2023 Colorado Revised Statutes › Title 41 - AERONAUTICS: AIRCRAFT AND AIRPORTS (§§ 41-1-101 — 41-6-101) › AIRCRAFT (§§ 41-1-101 — 41-2-102) › Article 2 - OPERATING AN AIRCRAFT UNDER THE INFLUENCE OF ALCOHOL OR DRUGS (§§ 41-2-101 — 41-2-102) › Section 41-2-102 - Operating an aircraft under the influence - operating an aircraft with excessive alcohol content - tests - penalties - useful public service program - definition

(1)
(a)
It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to operate any aircraft in this state.
(b)
Repealed.
(c)
For the purposes of this subsection (1), "one or more drugs" shall mean all substances defined as a drug in section
27-80-203 (13)
, C.R.S., and all controlled substances, as defined in section
18-18-102 (5)
, C.R.S.
(d)
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 shall not constitute a defense against any charge of violating this subsection (1).
(e)
"Operating an aircraft under the influence" means operating an aircraft when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affects him to a degree that he 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 an aircraft.
(f)
Pursuant to section
16-2-106
, C.R.S., in charging a violation of paragraph (a) of this subsection (1), it shall be sufficient to describe the offense charged as "operated an aircraft under the influence of alcohol or drugs or both".
(2)
(a)
It is a class 1 misdemeanor for any person to operate any aircraft in this state when the amount of alcohol in such person's blood, as shown by analysis of the person's blood or breath, is 0.04 or more grams of alcohol per hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of operating an aircraft or within two hours after such operation. 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 operating an aircraft 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 0.04 blood or breath alcohol content required in this subsection (2)(a) was reached as a result of alcohol consumed by the defendant before the defendant stopped operating an aircraft.
(b)
In any prosecution for a violation of this subsection (2), 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.
(c)
Pursuant to section
16-2-106
, C.R.S., in charging a violation of this subsection (2), it shall be sufficient to describe the offense charged as "operated an aircraft with excessive alcohol content".
(3)
Notwithstanding the provisions of section
18-1-408
, C.R.S., during a trial of any person accused of violating subsection (1) and subsection (2) of this section, 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 a violation of either subsection (1) or subsection (2), or both subsection (1) and subsection (2), of this section. If the person is convicted of more than one violation, the sentences imposed shall run concurrently.
(4)
(a)
In any prosecution for a violation 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 presumption that the defendant was under the influence of alcohol if:
(I)
There was at such time 0.04 or more grams of alcohol per one hundred milliliters of blood as shown by analysis of such person's blood; or
(II)
There was at such time 0.04 or more grams of alcohol per two hundred ten liters of breath as shown by analysis of such person's breath.
(b)
The limitations of this subsection (4) 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 his ability to operate an aircraft was impaired by the consumption of alcohol.
(5)
Following the lawful contact with a person who has been operating an aircraft, and when a law enforcement officer reasonably suspects that a person was operating an aircraft while under the influence of alcohol, such 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 operator that the operator may either refuse or agree to provide a sample of the operator's breath for such preliminary test. 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 operating an aircraft in violation of subsection (1) or (2) of this section and whether to administer a test pursuant to paragraph (a) of subsection (6) of this section. 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 operator committed a violation of subsection (1) or (2) of this section. The results of such preliminary screening test shall be made available to the operator or his attorney on request. The preliminary screening test shall not substitute for or qualify as the test or tests required by paragraph (a) of subsection (6) of this section.
(6)
(a)
(I)
On and after July 1, 1990, any person who operates an aircraft anywhere in this state shall be deemed to have expressed his consent to the provisions of this paragraph (a).
(II)
Any person who operates an aircraft anywhere in this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was operating an aircraft in violation of subsection (1) or (2) of this section. Except as otherwise provided in this section, if such person requests that said test be a blood test, then the test shall be of his blood; but, if such person requests that a specimen of his blood not be drawn, then a specimen of his breath shall be obtained and tested. If such person elects either a blood test or a breath test, such person shall not be permitted to change such election, and, if such person fails to take and complete, and to cooperate in the completing of, the test elected, such failure shall be deemed to be a refusal to submit to testing. If such person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity, or if such person is receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available, the test shall be of such person's blood.
(III)
Any person who operates an aircraft anywhere in this state shall be required to submit to and to complete, and to cooperate in the completing of, a test or tests of his blood, saliva, and urine for the purpose of determining the drug content within his system when so requested and directed by a law enforcement officer having probable cause to believe that the person was operating an aircraft in violation of subsection (1) of this section and when it is reasonable to require such testing of blood, saliva, and urine to determine whether such person was under the influence of, or impaired by, one or more drugs, or one or more controlled substances, or a combination of both alcohol and one or more drugs, or a combination of both alcohol and one or more controlled substances.
