2023 Colorado Revised Statutes › Title 33 - PARKS AND WILDLIFE (§§ 33-1-101 — 33-61-107) › PARKS (§§ 33-10-101 — 33-15-114) › Article 13 - VESSELS (§§ 33-13-101 — 33-13-116) › Section 33-13-108.1 - Operating a vessel while under the influence - definitions

(1)
(a)
It is a misdemeanor for any person to operate or be in actual physical control of a motorized, wind-powered, or flying vessel in this state while:
(I)
Under the influence of alcohol;
(II)
The amount of alcohol, as shown by analysis of the person's blood or breath, in the person's blood is 0.08 or more grams of alcohol per one hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense or within two hours after operating a vessel, if the evidence establishes beyond a reasonable doubt that the person did not consume any alcohol between the time of operation and the time of testing;
(III)
Under the influence of any controlled substance as defined in section
18-18-102 (5)
, C.R.S., or any other drug that renders the person incapable of safely operating a vessel;
(IV)
Under the influence of any combination of alcohol and any controlled substance as defined in section
18-18-102 (5)
, C.R.S., or any other drug, when the combination of alcohol and controlled substance or any other drug renders the person incapable of safely operating a vessel.
(b)
For the purposes of this subsection (1), "under the influence of any controlled substance or any other drug" shall include the use of glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor.
(2)
(a)
In any prosecution of a violation of paragraph (a) of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, shall give rise to the following presumption: If there was at that time 0.08 or more grams of alcohol per one hundred milliliters of blood as shown by analysis of the person's blood or 0.08 or more grams of alcohol per two hundred ten liters of breath as shown by analysis of the person's breath, it shall be presumed that the defendant was under the influence of alcohol.
(b)
The limitation of this subsection (2) 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.
(3)
In any prosecution for a violation of subsection (1) of this section, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what the 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.
(4)
(a)
A person who operates a vessel or who is in actual physical control of a vessel on the waters of this state shall be deemed to have expressed consent to the provisions of this subsection (4).
(b)
Any person who operates or is in actual physical control of a vessel on the waters of this state may be required to submit to a test or tests of breath or blood for the purpose of determining the alcoholic content of the person's blood or breath if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was operating a vessel in violation of subsection (1) of this section. If the person requests that the test be a blood test, then the test shall be of the person's blood; but, if the person requests that a specimen of blood not be drawn, then a specimen of the person's breath shall be obtained and tested.
(c)
Any person who operates or is in actual physical control of a vessel on the waters of this state may be required to submit to a test or tests of the person's blood, saliva, and urine for the purpose of determining the drug content within the person's system if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was operating a vessel in violation of subsection (1) of this section.
(5)
Any person who is required to submit to testing or who requests that a specimen of blood, breath, saliva, or urine be taken or drawn shall cooperate with the person authorized to obtain the specimens, including the signing of any release forms required by any person who is authorized to take or withdraw such specimens. If the person refuses to sign any release forms, the refusal shall be considered a refusal to take the tests, if said forms conform to subsection (6) of this section. No peace officer shall physically restrain any person for the purpose of obtaining a specimen of his blood, breath, saliva, or urine for testing.
(6)
The arresting officer having probable cause to believe a person has violated this section shall direct the administration of the tests in accordance with rules prescribed by the state board of health with utmost respect for the constitutional rights, dignity, and health of the person being tested. No person except a physician, a registered nurse, an emergency medical service provider certified or licensed under part 2 of article
3.5
of title
25
who is authorized within his or her scope of practice to draw blood, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall withdraw blood to determine the alcohol or drug content of the blood for purposes of this section. Civil liability does not attach to a person authorized to obtain blood, breath, saliva, or urine specimens or to a hospital in which the specimens are obtained as provided in subsection (4) of this section as a result of the act of obtaining the specimens from any person submitting thereto if the specimens were obtained according to the rules of the state board of health; except that this subsection (6) does not relieve the person from liability for negligence in obtaining a specimen sample.
(7)
Any person who is dead or unconscious shall be tested to determine the alcoholic content of the person's blood as provided in subsection (4) of this section. In addition to the tests prescribed, the blood of a dead person shall be checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. All information obtained will be made a part of the accident report.
(8)
If a person refuses to submit to tests as provided for in subsection (4) of this section and the person subsequently stands trial for a violation of subsection (1) of this section, the refusal to submit to the 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 submit to any tests.
(9)
The fact that any person charged with a violation of subparagraph (II) or (III) of paragraph (a) of subsection (1) of this section is or has been entitled to use the controlled substance or drug under the laws of this state shall not constitute a defense against any person charged with the violation.
