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Asiento asignado por el Registro Nacional de Asociaciones Español: Grupo 1º, Sección 1ª, Numero 600121 - NIF: G76556646 ...

Colorado Drugged Driving

In Colorado, a person is guilty of a DUI if he or she operates a motor vehicle while under the influence of alcohol and/or one or more drugs, OR he or she operates a motor vehicle as an habitual user of any controlled substance. Colo. Rev. Stat. Ann. § 42-4-1301(1)(a)-(c) (West 2010).

Affirmative Defense

The fact that any person charged is or has been entitled to use one or more drugs under the laws of this state, including, but not limited to, the medical use of marijuana shall not constitute a defense against any charge of violating this subsection. Id. § 42-4-1301(1)(e).

Implied Consent

  • A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, habitual user, or UDD. Id. § 42-4-1301.1(2)(a)(I).
  • If a person refuses to take or to complete any test or tests and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial. Id. § 42-4-1301(6)(a)(III)(d).
  • Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section. The results of such preliminary screening test shall be made available to the driver or the driver's attorney on request. Id. § 42-4-1301 (6)(h)(i)(III).
  • The department shall revoke the license of a person for refusal of test for one year for a first refusal, two years for a second refusal of test and three years for a third or subsequent refusal. Id. § 42-2-126(3)(c)(I).
  • Generally, an arrested person has no right to consult with an attorney before taking a chemical test. Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984).
  • When an arresting officer invokes the sanctions of the implied consent law by requesting the driver to submit to chemical testing, the officer has a corresponding duty to comply with the driver's request for a blood test. People v. Gillett, 629 P.2d 613 (1981).

Penalties

  • First offense (DUI, DUI per se, or habitual user) - imprisonment in the county jail for a mandatory minimum of five days but no more than one year; fine of at least six hundred dollars, but no more than one thousand dollars; at least forty-eight hours but no more than ninety-six hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law.Id. § 42-4-1307(3).
  • First offense (DWAI)* - imprisonment in the county jail for a mandatory minimum of two days but no more than one hundred eighty days; fine of at least two hundred dollars but no more than five hundred dollars; at least twenty-four hours but no more than forty-eight hours of useful public service; the court may impose a period of probation that shall not exceed two years, which probation may include any conditions permitted by law. Id. § 42-4-1307(4).
    • * "Driving while ability impaired" or "DWAI" means driving a motor vehicle when a person has consumed alcohol, one or more drugs, or a combination of both, that affects the person to the slightest degree which fails to meet the level for DUI impairment. There is only a sentencing disparity when it comes to the first offense. After the first DUI or DWAI each subsequent DUI or DWAI is punished without distinction.
  • Second offense - imprisonment in the county jail for a mandatory minimum ten consecutive days but no more than one year; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(5).
  • Third and subsequent offense - imprisonment in the county jail for a mandatory minimum of sixty consecutive days but no more than one year; mandatory participation in a court-ordered alcohol and drug driving safety education or treatment program; fine of at least six hundred dollars but no more than one thousand five hundred dollars; at least forty-eight hours but no more than one hundred twenty hours of useful public service; a period of probation of at least two years. Id. § 42-4-1307(6).

Sobriety Checkpoints

Sobriety checkpoints are permissible in Colorado under both the state and federal Constitution.

  • In light of the state's substantial interest in combating drunk driving, sobriety checkpoint was not "unreasonable" under Fourth Amendment. The stops averaged no longer than three minutes and were found to be a relatively minor burden on motorists. Checkpoint was held permissible when officer did not stop vehicles that turned around to avoid checkpoint. People v. Rister, 803 P.2d 483 (Col. 1990).

Case Law

Stanger v. Colorado Dept. of Revenue, Motor Vehicle Div., State of Colo., 780 P.2d 64 (1989) -- An arresting officer has the discretion to demand a driver to submit to tests in order to reveal the presence of drugs if driver is suspected of DUI-drug offense. The driver has no right to choose which test.

