2021 Colorado Code
Title 42 - Vehicles and Traffic
Article 2 - Drivers' Licenses
Part 2 - Habitual Offenders
§ 42-2-206. Driving After Revocation Prohibited

1. 1. 1. It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor. (1) (a) (I) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect. Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor.
      2. Notwithstanding the provisions of section 18-1.3-501, C.R.S., any person convicted of violating subparagraph (I) of this paragraph (a) shall be sentenced to a mandatory minimum term of imprisonment in the county jail for thirty days, or a mandatory minimum fine of three thousand dollars, or both. The minimum jail sentence and fine required by this subparagraph (II) shall be in addition to any other penalty provided in section 18-1.3-501, C.R.S. The court may suspend all or a portion of the mandatory jail sentence or fine if the defendant successfully completes no less than forty hours, and no greater than three hundred hours, of useful public service. In no event shall the court sentence the convicted person to probation. Upon the defendant's successful completion of the useful public service, the court shall vacate the suspended sentence. In the event the defendant fails or refuses to complete the useful public service ordered, the court shall impose the jail sentence, fine, or both, as required under this subparagraph (II).

   2. 1. A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses: (b) (I) A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses:
         2. Repealed.
         3. Reckless driving, as described in section 42-4-1401;
         4. Eluding or attempting to elude a police officer, as described in section 42-4-1413;
         5. Violation of any of the requirements specified for accidents and accident reports in sections 42-4-1601 to 42-4-1606; or
         6. Vehicular eluding, as described in section 18-9-116.5, C.R.S.

      2. Aggravated driving with a revoked license is a class 1 misdemeanor, punishable as provided in section 18-1.3-501, C.R.S.; except that a court shall sentence the offender to a mandatory minimum term of imprisonment of sixty days in the custody of a county jail.
      3. If a defendant is convicted of aggravated driving with a revoked license based upon the commission of DUI, DUI per se, or DWAI pursuant to sub-subparagraph (A) or (B) of subparagraph (I) of this paragraph (b), as that crime existed before August 5, 2015:
         1. The court shall convict and sentence the offender for each offense separately;
         2. The court shall impose all of the penalties for the alcohol-related driving offense, as such penalties are described in section 42-4-1307;
         3. The provisions of section 18-1-408, C.R.S., shall not apply to the sentences imposed for either conviction;
         4. Any probation imposed for a conviction under this section may run concurrently with any probation required by section 42-4-1307; and
         5. The department shall reflect both convictions on the defendant's driving record.

2. For the purpose of enforcing this section in any case in which the accused is charged with driving a motor vehicle while such person's license, permit, or privilege to drive is revoked or is charged with driving without a license, the court, before hearing such charges, shall require the district attorney to determine whether such person has been determined to be an habitual offender and by reason of such determination is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that the accused has been so held, the district attorney shall cause the appropriate criminal charges to be lodged against the accused.

History. Source: L. 94: Entire title amended with relocations, p. 2160, § 1, effective January 1, 1995. L. 99: (1) amended, p. 796, § 9, effective July 1. L. 2000: (1)(a) amended, p. 682, § 1, effective July 1; (1)(a) and IP(1)(b)(I) amended and (1)(b)(I)(F) added, p. 710, § 46, effective July 1. L. 2002: (1)(a)(II) and (1)(b)(II) amended, p. 1560, § 364, effective October 1. L. 2008: (1)(b)(I)(A) and (1)(b)(I)(B) amended, p. 251, § 16, effective July 1. L. 2010: (1)(b)(III) added, (HB 10-1347), ch. 258, p. 1158, § 3, effective July 1. L. 2015: (1)(b)(I)(A) and (1)(b)(I)(B) repealed and (1)(b)(II) and IP(1)(b)(III) amended, (HB 15-1043), ch. 262, p. 996, § 4, effective August 5.

Amendments to subsection (1)(a) by House Bill 00-1107 and House Bill 00-1426 were harmonized.

For the legislative declaration contained in the 2002 act amending subsections (1)(a)(II) and (1)(b)(II), see section 1 of chapter 318, Session Laws of Colorado 2002.

I.GENERAL CONSIDERATION.

Section is not unconstitutional as violative of equal protection, despite the contention that it has created classifications providing that habitual traffic offenders be subjected to mandatory sentencing, whereas other offenders whose conduct is of far greater culpability may be granted probation or be given suspended sentences. People v. Scott, 200 Colo. 365 , 615 P.2d 680.

Punishment is not cruel and unusual. The punishment mandated by this section is not so disparate to the gravity of the offense as to constitute cruel and unusual punishment. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Procedures upon which prosecutions under section are based are fundamentally fair, are adequate to assure an accurate determination of habitual traffic offender status, and accord due process of law to a licensee later accused of violating this section. People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980).

