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18-3-205. Vehicular assault.

Statute text

(1) (a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault.

(b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime.

(II) For the purposes of this subsection (1), 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), and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 18-18-412.

(III) 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).

(IV) "Driving under the influence" means driving a vehicle 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 affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) Vehicular assault, in violation of paragraph (a) of this subsection (1), is a class 5 felony. Vehicular assault, in violation of paragraph (b) of this subsection (1), is a class 4 felony.

(2) 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, gives rise to the following:

(a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.

(d) 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.

(3) The limitations of subsection (2) of this section 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.

(4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, the person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If any person refuses to take, or to complete, or to cooperate in the taking or completing of any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.

(b) Any person who is required to submit to testing 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.

(c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) 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.

(d) No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical service provider as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse is entitled to withdraw blood to determine the alcoholic or drug content of the blood for purposes of this section. In a trial for a violation of paragraph (b) of subsection (1) of this section, 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 blood specimens 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 specimens obtained. No civil liability shall 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 in accordance with this subsection (4) as a result of the act of obtaining the specimens from any person if the specimens were obtained according to the rules prescribed by the state board of health; except that the provision does not relieve the person from liability for negligence in obtaining the specimen sample.

(e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the 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 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.

(f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1)(b) 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 the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.

(g) Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.

(5) 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 his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

History

Source: L. 71: R&RE, p. 421, 1. C.R.S. 1963: 40-3-205. L. 75: Entire section amended, p. 625, 2, effective June 26. L. 77: (1) R&RE, p. 961, 11, effective July 1. L. 81: (1)(b) amended, p. 1992, 5, effective June 19. L. 83: (4) added, p. 1648, 18, effective July 1. L. 88: IP(2) amended, p. 1365, 6, effective July 1. L. 89: (1)(b), (2), and (3) amended, (4) R&RE, and (5) added, pp.896, 898, 3, 4, effective July 1. L. 93: (1) amended, p. 1987, 15, effective July 1; (1)(b)(II) amended, p. 1731, 14, effective July 1. L. 94: (4)(c), (4)(e), and (5) amended, p. 2734, 357, effective July 1; (4)(a) and (4)(g) amended, p. 2552, 41, effective January 1, 1995. L. 97: (4)(a) amended, p. 1471, 19, effective July 1. L. 2002: (4)(g) amended, p. 1915, 5, effective July 1. L. 2004: (2)(b) and (2)(c) amended, p. 781, 4, effective July 1. L. 2008: (4)(a) amended, p. 244, 4, effective July 1; (4)(g) amended, p. 1890, 57, effective August 5. L. 2012: (1)(b)(II) amended, (HB 12-1311), ch. 281, p.1618, 39, effective July 1; (4)(d) amended, (HB 12-1059), ch. 271, p. 1435, 14, effective July 1. L. 2013: (1)(b)(II), IP(2), and (2)(c) amended and (2)(d) added, (HB 13-1325), ch. 331, p. 1879, 3, effective May 28.

Annotations

Editor's note: Amendments to subsection (1) in House Bill 93-1302 and House Bill 93-1088 were harmonized.

Annotations

Cross references: (1) For penalties for driving under the influence of alcohol, see 42-4-1301.

(2) For the legislative declaration contained in the 1994 act amending subsections (4)(c), (4)(e), and (5), see section 1 of chapter 345, Session Laws of Colorado 1994.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Drinking and Driving: An Update on the 1989 Legislation", see 18 Colo. Law. 1943 (1989). For article, "Drunk Drivers and Blood Draws in Colorado", see 43 Colo. Law. 27 (Feb. 2014).

Annotator's note. Since 18-3-205 is similar to former 40-2-11, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality. This section is not unconstitutional on the grounds that it denies the accused the opportunity to rebut the presumption raised by his or her blood alcohol content. People v. Rostad, 669 P.2d 126 (Colo. 1983); People v. Ray, 678 P.2d 1019 (Colo. 1984); People v. Sutherland, 683 P.2d 1192 (Colo. 1984).

Legislative concern is for result of reckless driving. This statute is not concerned with drunk driving or reckless driving, as such. Rather, this statute evidences a legislative concern for the result which flows from the reckless operation of a motor vehicle by one who is under the influence of intoxicating liquor, the result being the injury of a human being. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Reckless driving is not a lesser included offense of vehicular homicide or vehicular assault. People v. Clary, 950 P.2d 654 (Colo. App. 1997).

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.

Careless driving is not a lesser included offense of vehicular assault (reckless). People v. Zweygardt, 2012 COA 119, 298 P.3d 1018.

The gravamen of both vehicular homicide, 18-3-106, and this section is the "reckless" operation or driving of a motor vehicle, which results in the death of or serious bodily injury to another. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976).

Vehicular assault is distinguishable from second degree assault described in 18-3-203 (1)(d), and therefore these sections do not violate equal protection. The statutes differ in three primary ways. Second degree assault applies to a range of unspecified conduct, while vehicular assault applies narrowly to driving or operating a motor vehicle. Second degree assault can apply to acts of omission, while vehicular assault requires acts of commission. Second degree assault applies to any deadly weapon, which may include a motor vehicle, while vehicular assault requires the defendant's reckless driving or operation of a motor vehicle to have proximately caused the serious bodily injury. People v. Stewart, 55 P.3d 107 (Colo. 2002).