Cox v. People, 735 P.2d 153 (1987) -- Since driver may have reason for refusing to submit to test that is unrelated to consciousness of guilt, inference of intoxication that is permissible from evidence of driver's refusal to take blood or breath test is rebuttable.
Drake v. Colorado Dept. of Revenue, Motor Vehicle Div., 674 P.2d 359 (1984) -- Generally, an arrested person has no right to consult with an attorney before taking a chemical test. If a defendant refuses to consent to testing before talking to an attorney, such behavior will generally be deemed a refusal.

Halter v. Department of Revenue of State of Colo., Motor Vehicle Div., 857 P.2d 535 (1993) - Officers' request that driver undergo drug testing was reasonable where breath test showed no presence of alcohol but driver displayed various indications of intoxication. If an officer has probable cause to supported arrest and breath alcohol test, officer also may request that driver submit to drug test. If driver passes the breath test, drug use is a reasonable explanation for driver's intoxication regardless of whether other evidence existed to support search for drugs.

Dayhoff v. State, Motor Vehicle Division, 595 P.2d 1051 (1979) -- Driver not driving on public highway is not controlled by implied consent statute. Driver may refuse test without license suspension.

Thompson v. People, 510 P.2d 311 (1979) -- Standard of proof for DUI is "substantially under the influence," rather than intoxication to the "slightest degree". The degree of intoxication must be substantial so as to render one incapable of safely operating a vehicle.

Colorado Medical Marijuana

SUMMARY: Fifty-four percent of voters approved Amendment 20 on November 7, 2000, which amends the state’s constitution to recognize the medical use of marijuana. The law took effect on June 1, 2001. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physician affirming that he or she suffers from a debilitating condition and advising that they "might benefit from the medical use of marijuana." (Patients must possess this documentation prior to an arrest.) Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer; chronic pain; chronic nervous system disorders; epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS; multiple sclerosis and other disorders characterized by muscle spasticity; and nausea. Other conditions are subject to approval by the Colorado Board of Health. Patients (or their primary caregivers) may legally possess no more than two ounces of usable marijuana, and may cultivate no more than six marijuana plants. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may argue the "affirmative defense of medical necessity" if they are arrested on marijuana charges.

The medical use provisions in Colorado do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes. House Bill 1284, signed into law on June 7, 2010, establishes state provisions regulating medical cannabis dispensaries. The law requires medical marijuana dispensing facilities to obtain state and local licensing approval and to be in compliance with all local zoning codes. Dispensaries must pay a state licensing fee, shall be located no closer than 1,000 feet from a school or daycare (municipalities have the authority to issue exemptions to this rule), and operators must oversee the cultivation at least 70 percent of the marijuana dispensed at the center. Licensed dispensary owners will be required to undergo criminal background checks by the state.

House Bill 1284 imposes a statewide moratorium on the establishment of new dispensaries, beginning in July 2010. HB 1284 also grants local municipalities the authority to prohibit the establishment of dispensaries in their community. Individual caregivers are legally permitted to provide medical cannabis for up to five patients in localities that have formally banned dispensaries.

Full text of the law is available here.

AMENDMENTS: Yes. Senate Bill 109, signed into law on June 7, 2010, limits the authority of physicians to recommend cannabis therapy to patients with which the doctor has had a prior counseling relationship.

Full text of the law is available here.

MEDICAL MARIJUANA STATUTES: C.O. Const. art. XVIII, §14 (2001) (codified as §0-4-287 art. XVIII).

Colo. Rev. Stat. § 18-18-406.3 (2001) (interpreting the provisions of the ballot initiative and constitutional amendment).

Colo. Rev. Stat. § 25-1.5-106 (2003) (originally enacted as § 25-1-107(1)(jj) (2001)) (describing the powers and duties of the Colorado Department of Public Health).