Constitutional standards for voluntary and understanding plea of guilty clearly are applicable to the traffic offense convictions of driving under suspension. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Section must be construed to prohibit use of conviction obtained without benefit or waiver of counsel as a part of the foundation for the sentence of imprisonment which is mandated for violation of that statute. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

Absent a valid waiver of the right to counsel, a conviction obtained against a defendant who is not represented by counsel may not be used to establish habitual traffic offender status for the purpose of imposing punishment for violation of this section. People v. Hampton, 619 P.2d 48 (Colo. 1980); People v. Rocha, 650 P.2d 569 (Colo. 1982).

A violation of a defendant's constitutional right to counsel in a traffic offense proceeding can be asserted as a defense in a subsequent prosecution for driving after judgment prohibited based in essential part upon conviction of that traffic offense. People v. Mascarenas, 632 P.2d 1028 (Colo. 1981).

Notification of criminal penalty for violation not required. The department is not required to notify persons adjudged habitual traffic offenders of the possible criminal penalty for driving in violation of the order of revocation. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Crim. P. 11(b)(4), not applicable to this section. Where defendant's third conviction makes him subject to enhanced punishment as an habitual traffic offender under subsection (1), the attainment of this status is not a “penalty” within the meaning of Crim. P. 11(b)(4), and the defendant does not have to be advised of the possible consequences of multiple convictions before a court can increase the punishment for his attainment thereof. People v. Heinz, 197 Colo. 102 , 589 P.2d 931 (1979).

Although compliance with Crim. P. 11, may be considered by court. Compliance with Crim. P. 11, although not conclusive of the issue of a defendant's waiver of counsel, is an appropriate factor for the court to consider in resolving a defendant's challenge to the admission of the order of revocation. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Administrative hearing not “critical stage” of prosecution. The department of motor vehicles' administrative hearing which results in license revocation pursuant to § 42-2-203 is not a “critical stage” of the prosecution for violation of this section. People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980); People v. Shaver, 630 P.2d 600 (Colo. 1981).

Driving after revocation pursuant to this section and driving while license denied, suspended, or revoked pursuant to § 42-2-130 proscribe the same act, and defendant may not be convicted or punished under both statutes. People v. Rodriguez, 849 P.2d 799 (Colo. App. 1992) (decided prior to 1994 amendment of title 42).

Driving while license denied, suspended, or revoked under this section does not merge with § 42-2-138 . A person is liable to be convicted under both provisions. The elements are different because “operating” is a different standard than “driving” and “highways” do not include private ways. People v. Zubiate, 2013 COA 69 , 411 P.3d 757, aff'd, 2017 CO 17, 390 P.3d 394 (disagreeing with People v. Rodriguez cited above) (disapproved by supreme court in People v. Rock, 2017 CO 84, 402 P.3d 472).

Driving under restraint under § 42-2-138 is a lesser included offense of driving after revocation under this section. Although a person may commit driving after revocation without committing driving under restraint, a person could not commit driving under restraint without committing driving after revocation. People v. Wambolt, 2018 COA 88 , 431 P.3d 681.

The “drive” element of driving under restraint is included within the “operate” element of driving after revocation because a person who drives a car necessarily operates it. People v. Wambolt, 2018 COA 88 , 431 P.3d 681.

Applied in People v. Meyers, 617 P.2d 808 (Colo. 1980); People v. Able, 618 P.2d 1110 (Colo. 1980); People v. Torres, 625 P.2d 1034 (Colo. 1981); People v. Hunt, 632 P.2d 572 (Colo. 1981); People v. Clements, 665 P.2d 624 (Colo. 1983).

II.ELEMENTS.

A.In General.

Two elements of crime of driving after judgment prohibited are: (1) operation of a motor vehicle in this state; and (2) operation of a motor vehicle while the order of revocation of the appellant's driver's license as an habitual offender was in effect. People v. Moore, 200 Colo. 481 , 615 P.2d 726 (1980).

Proper charge of violation of section must include not only an allegation that the license of an accused driver had been revoked upon a determination that he was an habitual traffic offender but also an allegation that the accused was operating a motor vehicle on the highways of this state while that revocation was still in effect. People v. Moore, 200 Colo. 481 , 615 P.2d 726 (1980).

Knowledge of revocation order is essential element. As a matter of statutory construction, knowledge of the order of revocation is an essential element in a driving after judgment prohibited prosecution. People v. Lesh, 668 P.2d 1362 (Colo. 1983); People v. Parga, 964 P.2d 571 (Colo. App. 1998); Griego v. People, 19 P.3d 1 (Colo. 2001).

The prosecution is required to prove the element of knowledge of the revocation order in a driving after judgment prohibited case, as mailing notice of the order is only prima facie proof of its receipt, and is not conclusive. People v. Lesh, 668 P.2d 1362 (Colo. 1983).