(IV)
Any person who is required to take and to complete, and to cooperate in the completing of, any test or tests shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of his blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed a violation of section
18-3-105
,
18-3-106
,
18-3-204
,
18-3-205
, or
18-3-208
, C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test. Evidence acquired through such involuntary blood test shall be admissible in any prosecution for a violation of subsection (1) or (2) of this section and for a violation of section
18-3-105
or
18-3-204
, C.R.S.
(b)
(I)
The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person had been operating an aircraft in violation of subsection (1) or (2) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations 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.
(II)
No person except a physician, a registered nurse, an emergency medical service provider, as defined in part 1 of article
3.5
of title
25
and as 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. In a trial for a violation of subsection (1) or (2) of this section, the testimony of a law enforcement officer that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was authorized to withdraw a blood specimen is sufficient evidence that the person was authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimen obtained. Civil liability does not attach to a person authorized to obtain blood, breath, saliva, or urine specimens or to a hospital, clinic, or association in or for which the specimens are obtained as provided in this subsection (6) 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)(b)(II) does not relieve the person from liability for negligence in obtaining any specimen sample.
(c)
Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content within his system as provided in this subsection (6). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger such person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health-care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person's blood, urine, or saliva or any drug content within his system. Such test results shall not be considered privileged communications, and the provisions of section
13-90-107
, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.
(d)
If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in this subsection (6) and such person subsequently stands trial for a violation of subsection (1) of this section, 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.
(7)
(a)
(I)
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 three hundred dollars nor more than one thousand dollars. Except as provided in subsection (7)(d)(II) of this section, the minimum period of imprisonment provided for such 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 (7)(a)(I) applies shall perform not less than forty-eight hours nor more than ninety-six 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 such service.
(II)
Upon a conviction of a violation of subsection (1) of this section, which violation occurred within five years of the date of a previous violation, for which there has been a conviction, of subsection (1) or (2) of this section, the offender shall be punished by imprisonment in the county jail for not less than ninety days nor more than one year, and, in addition, the court may impose a fine of not less than five hundred dollars nor more than one thousand five hundred dollars. The minimum period of imprisonment as provided for such violation shall be mandatory, but the court may suspend up to eighty-three days of the period of imprisonment if the offender complies with the provisions of subsection (7)(d)(I) of this section. In addition to any other penalty that is imposed, every person who is convicted of a violation to which this subsection (7)(a)(I) applies shall perform not less than sixty 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 such service.
(b)
The provisions of this subsection (7) relating to the performance of useful public service are 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., and the completion of any stipulated amount of useful public service hours to be completed by the defendant shall be ordered by the court in accordance with the conditions of such deferred prosecution or deferred sentence as stipulated to by the prosecution and the defendant.
(c)
For the purposes of paragraph (a) of this subsection (7), a person shall be deemed to have a previous conviction of subsection (1) or (2) of this section if such person has been convicted of an act under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed within this state, would be a violation of subsection (1) or (2) of this section.
(d)
(I)
Upon conviction of a violation of subsection (1) of this section, the court shall sentence the defendant in accordance with the provisions of subsection (7)(a) of this section. The court shall consider the alcohol and drug evaluation required pursuant to subsection (8) of this section prior to sentencing; except that the court may proceed to immediate sentencing without considering such alcohol and drug evaluation if the defendant has no prior or pending charges under this section and neither the defendant nor the prosecuting attorney objects. If the court proceeds to immediate sentencing, without considering such alcohol and drug evaluation, such alcohol and drug evaluation shall be conducted after sentencing, and the court shall order the defendant to complete the education and treatment program recommended in such alcohol and drug evaluation. If the defendant disagrees with the education and treatment program recommended in such alcohol and drug evaluation, the defendant may request the court to hold a hearing to determine which education and treatment program should be completed by the defendant.
(II)
For sentencing purposes concerning convictions for second and subsequent offenses, prima facie proof of a defendant's previous convictions shall be established when the prosecuting attorney and the defendant stipulate to the existence of the prior conviction or convictions or the prosecuting attorney presents to the court a copy of the court record of such conviction in this state or some other state. The court shall not proceed to immediate sentencing when there is not a stipulation to prior convictions or if the prosecution requests an opportunity to obtain a conviction record. The prosecuting attorney shall not be required to plead or prove any previous convictions at trial, and sentencing concerning convictions for second and subsequent offenses shall be a matter to be determined by the court at sentencing.
