CO Code § 42-4-1301 (2021)
2021 Colorado Code|Title 42 - Vehicles and Traffic|Article 4 - Regulation of Vehicles and Traffic|Part 13 - Alcohol and Drug Offenses|§ 42-4-1301. Driving Under the Influence - Driving While Impaired - Driving With Excessive Alcoholic Content - Definitions - Penalties

     A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof. (1) (a) A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof.    A person who drives a motor vehicle or vehicle while impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, commits driving while ability impaired. Driving while ability impaired is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof.    Repealed.    As used in this section, 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 18-18-102 (5), C.R.S., and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 18-18-412, C.R.S.    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, including, but not limited to, the medical use of marijuana pursuant to section 18-18-406.3, C.R.S., shall not constitute a defense against any charge of violating this subsection (1).    “Driving under the influence” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.    “Driving while ability impaired” means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.    Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI, it shall be sufficient to describe the offense charged as “drove a vehicle under the influence of alcohol or drugs or both”.    Pursuant to section 16-2-106, C.R.S., in charging the offense of DWAI, it shall be sufficient to describe the offense charged as “drove a vehicle while impaired by alcohol or drugs or both”.    For the purposes of this section, a person is deemed to have a prior conviction for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; or vehicular assault, as described in section 18-3-205 (1)(b), C.R.S., if the person has been convicted under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of an act that, if committed within this state, would constitute any of these offenses. The prosecution shall set forth such prior convictions in the indictment or information.    Repealed.         A person who drives a motor vehicle or vehicle when the person's BAC is 0.08 or more at the time of driving or within two hours after driving commits DUI per se. During a trial, if the state's evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving. DUI per se is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof. (2) (a) A person who drives a motor vehicle or vehicle when the person's BAC is 0.08 or more at the time of driving or within two hours after driving commits DUI per se. During a trial, if the state's evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving. DUI per se is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide, as described in section 18-3-106 (1)(b), C.R.S.; vehicular assault, as described in section 18-3-205 (1)(b), C.R.S.; or any combination thereof.  (a.5) Repealed.     In any prosecution for the offense of DUI per se, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what any tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person's blood or breath.    Pursuant to section 16-2-106, C.R.S., in charging the offense of DUI per se, it shall be sufficient to describe the offense charged as “drove a vehicle with excessive alcohol content”.      It is a class A traffic infraction for any person under twenty-one years of age to drive a motor vehicle or vehicle when the person's BAC, as shown by analysis of the person's breath, is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving. The court, upon sentencing a defendant pursuant to this subparagraph (I), may order, in addition to any penalty imposed under a class A traffic infraction, that the defendant perform up to twenty-four hours of useful public service, subject to the conditions and restrictions of section 18-1.3-507, C.R.S., and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense. (d) (I) It is a class A traffic infraction for any person under twenty-one years of age to drive a motor vehicle or vehicle when the person's BAC, as shown by analysis of the person's breath, is at least 0.02 but not more than 0.05 at the time of driving or within two hours after driving. The court, upon sentencing a defendant pursuant to this subparagraph (I), may order, in addition to any penalty imposed under a class A traffic infraction, that the defendant perform up to twenty-four hours of useful public service, subject to the conditions and restrictions of section 18-1.3-507, C.R.S., and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense.    A second or subsequent violation of this paragraph (d) is a class 2 traffic misdemeanor.          The offenses described in subsections (1) and (2) of this section are strict liability offenses.    No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI or DUI per se; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.    Notwithstanding the provisions of section 18-1-408, C.R.S., during a trial of any person accused of both DUI and DUI per se, the court shall not require the prosecution to elect between the two violations. The court or a jury may consider and convict the person of either DUI or DWAI, or DUI per se, or both DUI and DUI per se, or both DWAI and DUI per se. If the person is convicted of more than one violation, the sentences imposed shall run concurrently.      In any prosecution for DUI or DWAI, the defendant's BAC or drug content at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences: (6) (a) In any prosecution for DUI or DWAI, the defendant's BAC or drug content at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:   If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.    If at such time the defendant's BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.    If at such time the defendant's BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.    If at such time the driver's blood contained five nanograms or more of delta 9-tetrahydrocannabinol 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.       The limitations of this subsection (6) 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 or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.      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 such person's alcohol or drug level. The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a second sample of a person's blood, saliva, or urine or the collection and preservation of a delayed breath alcohol specimen is not required. (c) (I) 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 such person's alcohol or drug level. The department of public health and environment may, by rule, determine that, because of the reliability of the results from certain devices, the collection or preservation of a second sample of a person's blood, saliva, or urine or the collection and preservation of a delayed breath alcohol specimen is not required.    Nothing in this paragraph (c) prevents the necessity of establishing during a trial that the testing devices used were working properly and were properly operated. Nothing in this paragraph (c) precludes a defendant from offering evidence concerning the accuracy of testing devices.    