 24-1-136 (11)(a)(I), on or before November 1, 2000, and on or before each November 1 thereafter, the department of corrections, the department of public safety, and the judicial department shall submit a report to the judiciary committees of the house of representatives and the senate, or any successor committees, and to the joint budget committee of the general assembly specifying, at a minimum: (a) The impact on the prison population, the parole population, and the probation population in the state due to the extended length of incarceration and supervision provided for in sections 18-1.3-1004, 18-1.3-1006, and 18-1.3-1008; (b) The number of offenders placed in the intensive supervision parole program and the intensive supervision probation program and the length of supervision of offenders in said programs; (c) The number of sex offenders sentenced pursuant to this part 10 who received parole release hearings and the number released on parole during the preceding twelve months, if any; Colorado Revised Statutes 2019 Page 168 of 695 Uncertified Printout (d) The number of sex offenders sentenced pursuant to this part 10 who received parole or probation discharge hearings and the number discharged from parole or probation during the preceding twelve months, if any; (e) The number of sex offenders sentenced pursuant to this part 10 who received parole or probation revocation hearings and the number whose parole or probation was revoked during the preceding twelve months, if any; (f) A summary of the evaluation instruments developed by the management board and use of the evaluation instruments in evaluating sex offenders pursuant to this part 10; (g) The availability of sex offender treatment providers throughout the state, including location of the treatment providers, the services provided, and the amount paid by offenders and by the state for the services provided, and the manner of regulation and review of the services provided by sex offender treatment providers; (h) The average number of sex offenders sentenced pursuant to this part 10 that participated in phase I and phase II of the department's sex offender treatment and monitoring program during each month of the preceding twelve months; (i) The number of sex offenders sentenced pursuant to this part 10 who were denied admission to treatment in phase I and phase II of the department's sex offender treatment and monitoring program for reasons other than length of remaining sentence during each month of the preceding twelve months; (j) The number of sex offenders sentenced pursuant to this part 10 who were terminated from phase I and phase II of the department's sex offender treatment and monitoring program during the preceding twelve months and the reason for termination in each case; (k) The average length of participation by sex offenders sentenced pursuant to this part 10 in phase I and phase II of the department's sex offender treatment and monitoring program during the preceding twelve months; (l) The number of sex offenders sentenced pursuant to this part 10 who were denied readmission to phase I and phase II of the department's sex offender treatment and monitoring program after having previously been terminated from the program during the preceding twelve months; (m) The number of sex offenders sentenced pursuant to this part 10 who were recommended by the department's sex offender treatment and monitoring program to the parole board for release on parole during the preceding twelve months and whether the recommendation was followed in each case; and (n) The number of sex offenders sentenced pursuant to this part 10 who were recommended by the department's sex offender treatment and monitoring program for placement in community corrections during the preceding twelve months and whether the recommendation was followed in each case. Source: L. 2002: Entire article added with relocations, p. 1443, § 2, effective October 1. L. 2007: IP(1) and (1)(f) amended and (1)(h) to (1)(n) added, p. 1543, § 1, effective May 31. L. 2017: IP(1) amended, (SB 17-241), ch. 171, p. 624, § 6, effective April 28; IP(1) amended, (HB 17-1059), ch. 91, p. 278, § 3, effective August 9; IP(1) amended, (SB 17-031), ch. 92, p. 282, § 9, effective August 9. Editor's note: This section is similar to former § 16-13-811 as it existed prior to 2002. Colorado Revised Statutes 2019 Page 169 of 695 Uncertified Printout 18-1.3-1012. Applicability of part. The provisions of this part 10 shall apply to any person who commits a sex offense on or after November 1, 1998. Source: L. 2002: Entire article added with relocations, p. 1444, § 2, effective October 1. Editor's note: This section is similar to former § 16-13-812 as it existed prior to 2002. PART 11 SPECIAL PROCEEDINGS - PRETRIAL MOTIONS IN CLASS 1 FELONY CASES ALLEGING THAT A DEFENDANT IS A MENTALLY RETARDED DEFENDANT 18-1.3-1101. Definitions. As used in this part 11: (1) "Defendant" means any person charged with a class 1 felony. (2) "Mentally retarded defendant or defendant with an intellectual and developmental disability" means any defendant with significantly subaverage general intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested and documented during the developmental period. The requirement for documentation may be excused by the court upon a finding that extraordinary circumstances exist. Source: L. 2002: Entire article added with relocations, p. 1444, § 2, effective October 1. L. 2018: (2) amended, (SB 18-096), ch. 44, p. 469, § 2, effective August 8. Editor's note: This section is similar to former § 16-9-401 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 44, Session Laws of Colorado 2018. 18-1.3-1102. Pretrial motion by defendant in class 1 felony case - determination whether defendant is mentally retarded or has an intellectual and developmental disability - procedure. (1) Any defendant may file a motion with the trial court in which the defendant may allege that such defendant is a mentally retarded defendant or a defendant with an intellectual and developmental disability. The motion must be filed at least ninety-one days prior to trial. (2) The court shall hold a hearing upon any motion filed pursuant to subsection (1) of this section and shall make a determination regarding the motion no later than fourteen days prior to trial. At such hearing, the defendant must be permitted to present evidence with regard to the motion and the prosecution must be permitted to offer evidence in rebuttal. The defendant has the burden of proof to show by clear and convincing evidence that he or she is mentally retarded or has an intellectual and developmental disability. (3) The court shall enter specific findings of fact and conclusions of law regarding whether or not the defendant is a mentally retarded defendant or a defendant with an intellectual and developmental disability, as defined in section 18-1.3-1101. Colorado Revised Statutes 2019 Page 170 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1444, § 2, effective October 1. L. 2012: (1) and (2) amended, (SB 12-175), ch. 208, p. 868, § 119, effective July 1. L. 2018: Entire section amended, (SB 18-096), ch. 44, p. 469, § 3, effective August 8. Editor's note: This section is similar to former § 16-9-402 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. 18-1.3-1103. Mentally retarded defendant or defendant with an intellectual and developmental disability - death penalty not imposed. A sentence of death shall not be imposed upon any defendant who is determined to be a mentally retarded defendant or a defendant with an intellectual and developmental disability pursuant to section 18-1.3-1102. If any person who is determined to be a mentally retarded defendant or a defendant with an intellectual and developmental disability is found guilty of a class 1 felony, such defendant shall be sentenced to life imprisonment. Source: L. 2002: Entire article added with relocations, p. 1444, § 2, effective October 1. L. 2018: Entire section amended, (SB 18-096), ch. 44, p. 470, § 4, effective August 8. Editor's note: This section is similar to former § 16-9-403 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. 18-1.3-1104. Evaluation and report. (1) When the defendant files a motion alleging that the defendant is a mentally retarded defendant or a defendant with an intellectual and developmental disability, the court shall order one or more evaluations of the defendant with regard to such motion. (2) In ordering an evaluation of the defendant pursuant to subsection (1) of this section, the court shall specify the place where the evaluation is to be conducted and the period of time allocated for the evaluation. In determining the place where the evaluation is to be conducted, the court shall give priority to the place where the defendant is in custody, unless the nature and circumstances of the evaluation requires designation of a different location. The court shall direct one or more psychologists who are recommended by the executive director of the department of health care policy and financing pursuant to section 25.5-10-239, C.R.S., or his or her designee, to evaluate the defendant. For good cause shown, upon motion of the prosecution or the defendant or upon the court's own motion, the court may order such further or other evaluation as it deems necessary. Nothing in this section shall abridge the right of the defendant to procure an evaluation as provided in section 18-1.3-1105. (3) The defendant has a privilege against self-incrimination that may be invoked prior to or during the course of an evaluation pursuant to this section. A defendant's failure to cooperate with the evaluators or other personnel conducting the evaluation may be admissible in the defendant's hearing concerning mental retardation or the presence of an intellectual and developmental disability. Colorado Revised Statutes 2019 Page 171 of 695 Uncertified Printout (4) To aid in the formation of an opinion as to mental retardation or the presence of an intellectual and developmental disability, it is permissible in the course of an evaluation conducted pursuant to this section to use statements made by the defendant and any other evidence, including but not limited to the circumstances surrounding the commission of the offense as well as the defendant's medical and social history, in evaluating the defendant. (5) A written report of the evaluation shall be prepared in triplicate and delivered to the appropriate clerk of the court. The clerk shall furnish a copy of the report to both the prosecuting attorney and the counsel for the defendant. (6) The report of evaluation must include, but is not limited to: (a) The name of each expert who evaluated the defendant; (b) A description of the nature, content, extent, and results of the evaluation and any tests conducted; and (c) Diagnosis and an opinion as to whether the defendant is mentally retarded or has an intellectual and developmental disability. (7) Nothing in this section shall be construed to preclude the application of section 16-8109, C.R.S. Source: L. 2002: Entire article added with relocations, p. 1445, § 2, effective October 1. L. 2013: (2) amended, (HB 13-1314), ch. 323, p. 1804, § 29, effective March 1, 2014. L. 2018: (1), (3), (4), IP(6), and (6)(c) amended, (SB 18-096), ch. 44, p. 470, § 5, effective August 8. Editor's note: This section is similar to former § 16-9-404 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. 18-1.3-1105. Evaluation at insistence of defendant. (1) If the defendant wishes to be evaluated by an expert of the defendant's choice in mental retardation or intellectual and developmental disabilities in connection with the mental retardation or intellectual and developmental disability hearing pursuant to this part 11, the court, upon timely motion, shall order that the evaluator chosen by the defendant be given reasonable opportunity to conduct the evaluation. (2) Whenever an expert is endorsed as a witness by the defendant, a copy of any report of an evaluation of the defendant shall be furnished to the prosecution within a reasonable time but not less than thirty-five days prior to the mental retardation or intellectual and developmental disability hearing. Source: L. 2002: Entire article added with relocations, p. 1445, § 2, effective October 1. L. 2012: (2) amended, (SB 12-175), ch. 208, p. 868, § 120, effective July 1. L. 2018: Entire section amended, (SB 18-096), ch. 44, p. 471, § 6, effective August 8. Editor's note: This section is similar to former § 16-9-405 as it existed prior to 2002. Cross references: For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. Colorado Revised Statutes 2019 Page 172 of 695 Uncertified Printout PART 12 SPECIAL PROCEEDINGS - SENTENCING IN CLASS 1 FELONIES 18-1.3-1201. Imposition of sentence in class 1 felonies - appellate review. (1) (a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense or unless the defendant has been determined to be a mentally retarded defendant or a defendant with an intellectual and developmental disability pursuant to part 11 of this article 1.3, in either of which cases, the defendant must be sentenced to life imprisonment. The trial judge shall conduct the hearing before the trial jury as soon as practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and must remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors must sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are excused from participation in the sentencing hearing, the trial judge shall replace each juror or jurors with an alternate juror or jurors. If a trial jury was waived or if the defendant pled guilty, the hearing shall be conducted before the trial judge. The court shall instruct the defendant when waiving his or her right to a jury trial or when pleading guilty that he or she is also waiving his or her right to a jury determination of the sentence at the sentencing hearing. (a.5) and (a.7) (Deleted by amendment, L. 2002, 3rd Ex. Sess., p. 7, § 2, effective July 12, 2002.) (b) All admissible evidence presented by either the prosecuting attorney or the defendant that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, any matters relating to any of the aggravating or mitigating factors enumerated in subsections (4) and (5) of this section, and any matters relating to the personal characteristics of the victim and the impact of the crimes on the victim's family may be presented. Any such evidence, including but not limited to the testimony of members of the victim's immediate family, as defined in section 24-4.1-302 (6), C.R.S., which the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence. The prosecuting attorney and the defendant or the defendant's counsel shall be permitted to present arguments for or against a sentence of death. The jury shall be instructed that life imprisonment means imprisonment for life without the possibility of parole. (c) (Deleted by amendment, L. 2002, 3rd Ex. Sess., p. 7, § 2, effective July 12, 2002.) (d) The burden of proof as to the aggravating factors enumerated in subsection (5) of this section shall be beyond a reasonable doubt. There shall be no burden of proof as to proving or disproving mitigating factors. (2) (a) After hearing all the evidence and arguments of the prosecuting attorney and the defendant, the jury shall deliberate and render a verdict based upon the following considerations: (I) Whether at least one aggravating factor has been proved as enumerated in subsection (5) of this section; Colorado Revised Statutes 2019 Page 173 of 695 Uncertified Printout (II) Whether sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist; and (III) Based on the considerations in subparagraphs (I) and (II) of this paragraph (a), whether the defendant should be sentenced to death or life imprisonment. (b) (I) In the event that no aggravating factors are found to exist as enumerated in subsection (5) of this section, the jury shall render a verdict of life imprisonment, and the court shall sentence the defendant to life imprisonment. (II) The jury shall not render a verdict of death unless it unanimously finds and specifies in writing that: (A) At least one aggravating factor has been proved; and (B) There are insufficient mitigating factors to outweigh the aggravating factor or factors that were proved. (c) In the event that the jury's verdict is to sentence to death, such verdict shall be unanimous and shall be binding upon the court unless the court determines, and sets forth in writing the basis and reasons for such determination, that the verdict of the jury is clearly erroneous as contrary to the weight of the evidence, in which case the court shall sentence the defendant to life imprisonment. (d) If the jury's verdict is not unanimous, the jury shall be discharged, and the court shall sentence the defendant to life imprisonment. (2.5) In all cases where the sentencing hearing is held before the court alone, the court shall determine whether the defendant should be sentenced to death or life imprisonment in the same manner in which a jury determines its verdict under paragraphs (a) and (b) of subsection (2) of this section. The sentence of the court shall be supported by specific written findings of fact based upon the circumstances as set forth in subsections (4) and (5) of this section and upon the records of the trial and sentencing hearing. (3) (a) The provisions of this subsection (3) shall apply only in a class 1 felony case in which the prosecuting attorney has filed a statement of intent to seek the death penalty pursuant to rule 32.1 (b) of the Colorado rules of criminal procedure. (b) The prosecuting attorney shall provide the defendant with the following information and materials not later than twenty-one days after the prosecution files its written intention to seek the death penalty or within such other time frame as the supreme court may establish by rule; except that any reports, recorded statements, and notes, including results of physical or mental examinations and scientific tests, experiments, or comparisons, of any expert whom the prosecuting attorney intends to call as a witness at the sentencing hearing shall be provided to the defense as soon as practicable but not later than sixty-three days before trial: (I) A list of all aggravating factors that are known to the prosecuting attorney at that time and that the prosecuting attorney intends to prove at the sentencing hearing; (II) A list of all witnesses whom the prosecuting attorney may call at the sentencing hearing, specifying for each the witness' name, address, and date of birth and the subject matter of the witness' testimony; (III) The written and recorded statements, including any notes of those statements, for each witness whom the prosecuting attorney may call at the sentencing hearing; (IV) (Deleted by amendment, L. 2002, 3rd Ex. Sess., p. 7, § 2, effective July 12, 2002.) (V) A list of books, papers, documents, photographs, or tangible objects that the prosecuting attorney may introduce at the sentencing hearing; and Colorado Revised Statutes 2019 Page 174 of 695 Uncertified Printout (VI) All material or information that tends to mitigate or negate the finding of any of the aggravating factors the prosecuting attorney intends to prove at the sentencing hearing. (b.5) Upon receipt of the information required to be disclosed by the defendant pursuant to paragraph (c) of this subsection (3), the prosecuting attorney shall notify the defendant as soon as practicable of any additional witnesses whom the prosecuting attorney intends to call in response to the defendant's disclosures. (c) The defendant shall provide the prosecuting attorney with the following information and materials no later than thirty-five days before the first trial date set for the beginning of the defendant's trial or within such other time frame as the supreme court may establish by rule; however, any reports, recorded statements, and notes, including results of physical or mental examinations and scientific tests, experiments, or comparisons, of any expert whom the defense intends to call as a witness at the sentencing hearing shall be provided to the prosecuting attorney as soon as practicable but not later than thirty-five days before trial: (I) A list of all witnesses whom the defendant may call at the sentencing hearing, specifying for each the witness' name, address, and date of birth and the subject matter of the witness' testimony; (II) The written and recorded statements, including any notes of those statements, of each witness whom the defendant may call at the sentencing hearing; and (III) (Deleted by amendment, L. 2002, 3rd Ex. Sess., p. 7, § 2, effective July 12, 2002.) (IV) A list of books, papers, documents, photographs, or tangible objects that the defendant may introduce at the sentencing hearing. (c.5) (I) Any material subject to this subsection (3) that the defendant believes contains information that is privileged to the extent that the prosecution cannot be aware of it in connection with its preparation for, or conduct of, the trial to determine guilt on the substantive charges against the defendant shall be submitted by the defendant to the trial judge under seal no later than forty-nine days before trial. (II) The trial judge shall review any such material submitted under seal pursuant to subparagraph (I) of this paragraph (c.5) to determine whether it is in fact privileged. Any material the trial judge finds not to be privileged shall be provided forthwith to the prosecuting attorney. Any material submitted under seal that the trial judge finds to be privileged shall be provided forthwith to the prosecution if the defendant is convicted of a class 1 felony. (d) (I) Except as otherwise provided in subparagraph (II) of this paragraph (d), if the witnesses disclosed by the defendant pursuant to paragraph (c) of this subsection (3) include witnesses who may provide evidence concerning the defendant's mental condition at the sentencing hearing conducted pursuant to this section, the trial court, at the request of the prosecuting attorney, shall order that the defendant be examined and a report of said examination be prepared pursuant to section 16-8-106, C.R.S. (II) The court shall not order an examination pursuant to subparagraph (I) of this paragraph (d) if: (A) Such an examination was previously performed and a report was prepared in the same case; and (B) The report included an opinion concerning how any mental disease or defect of the defendant or condition of mind caused by mental disease or defect of the defendant affects the mitigating factors that the defendant may raise at the sentencing hearing held pursuant to this section. Colorado Revised Statutes 2019 Page 175 of 695 Uncertified Printout (e) If the witnesses disclosed by the defendant pursuant to paragraph (c) of this subsection (3) include witnesses who may provide evidence concerning the defendant's mental condition at a sentencing hearing conducted pursuant to this section, the provisions of section 16-8-109, C.R.S., concerning testimony of lay witnesses shall apply to said sentencing hearing. (f) There is a continuing duty on the part of the prosecuting attorney and the defendant to disclose the information and materials specified in this subsection (3). If, after complying with the duty to disclose the information and materials described in this subsection (3), either party discovers or obtains any additional information and materials that are subject to disclosure under this subsection (3), the party shall promptly notify the other party and provide the other party with complete access to the information and materials. (g) The trial court, upon a showing of extraordinary circumstances that could not have been foreseen and prevented, may grant an extension of time to comply with the requirements of this subsection (3). (h) If it is brought to the attention of the court that either the prosecuting attorney or the defendant has failed to comply with the provisions of this subsection (3) or with an order issued pursuant to this subsection (3), the court may enter any order against such party that the court deems just under the circumstances, including but not limited to an order to permit the discovery or inspection of information and materials not previously disclosed, to grant a continuance, to prohibit the offending party from introducing the information and materials not disclosed, or to impose sanctions against the offending party. (4) For purposes of this section, mitigating factors shall be the following factors: (a) The age of the defendant at the time of the crime; or (b) The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or (c) The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or (d) The defendant was a principal in the offense which was committed by another, but the defendant's participation was relatively minor, although not so minor as to constitute a defense to prosecution; or (e) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or (f) The emotional state of the defendant at the time the crime was committed; or (g) The absence of any significant prior conviction; or (h) The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney; or (i) The influence of drugs or alcohol; or (j) The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct; or (k) The defendant is not a continuing threat to society; or (l) Any other evidence which in the court's opinion bears on the question of mitigation. (5) For purposes of this section, the following are aggravating factors: (a) The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed Colorado Revised Statutes 2019 Page 176 of 695 Uncertified Printout against another state or the United States which would constitute a class 1, 2, or 3 felony as defined by Colorado law; or (b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 18-1.3-406, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 18-1.3-406; or (c) The defendant intentionally killed any of the following persons while the person was engaged in the course of the performance of the person's official duties, and the defendant knew or reasonably should have known that the victim was a person engaged in the performance of the person's official duties, or the victim was intentionally killed in retaliation for the performance of the victim's official duties: (I) A peace officer or former peace officer as described in section 16-2.5-101, C.R.S.; or (II) A firefighter as defined in section 24-33.5-1202 (4), C.R.S.; or (II.5) An emergency medical service provider, as defined in section 18-3-201 (1.3); or (III) A judge, referee, or former judge or referee of any court of record in the state or federal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (III), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions. (IV) An elected state, county, or municipal official; or (V) A federal law enforcement officer or agent or former federal law enforcement officer or agent; or (d) The defendant intentionally killed a person kidnapped or being held as a hostage by the defendant or by anyone associated with the defendant; or (e) The defendant has been a party to an agreement to kill another person in furtherance of which a person has been intentionally killed; or (f) The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device or a chemical, biological, or radiological weapon. As used in this paragraph (f), "explosive or incendiary device" means: (I) Dynamite and all other forms of high explosives; or (II) Any explosive bomb, grenade, missile, or similar device; or (III) Any incendiary bomb or grenade, fire bomb, or similar device, including any device which consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone. (g) The defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants; or (h) The class 1 felony was committed for pecuniary gain; or (i) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense; or (j) The defendant committed the offense in an especially heinous, cruel, or depraved manner; or (k) The class 1 felony was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody. This factor shall include the intentional killing of a witness to a criminal offense. Colorado Revised Statutes 2019 Page 177 of 695 Uncertified Printout (l) The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode; or (m) The defendant intentionally killed a child who has not yet attained twelve years of age; or (n) The defendant committed the class 1 felony against the victim because of the victim's race, color, ancestry, religion, or national origin; or (o) The defendant's possession of the weapon used to commit the class 1 felony constituted a felony offense under the laws of this state or the United States; or (p) The defendant intentionally killed more than one person in more than one criminal episode; or (q) The victim was a pregnant woman, and the defendant intentionally killed the victim, knowing she was pregnant. (6) (a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule. The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal that may be filed pursuant to part 2 of article 12 of title 16, C.R.S. (b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances. (7) (a) If any provisions of this section are determined by the United States supreme court or by the Colorado supreme court to render this section unconstitutional or invalid such that this section does not constitute a valid and operative death penalty statute for class 1 felonies, but severance of such provisions would, through operation of the remaining provisions of this section, maintain this section as a valid and operative death penalty statute for class 1 felonies, it is the intent of the general assembly that those remaining provisions are severable and are to have full force and effect. (b) If any death sentence is imposed upon a defendant pursuant to the provisions of this section and, on appellate review including consideration pursuant to subsection (8) of this section, the imposition of such death sentence upon such defendant is held invalid for reasons other than unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, the case shall be remanded to the trial court to set a new sentencing hearing before a newly impaneled jury or, if the defendant pled guilty or waived the right to jury sentencing, before the trial judge; except that, if the prosecutor informs the trial court that, in the opinion of the prosecutor, capital punishment would no longer be in the interest of justice, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. If a death sentence imposed pursuant to this section is held invalid based on unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. Colorado Revised Statutes 2019 Page 178 of 695 Uncertified Printout (8) If, on appeal, the supreme court finds one or more of the aggravating factors that were found to support a sentence to death to be invalid for any reason, the supreme court may determine whether the sentence of death should be affirmed on appeal by: (a) Reweighing the remaining aggravating factor or factors and all mitigating factors and then determining whether death is the appropriate punishment in the case; or (b) Applying harmless error analysis by considering whether, if the sentencing body had not considered the invalid aggravating factor, it would have nonetheless sentenced the defendant to death; or (c) If the supreme court finds the sentencing body's consideration of an aggravating factor was improper because the aggravating factor was not given a constitutionally narrow construction, determining whether, beyond a reasonable doubt, the sentencing body would have returned a verdict of death had the aggravating factor been properly narrowed; or (d) Employing any other constitutionally permissible method of review. Source: L. 2002: Entire article added with relocations, p. 1446, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1), (2), (3), and (7) amended and (2.5) and (8) added, p. 7, § 2, effective July 12. L. 2003: IP(5)(f) amended and (5)(p) added, p. 1443, § 1, effective April 29; (5)(q) added, p. 2163, § 5, effective July 1; (5)(c)(I) amended, p. 1614, § 10, effective August 6. L. 2012: IP(3)(b), IP(3)(c), and (3)(c.5)(I) amended, (SB 12-175), ch. 208, p. 868, § 121, effective July 1. L. 2014: IP(5) and IP(5)(c) amended and (5)(c)(II.5) added, (HB 14-1214), ch. 336, p. 1494, § 2, effective August 6. L. 2018: (5)(c)(II.5) amended, (HB 18-1375), ch. 274, p. 1701, § 23, effective May 29; (1)(a) amended, (SB 18-096), ch. 44, p. 471, § 7, effective August 8. Editor's note: (1) This section is similar to former § 16-11-103 as it existed prior to 2002. (2) Language of an Arizona statute requiring a judge instead of a jury to determine the presence or absence of certain enumerated circumstances for imposition of the death penalty, which was similar to the language found in subsection (2) as it existed prior to July 12, 2002, was held unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002). Cross references: (1) For provisions relating to the applicability of procedures in class 1 felony cases for crimes committed on or after July 1, 1988, and prior to September 20, 1991, see part 13 of article 1.3 of title 18. (2) For the legislative declaration contained in the 2002 act amending subsections (1), (2), (3), and (7) and enacting subsections (2.5) and (8), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration contained in the 2003 act enacting subsection (5)(q), see section 1 of chapter 340, Session Laws of Colorado 2003. For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. 18-1.3-1202. Death penalty inflicted by lethal injection. The manner of inflicting the punishment of death shall be by the administration of a lethal injection within the time prescribed in this part 12, unless for good cause the court or governor may prolong the time. For the purposes of this part 12, "lethal injection" means a continuous intravenous injection of a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to Colorado Revised Statutes 2019 Page 179 of 695 Uncertified Printout cause death. The manner of inflicting the punishment of death shall, in all circumstances, be by the administration of a lethal injection regardless of the date of the commission of the offense or offenses for which the death penalty is imposed. Source: L. 2002: Entire article added with relocations, p. 1452, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-401 as it existed prior to 2002. 18-1.3-1203. Genetic testing prior to execution. Prior to the execution of the death penalty pursuant to this part 12, the judicial department shall obtain the chemical testing of a biological substance sample from the convicted offender to determine the genetic markers thereof. Source: L. 2002: Entire article added with relocations, p. 1453, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-401.5 as it existed prior to 2002. 18-1.3-1204. Implements - sentence executed by executive director. The executive director of the department of corrections, at the expense of the state of Colorado, shall provide a suitable and efficient room or place, enclosed from public view, within the walls of the correctional facilities at Cañon City and therein at all times have in preparation all necessary implements requisite for carrying into execution the death penalty by means of the administration of a lethal injection. The execution shall be performed in the room or place by a person selected by the executive director and trained to administer intravenous injections. Death shall be pronounced by a licensed physician or a coroner according to accepted medical standards. Source: L. 2002: Entire article added with relocations, p. 1453, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-402 as it existed prior to 2002. 18-1.3-1205. Week of execution - warrant. When a person is convicted of a class 1 felony, the punishment for which is death, and the convicted person is sentenced to suffer the penalty of death, the judge passing such sentence shall appoint and designate in the warrant of conviction a week of time within which the sentence must be executed; the end of such week so appointed shall be not fewer than ninety-one days nor more than one hundred twenty-six days from the day of passing the sentence. Said warrant shall be directed to the executive director of the department of corrections or the executive director's designee commanding said executive director or designee to execute the sentence imposed upon some day within the week of time designated in the warrant and shall be delivered to the sheriff of the county in which such conviction is had, who, within three days thereafter, shall proceed to the correctional facilities at Cañon City and deliver the convicted person, together with the warrant, to said executive director or designee, who shall keep the convict in confinement until execution of the death penalty. Persons shall be permitted access to the inmate pursuant to prison rules. Such rules shall Colorado Revised Statutes 2019 Page 180 of 695 Uncertified Printout provide, at a minimum, for the inmate's attendants, counsel, and physician, a spiritual adviser selected by the inmate, and members of the inmate's family to have access to the inmate. Source: L. 2002: Entire article added with relocations, p. 1453, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: Entire section amended, p. 14, § 4, effective October 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 869, § 122, effective July 1. Editor's note: This section is similar to former § 16-11-403 as it existed prior to 2002. Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. 18-1.3-1206. Execution - witnesses. The particular day and hour of the execution of said sentence within the week specified in said warrant shall be fixed by the executive director of the department of corrections or the executive director's designee, and the executive director shall be present thereat or shall appoint some other representative among the officials or officers of the correctional facilities at Cañon City to be present in his or her place and stead. There shall also be present a physician and such guards, attendants, and other persons as the executive director or the executive director's designee in his or her discretion deems necessary to conduct the execution. In addition, there may be present such witnesses as the executive director or the executive director's designee in his or her discretion deems desirable, not to exceed eighteen persons. The executive director or the executive director's designee shall notify the governor of the day and hour for the execution as soon as it has been fixed. Source: L. 2002: Entire article added with relocations, p. 1453, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-404 as it existed prior to 2002. 18-1.3-1207. Record and certificate of execution. The executive director of the department of corrections or his or her designee shall keep a book of record, to be known as record of executions, in which shall be entered the reports specified in this section. Immediately after the execution, a postmortem examination of the body of the convict shall be made by the attending physician, who shall enter in said book of record the nature and extent of the examination and sign and certify to the same. The executive director or his or her designee shall also immediately make and enter in said book a report, setting forth the time of such execution and that the convict (naming him or her) was then and there executed in conformity to the sentence specified in the warrant of the court (naming such court) to him or her directed and in accordance with the provisions of this part 12, and shall insert in said report the names of all the persons who were present and witnessed the execution, and shall procure each of such persons to sign said report with his or her full name and place of residence before leaving the place of execution. The executive director or his or her designee shall thereupon attach his or her certificate to said report, certifying to the truth and correctness thereof, and shall immediately deliver a certified transcript of the record entry to the court which sentenced the convict. Colorado Revised Statutes 2019 Page 181 of 695 Uncertified Printout Source: L. 2002: Entire article added with relocations, p. 1454, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-405 as it existed prior to 2002. PART 13 SPECIAL PROCEEDINGS - APPLICABILITY OF PROCEDURE IN CLASS 1 FELONY CASES FOR CRIMES COMMITTED ON OR AFTER JULY 1, 1988, AND PRIOR TO SEPTEMBER 20, 1991 18-1.3-1301. Applicability of procedure for the imposition of sentences in class 1 felony cases. (1) It is the expressed intention of the general assembly that there be no hiatus in the imposition of the death penalty as a sentence for the commission of a class 1 felony in the state of Colorado as a result of the holding of the Colorado supreme court in People v. Young, 814 P.2d 834 (Colo. 1991). Toward that end, the provisions of former section 16-11-103, C.R.S., as it existed prior to the enactment of senate bill 78, enacted at the second regular session of the fifty-sixth general assembly, and as it currently exists as section 18-1.3-1201, to the extent such provisions were not automatically revitalized by the operation of law, are reenacted as section 18-1.3-1302 and are hereby made applicable to offenses committed on or after July 1, 1988, and prior to September 20, 1991. (2) It is the intent of the general assembly that this part 13 is independent from former section 16-11-103, C.R.S., now section 18-1.3-1201, and that if any provision of this part 13 or the application thereof to any person or circumstance is held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the application of section 18-1.3-1201 to any offense committed on or after September 20, 1991. Source: L. 2002: Entire article added with relocations, p. 1454, § 2, effective October 1. Editor's note: This section is similar to former § 16-11-801 as it existed prior to 2002. 18-1.3-1302. Imposition of sentences in class 1 felonies for crimes committed on or after July 1, 1988, and prior to September 20, 1991 - appellate review. (1) (a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense, in which case the defendant shall be sentenced to life imprisonment. The hearing shall be conducted by the trial judge before the trial jury as soon as practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are excused from participation in the sentencing hearing, the trial judge shall replace such juror or jurors with an alternate juror or jurors. If a trial jury was waived or if the defendant pleaded guilty, the hearing shall be conducted before the trial judge. Colorado Revised Statutes 2019 Page 182 of 695 Uncertified Printout (b) All admissible evidence presented by either the prosecuting attorney or the defendant that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, and any matters relating to any of the aggravating or mitigating factors enumerated in subsections (4) and (5) of this section may be presented. Any such evidence which the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence. The prosecuting attorney and the defendant or the defendant's counsel shall be permitted to present arguments for or against a sentence of death. For offenses committed before July 1, 1985, the jury shall be instructed that life imprisonment means life without the possibility of parole for twenty calendar years. For offenses committed on or after July 1, 1985, the jury shall be instructed that life imprisonment means life without the possibility of parole for forty calendar years. (c) Both the prosecuting attorney and the defense shall notify each other of the names and addresses of any witnesses to be called in the sentencing hearing and the subject matter of such testimony. Such discovery shall be provided within a reasonable amount of time as determined by order of the court and shall be provided not less than twenty-four hours prior to the commencement of the sentencing hearing. Unless good cause is shown, noncompliance with this paragraph (c) shall result in the exclusion of such evidence without further sanction. (d) The burden of proof as to the aggravating factors enumerated in subsection (5) of this section shall be beyond a reasonable doubt. There shall be no burden of proof as to proving or disproving mitigating factors. (2) (a) After hearing all the evidence and arguments of the prosecuting attorney and the defendant, the jury shall deliberate and render a verdict based upon the following considerations: (I) Whether at least one aggravating factor has been proved as enumerated in subsection (5) of this section; (II) Whether sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist; and (III) Based on the considerations in subparagraphs (I) and (II) of this paragraph (a), whether the defendant should be sentenced to death or life imprisonment. (b) (I) In the event that no aggravating factors are found to exist as enumerated in subsection (5) of this section, the jury shall render a verdict of life imprisonment, and the court shall sentence the defendant to life imprisonment. (II) The jury shall not render a verdict of death unless it finds and specifies in writing that: (A) At least one aggravating factor has been proved; and (B) There are insufficient mitigating factors to outweigh the aggravating factor or factors that were proved. (c) In the event that the jury's verdict is to sentence to death, such verdict shall be unanimous and shall be binding upon the court unless the court determines, and sets forth in writing the basis and reasons for such determination, that the verdict of the jury is clearly erroneous as contrary to the weight of the evidence, in which case the court shall sentence the defendant to life imprisonment. (d) If the jury's verdict is not unanimous, the jury shall be discharged, and the court shall sentence the defendant to life imprisonment. Colorado Revised Statutes 2019 Page 183 of 695 Uncertified Printout (3) In all cases where the sentencing hearing is held before the court alone, the court shall determine whether the defendant should be sentenced to death or life imprisonment in the same manner in which a jury determines its verdict under paragraphs (a) and (b) of subsection (2) of this section. The sentence of the court shall be supported by specific written findings of fact based upon the circumstances as set forth in subsections (4) and (5) of this section and upon the records of the trial and the sentencing hearing. (4) For purposes of this section, mitigating factors shall be the following factors: (a) The age of the defendant at the time of the crime; or (b) The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or (c) The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or (d) The defendant was a principal in the offense which was committed by another, but the defendant's participation was relatively minor, although not so minor as to constitute a defense to prosecution; or (e) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or (f) The emotional state of the defendant at the time the crime was committed; or (g) The absence of any significant prior conviction; or (h) The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney; or (i) The influence of drugs or alcohol; or (j) The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct; or (k) The defendant is not a continuing threat to society; or (l) Any other evidence which in the court's opinion bears on the question of mitigation. (5) For purposes of this section, aggravating factors shall be the following factors: (a) The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed against another state or the United States which would constitute a class 1, 2, or 3 felony as defined by Colorado law; or (b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 18-1.3-406, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 18-1.3-406; or (c) The defendant intentionally killed any of the following persons while such person was engaged in the course of the performance of such person's official duties, and the defendant knew or reasonably should have known that such victim was such a person engaged in the performance of such person's official duties, or the victim was intentionally killed in retaliation for the performance of the victim's official duties: (I) A peace officer or former peace officer as described in section 16-2.5-101, C.R.S.; or (II) A firefighter as defined in section 24-33.5-1202 (4), C.R.S.; or Colorado Revised Statutes 2019 Page 184 of 695 Uncertified Printout (III) A judge, referee, or former judge or referee of any court of record in the state or federal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (III), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions. (IV) An elected state, county, or municipal official; or (V) A federal law enforcement officer or agent or former federal law enforcement officer or agent; or (d) The defendant intentionally killed a person kidnapped or being held as a hostage by the defendant or by anyone associated with the defendant; or (e) The defendant has been a party to an agreement to kill another person in furtherance of which a person has been intentionally killed; or (f) The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device. As used in this paragraph (f), "explosive or incendiary device" means: (I) Dynamite and all other forms of high explosives; or (II) Any explosive bomb, grenade, missile, or similar device; or (III) Any incendiary bomb or grenade, fire bomb, or similar device, including any device which consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone. (g) The defendant committed or attempted to commit a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants; or (h) The class 1 felony was committed for pecuniary gain; or (i) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense; or (j) The defendant committed the offense in an especially heinous, cruel, or depraved manner; or (k) The class 1 felony was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody. This factor shall include the intentional killing of a witness to a criminal offense. (6) (a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule. The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal that may be filed pursuant to part 2 of article 12 of title 16, C.R.S. (b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances. (7) (a) If any provision of this section or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not Colorado Revised Statutes 2019 Page 185 of 695 Uncertified Printout affect other provisions or applications of this section, which can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this section are declared to be severable. (b) If any death sentence imposed upon a defendant pursuant to the provisions of this section and the imposition of such death sentence upon such defendant is held invalid or unconstitutional, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. Source: L. 2002: Entire article added with relocations, p. 1455, § 2, effective October 1. L. 2004: (5)(c)(I) amended, p. 1198, § 50, effective August 4. Editor's note: This section is similar to former § 16-11-802 as it existed prior to 2002. PART 14 COMPETENCY OF PERSONS TO BE EXECUTED 18-1.3-1401. Definitions. As used in this part 14, unless the context otherwise requires: (1) "Colorado mental health institute" means the Colorado mental health institute at Pueblo. (2) "Mentally incompetent to be executed" means that, due to a mental disease or defect, a person who has been sentenced to death is presently unaware that he or she is to be punished for the crime of murder or that the impending punishment for that crime is death. Source: L. 2002: Entire article added with relocations, p. 1459, § 2, effective October 1. Editor's note: This section is similar to former § 16-8-301 as it existed prior to 2002. 