CAREGIVERS: Yes. Primary caregiver is a person other than the patient or the patient’s physician. The caregiver must be 18 years of age or older. A patient can only have one primary caregiver at a time. A patient who has designated a primary caregiver for himself or herself may not be designated as a primary caregiver for another patient. A primary caregiver may be listed on the medical marijuana registry for no more than 5 patients. Colo. Rev. Stat. §25-1.5-106 (2), (10) (2001).

CONTACT INFORMATION: Application information for the Colorado medical marijuana registry is available online or by writing:

Colorado Department of Public Health and Environment
HSVR-ADM2-A1
4300 Cherry Creek Drive South
Denver, CO 80246-1530
Phone: 303-692-2184
http://www.cdphe.state.co.us/hs/medicalmarijuana/fullpacket.pdf

Colorado Penalties


Incarceration


Fine

Possession

2 oz or less

petty offense

none

$100

2 oz or less - failure to appear

misdemeanor

6 months

$500

Display or use in public

misdemeanor

15 days additional

none

2 to 8 oz

misdemeanor

6 - 18 months

$500 - $5,000 ($600 surcharge)

More than 8 oz

felony

1 -3 years

$1,000 - $100,000 ($1,125 surcharge)

Subsequent convictions over 2 oz could double penalties.
Medical use permitted with no more than 2 oz, or 6 plants, physician recommendation and state registration.
16 - 48 hours community service required with diverted prison sentence.

Sale or Cultivation

Less than 2 oz (without payment)

petty offense

none

$100

Any amount (with payment)

felony

2 - 6 years

$2,000 - $500,000 ($1,500 surcharge)

Transport more than 100 lbs

felony

8 - 24 years

$5, 000 - $1,000,000

Transfer to a minor

felony

2 - 6 years

$2,000 - $500,000

Sale within 1,000 feet of school or public housing

felony

8 - 24 years

$10,000 - $1,000,000

Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc...)

Paraphernalia possession or sale

petty offense

none

$100

Any felony conviction causes driver's license suspension for 1 year.

 

Details

 

Possession of two ounces or less of marijuana is a petty offense. The offender receives a summons to appear in court, and upon a promise to appear in court, the offender is to be released from detention. The maximum penalty for a violation is $100. Failure to appear at the specified time and location results in the increase of the charges to a misdemeanor. Displaying or using the marijuana in public results in the added penalty of up to 15 days in jail. Possession of greater than two ounces is a misdemeanor, punishable by 6-18 months in jail and a fine of $500 - $5,000, plus a $600 surcharge. Possession of greater than 8 ounces of marijuana is a felony, punishable by 1 - 3 years in prison and a fine of $1,000 - $100,000 and a surcharge of $1,125. Generally, subsequent convictions of possession of over two ounces double the possible penalties.

Transfer of less than two ounces of marijuana for no consideration is considered possession and is punished as such. Any other transfer, sale, manufacture or cultivation is a felony, punishable by 2 – 4 years in prison and a fine of $2,000 - $500,000 and a $1,500 surcharge. Any transport of greater than 100 lbs. is punishable by 8 – 24 years in prison and a fine of $5,000 - $1,000,000. Any transfer to a minor is also a felony punishable by 2 – 4 years in prison and a fine of $2,000 - $500,000. Any sale within 1000 feet of a school or public housing area increases the penalties to 8 – 24 years in prison and a fine of $10,000 to $1,000,000.

Patients who possess written documentation from their physician recommending the use of marijuana and are registered with the state and issued an identification card may legally possess no more than two ounces of marijuana or no more than six marijuana plants.

Any convictions for drug offenses that involve diversion from the prison system require a mandatory 16 - 48 hours of community service.

Any felony convictions involving possession or sale of marijuana also result in the suspension of the offender's driver's license for a period of up to one year.

Possession or sale of paraphernalia is a petty offense punishable by a fine of up to $100.

 



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