The database compiled by the department of public health and environment containing personal identifying information relating to the results of tests of persons' breath alcohol content, and all personal identifying information thereof, are not public information. The department of public health and environment shall disclose such information only to:   The individual who is the subject of the test, or to his or her legal representative;    A named interested party in a civil or criminal action in which the test results are directly related, or to his or her legal representative;    Any prosecuting attorney, law enforcement officer, state agency, or state and local public official legally authorized to utilize such information to carry out his or her duties; or    Any party who obtains an order in a pending civil or criminal case if the court finds the party has shown good cause to have the information. In determining whether there is good cause, the court shall consider whether the materials sought exist; whether the materials sought are evidentiary and relevant; whether the materials are not otherwise procurable reasonably in advance of the proceeding by the exercise of due diligence; whether the party cannot properly prepare for the proceeding without such production and inspection in advance of the proceeding, and the failure to obtain such inspection may tend to unreasonably delay the proceeding; and whether the request for the information is made in good faith and is not for the purposes of general discovery.       The department of public health and environment may release nonpersonal identifying information from the database in accordance with sections 24-72-101 to 24-72-402, C.R.S.       If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 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, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.    Involuntary blood test - admissibility. Evidence acquired through an involuntary blood test pursuant to section 42-4-1301.1 (3) shall be admissible in any prosecution for DUI, DUI per se, DWAI, or UDD, and in any prosecution for criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1)(b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205 (1)(b), C.R.S.    Chemical test - admissibility. Strict compliance with the rules and regulations prescribed by the department of public health and environment 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.    In any trial for a violation of this section, the testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who the law enforcement officer reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained.      Following the lawful contact with a person who has been driving a motor vehicle or vehicle and when a law enforcement officer reasonably suspects that a person was driving a motor vehicle or vehicle while under the influence of or while impaired by alcohol, the law enforcement officer may conduct a preliminary screening test using a device approved by the executive director of the department of public health and environment after first advising the driver that the driver may either refuse or agree to provide a sample of the driver's breath for such preliminary test; except that, if the driver is under twenty-one years of age, the law enforcement officer may, after providing such advisement to the person, conduct such preliminary screening test if the officer reasonably suspects that the person has consumed any alcohol. (i) (I) Following the lawful contact with a person who has been driving a motor vehicle or vehicle and when a law enforcement officer reasonably suspects that a person was driving a motor vehicle or vehicle while under the influence of or while impaired by alcohol, the law enforcement officer may conduct a preliminary screening test using a device approved by the executive director of the department of public health and environment after first advising the driver that the driver may either refuse or agree to provide a sample of the driver's breath for such preliminary test; except that, if the driver is under twenty-one years of age, the law enforcement officer may, after providing such advisement to the person, conduct such preliminary screening test if the officer reasonably suspects that the person has consumed any alcohol.    The results of this preliminary screening test may be used by a law enforcement officer in determining whether probable cause exists to believe such person was driving a motor vehicle or vehicle in violation of this section and whether to administer a test pursuant to section 42-4-1301.1 (2).    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.       In any trial for a violation of this section, if, at the time of the alleged offense, the person possessed a valid medical marijuana registry identification card, as defined in section 25-1.5-106 (2)(e), C.R.S., issued to himself or herself, the prosecution shall not use such fact as part of the prosecution's case in chief.    In any traffic stop, the driver's possession of a valid medical marijuana registry identification card, as defined in section 25-1.5-106 (2)(e), C.R.S., issued to himself or herself shall not, in the absence of other contributing factors, constitute probable cause for a peace officer to require the driver to submit to an analysis of his or her blood.       Repealed.    A second or subsequent violation of this section committed by a person under eighteen years of age may be filed in juvenile court.     History. Source: L. 94: (2.5), (3)(a)(II), (3)(b)(I), and (6) amended, p. 2814, § 594, effective July 1; entire title amended with relocations, p. 2376, § 1, effective January 1, 1995. L. 95: (9)(a) and (9)(b) amended, p. 956, § 17, effective May 25; (9)(e)(II) and (12) amended, p. 315, § 3, effective July 1; (10)(d) amended, p. 224, § 3, effective July 1. L. 97: (2)(a.5) added and (6) and (8) amended, p. 1467, § § 12, 13, effective July 1. L. 98: (2)(a.5), (9)(a), and (9)(b)(III) amended, p. 174, § 6, effective April 6; (9)(b)(IV) added and (9)(g) amended, p. 1240, § § 5, 6, effective July 1; (10)(a), (10)(b), (10)(c), (10)(d), and (10)(e) amended, p. 716, § 1, effective July 1. L. 99: (9)(a)(II), (9)(g), and (10)(c) amended, p. 1158, § 3, effective July 1. L. 2000: (2)(a.5) and (7)(a)(II) amended, p. 514, § 2, effective May 12; (9)(e)(II) amended, p. 1643, § 30, effective June 1; (9)(g)(III) amended, p. 1078, § 7, effective July 1. L. 2001: (1)(e) amended, p. 474, § 3, effective April 27; (9)(a), (9)(b), and (9)(f)(I) amended, p. 789, § 8, effective July 1. L. 2001, 2nd Ex. Sess.: (9)(a), (9)(b), and (9)(f)(I) amended, p. 2, § 3, effective September 25. L. 2002: Entire section amended with relocations, p. 1898, § 2, effective July 1; (7)(e) and (7)(f) amended, p. 1561, § 368, effective October 1; (7)(d)(III) added, p. 1609, § 4, effective January 1, 2004. L. 2003: (7)(h) amended, p. 2004, § 73, effective May 22. L. 2004: (6)(c) amended, p. 234, § 1, effective April 1; (2)(a), (4), (6)(a)(II), and (6)(a)(III) amended, p. 780, § 1, effective July 1; (2)(a.5) and (7)(e) amended and (8) added, p. 1130, § 2, effective July 1. L. 2005: (7)(d)(II) amended, p. 1177, § 17, effective August 8. L. 2006: (7)(d)(II) amended, p. 1369, § 9, effective January 1, 2007. L. 2008: (7)(a)(I)(B), (7)(a)(II)(B), (7)(a)(IV)(B), (7)(b)(I)(B), (7)(b)(II)(B), and (7)(b)(III)(B) amended, p. 2086, § 4, effective July 1. L. 2009: (7)(d)(III) amended, (SB 09-133), ch. 392, p. 2119, § 2, effective August 5; (1)(a), (1)(b), (1)(c), (1)(f), (1)(g), (2)(a), (2)(a.5)(I), (6)(a)(I), (6)(a)(II), (6)(b), (6)(i)(I), and (6)(i)(II) amended, (HB 09-1026), ch. 281, p. 1278, § 56, effective October 1; (7)(d)(IV) added, (HB 09-1119), ch. 397, p. 2146, § 3, effective January 1, 2010. L. 2010: (7)(d)(IV)(A) and (7)(d)(IV)(B) amended, (SB 10-175), ch. 188, p. 807, § 86, effective April 29; (7) repealed, (HB 10-1347), ch. 258, p. 1149, § 1, effective July 1. L. 2012: (1)(c) and (1)(d) amended, (HB 12-1311), ch. 281, p. 1632, § 91, effective July 1. L. 2013: (1)(c) repealed, (1)(d), (2)(b), (4), IP(6)(a), and (6)(e) amended, and (6)(a)(IV), (6)(j), and (6)(k) added, (HB 13-1325), ch. 331, p. 1877, § 1, effective May 28. L. 2015: (1)(a), (1)(b), and (2)(a) amended, (1)(j), (1)(k), and (2)(d) added, and (2)(a.5) repealed, (HB 15-1043), ch. 262, p. 990, § 1, effective August 5. L. 2016: (6)(c) amended, (SB 16-132), ch. 221, p. 839, § 1, effective August 10. L. 2017: (1)(k) repealed, (HB 17-1288), ch. 387, p. 2004, § 2, effective August 9.    