18-1.3-1402. Mental competency to be executed - presumptions. (1) A person who is sentenced to death shall not be executed so long as the person is mentally incompetent to be executed. (2) Any convicted person who is sentenced to death is presumed mentally competent to be executed. A convicted person may be found mentally incompetent to be executed only on clear and convincing evidence of such condition. The party asserting that the convicted person is mentally incompetent to be executed bears the burden of proof regarding such condition and the burden of producing evidence of such condition. Source: L. 2002: Entire article added with relocations, p. 1459, § 2, effective October 1. Editor's note: This section is similar to former § 16-8-302 as it existed prior to 2002. 18-1.3-1403. Mental incompetency to be executed - filing of motion. (1) (a) If, after a sentence of death is imposed, the executive director of the department of corrections, the convicted person's attorney, or an attorney for the state has a good faith reason to believe that the convicted person may be mentally incompetent to be executed, the executive director, the Colorado Revised Statutes 2019 Page 186 of 695 Uncertified Printout convicted person's attorney, or the state attorney may file a motion raising the issue of whether the convicted person is mentally incompetent to be executed. The motion shall be filed in the district court in the judicial district in which the convicted person was sentenced and shall be directed to the judge who presided over the convicted person's sentencing hearing. If that judge is unavailable, the chief judge of the same judicial district shall decide the motion. The motion shall be filed in both the district court clerk's office and the office of the judge who will hear the motion. On the same day the motion and accompanying materials are filed with the court, the motion and all accompanying materials shall be served upon the office of the prosecuting attorney who tried the case and the attorney general's office. (b) If the judge who presided at the sentencing hearing has a good faith reason to believe that the convicted person may be mentally incompetent to be executed, the judge shall so advise the convicted person's attorney or shall appoint an attorney to investigate the issue and file any motions the attorney deems appropriate under this part 14. (2) (a) A motion filed pursuant to subsection (1) of this section shall set forth the facts relating to the convicted person's conviction and sentence and the facts giving rise to the belief that the convicted person may be mentally incompetent to be executed and shall request the district court to order that the convicted person be examined for mental incompetency to be executed. The motion shall be accompanied by the names and addresses of any mental health experts who have examined the convicted person with respect to the issue of whether the convicted person is mentally incompetent to be executed and the results of those examinations, as well as any records of any other mental health examinations, treatment, or reports that are not privileged and are available to the moving party or in the moving party's possession. If the moving party has any question regarding whether any such report is privileged, the report shall be submitted to the court ex parte and the court shall make a determination as to release of the report. If the moving party is the convicted person's attorney, the convicted person shall be deemed to have waived any claim of confidentiality or privilege as to communications made by the convicted person to any physician, psychiatrist, or psychologist in the course of examination or treatment for any mental health condition for which the convicted person has received treatment, and the moving party shall include any records of any other mental health examinations, treatment, or reports. (b) On receipt of a motion raising the issue of whether a convicted person is mentally incompetent to be executed, the clerk of the district court shall transmit copies of the motion to the supreme court. The clerk of the district court shall transmit copies of all subsequent filings to the supreme court as they are received. Source: L. 2002: Entire article added with relocations, p. 1459, § 2, effective October 1. Editor's note: This section is similar to former § 16-8-303 as it existed prior to 2002. 18-1.3-1404. Mental incompetency to be executed - examination. (1) (a) On receipt of a motion filed pursuant to section 18-1.3-1403, the district court shall determine whether the motion is timely, as prescribed by section 18-1.3-1405, and whether it presents reasonable grounds for ordering an examination. Prior to making any determinations, the district court shall ensure that the prosecution has an opportunity to respond to the motion and to submit any additional information for consideration. The district court shall also provide an opportunity for Colorado Revised Statutes 2019 Page 187 of 695 Uncertified Printout the executive director of the department of corrections, the convicted person's attorney, or an attorney for the state to respond to the motion and to submit additional information for consideration. All responses and additional submissions shall be filed with the court within three days following the filing of the motion. Within seven days following the filing of the motion, the district court shall determine whether there are reasonable grounds for ordering the examination, based on the motion and any supporting information, any information submitted by the prosecuting attorney or any other responding party, and the record in the case, including transcripts of previous hearings and orders. (b) The district court shall issue a stay of execution upon a showing of reasonable grounds for granting the stay. A stay of execution may be requested only by the convicted person's attorney, the executive director of the department of corrections, or an attorney for the state. (2) (a) If the court finds there are no reasonable grounds for the requested examination, the court shall dismiss the motion. If the court finds the motion is timely and there are reasonable grounds for ordering an examination, the court may order the convicted person to submit to physical, neurological, psychiatric, psychological, or other examinations or evaluations that are reasonably necessary to adequately determine whether the convicted person is mentally incompetent to be executed. (b) The Colorado mental health institute shall create and maintain a list of licensed, qualified psychiatrists and psychologists who shall be available to perform the examinations required pursuant to this part 14. (c) If the court determines an examination is necessary, the court shall appoint one or more licensed psychiatrists to observe and examine the convicted person. In making such appointment, the court may select one or more licensed psychiatrists from the list prepared by the Colorado mental health institute pursuant to paragraph (b) of this subsection (2) or appoint another qualified, licensed psychiatrist. If requested in the motion for competency examination or by motion of the executive director of the department of corrections, the prosecution, or the attorney for the convicted person or by request of the appointed psychiatrist, and for good cause shown, the court may order further examinations, including the services of licensed psychologists, licensed physicians, or psychiatrists. All examinations shall be completed and reports filed with the court within thirty-five days following the court's initial appointment of experts. (3) (a) Any examination ordered pursuant to this section shall be conducted at a department of corrections facility. (b) At the time of appointment of experts, the parties shall disclose to the appointed experts and to each other the names and addresses of any other previously undisclosed mental health experts who have examined the convicted person and the results of the examinations, as well as any and all records of any other previously undisclosed mental health examinations, treatment, or reports that are not privileged. If the party has any question regarding whether any such records are privileged, the records shall be submitted to the court ex parte and the court shall make a determination as to release of the record. The appointed experts shall make copies of their reports available to all of the parties at the time of filing the reports with the court. The experts' reports shall indicate whether the convicted person has a mental disease or defect which renders the convicted person mentally incompetent to be executed. Colorado Revised Statutes 2019 Page 188 of 695 Uncertified Printout (4) The convicted person shall submit to and cooperate in all examinations or evaluations ordered by the court, regardless of which party selects the examining mental health expert. The district court shall consider any relevant evidence concerning the issue of the convicted person's competency to be executed, including but not limited to the convicted person's refusal to be examined or evaluated. (5) (a) After the examinations are completed and reports are filed, the court shall conduct a hearing within seven days following the court's receipt of all reports from appointed experts. The hearing shall be limited to the sole issue of whether the convicted person is mentally incompetent to be executed. At the hearing, all parties may present evidence, crossexamine witnesses, and present argument or, by stipulation, may submit the matter for the court's determination on the basis of the experts' reports or other evidence. (b) The Colorado rules of evidence shall apply to each hearing held pursuant to this section. The transcript of the hearing shall be forwarded to the Colorado supreme court within three days following the conclusion of the hearing. (6) (a) Within three days following the conclusion of the hearing held pursuant to subsection (5) of this section, the district court, either on the record or by written ruling, shall specifically state its findings on the motion raising the issue of whether the convicted person is mentally incompetent to be executed. If the ruling is in written form, it shall be transmitted by facsimile or electronic mail to all parties and the Colorado supreme court on the same day of its issuance. (b) If the court finds the convicted person is not mentally incompetent to be executed, the court shall immediately remand the convicted person to the custody of the executive director of the department of corrections who shall execute the judgment as specified in the warrant issued pursuant to section 18-1.3-1205. If the week specified in the warrant has passed, the district court shall issue a new warrant designating a week of time within which the sentence shall be executed. (c) If the court finds the convicted person is mentally incompetent to be executed, the court shall stay the execution and shall immediately transmit a copy of its order to the Colorado supreme court. (7) The time frames specified in this section shall apply only if the motion filed pursuant to section 18-1.3-1403 is filed within one hundred nineteen days prior to the convicted person's execution date. In all other cases, the court shall establish time frames for filing of responses and additional submissions and for completion of the examinations and shall hear and rule on the motion as expeditiously as possible. Source: L. 2002: Entire article added with relocations, p. 1460, § 2, effective October 1. L. 2012: (1)(a), (2)(c), (5)(a), and (7) amended, (SB 12-175), ch. 208, p. 869, § 123, effective July 1. Editor's note: This section is similar to former § 16-8-304 as it existed prior to 2002. 18-1.3-1405. Mentally incompetent to be executed - untimely or successive motions. (1) A motion raising the issue of whether a convicted person is mentally incompetent to be executed that is filed pursuant to section 18-1.3-1404 fewer than thirty-five days before the Colorado Revised Statutes 2019 Page 189 of 695 Uncertified Printout scheduled execution is untimely and shall not be considered by the court unless it is accompanied by both of the following: (a) At least one affidavit from a licensed physician, licensed psychiatrist, or licensed psychologist who has examined the convicted person that states the physician's, psychiatrist's, or psychologist's opinion that the convicted person is mentally incompetent to be executed; and (b) A statement that establishes good cause for the failure to file the motion in a timely manner. (2) (a) Except as provided in paragraph (b) of this subsection (2), if the court has determined, pursuant to section 18-1.3-1404 or 18-1.3-1406 (3), that a convicted person is not mentally incompetent to be executed, no further consideration of the convicted person's mental incompetence to be executed may be granted by the court. (b) A successive motion raising the issue of whether a convicted person is mentally incompetent to be executed may be filed only if the successive motion is accompanied by an affidavit from a licensed physician, licensed psychiatrist, or licensed psychologist who has examined the convicted person that shows a substantial change of circumstances since the previous motion was denied or the prior determination of restoration to competency to be executed was made and the showing is sufficient to raise a significant question regarding whether the convicted person is mentally incompetent to be executed. Source: L. 2002: Entire article added with relocations, p. 1462, § 2, effective October 1. L. 2012: IP(1) amended, (SB 12-175), ch. 208, p. 870, § 124, effective July 1. Editor's note: This section is similar to former § 16-8-305 as it existed prior to 2002. 18-1.3-1406. Persons mentally incompetent to be executed - restoration to competency. (1) The court may order a restoration hearing at any time on its own motion, on motion of an attorney for the state, or on motion of the convicted person's attorney. The court shall order a hearing if the executive director of the department of corrections files a report that the convicted person is no longer mentally incompetent to be executed. (2) At the hearing, if the question is contested, the burden of submitting evidence and the burden of proof by clear and convincing evidence shall be upon the party asserting that the convicted person is mentally competent to be executed. (3) At the hearing, the court shall determine whether the convicted person is mentally competent to be executed and, if so, shall order that the execution be conducted according to the original warrant issued pursuant to section 18-1.3-1205, if unexpired, or shall issue a new warrant appointing a time for execution of the judgment. Source: L. 2002: Entire article added with relocations, p. 1463, § 2, effective October 1. Editor's note: This section is similar to former § 16-8-306 as it existed prior to 2002. 18-1.3-1407. Appeal of determination of mental incompetency to be executed. (1) Within seven days after the district court rules on a motion raising the issue of whether a convicted person is mentally incompetent to be executed filed pursuant to this part 14, a party Colorado Revised Statutes 2019 Page 190 of 695 Uncertified Printout may file with the Colorado supreme court a petition to obtain a review of the district court's decision and requesting a stay of execution pending the review. (2) The supreme court shall expedite its review of the district court's decision and, if the designated week of execution in an existing warrant of conviction has not passed, shall not take more than seven days to render its decision. Source: L. 2002: Entire article added with relocations, p. 1463, § 2, effective October 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 871, § 125, effective July 1. Editor's note: This section is similar to former § 16-8-307 as it existed prior to 2002. ARTICLE 1.4 Class 1 Felonies Committed July 1, 1995, through July 12, 2002 18-1.4-101. Applicability of procedure for the imposition of sentences in class 1 felony cases. (1) It is the expressed intention of the general assembly that there be no hiatus in the imposition of the death penalty as a sentence for the commission of a class 1 felony in the state of Colorado as a result of the holding of the United States supreme court in Ring v. Arizona, 536 U.S. 584 (2002). Toward that end, the provisions of section 16-11-103, C.R.S., as it existed prior to the passage of Senate Bill 95-54, enacted at the first regular session of the sixtieth general assembly, are reenacted as section 18-1.4-102, and are hereby made applicable to offenses committed on or after July 1, 1995, and prior to July 12, 2002. (2) It is the expressed intention of the general assembly that the adoption of section 181.4-102 shall not be construed by any court as a legislative statement that the provisions of Senate Bill 95-54, enacted at the first regular session of the sixtieth general assembly, are unconstitutional in any way or that any death sentence obtained pursuant to the provisions of Senate Bill 95-54, enacted at the first regular session of the sixtieth general assembly, is invalid in any way. (3) It is the expressed intention of the general assembly that this article is independent from section 16-11-103, C.R.S., as it existed prior to October 1, 2002, and section 18-1.3-1201 and that, if any provision of this article or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the application of section 16-11-103, C.R.S., as it existed prior to October 1, 2002, and section 181.3-1201 to any offense committed on or after the effective date of amendments to said sections enacted at the third extraordinary session of the sixty-third general assembly. Source: L. 2002, 3rd Ex. Sess.: Entire article added, p. 16, § 12, effective July 12. L. 2005: (1) amended, p. 766, § 27, effective June 1. Cross references: For the legislative declaration contained in the 2002 act enacting this article, see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. Colorado Revised Statutes 2019 Page 191 of 695 Uncertified Printout 18-1.4-102. Imposition of sentence in class 1 felonies for crimes committed on or after July 1, 1995, and prior to July 12, 2002 - appellate review. (1) (a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense, or unless the defendant has been determined to be a mentally retarded defendant or a defendant with an intellectual and developmental disability pursuant to part 4 of article 9 of title 16, as it existed prior to October 1, 2002, in either of which cases, the defendant shall be sentenced to life imprisonment. The trial judge shall conduct the hearing before the trial jury as soon as practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and must remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are excused from participation in the sentencing hearing, the trial judge shall replace such juror or jurors with an alternate juror or jurors. If a trial jury was waived or if the defendant pled guilty, the hearing shall be conducted before the trial judge. The court shall instruct the defendant when waiving his or her right to a jury trial or when pleading guilty, that he or she is also waiving his or her right to a jury determination of the sentence at the sentencing hearing. (b) All admissible evidence presented by either the prosecuting attorney or the defendant that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, any matters relating to any of the aggravating or mitigating factors enumerated in subsections (4) and (5) of this section, and any matters relating to the personal characteristics of the victim and the impact of the crimes on the victim's family may be presented. Any such evidence, including but not limited to the testimony of members of the victim's immediate family, as defined in section 24-4.1-302 (6), C.R.S., which the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence. The prosecuting attorney and the defendant or the defendant's counsel shall be permitted to present arguments for or against a sentence of death. The jury shall be instructed that life imprisonment means imprisonment for life without the possibility of parole. (c) (Deleted by amendment, L. 2002, 3rd Ex. Sess., p. 24, § 14, effective July 12, 2002.) (d) The burden of proof as to the aggravating factors enumerated in subsection (5) of this section shall be beyond a reasonable doubt. There shall be no burden of proof as to proving or disproving mitigating factors. (e) If, as of July 12, 2002, the prosecution has announced it will be seeking the death sentence as the punishment for a conviction of a class 1 felony and a defendant has been convicted at trial of a class 1 felony or has pled guilty to a class 1 felony, but a sentencing hearing to determine whether that defendant shall be sentenced to death or life imprisonment has not yet been held, a jury shall be impaneled to determine the sentence at the sentencing hearing pursuant to the procedures set forth in this section or, if the defendant pled guilty or waived the right to jury sentencing, the sentence shall be determined by the trial judge. (2) (a) After hearing all the evidence and arguments of the prosecuting attorney and the defendant, the jury shall deliberate and render a verdict based upon the following considerations: Colorado Revised Statutes 2019 Page 192 of 695 Uncertified Printout (I) Whether at least one aggravating factor has been proved as enumerated in subsection (5) of this section; (II) Whether sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist; and (III) Based on the considerations in subparagraphs (I) and (II) of this paragraph (a), whether the defendant should be sentenced to death or life imprisonment. (b) (I) In the event that no aggravating factors are found to exist as enumerated in subsection (5) of this section, the jury shall render a verdict of life imprisonment, and the court shall sentence the defendant to life imprisonment. (II) The jury shall not render a verdict of death unless it finds and specifies in writing that: (A) At least one aggravating factor has been proved; and (B) There are insufficient mitigating factors to outweigh the aggravating factor or factors that were proved. (c) In the event that the jury's verdict is to sentence to death, such verdict shall be unanimous and shall be binding upon the court unless the court determines, and sets forth in writing the basis and reasons for such determination, that the verdict of the jury is clearly erroneous as contrary to the weight of the evidence, in which case the court shall sentence the defendant to life imprisonment. (d) If the jury's verdict is not unanimous, the jury shall be discharged, and the court shall sentence the defendant to life imprisonment. (3) In all cases where the sentencing hearing is held before the court alone, the court shall determine whether the defendant should be sentenced to death or life imprisonment in the same manner in which a jury determines its verdict under paragraphs (a) and (b) of subsection (2) of this section. The sentence of the court shall be supported by specific written findings of fact based upon the circumstances as set forth in subsections (4) and (5) of this section and upon the records of the trial and the sentencing hearing. (3.5) (a) The provisions of this subsection (3.5) shall apply only in a class 1 felony case in which the prosecuting attorney has filed a statement of intent to seek the death penalty pursuant to rule 32.1 (b) of the Colorado rules of criminal procedure. (b) The prosecuting attorney shall provide the defendant with the following information and materials not later than twenty-one days after the prosecution files its written intention to seek the death penalty or within such other time frame as the supreme court may establish by rule; except that any reports, recorded statements, and notes, including results of physical or mental examinations and scientific tests, experiments, or comparisons, of any expert whom the prosecuting attorney intends to call as a witness at the sentencing hearing shall be provided to the defense as soon as practicable but not later than sixty-three days before trial: (I) A list of all aggravating factors that are known to the prosecuting attorney at that time and that the prosecuting attorney intends to prove at the sentencing hearing; (II) A list of all witnesses whom the prosecuting attorney may call at the sentencing hearing, specifying for each the witness' name, address, and date of birth and the subject matter of the witness' testimony; (III) The written and recorded statements, including any notes of those statements, for each witness whom the prosecuting attorney may call at the sentencing hearing; Colorado Revised Statutes 2019 Page 193 of 695 Uncertified Printout (IV) A list of books, papers, documents, photographs, or tangible objects that the prosecuting attorney may introduce at the sentencing hearing; and (V) All material or information that tends to mitigate or negate the finding of any of the aggravating factors the prosecuting attorney intends to prove at the sentencing hearing. (c) Upon receipt of the information required to be disclosed by the defendant pursuant to paragraph (d) of this subsection (3.5), the prosecuting attorney shall notify the defendant as soon as practicable of any additional witnesses whom the prosecuting attorney intends to call in response to the defendant's disclosures. (d) The defendant shall provide the prosecuting attorney with the following information and materials no later than thirty-five days before the first trial date set for the beginning of the defendant's trial or within such other time frame as the supreme court may establish by rule; however, any reports, recorded statements, and notes, including results of physical or mental examinations and scientific tests, experiments, or comparisons, of any expert whom the defense intends to call as a witness at the sentencing hearing shall be provided to the prosecuting attorney as soon as practicable but not later than thirty-five days before trial: (I) A list of all witnesses whom the defendant may call at the sentencing hearing, specifying for each the witness' name, address, and date of birth and the subject matter of the witness' testimony; (II) The written and recorded statements, including any notes of those statements, of each witness whom the defendant may call at the sentencing hearing; and (III) A list of books, papers, documents, photographs, or tangible objects that the defendant may introduce at the sentencing hearing. (e) (I) Any material subject to this subsection (3.5) that the defendant believes contains information that is privileged to the extent that the prosecution cannot be aware of it in connection with its preparation for, or conduct of, the trial to determine guilt on the substantive charges against the defendant shall be submitted by the defendant to the trial judge under seal no later than forty-nine days before trial. (II) The trial judge shall review any such material submitted under seal pursuant to subparagraph (I) of this paragraph (e) to determine whether it is in fact privileged. Any material the trial judge finds not to be privileged shall be provided forthwith to the prosecuting attorney. Any material submitted under seal that the trial judge finds to be privileged shall be provided forthwith to the prosecution if the defendant is convicted of a class 1 felony. (f) (I) Except as otherwise provided in subparagraph (II) of this paragraph (f), if the witnesses disclosed by the defendant pursuant to paragraph (d) of this subsection (3.5) include witnesses who may provide evidence concerning the defendant's mental condition at the sentencing hearing conducted pursuant to this section, the trial court, at the request of the prosecuting attorney, shall order that the defendant be examined and a report of said examination be prepared pursuant to section 16-8-106, C.R.S. (II) The court shall not order an examination pursuant to subparagraph (I) of this paragraph (f) if: (A) Such an examination was previously performed and a report was prepared in the same case; and (B) The report included an opinion concerning how any mental disease or defect of the defendant or condition of mind caused by mental disease or defect of the defendant affects the Colorado Revised Statutes 2019 Page 194 of 695 Uncertified Printout mitigating factors that the defendant may raise at the sentencing hearing held pursuant to this section. (g) If the witnesses disclosed by the defendant pursuant to paragraph (d) of this subsection (3.5) include witnesses who may provide evidence concerning the defendant's mental condition at a sentencing hearing conducted pursuant to this section, the provisions of section 16-8-109, C.R.S., concerning testimony of lay witnesses shall apply to said sentencing hearing. (h) There is a continuing duty on the part of the prosecuting attorney and the defendant to disclose the information and materials specified in this subsection (3.5). If, after complying with the duty to disclose the information and materials described in this subsection (3.5), either party discovers or obtains any additional information and materials that are subject to disclosure under this subsection (3.5), the party shall promptly notify the other party and provide the other party with complete access to the information and materials. (i) The trial court, upon a showing of extraordinary circumstances that could not have been foreseen and prevented, may grant an extension of time to comply with the requirements of this subsection (3.5). (j) If it is brought to the attention of the court that either the prosecuting attorney or the defendant has failed to comply with the provisions of this subsection (3.5) or with an order issued pursuant to this subsection (3.5), the court may enter any order against such party that the court deems just under the circumstances, including but not limited to an order to permit the discovery or inspection of information and materials not previously disclosed, to grant a continuance, to prohibit the offending party from introducing the information and materials not disclosed, or to impose sanctions against the offending party. (4) For purposes of this section, mitigating factors shall be the following factors: (a) The age of the defendant at the time of the crime; or (b) The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or (c) The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or (d) The defendant was a principal in the offense which was committed by another, but the defendant's participation was relatively minor, although not so minor as to constitute a defense to prosecution; or (e) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or (f) The emotional state of the defendant at the time the crime was committed; or (g) The absence of any significant prior conviction; or (h) The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney; or (i) The influence of drugs or alcohol; or (j) The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct; or (k) The defendant is not a continuing threat to society; or (l) Any other evidence which in the court's opinion bears on the question of mitigation. (5) For purposes of this section, aggravating factors shall be the following factors: Colorado Revised Statutes 2019 Page 195 of 695 Uncertified Printout (a) The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed against another state or the United States which would constitute a class 1, 2, or 3 felony as defined by Colorado law; or (b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 16-11-309, C.R.S., as it existed prior to October 1, 2002, or section 18-1.3-406, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 16-11-309, C.R.S., as it existed prior to October 1, 2002, or section 181.3-406; or (c) The defendant intentionally killed any of the following persons while such person was engaged in the course of the performance of such person's official duties, and the defendant knew or reasonably should have known that such victim was such a person engaged in the performance of such person's official duties, or the victim was intentionally killed in retaliation for the performance of the victim's official duties: (I) A peace officer or former peace officer as described in section 16-2.5-101, C.R.S.; or (II) A firefighter as defined in section 24-33.5-1202 (4), C.R.S.; or (III) A judge, referee, or former judge or referee of any court of record in the state or federal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (III), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions. (IV) An elected state, county, or municipal official; or (V) A federal law enforcement officer or agent or former federal law enforcement officer or agent; or (d) The defendant intentionally killed a person kidnapped or being held as a hostage by the defendant or by anyone associated with the defendant; or (e) The defendant has been a party to an agreement to kill another person in furtherance of which a person has been intentionally killed; or (f) The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device. As used in this paragraph (f), "explosive or incendiary device" means: (I) Dynamite and all other forms of high explosives; or (II) Any explosive bomb, grenade, missile, or similar device; or (III) Any incendiary bomb or grenade, fire bomb, or similar device, including any device which consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone. (g) The defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants; or (h) The class 1 felony was committed for pecuniary gain; or (i) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense; or (j) The defendant committed the offense in an especially heinous, cruel, or depraved manner; or Colorado Revised Statutes 2019 Page 196 of 695 Uncertified Printout (k) The class 1 felony was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody. This factor shall include the intentional killing of a witness to a criminal offense. (l) The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode; or (m) The defendant intentionally killed a child who has not yet attained twelve years of age; or (n) (I) The defendant committed the class 1 felony against the victim because of the victim's race, color, ancestry, religion, or national origin. (II) The provisions of this paragraph (n) shall apply to offenses committed on or after July 1, 1998. (o) (I) The defendant's possession of the weapon used to commit the class 1 felony constituted a felony offense under the laws of this state or the United States. (II) The provisions of this paragraph (o) shall apply to offenses committed on or after August 2, 2000. (6) (a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule. The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal that may be filed pursuant to part 2 of article 12 of title 16, C.R.S. (b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances. (7) (a) It is the expressed intent of the general assembly that there be in place a valid and operative procedure for the imposition of a sentence of death concerning class 1 felonies committed on or after July 1, 1995, and prior to July 12, 2002. Towards that end, if any provisions of this section are determined by the United States supreme court or by the Colorado supreme court to render this section unconstitutional or invalid such that this section does not constitute a valid and operative death penalty statute concerning such class 1 felonies, but severance of such provisions would, through operation of the remaining provisions of this section, maintain this section as a valid and operative death penalty statute concerning such class 1 felonies, it is the intent of the general assembly that those remaining provisions are severable and are to have full force and effect. If, instead, any provisions of this section are determined by the United States supreme court or by the Colorado supreme court to render this section unconstitutional or invalid such that this section does not constitute a valid and operative death penalty statute concerning such class 1 felonies, and severance of such provisions would not, through operation of the remaining provisions of this section, render this section a valid and operative death penalty statute concerning such offenses, it is the intent of the general assembly that this entire article be void and inoperative. Colorado Revised Statutes 2019 Page 197 of 695 Uncertified Printout (b) If any death sentence is imposed upon a defendant pursuant to the provisions of this section and, on appellate review including consideration pursuant to subsection (9) of this section, the imposition of such death sentence upon such defendant is held invalid for reasons other than unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, the case shall be remanded to the trial court to set a new sentencing hearing before a newly impaneled jury or, if the defendant pled guilty or waived the right to jury sentencing, before the trial judge; except that, if the prosecutor informs the trial court that, in the opinion of the prosecutor, capital punishment would no longer be in the interest of justice, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. If a death sentence imposed pursuant to this section is held invalid based on unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. (8) When reviewing a sentence of death imposed by a three-judge panel, if the Colorado supreme court concludes that any one or more of the determinations made by the three-judge panel were constitutionally required to have been made by a jury, the supreme court may: (a) Examine the record and the jury's verdicts or the defendant's guilty pleas at the guilt phase of the trial and determine whether any of the aggravating factors found to exist by the three-judge panel were also fairly determined to exist beyond a reasonable doubt by the jury's verdicts or the defendant's guilty pleas; and (b) (I) If the supreme court determines that one or more aggravating factors were fairly determined to exist beyond a reasonable doubt by the jury's verdicts or the defendant's guilty pleas, the supreme court shall determine whether the sentence of death should be affirmed on appeal by proceeding in accordance with the provisions of paragraphs (a) to (d) of subsection (9) of this section; or (II) If the supreme court determines there were no aggravating factors fairly determined to exist beyond a reasonable doubt by the jury's verdicts or the defendant's guilty pleas, the supreme court shall remand the case to the trial court for a sentencing hearing before a newly impaneled jury. (9) If, on appeal, the supreme court finds one or more of the aggravating factors that were found to support a sentence to death to be invalid for any reason, the supreme court may determine whether the sentence of death should be affirmed on appeal by: (a) Reweighing the remaining aggravating factor or factors and all mitigating factors and then determining whether death is the appropriate punishment in the case; or (b) Applying harmless error analysis by considering whether, if the sentencing body had not considered the invalid aggravating factor, it would have nonetheless sentenced the defendant to death; or (c) If the supreme court finds the sentencing body's consideration of an aggravating factor was improper because the aggravating factor was not given a constitutionally narrow construction, determining whether, beyond a reasonable doubt, the sentencing body would have returned a verdict of death had the aggravating factor been properly narrowed; or (d) Employing any other constitutionally permissible method of review. Source: L. 2002, 3rd Ex. Sess.: Entire article added and (1)(a), (1)(b), (1)(c), (5)(m), (6)(a), and (7) amended and (1)(e), (3.5), (5)(n), (5)(o), (8), and (9) added, pp. 16, 22, 24, 28, §§ 12, 13, 14, 15, effective July 12. L. 2003: (5)(c)(I) amended, p. 1615, § 11, effective August 6. Colorado Revised Statutes 2019 Page 198 of 695 Uncertified Printout L. 2012: IP(3.5)(b), IP(3.5)(d), and (3.5)(e)(I) amended, (SB 12-175), ch. 208, p. 871, § 126, effective July 1. L. 2018: (1)(a) amended, (SB 18-096), ch. 44, p. 471, § 8, effective August 8. Cross references: For the legislative declaration contained in the 2002 act enacting this article and amending subsections (1)(a), (1)(b), (1)(c), (5)(m), (6)(a), and (7) and enacting subsections (1)(e), (3.5), (5)(n), (5)(o), (8), and (9), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018. ARTICLE 1.5 Criminal Justice Commission 18-1.5-101 to 18-1.5-105. (Repealed) Editor's note: (1) This article was added in 1989. For amendments to this article prior to its repeal in 1994, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. (2) Section 18-1.5-105 provided for the repeal of this article, effective March 15, 1994. (See L. 89, p. 833.) ARTICLE 1.7 Treatment of Persons with Mental Illness Involved in the Criminal Justice System 18-1.7-101 to 18-1.7-106. (Repealed) Editor's note: (1) This article was added in 2000 and was not amended prior to its repeal in 2003. For the text of this article prior to 2003, consult the 2002 Colorado Revised Statutes. (2) Section 18-1.7-106 provided for the repeal of this article, effective July 1, 2003. (See L. 2000, p. 1567.) ARTICLE 1.8 Interagency Task Force on Trafficking in Persons 18-1.8-101. (Repealed) Source: L. 2012: Entire article repealed, (HB 12-1151), ch. 174, p. 621, § 1, effective August 8. Colorado Revised Statutes 2019 Page 199 of 695 Uncertified Printout Editor's note: This article was added in 2005 and consisted of only § 18-1.8-101 and was not amended prior to its repeal in 2012. For the text of this article prior to 2012, consult the 2011 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. ARTICLE 1.9 Continuing Examination of the Treatment of Persons with Mental Health Disorders Who are Involved in the Justice System 18-1.9-101. Legislative declaration. (1) The general assembly finds that: (a) In November of 1998, the Colorado department of corrections reported that ten percent of its correctional population met the diagnostic criteria for having a serious mental health disorder. That number was double the number identified two years earlier, and five to six times the number documented in 1988, only ten years earlier. (b) The Colorado department of corrections estimates that in 2002, sixteen percent of its inmate population met the diagnostic criteria for having a major mental health disorder; (c) The Colorado division of youth services estimates that twenty-four percent of juveniles in the juvenile justice system are diagnosed with a mental health disorder; (d) A study conducted in 1995 found that approximately six percent of the persons held in county jails and in community corrections throughout the state had been diagnosed as persons with a serious mental health disorder; (e) It is estimated that nationally, nearly nine percent of all adults and juveniles on probation have been identified as having a serious mental health disorder; (f) For the 1998-99 fiscal year, approximately forty-four percent of the inpatient population at the Colorado mental health institute at Pueblo had been committed following the return of a verdict of not guilty by reason of insanity or a determination by the court that the person was incompetent to stand trial due to a mental health disorder; (g) A person with a mental health disorder, as a direct or indirect result of his or her condition, is often more likely than a person who does not have a mental health disorder to be involved in the criminal and juvenile justice systems; (h) The existing procedures and diagnostic tools used by persons working in the criminal and juvenile justice systems may not be sufficient to identify appropriately and diagnose persons with mental health disorders who are involved in the criminal and juvenile justice systems; (i) The criminal and juvenile justice systems may not be structured in such a manner as to provide the level of treatment and care for persons with mental health disorders that is necessary to ensure the safety of these persons, of other persons in the criminal and juvenile justice systems, and of the community at large; (j) Studies show that, for offenders under community supervision, treatment of the offender's mental health disorder decreases repeat arrests by forty-four percent; and (k) The ongoing supervision, care, and monitoring, especially with regard to medication, of persons with mental health disorders who are released from incarceration are crucial to ensuring the safety of the community. Colorado Revised Statutes 2019 Page 200 of 695 Uncertified Printout (2) The general assembly further finds that pursuant to the findings in a report requested by the joint budget committee in 1999 that recommended cross-system collaboration and communication as a method for reducing the number of persons with mental health disorders who are involved in the criminal and juvenile justice systems, the legislative oversight committee and advisory task force for the examination of the treatment of persons with mental illness who are involved in the criminal justice system were created in 1999 and extended for an additional three years in 2000. Over the course of four years, the legislative oversight committee and advisory task force began to address, but did not finish addressing, the issues specified in subsection (1) of this section, through both legislative and nonlegislative solutions including, but not limited to: (a) Community-based intensive treatment management programs for juveniles involved in the juvenile justice system; (b) An expedited application process for aid to the needy disabled benefits for persons with mental health disorders upon release from incarceration; (c) Standardized interagency screening to detect mental health disorders in adults who are involved in the criminal justice system and juveniles who are involved in the juvenile justice system; (d) Training of law enforcement officers to recognize and safely deal with persons who have mental health disorders through the use of crisis intervention teams; and (e) Creating local initiative committee pilot programs for the management of community-based programs for adults with mental health disorders who are involved in the criminal justice system. (3) Experts involved in cross-system collaboration and communication to reduce the number of persons with mental health disorders who are involved in the criminal and juvenile justice systems recommend a five-year plan to continue the work of the task force and the legislative oversight committee in order to more fully effectuate solutions to these issues. (4) Therefore, the general assembly declares that it is necessary to create a task force to continue to examine the identification, diagnosis, and treatment of persons with mental health disorders who are involved in the state criminal and juvenile justice systems and to make additional recommendations to a legislative oversight committee for the continuing development of legislative proposals related to this issue. Source: L. 2004: Entire article added, p. 1866, § 1, effective June 4. L. 2017: Entire section amended, (SB 17-246), ch. 176, p. 639, § 1, effective April 28; (1)(c) amended, (HB 171329), ch. 381, p. 1971, § 24, effective June 6. Editor's note: Amendments to subsection (1)(c) by SB 17-246 and HB 17-1329 were harmonized. 