CO Code § 18-19-103 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 19 - Drug Offender Surcharge|§ 18-19-103. Source of Revenues - Allocation of Money

  For offenses committed on and after July 1, 1996, each drug offender who is convicted, or receives a deferred sentence pursuant to section 18-1.3-102, shall be required to pay a surcharge to the clerk of the court in the county in which the conviction occurs or in which the deferred sentence is entered. Such surcharge shall be in the following amounts:   For each class 2 felony or level 1 drug felony of which a person is convicted, four thousand five hundred dollars;    For each class 3 felony or level 2 drug felony of which a person is convicted, three thousand dollars;    For each class 4 felony or level 3 drug felony of which a person is convicted, two thousand dollars;    For each class 5 felony or level 4 drug felony of which a person is convicted, one thousand five hundred dollars;    For each class 6 felony of which a person is convicted, one thousand two hundred fifty dollars;    For each class 1 misdemeanor or level 1 drug misdemeanor of which a person is convicted, one thousand dollars;    For each class 2 misdemeanor of which a person is convicted, six hundred dollars;    For each class 3 misdemeanor or level 2 drug misdemeanor of which a person is convicted, three hundred dollars.       Repealed.    The clerk of the court shall disburse the surcharge required by subsection (1) of this section as follows:   Five percent shall be retained by the clerk for purposes of administering the disbursal of the surcharge pursuant to this subsection (3).    Four percent shall be disbursed to the investigating agency to cover the costs of fingerprinting and photographing offenders pursuant to section 16-21-104 (1), C.R.S.    One percent shall be disbursed to the sheriff of the county in which the conviction or deferred sentence is entered, to cover the costs of fingerprinting and photographing offenders pursuant to section 18-18-432 (3).    Ninety percent shall be disbursed to the state treasurer who shall credit the same to the correctional treatment cash fund created pursuant to subsection (4) of this section. (3.5)   Repealed.    The general assembly shall appropriate to the correctional treatment cash fund created pursuant to subsection (4) of this section at least seven million six hundred fifty-six thousand two hundred dollars in fiscal year 2012-13 from the general fund, at least nine million five hundred thousand dollars in fiscal year 2013-14 from the general fund, and each year thereafter generated from estimated savings from House Bill 10-1352, enacted in 2010.    The general assembly shall appropriate to the correctional treatment cash fund created pursuant to subsection (4) of this section at least three million five hundred thousand dollars in fiscal year 2014-15 from the general fund generated from estimated savings from Senate Bill 13-250, enacted in 2013.            as the “fund”, which consists of moneys appropriated pursuant to section 39-28.8-501, C.R.S., moneys received by the state treasurer pursuant to paragraph (d) of subsection (3) of this section and subsection (3.5) of this section, and, in addition, each year, the general assembly shall appropriate at least two million two hundred thousand dollars generated from estimated savings from the enactment of Senate Bill 03-318, enacted in 2003, to the fund. The moneys in the fund shall be used for the purposes described in paragraph (c) of subsection (5) of this section. All interest derived from the deposit and investment of moneys in the fund shall be credited to the fund. Any moneys not appropriated by the general assembly shall remain in the fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year.  (a.5) Repealed.     Notwithstanding any provision of paragraph (a) of this subsection (4) to the contrary, on April 20, 2009, the state treasurer shall deduct one hundred fifty-one thousand three hundred forty-one dollars from the drug offender surcharge fund and transfer such sum to the general fund.    Notwithstanding any provision of paragraph (a) of this subsection (4) to the contrary, on July 1, 2009, the state treasurer shall deduct one million three hundred sixty thousand dollars from the drug offender surcharge fund and transfer such sum to the general fund.         The correctional treatment board, hereby created and referred to in this subsection (5) as the “board”, shall prepare an annual treatment funding plan that includes a fair and reasonable allocation of resources for programs throughout the state. The judicial department shall include the annual treatment funding plan in its annual presentation to the joint budget committee.    