Editor's note:    This title was amended with relocations in 1994, effective January 1, 1995, and this section was subsequently amended with relocations in 2002, resulting in the relocation of provisions. Some portions of this section have been relocated to §§ 42-4-1301.1, 42-4-1301.2, 42-4-1301.3, and 42-4-1301.4. For a detailed comparison of this section, see the comparative tables located in the back of the index.    Amendments to subsections (2.5), (3)(a)(II), (3)(b)(I), and (6) by House Bill 94-1029 were harmonized with Senate Bill 94-001.    Subsections (7)(e) and (7)(f) were originally numbered as subsection (9)(h), and the amendments to it in House Bill 02-1046 were harmonized with subsections (7)(e) and (7)(f) as they appeared in Senate Bill 02-057.     Cross references:    For community or useful public service for persons convicted of misdemeanors, see § 18-1.3-507; for community service for juvenile offenders, see § 19-2-308; for additional costs imposed on criminal actions and traffic offenses, see §§ 24-4.1-119 and 24-4.2-104; for provision that the operation of vehicles and the movement of pedestrians pursuant to this section apply upon streets and highways and elsewhere throughout the state, see § 42-4-103 (2)(b); for additional costs levied on alcohol- and drug-related traffic offenses, see § 43-4-402; for community or useful public service for class 1 and class 2 misdemeanor traffic offenders, see § 42-4-1701; for collateral attacks of alcohol- or drug-related traffic offenses, see § 42-4-1702.    For the legislative declaration contained in the 2002 act amending subsections (7)(e) and (7)(f), see section 1 of chapter 318, Session Laws of Colorado 2002.     ANNOTATION   I.GENERAL CONSIDERATION.   Law reviews. For comment, “The Theory and Practice of Implied Consent in Colorado”, see 47 U. Colo. L. Rev. 723 . For article, “Review of new Legislation Relating to Criminal Law”, see 11 Colo. Law. 2148 (1982). For article, “The New Colorado Per Se DUI Law”, see 12 Colo. Law. 1451 (1983). For article, “Drunk Driving Laws: A Study of the Views of Colorado Trial Judges”, see 14 Colo. Law. 189 (1985). For article, “DUI Defense Under the Per Se Law”, see 14 Colo. Law. 2155 (1985). For comment, “The Constitutionality of Drunk Driving Roadblocks”, see 58 U. Colo. L. Rev. 109 (1986-87). For article, “A DUI Primer”, see 16 Colo. Law. 2179 (1987). For comment, “Greathouse: Has Colorado Abandoned the Protections of Garcia?”, see 59 U. Colo. L. Rev. 351 (1988). For article, “Drinking and Driving: An Update on the 1989 Legislation”, see 18 Colo. Law. 1943 (1989). For article, “A Young Lawyer's Guide to DUI Suppression Motions”, see 25 Colo. Law. 63 (Apr. 1996). For article, “Plea Bargaining, Legislative Limits, and the Separation of Powers”, see 32 Colo. Law. 63 (Mar. 2003). For article, “Drunk Drivers and Blood Draws in Colorado”, see 43 Colo. Law. 27 (Feb. 2014).   Annotator's note. Since § 42-4-1301 is similar to § 42-4-1301 as it existed prior to its 2002 amendment and § 42-4-1202 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, relevant cases construing those provisions have been included in the annotations to this section.   Procedural due process violated when guilty plea to serious offense entered in summary proceeding. In view of the serious consequences which follow the entry of a plea of guilty to driving under the influence of alcohol, the summary disposal immediately after arrest, notwithstanding the belief of the officer, evidenced by the fact that he filed the charge, that the accused was under the influence of liquor, constitutes a serious deprivation of the constitutional right of the accused to a fair trial. It is axiomatic that justice delayed is justice denied, but there are limits to the acceleration process, and the instant procedure was so unjustifiably sudden as to constitute a violation of the constitutional guarantee of procedural due process of law. Toland v. Strohl, 147 Colo. 577 , 364 P.2d 588 (1961).   A first-time charge of driving while ability impaired is not a petty offense. The general assembly's placement of numerous alcohol and drug-related offenses in a single statute demonstrates an intention to not treat first-time driving while ability impaired offenses as petty offenses. The penalties are dependant upon circumstances that may not be known by the court at the time of arraignment. The penalties for a first-time offense may easily exceed those of a petty offense under § 16-10-109 . Therefore, defendants are not required to file with a court under § 16-10-109 to obtain a trial by jury. Byrd v. Stavely, 113 P.3d 1273 (Colo. App. 2005).   Failure to preserve a second sample of the defendant's blood for independent testing did not violate his due process rights under the state constitution because the test for materiality of evidence set forth in People v. Greathouse (742 P.2d 334 (Colo. 1987)) was not met. People v. Humes, 762 P.2d 665 (Colo. 1988).   Defendant, who was convicted of vehicular assault while under the influence, vehicular assault by driving recklessly, and driving under the influence, was not denied her right to procedural due process by the prosecution's failure to preserve a second sample of her breath at the time the breathalyzer test was administered to her or to keep the victim's car in storage. Defendant failed to meet the test of materiality set forth in People v. Greathouse (742 P.2d 334 (Colo. 1987)) or the test for bad faith set forth in Arizona v. Youngblood (488 U.S. 51 (1988)).People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).   Challenge raised initially on appeal to supreme court not considered. An equal protection challenge to this section not raised during the license revocation review proceedings will not be considered if raised for the first time on appeal to the supreme court. Colgan v. State Dept. of Rev., 623 P.2d 871 (Colo. 1981).   Subsection (6)(d) is not unconstitutional because use of refusal to consent to blood alcohol test as evidence of guilt does not violate fourth amendment right prohibiting unreasonable search. Fitzgerald v. People, 2017 CO 26, 394 P.3d 671; People v. King, 2017 CO 44, 401 P.3d 516; People v. Sewick, 2017 CO 45, 401 P.3d 521; People v. Maxwell, 2017 CO 46, 401 P.3d 523; People v. Maxwell, 2017 CO 47, 401 P.3d 518.   