18-1.9-102. Definitions. As used in this article 1.9, unless the context otherwise requires: (1) "Committee" means the legislative oversight committee concerning the treatment of persons with mental health disorders in the criminal and juvenile justice systems established in section 18-1.9-103. Colorado Revised Statutes 2019 Page 201 of 695 Uncertified Printout (1.5) "Co-occurring disorder" means a disorder that commonly coincides with mental health disorders and may include, but is not limited to, substance abuse and substance use disorders, behavioral health disorders, intellectual and developmental disabilities, fetal alcohol syndrome, and traumatic brain injury. (2) "Task force" means the task force concerning the treatment of persons with mental health disorders in the criminal and juvenile justice systems established in section 18-1.9-104. Source: L. 2004: Entire article added, p. 1868, § 1, effective June 4. L. 2009: (1.5) added, (HB 09-1021), ch. 33, p. 139, § 1, effective August 5. L. 2014: (2) amended, (SB 14021), ch. 348, p. 1562, § 1, effective July 1. L. 2017: Entire section amended, (SB 17-246), ch. 176, p. 641, § 2, effective April 28. 18-1.9-103. Legislative oversight committee concerning the treatment of persons with mental health disorders in the criminal and juvenile justice systems - creation - duties. (1) Creation. (a) There is created a legislative oversight committee concerning the treatment of persons with mental health disorders in the criminal and juvenile justice systems. (b) The committee shall consist of six members. The president of the senate, the minority leader of the senate, and the speaker of the house of representatives shall appoint the members of the committee, as follows: (I) The president of the senate shall appoint two senators to serve on the committee, and the minority leader of the senate shall appoint one senator to serve on the committee; (II) The speaker of the house of representatives shall appoint three representatives to serve on the committee, no more than two of whom shall be members of the same political party; (III) The terms of the members appointed by the speaker of the house of representatives, the president of the senate, and the minority leader of the senate and who are serving on March 22, 2007, shall be extended to and expire on or shall terminate on the convening date of the first regular session of the sixty-seventh general assembly. As soon as practicable after such convening date, the speaker, the president, and the minority leader of the senate shall each appoint or reappoint members in the same manner as provided in subparagraphs (I) and (II) of this paragraph (b). Thereafter, the terms of members appointed or reappointed by the speaker, the president, and the minority leader of the senate shall expire on the convening date of the first regular session of each general assembly, and all subsequent appointments and reappointments by the speaker, the president, and the minority leader of the senate shall be made as soon as practicable after such convening date. The person making the original appointment or reappointment shall fill any vacancy by appointment for the remainder of an unexpired term. Members appointed or reappointed by the speaker, the president, and the minority leader of the senate shall serve at the pleasure of the appointing authority and shall continue in office until the member's successor is appointed. (c) The president of the senate shall select the first chair of the committee, and the speaker of the house of representatives shall select the first vice-chair. The chair and vice-chair shall alternate annually thereafter between the two houses. The chair and vice-chair of the committee may establish such organizational and procedural rules as are necessary for the operation of the committee. (d) (I) Members of the committee may receive payment of per diem and reimbursement for actual and necessary expenses authorized pursuant to section 2-2-307. Colorado Revised Statutes 2019 Page 202 of 695 Uncertified Printout (II) The director of research of the legislative council and the director of the office of legislative legal services may supply staff assistance to the committee as they deem appropriate, within existing appropriations. If staff assistance is not available within existing appropriations, then the director of research of the legislative council and the director of the office of legislative legal services may supply staff assistance to the task force only if money is credited to the treatment of persons with mental health disorders in the criminal and juvenile justice systems fund created in section 18-1.9-106 in an amount sufficient to fund staff assistance. (2) Duties. (a) Beginning in 2005 and continuing each year thereafter, the committee shall meet at least three times each year and at such other times as it deems necessary. (b) (I) The committee shall be responsible for the oversight of the task force and shall submit annual reports to the general assembly regarding the findings and recommendations of the task force. In addition, the committee may recommend legislative changes that shall be treated as bills recommended by an interim legislative committee for purposes of any introduction deadlines or bill limitations imposed by the joint rules of the general assembly. (II) The provisions of subparagraph (I) of this paragraph (b) shall not apply during the suspension of the committee during the 2010 interim. (c) (I) The committee shall submit a report to the general assembly by January 15, 2005, and by each January 15 thereafter. The annual reports must summarize the issues addressing the treatment of persons with mental health disorders who are involved in the criminal and juvenile justice systems that have been considered and recommended legislative proposals, if any. The reports must comply with the provisions of section 24-1-136 (9). Notwithstanding section 24-1136 (11)(a)(I), the requirement in this section to report to the general assembly continues indefinitely. (II) The general assembly reviewed the reporting requirements in subparagraph (I) of this paragraph (c) during the 2008 regular session and continued the requirements. Source: L. 2004: Entire article added, p. 1868, § 1, effective June 4. L. 2007: (1)(b)(III) added, p. 178, § 8, effective March 22. L. 2008: (2)(c) amended, p. 1267, § 1, effective August 5. L. 2009: (2)(a) and (2)(c)(I) amended, (HB 09-1021), ch. 33, p. 139, § 2, effective August 5. L. 2010: (2)(a), (2)(b), and (2)(c)(I) amended, (SB 10-213), ch. 375, p. 1761, § 6, effective June 7. L. 2014: (1)(a), (1)(d), (2)(a), and (2)(c)(I) amended, (SB 14-021), ch. 348, p.1562, § 2, effective July 1. L. 2017: (1)(a), (1)(d), and (2)(c)(I) amended, (SB 17-246), ch. 176, p. 641, § 3, effective April 28. 18-1.9-104. Task force concerning treatment of persons with mental health disorders in the criminal and juvenile justice systems - creation - membership - duties. (1) Creation. (a) There is created a task force concerning treatment of persons with mental health disorders in the criminal and juvenile justice systems in Colorado. The task force consists of thirty-two members appointed as provided in subsections (1)(b) and (1)(c) of this section and any staff support as provided for in section 18-1.9-105. (b) The chief justice of the Colorado supreme court shall appoint four members who represent the judicial department, two of whom shall represent the division of probation within the department, one of whom shall have experience handling juvenile justice matters within the Colorado Revised Statutes 2019 Page 203 of 695 Uncertified Printout department, and one of whom shall have experience handling adult criminal justice matters within the department. (c) The chair and vice-chair of the committee shall appoint twenty-eight members as follows: (I) One member who represents the division of criminal justice within the department of public safety; (II) Two members who represent the department of corrections, one of whom represents the division of parole within the department; (III) Two members who represent local law enforcement agencies, one of whom shall be in active service and the other one of whom shall have experience dealing with juveniles in the juvenile justice system; (IV) Five members who represent the department of human services, as follows: (A) One member who represents the office of behavioral health in the department of human services; (B) One member who represents the division of youth services; (C) One member who represents the unit within the department of human services that is responsible for child welfare services; (D) (Deleted by amendment, L. 2009, p. 140, § 3, effective August 5, 2009.) (E) One member who represents the Colorado mental health institute at Pueblo; and (F) One member who represents the mental health planning and advisory committee within the department of human services; (V) One member who represents the interests of county departments of human or social services; (VI) One member who represents the department of education; (VII) One member who represents the state attorney general's office; (VIII) One member who represents the district attorneys within the state; (IX) Two members who represent the criminal defense bar within the state, one of whom shall have experience representing juveniles in the juvenile justice system; (X) Two members who are licensed mental health professionals practicing within the state, one of whom shall have experience treating juveniles; (XI) One member who represents community mental health centers within the state; (XII) One member who is a person with knowledge of public benefits and public housing within the state; (XIII) One member who is a practicing forensic professional within the state; (XIV) Three members of the public as follows: (A) One member who has a mental health disorder and has been involved in the criminal justice system in this state; (B) One member who has an adult family member who has a mental health disorder and has been involved in the criminal justice system in this state; and (C) One member who is the parent of a child who has a mental health disorder and has been involved in the juvenile justice system in this state; (XV) One member who represents the department of health care policy and financing; (XVI) One member who represents the department of labor and employment; (XVII) One member who represents the office of the child's representative; and (XVIII) One member who represents the office of the alternate defense counsel. Colorado Revised Statutes 2019 Page 204 of 695 Uncertified Printout (d) A vacancy occurring in a position filled by the chief justice of the Colorado supreme court pursuant to paragraph (b) of this subsection (1) shall be filled as soon as possible by the chief justice of the Colorado supreme court in accordance with the limitations specified in paragraph (b) of this subsection (1). In addition, the chief justice of the Colorado supreme court may remove and replace any appointment to the task force made pursuant to paragraph (b) of this subsection (1). (e) A vacancy occurring in a position filled by the chair and vice-chair of the committee pursuant to paragraph (c) of this subsection (1) shall be filled as soon as possible by the chair and vice-chair of the committee in accordance with the limitations specified in paragraph (c) of this subsection (1). In addition, the chair and vice-chair of the committee may remove and replace any appointment to the task force made pursuant to paragraph (c) of this subsection (1). (f) In making appointments to the task force, the appointing authorities shall ensure that the membership of the task force reflects the ethnic, cultural, and gender diversity of the state; includes representation of all areas of the state; and, to the extent practicable, includes persons with disabilities. (2) Issues for study. The task force shall examine the identification, diagnosis, and treatment of persons with mental health disorders who are involved in the state criminal and juvenile justice systems, including an examination of liability, safety, and cost as they relate to these issues. The task force shall specifically consider, but need not be limited to, the following issues, on or after July 1, 2014: (a) Housing for a person with a mental health disorder after his or her release from the criminal or juvenile justice system; (b) Medication consistency, delivery, and availability; (c) Best practices for suicide prevention, within and outside of correctional facilities; (d) Treatment of co-occurring disorders; (e) Awareness of and training for enhanced staff safety, including expanding training opportunities for providers; (f) Enhanced data collection related to issues affecting persons with mental health disorders in the criminal and juvenile justice systems; and (g) Any other issue related to the treatment of persons with mental health disorders in the criminal and juvenile justice systems. (3) Additional duties of the task force. The task force shall provide guidance and make findings and recommendations to the committee for its development of reports and legislative recommendations for modification of the criminal and juvenile justice systems, with respect to persons with mental health disorders who are involved in these systems. In addition, the task force shall: (a) On or before August 1, 2004, and by each August 1 thereafter, select a chair and a vice-chair from among its members; (b) Meet at least six times each year, or more often as directed by the chair of the committee; (c) Communicate with and obtain input from groups throughout the state affected by the issues identified in subsection (2) of this section; (d) Create subcommittees as needed to carry out the duties of the task force. The subcommittees may consist, in part, of persons who are not members of the task force. Such Colorado Revised Statutes 2019 Page 205 of 695 Uncertified Printout persons may vote on issues before the subcommittee but shall not be entitled to a vote at meetings of the task force. (e) Submit a report to the committee by October 1, 2004, and by each October 1 thereafter, that, at a minimum, specifies: (I) Issues to be studied in upcoming task force meetings and a prioritization of those issues; (II) Findings and recommendations regarding issues of prior consideration by the task force; (III) Legislative proposals of the task force that identify the policy issues involved, the agencies responsible for the implementation of the changes, and the funding sources required for implementation. (4) Flexibility. No requirement set forth in subsection (2) of this section shall prohibit the task force from studying, presenting findings and recommendations on, or requesting permission to draft legislative proposals concerning any issue described in subsection (2) of this section at any time during the existence of the task force. (5) Compensation. Members of the task force shall serve without compensation. However, members of the task force appointed pursuant to subparagraph (XIV) of paragraph (c) of subsection (1) of this section may receive reimbursement for actual and necessary expenses associated with their duties on the task force. (6) Coordination. The task force may work with other task forces, committees, or organizations that are pursuing policy initiatives similar to those addressed in subsection (2) of this section. The task force shall consider developing relationships with other task forces, committees, and organizations to leverage efficient policy-making opportunities through collaborative efforts. Source: L. 2004: Entire article added, p. 1870, § 1, effective June 4. L. 2006: (2)(b.5) added, p. 528, § 1, effective April 18. L. 2008: (1)(a) and IP(1)(c) amended and (1)(c)(XV) added, p. 105, § 1, effective March 19. L. 2009: (1)(c)(IV)(A), (1)(c)(IV)(D), (1)(c)(XV), (3), and (4) amended and (1)(c)(XVI), (2)(f), and (6) added, (HB 09-1021), ch. 33, pp. 140, 141, §§ 3, 4, 5, effective August 5. L. 2010: IP(2)(f), (3)(a), (3)(b), and IP(3)(e) amended, (SB 10-213), ch. 375, p. 1762, § 7, effective June 7. L. 2014: (1)(a), IP(1)(c), IP(1)(c)(IV), (1)(c)(XV), IP(2)(a), IP (2)(b), IP(2)(c), IP(2)(e), IP(2)(f), (3), and (5) amended and (1)(c)(XVII), (1)(c)(XVIII), and (2)(g) added, (SB 14-021), ch. 348, p. 1563, § 3, effective July 1. L. 2017: (1)(a), (1)(c)(IV)(A), (1)(c)(XIV), (1)(f), (2), and IP(3) amended, (SB 17-246), ch. 176, p. 642, § 4, effective April 28; (1)(c)(IV)(B) amended, (HB 17-1329), ch. 381, p. 1971, § 25, effective June 6; (1)(a) amended, (HB 17-1020), ch. 25, p. 75, § 1, effective August 9. L. 2018: (1)(c)(V) amended, (SB 18-092), ch. 38, p. 406, § 25, effective August 8. Editor's note: (1) Subsection (2)(b.5)(IV) provided for the repeal of subsection (2)(b.5), effective December 30, 2006. (See L. 2006, p. 528.) (2) Amendments to subsection (1)(a) by HB 17-1020 and SB 17-246 were harmonized. Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. Colorado Revised Statutes 2019 Page 206 of 695 Uncertified Printout 18-1.9-105. Task force funding - staff support. (1) The division of criminal justice of the department of public safety, the office of behavioral health in the department of human services, and any state department or agency with an active representative on the task force are authorized to receive and expend gifts, grants, and donations, including donations of in-kind services for staff support, from any public or private entity for any direct or indirect costs associated with the duties of the task force. (2) The director of research of the legislative council, the director of the office of legislative legal services, the director of the division of criminal justice within the department of public safety, the director of the office of behavioral health, and the executive directors of the departments represented on the task force may supply staff assistance to the task force as they deem appropriate within existing appropriations or if money is credited to the treatment of persons with mental health disorders in the criminal and juvenile justice systems fund created in section 18-1.9-106 for the purpose of and in an amount sufficient to fund staff assistance. The task force may also accept donations of in-kind services for staff support from the private sector. Source: L. 2004: Entire article added, p. 1874, § 1, effective June 4. L. 2014: (2) amended, (SB 14-021), ch. 348, p. 1565, § 4, effective July 1. L. 2017: Entire section amended, (HB 17-1020), ch. 25, p. 75, § 2, effective August 9. L. 2018: (2) amended, (HB 18-1375), ch. 274, p. 1702, § 24, effective May 29. 18-1.9-106. Treatment of persons with mental health disorders in the criminal and juvenile justice systems fund. (1) The treatment of persons with mental health disorders in the criminal and juvenile justice systems fund, referred to in this section as the "fund", is created in the state treasury. The fund consists of money appropriated or transferred to the fund by the general assembly and any private and public funds received through gifts, grants, or donations for the purpose of implementing the provisions of this article 1.9. Money in the fund is subject to annual appropriation by the general assembly for the direct and indirect costs associated with the implementation of this article 1.9. Money in the fund not expended for the purpose of implementing this article 1.9 may be invested by the state treasurer as provided by law. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund. The state treasurer shall transfer all unexpended and unencumbered money remaining in the fund as of July 1, 2020, to the general fund. (1.3) and (1.5) Repealed. (2) Compensation as provided in sections 18-1.9-103 (1)(d) and 18-1.9-105 (2) for members of the general assembly and for staff assistance to the committee and task force provided by the director of research of the legislative council and the director of the office of legislative legal services shall be approved by the chair of the legislative council and paid by vouchers and warrants drawn as provided by law from moneys appropriated for such purpose and allocated to the legislative council from the fund. Source: L. 2004: Entire article added, p. 1875, § 1, effective June 4. L. 2009: (1) amended, (HB 09-1021), ch. 33, p. 142, § 6, effective August 5. L. 2014: (1) amended and (1.5) added, (SB 14-021), ch. 348, p. 1565, § 5, effective July 1. L. 2017: (1) amended and (1.3) added, (SB 17-246), ch. 176, p. 645, § 5, effective April 28; (1) amended, (HB 17-1020), ch. 25, p. 76, § 3, effective August 9. Colorado Revised Statutes 2019 Page 207 of 695 Uncertified Printout Editor's note: (1) Subsection (1.5)(b) provided for the repeal of subsection (1.5), effective July 1, 2015. (See L. 2014, p. 1565.) (2) Subsection (1) was amended by HB 17-1020 and was further amended by SB 17246. Amendments to subsection (1) by SB 17-246 were effective April 28, 2017; however, amendments to subsection (1) by HB 17-1020 did not take effect until August 9, 2017. (3) Subsection (1.3)(b) provided for the repeal of subsection (1.3), effective September 1, 2018. (See L. 2017, p. 645.) 18-1.9-107. Repeal of article. This article is repealed, effective July 1, 2020. Source: L. 2004: Entire article added, p. 1875, § 1, effective June 4. L. 2009: Entire section amended, (HB 09-1021), ch. 33, p. 142, § 7, effective August 5. L. 2014: Entire section amended, (SB 14-021), ch. 348, p. 1566, § 6, effective July 1. ARTICLE 2 Inchoate Offenses Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading. PART 1 ATTEMPTS 18-2-101. Criminal attempt. (1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be, nor is it a defense that the crime attempted was actually perpetrated by the accused. (2) A person who engages in conduct intending to aid another to commit an offense commits criminal attempt if the conduct would establish his complicity under section 18-1-603 were the offense committed by the other person, even if the other is not guilty of committing or attempting the offense. (3) It is an affirmative defense to a charge under this section that the defendant abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting the complete and voluntary renunciation of his criminal intent. (3.5) Criminal attempt to commit any crime for which a court is required to sentence a defendant for a crime of violence in accordance with section 18-1.3-406 is itself a crime of violence for the purposes of that section. (4) Criminal attempt to commit a class 1 felony is a class 2 felony; criminal attempt to commit a class 2 felony is a class 3 felony; criminal attempt to commit a class 3 felony is a class Colorado Revised Statutes 2019 Page 208 of 695 Uncertified Printout 4 felony; criminal attempt to commit a class 4 felony is a class 5 felony; criminal attempt to commit a class 5 or 6 felony is a class 6 felony. (5) Criminal attempt to commit a felony which is defined by any statute other than one contained in this title and for which no penalty is specifically provided is a class 6 felony. (6) Criminal attempt to commit a class 1 misdemeanor is a class 2 misdemeanor. (7) Criminal attempt to commit a misdemeanor other than a class 1 misdemeanor is a class 3 misdemeanor. (8) Criminal attempt to commit a petty offense is a crime of the same class as the offense itself. (9) The provisions of subsections (4) to (8) of this section shall not apply to a person who commits criminal attempt to escape. A person who commits criminal attempt to escape shall be punished as provided in section 18-8-208.1. (10) (a) Except as otherwise provided by law, criminal attempt to commit a level 1 drug felony is a level 2 drug felony; criminal attempt to commit a level 2 drug felony is a level 3 drug felony; criminal attempt to commit a level 3 drug felony is a level 4 drug felony; and criminal attempt to commit a level 4 drug felony is a level 4 drug felony. (b) Except as otherwise provided by law, criminal attempt to commit a level 1 drug misdemeanor is a level 2 drug misdemeanor; and criminal attempt to commit a level 2 drug misdemeanor is a level 2 drug misdemeanor. Source: L. 71: R&RE, p. 414, § 1. C.R.S. 1963: § 40-2-101. L. 75: (4) to (7) amended and (8) added, p. 617, § 3, effective July 21. L. 76, Ex. Sess.: (9) added, p. 10, § 2, effective September 18. L. 77: (1) amended, p. 960, § 4, effective July 1. L. 89, 1st Ex. Sess.: (4) and (5) amended, p. 21, § 11, effective July 1. L. 95: (3.5) added, p. 1250, § 4, effective July 1. L. 2002: (3.5) amended, p. 1511, § 182, effective October 1. L. 2013: (10) added, (SB 13-250), ch. 333, p. 1942, § 66, effective October 1. L. 2014: (10) amended, (SB 14-163), ch. 391, p. 1975, § 14, effective July 1. Cross references: (1) For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. (2) For the legislative declaration contained in the 2002 act amending subsection (3.5), see section 1 of chapter 318, Session Laws of Colorado 2002. PART 2 CRIMINAL CONSPIRACY 18-2-201. Conspiracy. (1) A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime. (2) No person may be convicted of conspiracy to commit a crime, unless an overt act in pursuance of that conspiracy is proved to have been done by him or by a person with whom he conspired. Colorado Revised Statutes 2019 Page 209 of 695 Uncertified Printout (3) If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit a crime with the other person or persons, whether or not he knows their identity. (4) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are part of a single criminal episode. (4.5) Conspiracy to commit any crime for which a court is required to sentence a defendant for a crime of violence in accordance with section 18-1.3-406 is itself a crime of violence for the purposes of that section. (5) If a person conspires to commit a felony which is defined by any statute other than one contained in this title and for which conspiracy no penalty is specifically provided, he is guilty of a class 6 felony. If a person conspires to commit a misdemeanor which is defined by any statute other than one contained in this title and for which conspiracy no penalty is specifically provided, he is guilty of a class 3 misdemeanor. Source: L. 71: R&RE, p. 415, § 1. C.R.S. 1963: § 40-2-201. L. 74: (5) added, p. 250, § 1, effective February 13. L. 89, 1st Ex. Sess.: (5) amended, p. 21, § 12, effective July 1. L. 95: (4.5) added, p. 1250, § 5, effective July 1. L. 2002: (4.5) amended, p. 1512, § 183, effective October 1. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4.5), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-2-202. Joinder and venue in conspiracy prosecutions. (1) Subject to the provisions of subsection (2) of this section, two or more persons charged with criminal conspiracy may be prosecuted jointly if: (a) They are charged with conspiring with one another; or (b) They are charged with being involved in conspiracies that are so related as to constitute different aspects of a scheme of organized criminal conduct. In such case it is immaterial that the persons charged are not parties to the same conspiracy. (2) In any joint prosecution under subsection (1) of this section: (a) No defendant shall be charged with a conspiracy in any judicial district other than one in which he entered into the conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and (b) Neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by this joinder; and (c) The court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence. Source: L. 71: R&RE, p. 415, § 1. C.R.S. 1963: § 40-2-202. 18-2-203. Renunciation of criminal purpose. It is an affirmative defense to a charge of conspiracy that the offender, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent. Colorado Revised Statutes 2019 Page 210 of 695 Uncertified Printout Source: L. 71: R&RE, p. 416, § 1. C.R.S. 1963: § 40-2-203. Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-2-204. Duration of conspiracy. (1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired. (2) Abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation. (3) If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he gives timely notice to those with whom he conspired of his abandonment and the notice is evidenced by circumstances corroborating the giving of the same, or he informs the law enforcement authorities, having jurisdiction, of the existence of the conspiracy and of his participation therein. Source: L. 71: R&RE, p. 416, § 1. C.R.S. 1963: § 40-2-204. 18-2-205. Incapacity, irresponsibility, or immunity of party to conspiracy. (1) It is immaterial to the liability of a person who conspires with another to commit a crime that: (a) He or the person with whom he conspires does not occupy a particular position or have a particular characteristic which is an element of the crime, if he believes that one of them does; or (b) The person with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime. Source: L. 71: R&RE, p. 416, § 1. C.R.S. 1963: § 40-2-205. 18-2-206. Penalties for criminal conspiracy - when convictions barred. (1) Conspiracy to commit a class 1 felony is a class 2 felony; conspiracy to commit a class 2 felony is a class 3 felony; conspiracy to commit a class 3 felony is a class 4 felony; conspiracy to commit a class 4 felony is a class 5 felony; conspiracy to commit a class 5 or 6 felony is a class 6 felony. (2) A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy. (3) If the particular conduct charged to constitute a criminal conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither that conduct nor the offender presents a public danger warranting the grading of the offense under this section, the court may enter judgment and impose sentence for a crime of a lesser class or, in extreme cases, may dismiss the prosecution. (4) Conspiracy to commit a class 1 misdemeanor is a class 2 misdemeanor. (5) Conspiracy to commit a misdemeanor other than a class 1 misdemeanor is a class 3 misdemeanor. Colorado Revised Statutes 2019 Page 211 of 695 Uncertified Printout (6) Conspiracy to commit a petty offense is a crime of the same class as the offense itself. (7) (a) Except as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony; conspiracy to commit a level 2 drug felony is a level 3 drug felony; conspiracy to commit a level 3 drug felony is a level 4 drug felony; and conspiracy to commit a level 4 drug felony is a level 4 drug felony. (b) Except as otherwise provided by law, conspiracy to commit a level 1 drug misdemeanor is a level 2 drug misdemeanor; and conspiracy to commit a level 2 drug misdemeanor is a level 2 drug misdemeanor. Source: L. 71: R&RE, p. 416, § 1. C.R.S. 1963: § 40-2-206. L. 75: (1) amended and (4) to (6) added, p. 617, § 4, effective July 21. L. 89, 1st Ex. Sess.: (1) amended, p. 22, § 13, effective July 1. L. 2013: (7) added, (SB 13-250), ch. 333, p. 1942, § 67, effective October 1. L. 2014: (7)(a) amended, (SB 14-163), ch. 391, p. 1975, § 15, effective July 1. PART 3 CRIMINAL SOLICITATION 18-2-301. Criminal solicitation. (1) Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if he or she commands, induces, entreats, or otherwise attempts to persuade another person, or offers his or her services or another's services to a third person, to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent. (2) It is a defense to a prosecution under this section that, if the criminal object were achieved, the defendant would be the sole victim of the offense or the offense is so defined that his conduct would be inevitably incident to its commission or he otherwise would not be guilty under the statute defining the offense or under section 18-1-603 dealing with complicity. (3) It is no defense to a prosecution under this section that the person solicited could not be guilty of the offense because of lack of responsibility or culpability, or other incapacity. (4) It is an affirmative defense to a prosecution under this section that the defendant, after soliciting another person to commit a felony, persuaded him not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the defendant's criminal intent. (5) Criminal solicitation is subject to the penalties provided for criminal attempt in section 18-2-101. Source: L. 71: R&RE, p. 417, § 1. C.R.S. 1963: § 40-2-301. L. 98: (1) amended, p. 1443, § 29, effective July 1. Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. PART 4 Colorado Revised Statutes 2019 Page 212 of 695 Uncertified Printout RENUNCIATION AND ABANDONMENT 18-2-401. Nonavailability of defenses. (1) Renunciation and abandonment are not voluntary and complete so as to be a defense to prosecution under this article if they are motivated in whole or in part by: (a) A belief that a circumstance exists which increases the probability of detection or apprehension of the defendant or another or which makes more difficult the consummation of the crime; or (b) A decision to postpone the crime until another time or to substitute another victim or another but similar objective. Source: L. 71: R&RE, p. 417, § 1. C.R.S. 1963: § 40-2-401. ARTICLE 3 Offenses Against the Person Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading. PART 1 HOMICIDE AND RELATED OFFENSES 18-3-101. Definition of terms. As used in this part 1, unless the context otherwise requires: (1) "Homicide" means the killing of a person by another. (2) "Person", when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act. (2.5) One in a "position of trust" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act. (3) The term "after deliberation" means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner. Source: L. 71: R&RE, p. 417, § 1. C.R.S. 1963: § 40-3-101. L. 74: (1)(c) R&RE, p. 251, § 1, effective January 1, 1975. L. 95: (2.5) added, p. 1221, § 1, effective July 1. Colorado Revised Statutes 2019 Page 213 of 695 Uncertified Printout Cross references: For the statutory provision which declares that the withholding or withdrawal of life-sustaining procedures does not constitute suicide or homicide, see § 15-18111; for the effect of homicide on probate matters, see § 15-11-803. 18-3-102. Murder in the first degree. (1) A person commits the crime of murder in the first degree if: (a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or (b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403 as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405 (2), or the crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone; or (c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or (d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or (e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407 (2), or 18-18-407 (1)(g)(I) for offenses committed on or after October 1, 2013, and the death of such person is caused by the use of such controlled substance; or (f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim. (2) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant: (a) Was not the only participant in the underlying crime; and (b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and (c) Was not armed with a deadly weapon; and (d) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (e) Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; and (f) Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon, instrument, article, or substance, or intended to engage in conduct likely to result in death or serious bodily injury. (3) Murder in the first degree is a class 1 felony. Colorado Revised Statutes 2019 Page 214 of 695 Uncertified Printout (4) The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for the crime of murder in the first degree as described in paragraph (f) of subsection (1) of this section. Source: L. 71: R&RE, p. 418, § 1. C.R.S. 1963: § 40-3-102. L. 74: (1)(a) amended, p. 251, § 2, effective January 1, 1975. L. 75: (1)(b) amended, p. 632, § 5, effective July 1; (1)(b) amended, p. 617, § 5, effective July 21. L. 77: (1)(d) amended, p. 960, § 5, effective July 1. L. 81: (1)(d) amended, p. 973, § 4, effective July 1. L. 88: (1)(b) amended, p. 712, § 16, effective July 1. L. 90: (1)(e) added, p. 1006, § 2, effective July 1. L. 92: (1)(e) amended, p. 392, § 20, effective July 1. L. 95: (1)(f) and (4) added, pp. 1221, 1222, §§ 2, 3, effective July 1. L. 97: (1)(e) amended, p. 1543, § 11, effective July 1. L. 2000: (1)(b) amended, p. 703, § 28, effective July 1. L. 2019: (1)(e) amended, (SB 19-241), ch. 390, p. 3465, § 12, effective August 2. Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for the statutory privilege between patient and physician and between husband and wife, see § 13-90-107. 18-3-103. Murder in the second degree. (1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person. (2) Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree. (2.5) (Deleted by amendment, L. 96, p. 1844, § 12, effective July 1, 1996.) (3) (a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony. (b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony. (4) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406. Source: L. 71: R&RE, p. 418, § 1. C.R.S. 1963: § 40-3-103. L. 75: (1)(a) amended, p. 622, § 1, effective March 19. L. 77: (1)(a) amended and (1)(b) repealed, pp. 960, 971, §§ 6, 67, effective July 1. L. 86: (4) added, p. 776, § 1, effective July 1. L. 95: IP(1) amended and (2.5) added, p. 1222, § 5, effective July 1. L. 96: Entire section amended, p. 1844, § 12, effective July 1. L. 2002: (4) amended, p. 1512, § 184, effective October 1. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-104. Manslaughter. (1) A person commits the crime of manslaughter if: (a) Such person recklessly causes the death of another person; or (b) Such person intentionally causes or aids another person to commit suicide. Colorado Revised Statutes 2019 Page 215 of 695 Uncertified Printout (c) (Deleted by amendment, L. 96, p. 1844, § 13, effective July 1, 1996.) (2) Manslaughter is a class 4 felony. (3) This section shall not apply to a person, including a proxy decision-maker as such person is described in section 15-18.5-103, C.R.S., who complies with any advance medical directive in accordance with the provisions of title 15, C.R.S., including a medical durable power of attorney, a living will, or a cardiopulmonary resuscitation (CPR) directive. (4) (a) This section shall not apply to a medical caregiver with prescriptive authority or authority to administer medication who prescribes or administers medication for palliative care to a terminally ill patient with the consent of the terminally ill patient or his or her agent. (b) For purposes of this subsection (4): (I) "Agent" means a person appointed to represent the interests of the terminally ill patient by a medical power of attorney, power of attorney, health care proxy, or any other similar statutory or regular procedure used for designation of such person. (II) "Medical caregiver" means a physician, registered nurse, nurse practitioner, physician assistant, or anesthesiologist assistant licensed by this state. (III) "Palliative care" means medical care and treatment provided by a licensed medical caregiver to a patient with an advanced chronic or terminal illness whose condition may not be responsive to curative treatment and who is, therefore, receiving treatment that relieves pain and suffering and supports the best possible quality of his or her life. (c) Paragraph (a) of this subsection (4) shall not be interpreted to permit a medical caregiver to assist in the suicide of the patient. Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-104. L. 75: (1)(c) amended, p. 623, § 1, effective March 19; (1)(c) amended, p. 618, § 6, effective July 21. L. 79: (1)(c) amended, p. 726, § 3, effective July 1. L. 86: (1)(c) amended, p. 770, § 4, effective July 1. L. 93: Entire section amended, p. 1986, § 13, effective July 1. L. 94: (3) added, p. 1059, § 3, effective May 4. L. 96: (1)(b), (1)(c), and (2) amended, p. 1844, § 13, effective July 1. L. 2006: (4) added, p. 313, § 1, effective July 1. L. 2012: (4)(b)(II) amended, (HB 12-1332), ch. 238, p. 1059, § 15, effective August 8. 18-3-105. Criminally negligent homicide. Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony. Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-105. L. 77: (1)(b) amended, p. 960, § 7, effective July 1. L. 81: Entire section R&RE, p. 973, § 5, effective July 1. L. 85: Entire section amended, p. 665, § 1, effective July 1. 18-3-106. Vehicular homicide. (1) (a) If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. (b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime. Colorado Revised Statutes 2019 Page 216 of 695 Uncertified Printout (II) For the purposes of this subsection (1), one or more drugs means any drug, as defined in section 27-80-203 (13), C.R.S., any controlled substance, as defined in section 18-18102 (5), and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 1818-412. (III) 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 shall not constitute a defense against any charge of violating this subsection (1). (IV) "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 affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. (c) Vehicular homicide, in violation of paragraph (a) of this subsection (1), is a class 4 felony. Vehicular homicide, in violation of paragraph (b) of this subsection (1), is a class 3 felony. (2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, gives rise to the following: (a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol. (b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol. (c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol. (d) If at such time the driver's blood contained five nanograms or more of delta 9tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs. (3) The limitations of subsection (2) of this section 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. (4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, the person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to Colorado Revised Statutes 2019 Page 217 of 695 Uncertified Printout take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If any person refuses to take or complete, or cooperate in the taking or completing of any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S. (b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. (c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations 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. 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. (d) No person except a physician, a registered nurse, an emergency medical service provider certified or licensed under part 2 of article 3.5 of title 25 who is authorized within his or her scope of practice to draw blood, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse may withdraw blood for the purpose of determining the alcohol or drug content of the blood for purposes of this section. In a trial for a violation of subsection (1)(b) of this section, testimony of a law enforcement officer that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was authorized to withdraw blood specimens is sufficient evidence that the person was authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimens obtained. Civil liability does not attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which the specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining the specimens from a person if the specimens were obtained according to Colorado Revised Statutes 2019 Page 218 of 695 Uncertified Printout the rules prescribed by the state board of health; except that this subsection (4)(d) does not relieve the person from liability for negligence in obtaining any specimen sample. (e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person's blood or any drug content within his system. Such test results shall not be considered privileged communications and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report. (f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1)(b) of this section, 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 the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests. (g) Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S. (5) 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 his alcohol or drug level. This subsection (5) 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 subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices. Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-106. L. 75: Entire section amended, p. 624, § 1, effective June 26. L. 77: (1) R&RE, p. 960, § 8, effective July 1. L. 81: (1)(b) amended, p. 1992, § 4, effective June 19. L. 83: (4) added, p. 1648, § 17, effective July 1. L. 88: IP(2) amended, p. 1365, § 5, effective July 1. L. 89: (1)(b), (2), and (3) amended, (4) R&RE, and (5) added, pp. 893, 894, §§ 1, 2, effective July 1. L. 93: (1) amended, p. 1986, § 14, effective July 1; (1)(b)(II) amended, p. 1731, § 13, effective July 1. L. 94: (4)(c), (4)(e), and (5) amended, p. 2733, § 356, effective July 1; (4)(a) and (4)(g) amended, p. 2551, § 40, effective January 1, 1995. L. 97: (4)(a) amended, p. 1470, § 18, effective July 1. L. 2002: (4)(g) amended, p. 1915, § 4, effective July 1. L. 2004: (2)(b) and (2)(c) amended, p. 781, § 3, effective July 1. L. 2008: (4)(a) amended, p. 243, § 3, effective July 1. L. 2012: (1)(b)(II) amended, (HB 12-1311), Colorado Revised Statutes 2019 Page 219 of 695 Uncertified Printout ch. 281, p. 1618, § 38, effective July 1; (4)(d) amended, (HB 12-1059), ch. 271, p. 1434, § 12, effective July 1. L. 2013: (1)(b)(II), IP(2), and (2)(c) amended and (2)(d) added, (HB 13-1325), ch. 331, p. 1878, § 2, effective May 28. L. 2019: (4)(d) amended, (SB 19-242), ch. 396, p. 3526, § 10, effective May 31. Editor's note: (1) Amendments to subsection (1) in House Bill 93-1302 and House Bill 93-1088 were harmonized. (2) Section 29(2) of chapter 396 (SB 19-242), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 31, 2019. Cross references: (1) For penalties for driving under the influence of intoxicating liquor, see § 42-4-1301. (2) For the legislative declaration contained in the 1994 act amending subsections (4)(c), (4)(e), and (5), see section 1 of chapter 345, Session Laws of Colorado 1994. 18-3-107. First degree murder of a peace officer, firefighter, or emergency medical service provider - legislative declaration. (1) A person who commits murder in the first degree, as defined in section 18-3-102, and the victim is a peace officer, firefighter, or emergency medical service provider, engaged in the performance of his or her duties, commits the felony crime of first degree murder of a peace officer, firefighter, or emergency medical service provider. (2) As used in this section, "peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties" means a peace officer, as described in section 16-2.5-101, a firefighter, as defined in section 18-3-201 (1.5), or an emergency medical service provider, as defined in section 18-3-201 (1.3), who is engaged or acting in, or who is present for the purpose of engaging or acting in, the performance of any duty, service, or function imposed, authorized, required, or permitted by law to be performed by a peace officer, firefighter, or emergency medical service provider, whether or not the peace officer, firefighter, or emergency medical service provider is within the territorial limits of his or her jurisdiction, if the peace officer, firefighter, or emergency medical service provider is in uniform or the person committing an assault upon or offense against or otherwise acting toward the peace officer, firefighter, or emergency medical service provider knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider. (3) A person convicted of first degree murder of a peace officer, firefighter, or emergency medical service provider shall be punished by life imprisonment without the possibility of parole for the rest of his or her natural life, unless a proceeding held to determine sentence according to the procedure set forth in section 18-1.3-1201, 18-1.3-1302, or 18-1.4-102 results in a verdict that requires imposition of the death penalty, in which event the person shall be sentenced to death. Nothing in this subsection (3) is construed as limiting the power of the governor to grant reprieves, commutations, and pardons pursuant to section 7 of article IV of the Colorado constitution. (4) In the event the death penalty as provided for in this section is held to be unconstitutional by the Colorado supreme court or the United States supreme court, a person convicted of first degree murder of a peace officer, firefighter, or emergency medical service provider under subsection (1) of this section shall be punished by life imprisonment without the Colorado Revised Statutes 2019 Page 220 of 695 Uncertified Printout possibility of parole. In such circumstance, the court which previously sentenced a person to death shall cause the person to be brought before the court, and the court shall sentence the person to life imprisonment without the possibility of parole. (5) The general assembly recognizes that protection of peace officers, firefighters, and emergency medical service providers from crime is a major concern of our state because society depends on peace officers, firefighters, and emergency medical service providers for protection against crime and other dangers and because peace officers, firefighters, and emergency medical service providers are disproportionately damaged by crime because their duty to protect society often places them in dangerous circumstances. Society as a whole benefits from affording special protection to peace officers, firefighters, and emergency medical service providers because the protection deters crimes against them and allows them to better serve and protect our state. The general assembly therefore finds that the penalties for first degree murder of a peace officer, firefighter, or emergency medical service provider should be more severe than the penalty for first degree murder of other members of society. Source: L. 88: Entire section added, p. 718, § 5, effective July 1. L. 95: (3) amended, p. 1294, § 4, effective July 1. L. 97: Entire section amended, p. 1010, § 13, effective August 6. L. 2002: (3) amended, p. 1512, § 185, effective October 1. L. 2002, 3rd Ex. Sess.: (3) amended, p. 15, §§ 9, 10, effective July 12. L. 2003: (2) amended, p. 1624, § 45, effective August 6. L. 2014: Entire section amended, (HB 14-1214), ch. 336, p. 1495, § 3, effective August 6. L. 2018: (2) amended, (HB 18-1375), ch. 274, p. 1702, § 25, effective May 29. Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (3), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. PART 2 ASSAULTS 18-3-201. Definitions. As used in sections 18-3-201 to 18-3-204, unless the context otherwise requires: (1) "Emergency medical care provider" means a doctor, intern, nurse, nurse's aide, physician's assistant, ambulance attendant or operator, air ambulance pilot, paramedic, or any other member of a hospital or health care facility staff or security force who is involved in providing emergency medical care at a hospital or health care facility, or in an air ambulance or ambulance as defined in section 25-3.5-103 (1) and (1.5), C.R.S. (1.3) "Emergency medical service provider" has the same meaning as set forth in section 25-3.5-103 (8), C.R.S. The term refers to both paid and volunteer emergency medical service providers. (1.5) "Firefighter" means an officer or member of a fire department or fire protection or fire-fighting agency of the state, or any municipal or quasi-municipal corporation in this state, whether that person is a volunteer or receives compensation for services rendered as such firefighter. Colorado Revised Statutes 2019 Page 221 of 695 Uncertified Printout (2) "Peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties" means a peace officer, as described in section 16-2.5-101, C.R.S., a firefighter, or an emergency medical service provider, who is engaged or acting in, or who is present for the purpose of engaging or acting in, the performance of any duty, service, or function imposed, authorized, required, or permitted by law to be performed by a peace officer, firefighter, or emergency medical service provider, whether or not the peace officer, firefighter, or emergency medical service provider is within the territorial limits of his or her jurisdiction, if the peace officer, firefighter, or emergency medical service provider is in uniform or the person committing an assault upon or offense against or otherwise acting toward the peace officer, firefighter, or emergency medical service provider knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider. For the purposes of this subsection (2) and this part 2, the term "peace officer" includes county enforcement personnel designated pursuant to section 29-7-101 (3), C.R.S. Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-201. L. 96: (2) amended, p. 588, § 2, effective May 1. L. 97: Entire section amended, p. 1011, § 14, effective August 6. L. 2003: (2) amended, p. 1628, § 62, effective August 6. L. 2014: Entire section amended, (HB 141214), ch. 336, p. 1496, § 4, effective August 6. L. 2015: (1) amended and (1.3) added, (SB 15126), ch. 109, p. 319, § 4, effective July 1; IP amended, (SB 15-067), ch. 337, p. 1366, § 1, effective September 1. 18-3-202. Assault in the first degree. (1) A person commits the crime of assault in the first degree if: (a) With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or (b) With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or (c) Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person; or (d) Repealed. (e) With intent to cause serious bodily injury upon the person of a peace officer, firefighter, or emergency medical service provider, he or she threatens with a deadly weapon a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, and the offender knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider acting in the performance of his or her duties; or (e.5) With intent to cause serious bodily injury upon the person of a judge of a court of competent jurisdiction or an officer of said court, he threatens with a deadly weapon a judge of a court of competent jurisdiction or an officer of said court, and the offender knows or reasonably should know that the victim is a judge of a court of competent jurisdiction or an officer of said court; or (f) While lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent Colorado Revised Statutes 2019 Page 222 of 695 Uncertified Printout child and with intent to cause serious bodily injury to a person employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or to a person employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, he or she threatens with a deadly weapon such a person engaged in the performance of his or her duties and the offender knows or reasonably should know that the victim is such a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services. A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203 (3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody. (g) With the intent to cause serious bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes serious bodily injury. (2) (a) If assault in the first degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 5 felony. (b) If assault in the first degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 3 felony. (c) If a defendant is convicted of assault in the first degree pursuant to subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. (d) Repealed. (3) Repealed. Source: L. 71: R&RE, p. 420, § 1. C.R.S. 1963: § 40-3-202. L. 75: (1)(d) amended, p. 632, § 6, effective July 1; (1)(a) amended, p. 618, § 7, effective July 21. L. 76, Ex. Sess.: (1)(f) added, p. 8, § 1, effective September 18. L. 77: (1)(c) amended, p. 961, § 9, effective July 1. L. 79: (2) R&RE, p. 732, § 1, effective May 18. L. 81: (1)(d) R&RE, p. 973, § 6, effective July 1. L. 86: (1)(d) amended, p. 770, § 5, effective July 1; (1)(f) amended, p. 789, § 1, effective July 1; (2)(c) and (2)(d) added, p. 776, § 2, effective July 1. L. 90: (1)(f) amended, p. 991, § 1, effective April 5; (1)(e.5) added and (2)(c) amended, p. 986, §§ 7, 8, effective April 24. L. 94: (1)(f) amended, p. 2655, § 137, effective July 1. L. 95: (1)(d) and (2)(d) repealed, p. 1250, § 6, effective July 1. L. 97: (2)(a) amended, p. 1544, § 13, effective July 1; (1)(e) amended, p. 1011, § 15, effective August 6. L. 98: (2)(c) amended, p. 1441, § 25, effective July 1. L. 2002: (2)(c) amended, p. 1512, § 186, effective October 1. L. 2003: (1)(f) amended, p. 1430, § 16, effective April 29. L. 2014: (1)(e) amended, (HB 14-1214), ch. 336, p. 1496, § 5, effective August 6. L. 2015: (3) added, (SB 15-005), ch. 108, p. 314, § 1, effective July 1; (3)(d) repealed, (SB 15-126), Colorado Revised Statutes 2019 Page 223 of 695 Uncertified Printout ch. 109, p. 318, § 3, effective July 1. L. 2016: (1)(g) added, (HB 16-1080), ch. 327, p. 1327, § 1, effective July 1; (3) repealed, (HB 16-1393), ch. 304, p. 1226, § 3, effective July 1. Cross references: For the legislative declaration contained in the 1994 act amending subsection (1)(f), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsection (2)(c), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-203. Assault in the second degree. (1) A person commits the crime of assault in the second degree if: (a) Repealed. (b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or (c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or (c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or (d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or (e) For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm; or (f) While lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or, while lawfully confined or in custody as a result of being charged with or convicted of a crime or as a result of being charged as a delinquent child or adjudicated as a delinquent child, he or she knowingly and violently applies physical force against a person engaged in the performance of his or her duties while employed by or under contract with a detention facility, as defined in section 18-8-203 (3), or while employed by the division in the department of human services responsible for youth services and who is a youth services counselor or is in the youth services worker classification series, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, or emergency medical service provider engaged in the performance of his or her duties, or a judge of a court of competent jurisdiction, or an officer of said court, or a person engaged in the performance of his or her duties while employed by or under contract with a detention facility or while employed by the division in the department of human services responsible for youth services. A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender; except that, if the offense is committed against a person employed by the division in the department of human services responsible for youth services, the court may grant probation or a suspended sentence in whole or in part, and the sentence may run concurrently or Colorado Revised Statutes 2019 Page 224 of 695 Uncertified Printout consecutively with any sentences being served. A person who participates in a work release program, a furlough, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203 (3), and who is required to report back to the detention facility at a specified time is deemed to be in custody. (f.5) (I) While lawfully confined in a detention facility within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material. (II) Repealed. (III) (A) As used in this paragraph (f.5), "detention facility" means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of the state of Colorado or any political subdivision of the state of Colorado. (B) As used in this paragraph (f.5), "employee of a detention facility" includes employees of the department of corrections, employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are present in or in the vicinity of a detention facility and are performing services for a detention facility. "Employee of a detention facility" does not include a person lawfully confined in a detention facility. (g) With intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another; or (h) With intent to infect, injure, or harm another person whom the actor knows or reasonably should know to be engaged in the performance of his or her duties as a peace officer, a firefighter, an emergency medical care provider, or an emergency medical service provider, he or she causes such person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including by throwing, tossing, or expelling such fluid or material; or (i) With the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury. (2) (a) If assault in the second degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 6 felony. (b) If assault in the second degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 4 felony. (b.5) Assault in the second degree by any person under subsection (1) of this section without the circumstances provided in paragraph (a) of this subsection (2) is a class 3 felony if the person who is assaulted, other than a participant in the crime, suffered serious bodily injury during the commission or attempted commission of or flight from the commission or attempted commission of murder, robbery, arson, burglary, escape, kidnapping in the first degree, sexual Colorado Revised Statutes 2019 Page 225 of 695 Uncertified Printout assault, sexual assault in the first or second degree as such offenses existed prior to July 1, 2000, or class 3 felony sexual assault on a child. (c) (I) If a defendant is convicted of assault in the second degree pursuant to paragraph (c.5) of subsection (1) of this section or paragraph (b.5) of this subsection (2), except with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. A defendant convicted of assault in the second degree pursuant to paragraph (b.5) of this subsection (2) with respect to sexual assault or sexual assault in the first degree as it existed prior to July 1, 2000, shall be sentenced in accordance with section 18-1.3-401 (8)(e) or (8)(e.5). (II) If a defendant is convicted of assault in the second degree pursuant to paragraph (b), (c), (d), or (g) of subsection (1) of this section, the court shall sentence the offender in accordance with section 18-1.3-406; except that, notwithstanding the provisions of section 181.3-406, the court is not required to sentence the defendant to the department of corrections for a mandatory term of incarceration. (3) Repealed. Source: L. 71: R&RE, p. 420, § 1. C.R.S. 1963: § 40-3-203. L. 76, Ex. Sess.: (1)(f) amended, p. 8, § 2, effective September 18. L. 79: (2) R&RE, p. 732, § 2, effective May 18. L. 81: (1)(f) amended and (1)(g) added, p. 973, § 7, effective July 1. L. 86: (1)(f) amended, p. 789, § 2, effective July 1; (2)(c) added, p. 777, § 3, effective July 1. L. 88: (2)(c) amended, p. 717, § 4, effective July 1. L. 90: (1)(f) amended, p. 992, § 2, effective April 5; (1)(f) amended, p. 986, § 9, effective April 24. L. 91: (2)(a) and (2)(c) amended, p. 405, § 9, effective June 6. L. 94: (1)(a) repealed, p. 1717, § 8, effective July 1; (1)(f) amended, p. 2655, § 138, effective July 1. L. 95: (1)(b) and (2)(c) amended and (2)(b.5) added, p. 1250, § 7, effective July 1. L. 97: (1)(f.5) added, p. 1591, § 1, effective July 1; (2)(a) amended, p. 1544, § 14, effective July 1; (1)(c) and (1)(f) amended, p. 1011, § 16, effective August 6. L. 98: (2)(c) amended, p. 1441, § 26, effective July 1. L. 2000: (1)(f) amended, p. 693, § 3, effective July 1. L. 2002: (2)(b.5) and (2)(c) amended, p. 757, § 2, effective July 1; (2)(c) amended, p. 1512, § 187, effective October 1. L. 2003: (1)(f) amended, p. 1430, § 17, effective April 29. L. 2014: (1)(c) and (1)(f) amended, (HB 14-1214), ch. 336, p. 1497, § 6, effective August 6. L. 2015: (1)(f.5)(II) repealed and (3) added, (SB 15-126), ch. 109, p. 316, § 1, effective July 1; (1)(c) and (1)(g) amended and (1)(h) added, (SB 15-067), ch. 337, p. 1366, § 2, effective September 1; (1)(c.5) added and (2)(c) amended, (HB 15-1303), ch. 211, p. 771, § 1, effective September 1. L. 2016: (1)(h) amended and (1)(i) added, (HB 16-1080), ch. 327, p. 1327, § 2, effective July 1; (2)(c) amended, (SB 16-102), ch. 181, p. 620, § 1, effective July 1; (3) repealed, (HB 16-1393), ch. 304, p. 1226, § 4, effective July 1. Editor's note: (1) Amendments to subsection (1)(f) in Senate Bill 90-58 and House Bill 90-1255 were harmonized. Amendments to subsection (2)(c) in House Bill 02-1046 and House Bill 02-1225 were harmonized. (2) In People v. Slaughter, 2019 COA 27, 439 P.3d 80, the Colorado Court of Appeals found that, where the prosecution seeks to charge a defendant with strangulation under subsection (1)(i) of this section together with the crime of violence sentence enhancer under § 18-1.3-406 (2)(a)(I)(A), such charging would cause a violation of the defendant's right to equal protection of the laws, and thus would be unconstitutional. Colorado Revised Statutes 2019 Page 226 of 695 Uncertified Printout Cross references: For the legislative declaration contained in the 1994 act amending subsection (1)(f), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsection (2)(c), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-204. Assault in the third degree. (1) A person commits the crime of assault in the third degree if: (a) The person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon; or (b) The person, with intent to harass, annoy, threaten, or alarm another person whom the actor knows or reasonably should know to be a peace officer, a firefighter, an emergency medical care provider, or an emergency medical service provider, causes the other person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or toxic, caustic, or hazardous material by any means, including throwing, tossing, or expelling the fluid or material. (2) Repealed. (3) Assault in the third degree is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). (4) Repealed. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-204. L. 77: Entire section amended, p. 961, § 10, effective July 1. L. 2004: Entire section amended, p. 635, § 4, effective August 4. L. 2009: Entire section amended, (HB 09-1120), ch. 305, p. 1649, § 1, effective July 1. L. 2011: (1)(b) amended and (4) added, (HB 11-1105), ch. 250, p. 1088, § 2, effective August 10. L. 2012: (1)(b) amended, (HB 12-1059), ch. 271, p. 1435, § 13, effective July 1. L. 2015: (2) R&RE and (4) repealed, (SB 15-126), ch. 109, p. 317, § 2, effective July 1; (1)(b) amended and (4) repealed, (SB 15-067), ch. 337, p. 1367, § 3, effective September 1. L. 2016: (2) repealed, (HB 16-1393), ch. 304, p. 1226, § 5, effective July 1. 18-3-205. Vehicular assault. (1) (a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault. (b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime. (II) For the purposes of this subsection (1), one or more drugs means any drug, as defined in section 27-80-203 (13), C.R.S., any controlled substance, as defined in section 18-18102 (5), and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 1818-412. (III) 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 shall not constitute a defense against any charge of violating this subsection (1). Colorado Revised Statutes 2019 Page 227 of 695 Uncertified Printout (IV) "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 affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. (c) Vehicular assault, in violation of paragraph (a) of this subsection (1), is a class 5 felony. Vehicular assault, in violation of paragraph (b) of this subsection (1), is a class 4 felony. (2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, gives rise to the following: (a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol. (b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol. (c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol. (d) If at such time the driver's blood contained five nanograms or more of delta 9tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs. (3) The limitations of subsection (2) of this section 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. (4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, the person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If any person refuses to take, or to complete, or to cooperate in the taking or completing of any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S. Colorado Revised Statutes 2019 Page 228 of 695 Uncertified Printout (b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. (c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations 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. 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. (d) No person except a physician, a registered nurse, an emergency medical service provider certified or licensed under part 2 of article 3.5 of title 25 who is authorized within his or her scope of practice to draw blood, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse may withdraw blood to determine the alcohol or drug content of the blood for purposes of this section. In a trial for a violation of subsection (1)(b) of this section, testimony of a law enforcement officer that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was authorized to withdraw blood specimens is sufficient evidence that the person was authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimens obtained. Civil liability does not attach to a person authorized to obtain blood, breath, saliva, or urine specimens or to a hospital, clinic, or association in or for which the specimens are obtained in accordance with this subsection (4) as a result of the act of obtaining the specimens from any person if the specimens were obtained according to the rules prescribed by the state board of health; except that this subsection (4)(d) does not relieve the person from liability for negligence in obtaining the specimen sample. (e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and Colorado Revised Statutes 2019 Page 229 of 695 Uncertified Printout results of any tests administered by such provider which shows the alcohol or drug content of the person's blood or any drug content within his system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report. (f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1)(b) of this section, 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 the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests. (g) Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S. (5) 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 his alcohol or drug level. This subsection (5) 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 subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-205. L. 75: Entire section amended, p. 625, § 2, effective June 26. L. 77: (1) R&RE, p. 961, § 11, effective July 1. L. 81: (1)(b) amended, p. 1992, § 5, effective June 19. L. 83: (4) added, p. 1648, § 18, effective July 1. L. 88: IP(2) amended, p. 1365, § 6, effective July 1. L. 89: (1)(b), (2), and (3) amended, (4) R&RE, and (5) added, pp.896, 898, §§ 3, 4, effective July 1. L. 93: (1) amended, p. 1987, § 15, effective July 1; (1)(b)(II) amended, p. 1731, § 14, effective July 1. L. 94: (4)(c), (4)(e), and (5) amended, p. 2734, § 357, effective July 1; (4)(a) and (4)(g) amended, p. 2552, § 41, effective January 1, 1995. L. 97: (4)(a) amended, p. 1471, § 19, effective July 1. L. 2002: (4)(g) amended, p. 1915, § 5, effective July 1. L. 2004: (2)(b) and (2)(c) amended, p. 781, § 4, effective July 1. L. 2008: (4)(a) amended, p. 244, § 4, effective July 1; (4)(g) amended, p. 1890, § 57, effective August 5. L. 2012: (1)(b)(II) amended, (HB 12-1311), ch. 281, p.1618, § 39, effective July 1; (4)(d) amended, (HB 12-1059), ch. 271, p. 1435, § 14, effective July 1. L. 2013: (1)(b)(II), IP(2), and (2)(c) amended and (2)(d) added, (HB 13-1325), ch. 331, p. 1879, § 3, effective May 28. L. 2019: (4)(d) amended, (SB 19-242), ch. 396, p. 3527, § 11, effective May 31. Editor's note: (1) Amendments to subsection (1) in House Bill 93-1302 and House Bill 93-1088 were harmonized. Colorado Revised Statutes 2019 Page 230 of 695 Uncertified Printout (2) Section 29(2) of chapter 396 (SB 19-242), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 31, 2019. Cross references: (1) For penalties for driving under the influence of alcohol, see § 424-1301. (2) For the legislative declaration contained in the 1994 act amending subsections (4)(c), (4)(e), and (5), see section 1 of chapter 345, Session Laws of Colorado 1994. 18-3-206. Menacing. (1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: (a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or (b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-206. L. 77: Entire section amended, p. 961, § 12, effective July 1. L. 2000: Entire section amended, p. 694, § 5, effective July 1. 18-3-207. Criminal extortion - aggravated extortion. (1) A person commits criminal extortion if: (a) The person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and (b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by: (I) Performing or causing an unlawful act to be performed; or (II) Invoking action by a third party, including, but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat. (1.5) A person commits criminal extortion if the person, with the intent to induce another person against that other person's will to give the person money or another item of value, threatens to report to law enforcement officials the immigration status of the threatened person or another person. (2) A person commits aggravated criminal extortion if, in addition to the acts described in subsection (1) of this section, the person threatens to cause the results described in paragraph (a) of subsection (1) of this section by means of chemical, biological, or harmful radioactive agents, weapons, or poison. (3) For the purposes of this section, "substantial threat" means a threat that is reasonably likely to induce a belief that the threat will be carried out and is one that threatens that significant confinement, restraint, injury, or damage will occur. Colorado Revised Statutes 2019 Page 231 of 695 Uncertified Printout (4) Criminal extortion, as described in subsections (1) and (1.5) of this section, is a class 4 felony. Aggravated criminal extortion, as described in subsection (2) of this section, is a class 3 felony. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-207. L. 75: Entire section amended, p. 618, § 8, effective July 21. L. 81: Entire section amended, p. 981, § 4, effective May 13; entire section amended, p. 974, § 8, effective July 1. L. 82: (2) amended, p. 623, § 17, effective April 2. L. 94: Entire section R&RE, p. 1619, § 1, effective May 31. L. 2006, 1st Ex. Sess.: (1.5) added and (4) amended, p. 11, § 1, effective July 31. Editor's note: Amendments to this section by House Bill 81-1167 and Senate Bill 81183 were harmonized. 18-3-208. Reckless endangerment. A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment, which is a class 3 misdemeanor. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-208. 18-3-209. Assault on the elderly or persons with disabilities - legislative declaration. (Repealed) Source: L. 84: Entire section added, p. 542, § 2, effective April 12. L. 86: (2) amended, p. 777, § 4, effective July 1. L. 93: Entire section amended, p. 1634, § 18, effective July 1. L. 95: Entire section repealed, p. 1251, § 8, effective July 1. PART 3 KIDNAPPING 18-3-301. First degree kidnapping. (1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. (2) Whoever commits first degree kidnapping is guilty of a class 1 felony if the person kidnapped shall have suffered bodily injury; but no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper. (3) Whoever commits first degree kidnapping commits a class 2 felony if, prior to his conviction, the person kidnapped was liberated unharmed. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-301. Colorado Revised Statutes 2019 Page 232 of 695 Uncertified Printout 18-3-302. Second degree kidnapping. (1) Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. (2) Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. (3) Second degree kidnapping is a class 2 felony if any of the following circumstances exist: (a) The person kidnapped is a victim of a sexual offense pursuant to part 4 of this article; or (b) The person kidnapped is a victim of a robbery. (4) (a) Unless it is a class 2 felony under subsection (3) of this section, second degree kidnapping is a class 3 felony if any of the following circumstances exist: (I) The kidnapping is accomplished with intent to sell, trade, or barter the victim for consideration; or (II) The kidnapping is accomplished by the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or (III) The kidnapping is accomplished by the perpetrator representing verbally or otherwise that he or she is armed with a deadly weapon. (b) A defendant convicted of second degree kidnapping committed under any of the circumstances set forth in this subsection (4) shall be sentenced by the court in accordance with the provisions of section 18-1.3-406. (5) Second degree kidnapping is a class 4 felony, except as provided in subsections (3) and (4) of this section. Source: L. 71: R&RE, p. 421, § 1. C.R.S. 1963: § 40-3-302. L. 77: Entire section R&RE, p. 961, § 13, effective July 1. L. 81: Entire section R&RE, p. 983, § 1, effective July 1. L. 86: (4) amended, p. 777, § 5, effective July 1. L. 87: (1) amended, p. 615, § 4, effective July 1. L. 89: (2) and (4) amended, p. 902, §§ 1, 2, effective July 1. L. 2000: (4) amended, p. 694, § 6, effective July 1. L. 2001: (3), (4), and (5) amended, p. 857, § 2, effective July 1. L. 2002: (4)(b) amended, p. 1512, § 188, effective October 1. L. 2003: (3)(a) amended, p. 1432, § 20, effective April 29. L. 2007: (4) amended, p. 1687, § 5, effective July 1. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-303. False imprisonment. (1) Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. This section does not apply to a peace officer acting in good faith within the scope of his or her duties. (2) False imprisonment is a class 2 misdemeanor; except that false imprisonment is a class 5 felony if: (a) (I) The person uses force or threat of force to confine or detain the other person; and (II) The person confines or detains the other person for twelve hours or longer; or Colorado Revised Statutes 2019 Page 233 of 695 Uncertified Printout (b) (I) The person confines or detains another person less than eighteen years of age in a locked or barricaded room under circumstances that cause bodily injury or serious emotional distress; and (II) Such confinement or detention was part of a continued pattern of cruel punishment or unreasonable isolation or confinement of the child; or (c) The person confines or detains another person less than eighteen years of age by means of tying, caging, chaining, or otherwise using similar physical restraints to restrict that person's freedom of movement under circumstances that cause bodily injury or serious emotional distress. (3) Notwithstanding section 13-90-107 or any other provision of law, the statutory privilege between a patient and a physician or between an individual and his or her spouse is not available for the purpose of excluding or refusing testimony in any prosecution for a violation of this section where the conditions described in subsection (2)(b) or (2)(c) of this section are alleged. (4) Nothing in this section limits the ability of a person to assert the affirmative defense described in section 18-1-703. Source: L. 71: R&RE, p. 422, § 1. C.R.S. 1963: § 40-3-303. L. 77: Entire section amended, p. 961, § 14, effective July 1. L. 2002: Entire section amended, p. 1579, § 3, effective July 1. L. 2018: Entire section amended, (SB 18-119), ch. 299, p. 1821, § 1, effective August 8. 18-3-304. Violation of custody order or order relating to parental responsibilities. (1) Except as otherwise provided in subsection (2.5) of this section, any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child's parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony. (2) Except as otherwise provided in subsection (2.5) of this section, any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child or parental responsibilities with respect to a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen years, commits a class 5 felony. (2.5) Any person who, in the course of committing the offenses described in subsections (1) and (2) of this section, removes a child under the age of eighteen years from this country commits a class 4 felony. (3) It shall be an affirmative defense either that the offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare, or that the child, being at the time more than fourteen years old, was taken away at his own instigation without enticement and without purpose to commit a criminal offense with or against the child. (4) Any criminal action charged pursuant to this section may be tried in either the county where the act is committed or in which the court issuing the orders granting custody or allocating parental responsibilities is located, if such court is within this state. (5) Repealed. Colorado Revised Statutes 2019 Page 234 of 695 Uncertified Printout Source: L. 71: R&RE, p. 422, § 1. C.R.S. 1963: § 40-3-304. L. 85: (4) amended, p. 618, § 11, effective July 1. L. 86: (5) added, p. 779, § 1, effective April 3. L. 98: (1) and (2) amended and (2.5) added, p. 1442, § 27, effective July 1; (1), (2), and (4) amended, p. 1403, § 56, effective February 1, 1999. Editor's note: (1) Subsection (5)(c) provided for the repeal of subsection (5), effective December 2, 1986. (See L. 86, p. 779.) (2) Amendments made to subsections (1) and (2) by House Bill 98-1160 and House Bill 98-1183 were harmonized, effective February 1, 1999. Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-3-305. Enticement of a child. (1) A person commits the crime of enticement of a child if he or she invites or persuades, or attempts to invite or persuade, a child under the age of fifteen years to enter any vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact upon said child. It is not necessary to a prosecution for attempt under this subsection (1) that the child have perceived the defendant's act of enticement. (2) Enticement of a child is a class 4 felony. It is a class 3 felony if the defendant has a previous conviction for enticement of a child or sexual assault on a child or for conspiracy to commit or the attempted commission of either offense, or if the enticement of a child results in bodily injury to that child. (3) When a person is convicted, pleads nolo contendere, or receives a deferred sentence for a violation of the provisions of this section and the court knows the person is a current or former employee of a school district in this state or holds a license or authorization pursuant to the provisions of article 60.5 of title 22, C.R.S., the court shall report such fact to the department of education. Source: L. 85: Entire section added, p. 715, § 2, June 7. L. 87: (2) amended, p. 606, § 12, effective July 1. L. 90: (3) added, p. 1025, § 5, effective July 1. L. 2000: (1) amended, p. 711, § 48, effective July 1; (3) amended, p. 1846, § 30, effective August 2. 18-3-306. Internet luring of a child. (1) An actor commits internet luring of a child if the actor knowingly communicates over a computer or computer network, telephone network, or data network or by a text message or instant message to a person who the actor knows or believes to be under fifteen years of age and, in that communication or in any subsequent communication by computer, computer network, telephone network, data network, text message, or instant message, describes explicit sexual conduct as defined in section 18-6-403 (2)(e), and, in connection with that description, makes a statement persuading or inviting the person to meet the actor for any purpose, and the actor is more than four years older than the person or than the age the actor believes the person to be. (2) It shall not be a defense to this section that a meeting did not occur. (a) and (b) (Deleted by amendment, L. 2007, p. 1688, § 8, effective July 1, 2007.) Colorado Revised Statutes 2019 Page 235 of 695 Uncertified Printout (3) Internet luring of a child is a class 5 felony; except that luring of a child is a class 4 felony if committed with the intent to meet for the purpose of engaging in sexual exploitation as defined in section 18-6-403 or sexual contact as defined in section 18-3-401. (4) For purposes of this section, "in connection with" means communications that further, advance, promote, or have a continuity of purpose and may occur before, during, or after the invitation to meet. Source: L. 2006: Entire section added, p. 2055, § 4, effective July 1. L. 2007: (1) and (2) amended, p. 1688, § 8, effective July 1. L. 2009: (1) amended, (HB 09-1132), ch. 341, p. 1792, § 2, effective July 1. PART 4 UNLAWFUL SEXUAL BEHAVIOR Editor's note: This title was repealed and reenacted in 1971, and this part 4 was subsequently repealed and reenacted in 1975, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 4 prior to 1975, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers prior to 1975 are shown in editor's notes following those sections that were relocated. Cross references: For introduction of evidence of similar acts or transactions by a defendant prosecuted pursuant to this part 4, see § 16-10-301. 18-3-401. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Actor" means the person accused of a sexual offense pursuant to this part 4. (1.5) "Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4. (1.7) "Diagnostic test" means a human immunodeficiency virus (HIV) screening test followed by a supplemental HIV test for confirmation in those instances when the HIV screening test is repeatedly reactive. (2) "Intimate parts" means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person. (2.4) "Medical-reporting victim" means a victim who seeks medical treatment services following a sexual assault but who elects not to participate in the criminal justice system at the time the victim receives medical services. (2.5) "Pattern of sexual abuse" means the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim. Colorado Revised Statutes 2019 Page 236 of 695 Uncertified Printout (3) "Physically helpless" means unconscious, asleep, or otherwise unable to indicate willingness to act. (3.5) One in a "position of trust" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act. (4) "Sexual contact" means: (a) The knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse; (b) The knowing emission or ejaculation of seminal fluid onto any body part of the victim or the clothing covering any body part of the victim; or (c) Knowingly causing semen, blood, urine, feces, or a bodily substance to contact any body part of the victim or the clothing covering any body part of the victim if that contact with semen, blood, urine, feces, or a bodily substance is for the purpose of sexual arousal, gratification, or abuse. (5) "Sexual intrusion" means any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse. (6) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anilingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime. (7) "Victim" means the person alleging to have been subjected to a criminal sexual assault. Source: L. 75: Entire part R&RE, p. 627, § 1, effective July 1. L. 83: (4) amended, p. 697, § 1, effective March 3; (3.5) added, p. 693, § 1, effective June 15. L. 86: (3.5) amended, p. 770, § 6 effective July 1. L. 88: (2) amended, p. 712, § 17, effective July 1. L. 89: (2.5) added, p. 903, § 1, effective June 1. L. 90: (3.5) amended, p. 1028, § 15, effective July 1. L. 92: (1.5) added, p. 322, § 3, effective July 1. L. 93: (2) and (4) amended, p. 1731, § 15, effective July 1. L. 2000: (1.7) added, p. 452, § 5, effective April 24. L. 2003: (1) amended, p. 1432, § 22, effective April 29. L. 2013: (2.4) added, (HB 13-1163), ch. 215, p. 895, § 1, effective May 13. L. 2019: (4) amended, (HB 19-1155), ch. 76, p. 279, § 1, effective July 1. Editor's note: (1) This section is similar to former § 18-3-409 as it existed prior to 1975. (2) Section 2 of chapter 76 (HB 19-1155), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after July 1, 2019. Colorado Revised Statutes 2019 Page 237 of 695 Uncertified Printout 18-3-402. Sexual assault. (1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or (g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented. (2) Sexual assault is a class 4 felony, except as provided in subsections (3), (3.5), (4), and (5) of this section. (3) If committed under the circumstances of paragraph (e) of subsection (1) of this section, sexual assault is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). (3.5) Sexual assault is a class 3 felony if committed under the circumstances described in paragraph (h) of subsection (1) of this section. (4) Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances: (a) The actor causes submission of the victim through the actual application of physical force or physical violence; or (b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or (c) The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat. As used in this paragraph (c), "to retaliate" includes threats of kidnapping, death, serious bodily injury, or extreme pain; or (d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission. (e) (Deleted by amendment, L. 2002, p. 1578, § 2, effective July 1, 2002.) (5) (a) Sexual assault is a class 2 felony if any one or more of the following circumstances exist: Colorado Revised Statutes 2019 Page 238 of 695 Uncertified Printout (I) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or (II) The victim suffers serious bodily injury; or (III) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim. (b) (I) If a defendant is convicted of sexual assault pursuant to this subsection (5), the court shall sentence the defendant in accordance with section 18-1.3-401 (8)(e). A person convicted solely of sexual assault pursuant to this subsection (5) shall not be sentenced under the crime of violence provisions of section 18-1.3-406 (2). Any sentence for a conviction under this subsection (5) shall be consecutive to any sentence for a conviction for a crime of violence under section 18-1.3-406. (II) The provisions of this paragraph (b) shall apply to offenses committed prior to November 1, 1998. (6) Any person convicted of felony sexual assault committed on or after November 1, 1998, under any of the circumstances described in this section shall be sentenced in accordance with the provisions of part 10 of article 1.3 of this title. (7) A person who is convicted on or after July 1, 2013, of a sexual assault under this section, upon conviction, shall be advised by the court that the person has no right: (a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense; (b) To allocation of parental responsibilities, including parenting time and decisionmaking responsibilities for a child conceived as a result of the commission of that offense; (c) Of inheritance from a child conceived as a result of the commission of that offense; and (d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense. Source: L. 75: Entire part R&RE, p. 628, § 1, effective July 1. L. 77: (1) amended, p. 962, § 15, effective July 1. L. 83: IP(1) amended, p. 698, § 1, effective July 1. L. 85: (2) R&RE and (3) and (4) amended, pp. 666, 667, §§ 1, 2, effective July 1. L. 95: (4) amended, p. 1252, § 9, effective July 1. L. 98: (4) amended, p. 1293, § 13, effective November 1. L. 2000: Entire section R&RE, p. 698, § 18, effective July 1. L. 2002: (1)(g), (2), and (4)(e) amended and (1)(h) and (3.5) added, p. 1578, §§ 1, 2, effective July 1; (5)(b)(I) and (6) amended, p. 1512, § 189, effective October 1. L. 2004: (3) and (6) amended, p. 635, § 5, effective August 4. L. 2013: (7) added, (SB 13-227), ch. 353, p. 2060, § 6, effective July 1. Editor's note: This section is similar to former § 18-3-401 as it existed prior to 1975. Cross references: For the legislative declaration contained in the 2002 act amending subsections (5)(b)(I) and (6), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-403. Sexual assault in the second degree. (Repealed) Colorado Revised Statutes 2019 Page 239 of 695 Uncertified Printout Source: L. 75: Entire part R&RE, p. 628, § 1, effective July 1. L. 77: IP(1) amended, p. 962, § 16, effective July 1. L. 83: (1)(b) and (2) amended, p. 698, § 2, effective July 1. L. 88: (1)(e) amended, p. 725, § 1, effective July 1. L. 90: (1)(f) repealed, p. 1033, § 25, effective July 1. L. 99: (1)(e.5) added and (2) amended, p. 347, §§ 1, 2, effective July 1. L. 2000: Entire section repealed, p. 700, § 19, effective July 1. 