(2) (a) [ Editor's note: This version of subsection (2)(a) is effective March 1, 2022. ] 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.
(II) Upon a conviction of a violation of subsection (1) or subsection (2) 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 subparagraph (I) of paragraph (d) of this subsection (7). In addition to any other penalty that is imposed, every person who is convicted of a violation to which this subparagraph (II) 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.
(7) (a) [ Editor's note: This version of subsection (7)(a) is effective March 1, 2022. ] (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.
(d) (I) [ Editor's note: This version of subsection (7)(d)(I) is effective March 1, 2022. ] 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.
Source: L. 90: Entire article RC&RE, p. 1770, § 1, effective July 1. L. 93: (5) and (8) amended, p. 1124, § 44, effective July 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 January 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. 264, p. 1177, § 98, effective August 10. L. 2012: (1)(b) and (1)(c) amended, (HB 12-1311), ch. 281, 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. 336, p. 1960, § 12, effective August 7. L. 2017: (8) amended, (SB 17-242), ch. 263, p. 1257, § 18, effective May 25. L. 2019: (6)(b)(II) amended, (SB 19-242), ch. 396, p. 3531, § 25, effective May 31. L. 2021: (2)(a), (7)(a), and (7)(d)(I) amended, (SB 21-271), ch. 462, p. 3298, § 704, effective March 1, 2022; (1)(b)(II) added by revision, (SB 21-271), ch. 462, pp. 3298, 3331, 704, 803.
Editor's note: 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.
Cross references: 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.