(10)
No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related boating offense from a person charged with a violation of subsection (1) of this section unless the prosecuting attorney makes a good faith representation that a prima facie case could not be established if the defendant were brought to trial on the original alcohol-related or drug-related offense.
(11)
When a peace officer has reasonable grounds to believe that a person is operating a vessel while under the influence of alcohol or that the operator has been involved in a boating accident resulting in injury or death, the peace officer may request the operator to provide a sample of the operator's breath for a preliminary screening test. The test shall be given using a device approved by the executive director of the department of public health and environment as being accurate to within ten percent of the actual reading obtained by the officer upon administering the test. The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to administer a test pursuant to paragraph (b) of subsection (4) of this section but shall not be used in any court action except to prove that a test was properly authorized pursuant to this section. The results of the test shall be made available to the operator or the operator's attorney upon request. The preliminary screening test shall not constitute the test for the purposes of subsection (4) of this section.
(12)
(a)
Every person who is convicted of a violation of subsection (1) of this section shall be punished by imprisonment in the county jail for not less than five days nor more than one year, and, in addition, the court may impose a fine of not less than six hundred dollars nor more than one thousand dollars and the court has the discretion to suspend the fine. Except as provided in subsection (12)(c) of this section, the minimum period of imprisonment provided for the violation shall be mandatory. In addition to any other penalty that is imposed, every person who is convicted of a violation to which this subsection (12)(a) applies shall perform at least forty-eight hours but no more than ninety-six hours of useful public service.
(b)
Upon a conviction of a subsequent violation of subsection (1) of this section, the offender shall be punished by imprisonment in the county jail for not less than sixty days nor more than one year, and, in addition, the court may impose a fine of not less than six hundred dollars nor more than one thousand dollars and the court has the discretion to suspend the fine. The minimum period of imprisonment as provided for the violation shall be mandatory, but the court may suspend up to fifty days of the period of imprisonment if the offender complies with subsection (12)(c) of this section. In addition to any other penalty that is imposed, every person convicted of a violation to which this subsection (12)(b) applies shall perform not less than forty-eight hours nor more than one hundred twenty hours of useful public service. The performance of the minimum period of service shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of the service.
(c)
The mandatory minimum sentence of any person subject to subsection (12)(a) of this section may be suspended to the extent provided for in said subsection if the offender receives a presentence alcohol and drug evaluation and, based on that evaluation, if the offender satisfactorily completes and meets all financial obligations of an appropriate level I or level II alcohol and drug driving safety education or treatment program as is determined to be appropriate by the alcohol and drug evaluation pursuant to section
42-4-1301.3
. If, at any time during the one-year period, the offender does not satisfactorily comply with the conditions of the suspension, that sentence shall be reimposed, and the offender shall serve that portion of the sentence that was suspended. The court, at any time, has the discretion to employ sentencing alternatives described in section
18-1.3-106
.
(d)
In addition to any other penalty provided by law, the court may sentence a defendant who is convicted pursuant to this section to a period of probation for the purposes of treatment not to exceed two years.
(e)
For the purposes of this subsection (12), "useful public service" has the meaning set forth in section
42-4-1301.4
, C.R.S., and the useful public service program authorized therein shall be utilized for the purposes of this subsection (12). An offender sentenced to a useful public service program shall complete the same within the time established by the court. In addition to any other penalties, fines, fees, or costs prescribed in this section, the court shall assess an amount not to exceed the amount established in section
42-4-1301.4
, C.R.S., upon any person required to perform useful public service. The amount shall be used only to pay for the costs authorized in section
42-4-1301.4
, C.R.S.
(f)
For the purposes of this subsection (12), "alcohol and drug driving safety education or treatment" has the meaning set forth in section
42-4-1301.3
, C.R.S., and the alcohol and drug driving safety program and the presentence alcohol and drug evaluations authorized in said section shall be utilized for the purposes of this subsection (12). The presentence alcohol and drug evaluation shall be conducted on all persons convicted of a violation of subsection (1) of this section; except that this requirement shall not apply to persons who are not residents of Colorado at the time of sentencing. Any defendant sentenced to level I or level II education or treatment programs shall be instructed by the court to meet all financial obligations of the programs. If the financial obligations are not met, the sentencing court shall be notified for the purpose of collection or review and further action on the defendant's sentence. In addition to any other penalties, fines, fees, or costs prescribed in this section, the court shall assess an amount, not to exceed the amount established in section
42-4-1301.3
, C.R.S., upon any person convicted of a violation of subsection (1) of this section. The amount shall be used only to pay for the costs authorized in section
42-4-1301.3
, C.R.S. The court shall consider the alcohol and drug evaluation prior to sentencing. This paragraph (f) is also applicable to any defendant who receives a diversion in accordance with section
18-1.3-101
, C.R.S., or who receives a deferred sentence in accordance with section
18-1.3-102
, C.R.S.