18-3-404. Unlawful sexual contact. (1) Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if: (a) The actor knows that the victim does not consent; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or (d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or (e) Repealed. (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority, unless incident to a lawful search, to coerce the victim to submit; or (g) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices. (1.5) Any person who knowingly, with or without sexual contact, induces or coerces a child by any of the means set forth in section 18-3-402 to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor's own sexual gratification, commits unlawful sexual contact. For the purposes of this subsection (1.5), the term "child" means any person under the age of eighteen years. (1.7) Repealed. (2) (a) Unlawful sexual contact is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). (b) Notwithstanding the provisions of paragraph (a) of this subsection (2), unlawful sexual contact is a class 4 felony if the actor compels the victim to submit by use of such force, intimidation, or threat as specified in section 18-3-402 (4)(a), (4)(b), or (4)(c) or if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section or subsection (1.5) of this section. (3) If a defendant is convicted of the class 4 felony of unlawful sexual contact pursuant to paragraph (b) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406; except that this subsection (3) shall not apply if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section. (4) A person who is convicted on or after July 1, 2013, of unlawful sexual contact under this section, upon conviction, shall be advised by the court that the person has no right: (a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense; Colorado Revised Statutes 2019 Page 240 of 695 Uncertified Printout (b) To allocation of parental responsibilities, including parenting time and decisionmaking responsibilities for a child conceived as a result of the commission of that offense; (c) Of inheritance from a child conceived as a result of the commission of that offense; and (d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense. Source: L. 75: Entire part R&RE, p. 629, § 1, effective July 1. L. 77: IP(1) amended, p. 962, § 17, effective July 1. L. 86: (3) added, p. 777, § 6, effective July 1. L. 89: (1.5) added and (2) and (3) amended, p. 830, § 41, effective July 1. L. 90: (1)(e) repealed, p. 1033, § 25, effective July 1. L. 91: (3) amended, p. 1912, § 21, effective June 1. L. 92: (1.5) amended and (1.7) added, p. 404, § 15, effective June 3. L. 94: (1.5) and (1.7) amended, p. 1717, § 9, effective July 1. L. 95: (3) amended, p. 1252, § 10, effective July 1. L. 96: (1.7) amended, p. 1581, § 4, effective July 1. L. 2000: IP(1), (1.5), (1.7), (2), and (3) amended, p. 700, § 20, effective July 1. L. 2002: (3) amended, p. 1513, § 190, effective October 1. L. 2004: (2) and (3) amended, p. 635, § 6, effective August 4. L. 2010: (1.7)(b) added by revision, (SB 10-128), ch. 415, pp. 2045, 2049, §§ 1, 12. L. 2013: (4) added, (SB 13-227), ch. 353, p. 2060, § 7, effective July 1. Editor's note: (1) This section is similar to former §§ 18-3-403, 18-3-404, and 18-3-410 as they existed prior to 1975. (2) Subsection (1.7)(b) provided for the repeal of subsection (1.7), effective July 1, 2012. (See L. 2010, pp. 2045, 2049.) Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-405. Sexual assault on a child. (1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim. (2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if: (a) The actor applies force against the victim in order to accomplish or facilitate sexual contact; or (b) The actor, in order to accomplish or facilitate sexual contact, threatens imminent death, serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor has the present ability to execute the threat; or (c) The actor, in order to accomplish or facilitate sexual contact, threatens retaliation by causing in the future the death or serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor will execute the threat; or (d) The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse, whether charged in the information or indictment or committed prior to or at any time after the offense charged in the information or indictment, shall be subject to the provisions of section 16-5-401 (1)(a), concerning sex offenses against children. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a Colorado Revised Statutes 2019 Page 241 of 695 Uncertified Printout pattern of sexual abuse as defined in section 18-3-401 (2.5). Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting the pattern of sexual abuse may be commenced and charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed. (3) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraphs (a) to (d) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. (4) A person who is convicted on or after July 1, 2013, of sexual assault on a child under this section, upon conviction, shall be advised by the court that the person has no right: (a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense; (b) To allocation of parental responsibilities, including parenting time and decisionmaking responsibilities for a child conceived as a result of the commission of that offense; (c) Of inheritance from a child conceived as a result of the commission of that offense; and (d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense. Source: L. 75: Entire part R&RE, p. 630, § 1, effective July 1. L. 77: (1) amended, p. 962, § 18, effective July 1. L. 83: (2) amended, p. 693, § 2, effective June 15. L. 86: (3) added, p. 777, § 7, effective July 1. L. 89: (2)(b) and (3) amended and (2)(c) added, p. 903, §§ 2, 3, effective June 1. L. 90: (2)(b) repealed, p. 1033, § 25, effective July 1. L. 95: (2) and (3) amended, p. 1252, § 11, effective July 1. L. 2002: (2)(d) amended, p. 1582, § 8, effective July 1; (3) amended, p. 1513, § 191, effective October 1. L. 2006: (2)(d) amended, p. 413, § 2, effective July 1. L. 2013: (4) added, (SB 13-227), ch. 353, p. 2061, § 9, effective July 1. L. 2017: (2)(d) amended, (HB 17-1109), ch. 97, p. 293, § 2, effective April 4. Editor's note: This section is similar to former § 18-3-408 as it existed prior to 1975. Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-405.3. Sexual assault on a child by one in a position of trust. (1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim. (2) Sexual assault on a child by one in a position of trust is a class 3 felony if: (a) The victim is less than fifteen years of age; or (b) The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time need be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse whether charged in the information or indictment or committed prior to or at any time after the offense charged in the information or indictment, shall be subject to the provisions of section 16-5-401 (1)(a), concerning sex offenses against children. The offense charged in the information or indictment Colorado Revised Statutes 2019 Page 242 of 695 Uncertified Printout shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401 (2.5). Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting the pattern of sexual abuse may be commenced and the offenses charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed. (3) Sexual assault on a child by one in a position of trust is a class 4 felony if the victim is fifteen years of age or older but less than eighteen years of age and the offense is not committed as part of a pattern of sexual abuse, as described in paragraph (b) of subsection (2) of this section. (4) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraph (b) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. (5) A person who is convicted on or after July 1, 2013, of sexual assault on a child by one in a position of trust under this section, upon conviction, shall be advised by the court that the person has no right: (a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense; (b) To allocation of parental responsibilities, including parenting time and decisionmaking responsibilities for a child conceived as a result of the commission of that offense; (c) Of inheritance from a child conceived as a result of the commission of that offense; and (d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense. Source: L. 90: Entire section added, p. 1028, § 16, effective July 1. L. 98: Entire section amended, p. 1444, § 33, effective July 1. L. 2002: (2)(b) amended, p. 1582, § 9, effective July 1; (4) amended, p. 1513, § 192, effective October 1. L. 2006: (2)(b) amended, p. 413, § 3, effective July 1. L. 2013: (5) added, (SB 13-227), ch. 353, p. 2061, § 8, effective July 1. L. 2017: (2)(b) amended, (HB 17-1109), ch. 97, p. 293, § 3, effective April 4. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-405.4. Internet sexual exploitation of a child. (1) An actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network or system, telephone network, or data network or by a text message or instant message, a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to: (a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system, telephone network, or data network or by a text message or instant message; or (b) Observe the actor's intimate parts via a computer network or system, telephone network, or data network or by a text message or instant message. Colorado Revised Statutes 2019 Page 243 of 695 Uncertified Printout (2) (Deleted by amendment, L. 2009, (HB 09-1163), ch. 343, p. 1797, § 1, effective July 1, 2009.) (3) Internet sexual exploitation of a child is a class 4 felony. Source: L. 2006: Entire section added, p. 2056, § 5, effective July 1. L. 2009: Entire section amended, (HB 09-1163), ch. 343, p. 1797, § 1, effective July 1; (1) amended, (HB 091132), ch. 341, p. 1793, § 3, effective July 1. Editor's note: Amendments to subsection (1) by House Bill 09-1163 and House Bill 091132 were harmonized. 18-3-405.5. Sexual assault on a client by a psychotherapist - definitions. (1) (a) Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if: (I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or (II) The actor is a psychotherapist and the victim is a client and the sexual penetration or intrusion occurred by means of therapeutic deception. (b) Aggravated sexual assault on a client is a class 4 felony. (2) (a) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault on a client if: (I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or (II) The actor is a psychotherapist and the victim is a client and the sexual contact occurred by means of therapeutic deception. (b) Sexual assault on a client is a class 1 misdemeanor. (3) Consent by the client to the sexual penetration, intrusion, or contact shall not constitute a defense to such offense. (4) As used in this section, unless the context otherwise requires: (a) "Client" means a person who seeks or receives psychotherapy from a psychotherapist. (b) "Psychotherapist" means any person who performs or purports to perform psychotherapy, whether the person is licensed or registered by the state pursuant to title 12, C.R.S., or certified by the state pursuant to part 5 of article 1 of title 25, C.R.S. (c) "Psychotherapy" means the treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate behavioral or mental health disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors that interfere with effective emotional, social, or intellectual functioning. (d) "Therapeutic deception" means a representation by a psychotherapist that sexual contact, penetration, or intrusion by the psychotherapist is consistent with or part of the client's treatment. (5) A person who is convicted on or after July 1, 2013, of sexual assault on a client by a psychotherapist under this section, upon conviction, shall be advised by the court that the person has no right: (a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense; Colorado Revised Statutes 2019 Page 244 of 695 Uncertified Printout (b) To allocation of parental responsibilities, including parenting time and decisionmaking responsibilities for a child conceived as a result of the commission of that offense; (c) Of inheritance from a child conceived as a result of the commission of that offense; and (d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense. Source: L. 88: Entire section added, p. 726, § 1, effective July 1. L. 89: (3) amended, p. 831, § 42, effective July 1. L. 2011: IP(4) and (4)(b) amended, (SB 11-187), ch. 285, p. 1327, § 69, effective July 1. L. 2013: (5) added, (SB 13-227), ch. 353, p. 2062, § 10, effective July 1. L. 2017: (4)(c) amended, (SB 17-242), ch. 263, p. 1307, § 141, effective May 25. Cross references: (1) For the licensing of mental health professionals, see article 43 of title 12. (2) For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. 18-3-405.6. Invasion of privacy for sexual gratification. (1) A person who knowingly observes or takes a photograph of another person's intimate parts without that person's consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, for the purpose of the observer's own sexual gratification, commits unlawful invasion of privacy for sexual gratification. (2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), invasion of privacy for sexual gratification is a class 1 misdemeanor and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3-501 (3). (b) Invasion of privacy for sexual gratification is a class 6 felony and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3-401 (10) if either of the following circumstances exist: (I) The offense is committed subsequent to a prior conviction, as defined in section 1622-102 (3), C.R.S., for unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S.; or (II) The person observes or takes a photograph of the intimate parts of a person under fifteen years of age. This subparagraph (II) shall not apply if the defendant is less than four years older than the person observed or photographed. (3) For purposes of this section, "photograph" includes a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, or chemically produced or reproduced visual material. Source: L. 2010: Entire section added, (SB 10-128), ch. 415, p. 2045, § 2, effective July 1, 2012. 18-3-405.7. Unlawful sexual conduct by a peace officer - definition. (1) A peace officer commits unlawful sexual conduct by a peace officer by knowingly engaging in sexual contact, sexual intrusion, or sexual penetration under any of the following circumstances: Colorado Revised Statutes 2019 Page 245 of 695 Uncertified Printout (a) In the same encounter, the peace officer contacts the victim for the purpose of law enforcement or contacts the victim in the exercise of the officer's employment activities or duties; (b) The peace officer knows that the victim is, or causes the victim to believe that he or she is, the subject of an active investigation, and the peace officer uses that knowledge to further the sexual contact, intrusion, or penetration; or (c) In furtherance of sexual contact, intrusion, or penetration, the peace officer makes any show of real or apparent authority. (2) (a) Unlawful sexual conduct by a peace officer under circumstances when the victim is subject to sexual contact is a class 4 felony. (b) Unlawful sexual conduct by a peace officer under circumstances in which sexual intrusion or penetration is inflicted on the victim is a class 3 felony. (3) For the purposes of this section, unless the context otherwise requires, "peace officer" means any person described in article 2.5 of title 16. (4) It is not a defense to this section that the victim consented to the sexual contact, intrusion, or penetration. (5) This section does not apply to sexual contact or intrusion that occurs incident to a lawful search. Source: L. 2019: Entire section added, (HB 19-1250), ch. 287, p. 2662, § 1, effective July 1. Editor's note: Section 8 of chapter 287 (HB 19-1250), Session Laws of Colorado 2019, provides that the act adding this section applies to offenses committed on or after July 1, 2019. 18-3-406. Criminality of conduct. (Repealed) Source: L. 75: Entire part R&RE, p. 630, § 1, effective July 1. L. 2001: Entire section repealed, p. 859, § 5, effective July 1. Editor's note: Current provisions relating to criminality of conduct are contained in § 18-1-503.5. 18-3-407. Victim's and witness's prior history - evidentiary hearing - victim's identity - protective order. (1) Evidence of specific instances of the victim's or a witness's prior or subsequent sexual conduct, opinion evidence of the victim's or a witness's sexual conduct, and reputation evidence of the victim's or a witness's sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to paragraph (c) of subsection (2) of this section. At trial, such evidence shall be presumed to be irrelevant except: (a) Evidence of the victim's or witness' prior or subsequent sexual conduct with the actor; (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant. Colorado Revised Statutes 2019 Page 246 of 695 Uncertified Printout (2) In any criminal prosecution for class 4 felony internet luring of a child, as described in section 18-3-306 (3) or under sections 18-3-402 to 18-3-405.5, 18-3-504, 18-6-301, 18-6-302, 18-6-403, 18-6-404, and any offense described in part 4 of article 7 of this title, or for attempt or conspiracy to commit any of said crimes, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness's prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness's sexual conduct, or reputation evidence of the victim's or a witness's sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed: (a) A written motion shall be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's or witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or witness' sexual conduct, or reputation evidence of the victim's or witness' sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented. (b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. (c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set a hearing to be held in camera prior to trial. In such hearing, to the extent the facts are in dispute, the court may allow the questioning of the victim or witness regarding the offer of proof made by the moving party or otherwise allow a presentation of the offer of proof, including but not limited to the presentation of witnesses. (d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown. (e) At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court. (f) All motions and supporting documents filed pursuant to this section shall be filed under seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed. (g) The court shall seal all court transcripts, tape recordings, and records of proceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, tape recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed. (3) (a) In a criminal prosecution including an offense described in subsection (2) of this section, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning Colorado Revised Statutes 2019 Page 247 of 695 Uncertified Printout disclosure of information relating to the victim or a witness. The court may punish a violation of a protective order by contempt of court. (b) The victim who would be the subject of the protective order may object to the motion for a protective order. Source: L. 75: Entire part R&RE, p. 630, § 1, effective July 1. L. 91: IP(2) amended, p. 405, § 10, effective June 6. L. 98: Entire section amended and IP(2) amended, pp. 399, 400, §§ 7, 8, effective April 21. L. 2004: (3) added, p. 375, § 1, effective April 8. L. 2005: IP(1), (2)(c), and (2)(e) amended and (2)(f) and (2)(g) added, p. 426, § 5, effective April 29. L. 2006: IP(2) amended, p. 2056, § 6, effective July 1. L. 2012: (2)(a) amended, (SB 12-175), ch. 208, p. 871, § 127, effective July 1. L. 2014: IP(2) amended, (HB 14-1273), ch. 282, p. 1150, § 4, effective July 1. Editor's note: Amendments to the introductory portion to subsection (2) by sections 7 and 8 of House Bill 98-1177 were harmonized. 18-3-407.5. Victim evidence - forensic evidence - electronic lie detector exam without victim's consent prohibited. (1) A law enforcement agency with jurisdiction over a sexual assault must pay for any direct cost associated with the collection of forensic evidence from a victim who reports the assault to the law enforcement agency. (2) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to submit to a polygraph examination or any form of a mechanical or electrical lie detector examination as a condition for proceeding with any criminal investigation or prosecution of an offense. A law enforcement agency shall conduct the examination only with the victim's written informed consent. Consent shall not be considered informed unless the law enforcement agency informs the victim in writing of the victim's right to refuse to submit to the examination. In addition, the law enforcement agency shall orally provide to the victim information about the potential uses of the results of the examination. (3) (a) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to participate in the criminal justice system process or cooperate with the law enforcement agency, prosecuting officer, or other government official as a condition of receiving a forensic medical examination that includes the collection of evidence. (b) A victim of a sexual offense shall not bear the cost of a forensic medical examination that includes the collection of evidence that is used for the purpose of evidence collection even if the victim does not want to participate in the criminal justice system or otherwise cooperate with the law enforcement agency, prosecuting officer, or other government official. The division of criminal justice in the department of public safety shall pay the cost of the examination. (c) When personnel at a medical facility perform a medical forensic examination that includes the collection of evidence based on the request of a victim of a sexual offense and the medical facility performing the examination knows where the crime occurred, the facility shall contact the law enforcement agency in whose jurisdiction the crime occurred regarding preservation of the evidence. If the medical facility does not know where the crime occurred, the facility shall contact its local law enforcement agency regarding preservation of the evidence. Notwithstanding any other statutory requirements regarding storage of biological evidence, the Colorado Revised Statutes 2019 Page 248 of 695 Uncertified Printout law enforcement agency contacted by the medical facility shall retrieve the evidence from the facility and store it for at least two years. (d) A law enforcement agency shall not submit medical forensic evidence associated with an anonymous report submitted pursuant to section 12-240-139 to the Colorado bureau of investigation or any other laboratory for testing as described in section 24-33.5-113. Medical forensic evidence associated with a medical report submitted pursuant to section 12-240-139, when the victim has consented to evidence testing, shall be submitted to the Colorado bureau of investigation or another laboratory and tested, pursuant to section 24-33.5-113, regardless of whether the victim has chosen to participate in the criminal justice system. Source: L. 95: Entire section added, p. 948, § 3, effective July 1. L. 2008: (2) amended and (3) added, p. 263, § 1, effective March 31. L. 2013: (1) amended, (HB 13-1163), ch. 215, p. 895, § 2, effective May 13. L. 2015: (3)(c) amended and (3)(d) added, (SB 15-128), ch. 65, p. 181, § 2, effective March 30. L. 2019: (3)(d) amended, (HB 19-1172), ch. 136, p. 1675, § 92, effective October 1. 18-3-407.7. Sexual assault victim emergency payment program - creation eligibility. (1) There is hereby created the sexual assault victim emergency payment program, referred to in this section as the "program", in the division of criminal justice in the department of public safety. The purpose of the program is to assist medical-reporting victims of sexual assault with medical expenses associated with a sexual assault that are not otherwise covered pursuant to section 18-3-407.5 or any other victim compensation program. (2) (a) A medical-reporting victim must request and receive a medical forensic examination to be eligible to have medical costs and fees covered through the program. The division of criminal justice shall develop a policy for administering the program. The policy must include a requirement to establish a cap for the amount payable per victim based on actual and reasonable costs and available funds, but the minimum cap must not be less than one thousand dollars. The program must cover medical fees and costs associated with obtaining the medical forensic examination, including but not limited to emergency department fees and costs, laboratory fees, prescription medication, and physician's fees, as long as funds are available. The program may also cover medical fees and costs for injuries directly related to the sexual assault. The program may also pay for any uncovered direct costs of the medical forensic examination for a medical-reporting victim. The total amount paid for all expenses must not exceed the annual cap established by the division of criminal justice. (b) The program shall be the payor of last resort. (c) A hospital shall limit the amounts charged for emergency or associated fees and costs eligible for payment pursuant to paragraph (a) of this subsection (2) to not more than the lowest negotiated rate from a private health plan. (3) The division of criminal justice may waive any requirement set forth in this section for good cause shown or in the interests of justice, if it is so required. Source: L. 2013: Entire section added, (HB 13-1163), ch. 215, p. 895, § 3, effective May 13. Colorado Revised Statutes 2019 Page 249 of 695 Uncertified Printout 18-3-408. Jury instruction prohibited. In any criminal prosecution under sections 183-402 to 18-3-405, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405, the jury shall not be instructed to examine with caution the testimony of the victim solely because of the nature of the charge, nor shall the jury be instructed that such a charge is easy to make but difficult to defend against, nor shall any similar instruction be given. However, the jury shall be instructed not to allow gender bias or any kind of prejudice based upon gender to influence the decision of the jury. Source: L. 75: Entire part R&RE, p. 631, § 1, effective July 1. L. 90: Entire section amended, p. 925, § 8, effective March 27. 18-3-408.5. Jury instruction on consent - when required. (1) In any criminal prosecution for a crime listed in subsection (2) of this section or for attempt or conspiracy to commit a crime listed in subsection (2) of this section, upon request of any party to the proceedings, the jury shall be instructed on the definition of consent as set forth in section 18-3401 (1.5). Notwithstanding the provisions of section 18-1-505 (4), an instruction on the definition of consent given pursuant to this section shall not constitute an affirmative defense, but shall only act as a defense to the elements of the offense. (2) The provisions of subsection (1) of this section shall apply to the following crimes: (a) Sexual assault as described in section 18-3-402 (1)(a); (b) Sexual assault as described in section 18-3-402 (1)(b), (1)(c), or (1)(e), as they existed prior to July 1, 2000, for offenses committed prior to July 1, 2000; (c) Sexual assault in the second degree as described in section 18-3-403 (1)(a) or (1)(b), as they existed prior to July 1, 2000, for offenses committed prior to July 1, 2000; (d) Unlawful sexual contact as described in section 18-3-404 (1)(a), (1)(c), or (1)(d); (e) Unlawful sexual contact as described in section 18-3-404 (1.7), as it existed prior to July 1, 2010, for offenses committed prior to July 1, 2010; (f) Invasion of privacy for sexual gratification as described in section 18-3-405.6; or (g) Criminal invasion of privacy in violation of section 18-7-801. Source: L. 92: Entire section added, p. 322, § 4, effective July 1. L. 2002: Entire section amended, p. 757, § 1, effective July 1. L. 2010: Entire section amended, (SB 10-128), ch. 415, p. 2047, § 7, effective July 1, 2012. 18-3-409. Marital defense. Any marital relationship, whether established statutorily, putatively, or by common law, between an actor and a victim shall not be a defense to any offense under this part 4 unless such defense is specifically set forth in the applicable statutory section by having the elements of the offense specifically exclude a spouse. Source: L. 75: Entire part R&RE, p. 631, § 1, effective July 1. L. 88: Entire section R&RE, p. 725, § 2, effective July 1. 18-3-410. Medical exception. The provisions of this part 4 shall not apply to any act performed for bona fide medical purposes if such act is performed in a manner which is not inconsistent with reasonable medical practices. Colorado Revised Statutes 2019 Page 250 of 695 Uncertified Printout Source: L. 75: Entire part R&RE, p. 631, § 1, effective July 1. 18-3-411. Sex offenses against children - definition - limitation for commencing proceedings - evidence - statutory privilege. (1) As used in this section, "unlawful sexual offense" means enticement of a child, as described in section 18-3-305; sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the second degree, as described in section 18-3-403 (1)(a), (1)(b), (1)(c), (1)(d), (1)(g), or (1)(h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age, or as described in section 18-3-403 (1)(e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404 (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the third degree, as described in section 18-3-404 (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault on a child, as described in section 18-3405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; human trafficking of a minor for sexual servitude, as described in section 18-3-504 (2); sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6404; indecent exposure, as described in section 18-7-302, soliciting for child prostitution, as described in section 18-7-402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7-405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7-406; class 4 felony internet luring of a child, as described in section 18-3-306 (3); internet sexual exploitation of a child, as described in section 18-3-405.4; unlawful electronic sexual communication, as described in section 18-3-418; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1). (2) No person shall be prosecuted, tried, or punished for a misdemeanor offense specified in section 18-3-402 or 18-3-404, unless the indictment, information, complaint, or action for the same is found or instituted within five years after the commission of the offense. The limitation for commencing criminal proceedings and juvenile delinquency proceedings concerning unlawful sexual offenses that are felonies shall be governed by section 16-5-401 (1)(a), C.R.S. (3) An out-of-court statement made by a child, as "child" is defined under the statutes that are the subject of the action, or a person under fifteen years of age if "child" is undefined under the statutes that are the subject of the action, describing all or part of an offense of unlawful sexual behavior, as defined in section 16-22-102 (9), performed or attempted to be performed with, by, on, or in the presence of the child declarant, and that is not otherwise admissible by a statute or court rule that provides an exception to the hearsay objection, may be admissible pursuant to section 13-25-129 (2). Colorado Revised Statutes 2019 Page 251 of 695 Uncertified Printout (4) All cases involving the commission of an unlawful sexual offense shall take precedence before the court; the court shall hear these cases as soon as possible after they are filed. (5) The statutory privilege between the husband and the wife shall not be available for excluding or refusing testimony in any prosecution of an unlawful sexual offense. (6) Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting a pattern offense of sexual abuse pursuant to section 18-3-405 (2)(d) or 18-3-405.3 (2)(b) may be commenced and the offenses charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed. Source: L. 82: Entire section added, p. 313, § 1, effective July 1. L. 83: (3) added, p. 630, § 2, effective May 25; (4) and (5) added, p. 694, § 3, effective June 15. L. 85: (1) and (2) amended, p. 618, § 12, effective July 1. L. 88: (5) amended, p. 713, § 19, effective July 1. L. 91: (1) amended, p. 406, § 11, effective June 6. L. 94: (1) amended, p. 1717, § 10, effective July 1. L. 2000: (1) and (2) amended, p. 704, § 29, effective July 1. L. 2002: (2) amended, p. 1128, § 2, effective June 3. L. 2006: (1) amended, p. 2056, § 8, effective July 1; (2) amended, p. 413, § 4, effective July 1. L. 2010: (1) amended, (SB 10-140), ch. 156, p. 538, § 9, effective April 21. L. 2014: (1) amended, (HB 14-1273), ch. 282, p. 1155, § 17, effective July 1, 2014. L. 2015: (3) amended, (HB 15-1183), ch. 96, p. 276, § 2, effective April 10. L. 2017: (6) added, (HB 171109), ch. 97, p. 293, § 4, effective April 4. L. 2019: (1) amended, (HB 19-1030), ch. 145, p. 1760, § 4, effective July 1; (3) amended, (SB 19-071), ch. 42, p. 145, § 2, effective July 1. Editor's note: (1) Section 4 of chapter 42 (SB 19-071), Session Laws of Colorado 2019, provides that the act changing this section applies to proceedings occurring on or after July 1, 2019. (2) Section 5 of chapter 145 (HB 19-1030), Session Laws of Colorado 2019, provides that the act changing this section applies to offenses committed on or after July 1, 2019. Cross references: For provisions concerning child abuse that are similar to the provisions of this section, see § 18-6-401.1; for the husband-wife privilege, see § 13-90-107. 18-3-412. Habitual sex offenders against children - indictment or information verdict of the jury. (1) For the purpose of this section, "unlawful sexual offense" means sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than fifteen years of age, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the second degree, as described in section 18-3-403 (1)(a), (1)(b), (1)(c), (1)(d), (1)(g), or (1)(h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age, or as described in section 18-3-403 (1)(e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404 (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the third degree, as described in section 18-3-404 Colorado Revised Statutes 2019 Page 252 of 695 Uncertified Printout (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault on a child, as described in section 18-3-405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; human trafficking of a minor for sexual servitude, as described in section 18-3-504 (2); sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6-404; soliciting for child prostitution, as described in section 18-7-402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7-405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7406; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1). (2) Every person convicted in this state of an unlawful sexual offense who has been previously convicted upon charges prior to the commission of the present act, which were separately brought, either in this state or elsewhere, of an unlawful sexual offense or who has been previously convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an unlawful act that, if committed within this state, would be an unlawful sexual offense shall be adjudged an habitual sex offender against children. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a felony, the court shall impose a sentence to the department of corrections of not less than three times the upper limit of the presumptive range for that class felony as set out in section 18-1.3-401. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a misdemeanor, the court shall impose a sentence to the county jail of not less than three times the maximum sentence for that class misdemeanor as set out in section 181.3-501. (3) Any previous conviction of an unlawful sexual offense shall be set forth in apt words in the complaint, indictment, or information. For purposes of trial, a duly authenticated copy of the record of previous convictions and judgments of any court of record for any of said crimes of the party indicted, charged, or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. A duly authenticated copy of the records of institutions of treatment or incarceration, including, but not limited to, records pertaining to identification of the party indicted, charged, or informed against, shall be prima facie evidence of the facts contained therein and may be used in evidence against such party. (4) Any person who is subject to the provisions of this section shall not be eligible for suspension of sentence. (5) The procedures specified in section 18-1.3-803 shall govern in a trial to which the provisions of this section are alleged to apply based on a previous conviction or convictions for an unlawful sexual offense as set out in the complaint, indictment, or information. Source: L. 82: Entire section added, p. 316, § 1, effective July 1. L. 85: (1) amended, p. 619, § 13, effective July 1. L. 96: (5) amended, p. 1846, § 18, effective July 1. L. 99: (1) amended, p. 1154, § 18, effective July 1. L. 2000: (1) amended, p. 711, § 49, effective July 1; (2) amended, p. 249, § 1, effective August 2. L. 2002: (2) and (5) amended, p. 1513, § 193, effective October 1. L. 2003: (2) and (4) amended, p. 1427, § 7, effective April 29. L. 2010: (1) amended, Colorado Revised Statutes 2019 Page 253 of 695 Uncertified Printout (SB 10-140), ch. 156, p. 539, § 10, effective April 21. L. 2014: (1) amended, (HB 14-1273), ch. 282, p. 1155, § 18, effective July 1. Cross references: (1) For provisions concerning habitual child abusers that are similar to the provisions of this section, see § 18-6-401.2; for limitations on collateral attacks on prior convictions, see § 16-5-402. (2) For the legislative declaration contained in the 2002 act amending subsections (2) and (5), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-412.5. Failure to register as a sex offender. (1) A person who is required to register pursuant to article 22 of title 16 and who fails to comply with any of the requirements placed on registrants by said article 22, including but not limited to committing any of the acts specified in this subsection (1), commits the offense of failure to register as a sex offender: (a) Failure to register pursuant to article 22 of title 16, C.R.S.; (b) Submission of a registration form containing false information or submission of an incomplete registration form; (c) Failure to provide information or knowingly providing false information to a probation department employee, to a community corrections administrator or his or her designee, or to a judge or magistrate when receiving notice pursuant to section 16-22-106 (1), (2), or (3), C.R.S., of the duty to register; (d) If the person has been sentenced to a county jail, otherwise incarcerated, or committed, due to conviction of or disposition or adjudication for an offense specified in section 16-22-103, C.R.S., failure to provide notice of the address where the person intends to reside upon release as required in sections 16-22-106 and 16-22-107, C.R.S.; (e) Knowingly providing false information to a sheriff or his or her designee, department of corrections personnel, or department of human services personnel concerning the address where the person intends to reside upon release from the county jail, the department of corrections, or the department of human services. Providing false information shall include, but is not limited to, providing false information as described in section 16-22-107 (4)(b), C.R.S. (f) Failure when registering to provide the person's current name and any former names; (g) Failure to register with the local law enforcement agency in each jurisdiction in which the person resides upon changing an address, establishing an additional residence, or legally changing names; (h) Failure to provide the person's correct date of birth, to sit for or otherwise provide a current photograph or image, to provide a current set of fingerprints, or to provide the person's correct address; (i) Failure to complete a cancellation of registration form and file the form with the local law enforcement agency of the jurisdiction in which the person will no longer reside pursuant to section 16-22-108 (4)(a)(II); (j) When the person's place of residence is a trailer or motor home, failure to register an address at which the trailer or motor home is lawfully located pursuant to section 16-22-109 (1)(a.3), C.R.S.; (k) Failure to register an e-mail address, instant-messaging identity, or chat room identity prior to using the address or identity if the person is required to register that information pursuant to section 16-22-108 (2.5), C.R.S. Colorado Revised Statutes 2019 Page 254 of 695 Uncertified Printout (1.5) (a) In a prosecution for a violation of this section, it is an affirmative defense that: (I) Uncontrollable circumstances prevented the person from complying; (II) The person did not contribute to the creation of the circumstances in reckless disregard of the requirement to comply; and (III) The person complied as soon as the circumstances ceased to exist. (b) In order to assert the affirmative defense pursuant to this subsection (1.5), the defendant shall provide notice to the prosecuting attorney as soon as practicable, but not later than thirty-five days prior to trial, of his or her notice of intent to rely upon the affirmative defense. The notice shall include a description of the uncontrollable circumstance or circumstances and the dates the uncontrollable circumstances began and ceased to exist in addition to the names and addresses of any witnesses the defendant plans to call to support the affirmative defense. The prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such affirmative defense as soon as practicable after their names become known. Upon the request of the prosecution, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute sufficient evidence to support submission to the jury. (2) (a) Failure to register as a sex offender is a class 6 felony if the person was convicted of felony unlawful sexual behavior, or of another offense, the underlying factual basis of which includes felony unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute felony unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves felony unlawful sexual behavior; except that any second or subsequent offense of failure to register as a sex offender by such person is a class 5 felony. (b) Any person convicted of felony failure to register as a sex offender shall be sentenced pursuant to the provisions of section 18-1.3-401. If such person is sentenced to probation, the court may require, as a condition of probation, that the person participate until further order of the court in an intensive supervision probation program established pursuant to section 18-1.3-1007. If such person is sentenced to incarceration and subsequently released on parole, the parole board may require, as a condition of parole, that the person participate in an intensive supervision parole program established pursuant to section 18-1.3-1005. (c) A person who is convicted of a felony sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits failure to register as a sex offender in this state commits felony failure to register as a sex offender as specified in paragraph (a) of this subsection (2) and shall be sentenced as provided in paragraph (b) of this subsection (2). (3) (a) Failure to register as a sex offender is a class 1 misdemeanor if the person was convicted of misdemeanor unlawful sexual behavior, or of another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute misdemeanor unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior. A class 1 misdemeanor conviction pursuant to this subsection (3) is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). (b) A person who is convicted of a misdemeanor sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits Colorado Revised Statutes 2019 Page 255 of 695 Uncertified Printout failure to register as a sex offender in this state commits misdemeanor failure to register as a sex offender as specified in paragraph (a) of this subsection (3). (4) (a) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be placed or committed out of the home for not less than one year. (b) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a thirty-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence. (5) For purposes of this section, unless the context otherwise requires, "unlawful sexual behavior" has the same meaning as set forth in section 16-22-102 (9), C.R.S. (6) (a) When a peace officer determines that there is probable cause to believe that a crime of failure to register as a sex offender has been committed by a person required to register as a sexually violent predator in this state pursuant to article 22 of title 16, C.R.S., or in any other state, the officer shall arrest the person suspected of the crime. It shall be a condition of any bond posted by such person that the person shall register pursuant to the provisions of section 16-22108, C.R.S., within seven days after release from incarceration. (b) When a peace officer makes a warrantless arrest pursuant to this subsection (6), the peace officer shall immediately notify the Colorado bureau of investigation of the arrest. Upon receiving the notification, the Colorado bureau of investigation shall notify the jurisdiction where the sexually violent predator last registered. The jurisdiction where the sexually violent predator last registered, if it is not the jurisdiction where the probable cause arrest is made, shall coordinate with the arresting jurisdiction immediately to determine the appropriate jurisdiction that will file the charge. If the sexually violent predator is being held in custody after the arrest, the appropriate jurisdiction shall have no less than seven days after the date of the arrest to charge the sexually violent predator. Source: L. 91: Entire section added, p. 393, § 1, effective April 17. L. 94: Entire section R&RE, p. 1736, § 1, effective July 1. L. 95: (6) amended and (6.5) and (9) added, p. 1309, § 1, effective June 5; (3) and (4) amended, p. 468, § 16, effective July 1. L. 96: (1), (2), (4), and (6) amended and (6.7) added, p. 1581, § 5, effective July 1; (8) amended, p. 1691, § 25, effective January 1, 1997. L. 97: IP(6.7) amended, p. 173, § 1, effective March 31; (1)(f) amended, p. 1547, § 19, effective July 1; (2) and (6.7)(c) amended and (6.7)(e) added, pp. 1553, 1554, §§ 6, 7, effective July 1; (3.5) added and IP(7) and (8) amended, p. 1563, § 9, effective July 1. L. 98: Entire section amended, p. 389, § 1, effective April 21. L. 99: (1)(a)(II), IP(1)(b), (1)(b)(XXI) to (1)(b)(XXIII), (1)(c), (2)(a), (2)(c), (3)(d), (6)(b), (6.5)(b), (6.5)(c), (7)(a)(II), and (7)(a)(III) amended and (1)(d), (4)(a)(III.5), and (6)(b.5) added, pp. 1144, 1146, 1150, 1156, 1155, 1151, §§ 2, 6, 13, 20, 19, 14, 21, effective July 1; IP(4)(a) amended, p. 799, § 19, effective July 1. L. 2000: (2)(a)(I) and (6)(b) amended and (3)(e), (3.5)(e), (3.5)(f), and (4)(a)(VI) added, pp. 718, 719, §§ 2, 5, 3, 1, 4, effective May 23; IP(1)(b), (1)(d), (2)(a)(I), (3)(a), (3)(d), (3.5)(a), (6)(c), Colorado Revised Statutes 2019 Page 256 of 695 Uncertified Printout (6.5)(d), and IP(7)(a) amended and (1)(b)(XXIV), (3.7), (4)(a)(VII), (5)(c), (6)(e), (6.5)(e), and (7)(c) added, pp. 915, 919, 920, 918, §§ 1, 5, 6, 8, 2, 3, 4, effective July 1; (1)(b)(I), (1)(b)(II), (1)(b)(III), (7)(a)(II), and (7)(a)(III) amended, p. 705, § 30, effective July 1; (8.5) added, p. 432, § 2, effective July 1; (6.5)(b) amended, p. 250, § 3, effective August 2. L. 2001: (4)(b) and (4)(c) amended, p. 567, § 2, effective May 29; (3)(a)(I.5) and (3.9) added and (7)(c) amended, pp. 656, 658, §§ 1, 8, 2, effective May 30; (2)(a)(I), (2)(a)(II), (3)(e), (3.5)(e), (3.5)(f), (6)(b), (6.5)(c), (6.5)(d), IP(7)(a), (7)(a)(I), (7)(a)(II), and (7)(a)(III) amended and (3.6) and (7)(a)(VI) added, pp. 962, 960, 961, §§ 3, 1, 2, effective June 5. L. 2002: Entire section R&RE, p. 1178, § 2, effective July 1; (2)(b) amended, p. 1567, § 393, effective October 1. L. 2004: (2)(c) and (5) added and (3) amended, p. 1119, §§ 17, 18, effective May 27; (3) amended, p. 635, § 7, effective August 4. L. 2006: (6) added, p. 1313, § 7, effective May 30. L. 2007: IP(1) amended and (1)(j) added, p. 211, § 4, effective March 26; (1)(k) added, p. 1682, § 4, effective July 1. L. 2011: (1.5) added and (2)(b) amended, (HB 11-1278), ch. 224, p. 965, § 10, effective May 27. L. 2012: (1.5)(b) and (6) amended, (SB 12-175), ch. 208, p. 872, § 128, effective July 1. L. 2018: IP(1) and (1)(i) amended, (HB 18-1356), ch. 255, p. 1559, § 2, effective August 8. Editor's note: Amendments to subsection (2)(a)(I) by House Bill 00-1232 and House Bill 00-1317 were harmonized. Amendments to subsection (3) by House Bill 04-1388 and Senate Bill 04-154 were harmonized. Cross references: (1) For provisions relating to sex offender registration requirements, see article 22 of title 16. (2) For the legislative declaration contained in the 2000 act enacting subsection (8.5), see section 1 of chapter 125, Session Laws of Colorado 2000. For the legislative declaration contained in the 2001 act amending subsections (4)(b) and (4)(c), see section 1 of chapter 176, Session Laws of Colorado 2001. For the legislative declaration contained in the 2002 act amending subsection (2)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in HB 18-1356, see section 1 of chapter 255, Session Laws of Colorado 2018. 