The board consists of:   The executive director of the department of corrections or his or her designee;    The director of the division of probation services in the judicial department or his or her designee;    The executive director of the department of public safety or his or her designee;    The executive director of the department of human services or his or her designee. If the executive director appoints a designee, the executive director is encouraged to select someone with expertise in substance use disorder counseling and substance abuse issues.    The state public defender or his or her designee;    The president of the statewide association representing district attorneys or his or her designee; and    The president of the statewide association representing county sheriffs or his or her designee.       The board may direct that money in the correctional treatment cash fund may be used for the following purposes:   Alcohol and drug screening, assessment, and evaluation;    Alcohol and drug testing;    Substance abuse education and training;    An annual statewide conference regarding substance abuse treatment;    Treatment for assessed substance abuse and co-occurring disorders;    Recovery support services, including offender reentry; and    Administrative support to the correctional treatment board including, but not limited to, facilitating and coordinating data collection, conducting data analysis, developing contracts, preparing reports, scheduling and staffing board and subcommittee meetings, and engaging in budget planning and analysis.       Moneys from the correctional treatment cash fund may be used to serve the following populations:   Adults and juveniles on diversion for a state offense and adults and juveniles under supervision in a pretrial diversion program for a state offense;    Adults and juveniles serving a probation sentence for a state offense, including Denver county;    Adults and juveniles on parole;    Offenders sentenced or transitioned to a community corrections program;    Offenders serving a sentence in a county jail, on a work-release program supervised by the county jail, or receiving after-care treatment following release from jail if the offender participated in a jail treatment program; and    Offenders on bond or on summons, with a pending criminal case in a pre-trial treatment program.       Before adopting the annual treatment fund plan, the board shall review the information specified in paragraph (f) of this subsection (5) and shall consider proposals from the drug offender treatment boards created in section 18-19-104 for funding local assessed treatment needs.    The board shall determine the scope, method, and frequency of the data collection and the parties responsible for data collection, analysis, and reporting. The data shall be organized by judicial district and shall include, at a minimum, the following from each treatment program:   Name and location of the program, including the county and judicial district;    The referring criminal agency;    Demographic information including gender and ethnicity;    Level of treatment delivered;    Actual length of time in treatment for each client;    Discharge status and, if the status is negative, the reason for the negative discharge; and    Any special licenses held by the treatment program. (5.5) Repealed.            The court may not waive any portion of the surcharge required by this section unless the court first finds that the drug offender is financially unable to pay any portion of said surcharge.    The finding required by paragraph (a) of this subsection (6) shall only be made after a hearing at which the drug offender shall have the burden of presenting clear and convincing evidence that he is financially unable to pay any portion of the surcharge.    The court shall waive only that portion of the surcharge which the court has found the drug offender is financially unable to pay.        