Elements of offense. This statute requires proof of two elements for conviction in addition to that of driving while under the influence: First, driving in a reckless manner; and second, the infliction of bodily injury while so doing. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Finding of knowing or wilful conduct is sufficient to establish recklessness. People v. Yanaga, 635 P.2d 925 (Colo. 1981).

Offense requires injury. Neither offenses of driving under the influence of alcohol, nor reckless driving, nor causing an accident while under the influence of alcohol or by reckless driving, constitute felonious acts. Only when these events caused a death or injury to another person does the statute specifically provide that an offense has been committed. Penn Mut. Life Ins. Co. v. Gibson, 160 Colo. 462, 418 P.2d 50 (1966).

Vehicular assault while driving under the influence is a strict liability crime, and jury was properly instructed on obligation to prove proximate cause beyond a reasonable doubt. People v. Hall, 722 P.2d 447 (Colo. App. 1986).

Complicitor liability can extend to the strict liability crime of vehicular assault (DUI). People v. Childress, 2015 CO 65M, 363 P.3d 155.

"Person", as used in this section to describe a victim of vehicular assault, includes a fetus that is injured while in the womb, is subsequently born and lived outside the womb, and then dies from the injuries sustained. While Colorado has no provisions criminalizing the injuring or killing of a fetus, the state common law "born alive" doctrine permits a criminal prosecution of the perpetrator when a child is born alive and then dies of the prenatal injuries, and civil law in the state has held that such a victim is a person within Colorado's wrongful death statute. People v. Lage, 232 P.3d 138 (Colo. App. 2009).

Subsections (1)(a) and (1)(b) set forth two alternative ways of committing the singular crime of vehicular assault; they do not create two separate crimes. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993); People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

Defendant must be operating or driving the motor vehicle. Britto v. People, 178 Colo. 216, 497 P.2d 325 (1972).

There was substantial evidence that defendant's actions caused defendant's injuries, so there was no err in failing to instruct the jury that acts of omission cannot constitute vehicular assault. People v. Smith, 121 P.3d 243 (Colo. App. 2005).

Misdemeanor offenses under 42-4-1202 are not the same as felony offenses under this section. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

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); People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

Prosecution not barred under this section. The court's dismissal of a misdemeanor count under 42-4-1202, which placed the defendant in jeopardy as to that count, did not bar prosecution on felony count under this section. People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).

Right to refuse to submit to blood alcohol test does not apply. The right of refusal to submit to a blood alcohol test under the Colorado implied consent law applied only to the misdemeanor offense of driving under the influence of intoxicating liquor and not to the felony offense of causing an injury while driving under the influence of intoxicating liquor. People v. Blandon, 194 Colo. 102, 568 P.2d 1171 (1977).

The general assembly need not extend the legislative grace of a right to refuse a blood test, a test which is constitutionally permissible, to those charged with vehicular homicide or vehicular assault. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

Equal protection is not violated by the failure of 18-3-106 and this section to afford an accused the right to refuse a blood test afforded by 42-4-1202. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

The general assembly's decision to permit one charged with the less grievous offense of driving under the influence to refuse a blood test while not likewise permitting one charged with felonious vehicular homicide or felonious vehicular assault to refuse the test is not arbitrary or unreasonable. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

In order for an officer to require a test under this section, the motorist must first be given the opportunity to refuse consent to the test. People v. Maclaren, 251 P.3d 578 (Colo. App. 2010).

Failure of an officer to obtain consent prior to subjecting a motorist to a test under this section does not require suppression of the test result or dismissal of the case. Court has broad discretion to suppress evidence or dismiss the case as a sanction for improper police conduct. People v. Maclaren, 251 P.3d 578 (Colo. App. 2010).

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).

As long as a detective has sufficient probable cause to arrest a defendant for one of the crimes enumerated in 42-4-1301.1 (3), a nonconsensual blood draw is statutorily authorized. People v. Barry, 2015 COA 4, 349 P.3d 1139.

Regulations promulgated pursuant to implied consent statute apply to offenses charged under it and not to felonies charged under this section. People v. Acosta, 620 P.2d 55 (Colo. App. 1980).

Failure of police to obtain test from unconscious victim pursuant to subsection (4)(e) 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).

Sentence of three years plus two years probation for class 4 felony conviction under subsection (1)(b) was not disproportionate. People v. Kearns, 988 P.2d 189 (Colo. App. 1999).

Performance and consent to breathalyzer test. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).

Evidence sufficient to sustain conviction. People v. Rodriguez, 645 P.2d 857 (Colo. App. 1982).

As to former element of intent, see Britto v. People, 178 Colo. 216, 497 P.2d 325 (1972).

Violation of reckless vehicular assault statute is a predicate crime of violence for purposes of the United States sentencing guidelines. Subsection (1)(a) creates a categorical crime of violence because it reaches only conduct involving the use of force as required under the sentencing guidelines. United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. 2003).

Applied in People v. Beltran, 634 P.2d 1003 (Colo. App. 1981); People v. Roybal, 655 P.2d 410 (Colo. 1982).