Governmental purpose. The implied consent statute serves the distinct governmental purpose of facilitating citizen cooperation in achieving traffic safety by the use of the administrative sanction of revocation upon a refusal to submit to a test, while the statutory authorization for a probationary license is expressly directed towards the “alcohol and drug traffic driving education or treatment” of the convicted traffic offender. DeScala v. Motor Vehicle Div., 667 P.2d 1360 (Colo. 1983).   Legislative policy of this state has been to create a graduated scale of penalties arising from driving an automobile after the use of intoxicants. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   The primary purpose of this section is to obtain scientific evidence of the amount of alcohol in the bloodstream in order to curb drunk driving through prosecution for that offense. Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977); Hess v. Tice, 43 Colo. App. 47, 598 P.2d 536 (1979).   This section's purpose is to assist in the prosecution of the drinking driver. Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).   The terms “intoxicated”, “drunk”, and “under the influence of intoxicating liquor” are substantially synonymous. There is no reason to allow opinion testimony by a lay witness phrased in one of these terms and to prohibit it when it is phrased in another of these terms. People v. Norman, 194 Colo. 372 , 572 P.2d 819 (1977).   The terms “drive” and “drove” as used in this section and for purposes of the DUI statute include “actual physical control” of a vehicle, even if the vehicle is not actually moving. Proof that a person is in actual physical control of a vehicle is sufficient to prove that the person drove the vehicle. People v. Swain, 959 P.2d 426 (Colo. 1998); People v. Valdez, 2014 COA 125 , 411 P.3d 94.   Driving a motor vehicle means exercising physical control over a motor vehicle. Although the court did not instruct the jury that it must find the vehicle was reasonably capable of being rendered operable, it did not err because there was undisputed testimony that the vehicle's alleged inoperability was a result only of a lack of fuel and a dead battery. These circumstances do not, as a matter of law, render a vehicle not reasonably capable of being rendered operable. 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 DUI 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.   For general explanation of provisions of this section, see Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).   This section is not vague, indefinite, nor uncertain as there are reasonable ascertainable standards by which the guilt of an accused can be determined. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   This section, when read as a whole, provides standards sufficiently precise to inform the defendant of the crime charged. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   Defendant not deprived of his constitutional right to equal protection under this section since all class 2 misdemeanors do not reflect similar criminal conduct to which similar sanctions must be applied, the general assembly is entitled to establish more severe penalties for acts that it believes have greater social impact and graver consequences, and the defendant failed to prove that the mandatory sentencing scheme has impacted him differently from all other persons convicted of similar criminal conduct of driving under the influence. People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).   For even a full reading of the penalty section of this section would not apprise the accused of the consequences of the guilty plea. If, as the charge suggests, the accused was under the influence of liquor, he could not give an effectual waiver. The fact that the accused evidenced a desire to accept the impetuous proceedings tendered does not in the present circumstances justify the summary disposition of the charge. Toland v. Strohl, 147 Colo. 577 , 364 P.2d 588 (1961).   It is a misdemeanor for any person under the influence of intoxicating liquor to drive an automobile on the public highways. Solt v. People, 130 Colo. 1 , 272 P.2d 638 (1954); People v. Sanchez, 173 Colo. 1 88, 476 P.2d 980 (1970).   Proceedings under the implied consent law are civil in nature. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976).   Traffic laws and revocation procedures contained in §§ 42-2-122 and 42-2-203 are aimed at all drivers who operate a motor vehicle while under the influence of alcohol or while their ability is impaired, regardless of their status as alcoholics or problem drinkers. Heninger v. Charnes, 200 Colo. 194 , 613 P.2d 884 (1980).   Subsection (1)(b) intended to be a less serious offense than subsection (1)(a). The penalty and presumptions of this section clearly show a legislative intent that subsection (1)(b) is a less serious offense than subsection (1)(a), and demonstrates that the general assembly intended to establish two levels of prohibited conduct. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   And is a lesser included offense. Driving while one's ability is impaired due to consumption of alcohol is considered a lesser included offense of driving under the influence of intoxicating liquor if the evidence warrants. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   Driving under the influence is a lesser included offense of aggravated driving after revocation. Merger principles preclude conviction for a lesser included offense of a crime for which a defendant has also been convicted in the same prosecution. People v. Mersman, 148 P.3d 199 (Colo. App. 2006).   Driving under the influence is a lesser included offense of vehicular assault. If a person is guilty of vehicular assault by virtue of driving under the influence, driving under the influence is a lesser included offense prohibited by the double jeopardy clause. People v. Cruthers, 124 P.3d 887 (Colo. App. 2005); People v. Smoots, 2013 COA 152 , 396 P.3d 53, aff'd sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.   Misdemeanor offenses under this section are not the same as the felony offenses under § 18-3-205 because the elements and the required proof for conviction are different. People v. Smith, 182 Colo. 228 , 512 P.2d 269 (1973).   The misdemeanor count of driving while under the influence of intoxicating liquor is not the same offense as the felony count of inflicting bodily injury by operating an automobile in a reckless manner while under the influence of intoxicating liquor. People v. Smith, 182 Colo. 228 , 512 P.2d 269 (1973).   And are not lesser included offenses. Driving under the influence of intoxicating liquor and driving while ability is impaired are not lesser included offenses of the felony charge of inflicting bodily injury while under the influence of intoxicating liquor by driving an automobile in a reckless manner. People v. Smith, 182 Colo. 228 , 512 P.2d 269 (1973).   Dismissal of count under this section not bar to prosecution under § 18-3-205 . The court's dismissal of a misdemeanor count under this section, which placed the defendant in jeopardy as to that count, did not bar prosecution on felony count under § 18-3-205 . People v. Smith, 182 Colo. 228 , 512 P.2d 269 (1973).   