To satisfy mens rea requirement for conviction on charge of felony driving after judgment prohibited, defendant must have actual knowledge of habitual traffic offender revocation. For purposes of driving after judgment prohibited statute, “actual knowledge” is as defined in § 18-1-501 (6) . The constructive knowledge definition contained in the misdemeanor driving-under-restraint statute is inapplicable to the felony offense of driving after judgment prohibited. People v. Parga, 964 P.2d 571 (Colo. App. 1998); Griego v. People, 19 P.3d 1 (Colo. 2001).

Defendant's driving record relevant to establish knowledge of status as an habitual offender. On retrial, jury may consider defendant's record of traffic offenses as circumstantial evidence suggesting that he has actual knowledge that his license had been revoked as an habitual traffic offender. People v. Parga, 964 P.2d 571 (Colo. App. 1998).

Improperly instructing jury on required culpable mental state is not harmless error. People v. Parga, 964 P.2d 571 (Colo. App. 1998).

The mens rea element for the offense of driving after judgment is not set forth in this section. However, actual knowledge of the order of revocation of license as an habitual offender is an essential element of the offense. People v. Villa-Villa, 983 P.2d 181 (Colo. App. 1997).

A defendant may be convicted under this section not only if he actually knew his license had been revoked but also if a reasonable person in the defendant's position would have known that his license was under revocation as an habitual offender. People v. Villa-Villa, 983 P.2d 181 (Colo. App. 1997).

Inability of a defendant to read and understand English does not render the notice of revocation insufficient and does not, as a matter of law, constitute a defense to knowledge of revocation of driving privileges. People v. Villa-Villa, 983 P.2d 181 (Colo. App. 1997).

When the documentary evidence included a proof of service, dated shortly before the alleged violation, of a notice stating that it was unlawful for the defendant to operate a motor vehicle and a certified copy of defendant's driving record, dated shortly afer the alleged violation, showing that his license was under revocation, it was reasonable to conclude both that defendant's license was under revocation at the time of the alleged violation and that he knew of the revocation. People v. Espinoza, 195 P.3d 1122 (Colo. App. 2008).

“Conviction” to include plea of guilty. In enacting § 42-2-201 et seq., the general assembly was concerned with identifying and punishing habitual offenders of traffic laws. To give effect to that expressed concern, the definition of the term “conviction” must include a plea of guilty. Walker v. District Court, 199 Colo. 128 , 606 P.2d 70 (1980).

Sentence requirement in this section remains mandatory and is not subject to plea bargaining to obtain a deferred sentence as generally allowed by § 16-7-403 . Walker v. District Court, 199 Colo. 128 , 606 P.2d 70 (1980).

The term “operate” does not require actual movement of a vehicle. “Operate” is the action of causing something to occur or to cause to function, usually by direct personal effort. People v. Gregor, 26 P.3d 530 (Colo. App. 2000); People v. Stewart, 55 P.3d 107 (Colo. 2002); People v. Valdez, 2014 COA 125 , 411 P.3d 94.

The trial court did not err in failing to define “operate” for the jury as requiring actual movement because a person who is behind the wheel of a car with the engine running is in actual physical control of the vehicle and thus driving. People v. Gregor, 26 P.3d 530 (Colo. App. 2000).

Operating a motor vehicle means exercising physical control over a motor vehicle. The threat that impaired driving statutes seek to avoid is that a vehicle will be put into motion by an intoxicated occupant and thus pose a risk to the safety of the occupant and others. The risk remains present when the reason for a vehicle's inoperability is a temporary condition that can be quickly remedied. The “reasonably capable of being rendered operable” standard distinguishes between a vehicle that has simply run out of gas and one that is in a condition that renders it “totally inoperable”. People v. VanMatre, 190 P.3d 770 (Colo. App. 2008).

Prosecution not required to prove the operability of a vehicle beyond a reasonable doubt. People v. Valdez, 2014 COA 125 , 411 P.3d 94.

Trial court did not commit plain error in upholding the jury's separate convictions for driving under the influence and aggravated driving after revocation prohibited offenses and for imposing separate sentences for those crimes. People v. Valdez, 2014 COA 125 , 411 P.3d 94.

B.Emergency.

Existence of emergency does not affect criminality of the conduct of driving in violation of this section. People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980).

Defendant must prove existence of emergency by a preponderance of the evidence. People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980).

Trial judge determines existence of emergency. The trial judge, and not the jury, must make the determination regarding the existence of an emergency. People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980).

The term “emergency” in this section is broader than the term used in the statute governing choice of evils defense and so the trial court did not abuse its discretion by finding that an emergency existed for purposes of sentencing after ruling that no emergency existed for purposes of disallowing use of a choice of evils defense. People v. Weiser, 789 P.2d 454 (Colo. App. 1989).