18-3-412.6. Failure to verify location as a sex offender. (1) A person who is required to register pursuant to article 22 of title 16, C.R.S., and who lacks a fixed residence, as defined in that article, and who fails to comply with the provisions of section 16-22-109 (3.5)(c)(I) or 1622-109 (3.5)(c)(II), C.R.S., commits the offense of failure to verify location as a sex offender. (2) (a) In a prosecution for a violation of this section, it is an affirmative defense that: (I) Uncontrollable circumstances prevented the person from complying; and (II) The person did not contribute to the creation of the circumstances in reckless disregard of the requirement to comply; and (III) The person complied as soon as the circumstances ceased to exist. (b) In order to assert the affirmative defense pursuant to this subsection (2), the defendant shall provide notice to the prosecuting attorney as soon as practicable, but not later than thirty days prior to trial, of his or her notice of intent to rely upon the affirmative defense. The notice shall include a description of the uncontrollable circumstance or circumstances and the dates that the uncontrollable circumstances began and ceased to exist in addition to the names and addresses of any witnesses the defendant plans to call to support the affirmative Colorado Revised Statutes 2019 Page 257 of 695 Uncertified Printout defense. The prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute the affirmative defense as soon as practicable after their names become known. Upon the request of the prosecution, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute sufficient evidence to support submission to the jury. (3) Failure to verify location as a sex offender is an unclassified misdemeanor punishable by a sentence of up to thirty days in the county jail; except that a third or subsequent violation of this section is an unclassified misdemeanor punishable by up to one year in the county jail. (4) Failure to verify location as a sex offender is not a sexual offense subject to the provisions of sections 16-11.7-104 and 16-11.7-105, C.R.S., and, notwithstanding any other provision of law to the contrary, offenders convicted of a violation of this section are not eligible for probation pursuant to part 2 of article 1.3 of this title. Source: L. 2012: Entire section added, (HB 12-1346), ch. 220, p. 945, § 6, effective July 1. 18-3-413. Video tape depositions - children - victims of sexual offenses. (1) When a defendant has been charged with an unlawful sexual offense, as defined in section 18-3-411 (1), or incest, as defined in section 18-6-301, and when the victim at the time of the commission of the act is a child less than fifteen years of age, the prosecution may apply to the court for an order that a deposition be taken of the victim's testimony and that the deposition be recorded and preserved on video tape. (2) The prosecution shall apply for the order in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition. (3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804 (a) of the Colorado rules of evidence. Such finding shall be based on, but not be limited to, recommendations from the child's therapist or any other person having direct contact with the child, whose recommendations are based on specific behavioral indicators exhibited by the child. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15 (d) of the Colorado rules of criminal procedure, and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending. (4) If at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the meaning of rule 804 (a) of the Colorado rules of evidence, the court may admit the video tape of the victim's deposition as former testimony under rule 804 (b)(1) of the Colorado rules of evidence. (5) Nothing in this section shall prevent the admission into evidence of any videotaped statements of children which would qualify for admission pursuant to section 13-25-129, C.R.S., or any other statute or rule of evidence. Colorado Revised Statutes 2019 Page 258 of 695 Uncertified Printout Source: L. 83: Entire section added, p. 694, § 4, effective June 15. L. 91: (5) added, p. 406, § 12, effective June 6. L. 2003: (1) amended, p. 974, § 6, effective April 17. Cross references: For provisions concerning video tape depositions of victims of child abuse that are similar to the provisions of this section, see § 18-6-401.3. 18-3-413.5. (Repealed) Use of closed circuit television - child victims of sexual offenses. Source: L. 96: Entire section added, p. 677, § 1, effective May 2. L. 2003: IP(1)(a) amended, p. 974, § 7, effective April 17. L. 2004: (2)(a)(V) amended, p. 1380, § 7, effective July 1. L. 2005: Entire section repealed, p. 427, § 8, effective April 29. 18-3-414. Payment of treatment costs for the victim or victims of a sexual offense against a child. (1) In addition to any other penalty provided by law, the court may order any person who is convicted of an unlawful sexual offense, as defined in section 18-3-411 (1), or of incest, as defined in section 18-6-301, when the victim was under the age of fifteen at the time of the commission of the offense, to meet all or any portion of the financial obligations of treatment prescribed for the victim or victims of his or her offense. (2) At the time of sentencing, the court may order that an offender described in subsection (1) of this section be put on a period of probation for the purpose of paying the treatment costs of the victim or victims. Source: L. 83: Entire section added, p. 694, § 5, effective June 15. L. 2003: Entire section amended, p. 974, § 8, effective April 17. Cross references: For provisions concerning payment of treatment costs for child abuse victims that are similar to the provisions of this section, see § 18-6-401.4. 18-3-414.5. Sexually violent predators - assessment - annual report - definitions. (1) As used in this section, unless the context otherwise requires: (a) "Sexually violent predator" means an offender: (I) Who is eighteen years of age or older as of the date the offense is committed or who is less than eighteen years of age as of the date the offense is committed but is tried as an adult pursuant to section 19-2-517 or 19-2-518, C.R.S.; (II) Who has been convicted on or after July 1, 1999, of one of the following offenses, or of an attempt, solicitation, or conspiracy to commit one of the following offenses, committed on or after July 1, 1997: (A) Sexual assault, in violation of section 18-3-402 or sexual assault in the first degree, in violation of section 18-3-402, as it existed prior to July 1, 2000; (B) Sexual assault in the second degree, in violation of section 18-3-403, as it existed prior to July 1, 2000; (C) Unlawful sexual contact, in violation of section 18-3-404 (1.5) or (2) or sexual assault in the third degree, in violation of section 18-3-404 (1.5) or (2), as it existed prior to July 1, 2000; Colorado Revised Statutes 2019 Page 259 of 695 Uncertified Printout (D) Sexual assault on a child, in violation of section 18-3-405; or (E) Sexual assault on a child by one in a position of trust, in violation of section 18-3405.3; (III) Whose victim was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (IV) Who, based upon the results of a risk assessment screening instrument developed by the division of criminal justice in consultation with and approved by the sex offender management board established pursuant to section 16-11.7-103 (1), C.R.S., is likely to subsequently commit one or more of the offenses specified in subparagraph (II) of this paragraph (a) under the circumstances described in subparagraph (III) of this paragraph (a). (b) "Convicted" includes having received a verdict of guilty by a judge or jury, having pleaded guilty or nolo contendere, or having received a deferred judgment and sentence. (2) When a defendant is convicted of one of the offenses specified in subparagraph (II) of paragraph (a) of subsection (1) of this section, the probation department shall, in coordination with the evaluator completing the mental health sex offense specific evaluation, complete the sexually violent predator risk assessment, unless the evaluation and assessment have been completed within the six months prior to the conviction or the defendant has been previously designated a sexually violent predator. Based on the results of the assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. If the defendant is found to be a sexually violent predator, the defendant shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and shall be subject to community notification pursuant to part 9 of article 13 of title 16, C.R.S. If the department of corrections receives a mittimus that indicates that the court did not make a specific finding of fact or enter an order regarding whether the defendant is a sexually violent predator, the department shall immediately notify the court and, if necessary, return the defendant to the custody of the sheriff for delivery to the court, and the court shall make a finding or enter an order regarding whether the defendant is a sexually violent predator; except that this provision shall not apply if the court was not required to enter the order when imposing the original sentence in the case. (3) When considering release on parole or discharge for an offender who was convicted of one of the offenses specified in subparagraph (II) of paragraph (a) of subsection (1) of this section, if there has been no previous court order, the parole board shall make specific findings concerning whether the offender is a sexually violent predator, based on the results of a sexually violent predator assessment. If no previous assessment has been completed, the parole board shall order the department of corrections to complete a sexually violent predator assessment. If the parole board finds that the offender is a sexually violent predator, the offender shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and shall be subject to community notification pursuant to part 9 of article 13 of title 16, C.R.S. (4) Notwithstanding section 24-1-136 (11)(a)(I), on or before January 15, 2008, and on or before January 15 each year thereafter, the judicial department and the department of corrections shall jointly submit to the division of criminal justice in the department of public safety and to the governor a report specifying the following information: (a) The number of offenders evaluated pursuant to this section in the preceding twelve months; Colorado Revised Statutes 2019 Page 260 of 695 Uncertified Printout (b) The number of sexually violent predators identified pursuant to this section in the preceding twelve months; (c) The total number of sexually violent predators in the custody of the department of corrections at the time of the report, specifying those incarcerated, those housed in community corrections, and those on parole, including the level of supervision for each sexually violent predator on parole; (d) The length of the sentence imposed on each sexually violent predator in the custody of the department of corrections at the time of the report; (e) The number of sexually violent predators discharged from parole during the preceding twelve months; (f) The total number of sexually violent predators on probation at the time of the report and the level of supervision of each sexually violent predator on probation; and (g) The number of sexually violent predators discharged from probation during the preceding twelve months. Source: L. 97: Entire section added, p. 1564, § 10, effective July 1. L. 98: Entire section amended, p. 397, § 2, effective April 21. L. 99: Entire section amended, p. 1148, § 9, effective July 1. L. 2000: (1)(a)(II)(A), (1)(a)(II)(B), and (1)(a)(II)(C) amended, p. 706, § 31, effective July 1. L. 2001: (2) amended, p. 657, § 4, effective May 30. L. 2002: (2) and (3) amended, p. 1186, § 22, effective July 1. L. 2006: IP(1)(a)(II), (1)(b), (2), and (3) amended, p. 1314, § 8, effective May 30. L. 2007: (4) added, p. 254, § 1, effective March 26. L. 2008: (2) amended, p. 214, § 1, effective March 26. L. 2017: IP(4) amended, (SB 17-241), ch. 171, p. 624, § 7, effective April 28; IP(4) amended, (SB 17-031), ch. 92, p. 282, § 10, effective August 9. Editor's note: Amendments to subsection IP(4) by SB 17-031 and SB 17-241 were harmonized. 18-3-415. Testing for persons charged with sexual offense. The court shall order any adult or juvenile who is bound over for trial for any sexual offense involving sexual penetration as defined in section 18-3-401 (6), subsequent to a preliminary hearing or after having waived the right to a preliminary hearing, or any person who is indicted for or is convicted of any such offense, to submit to a diagnostic test for a sexually transmitted infection pursuant to section 183-415.5. The results of the diagnostic test must be reported to the court or the court's designee, who shall then disclose the results to any victim of the sexual offense who requests such disclosure. Review and disclosure of diagnostic test results by the courts are closed and confidential, and any transaction records relating thereto are also closed and confidential. Disclosure of diagnostic test results must comply with the requirements of section 25-4-410 (2), C.R.S. If the person who is bound over for trial or who is indicted for or convicted of any such offense voluntarily submits to a diagnostic test for sexually transmitted infections, the fact of such person's voluntary submission is admissible in mitigation of sentence if the person is convicted of the charged offense. Source: L. 88: Entire section added, p. 728, § 1, effective July 1. L. 93: Entire section amended, p. 1731, § 16, effective July 1. L. 99: Entire section amended, p. 1003, § 10, effective Colorado Revised Statutes 2019 Page 261 of 695 Uncertified Printout May 29. L. 2000: Entire section amended, p. 451, § 1, effective April 24. L. 2016: Entire section amended, (SB 16-146), ch. 230, p. 916, § 9, effective July 1. Cross references: (1) For the provision allowing the test to be done without the knowledge and consent of the person, see § 25-4-410 (1)(b). (2) For the legislative declaration contained in the 1999 act amending this section, see section 1 of chapter 254, Session Laws of Colorado 1999. 18-3-415.5. Testing persons charged with certain sexual offenses for serious sexually transmitted infections - mandatory sentencing. (1) For purposes of this section, "sexual offense" is limited to a sexual offense that consists of sexual penetration, as defined in section 18-3-401 (6), involving sexual intercourse or anal intercourse, and "HIV" has the same meaning set forth in section 25-4-402 (4). (2) The court shall order any adult or juvenile who is bound over for trial subsequent to a preliminary hearing or after having waived the right to a preliminary hearing on a charge of committing a sexual offense to submit to a diagnostic test for the human immunodeficiency virus (HIV) and HIV infection, said diagnostic test to be ordered in conjunction with the diagnostic test ordered pursuant to section 18-3-415. The results of the diagnostic test must be reported to the district attorney. The district attorney shall keep the results of such diagnostic test strictly confidential, except for purposes of pleading and proving the mandatory sentencing provisions specified in subsection (5) of this section. (3) (a) If the person tested pursuant to subsection (2) of this section tests positive for the human immunodeficiency virus (HIV) and HIV infection, the district attorney may contact the state department of public health and environment or any county, district, or municipal public health agency to determine whether the person had been notified prior to the date of the offense for which the person has been bound over for trial that he or she tested positive for the human immunodeficiency virus (HIV) and HIV infection. (b) If the district attorney determines that the person tested pursuant to subsection (2) of this section had notice of his or her HIV infection prior to the date the offense was committed, the district attorney may file an indictment or information alleging such knowledge and seeking the mandatory sentencing provisions authorized in subsection (5) of this section. Any such allegation must be kept confidential from the jury and under seal of court. (c) The state department of public health and environment or any county, district, or municipal public health agency shall provide documentary evidence limited to whether the person tested pursuant to subsection (2) of this section had notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion. The parties may stipulate that the person identified in the documents as having notice or discussion of his or her HIV infection is the person tested pursuant to subsection (2) of this section. Such stipulation shall constitute conclusive proof that said person had notice of his or her HIV infection prior to committing the substantive offense, and the court shall sentence said person in accordance with subsection (5) of this section. (d) If the parties do not stipulate as provided in paragraph (c) of this subsection (3), an officer or employee of the state department of public health and environment or of the county, district, or municipal public health agency who has had contact with the person tested pursuant to subsection (2) of this section regarding his or her HIV infection and can identify the person Colorado Revised Statutes 2019 Page 262 of 695 Uncertified Printout shall provide, for purposes of pretrial preparation and in court proceedings, oral and documentary evidence limited to whether the person had notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion. If the state department or the county, district, or municipal public health agency no longer employs an officer or employee who has had contact with the person tested pursuant to subsection (2) of this section regarding the person's HIV infection, the state department or the county, district, or municipal public health agency shall provide: (I) The names of and current addresses, if available, for each former officer or employee who had contact with the person tested pursuant to subsection (2) of this section regarding the person's HIV infection; (II) Documentary evidence concerning whether the person tested pursuant to subsection (2) of this section was provided notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion; and (III) If none of said former officers or employees are available, any officer or employee who has knowledge regarding whether the person tested pursuant to subsection (2) of this section was provided notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion. The officer or employee shall provide such evidence for purposes of pretrial preparation and in court proceedings. (4) Nothing in this section shall be interpreted as abridging the confidentiality requirements imposed on the state department of public health and environment and the county, district, and municipal public health agencies pursuant to part 4 of article 4 of title 25, C.R.S., with regard to any person or entity other than as specified in this section. (5) (a) If a verdict of guilty is returned on the substantive offense with which the person tested pursuant to subsection (2) of this section is charged, the court shall conduct a separate sentencing hearing as soon as practicable to determine whether said person had notice of his or her HIV infection prior to the date the offense was committed, as alleged. The judge who presided at trial or before whom the guilty plea was entered or a replacement for said judge in the event he or she dies, resigns, is incapacitated, or is otherwise disqualified as provided in section 16-6-201, C.R.S, shall conduct the hearing. At the sentencing hearing, the district attorney has the burden of proving beyond a reasonable doubt that: (I) The person had notice of his or her HIV infection prior to the date the offense was committed, as alleged; and (II) The infectious agent of the HIV infection was in fact transmitted. (b) If the court determines that the person tested pursuant to subsection (2) of this section had notice of the HIV infection prior to the date the offense was committed and the infectious agent of the HIV infection was in fact transmitted, the judge shall sentence the person to a mandatory term of incarceration of at least the upper limit of the presumptive range for the level of offense committed, up to the remainder of the person's natural life, as provided in section 18-1.3-1004. Source: L. 99: Entire section added, p. 1000, § 5, effective May 29. L. 2000: (2) amended, p. 451, § 2, effective April 24. L. 2002: (5)(b) amended, p. 1514, § 195, effective October 1. L. 2010: (3)(a), (3)(c), IP(3)(d), and (4) amended, (HB 10-1422), ch. 419, p. 2073, § 33, effective August 11. L. 2016: Entire section amended, (SB 16-146), ch. 230, p. 916, § 10, effective July 1. Colorado Revised Statutes 2019 Page 263 of 695 Uncertified Printout Cross references: For the legislative declaration contained in the 2002 act amending subsection (5)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-3-416. Reports of convictions to department of education. When a person is convicted, pleads nolo contendere, or receives a deferred sentence for a violation of the provisions of this part 4 when the victim is a child and the court knows the person is a current or former employee of a school district in this state or holds a license or authorization pursuant to the provisions of article 60.5 of title 22, C.R.S., the court shall report such fact to the department of education. Source: L. 90: Entire section added, p. 1025, § 6, effective July 1. L. 2000: Entire section amended, p. 1847, § 31, effective August 2. 18-3-417. Reports of sexual assault by applicants, registrants, or licensed professionals. When the director of the division of professions and occupations or a board or commission within the division of professions and occupations in the department of regulatory agencies refers a case to the office of expedited settlement or the office of the attorney general for disciplinary action related to an alleged offense described in this part 4, the office of expedited settlement or the office of the attorney general shall forward the victim's contact information to a victim's advocate in the office of the attorney general. The victim's advocate shall make reasonable efforts to advise the victim of the right to pursue criminal action, the right to pursue civil action, the applicable statutes of limitations, and contact information for the police, sheriff, and community-based resources in the jurisdiction where the alleged offense occurred. This provision shall not prohibit additional reporting of criminal offenses by the attorney general. Source: L. 2007: Entire section added, p. 1109, § 1, effective May 23. 18-3-418. Unlawful electronic sexual communication - person in a position of trust definitions. (1) An actor commits unlawful electronic sexual communication if the actor knowingly importunes, invites, or entices through communication via a computer network or system, telephone network, or data network or by a text message or instant message a person whom the actor knows or believes to be fifteen years of age or older but less than eighteen years of age and at least four years younger than the actor, and the actor committing the offense is one in a position of trust with respect to that person, to: (a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system, telephone network, or data network or by a text message or instant message; or (b) Observe the actor's intimate parts via a computer network or system, telephone network, or data network or by a text message or instant message. (2) An actor commits unlawful electronic sexual communication if the actor knowingly communicates over a computer or computer network, telephone network, or data network or by a text message or instant message to a person the actor knows or believes to be fifteen years of age or older but less than eighteen years of age and at least four years younger than the actor and, in that communication or in any subsequent communication by computer or computer network, Colorado Revised Statutes 2019 Page 264 of 695 Uncertified Printout telephone network, or data network or by text message or instant message, describes explicit sexual conduct as defined in section 18-6-403 (2)(e) and, in connection with that description, makes a statement persuading or inviting the person to meet the actor for any purpose, and the actor committing the offense is one in a position of trust with respect to that person. (3) As used in this section, unless the context otherwise requires: (a) "Explicit sexual conduct" has the same meaning as section 18-6-403 (2)(e). (b) "In connection with" means communications that further, advance, promote, or have a continuity of purpose and may occur before, during, or after the invitation to meet. (c) "Position of trust" has the same meaning as section 18-3-401 (3.5). (4) (a) Unlawful electronic sexual communication in violation of subsection (1) of this section is a class 6 felony. (b) Unlawful electronic sexual communication in violation of subsection (2) of this section is a class 6 felony; except that unlawful electronic sexual communication is a class 5 felony if committed with the intent to meet for the purpose of engaging in sexual exploitation as defined in section 18-6-403 or sexual contact as defined in section 18-3-401. Source: L. 2019: Entire section added, (HB 19-1030), ch. 145, p. 1758, § 1, effective July 1. Editor's note: Section 5 of chapter 145 (HB 19-1030), Session Laws of Colorado 2019, provides that the act adding this section applies to offenses committed on or after July 1, 2019. PART 5 HUMAN TRAFFICKING AND SLAVERY Editor's note: This part 5 was added in 2010. It was repealed and reenacted in 2014, resulting in the addition, relocation, or elimination of sections as well as subject matter. For amendments to this part 5 prior to 2014, consult the 2013 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. Law reviews: For article, "2006 Immigration Legislation in Colorado", see 35 Colo. Law. 79 (Oct. 2006); for article, "Buying and Selling Sex in Colorado", see 41 Colo. Law. 59 (Oct. 2012); for comment, "Finding Safe Harbor: Eliminating the Gap in Colorado's Human Trafficking Laws", see 87 U. Colo. L. Rev. 257 (2016). 18-3-501. Legislative declaration. (1) The general assembly hereby finds and declares that: (a) Human trafficking constitutes a serious problem in Colorado and across the nation; (b) Human trafficking is abhorrent to a civilized society and deserving of the most diligent response from the state; (c) Human trafficking often involves minors who have been forced into involuntary servitude and commercial sexual activity; Colorado Revised Statutes 2019 Page 265 of 695 Uncertified Printout (d) Human trafficking can take many forms but generally includes the use of physical abuse, threats of harm, or fear of other consequences to prevent victims from reporting the activity; and (e) Human trafficking creates a cycle of violence, impacting victims, families, and communities. (2) The general assembly further finds and declares that: (a) Legislation is required to combat this despicable practice, to make it easier to prosecute and punish persons who engage in human trafficking, and to protect the victims; and (b) The general assembly supports a comprehensive approach to combating human trafficking, which approach includes prevention, protection, prosecution, and partnerships. (3) Now, therefore, the general assembly joins the federal government and other states around the nation in passing legislation in order to combat human trafficking and protect the victims. Source: L. 2014: Entire part R&RE, (HB 14-1273), ch. 282, p. 1143, § 1, effective July 1. 18-3-502. Definitions. As used in this part 5, unless the context otherwise requires: (1) "Adult" means a person eighteen years of age or older. (2) "Coercing" means inducing a person to act or to refrain from acting, if the inducement is accomplished by any one or more of the following means: (a) The use or threat of the use of force against, abduction of, causing of serious harm to, or physical restraint of a person; (b) The use of a plan, pattern, or statement for the purpose of causing the person to believe that failure to perform the act or failure to refrain from performing the act will result in the use of force against, abduction of, causing of serious harm to, or physical restraint of that person or another person; (c) Using or threatening to use the law or the legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed; (d) Threatening to notify law enforcement officials that a person is present in the United States in violation of federal immigration laws; (e) The destruction or taking, or a threat to destroy or take, a person's identification document or other property; (f) Controlling or threatening to control a person's access to a controlled substance, as defined in section 18-18-102 (5); (g) The use of debt bondage; or (h) The exploitation of a person's physical or mental impairment, where such impairment has a substantial adverse effect on the person's cognitive or volitional functions. (3) "Commercial sexual activity" means sexual activity for which anything of value is given to, promised to, or received by a person. (4) "Debt bondage" means: (a) Demanding commercial sexual activity as payment toward or satisfaction of a real or purported debt; or Colorado Revised Statutes 2019 Page 266 of 695 Uncertified Printout (b) Demanding labor or services as payment toward or satisfaction of a real or purported debt and failing to apply the reasonable value of the labor or services toward the liquidation of the debt; or (c) Demanding labor or services where the length of the labor or services is not limited and the nature of the labor or services is not defined. (5) "Identification document" means a real or purported passport, driver's license, immigration document, travel document, or other government-issued identification document, including a document issued by a foreign government. (6) "Maintain" means to provide sustenance or care for a minor and includes but is not limited to providing shelter, food, clothing, drugs, medical care, or communication services. (7) "Makes available" means to facilitate contact between a minor and another person. (8) "Minor" means a person less than eighteen years of age. (9) "Person" has the same meaning as set forth in section 2-4-401 (8), C.R.S. (10) "Serious harm" means bodily injury or any other harm, whether physical or nonphysical, including psychological, financial, or reputational harm, which is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person to perform or continue to perform labor or services or sexual activity to avoid incurring the harm. (11) "Sexual activity" means: (a) Sexual contact, as defined in section 18-3-401 (4); (b) Sexual intrusion, as defined in section 18-3-401 (5); (c) Sexual penetration, as defined in section 18-3-401 (6); (d) Sexual exploitation of a child, pursuant to section 18-6-403 (3)(a) and (3)(d); or (e) An obscene performance, as defined in section 18-7-101. (11.5) "Travel services" includes, but is not limited to, the following services, offered either on a wholesale or retail basis: (a) Transportation by air, sea, road, or rail; (b) Related ground transportation; (c) Hotel accommodations; or (d) Package tours. (12) "Victim" means a person who is alleged to have been, or who has been, subjected to human trafficking, as described in section 18-3-503 or section 18-3-504. Source: L. 2014: Entire part R&RE, (HB 14-1273), ch. 282, p. 1144, § 1 effective July 1. L. 2017: (11.5) added, (HB 17-1072), ch. 250, p. 1049, § 1, effective September 1. 18-3-503. Human trafficking for involuntary servitude - human trafficking of a minor for involuntary servitude. (1) A person who knowingly sells, recruits, harbors, transports, transfers, isolates, entices, provides, receives, or obtains by any means another person for the purpose of coercing the other person to perform labor or services commits human trafficking for involuntary servitude. (2) Human trafficking for involuntary servitude is a class 3 felony; except that human trafficking of a minor for involuntary servitude is a class 2 felony. Source: L. 2014: Entire part R&RE, (HB 14-1273), ch. 282, p. 1146, § 1, effective July 1. Colorado Revised Statutes 2019 Page 267 of 695 Uncertified Printout 18-3-504. Human trafficking for sexual servitude - human trafficking of a minor for sexual servitude. (1) (a) A person commits human trafficking for sexual servitude if the person knowingly sells, recruits, harbors, transports, transfers, isolates, entices, provides, receives, or obtains by any means another person for the purpose of coercing the person to engage in commercial sexual activity. (b) Human trafficking for sexual servitude is a class 3 felony. (2) (a) A person commits human trafficking of a minor for sexual servitude if the person: (I) Knowingly sells, recruits, harbors, transports, transfers, isolates, entices, provides, receives, obtains by any means, maintains, or makes available a minor for the purpose of commercial sexual activity; or (II) Knowingly advertises, offers to sell, or sells travel services that facilitate an activity prohibited pursuant to subsection (2)(a)(I) of this section. (b) Human trafficking of a minor for sexual servitude is a class 2 felony. The court shall sentence a person convicted of such a class 2 felony to the department of corrections for a term of at least the minimum of the presumptive range for a class 2 felony, as set forth in section 181.3-401. (c) In any prosecution under this subsection (2), it is not a defense that: (I) The minor consented to being sold, recruited, harbored, transported, transferred, isolated, enticed, provided, received, obtained, or maintained by the defendant for the purpose of engaging in commercial sexual activity; (II) The minor consented to participating in commercial sexual activity; (III) The defendant did not know the minor's age or reasonably believed the minor to be eighteen years of age or older; or (IV) The minor or another person represented the minor to be eighteen years of age or older. (2.5) It is an affirmative defense to a charge pursuant to subsection (2) of this section if the person being charged can demonstrate by a preponderance of the evidence that, at the time of the offense, he or she was a victim of human trafficking for sexual servitude who was forced or coerced into engaging in the human trafficking of minors for sexual servitude pursuant to subsection (2) of this section. (3) A person does not need to receive any of the proceeds of any commercial sexual activity to commit an offense described in this section. (4) Conviction for an offense described in this section does not preclude conviction for an offense described in article 6 or 7 of this title based in whole or in part on the same or related conduct, and the court shall not require the prosecution to elect at trial between such offenses. Source: L. 2014: Entire part R&RE, (HB 14-1273), ch. 282, p. 1146, § 1, effective July 1. L. 2017: (2)(b) amended, (HB 17-1172), ch. 161, p. 598, § 1, effective August 9; (2)(a) amended and (2.5) added, (HB 17-1072), ch. 250, p. 1049, § 2, effective September 1. L. 2019: (1)(a) and (2)(a) amended, (SB 19-185), ch. 147, p. 1766, § 4, effective May 6. Cross references: For the legislative declaration in SB 19-185, see section 1 of chapter 147, Session Laws of Colorado 2019. Colorado Revised Statutes 2019 Page 268 of 695 Uncertified Printout 18-3-505. Human trafficking council - created - duties - repeal. (1) (a) There is created in the department of public safety the Colorado human trafficking council, referred to within this section as the "council". The purpose of the council is to bring together leadership from community-based and statewide anti-trafficking efforts, to build and enhance collaboration among communities and counties within the state, to establish and improve comprehensive services for victims and survivors of human trafficking, to assist in the successful prosecution of human traffickers, and to help prevent human trafficking in Colorado. (b) The membership of the council must reflect, to the extent possible, representation of urban and rural areas of the state and a balance of expertise, both governmental and nongovernmental, in issues relating to human trafficking. The council must include members with expertise in child welfare and human services to address the unique needs of child victims, including those child victims who are involved in the child welfare system. The membership of the council consists of the following persons, appointed as follows: (I) Two representatives from the department of human services, each to be appointed by the executive director of the department of human services; (II) A representative of the department of law, to be appointed by the attorney general; (III) A representative of the state department of labor and employment, to be appointed by the executive director of the department of labor and employment; (IV) A representative of the division of the Colorado state patrol that addresses human smuggling and human trafficking pursuant to section 24-33.5-211, C.R.S., to be appointed by the executive director of the department of public safety; (V) A representative of a statewide association of police chiefs, to be appointed by the governor or his or her designee; (VI) A representative of a statewide association of county sheriffs, to be appointed by the governor or his or her designee; (VII) A representative of a statewide coalition for victims of sexual assault, to be appointed by the governor or his or her designee; (VIII) A representative of a statewide organization that provides services to crime victims, to be appointed by the governor or his or her designee; (IX) A representative of a statewide immigrant rights organization, to be appointed by the governor or his or her designee; (X) A representative of a statewide organization of district attorneys, to be appointed by the governor or his or her designee; (XI) A representative of a statewide organization of criminal defense attorneys, to be appointed by the governor or his or her designee; (XII) At least three but not more than five persons, each representing a regional or citywide human trafficking task force or coalition, each to be appointed by the governor or his or her designee; (XIII) A representative of a nonprofit organization that facilitates the treatment or housing of human trafficking victims, to be appointed by the governor or his or her designee; (XIV) A representative of a college or university department that conducts research on human trafficking, to be appointed by the governor or his or her designee; (XV) A representative of a statewide organization that provides legal advocacy to abused, neglected, and at-risk children, to be appointed by the governor or his or her designee; Colorado Revised Statutes 2019 Page 269 of 695 Uncertified Printout (XVI) Two representatives of organizations that provide direct services to victims of human trafficking, to be appointed by the governor or his or her designee; (XVII) One representative of a faith-based organization that assists victims of human trafficking, to be appointed by the governor or his or her designee; (XVIII) Two persons, each of whom is a director of a county department of human or social services, one from an urban county and the other from a rural county, each appointed by the governor or his or her designee; (XIX) One person who provides child welfare services for a county department of human or social services, appointed by the governor or his or her designee; (XX) Four persons who are former victims of human trafficking, two who are former victims of human trafficking for involuntary servitude and two who are former victims of human trafficking for sexual servitude, each to be appointed by the governor or his or her designee; (XXI) A representative of a child advocacy center; (XXII) One person to be appointed by the commissioner of agriculture; (XXIII) One person representing the judicial branch, to be appointed by the chief justice of the supreme court; (XXIV) A representative of a statewide coalition for victims of domestic violence, to be appointed by the governor or his or her designee; and (XXV) One person who is a representative of an organization for victims of labor trafficking or an individual who has extensive professional experience in advocating for victims of labor trafficking, to be appointed by the governor or his or her designee. (2) Each appointing authority described in subsection (1) of this section shall make his or her appointments to the council on or before August 1, 2014. The term of a council member serving as of May 20, 2019, or any council member appointed after May 20, 2019, will expire on December 31 of the year the term is set to expire. The succeeding appointee's term will commence on the January 1 following the expiration of the preceding term. The members of the council shall elect presiding officers for the council, including a chair and vice-chair, from among the council members appointed pursuant to subsection (1) of this section, which presiding officers shall serve terms of two years. Council members may reelect a presiding officer. (3) (a) Except as provided by subsection (3)(b) of this section, each council member must serve at the pleasure of his or her appointing authority for a term of four years. The appointing authority may reappoint the council member for an additional term or terms. Council members must serve without compensation but may be reimbursed for actual travel expenses incurred in the performance of their duties. (b) Each council member appointed pursuant to subsections (1)(b)(I) to (1)(b)(IV), (1)(b)(XXII), and (1)(b)(XXIII) of this section after May 20, 2019, must serve at the pleasure of his or her appointing authority for a term of three years. The appointing authority may reappoint the council member for an additional term or terms. Council members must serve without compensation but may be reimbursed for actual travel expenses incurred in the performance of their duties. (4) The council shall hold its first meeting on or before November 1, 2014, at a time and place to be designated by the executive director of the department of public safety, or by his or her designee. The council shall meet at least four times each year and shall carry out the following duties: Colorado Revised Statutes 2019 Page 270 of 695 Uncertified Printout (a) On or before January 1, 2016, make recommendations to the judiciary committees of the house of representatives and senate, or any successor committees, concerning: (I) Repealed. (II) Whether the general assembly should establish a grant program for organizations that provide services to victims of human trafficking, including consideration of how such a grant program may be funded; and (III) Whether the general assembly should enact legislation concerning: (A) The prosecution of or granting of immunity to a child victim of commercial sexual exploitation for offenses related to that exploitation; (B) The creation of other legal protections, including statutory defenses for child victims of commercial sexual exploitation for offenses related to that exploitation and the creation of any necessary changes to title 19, C.R.S., to implement those legal protections or defenses; or (C) Standards, guidelines, or mandates regarding the appropriate assessment, placement, and treatment of child victims of commercial sexual exploitation through title 19, C.R.S., including but not limited to the use of locked placement; (a.5) The recommendations submitted pursuant to paragraph (a) of this subsection (4) must include a full explanation of each recommendation with a discussion of the benefits of each recommendation, any problems that might be encountered, and how those problems, if any, might be mitigated. (b) On or before January 1, 2017, and on or before January 17 of each year thereafter, submit a report to the judiciary committees of the house of representatives and senate, or any successor committees, summarizing the activities of the council during the preceding year; (c) Consider and make, as it deems necessary, recommendations to the judiciary committees of the house of representatives and senate, or to any successor committees, concerning any statutory changes that the council deems necessary to facilitate the prosecution and punishment of persons who engage in, and to protect the victims of, human trafficking; (d) Develop an implementation plan for a public awareness campaign to educate the public about human trafficking and place victims services contact information in places where victims of human trafficking are likely to see it; (e) Develop training standards and curricula for organizations that provide assistance to victims of human trafficking, for persons who work in or who frequent places where human trafficking victims are likely to appear, and for law enforcement agencies; (f) Identify best practices for the prevention of all forms of human trafficking, including but not limited to child sex trafficking and involuntary servitude trafficking; (g) Collect data relating to the prevalence of, and the efforts of law enforcement to combat, human trafficking in Colorado. The council shall annually report the data to the judiciary committees of the house of representatives and senate, or to any successor committees. (h) Research and pursue funding opportunities for the council; (i) On or after January 1, 2019, perform a post-enactment review of section 18-7-201.3 and report its findings to the judiciary committees of the senate and house of representatives, or any successor committees. (5) The department of public safety is authorized to accept and expend gifts, grants, and donations for the purpose of assisting the council in fulfilling its duties pursuant to this section. (6) This section is repealed, effective September 1, 2024. Before repeal, the department of regulatory agencies shall review the council pursuant to section 2-3-1203. Colorado Revised Statutes 2019 Page 271 of 695 Uncertified Printout Source: L. 2014: Entire part R&RE, (HB 14-1273), ch. 282, p. 1147, § 1, effective July 1. L. 2015: (4)(i) added, (SB 15-030), ch. 107, p. 312, § 2, effective April 16; (4)(a) amended and (4)(a.5) added, (HB 15-1019), ch. 237, p. 879, § 1, effective August 5. L. 2016: (1)(b)(XXI), (1)(b)(XXII), and (3) amended and (1)(b)(XXIII) added, (HB 16-1033), ch. 64, p. 166, § 1, effective August 10. L. 2018: IP(1)(b), (1)(b)(XVIII), and (1)(b)(XIX) amended, (SB 18-092), ch. 38, p. 406, § 27, effective August 8. L. 2019: (1)(b)(XX), (1)(b)(XXII), (2), (3), (4)(f), and (6) amended, (1)(b)(XXIV) and (1)(b)(XXV) added, and (4)(a)(I) repealed, (SB 19-149), ch. 233, p. 2324, § 1, effective May 20. Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. PART 6 STALKING Editor's note: This part 6 was added with relocations in 2010. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. 18-3-601. Legislative declaration. (1) The general assembly hereby finds and declares that: (a) Stalking is a serious problem in this state and nationwide; (b) Although stalking often involves persons who have had an intimate relationship with one another, it can also involve persons who have little or no past relationship; (c) A stalker will often maintain strong, unshakable, and irrational emotional feelings for his or her victim and may likewise believe that the victim either returns these feelings of affection or will do so if the stalker is persistent enough. Further, the stalker often maintains this belief, despite a trivial or nonexistent basis for it and despite rejection, lack of reciprocation, efforts to restrict or avoid the stalker, and other facts that conflict with this belief. (d) A stalker may also develop jealousy and animosity for persons who are in relationships with the victim, including family members, employers and co-workers, and friends, perceiving them as obstacles or as threats to the stalker's own "relationship" with the victim; (e) Because stalking involves highly inappropriate intensity, persistence, and possessiveness, it entails great unpredictability and creates great stress and fear for the victim; (f) Stalking involves severe intrusions on the victim's personal privacy and autonomy, with an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim, even in the absence of express threats of physical harm. (2) The general assembly hereby recognizes the seriousness posed by stalking and adopts the provisions of this part 6 with the goal of encouraging and authorizing effective intervention before stalking can escalate into behavior that has even more serious consequences. Source: L. 2010: Entire part added with relocations, (HB 10-1233), ch. 88, p. 293, § 1, effective August 11. Colorado Revised Statutes 2019 Page 272 of 695 Uncertified Printout Editor's note: This section is similar to former § 18-9-111 (4)(a) as it existed prior to 2010. 18-3-602. Stalking - penalty - definitions - Vonnie's law. (1) A person commits stalking if directly, or indirectly through another person, the person knowingly: (a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship; or (b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or (c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress. (2) For the purposes of this part 6: (a) Conduct "in connection with" a credible threat means acts that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat. (b) "Credible threat" means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. The threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear. (c) "Immediate family" includes the person's spouse and the person's parent, grandparent, sibling, or child. (d) "Repeated" or "repeatedly" means on more than one occasion. (3) A person who commits stalking: (a) Commits a class 5 felony for a first offense except as otherwise provided in subsection (5) of this section; or (b) Commits a class 4 felony for a second or subsequent offense, if the offense occurs within seven years after the date of a prior offense for which the person was convicted. (4) Stalking is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). (5) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against the person, prohibiting the behavior described in this section, the person commits a class 4 felony. Colorado Revised Statutes 2019 Page 273 of 695 Uncertified Printout (6) Nothing in this section shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the judicial district of the court where the proceedings are to be heard and the district attorney for the judicial district in which the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions. (7) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating the report. (8) (a) When a person is arrested for an alleged violation of this section, the fixing of bail for the crime of stalking shall be done in accordance with section 16-4-105 (4), C.R.S., and a protection order shall issue in accordance with section 18-1-1001 (5). (b) This subsection (8) shall be known and may be cited as "Vonnie's law". (9) When a violation under this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentences imposed pursuant to this section and pursuant to section 186-803.5 or any sentence imposed in a contempt proceeding for violation of the court order shall be served consecutively and not concurrently. Source: L. 2010: Entire part added with relocations, (HB 10-1233), ch. 88, p. 294, § 1, effective August 11. L. 2012: (5) amended and (8) and (9) added, (HB 12-1114), ch. 176, pp. 632, 631, § § 4, 1, effective May 11. L. 2014: (8)(a) amended, (SB 14-212), ch. 397, p. 2000, § 8, effective July 1. Editor's note: This section is similar to former § 18-9-111 (4)(b), (4)(c), (5), and (6), as they existed prior to 2010. ARTICLE 3.5 Offenses Against Pregnant Women Editor's note: This article was added in 2003 and was not amended prior to 2013. It was repealed and reenacted in 2013, resulting in the addition, relocation, or elimination of sections as well as subject matter. For the text of this article prior to 2013, consult the 2012 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. Cross references: For the legislative declaration in the 2013 act amending this article, see section 1 of chapter 372, Session Laws of Colorado 2013. 18-3.5-101. Definitions. As used in this article, unless the context otherwise requires: (1) "Consent" has the same meaning as provided in section 18-1-505. (2) "Intentionally" or "with intent" has the same meaning as provided in section 18-1501. (3) "Knowingly" has the same meaning as provided in section 18-1-501. Colorado Revised Statutes 2019 Page 274 of 695 Uncertified Printout (4) "Pregnancy", for purposes of this article only and notwithstanding any other definition or use to the contrary, means the presence of an implanted human embryo or fetus within the uterus of a woman. (5) "Recklessly" shall have the same meaning as provided in section 18-1-501. (6) "Unlawful termination of pregnancy" means the termination of a pregnancy by any means other than birth or a medical procedure, instrument, agent, or drug, for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained, or for which the pregnant woman's consent is implied by law. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2186, § 2, effective July 1. 18-3.5-102. Exclusions. (1) Nothing in this article shall permit the prosecution of a person for any act of providing medical, osteopathic, surgical, mental health, dental, nursing, optometric, healing, wellness, or pharmaceutical care; furnishing inpatient or outpatient hospital or clinic services; furnishing telemedicine services; or furnishing any service related to assisted reproduction or genetic testing. (2) Nothing in this article shall permit the prosecution of a woman for any act or any failure to act with regard to her own pregnancy. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2186, § 2, effective July 1. 18-3.5-103. Unlawful termination of pregnancy in the first degree. (1) A person commits the offense of unlawful termination of pregnancy in the first degree if, with the intent to terminate unlawfully the pregnancy of a woman, the person unlawfully terminates the woman's pregnancy. (2) Unlawful termination of pregnancy in the first degree is a class 3 felony but is a class 2 felony if the woman dies as a result of the unlawful termination of a pregnancy. (3) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2187, § 2, effective July 1. 18-3.5-104. Unlawful termination of pregnancy in the second degree. (1) A person commits the offense of unlawful termination of pregnancy in the second degree if the person knowingly causes the unlawful termination of the pregnancy of a woman. (2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), unlawful termination of pregnancy in the second degree is a class 4 felony. (b) If unlawful termination of pregnancy in the second degree is committed under circumstances where the act causing the unlawful termination of pregnancy is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the unlawful termination of pregnancy sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and Colorado Revised Statutes 2019 Page 275 of 695 Uncertified Printout the unlawful termination of pregnancy sufficient for the voice of reason and humanity to be heard, it is a class 5 felony. (3) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2187, § 2, effective July 1. 18-3.5-105. Unlawful termination of pregnancy in the third degree. (1) A person commits the offense of unlawful termination of pregnancy in the third degree if, under circumstances manifesting extreme indifference to the value of human life, the person knowingly engages in conduct that creates a grave risk of death to another person, and thereby causes the unlawful termination of the pregnancy of a woman. (2) Unlawful termination of pregnancy in the third degree is a class 5 felony. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2187, § 2, effective July 1. 18-3.5-106. Unlawful termination of pregnancy in the fourth degree. (1) A person commits the offense of unlawful termination of pregnancy in the fourth degree if the person recklessly causes the unlawful termination of the pregnancy of a woman at such time as the person knew or reasonably should have known that the woman was pregnant. (2) (a) Unlawful termination of pregnancy in the fourth degree is a class 6 felony. (b) Unlawful termination of pregnancy in the fourth degree by any person is a class 5 felony if the pregnancy of the woman, other than a participant in the crime, is unlawfully terminated during the commission or attempted commission of or flight from the commission or attempted commission of murder, assault in the first or second degree, robbery, arson, burglary, escape, kidnapping in the first degree, sexual assault, sexual assault in the first or second degree as such offenses existed prior to July 1, 2000, or class 3 felony sexual assault on a child, but only to the extent that the person is a principal in the criminal act or attempted criminal act, as described in section 18-1-603. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2188, § 2, effective July 1. 18-3.5-107. Vehicular unlawful termination of pregnancy. (1) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of the unlawful termination of the pregnancy of a woman, such person commits vehicular unlawful termination of pregnancy. (2) Vehicular unlawful termination of pregnancy in violation of subsection (1) of this section is a class 5 felony. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2188, § 2, effective July 1. Colorado Revised Statutes 2019 Page 276 of 695 Uncertified Printout 18-3.5-108. Aggravated vehicular unlawful termination of pregnancy - definitions. (1) (a) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of the unlawful termination of the pregnancy of a woman, such person commits aggravated vehicular unlawful termination of pregnancy. This is a strict liability crime. (b) As used in this subsection (1): (I) "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 affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. (II) "One or more drugs" means all substances defined as a drug in section 12-280-103 (16), and all controlled substances defined in section 18-18-102 (5), and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412. (c) The fact that a 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 shall not constitute a defense against any charge of violating this subsection (1). (2) Aggravated vehicular unlawful termination of pregnancy, in violation of paragraph (a) of subsection (1) of this section, is a class 4 felony. (3) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, shall give rise to the following presumptions: (a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol. (b) If there was at such time in excess of 0.05 grams but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 grams but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol. (c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol. (4) The limitations of subsection (3) of this section 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. (5) (a) If a law enforcement officer has probable cause to believe that a person was driving a motor vehicle in violation of paragraph (a) of subsection (1) of this section, the person, upon the request of the law enforcement officer, shall take and complete, and cooperate in completing, any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcohol or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to take, complete, or cooperate in completing any test or tests, the test or tests may be performed at Colorado Revised Statutes 2019 Page 277 of 695 Uncertified Printout the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If a person refuses to take, complete, or cooperate in taking or completing any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S. (b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his or her blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. (c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of paragraph (a) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of the testing. Strict compliance with the rules and regulations 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 the test results. 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 the rules and regulations if the certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit. (d) No person except a physician, a registered nurse, an emergency medical service provider certified or licensed under section 25-3.5-203 who is authorized within his or her scope of practice to draw blood, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse may withdraw blood for the purpose of determining the alcohol or drug content in the blood. In any trial for a violation of subsection (1)(a) of this section, testimony of a law enforcement officer that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was authorized to withdraw blood specimens is sufficient evidence that the person was so authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimens obtained. Civil liability does not attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which the specimens are obtained pursuant to this subsection (5) as a result of the act of obtaining the specimens from any person if the specimens were obtained according to the rules prescribed by the state board of health; except that this subsection (5) does not relieve any such person from liability for negligence in obtaining any specimen sample. Colorado Revised Statutes 2019 Page 278 of 695 Uncertified Printout (e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his or her blood or any drug content of his or her system as provided in this subsection (5). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva that was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by the provider that show the alcohol or drug content of the person's blood or any drug content within his or her system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his or her blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Any information obtained shall be made a part of the law enforcement officer's accident report. (f) If a person refuses to take, complete, or cooperate in completing any test or tests as provided in this subsection (5) and the person subsequently stands trial for a violation of subsection (1)(a) of this section, the refusal to take, complete, or cooperate with completing any test or tests shall be admissible into evidence at the trial, and the person may not claim the privilege against self-incrimination with regard to the admission of his or her refusal to take, complete, or cooperate with completing any test or tests. (g) Notwithstanding any provision of section 42-4-1301.1, C.R.S., concerning requirements that relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S. (6) 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 his or her alcohol or drug level. This subsection (6) 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 subsection (6) shall preclude a defendant from offering evidence concerning the accuracy of testing devices. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2188, § 2, effective July 1. L. 2018: (5)(d) and (5)(f) amended, (HB 18-1375), ch. 274, p. 1702, § 26, effective May 29. L. 2019: (5)(d) amended, (SB 19-242), ch. 396, p. 3527, § 12, effective May 31; (1)(b)(II) amended, (HB 19-1172), ch. 136, p. 1675, § 93, effective October 1. Editor's note: Section 29(2) of chapter 396 (SB 19-242), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 31, 2019. 18-3.5-109. Careless driving resulting in unlawful termination of pregnancy penalty. (1) A person who drives a motor vehicle, bicycle, electrical assisted bicycle, electric scooter, or low-power scooter in a careless and imprudent manner, without due regard for the Colorado Revised Statutes 2019 Page 279 of 695 Uncertified Printout width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances and causes the unlawful termination of a pregnancy of a woman is guilty of careless driving, resulting in unlawful termination of pregnancy. A person convicted of careless driving of a bicycle, electrical assisted bicycle, or electric scooter resulting in the unlawful termination of pregnancy is not subject to section 42-2-127. (2) Any person who violates any provision of this section commits a class 1 misdemeanor traffic offense. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2192, § 2, effective July 1. L. 2019: (1) amended, (HB 19-1221), ch. 271, p. 2566, § 18, effective May 23. Editor's note: Section 19 of chapter 271 (HB 19-1221), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 23, 2019. 18-3.5-110. Construction. Nothing in this article shall be construed to confer the status of "person" upon a human embryo, fetus, or unborn child at any stage of development prior to live birth. Source: L. 2013: Entire article R&RE, (HB 13-1154), ch. 372, p. 2192, § 2, effective July 1. ARTICLE 4 Offenses Against Property Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading. PART 1 ARSON Cross references: For the "Fraudulent Claims and Arson Information Reporting Act", see part 10 of article 4 of title 10. 18-4-101. Definitions. As used in this article, unless the context otherwise requires: (1) "Building" means a structure which has the capacity to contain, and is designed for the shelter of, man, animals, or property, and includes a ship, trailer, sleeping car, airplane, or other vehicle or place adapted for overnight accommodations of persons or animals, or for carrying on of business therein, whether or not a person or animal is actually present. (2) "Occupied structure" means any area, place, facility, or enclosure which, for particular purposes, may be used by persons or animals upon occasion, whether or not included within the definition of "building" in subsection (1) of this section, and which is in fact occupied by a person or animal, and known by the defendant to be thus occupied at the time he acts in violation of one or more of sections 18-4-102 to 18-4-105. Colorado Revised Statutes 2019 Page 280 of 695 Uncertified Printout (3) Property is that of "another" if anyone other than the defendant has a possessory or proprietary interest therein. (4) If a building is divided into units for separate occupancy, any unit not occupied by the defendant is a "building of another". Source: L. 71: R&RE, p. 425, § 1. C.R.S. 1963: § 40-4-101. 18-4-102. First degree arson. (1) A person who knowingly sets fire to, burns, causes to be burned, or by the use of any explosive damages or destroys, or causes to be damaged or destroyed, any building or occupied structure of another without his consent commits first degree arson. (2) First degree arson is a class 3 felony. (3) A defendant convicted of committing first degree arson by the use of any explosive shall be sentenced by the court in accordance with the provisions of section 18-1.3-406. Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-102. L. 77: (1) amended, p. 962, § 19, effective July 1. L. 86: (3) added, p. 777, § 8, effective July 1. L. 2002: (3) amended, p. 1515, § 196, effective October 1. Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-4-103. Second degree arson. (1) A person who knowingly sets fire to, burns, causes to be burned, or by the use of any explosive damages or destroys, or causes to be damaged or destroyed, any property of another without his consent, other than a building or occupied structure, commits second degree arson. (2) Second degree arson is a class 4 felony, if the damage is one hundred dollars or more. (3) Second degree arson is a class 2 misdemeanor, if the damage is less than one hundred dollars. Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-103. L. 77: (1) amended, p. 962, § 20, effective July 1. 18-4-104. Third degree arson. (1) A person who, by means of fire or explosives, intentionally damages any property with intent to defraud commits third degree arson. (2) Third degree arson is a class 4 felony. Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-104. 18-4-105. Fourth degree arson. (1) A person who knowingly or recklessly starts or maintains a fire or causes an explosion, on his own property or that of another, and by so doing places another in danger of death or serious bodily injury or places any building or occupied structure of another in danger of damage commits fourth degree arson. (2) Fourth degree arson is a class 4 felony if a person is thus endangered. Colorado Revised Statutes 2019 Page 281 of 695 Uncertified Printout (3) Fourth degree arson is a class 2 misdemeanor if only property is thus endangered and the value of the property is one hundred dollars or more. (4) Fourth degree arson is a class 3 misdemeanor if only property is thus endangered and the value of the property is less than one hundred dollars. (5) It shall not be an arson offense pursuant to this section if: (a) A person starts and maintains a fire as a controlled agricultural burn in a reasonably cautious manner; and (b) No person suffers any of the following as a result of the fire: (I) Bodily injury; (II) Serious bodily injury; or (III) Death. (6) For purposes of this section, "controlled agricultural burn" means a technique used in farming to clear the land of any existing crop residue, kill weeds and weed seeds, or reduce fuel buildup and decrease the likelihood of a future fire. Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-105. L. 77: (1) amended, p. 962, § 21, effective July 1. L. 2010: (5) and (6) added, (HB 10-1123), ch. 121, p. 404, § 1, effective August 11. PART 2 BURGLARY AND RELATED OFFENSES 18-4-201. Definitions. As used in this article, unless the context otherwise requires: (1) "Premises" means any real estate and all improvements erected thereon. (2) "Separate building" means each unit of a building consisting of two or more units separately secured or occupied. (3) A person "enters unlawfully" or "remains unlawfully" in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him or her by the owner of the premises or some other authorized person. A license or privilege to enter or remain in a building that is only partly open to the public is not a license or privilege to enter or remain in that part of the building that is not open to the public. Except as is otherwise provided in section 33-6-116 (1), C.R.S., a person who enters or remains upon unimproved and apparently unused land that is neither fenced nor otherwise enclosed in a manner designed to exclude intruders does so with license and privilege unless notice against trespass is personally communicated to the person by the owner of the land or some other authorized person or unless notice forbidding entry is given by posting with signs at intervals of not more than four hundred forty yards or, if there is a readily identifiable entrance to the land, by posting with signs at such entrance to the private land or the forbidden part of the land. In the case of a designated access road not otherwise posted, said notice shall be posted at the entrance to private land and shall be substantially as follows: "ENTERING PRIVATE PROPERTY REMAIN ON ROADS". Colorado Revised Statutes 2019 Page 282 of 695 Uncertified Printout Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-201. L. 75: (3) amended, p. 634, § 1, effective July 1. L. 84: (3) amended, p. 922, § 9, effective January 1, 1985. L. 99: (3) amended, p. 326, § 1, effective July 1. Cross references: For the definition of the word "premises" as used in criminal trespass, see § 18-4-504.5. 18-4-202. First degree burglary. (1) A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, the person or another participant is armed with explosives, or the person or another participant uses a deadly weapon or possesses and threatens the use of a deadly weapon. (2) First degree burglary is a class 3 felony. (3) If under the circumstances stated in subsection (1) of this section the property involved is a controlled substance, as defined in section 18-18-102 (5), within a pharmacy or other place having lawful possession thereof, such person commits first degree burglary of controlled substances, which is a class 2 felony. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-202. L. 73: p. 572, § 10. L. 81: (3) amended, p. 737, § 20, effective July 1. L. 99: (1) amended, p. 327, § 2, effective July 1. L. 2012: (3) amended, (HB 12-1311), ch. 281, p. 1618, § 40, effective July 1. L. 2013: (1) amended, (SB 13-229), ch. 272, p. 1429, § 8, effective July 1. 18-4-202.1. (Repealed) Habitual burglary offenders - punishment - legislative declaration. Source: L. 81: Entire section added, p. 985, § 1, effective July 1. L. 82: (1) and (2) amended, p. 253, § 10, effective May 3. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1. Editor's note: This section was relocated to § 18-1.3-804 in 2002. Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002. 18-4-203. Second degree burglary. (1) A person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property. (2) Second degree burglary is a class 4 felony, but it is a class 3 felony if: (a) It is a burglary of a dwelling; Colorado Revised Statutes 2019 Page 283 of 695 Uncertified Printout (b) The objective of the burglary is the theft of a controlled substance, as defined in section 18-18-102 (5), lawfully kept within any building or occupied structure; or (c) The objective of the burglary is the theft of one or more firearms or ammunition. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-203. L. 81: (2) amended, p. 974, § 9, effective July 1; (2)(b) amended, p. 2031, § 44, effective July 14. L. 99: (1) amended, p. 327, § 3, effective July 1. L. 2012: (2)(b) amended, (HB 12-1311), ch. 281, p. 1618, § 41, effective July 1. L. 2018: (2)(a) and (2)(b) amended and (2)(c) added, (HB 18-1077), ch. 376, p. 2280, § 1, effective June 6. 18-4-204. Third degree burglary. (1) A person commits third degree burglary if with intent to commit a crime he enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated. (2) Third degree burglary is a class 5 felony, but it is a class 4 felony if it is a burglary, the objective of which is the theft of a controlled substance, as defined in section 18-18-102 (5), lawfully kept in or upon the property burglarized. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-204. L. 81: (2) amended, p. 974, § 10, effective July 1; (2) amended, p. 2031, § 45, effective July 14. L. 2012: (2) amended, (HB 12-1311), ch. 281, p. 1619, § 42, effective July 1. 18-4-205. Possession of burglary tools. (1) A person commits possession of burglary tools if he possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking, and intends to use the thing possessed, or knows that some person intends to use the thing possessed, in the commission of such an offense. (2) Possession of burglary tools is a class 5 felony. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-205. PART 3 ROBBERY 18-4-301. Robbery. (1) A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery. (2) Robbery is a class 4 felony. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-301. L. 77: (1) amended, p. 963, § 22, effective July 1. 18-4-302. Aggravated robbery. (1) A person who commits robbery is guilty of aggravated robbery if during the act of robbery or immediate flight therefrom: Colorado Revised Statutes 2019 Page 284 of 695 Uncertified Printout (a) He is armed with a deadly weapon with intent, if resisted, to kill, maim, or wound the person robbed or any other person; or (b) He knowingly wounds or strikes the person robbed or any other person with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury; or (c) He has present a confederate, aiding or abetting the perpetration of the robbery, armed with a deadly weapon, with the intent, either on the part of the defendant or confederate, if resistance is offered, to kill, maim, or wound the person robbed or any other person, or by the use of force, threats, or intimidation puts the person robbed or any other person in reasonable fear of death or bodily injury; or (d) He possesses any article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or represents verbally or otherwise that he is then and there so armed. (2) Repealed. (3) Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). (4) If a defendant is convicted of aggravated robbery pursuant to paragraph (b) of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406. Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-302. L. 77: (1)(b) amended, p. 963, § 23, effective July 1. L. 86: (4) added, p. 777, § 9, effective July 1. L. 89: (1)(d) added and (2) repealed, pp. 831, 861, §§ 43, 156, effective July 1. L. 90: (1)(c) amended, p. 925, § 9, effective March 27. L. 2002: (4) amended, p. 1515, § 197, effective October 1. L. 2004: (3) amended, p. 636, § 8, effective August 4. Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002. 18-4-303. Aggravated robbery of controlled substances. (1) A person who takes any controlled substance, as defined in section 18-18-102 (5), from any pharmacy or other place having lawful possession thereof or from any pharmacist or other person having lawful possession thereof under the aggravating circumstances defined in section 18-4-302 is guilty of aggravated robbery of controlled substances. (2) Aggravated robbery of controlled substances is a class 2 felony. Source: L. 73: p. 572, § 11. C.R.S. 1963: § 40-4-303. L. 81: (1) and (2) amended, pp. 737, 974, §§ 21, 11, effective July 1. L. 2012: (1) amended, (HB 12-1311), ch. 281, p. 1619, § 43, effective July 1. 18-4-304. Robbery of the elderly or disabled - legislative declaration. (Repealed) Source: L. 79: Entire section added, p. 734, § 2, effective July 1. L. 80: (4) amended, p. 794, § 48, May 1. L. 93: Entire section repealed, p. 1742, § 42, effective July 1. Colorado Revised Statutes 2019 Page 285 of 695 Uncertified Printout 18-4-305. Use of photographs, video tapes, or films of property. Pursuant to section 13-25-130, C.R.S., photographs, video tapes, or films of property over which a person is alleged to have exerted unauthorized control or otherwise to have obtained unlawfully are competent evidence if the photographs, video tapes, or films are admissible into evidence under the rules of law governing the admissibility of photographs, video tapes, or films into evidence. Source: L. 85: Entire section added, p. 577, § 2, effective July 1. Cross references: For similar provisions concerning the use of photographs, video tapes, or films of property with respect to the crimes of theft and trespass, tampering, and criminal mischief, see §§ 18-4-415 and 18-4-514. PART 4 THEFT Cross references: For civil damages for loss caused by theft from a mercantile establishment, see § 13-21-107.5. 18-4-401. Theft. (1) A person commits theft when he or she knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception; or receives, loans money by pawn or pledge on, or disposes of anything of value or belonging to another that he or she knows or believes to have been stolen, and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value; (b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; (c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use or benefit; (d) Demands any consideration to which he or she is not legally entitled as a condition of restoring the thing of value to the other person; or (e) Knowingly retains the thing of value more than seventy-two hours after the agreedupon time of return in any lease or hire agreement. (1.5) For the purposes of this section, a thing of value is that of "another" if anyone other than the defendant has a possessory or proprietary interest therein. (2) Theft is: (a) (Deleted by amendment, L. 2007, p. 1690, § 3, effective July 1, 2007.) (b) A class 1 petty offense if the value of the thing involved is less than fifty dollars; (b.5) Repealed. (c) A class 3 misdemeanor if the value of the thing involved is fifty dollars or more but less than three hundred dollars; (d) A class 2 misdemeanor if the value of the thing involved is three hundred dollars or more but less than seven hundred fifty dollars; (e) A class 1 misdemeanor if the value of the thing involved is seven hundred fifty dollars or more but less than two thousand dollars; Colorado Revised Statutes 2019 Page 286 of 695 Uncertified Printout (f) A class 6 felony if the value of the thing involved is two thousand dollars or more but less than five thousand dollars; (g) A class 5 felony if the value of the thing involved is five thousand dollars or more but less than twenty thousand dollars; (h) A class 4 felony if the value of the thing involved is twenty thousand dollars or more but less than one hundred thousand dollars; (i) A class 3 felony if the value of the thing involved is one hundred thousand dollars or more but less than one million dollars; and (j) A class 2 felony if the value of the thing involved is one million dollars or more. (3) and (3.1) Repealed. (4) (a) When a person commits theft twice or more within a period of six months, two or more of the thefts may be aggregated and charged in a single count, in which event the thefts so aggregated and charged shall constitute a single offense, the penalty for which shall be based on the aggregate value of the things involved, pursuant to subsection (2) of this section. (b) When a person commits theft twice or more against the same person pursuant to one scheme or course of conduct, the thefts may be aggregated and charged in a single count, in which event they shall constitute a single offense, the penalty for which shall be based on the aggregate value of the things involved, pursuant to subsection (2) of this section. (5) Theft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken. (6) In every indictment or information charging a violation of this section, it shall be sufficient to allege that, on or about a day certain, the defendant committed the crime of theft by unlawfully taking a thing or things of value of a person or persons named in the indictment or information. The prosecuting attorney shall at the request of the defendant provide a bill of particulars. (7) Repealed. (8) A municipality shall have concurrent power to prohibit theft, by ordinance, where the value of the thing involved is less than one thousand dollars. (9) (a) If a person is convicted of or pleads guilty or nolo contendere to theft by deception and the underlying factual basis of the case involves the mortgage lending process, a minimum fine of the amount of pecuniary harm resulting from the theft shall be mandatory, in addition to any other penalty the court may impose. (b) A court shall not accept a plea of guilty or nolo contendere to another offense from a person charged with a violation of this section that involves the mortgage lending process unless the plea agreement contains an order of restitution in accordance with part 6 of article 1.3 of this title that compensates the victim for any costs to the victim caused by the offense. (c) The district attorneys and the attorney general have concurrent jurisdiction to investigate and prosecute a violation of this section that involves making false statements or filing or facilitating the use of a document known to contain a false statement or material omission relied upon by another person in the mortgage lending process. (d) Documents involved in the mortgage lending process include, but are not limited to, uniform residential loan applications or other loan applications; appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as W-2 forms, verifications of income and employment, bank statements, tax returns, and payroll stubs; and any required disclosures. Colorado Revised Statutes 2019 Page 287 of 695 Uncertified Printout (e) For the purposes of this subsection (9): (I) "Mortgage lending process" means the process through which a person seeks or obtains a residential mortgage loan, including, without limitation, solicitation, application, or origination; negotiation of terms; third-party provider services; underwriting; signing and closing; funding of the loan; and perfecting and releasing the mortgage. (II) "Residential mortgage loan" means a loan or agreement to extend credit, made to a person and secured by a mortgage or lien on residential real property, including, but not limited to, the refinancing or renewal of a loan secured by residential real property. (III) "Residential real property" means real property used as a residence and containing no more than four families housed separately. Source: L. 71: R&RE, p. 428, § 1. C.R.S. 1963: § 40-4-401. L. 75: IP(1), (2), and (3) amended and (3.1) added, pp. 618, 619, §§ 9, 10, effective July 1. L. 77: (4) amended, p. 972, § 1, effective May 27; (2) R&RE, (3) and (3.1) repealed, and (4) amended, pp. 973, 976, §§ 1, 2, 9, effective July 1. L. 81: (7) added, p. 987, § 1, effective July 1. L. 83: (8) added, p. 665, § 7, effective July 1. L. 84: (7)(a) and (7)(b) amended, p. 541, § 1, effective April 12; (2)(b), (2)(c), (4), (7)(a), and (8) amended, p. 536, §§5, 6, effective July 1, 1985. L. 85: (7)(a) amended, p. 1360, § 13, effective June 28. L. 87: (2)(b), (2)(c), and (4) amended, p. 352, § 3, effective March 16; (1.5) added and (7)(a) amended, pp. 615, 606, §§5, 13, effective July 1. L. 92: (2), (4), and (7)(a) amended, p. 433, § 1, effective April 10; (8) amended, p. 439, § 1, effective June 1. L. 93: (7) repealed, p. 1742, § 42, effective July 1. L. 97: (2)(b) and (2)(c) amended, p. 1548, § 23, effective July 1. L. 98: (4) and (8) amended, p. 1437, § 10, effective July 1; (4) amended, p. 793, § 1, effective July 1. L. 2006: (9) added, p. 1327, § 2, effective July 1. L. 2007: (2), (4), and (8) amended, p. 1690, § 3, effective July 1. L. 2009: (4) amended, (HB 09-1334), ch. 244, p. 1099, § 2, effective May 11. L. 2013: (1), (2)(b), (2)(c), (2)(d), and (4) amended, (2)(b.5) repealed, and (2)(e), (2)(f), (2)(g), (2)(h), (2)(i), and (2)(j) added, (HB 13-1160), ch. 373, p. 2195, § 1, effective June 5. Cross references: (1) For theft of sound recordings, see part 6 of article 4 of title 18; for charges for bad checks received as a restitution payment ordered as a condition of a plea agreement, see § 16-7-304; for charges for bad checks received as a restitution payment ordered as a condition of a deferred prosecution, see § 16-7-404. (2) For the legislative declaration contained in the 2006 act enacting subsection (9), see section 1 of chapter 290, Session Laws of Colorado 2006. For the legislative declaration contained in the 2007 act amending subsections (2), (4), and (8), see section 1 of chapter 384, Session Laws of Colorado 2007. For the legislative declaration contained in the 2009 act amending subsection (4), see section 1 of chapter 244, Session Laws of Colorado 2009. 18-4-402. Theft of rental property. (Repealed) Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-402. L. 75: (2) and (3) amended and (4) added, p. 619, § 11, effective July 21. L. 77: (1)(b) amended, p. 963, § 24, effective July 1; (2) and (4) amended and (5) added, p. 973, § 3, effective July 1. L. 84: (3) and (4) amended, p. 537, § 7, effective July 1. L. 87: (6) added, p. 615, § 6, effective July 1. L. 89: (4) and (6) amended, p. 833, § 45, effective July 1. L. 92: (2) to (6) amended, p. 434, § 2, effective April 10. Colorado Revised Statutes 2019 Page 288 of 695 Uncertified Printout L. 98: (3), (4), and (6) amended, p. 1437, § 12, effective July 1; (3), (4), and (6) amended, p. 795, § 3, effective July 1. L. 2007: (2) to (6) amended and (3.5) added, p. 1691, § 4, effective July 1. L. 2009: (6) amended, (HB 09-1334), ch. 244, p. 1100, § 3, effective May 11. L. 2013: Entire section repealed, (HB 13-1160), ch. 373, p. 2197, § 2, effective June 5. Cross references: For the legislative declaration contained in the 2007 act amending subsections (2) to (6) and enacting subsection (3.5), see section 1 of chapter 384, Session Laws of Colorado 2007. For the legislative declaration contained in the 2009 act amending subsection (6), see section 1 of chapter 244, Session Laws of Colorado 2009. 18-4-403. Statutory intent. If any law of this state refers to or mentions larceny, stealing, embezzlement (except embezzlement of public moneys), false pretenses, confidence games, or shoplifting, that law shall be interpreted as if the word "theft" were substituted therefor; and in the enactment of sections 18-4-401 to 18-4-403 it is the intent of the general assembly to define one crime of theft and to incorporate therein such crimes, thereby removing distinctions and technicalities which previously existed in the pleading and proof of such crimes. Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-403. 18-4-404. Obtaining control over any stolen thing of value - conviction. Every person who obtains control over any stolen thing of value, knowing the thing of value to have been stolen by another, may be tried, convicted, and punished whether or not the principal is charged, tried, or convicted. Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-404. 18-4-405. Rights in stolen property. All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property. In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater, and may also recover costs of the action and reasonable attorney fees; but monetary damages and attorney fees shall not be recoverable from a good-faith purchaser or good-faith holder of the property. Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-405. L. 73: p. 536, § 1. L. 87: Entire section amended, p. 668, § 1, effective July 1. 18-4-406. Concealment of goods. If any person willfully conceals unpurchased goods, wares, or merchandise owned or held by and offered or displayed for sale by any store or other mercantile establishment, whether the concealment be on his own person or otherwise and whether on or off the premises of said store or mercantile establishment, such concealment constitutes prima facie evidence that the person intended to commit the crime of theft. Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-406. Colorado Revised Statutes 2019 Page 289 of 695 Uncertified Printout 18-4-407. Questioning of person suspected of theft without liability. If any person triggers an alarm or a theft detection device as defined in section 18-4-417 (2) or conceals upon his person or otherwise carries away any unpurchased goods, wares, or merchandise held or owned by any store or mercantile establishment, the merchant or any employee thereof or any peace officer, acting in good faith and upon probable cause based upon reasonable grounds therefor, may detain and question such person, in a reasonable manner for the purpose of ascertaining whether the person is guilty of theft. Such questioning of a person by a merchant, merchant's employee, or peace or police officer does not render the merchant, merchant's employee, or peace officer civilly or criminally liable for slander, false arrest, false imprisonment, malicious prosecution, or unlawful detention. Source: L. 71: R&RE, p. 429, § 1. C.R.S. 1963: § 40-4-407. L. 2001: Entire section amended, p. 512, § 1, effective July 1. 