Dismissal by hearing officer not bar to subsequent action. Absent the sworn report of the law enforcement officer, a hearing officer may dismiss a case without prejudice; and such dismissal is not on the merits and does not bar a subsequent action on the same incident. McBride v. State Dept. of Rev., 626 P.2d 760 (Colo. App. 1981).   Dismissal following successful completion of deferred judgment does not remove a “conviction” for purposes of statute governing the sealing of criminal records. In re Harte, 2012 COA 183 , 337 P.3d 1232.   The refusal of nondriver to take sobriety test is not within the scope of this section. Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978).   Failure of police to obtain test from unconscious victim pursuant to subsection (7)(c) does not entitle defendant to a dismissal of the charges under this section when the defendant cannot show that the failure was in bad faith. People v. Kearns, 988 P.2d 189 (Colo. App. 1999).   Where officer made no attempt to comply with the requirements of the statute and there were no circumstances that would have prevented compliance, trial court did not abuse its discretion by suppressing results of blood test. People v. Maclaren, 251 P.3d 578 (Colo. App. 2010).   Section not applicable to person not driving on public highway. The driver's license revocation provisions of this section do not apply to one who is not driving upon a public highway. Dayhoff v. State Motor Vehicle Div., 42 Colo. App. 91, 595 P.2d 1051 (1979), aff'd, 199 Colo. 363 , 609 P.2d 119 (1980).   Express consent provision not applicable to federal reservations. The federal Assimilative Crimes Act does not assimilate the express consent provision because the provision is part of state administrative proceedings. United States v. Hopp, 943 F. Supp. 1313 (D. Colo. 1996 ).   There is no requirement in this section that there be both a driving violation and evidence of operating a vehicle while under the influence of or impaired by alcohol. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976); Gilbert v. Dolan, 41 Colo. App. 173, 586 P.2d 233 (1978).   Under this section, an officer may make an arrest of one who commits a moving violation and then, if he has probable cause to believe that the person is driving under the influence of alcohol, can request that the driver take a chemical test, even though he is not under arrest at the time for driving under the influence. On the other hand, the officer may, in the first instance, arrest the suspect for driving while under the influence and then request a test be taken. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976).   Advisement form must contain reasons for believing driver under influence. The advisement form must contain the officer's reasons for believing a driver was under the influence of alcohol and the officer may not later supplement those reasons by testimony at the implied consent hearing. Marquez v. Charnes, 632 P.2d 640 (Colo. App. 1981).   But not reason for stopping driver. It is not necessary for the officer to set out the reason on the advisement form for stopping a driver. Marquez v. Charnes, 632 P.2d 640 (Colo. App. 1981).   Grounds for believing driver under the influence limited. The grounds relied on by an officer for believing that a person was driving under the influence of alcohol must be limited to the grounds set forth in the advisement. Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).   Inference that person behind wheel was driver held appropriate. The inference drawn by a police officer, that one seated behind the wheel of, and attempting to start, a vehicle stopped in a highway travel lane was a driver thereof, was not inappropriate, and served as an adequate basis for the officer to proceed pursuant to this section. Johnson v. Motor Vehicle Div., 38 Colo. App. 230, 556 P.2d 488 (1976); People v. Valdez, , 411 P.3d 94 .   Standard of proof necessary for conviction of driving while under the influence of intoxicating liquor is “substantially under the influence”. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).   Standard of intoxication in prosecution for driving while impaired is impairment to the “slightest degree”. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(g)).   Reasonable grounds to arrest driver. Evidence that a driver's automobile was weaving across traffic lanes and speeding, that there was an odor of alcohol on the driver's breath, and that the driver did not satisfactorily perform the roadside sobriety tests, is sufficient to support a hearing officer's finding that there existed “reasonable grounds” to believe that the driver was driving under the influence of alcohol. Hall v. Charnes, 42 Colo. App. 111, 590 P.2d 516 (1979).   Reasonable grounds to believe licensee was driving under the influence of or impaired by alcohol. Based on his own observations, the information received from the investigating officer and the fact that the licensee did not deny the written allegation in the advisement form that he had been driving a motor vehicle, the officer had reasonable grounds to believe that the licensee had been driving under the influence of or impaired by alcohol. Colo. Dept. of Rev. v. Kirke, 743 P.2d 16 (Colo. 1987) (decided under law in effect prior to 1983 amendment).   Police officer is not authorized to request and to direct an arrested driver to submit to alcohol testing absent probable cause for the DUI arrest and also for the initial stop. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).   Express consent provision does not apply to roadside sobriety tests. Instead it deals only with the express consent given by any driver on state roads to take a blood or breath test if a peace officer has probable cause to arrest for an alcohol driving offense. United States v. Hopp, 943 F. Supp. 1313 (D. Colo. 1996 ).   Failure to request suppression of test results is waiver of objection. Where defendant not only failed to request suppression of the breath test results but also stipulated to those results and permitted them to be received in evidence without objection, he has waived any right to object on appeal to the admission of this evidence, absent a showing of plain error. People v. Dee, 638 P.2d 749 (Colo. 1981).   Defective complaint does not bar prosecution. A complaint charging driving a vehicle “while under the influence of intoxicating liquor or drugs,” in the disjunctive, is defective in form only, and an amendment should be allowed to cure this technical irregularity. People v. Dickinson, 197 Colo. 338 , 592 P.2d 807 (1979).   Evidence held admissible. Video portion of movie film taken at the time of arrest, showing defendant's refusal to take some of the sobriety tests requested by the police and pictures of his going through one test, later was admissible in prosecution for driving under the influence regardless of fact that the sound on the film had been ordered suppressed by the court because it revealed that defendant invoked his constitutional right to remain silent. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   The appellant's erratic driving behavior constituted sufficient probable cause to stop his car. Thus, the results of the roadside sobriety tests conducted by a deputy sheriff were validly included in the evidence adduced at the hearing under this section. Stream v. Heckers, 184 Colo. 149 , 519 P.2d 336 (1974).   