C.Collateral Attack on Prior Conviction.

There is a duty to comply with order of revocation until it is rescinded pursuant to a direct appeal rather than a collateral attack. People v. District Court, 623 P.2d 55 (Colo. 1981).

Section on its face does not preclude collateral attack on the underlying traffic convictions. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

Defendant may collaterally attack prior convictions when later charged with violation of this section. People v. DeLeon, 625 P.2d 1010 (Colo. 1981); People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Dooley, 630 P.2d 608 (Colo. 1981); People v. Swann, 770 P.2d 411 (Colo. 1989).

Bases for collateral attack limited. A defendant cannot collaterally attack order of revocation on any bases other than lack of jurisdiction or a violation of constitutional protections in the proceeding upon which the order was based. People v. District Court, 623 P.2d 55 (Colo. 1981).

Unconstitutionally obtained conviction cannot be used in later proceeding to support guilt or enhance punishment. People v. Roybal, 618 P.2d 1121 (Colo. 1980); People v. Shaver, 630 P.2d 600 (Colo. 1981); State v. Laughlin, 634 P.2d 49 (Colo. 1981).

The order of revocation being an essential element of the crime of driving after judgment prohibited, it may not be admitted into evidence at trial if the underlying convictions supporting the order were obtained in derogation of the defendant's constitutional right to counsel. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Defendant may attack constitutionality of underlying conviction. In a criminal proceeding instituted pursuant to this section, a defendant may attack the constitutionality of his conviction for a traffic offense which provides the basis for his habitual traffic offender status. State v. Laughlin, 634 P.2d 49 (Colo. 1981).

Where constitutional defects are alleged, defendant may challenge convictions supporting his status as an habitual traffic offender at his trial for violation of this section. People v. Hampton, 619 P.2d 48 (Colo. 1980).

A defendant charged with driving after judgment prohibited has a right to challenge the constitutional validity of the traffic offense convictions which underlie that charge. People v. Mascarenas, 632 P.2d 1028 (Colo. 1981).

Defendant must make prima facie showing that prior conviction is invalid in order to bar the use of that conviction in a later proceeding. People v. Roybal, 618 P.2d 1121 (Colo. 1980); People v. DeLeon, 625 P.2d 1010 (Colo. 1981).

The defendant's burden on a challenge to the admission of an order of revocation is to make a prima facie showing that one or more of the underlying convictions was constitutionally invalid. People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Swann, 770 P.2d 411 (Colo. 1989).

What constitutes prima facie showing. A prima facie showing in the context of a challenge to the validity of a conviction means evidence which, when considered in a light most favorable to the defendant and all reasonable inferences therefrom are drawn in his favor, would permit the court to find that one or more of the traffic offense convictions essential to the order of revocation was not obtained in accordance with the constitutional right to effective assistance of counsel or due process of law. People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981).

Once prima facie showing that prior conviction is invalid has been made, the prosecution has the burden to establish that the conviction was constitutionally obtained. People v. Roybal, 618 P.2d 1121 (Colo. 1980); People v. DeLeon, 625 P.2d 1010 (Colo. 1981); People v. Shaver, 630 P.2d 600 (Colo. 1981); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981); People v. Swann, 770 P.2d 411 (Colo. 1989).

Burden of establishing constitutional validity is by preponderance. The appropriate burden for the prosecution is to establish the constitutional validity of a traffic conviction by a preponderance of the evidence. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Burden is distinct from proving guilt beyond reasonable doubt. This standard of proof on admissibility of prior convictions is to be distinguished from, and does not in any manner implicate, the prosecution's burden of proving to the jury the defendant's guilt beyond a reasonable doubt on all essential elements of the crime charged. People v. Shaver, 630 P.2d 600 (Colo. 1981).

Failure to make prima facie showing that prior conviction invalid. Where defendant fails to present any affirmative evidence to show that the defendant's pleas were involuntary or without factual basis, or even that the court failed to inquire into these matters when accepting his pleas, the defendant has failed to make a prima facie showing that a prior conviction was invalid. People v. Fleming, 781 P.2d 1384 (Colo. 1989).

No review in criminal proceeding of administrative decision. A defendant's right to demonstrate the constitutional invalidity of a prior judicial determination of guilt does not include the right to obtain judicial review in a criminal proceeding of a prior administrative decision affecting defendant's status in other context. People v. Rocha, 669 P.2d 1366 (Colo. 1983).

A defendant charged under this section cannot collaterally attack prior uncounseled speeding convictions where he failed to raise such issue during driving under suspension proceedings based on said speeding convictions. Wilson v. People, 742 P.2d 322 (Colo. 1987).