18-4-408. Theft of trade secrets - penalty. (1) Any person who, with intent to deprive or withhold from the owner thereof the control of a trade secret, or with an intent to appropriate a trade secret to his own use or to the use of another, steals or discloses to an unauthorized person a trade secret, or, without authority, makes or causes to be made a copy of an article representing a trade secret, commits theft of a trade secret. (2) As used in this section: (a) "Article" means any object, material, device, or substance, or copy thereof, including any writing, record, recording, drawing, sample, specimen, prototype, model, photograph, microorganism, blueprint, or map. (b) "Copy" means any facsimile, replica, photograph, or other reproduction of an article, and any note, drawing, or sketch made of or from an article. (c) "Representing" means describing, depicting, containing, constituting, reflecting, or recording. (d) "Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value. To be a trade secret the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. (3) (a) Theft of a trade secret is a class 1 misdemeanor. A second or subsequent offense under this section committed within five years after the date of a prior conviction is a class 5 felony. (b) Notwithstanding section 16-5-401 (1)(a), C.R.S., any prosecution for violation of this section shall be commenced within three years after discovery of the offense. Source: L. 71: R&RE, p. 430, § 1. C.R.S. 1963: § 40-4-408. L. 89: (3) amended, p. 833, § 46, effective July 1. L. 98: (3) amended, p. 156, § 1, effective July 1. Cross references: For the "Uniform Trade Secrets Act", see article 74 of title 7. Colorado Revised Statutes 2019 Page 290 of 695 Uncertified Printout 18-4-409. Aggravated motor vehicle theft. (1) As used in this section, unless the context otherwise requires: (a) "Motor vehicle" means all vehicles of whatever description propelled by any power other than muscular, except vehicles running on rails. (b) "Vehicle identification number" means the serial number placed upon the motor vehicle by the manufacturer thereof or assigned to the motor vehicle by the department of revenue. (2) A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and: (a) Retains possession or control of the motor vehicle for more than twenty-four hours; or (b) Attempts to alter or disguise or alters or disguises the appearance of the motor vehicle; or (c) Attempts to alter or remove or alters or removes the vehicle identification number; or (d) Uses the motor vehicle in the commission of a crime other than a traffic offense; or (e) Causes five hundred dollars or more property damage, including but not limited to property damage to the motor vehicle involved, in the course of obtaining control over or in the exercise of control of the motor vehicle; or (f) Causes bodily injury to another person while he or she is in the exercise of control of the motor vehicle; or (g) Removes the motor vehicle from this state for a period of time in excess of twelve hours; or (h) Unlawfully attaches or otherwise displays in or upon the motor vehicle license plates other than those officially issued for the motor vehicle. (3) Aggravated motor vehicle theft in the first degree is a: (a) Class 5 felony if the value of the motor vehicle or motor vehicles involved is less than twenty thousand dollars; (a.5) Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more but less than one hundred thousand dollars; (b) Class 3 felony if the value of the motor vehicle or motor vehicles involved is more than one hundred thousand dollars or if the defendant has twice previously been convicted or adjudicated of charges separately brought and tried either in this state or elsewhere of an offense involving theft of a motor vehicle under the laws of this state, any other state, the United States, or any territory subject to the jurisdiction of the United States. (4) A person commits aggravated motor vehicle theft in the second degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and if none of the aggravating factors in subsection (2) of this section are present. Aggravated motor vehicle theft in the second degree is a: (a) Class 5 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or more; (b) Class 6 felony if the value of the motor vehicle or motor vehicles involved is one thousand dollars or more but less than twenty thousand dollars; (c) Class 1 misdemeanor if the value of the motor vehicle or motor vehicles involved is less than one thousand dollars. Colorado Revised Statutes 2019 Page 291 of 695 Uncertified Printout (4.5) Whenever a person is convicted of, pleads guilty or nolo contendere to, receives a deferred judgment or sentence for, or is adjudicated a juvenile delinquent for, a violation of this section, the offender's driver's license shall be revoked as provided in section 42-2-125, C.R.S. (5) Consistent with section 18-1-202, if the theft of a motor vehicle occurs in one jurisdiction and the motor vehicle is recovered in another jurisdiction, the offender may be tried in the jurisdiction where the theft occurred, in any jurisdiction through which the motor vehicle was operated or transported, or in the jurisdiction in which the motor vehicle was recovered. Source: L. 71: R&RE, p. 430, § 1. C.R.S. 1963: § 40-4-409. L. 77: Entire section R&RE, p. 974, § 4, effective July 1. L. 79: (2)(e) amended and (2)(f) added, p. 736, § 1, effective April 25; (2)(e) and (4) amended and (2)(g) and (2)(h) added, p. 727, §§ 4, 5, effective July 1. L. 80: IP(2), IP(3), and (4) amended, p. 532, § 1, effective January 29. L. 87: (2)(a) and (2)(g) amended, p. 668, § 2, effective July 1. L. 92: (3) amended, p. 434, § 3, effective April 10. L. 95: (3)(b) and (4) amended, p. 1253, § 12, effective July 1. L. 99: Entire section amended, p. 1164, § 1, effective July 1, 2000. L. 2001: (2)(e) amended, p. 59, § 1, effective August 8. L. 2003: (4.5) added, p. 1845, § 1, effective July 1. L. 2007: (3) and (4) amended, p. 1692, § 5, effective July 1. L. 2014: (3) amended, (HB 14-1266), ch. 155, p. 539, § 6, effective August 6. Cross references: For the legislative declaration contained in the 2007 act amending subsections (3) and (4), see section 1 of chapter 384, Session Laws of Colorado 2007. 18-4-410. Theft by receiving. (Repealed) Source: L. 75: Entire section added, p. 619, § 12, effective July 21. L. 77: Entire section R&RE, p. 975, § 5, effective July 1. L. 84: (3), (4), and (6) amended, p. 537, § 8, effective July 1, 1985. L. 87: (6) amended, p. 607, § 14, effective July 1. L. 92: (2) to (6) amended, p. 435, § 4, effective April 10. L. 98: (3), (4), and (6) amended, p. 795, § 4, effective July 1; (3), (4), and (6) amended and (7) added, p. 1438, § 13, effective July 1. L. 99: (7) amended, p. 797, § 11, effective July 1. L. 2007: (2) to (7) amended and (3.5) added, p. 1692, § 6, effective July 1. L. 2009: (7) amended, (HB 09-1334), ch. 244, p. 1100, § 4, effective May 11. L. 2013: Entire section repealed, (HB 13-1160), ch. 373, p. 2197, § 3, effective June 5. 18-4-411. Transactions for profit in stolen goods. If any person obtains control over stolen property knowing or believing the property to have been stolen, and such offense involves two or more separate stolen things of value each of which is the property of a separate owner, such commission of theft constitutes prima facie evidence that the person is engaged in the business of buying, selling, or otherwise disposing of stolen goods for a profit. Source: L. 77: Entire section added, p. 890, § 3, effective July 1. L. 81: Entire section amended, p. 989, § 1, effective April 23. L. 87: Entire section amended, p. 669, § 3, effective July 1. L. 2013: Entire section amended, (HB 13-1160), ch. 373, p. 2198, § 4, effective June 5. 18-4-411.5. Interagency task force on organized retail theft - legislative declaration - repeal. (Repealed) Colorado Revised Statutes 2019 Page 292 of 695 Uncertified Printout Source: L. 2006: Entire section added, p. 1278, § 2, effective July 1. Editor's note: Subsection (6) provided for the repeal of this section, effective February 1, 2007. (See L. 2006, p. 1278.) 18-4-412. Theft of medical records or medical information - penalty - definitions. (1) Any person who, without proper authorization, knowingly obtains a medical record or medical information with the intent to appropriate the medical record or medical information to his own use or to the use of another, who steals or discloses to an unauthorized person a medical record or medical information, or who, without authority, makes or causes to be made a copy of a medical record or medical information commits theft of a medical record or medical information. (2) As used in this section: (a) "Medical record" means the written or graphic documentation, sound recording, or computer record pertaining to medical, mental health, and health care services, including medical marijuana services, performed at the direction of a physician or other licensed health care provider on behalf of a patient by physicians, dentists, nurses, service providers, emergency medical service providers, mental health professionals, prehospital providers, or other health care personnel. "Medical record" includes such diagnostic documentation as X rays, electrocardiograms, electroencephalograms, and other test results. "Medical record" includes data entered into the prescription drug monitoring program under section 12-280-403. (b) "Medical information" means any information contained in the medical record or any information pertaining to the medical, mental health, and health care services performed at the direction of a physician or other licensed health care provider which is protected by the physician-patient privilege established by section 13-90-107 (1)(d), C.R.S. (c) "Proper authorization" means: (I) A written authorization signed by the patient or his or her duly designated representative; or (II) An appropriate order of court; or (III) Authorized possession pursuant to law or regulation for claims processing, possession for medical audit or quality assurance purposes, possession by a consulting physician to the patient, or possession by hospital personnel for record-keeping and billing purposes; or (IV) Authorized possession pursuant to section 18-3-415, 18-3-415.5, 25-1-122, or 3010-606 (6), C.R.S.; or (V) Authorized possession by a law enforcement officer or agency, acting in official capacity and pursuant to an official investigation. (d) "Copy" means any facsimile, replica, photograph, sound recording, magnetic or electronic recording, or other reproduction of a medical record and any note, drawing, or sketch made of or from a medical record. (3) Theft of a medical record or medical information is a class 6 felony. (4) The obtaining, accessing, use, or disclosure of relevant medical records or medical information pursuant to 18 U.S.C. sec. 922 (t) and sections 24-33.5-424, 13-5-142, and 13-9123, C.R.S., by the Colorado bureau of investigation, the clerk of the court of any judicial district in the state, the clerk of the probate court of the city and county of Denver, or by any of Colorado Revised Statutes 2019 Page 293 of 695 Uncertified Printout their employees and accessing such records and information through the NICS system shall not constitute theft of a medical record or medical information under this section. (5) This section shall not apply to covered entities, their business associates, or health oversight agencies as each is defined in the federal "Health Insurance Portability and Accountability Act of 1996" as amended by the federal "Health Information Technology for Economic and Clinical Health Act" and the respective implementing regulations. Source: L. 79: Entire section added, p. 727, § 6, effective July 1. L. 89: (3) amended, p. 834, § 47, effective July 1. L. 99: (2)(c) amended, p. 1003, § 11, effective May 29. L. 2000: (4) added, p. 12, § 4, effective March 7; (2)(a) amended, p. 545, § 22, effective July 1. L. 2001: (2)(c)(IV) amended, p. 736, § 6, effective July 1. L. 2002: (4) amended, p. 756, § 3, effective January 1, 2003. L. 2003: (2)(c)(IV) amended, p. 1021, § 2, effective April 17; (5) added, p. 1785, § 20, effective July 1. L. 2007: (2)(a) and (2)(b) amended, p. 1689, § 9, effective July 1. L. 2010: (2)(c)(V) added and (5) amended, (SB 10-167), ch. 296, p. 1399, §§ 15, 16, effective May 26. L. 2011: (2)(a) amended, (SB 11-192), ch. 230, p. 987, § 12, effective July 1; (2)(a) amended, (HB 11-1043), ch. 266, p. 1214, § 27, effective July 1. L. 2012: (2)(a) amended, (HB 12-1059), ch. 271, p. 1436, § 15, effective July 1; (2)(a) amended, (HB 12-1311), ch. 281, p. 1619, § 44, effective July 1. L. 2016: (2)(c)(IV) amended, (SB 16-146), ch. 230, p. 918, § 11, effective July 1. L. 2019: (2)(a) amended, (HB 19-1172), ch. 136, p. 1675, § 94, effective October 1. Editor's note: Amendments to subsection (2)(a) by House Bill 11-1043 and Senate Bill 11-192 were harmonized. Amendments to subsection (2)(a) by House Bill 12-1059 and House Bill 12-1311 were harmonized. Cross references: (1) For the legislative declaration contained in the 2000 act enacting subsection (4), see section 1 of chapter 5, Session Laws of Colorado 2000. For the legislative declaration in the 2010 act adding subsection (2)(c)(V) and amending subsection (5), see section 1 of chapter 296, Session Laws of Colorado 2010. (2) For the "Health Insurance Portability and Accountability Act of 1996", see Pub.L. 104-191, codified at 42 U.S.C. sec. 201 et seq. For the "Health Information Technology for Economic and Clinical Health Act", see Pub.L.111-5. 18-4-413. Mandatory sentencing for repeated felony theft from a store - store defined. (1) For purposes of this section and section 18-4-414, "store" means any establishment primarily engaged in the sale of goods at retail. (2) Any person convicted of felony theft, which felony theft was from a store, who within the immediately preceding four years was twice convicted of felony theft, which felony theft was each time from a store, shall be sentenced to at least the minimum term provided for such offense. A person convicted under this section shall not be eligible for probation or suspension of sentence. (3) The mandatory sentencing requirements specified in subsection (2) of this section shall not apply when the person is being sentenced pursuant to section 18-4-401 (4). Colorado Revised Statutes 2019 Page 294 of 695 Uncertified Printout Source: L. 85: Entire section added, p. 668, § 1, effective July 1. L. 2003: (2) amended, p. 1427, § 8, effective April 29. 18-4-414. Evidence of value. (1) For purposes of this part 4, when theft occurs from a store, evidence of the retail value of the thing involved shall be prima facie evidence of the value of the thing involved. Evidence offered to prove retail value may include, but shall not be limited to, affixed labels and tags, signs, shelf tags, and notices. (2) For the purposes of this part 4, in all cases where theft occurs, evidence of the value of the thing involved may be established through the sale price of other similar property and may include, but shall not be limited to, testimony regarding affixed labels and tags, signs, shelf tags, and notices tending to indicate the price of the thing involved. Hearsay evidence shall not be excluded in determining the value of the thing involved. Source: L. 85: Entire section added, p. 668, § 1, effective July 1. L. 88: Entire section amended, p. 713, § 20, effective July 1. 18-4-415. Use of photographs, video tapes, or films of property. Pursuant to section 13-25-130, C.R.S., photographs, video tapes, or films of property over which a person is alleged to have exerted unauthorized control or otherwise to have obtained unlawfully are competent evidence if the photographs, video tapes, or films are admissible into evidence under the rules of law governing the admissibility of photographs, video tapes, or films into evidence. Source: L. 85: Entire section added, p. 577, § 3, effective July 1. Cross references: For similar provisions concerning the use of photographs, video tapes, or films of property with respect to the crimes of robbery and trespass, tampering, and criminal mischief, see §§ 18-4-305 and 18-4-514. 18-4-416. Theft by resale of a lift ticket or coupon. Any unauthorized person who, with the intent to profit therefrom, resells or offers to resell any ticket, pass, badge, pin, coupon, or other device which then entitles the bearer to the use, benefit, or enjoyment of any skiing service or skiing facility commits a class 2 petty offense. The penalty of a violation of this section shall be a fine in an amount not to exceed three hundred dollars. Under no circumstances shall a person being charged with this class 2 petty offense be arrested by any peace officer, and a summons to the appropriate court of jurisdiction shall be issued to the accused person. Source: L. 90: Entire section added, p. 986, § 10, effective April 24. 18-4-417. Unlawful acts - theft detection devices. (1) (a) It is unlawful for any person to knowingly manufacture, distribute, or sell a theft detection shielding device or a theft detection deactivating device with the knowledge that some person intends to use the device in the commission of an offense involving theft. (b) It is unlawful for any person to possess a theft detection shielding device or a theft detection deactivating device with the intent to use the device possessed, or with the knowledge Colorado Revised Statutes 2019 Page 295 of 695 Uncertified Printout that some person intends to use the device possessed, in the commission of an offense involving theft. (c) It is unlawful for any person to knowingly deactivate or remove a theft detection device or any component thereof in any store or mercantile establishment without authorization prior to purchase. (2) As used in this section: (a) "Theft detection deactivating device" means any tool, instrument, mechanism, or other article adapted, designed, engineered, used, or operated to inactivate, incapacitate, or remove a theft detection device without authorization. "Theft detection deactivating device" includes, but is not limited to, jumper wires, wire cutters, and electronic article surveillance removal devices. (b) "Theft detection device" means an electronic or magnetic mechanism, machine, apparatus, tag, or article designed and operated for the purpose of detecting the unauthorized removal of merchandise from a store or mercantile establishment. (c) "Theft detection shielding device" means any tool, instrument, mechanism, or article adapted, designed, engineered, used, or operated to avoid detection by a theft detection device during the commission of an offense involving theft. "Theft detection shielding device" includes, but is not limited to, foil-lined or otherwise modified clothing, bags, purses, or containers capable of and for the sole purpose of avoiding detection devices. (3) Any person who violates any of the provisions of subsection (1) of this section commits a class 1 misdemeanor. Source: L. 2001: Entire section added, p. 512, § 2, effective July 1. L. 2012: (2)(a) and (2)(c) amended, (HB 12-1304), ch. 237, p. 1050, § 3, effective May 29. Cross references: For the legislative declaration in the 2012 act amending subsections (2)(a) and (2)(c), see section 1 of chapter 237, Session Laws of Colorado 2012. 18-4-418. Fuel piracy. (Repealed) Source: L. 2002: Entire section added, p. 1131, § 1, effective July 1. L. 2013: Entire section repealed, (HB 13-1160), ch. 373, p. 2198, § 5, effective June 5. 18-4-419. Newspaper theft. (Repealed) Source: L. 2004: Entire section added, p. 445, § 2, effective July 1. L. 2013: Entire section repealed, (HB 13-1160), ch. 373, p. 2198, § 6, effective June 5; entire section repealed, (HB 13-1014), ch. 7, p. 17, § 1, effective August 7. 18-4-420. Chop shop activity - ownership or operation of a chop shop - altered or removed identification number - penalties - definitions. (1) A person commits ownership or operation of a chop shop if he or she knowingly: (a) Owns or operates a chop shop, knowing that it is a chop shop, or conspires with another person to own or operate a chop shop, knowing that it is a chop shop; Colorado Revised Statutes 2019 Page 296 of 695 Uncertified Printout (b) Transports an unlawfully obtained motor vehicle or major component motor vehicle part to or from a chop shop, knowing that it is a chop shop; or (c) Sells or transfers to, or purchases or receives from, a chop shop, knowing that it is a chop shop, an unlawfully obtained motor vehicle or major component motor vehicle part. (2) A violation of paragraph (a) of subsection (1) of this section is a class 4 felony. A violation of paragraph (b) or (c) of subsection (1) of this section is a class 5 felony. (3) (a) A person commits altering or removing a vehicle identification number if he or she knowingly: (I) Removes, changes, alters, counterfeits, defaces, destroys, disguises, falsifies, forges, or obliterates the vehicle identification number, manufacturer's number, or engine number of a motor vehicle or major component motor vehicle part with an intent to misrepresent the identity or prevent the identification of a motor vehicle or major component motor vehicle part; or (II) Possesses, purchases, disposes of, sells, or transfers a motor vehicle or a major component motor vehicle part with knowledge that it contains a removed, changed, altered, counterfeited, defaced, destroyed, disguised, falsified, forged, or obliterated vehicle identification number, manufacturer's number, or engine number unless such motor vehicle or major component motor vehicle part is otherwise in compliance with the provisions of section 42-5-110, C.R.S. (b) This subsection (3) does not apply to a private party or to an agent of a private party that is acting with the authorization of a law enforcement agency to lawfully seize, retain, recycle, transport, or otherwise dispose of a motor vehicle or major component motor vehicle part with a vehicle identification number, manufacturer number, or engine number that is removed, changed, altered, counterfeited, defaced, destroyed, disguised, falsified, forged, or obliterated. (4) Altering or removing a vehicle identification number is a class 5 felony. (5) As used in this section, unless the context otherwise requires: (a) "Chop shop" means any building, lot, facility, or other structure or premise where: (I) Any person or persons possess, receive, store, disassemble, or alter, including the alteration or concealment of any identifying feature or number, an unlawfully obtained motor vehicle or major component motor vehicle part for the purpose of using, selling, or disposing of the motor vehicle or major component motor vehicle part; or (II) Two or more unlawfully obtained motor vehicles are present for the purpose of alteration, sale, or disposal; or (III) Six or more unlawfully obtained major component motor vehicle parts from two or more motor vehicles are present for the purpose of alteration, sale, or disposal. (b) "Major component motor vehicle part" means any of the following parts of a motor vehicle: (I) The engine; (II) The transmission; (III) A front fender; (IV) The hood; (V) Any door allowing entrance to or egress from the passenger compartment of the vehicle; (VI) The front or rear bumper; (VII) A rear quarter panel; Colorado Revised Statutes 2019 Page 297 of 695 Uncertified Printout (VIII) The deck lid, tailgate, or hatchback; (IX) The trunk floor pan; (X) The cargo box of a pickup truck; (XI) The frame, or if the vehicle has a unitized body, the supporting structure or structures that serve as the frame; (XII) The cab of a truck; (XIII) The body of a passenger vehicle; (XIV) An airbag or airbag assembly; (XV) A wheel or tire; or (XVI) Any other part of a motor vehicle that is comparable in design or function to any of the parts that have been listed, or that have been labeled with a unique traceable identification number, by the manufacturer of the motor vehicle or part. (c) "Motor vehicle" means all vehicles of whatever description that are propelled by any power other than muscular power; except that "motor vehicle" does not include vehicles that run on rails. (d) "Unlawfully obtained" means obtained by theft, fraud, or deceit or obtained without the permission of the owner. Source: L. 2014: Entire section added, (SB 14-176), ch. 392, p. 1981, § 1, effective August 6. PART 5 TRESPASS, TAMPERING, AND CRIMINAL MISCHIEF 18-4-501. Criminal mischief. (1) A person commits criminal mischief when he or she knowingly damages the real or personal property of one or more other persons, including property owned by the person jointly with another person or property owned by the person in which another person has a possessory or proprietary interest, in the course of a single criminal episode. (2) and (3) Repealed. (4) Criminal mischief is: (a) A class 3 misdemeanor when the aggregate damage to the real or personal property is less than three hundred dollars; (b) A class 2 misdemeanor when the aggregate damage to the real or personal property is three hundred dollars or more but less than seven hundred fifty dollars; (c) A class 1 misdemeanor when the aggregate damage to the real or personal property is seven hundred fifty dollars or more but less than one thousand dollars; (d) A class 6 felony when the aggregate damage to the real or personal property is one thousand dollars or more but less than five thousand dollars; (e) A class 5 felony when the aggregate damage to the real or personal property is five thousand dollars or more but less than twenty thousand dollars; (f) A class 4 felony when the aggregate damage to the real or personal property is twenty thousand dollars or more but less than one hundred thousand dollars; Colorado Revised Statutes 2019 Page 298 of 695 Uncertified Printout (g) A class 3 felony when the aggregate damage to the real or personal property is one hundred thousand dollars or more but less than one million dollars; and (h) A class 2 felony when the aggregate damage to the real or personal property is one million dollars or more. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-501. L. 77: entire section amended, p. 963, § 25, effective July 1. L. 81: entire section amended, p. 975, § 12, effective July 1. L. 84: entire section amended, p. 537, § 9, effective July 1, 1985. L. 92: entire section amended, p. 435, § 5, effective April 10. L. 98: entire section amended, p. 1438, § 14, effective July 1; entire section amended, p. 795, § 5, effective July 1. L. 99: entire section amended, p. 391, § 1, effective July 1. L. 2002: (1) amended, p. 1581, § 7, effective July 1. L. 2003: (2) amended, p. 1904, § 3, effective July 1; (3) added, p. 1845, § 2, effective July 1. L. 2007: (1) amended, p. 1693, § 7, effective July 1. L. 2009: (2) and (3) repealed, (HB 09-1266), ch. 347, p. 1814, § 1, effective August 5. L. 2014: (1) amended and (4) added, (HB 14-1266), ch. 155, p. 534, § 1, effective August 6. Cross references: For the legislative declaration contained in the 2007 act amending subsection (1), see section 1 of chapter 384, Session Laws of Colorado 2007. 18-4-502. First degree criminal trespass. A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another or if such person enters any motor vehicle with intent to commit a crime therein. First degree criminal trespass is a class 5 felony. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-502. L. 77: Entire section amended, p. 963, § 26, effective July 1. L. 92: Entire section amended, p. 404, § 16, effective June 3. L. 93: Entire section amended, p. 1732, § 17, effective July 1. L. 98: Entire section amended, p. 1443, § 31, effective July 1. 18-4-503. Second degree criminal trespass. (1) A person commits the crime of second degree criminal trespass if such person: (a) Unlawfully enters or remains in or upon the premises of another which are enclosed in a manner designed to exclude intruders or are fenced; or (b) Knowingly and unlawfully enters or remains in or upon the common areas of a hotel, motel, condominium, or apartment building; or (c) Knowingly and unlawfully enters or remains in a motor vehicle of another. (2) Second degree criminal trespass is a class 3 misdemeanor, but: (a) It is a class 2 misdemeanor if the premises have been classified by the county assessor for the county in which the land is situated as agricultural land pursuant to section 39-1102 (1.6), C.R.S.; and (b) It is a class 4 felony if the person trespasses on premises so classified as agricultural land with the intent to commit a felony thereon. (3) Whenever a person is convicted of, pleads guilty or nolo contendere to, receives a deferred judgment or sentence for, or is adjudicated a juvenile delinquent for, a violation of Colorado Revised Statutes 2019 Page 299 of 695 Uncertified Printout paragraph (c) of subsection (1) of this section, the offender's driver's license shall be revoked as provided in section 42-2-125, C.R.S. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-503. L. 81: Entire section amended, p. 990, § 1, effective June 4. L. 83: Entire section amended, p. 666, § 8, effective July 1. L. 84: (2)(a) amended, p. 1119, § 14, effective June 7. L. 93: (1) amended, p. 1732, § 18, effective July 1. L. 94: (1) amended, p. 1718, § 11, effective July 1. L. 2002: (1) amended, p. 1582, § 11, effective July 1. L. 2003: (3) added, p. 1846, § 4, effective July 1. 18-4-504. Third degree criminal trespass. (1) A person commits the crime of third degree criminal trespass if such person unlawfully enters or remains in or upon premises of another. (2) Third degree criminal trespass is a class 1 petty offense, but: (a) It is a class 3 misdemeanor if the premises have been classified by the county assessor for the county in which the land is situated as agricultural land pursuant to section 39-1102 (1.6), C.R.S.; and (b) It is a class 5 felony if the person trespasses on premises so classified as agricultural land with the intent to commit a felony thereon. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-504. L. 83: Entire section amended, p. 666, § 9, effective July 1. L. 84: (2)(a) amended, p. 1119, § 15, effective June 7. L. 89: (2)(b) amended, p. 834, § 48, effective July 1. L. 93: (1) amended, p. 1732, § 19, effective July 1. 18-4-504.5. Definition of premises. As used in sections 18-4-503 and 18-4-504, "premises" means real property, buildings, and other improvements thereon, and the stream banks and beds of any nonnavigable fresh water streams flowing through such real property. Source: L. 77: Entire section added, p. 977, § 1, effective June 10. 18-4-505. First degree criminal tampering. Except as provided in sections 18-4-506.3 and 18-4-506.5, a person commits the crime of first degree criminal tampering if, with intent to cause interruption or impairment of a service rendered to the public by a utility or by an institution providing health or safety protection, he tampers with property of a utility or institution. First degree criminal tampering is a class 1 misdemeanor. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-505. L. 80: Entire section amended, p. 534, § 2, effective July 1. L. 89: Entire section amended, p. 905, § 2, effective July 1. 18-4-506. Second degree criminal tampering. Except as provided in sections 18-4506.3 and 18-4-506.5, a person commits the crime of second degree criminal tampering if he tampers with property of another with intent to cause injury, inconvenience, or annoyance to that person or to another or if he knowingly makes an unauthorized connection with property of a utility. Second degree criminal tampering is a class 2 misdemeanor. Colorado Revised Statutes 2019 Page 300 of 695 Uncertified Printout Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-506. L. 77: Entire section amended, p. 963, § 27, effective July 1. L. 80: Entire section amended, p. 533, § 1, effective January 29; entire section amended, p. 535, § 3, effective July 1. L. 89: Entire section amended, p. 905, § 3, effective July 1. 18-4-506.3. Tampering with equipment associated with oil or gas gathering operations - penalty. (1) Any person who in any manner knowingly destroys, breaks, removes, or otherwise tampers with or attempts to destroy, break, remove, or otherwise tamper with any equipment associated with oil or gas gathering operations commits a class 2 misdemeanor. (2) Any person who in any manner, without the consent of the owner or operator, knowingly alters, obstructs, interrupts, or interferes with or attempts to alter, obstruct, interrupt, or interfere with the action of any equipment used or associated with oil or gas gathering operations commits a class 2 misdemeanor. Source: L. 89: Entire section added, p. 905, § 1, effective July 1. 18-4-506.5. Tampering with a utility meter - penalty. (1) Any person who connects any pipe, tube, stopcock, wire, cord, socket, motor, or other instrument or contrivance with any main, service pipe, or other medium conducting or supplying gas, water, or electricity to any building without the knowledge and consent of the person supplying such gas, water, or electricity commits a class 2 misdemeanor. (2) Any person who in any manner alters, obstructs, or interferes with the action of any meter provided for measuring or registering the quantity of gas, water, or electricity passing through said meter without the knowledge and consent of the person owning said meter commits a class 2 misdemeanor. (3) Nothing in this section shall be construed to apply to any licensed electrical or plumbing contractor while performing usual and ordinary services in accordance with recognized customs and standards. Source: L. 80: Entire section added, p. 534, § 1, effective July 1. 18-4-507. Defacing or destruction of written instruments. Every person who defaces or destroys any written instrument evidencing a property right, whether vested or contingent, with the intent to defraud commits a class 1 misdemeanor. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-507. 18-4-508. Defacing, destroying, or removing landmarks, monuments, or accessories. (1) Any person who knowingly cuts, fells, alters, or removes any certain boundary tree knowing such is a boundary tree, monument, or other allowed landmark, to the damage of any person, or any person who intentionally defaces, removes, pulls down, injures, or destroys any location stake, side post, corner post, landmark, or monument, or any other legal land boundary monument in this state, designating or intending to designate the location, boundary, or name of any mining claim, lode, or vein of mineral, or the name of the discoverer or date of discovery thereof, commits a class 2 misdemeanor. Colorado Revised Statutes 2019 Page 301 of 695 Uncertified Printout (2) Any person who knowingly removes or knowingly causes to be removed any public land survey monument, as defined by section 38-53-103 (18), C.R.S., or control corner, as defined in section 38-53-103 (6), C.R.S., or a restoration of any such monument or who knowingly removes or knowingly causes to be removed any bearing tree knowing such is a bearing tree or other accessory, as defined by section 38-53-103 (1), C.R.S., even if said person has title to the land on which said monument or accessory is located, commits a class 2 misdemeanor unless, prior to such removal, said person has caused a Colorado professional land surveyor to establish at least two witness corners or reference marks for each such monument or accessory removed and has filed or caused to be filed a monument record pursuant to article 53 of title 38, C.R.S. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-508. L. 77: Entire section amended, p. 963, § 28, effective July 1. L. 79: Entire section amended, p. 478, § 4, effective July 1. L. 84: (2) amended, p. 1119, § 16, effective June 7. L. 94: (2) amended, p. 1507, § 37, effective July 1. Cross references: For the definition of professional land surveyor, see § 12-25-202 (7). 18-4-509. Defacing property - definitions. (1) (a) Any person who destroys, defaces, removes, or damages any historical monument commits the crime of defacing property. (b) Any person who defaces or causes, aids in, or permits the defacing of public or private property without the consent of the owner by any method of defacement, including but not limited to painting, drawing, writing, or otherwise marring the surface of the property by use of paint, spray paint, ink, or any other substance or object, commits the crime of defacing property. (c) (I) Any person who, with regard to a cave that is public property or the property of another, knowingly performs any of the following acts without the consent of the owner commits the crime of defacing property: (A) Breaking or damaging any lock, fastening, door, or structure designed to enclose or protect any such cave; (B) Defacing, damaging, or breaking from any part of such cave any cave resource; or (C) Removing from such cave any cave resource. (II) For purposes of this section: (A) "Cave" means any naturally occurring void, cavity, recess, lava tube, or system of interconnected passages that occurs beneath the surface of the earth or within a cliff or ledge, including any cave resource therein, but not including any mine, tunnel, aqueduct, or other artificial excavation, and that is large enough to permit an individual to enter, regardless of whether the entrance is naturally formed or has been artificially created or enlarged. "Cave" includes any natural pit, sinkhole, or other feature that is an extension of the entrance. (B) "Cave resource" includes any material or substance occurring naturally in caves, such as animal life, plant life, paleontological deposits, sediments, minerals, speleogens, and speleothems. (B.5) "Juvenile" shall have the same meaning as set forth in section 19-1-103 (68), C.R.S. Colorado Revised Statutes 2019 Page 302 of 695 Uncertified Printout (C) "Speleogen" means relief features on the walls, ceiling, or floor of any cave that are part of the surrounding rock, including, but not limited to, anastomoses, scallops, meander niches, petromorphs, and rock pendants in solution caves and similar features unique to volcanic caves. (D) "Speleothem" means any natural mineral formation or deposit occurring in a cave, including, but not limited to, any stalactite, stalagmite, helictite, cave flower, flowstone, concretion, drapery, rimstone, or formation of clay or mud. (2) (a) (I) Defacing property is a class 2 misdemeanor; except that: (A) A second or subsequent conviction for the offense of defacing property is a class 1 misdemeanor and the court shall impose a mandatory minimum fine of seven hundred fifty dollars upon conviction; and (B) If a person violates paragraph (b) of subsection (1) of this section twice or more within a period of six months, the damages caused by two or more of the violations may be aggregated and charged in a single count, in which event the violations so aggregated and charged shall constitute a single offense, and, if the aggregate damages are five hundred dollars or more, it is a class 1 misdemeanor and the court shall impose a mandatory minimum fine of seven hundred fifty dollars upon conviction. (II) In sentencing a person who violates this section, the court has discretion to impose alternatives in sentencing as described in part 1 of article 1.3 of this title, including but not limited to restorative justice practices, as defined in section 18-1-901 (3)(o.5), or in the case of a juvenile offender, to impose restorative justice, as defined in section 19-1-103 (94.1), C.R.S. (III) The court may suspend all or part of the mandatory minimum fine associated with a conviction under this section upon the offender's successful completion of any sentence alternative imposed by the court pursuant to subparagraph (II) of this paragraph (a). (IV) Fifty percent of the fines collected pursuant to this paragraph (a) shall be credited to the highway users tax fund, created in section 43-4-201, C.R.S., and allocated and expended as specified in section 43-4-205 (5.5)(a), C.R.S., and fifty percent of the fines collected pursuant to this paragraph (a) shall be credited to the juvenile diversion cash fund created in section 19-2303.5, C.R.S.; except that the fines collected pursuant to paragraph (c) of subsection (1) of this section shall be credited to the Colorado travel and tourism promotion fund created in section 24-49.7-106, C.R.S. (b) Any person convicted of defacing property pursuant to paragraph (b) or (c) of subsection (1) of this section shall be ordered by the court to personally make repairs to any property damaged, or properties similarly damaged, if possible. If the property cannot be repaired, the court shall order a person convicted of defacing property to replace or compensate the owner for the damaged property but may, in the case of a violation of paragraph (b) of subsection (1) of this section, limit such compensation to two thousand five hundred dollars. (c) Repealed. Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-509. L. 89: (2) R&RE, p. 875, § 10, effective June 5. L. 93: (2) amended, p. 1732, § 20, effective July 1. L. 94: (2) amended, p. 1463, § 2, effective July 1. L. 97: (2) amended, p. 1536, § 2, effective July 1. L. 2003: Entire section amended, p. 1903, § 1, effective July 1. L. 2004: (1)(c) added and (2) amended, pp. 69, 70, §§ 1, 2, effective August 4. L. 2005: (2)(a) amended, p. 140, § 3, effective April 5. L. 2009: Colorado Revised Statutes 2019 Page 303 of 695 Uncertified Printout (2)(c) repealed, (HB 09-1266), ch. 347, p. 1814, § 2, effective August 5. L. 2011: (1)(c)(II)(B.5) added and (2)(a) amended, (SB 11-256), ch. 254, pp. 1101, 1099, §§ 3, 1, effective August 10. 18-4-510. Defacing posted notice. Any person who knowingly mars, destroys, or removes any posted notice authorized by law commits a class 1 petty offense. Source: L. 71: R&RE, p. 432, § 1. C.R.S. 1963: § 40-4-510. L. 77: Entire section amended, p. 964, § 29, effective July 1. Cross references: For penalty for willfully defacing or destroying notices, see § 30-15202. 18-4-511. Littering of public or private property - repeal. (1) Any person who deposits, throws, or leaves any litter on any public or private property or in any waters commits littering. (2) It shall be an affirmative defense that: (a) Such property is an area designated by law for the disposal of such material and the person is authorized by the proper public authority to so use the property; or (b) The litter is placed in a receptacle or container installed on such property for that purpose; or (c) Such person is the owner or tenant in lawful possession of such property, or he has first obtained written consent of the owner or tenant in lawful possession, or the act is done under the personal direction of said owner or tenant. (3) (a) The term "litter" as used in this section means all rubbish, waste material, refuse, garbage, trash, debris, or other foreign substances, solid or liquid, of every form, size, kind, and description. (b) The phrase "public or private property" as used in this section includes, but is not limited to, the right-of-way of any road or highway, any body of water or watercourse, including frozen areas or the shores or beaches thereof, any park, playground, or building, any refuge, conservation, or recreation area, and any residential, farm, or ranch properties or timberlands. (4) (a) Except as otherwise provided in subsection (4)(b)(I) of this section and sections 33-15-108 (2) and 42-4-1406, littering is a class 2 petty offense punishable, upon conviction, by a mandatory fine of not less than twenty dollars nor more than five hundred dollars upon a first conviction, by a mandatory fine of not less than fifty dollars nor more than one thousand dollars upon a second conviction, and by a mandatory fine of not less than one hundred dollars nor more than one thousand dollars upon a third or subsequent conviction. (b) (I) On and after January 1, 2020, the mandatory fines specified in subsection (4)(a) of this section are adjusted annually by the annual percentage change in the United States department of labor's bureau of labor statistics consumer price index for Denver-AuroraLakewood for all items paid by all urban consumers, or its applicable successor index. Notwithstanding any other provision of law, the clerk of the court shall transmit the amount of the fine attributable to the adjustment specified in this subsection (4)(b)(I) to the state treasurer, who shall credit it to the front range waste diversion cash fund created in section 25-16.5-111 (4). (II) This subsection (4)(b) is repealed, effective September 1, 2029. Colorado Revised Statutes 2019 Page 304 of 695 Uncertified Printout (5) It is in the discretion of the court, upon the conviction of any person and the imposition of a fine under this section, to suspend any or all of the fine in excess of the mandatory minimum fine upon the condition that the convicted person gather and remove from specified public property or specified private property, with prior permission of the owner or tenant in lawful possession thereof, any litter found thereon, or upon the condition that the convicted person pick up litter at a time prescribed by and a place within the jurisdiction of the court for not less than eight hours upon a first conviction or for not less than sixteen hours upon a second or subsequent conviction. (6) Whenever litter is thrown, deposited, dropped, or dumped from any motor vehicle in violation of this section, the operator of said motor vehicle is presumed to have caused or permitted the litter to be so thrown, deposited, dropped, or dumped therefrom. (7) In addition to those law enforcement officers and agencies of this state and the political subdivisions thereof authorized to enforce this section, the officers of the Colorado state patrol and the district wildlife managers and other commissioned officers of the division of parks and wildlife are expressly authorized, empowered, and directed to enforce the provisions of this section. Source: L. 71: R&RE, p. 432, § 1. C.R.S. 1963: § 40-4-511. L. 73: p. 537, § 1. L. 77: (4) amended, p. 1195, § 2, effective July 1. L. 79: (7) amended, p. 1212, § 2, effective June 21. L. 81: (4) amended, p. 2025, § 18, effective July 14. L. 85: (4) R&RE and (5) amended, p. 670, §§1, 2, effective July 1. L. 2002, 3rd Ex. Sess.: (4) amended, p. 53, § 3, effective July 18. L. 2019: (4) amended, (SB 19-192), ch. 362, p. 3353, § 3, effective August 2. Editor's note: Section 4(2) of chapter 362 (SB 19-192), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after August 2, 2019. Cross references: For the power and duty of the executive director of the department of natural resources to establish programs to control litter in Colorado, see § 24-33-102 (5); for prohibitions against putting foreign matters on highways, see § 42-4-1406; for littering lands or waters under the control of the division of wildlife in the department of natural resources, see §§ 33-10-102 (10) and 33-15-108; for affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-4-512. Abandonment of a motor vehicle. (1) Any person who abandons any motor vehicle upon a street, highway, right-of-way, or any other public property, or upon any private property without the express consent of the owner or person in lawful charge of that private property commits abandonment of a motor vehicle. (2) To "abandon" means to leave a thing with the intention not to retain possession of or assert ownership over it. The intent need not coincide with the act of leaving. (3) It is prima facie evidence of the necessary intent that: (a) The motor vehicle has been left for more than seven days unattended and unmoved; or (b) License plates or other identifying marks have been removed from the motor vehicle; or Colorado Revised Statutes 2019 Page 305 of 695 Uncertified Printout (c) The motor vehicle has been damaged or is deteriorated so extensively that it has value only for junk or salvage; or (d) The owner has been notified by a law enforcement agency to remove the motor vehicle, and it has not been removed within three days after notification. (4) Abandonment of a motor vehicle is a class 3 misdemeanor. Source: L. 71: R&RE, p. 432, § 1. C.R.S. 1963: § 40-4-512. Cross references: For the towing and storage of abandoned and illegally parked motor vehicles, see part 18 of article 4 of title 42. 18-4-513. Criminal use of a noxious substance. (1) Any person who deposits on the land or in the building or vehicle of another, without his consent, any stink bomb or device, irritant, or offensive-smelling substance with the intent to interfere with another's use or enjoyment of the land, building, or vehicle commits a class 3 misdemeanor. (2) It shall be an affirmative defense that a peace officer in the performance of his duties reasonably used a noxious substance. Source: L. 71: R&RE, p. 433, § 1. C.R.S. 1963: § 40-4-513. L. 73: p. 538, § 2. Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805. 18-4-514. Use of photographs, video tapes, or films of property. Pursuant to section 13-25-130, C.R.S., photographs, video tapes, or films of property over which a person is alleged to have exerted unauthorized control or otherwise to have obtained unlawfully are competent evidence if the photographs, video tapes, or films are admissible into evidence under the rules of law governing the admissibility of photographs, video tapes, or films into evidence. Source: L. 85: Entire section added, p. 577, § 4, effective July 1. Cross references: For similar provisions concerning the use of photographs, video tapes, or films of property with respect to the crimes of robbery and theft, see §§ 18-4-305 and 18-4415. 18-4-515. Entry to survey property - exception to criminal trespass. (1) Effective July 1, 1992, no person shall be in violation of the trespass laws of this part 5 if the requirements of this section are met. The provisions of this section provide an exception to the trespass laws only and do not affect or supersede the provisions and requirements of articles 1 to 7 of title 38, C.R.S., concerning condemnation proceedings, notwithstanding any laws to the contrary. (2) Any person who is licensed as a professional land surveyor pursuant to section 12120-313, or who is under the direct supervision of such a person as an employee, agent, or representative, may enter public or private land to investigate and utilize boundary evidence and to perform boundary surveys if the notice requirement in this subsection (2) is met. The notice of the pending survey shall contain the identity of the party for whom the survey is being Colorado Revised Statutes 2019 Page 306 of 695 Uncertified Printout performed and the purpose for which the survey will be performed, the employer of the surveyor, the identity of the surveyor, the dates the land will be entered, the time, location, and timetable for such entry, the estimated completion date, the estimated number of entries that will be required, and a statement requesting the landowner to provide the surveyor with the name of each person who occupies the land as a tenant or lessee, whether on a permane