Claim that roadside sobriety test results should be suppressed from evidence after defendant voluntary consented to performing such tests is without merit. People v. Lowe, 687 P.2d 454 (1984).   Evidence of refusal to take a blood or breath test is admissible in evidence at a revocation of license proceeding or at a trial for driving under the influence or while ability impaired, and the effect of subsection (3)(e) is to allow admission of such evidence in every case without a determination of relevancy on a case-by-case basis. Cox v. People, 735 P.2d 153 (Colo. 1987).   Weight of toxicologist's testimony is for trier of fact. The weight of a toxicologist's testimony for purposes of establishing whether the defendant was under the influence of intoxicating liquor in prosecution for vehicular homicide is for the trier of fact. People v. Mascarenas, 181 Colo. 268 , 509 P.2d 303 (1973).   Sufficiency of foundation to admit test results as evidence. Prima facie case for introduction of intoxilyzer test results is made when breath testing device is operated by a person certified to use the device and when it is administered in accordance with administrative rules and regulations. Aultman v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 5 (Colo. App. 1985); Malone v. Dept. of Rev., 707 P.2d 363 (Colo. App. 1985).   Introduction of operational checklist and testimony that checklist procedures were followed establishes a sufficient foundation to allow admission of breath test results. State does not have to establish by current inspection and certification that breath testing device performed accurately. Aultman v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 5 (Colo. App. 1985); Malone v. Dept. of Rev., 707 P.2d 363 (Colo. App. 1985).   Arresting officer's testimony and police report are prima facie evidence that blood test was administered in compliance with rules and regulations. Miller v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 10 (Colo. App. 1985).   Preliminary breath test (PBT) results inadmissible in trial proceedings. The plain language of subsection (6)(i)(III) precludes the use of PBT results for impeachment purposes at trial, and the PBT results may only be used in a probable cause hearing outside the presence of the jury. Cain v. People, 2014 CO 49M, 327 P.3d 249.   Once driver refused to take breath test after deputy informed him that breathalyzer was functioning properly, the operability of the breathalyzer was not at issue. Because driver refused testing, there was no testing device, there was no method of testing, and there were no test results as contemplated by subsection (6)(c). Accordingly, subsection (6)(c) is not applicable. Long v. Colo. Dept. of Rev., , 296 P.3d 329 .   The failure of the arresting officer to identify which particular nurse drew driver's blood and the failure to establish whether such nurse met the criteria set forth in regulations went to the weight, rather than the admissibility, of blood alcohol test results in driver's license revocation proceeding. Dye v. Charnes, 757 P.2d 1162 (Colo. App. 1988).   The delay in obtaining samples did not affect the validity or reliability of the test nor did it affect the admissibility of the test results. The “reasonable time” limitation is to ensure that the request for the test is made close enough in time to the alleged offense that the results will be relevant in the determination of defendant's sobriety at the time of the incident. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   While the timeliness of the blood test may affect its accuracy, evidence which relates to the accuracy of a chemical test affects the weight to be accorded the evidence, rather than its admissibility. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   No error in hearing officer's ruling that testing request made one hour and 58 minutes after the accident was within a “reasonable time”. Poe v. Dept. of Rev., 859 P.2d 906 (Colo. App. 1993).   Admission of blood test results does not limit any efforts by the defendant to challenge the accuracy of the results, or the weight they are to be given. Nor does it prohibit the jury from considering any other competent evidence regarding the inference of intoxication. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   Evidence held sufficient. When the toxicologist's testimony is considered together with the testimony of the two investigating officers concerning the alcoholic odor about the defendant immediately after the accident and the testimony that defendant was driving on the wrong side of the road, the evidence of defendant being under the influence of intoxicating liquor is abundant and sustains the verdict of guilty of vehicular homicide. People v. Mascarenas, 181 Colo. 268 , 509 P.2d 303 (1973).   Common signs of intoxication and refusal to take a field sobriety and blood alcohol tests constitute sufficient evidence to prove that defendant drove while under the influence of alcohol. People v. Mersman, 148 P.3d 199 (Colo. App. 2006).   Odor of alcohol is not inconsistent with ability to operate a motor vehicle in compliance with Colorado law. People v. Roybal, 655 P.2d 410 (Colo. 1982).   Sufficient facts for reasonable grounds for implied consent test request. The odor of alcohol on a driver's breath, coupled with the position of his vehicle on an interstate highway, are sufficient facts to constitute reasonable grounds for an officer to request an implied consent test. Stephens v. State Dept. of Rev., 671 P.2d 1348 (Colo. App. 1983).   Determining whether one is substantially under influence is jury issue. Given the rebuttable presumptions, if chemical analysis of a defendant's blood is taken or other evidence is offered, juries of common experience can determine whether one is substantially under the influence so as to be incapable of operating a vehicle safely, as distinguished from merely driving while ability is impaired. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   Jury instruction is too broad where it does not recognize the two levels of intoxication created by the general assembly in this section. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).   A trial court's instruction on the meaning of “intoxication” is not erroneous where it states that one drink of an intoxicating liquor might produce such a mental and physical condition as to render the defendant “under the influence” of alcohol within the meaning of the statute. Lanford v. People, 159 Colo. 36 , 409 P.2d 829 (1966).   Proper instruction defining “under the influence”. Jury should be instructed that in order for one to be found guilty of the charge of “driving while under the influence”, the degree of influence must be substantial so as to render the defendant incapable of safely operating a vehicle. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).   It is error for an instruction to be given which defines “under the influence” as meaning anything from the slightest to the greatest effect. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973) (decided prior to 1989 enactment of subsection (1)(f)).   No error in failing sua sponte to instruct jury on affirmative defense where affirmative defense addresses an element of the crime. The prosecution is required to prove the elements of the crime, and, in doing so, has negated an affirmative defense. People v. Jacobson, 2017 COA 92 , — P.3d —.   