(e)
The sentence of any person subject to the provisions of subparagraph (II) of paragraph (a) of this subsection (7) may be suspended to the extent provided for in said subparagraph (II) if the offender receives a presentence alcohol and drug evaluation; based on that evaluation, satisfactorily completes an appropriate level I or level II alcohol and drug education or treatment program; and abstains from the use of alcohol for a period of one year from the date of sentencing. Such abstinence shall be monitored by the treatment facility by the administration of disulfiram or by any other means that the director of the treatment facility deems appropriate. 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 spend that portion of his sentence which was suspended in the county jail.
(f)
In addition to the penalties prescribed in this subsection (7), persons convicted of violations of subsection (1) or (2) of this section are subject to the costs imposed by section
24-4.1-119 (1)(c)
, C.R.S., relating to the crime victim compensation fund.
(g)
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 purposes of treatment not to exceed two years. As a condition of probation, the defendant shall be required to make restitution in accordance with the provisions of section
18-1.3-205
, C.R.S.
(h)
The provisions of section
42-4-1301.4
, C.R.S., shall apply to this article.
(8)
The behavioral health administration in the department of human services shall provide presentence alcohol and drug evaluations on all persons convicted of a violation of subsection (1) or (2) of this section, in the same manner as described in section
42-4-1301.3
.
(9)
Upon a plea of guilty, or a verdict of guilty by the court or a jury, to any offense specified in subsection (1) or (2) 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 which 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 such conviction. On any trial for a violation of any of the offenses specified in subsection (1) or (2) 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 such convictions and may be used in evidence against such party. Identification photographs and fingerprints that are part of the record of such former convictions and judgments of any court of record or that are part of the record at the place of such party's incarceration after sentencing for any of such former convictions and judgments shall be prima facie evidence of the identity of such party and may be used in evidence against him. 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 his photographs taken may be held in contempt of court.
(10)
As used in this section, "convicted" includes a plea of no contest accepted by the court.
Amended by 2022 Ch. 222, §198, eff. 7/1/2022.
Amended by 2021 Ch. 462, §704, eff. 3/1/2022.
Amended by 2019 Ch. 396, §25, eff. 5/31/2019.
Amended by 2017 Ch. 263, §18, eff. 5/25/2017.
Amended by 2013 Ch. 336, §11, eff. 8/7/2013.
L. 90: Entire article RC&RE, p. 1770, § 1, effective July 1. L. 93: (5) and (8) amended, p. 1124, § 44, effective 7/1/1994. L. 94: (6)(a)(II), (6)(b)(I), and (6)(c) amended, p. 2806, § 597, effective July 1; (7)(h) and (8) amended, p. 2571, § 97, effective 1/1/1995. L. 2002: (7)(h) and (8) amended, p. 1921, § 14, effective July 1; (7)(b) and (7)(g) amended, p. 1559, § 361, effective October 1. L. 2008: (4) amended, p. 1915, § 134, effective August 5. L. 2011: (8) amended, (HB11-1303), ch. 1177, p. 1177, § 98, effective August 10. L. 2012: (1)(b) and (1)(c) amended, (HB 12-1311), ch. 1631, p. 1631, § 86, effective July 1; (6)(b)(II) amended, (HB 12-1059), ch. 271, p. 1439, § 24, effective July 1. L. 2013: (7)(b) amended, (HB 13-1156), ch. 1960, p. 1960, § 12, effective August 7. L. 2017: (8) amended, (SB 17-242), ch. 1257, p. 1257, § 18, effective May 25. L. 2019: (6)(b)(II) amended, (SB 19-242), ch. 3531, p. 3531, § 25, effective May 31. L. 2021: (2)(a), (7)(a), and (7)(d)(I) amended, (SB 21-271), ch. 3298, p. 3298, § 704, effective 3/1/2022; (1)(b)(II) added by revision, (SB 21-271), ch. 462, pp. 3298, 3331, §§ 704, 803.
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 1993 act amending subsections (5) and (8) of this section, see section 1 of chapter 230, Session Laws of Colorado 1993. For the legislative declaration contained in the 1994 act amending subsection (6)(a)(II), (6)(b)(I), and (6)(c), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsections (7)(b) and (7)(g), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in the 2012 act amending subsection (6)(b)(II), see section 26 of chapter 271, Session Laws of Colorado 2012. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.