History. Source: L. 91: Entire article added, p. 445, § 12, effective May 29. L. 93: (3)(c) amended, p. 1779, § 41, effective June 6. L. 94: (2) and (3) amended, p. 1632, § 36, effective May 31; (4) amended, p. 2605, § 5, effective July 1. L. 96: (1) amended, p. 134, § 1, effective March 25. L. 2002: IP(1) and (2) amended, p. 1522, § 218, effective October 1. L. 2003: (5.5) added, p. 2686, § 4, effective July 1. L. 2009: (4) and (5.5) amended,(SB 09-208), ch. 149, p. 621, § 13, effective April 20; (4)(c) added,(SB 09-279), ch. 367, p. 1926, § 5, effective June 1. L. 2010: (1)(c), (1)(d), (1)(e), (1)(f), (1)(g), (1)(h), (2), (4)(a), and (5.5)(b) amended and (3.5) added,(HB 10-1352), ch. 259, pp. 1175, 1171, §§ 25, 9, effective August 11. L. 2011: (5.5)(c) added,(SB 11-164), ch. 33, p. 92, § 2, effective March 18. L. 2012: (3)(d), (3.5)(b), (4)(a), (5), and (5.5) amended, (3.5)(a) repealed, and (4)(a.5) added,(HB 12-1310), ch. 268, p. 1407, § 35, effective June 7. L. 2013: (5)(d)(I) amended,(HB 13-1156), ch. 336, p. 1962, § 16, effective August 7; (1) and (2) amended and (3.5)(c) added,(SB 13-250), ch. 333, p. 1935, § 55, effective October 1. L. 2014: (5)(d)(I), (5)(d)(IV), and (5)(d)(V) amended and (5)(d)(VI) added,(SB 14-163), ch. 391, p. 1978, § 21, effective June 6. L. 2015: (4)(a) amended,(HB 15-1367), ch. 271, p. 1073, § 10, effective June 4. L. 2017: (5)(b)(IV) amended,(SB 17-242), ch. 263, p. 1308, § 147, effective May 25. L. 2018: IP(5)(c) and (5)(c)(VI) amended,(HB 18-1176), ch. 321, p. 1927, § 4, effective May 30. L. 2021: (2) repealed,(HB 21-1090), ch. 157, p. 901, § 4, effective May 20.    Editor's note:   Subsections (4)(a.5) and (5.5) provided the repeal of subsections (4)(a.5) and (5.5), respectively, effective July 1, 2012. (L. 2012, p. 1407.)   Cross references:   For the legislative declaration contained in the 2002 act amending the introductory portion to subsection (1) and subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative intent contained in the 2003 act enacting subsection (5.5), see section 1 of chapter 424, Session Laws of Colorado 2003. For the legislative declaration in HB 15-1367, see section 1 of chapter 271, Session Laws of Colorado 2015. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. For the legislative declaration in HB 18-1176, see section 1 of chapter 321, Session Laws of Colorado 2018.   ANNOTATION   Drug offender surcharge is properly characterized as a punishment rather than as a nonpunitive, compensatory payment. As such, the surcharge is appropriately scrutinized against constitutional provisions prohibiting ex post facto legislation. People v. Stead, 845 P.2d 1156 (Colo. 1993).   Imposition of drug offender surcharge violated prohibition against ex post facto laws where defendant committed offenses before effective date of statute. People v. Stead, 845 P.2d 1157 (Colo. 1993); People v. Henry, 845 P.2d 1160 (Colo. 1993); People v. Ellington, 854 P.2d 223 (Colo. 1993); People v. Brown, 854 P.2d 228 (Colo. 1993); People v. Stead, 854 P.2d 229 (Colo. 1993).   Court erred in imposing surcharge for offenses that took place in December, 1990. Statute was intended to apply to acts committed on or after July 1, 1991, and imposition of surcharge for 1990 act violates constitutional prohibition against ex post facto law. People v. Racheli, 878 P.2d 46 (Colo. App. 1994).   The double jeopardy clause requires the trial court to impose the drug offender surcharge at the time it imposes defendant's sentence in open court. The surcharge is considered punishment and may be waived in full or in part based upon a defendant's financial ability to pay. People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002), overruled in Yeadon v. People, 2020 CO 38, 462 P.3d 1087, and Waddell v. People, 2020 CO 39, 462 P.3d 1100.   A drug offender surcharge is statutorily mandated and a trial court's failure to impose it in open court renders a defendant's sentence illegal and subject to correction at any time pursuant to Crim. P. 35(a) without violating the double jeopardy clause. Yeadon v. People, 2020 CO 38, 462 P.3d 1087; Waddell v. People, 2020 CO 39, 462 P.3d 1100 (both overruling People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002)); People v. Cattaneo, 2020 COA 40 , 471 P.3d 1186.   The conversion of a defendant's felony conviction to a misdemeanor conviction pursuant to § 18-1.3-103.5 does not affect the amount of the drug offender surcharge required to be imposed pursuant to this section. People v. DeBorde, 2016 COA 185 , 411 P.3d 220.   A court has the authority to waive any portion of the otherwise mandatory drug offender surcharge that it finds the offender is financially unable to pay. People v. Archuleta-Ferales, 2014 COA 178 , 343 P.3d 1069.   A court may consider family contributions and future ability to pay when determining a defendant's financial ability to pay the surcharge. People v. Archuleta-Ferales, 2014 COA 178 , 343 P.3d 1069.   Incarceration does not necessarily render a defendant unable to pay the drug offender surcharge. People v. Griffiths, 251 P.3d 462 (Colo. App. 2010).