(g)
Upon a conviction for a first offense for a violation of subsection (1) of this section, in addition to any other penalties, fines, fees, or costs imposed, the court shall order the person to not operate a vessel for a three-month period. Upon a conviction for a subsequent offense for a violation of subsection (1) of this section, in addition to any other penalties, fines, fees, or costs imposed, the court shall order the person to not operate a vessel for a one-year period. For the purposes of this paragraph (g), "conviction" includes a conviction in any court of record or municipal court, a plea of no contest accepted by the court, or the forfeiture of any bail or collateral deposited to secure a defendant's appearance in court or the failure to appear in court by a defendant charged with a violation of subsection (1) of this section who has been issued a summons and complaint to appear pursuant to section
33-15-102 (2)
.
(h)
Upon a plea of guilty or a verdict of guilty by the court or a jury to any offense specified in subsection (1) of this section, the court shall order the defendant to immediately report to the sheriff's department in the county where the defendant was convicted. At that time, the defendant's fingerprints and photographs shall be taken and returned to the court, which fingerprints and photographs shall become a part of the court's official documents and records pertaining to the defendant's conviction and the defendant's identification in association with the conviction. In any trial for a violation of any of the offenses specified in subsection (1) of this section, a duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against shall be prima facie evidence of the convictions and may be used in evidence against the party. Identification photographs and fingerprints that are part of the record of such former convictions and judgments of any court of record or are part of the record at the place of the party's incarceration after sentencing for any of such former convictions and judgments shall be prima facie evidence of the identity of the party and may be used in evidence against the party. Any person who fails to immediately comply with the court's order to report to the sheriff's department, to furnish fingerprints, or to have photographs taken may be held in contempt of court.
(13)
(a)
No owner or operator of a vessel shall knowingly authorize the vessel to be operated by or come under the actual physical control of any other person if the person is under the influence of alcohol, a controlled substance or any other drug, or any combination of alcohol, controlled substance, or drug.
(b)
Any person who violates subsection (13)(a) of this section commits a class 2 misdemeanor.
(14)
In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related vessel 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 the alcohol or drug level. This subsection (14) shall not prevent the necessity of establishing during a trial that the testing devices used were in proper working order and that the testing devices were properly operated. Nothing in this subsection (14) shall preclude a defendant from offering evidence of the accuracy of the testing device.
(15)
As used in this section, "convicted" includes a plea of no contest accepted by the court.
(16)
(a)
Upon conviction of or plea of no contest to a violation of this section, the court shall forward a certified copy of the conviction or plea to the division.
(b)
When a peace officer requests a person to submit to tests as required by subsection (4) of this section and the person refuses to submit to the tests, the officer shall forward to the division a verified report of all relevant information, including information that adequately identifies the person and a statement of the officer's probable cause for requesting the person to submit to the tests.
Amended by 2022 Ch. 68, § 35, eff. 3/1/2022.
Amended by 2021 Ch. 462, § 573, eff. 3/1/2022.
Amended by 2019 Ch. 396, § 24, eff. 5/31/2019.
Amended by 2013 Ch. 336, § 10, eff. 8/7/2013.
L. 89: Entire section added, p. 1352, § 1, effective July 1. L. 94: (7), (11), and (14) amended, p. 2803, § 570, effective July 1; (12)(e) and (12)(f) amended, p. 2566, § 81, effective 1/1/1995. L. 2002: (12)(e) and (12)(f) amended, p. 1920, § 13, effective July 1; (12)(f) amended, p. 1545, § 297, effective October 1. L. 2003: (12)(a) and (13)(b) amended, p. 1947, § 21, effective May 22. L. 2008: Entire section amended, p. 645, § 2, effective August 5. L. 2012: (1)(a)(III) and (1)(a)(IV) amended, (HB 12-1311), ch. 1630, p. 1630, § 82, effective July 1; (6) amended, (HB 12-1059), ch. 1438, p. 1438, § 23, effective July 1. L. 2013: (12)(f) amended, (HB 13-1156), ch. 1959, p. 1959, § 11, effective August 7. L. 2019: (6) amended, (SB 19-242), ch. 396, p. 3531, § 24, effective May 31. L. 2021: IP(1)(a), (12)(a), (12)(b), (12)(c), and (13)(b) amended, (SB 21-271), ch. 3265, p. 3265, § 573, effective 3/1/2022.
(1) Amendments to subsection (12)(f) by House Bill 02-1046 and Senate Bill 02-057 were harmonized.
(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
2021 Ch. 462, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
For the legislative declaration contained in the 2002 act amending subsection (12)(f), see section 1 of chapter 318, Session Laws of Colorado 2002.