The specific statutory provisions of this section that contain a mandatory sentencing scheme for alcohol-related driving offenses and that provide for extended treatment of the underlying cause of the criminal conduct, prevail over the general provisions of § 16-11-202 . People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).   Order revoking a driver's license for failure to submit to a chemical test was not stayed by a subsequent district court order declining to order return of the license to the driver but granting him the privilege of driving in the course of his employment. Donelson v. Colo. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).   Trial court has no power to award costs to plaintiff in a case challenging revocation of a driver's license under this section, because there is no specific statutory provision allowing for such an award. Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).   Before reviewing court sets aside order of revocation as arbitrary or capricious, it must be convinced from the record as a whole that there is a manifest insufficiency of evidence to support the department's decision. Davis v. Colo. Dept. of Rev., 623 P.2d 874 (Colo. 1981).   Driving status of “revoked” continues until new license obtained. Until a driver complies with the terms of a denial order and obtains a new license, his driving status as “revoked” or “denied” continues. People v. Lessar, 629 P.2d 577 (Colo. 1981).   Expired revocation order continued in effect until driver's application for license approved pursuant to § 42-2-124 (2) . Donelson v. Colo. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).   A county court has jurisdiction over the subject matter of offenses alleged to have been committed under this section. People v. Griffith, 130 Colo. 475 , 276 P.2d 559 (1954).   The various degrees of intoxication under this section are all “legal intoxication” for purposes of § 523(a)(9) of the Bankruptcy Code. Dougherty v. Brackett, 51 B.R. 987 (Bankr. D. Colo. 1985 ).   Categorization of driving under the influence as a vehicular offense precludes a determination that general assembly intended to consider it a drug law offense under the habitual criminal statute (§ 16-13-101 (3) ). People v. Wilczynski, 873 P.2d 10 (Colo. App. 1993).   Definition of “police officer” is not limited to state, county, or municipal personnel and the Air Force security police are law enforcement officers who can request testing pursuant to subsection (6). Eggleston v. Dept. of Rev. Motor Veh. Div., 895 P.2d 1169 (Colo. App. 1995).   County court judge did not abuse his discretion nor exceed his authority in resentencing defendant who was immediately sentenced as provided in subsection (9)(e)(I) after the judge discovered that, contrary to defendant's representations, defendant had a prior charge under this section. Walker v. Arries, 908 P.2d 1180 (Colo. App. 1995).   Vehicular homicide while driving under the influence is grave and serious per se for purposes of a proportionality review because of the grave harm caused, the death of a person, and the culpability of the defendant's conduct, choosing to drive while intoxicated. People v. Strock, 252 P.3d 1148 (Colo. App. 2010).   Applied in People v. Oldefest, 192 Colo. 229 , 557 P.2d 417 (1976); Rust v. Dolan, 38 Colo. App. 529, 563 P.2d 28 (1977); People v. Smith, 192 Colo. 271 , 579 P.2d 1129 (1978); Tobias v. State, 41 Colo. App. 444, 586 P.2d 669 (1978); Zullo v. Charnes, 41 Colo. App. 544, 587 P.2d 1203 (1978); People v. Heinz, 197 Colo. 102 , 589 P.2d 931 (1979); Amon v. People, 198 Colo. 172 , 597 P.2d 569 (1979); Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979); Cagle v. Charnes, 43 Colo. App. 401, 604 P.2d 697 (1979); Butters v. Mince, 43 Colo. App. 89, 605 P.2d 922 (1979); Mince v. Butters, 200 Colo. 501 , 616 P.2d 127 (1980); People v. McKnight, 200 Colo. 486 , 617 P.2d 1178 (1980); Charnes v. Kiser, 617 P.2d 1201 (Colo. 1980); Van Gerpen v. Peterson, 620 P.2d 714 (1980); Nix v. Tice, 44 Colo. App. 42, 607 P.2d 399 (1980); Harris v. Charnes, 616 P.2d 996 (Colo. App. 1980); Zamora v. State Dept. of Rev., 616 P.2d 1003 (Colo. App. 1980); People v. Ensor, 632 P.2d 641 (Colo. App. 1981); People v. Beltran, 634 P.2d 1003 (Colo. App. 1981); Zoske v. People, 625 P.2d 1024 (Colo. 1981); People v. Dooley, 630 P.2d 608 (Colo. 1981); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981); State v. Laughlin, 634 P.2d 49 (Colo. 1981); Fish v. Charnes, 652 P.2d 598 (Colo. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983); Stieghorst v. Charnes, 676 P.2d 1227 (Colo. App. 1983); Swim v. Charnes, 717 P.2d 1016 (Colo. App. 1986); Potier v. Dept. of Rev., 739 P.2d 915 (Colo. App. 1987); Knox v. Motor Vehicle Div., 739 P.2d 928 (Colo. App. 1987).   II.PRESUMPTIONS.   This section sets up a series of presumptions arising from the amount of alcohol in the blood. Egle v. People, 159 Colo. 217 , 411 P.2d 325 (1966).   The limitations of this section shall not prevent the consideration of any other competent evidence that defendant was under the influence of intoxicating liquor. Egle v. People, 159 Colo. 217 , 411 P.2d 325 (1966).   Subsection (2) authorizes only a permissive inference that defendant was under the influence of alcohol. Because of the constitutional conflicts which arise with the use of presumptions in criminal cases and because of the central purposes behind the legislature's enactment of the presumption, subsection (2)(c) is properly construed to authorize only a permissive inference that the defendant was under the influence of alcohol. Barnes v. People, 735 P.2d 869 (Colo. 1987).   Instruction which told jurors that they “must accept the presumption as if it had been factually established by the evidence” and that they could reject this presumption only if it was “rebutted by evidence to the contrary” created a mandatory and not a permissive presumption that the petitioner was under the influence of alcohol. Barnes v. People, 735 P.2d 869 (Colo. 1987).   Both subsection (2) of this section and § 18-3-106 (2) permit a jury to infer that a defendant was under the influence of alcohol if it finds that the amount of alcohol in his blood at the time of the commission of the alleged offense “or within a reasonable time thereafter,” as shown by chemical analysis of the defendant's blood, is 0.10 percent or more. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   Subsection (2)(c) is very specific in limiting the use of its presumption to the misdemeanors of driving any vehicle while under the influence of intoxicating liquor and driving while ability is impaired by the consumption of alcohol. People v. Davis, 187 Colo. 16 , 528 P.2d 251 (1974).   Statutory presumption of subsection (2)(c) is not applicable to a felony charge under § 18-3-106 . People v. Davis, 187 Colo. 16 , 528 P.2d 251 (1974).   Defendant's ability to attack validity of presumption that he was driving under the influence of alcohol when he had a blood alcohol level of .10 percent is dependent upon his ability to attack the accuracy of the machine which tested his blood alcohol level. Garcia v. District Court, 197 Colo. 38 , 589 P.2d 924 (1979).   The blood alcohol test results are statutorily deemed to relate back to the alleged offense for purposes of applying the statutory inferences. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   Jury could infer that the defendant was under the influence at the time of the offense where the prosecution presented evidence that approximately three hours after the accident, defendant's blood alcohol level was above the statutory percentage. Because the circumstances at issue permitted the jury to make such inference, the extrapolation evidence offered to establish a still higher blood alcohol level was neither necessary nor relevant and the admission thereof was harmless error. People v. Emery, 812 P.2d 665 (Colo. App. 1990).   Presumption that defendant was under influence specifically does not limit the introduction, reception, or consideration of other competent evidence bearing upon the question of whether or not a defendant was under the influence of intoxicating liquor. People v. Hedrick, 192 Colo. 37 , 557 P.2d 378 (1976).   Thus, moving pictures and their sound are admissible. Moving pictures and their sound, which are relevant and which allegedly show the demeanor and condition of a defendant charged with driving under the influence of either alcohol or drugs, taken at the time of the arrest or soon thereafter, are admissible in evidence even though they show the defendant's refusal to take sobriety and coordination tests, when properly offered in order to show the defendant's demeanor, conduct and appearance, and to show why sobriety and coordination tests were not given. Lanford v. People, 159 Colo. 36 , 409 P.2d 829 (1966).   Even if a defendant objects to the introduction and admission of movies, they still are to be admitted, provided that then the trial court must, at defendant's request, caution the jury as to the limited purpose of the evidence, and again at defendant's request, give a limiting instruction in the general charge for the same purpose. Lanford v. People, 159 Colo. 36 , 409 P.2d 829 (1966).   Evidence of breath analysis results indicating a level of 0.139 grams of alcohol per 210 liters of breath and testimony of both lay witness and law enforcement agents that defendant was driving erratically before the collision and that she exhibited some symptoms of being under the influence after the collision was sufficient to establish that, at the time of the collision, defendant's physical or mental capacities had been adversely affected by her previous consumption of alcohol. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).   Jury verdict convicting defendant of driving under the influence and vehicular assault while under the influence is not inconsistent with defendant's acquittal of driving with an excessive blood or breath alcohol content since the jury could well have rejected the reliability of breath tests indicating a level of 0.139 grams of alcohol per 210 liters of breath to show beyond a reasonable doubt an excessive level of alcohol in defendant's breath but could have concluded that her mental and physical capacities had been so affected that she had been under the influence given her admission that she had consumed at least one and one-half glasses of wine. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).   III.PRIOR CONVICTIONS.   Law reviews. For article, “Joinder of Criminal Charges, Election, Duplicity”, see 30 Dicta 117 (1953).   Subsections (1) and (4) of this section do not create two separate offenses. The obvious purpose of these statutory provisions is to regulate the punishment to be imposed upon the single offense of drunk driving. Righi v. People, 145 Colo. 457 , 359 P.2d 656 (1961); Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   The plain language of subsection (1) compels the conclusion that the general assembly intended prior DUI or DWAI offenses to constitute elements of felony DUI that do more than increase the penalty of the crime. Therefore, to obtain a conviction, a prosecutor must prove prior convictions to a jury beyond a reasonable doubt. Transforming a misdemeanor into a felony does far more than simply increase the potential punishment; it changes the very nature of the offense because felony trials have important procedural distinctions and collateral consequences that misdemeanor cases do not. People v. Viburg, 2020 COA 8 M, — P.3d —. But see Quezada-Caro, 2019 COA 155 , — P.3d —, annotated below.   Prior convictions are a sentence enhancer, not an element of felony DUI, and therefore need not be proven beyond a reasonable doubt. Because the prior convictions were accorded due process, this does not violate the equal protection clause. People v. Quezada-Caro, 2019 COA 155 , — P.3d —. But see People v. Viburg, 2020 COA 8 M, — P.3d —, annotated above.   Subsection (4) only intended to increase punishment for substantive offense. The guilt of a substantive offense and the proof of prior convictions are clearly severable. Proof of prior convictions or the adjudication that the defendant is an habitual criminal do not involve substantive offenses, but merely provide for increased punishment of those whose prior convictions fall within the scope of these statutes. The important relation between the primary offenses and the prior convictions charged is, therefore, the sentence to be imposed, and the jury does not participate in that. Righi v. People, 145 Colo. 457 , 359 P.2d 656 (1961); Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   Former convictions must be in separate counts of the information, and then it appears to be the accepted practice that when arraignment is had, the defendant be fully advised of these counts in the information. Heinze v. People, 127 Colo. 54 , 253 P.2d 596 (1953); Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   The use of the proof of convictions of second or more offenses cannot obtain until guilt of the substantive offense on trial is established. Heinze v. People, 127 Colo. 54 , 253 P.2d 596 (1953); Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   The same jury need not be utilized in both segments in the prosecution of a drunk driving charge aggravated by a charge of a prior conviction within five years. Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   However, proof may be offered to the same jury if a guilty verdict has been returned on the substantive count. Heinze v. People, 127 Colo. 54 , 253 P.2d 596 (1953).   Abuse of discretion to set aside guilty verdict on substantive offense and order another trial on second count of prior conviction. Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   When the sole question on remand from an appellate court involves the proof of an alleged prior conviction, there is no reason to require the parties to retry the question of guilt of the primary offenses when the correctness of that determination is not challenged. There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses. Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   IV.USEFUL PUBLIC SERVICE.   Although the useful public service statute may not impose specific duties upon a public employee so as to allow application of the doctrine of negligence per se, under the facts of this case, a special relationship between the sheriff and offender under the program was created which brought into existence a duty on the part of the sheriff to use due care in selecting entities for whom service would be rendered and monitoring the offender's work under the program. Felger v. Bd. of County Comm'rs, 776 P.2d 1169 (Colo. App. 1989).