(1) (a) Upon conviction of a violation of section 42-4-1301, the court shall sentence the defendant in accordance with the provisions of this section and other applicable provisions of this part 13. The court shall consider the alcohol and drug evaluation required pursuant to this section prior to sentencing; except that the court may proceed to immediate sentencing without considering such alcohol and drug evaluation:
(I) (A) If the defendant has no prior convictions or pending charges under this section; or
(B) If the defendant has one or more prior convictions, the prosecuting attorney and the defendant have stipulated to such conviction or convictions; and
(II) If neither the defendant nor the prosecuting attorney objects.
(b) If the court proceeds to immediate sentencing, without considering an alcohol and drug evaluation, the 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 the alcohol and drug evaluation. If the defendant disagrees with the education and treatment program recommended in the 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.
(2) (Deleted by amendment, L. 2011, (HB 11-1268), ch. 267, p. 1217, 1, effective June 2, 2011.)
(3) (a) The judicial department shall administer in each judicial district an alcohol and drug driving safety program that provides presentence and postsentence alcohol and drug evaluations on all persons convicted of a violation of section 42-4-1301. The alcohol and drug driving safety program shall further provide supervision and monitoring of all such persons whose sentences or terms of probation require completion of a program of alcohol and drug driving safety education or treatment.
(b) The presentence and postsentence alcohol and drug evaluations shall be conducted by such persons determined by the judicial department to be qualified to provide evaluation and supervision services as described in this section.
(c) (I) An alcohol and drug evaluation shall be conducted on all persons convicted of a violation of section 42-4-1301, and a copy of the report of the evaluation shall be provided to such person. The report shall be made available to and shall be considered by the court prior to sentencing unless the court proceeds to immediate sentencing pursuant to the provisions of subsection (1) of this section.
(II) The report shall contain the defendant's prior traffic record, characteristics and history of alcohol or drug problems, and amenability to rehabilitation. The report shall include a recommendation as to alcohol and drug driving safety education or treatment for the defendant.
(III) The alcohol evaluation shall be conducted and the report prepared by a person who is trained and knowledgeable in the diagnosis of chemical dependency. Such person's duties may also include appearing at sentencing and probation hearings as required, referring defendants to education and treatment agencies in accordance with orders of the court, monitoring defendants in education and treatment programs, notifying the probation department and the court of any defendant failing to meet the conditions of probation or referral to education or treatment, appearing at revocation hearings as required, and providing assistance in data reporting and program evaluation.
(IV) For the purpose of this section, "alcohol and drug driving safety education or treatment" means either level I or level II education or treatment programs approved by the office of behavioral health in the department of human services. Level I programs are short-term, didactic education programs. Level II programs are therapeutically oriented education, long-term outpatient, and comprehensive residential programs. The court shall instruct a defendant sentenced to level I or level II programs to meet all financial obligations of the programs. If the financial obligations are not met, the program shall notify the sentencing court for the purpose of collection or review and further action on the defendant's sentence. Nothing in this section prohibits treatment agencies from applying to the state for money to recover the costs of level II treatment for defendants determined indigent by the court.
(4) (a) There is created an alcohol and drug driving safety program fund in the office of the state treasurer, referred to in this subsection (4) as the "fund". The fund consists of money deposited in it as directed by this subsection (4)(a). The assessment in effect on July 1, 1998, remains in effect unless the judicial department and the office of behavioral health in the department of human services have provided the general assembly with a statement of the cost of the program, including costs of administration for the past and current fiscal year to include a proposed change in the assessment. The general assembly shall then consider the proposed new assessment and approve the amount to be assessed against each person during the following fiscal year in order to ensure that the alcohol and drug driving safety program established in this section is financially self-supporting. Any adjustment in the amount to be assessed must be noted in the appropriation to the judicial department and the office of behavioral health in the department of human services as a footnote or line item related to this program in the general appropriation bill. The state auditor shall periodically audit the costs of the programs to determine that they are reasonable and that the rate charged is accurate based on these costs. Any other fines, fees, or costs levied against a person are not part of the program fund. The court shall transmit to the state treasurer the amount assessed for the alcohol and drug evaluation to be credited to the fund. Fees charged pursuant to sections 27-81-106 (1) and 27-82-103 (1) to approved alcohol and drug treatment facilities that provide level I and level II programs as provided in subsection (3)(c) of this section must be transmitted to the state treasurer, who shall credit the fees to the fund. Upon appropriation by the general assembly, the money must be expended by the judicial department and the office of behavioral health in the department of human services for the administration of the alcohol and drug driving safety program. In administering the alcohol and drug driving safety program, the judicial department is authorized to contract with any agency for any services the judicial department deems necessary. Money deposited in the fund remains in the fund to be used for the purposes set forth in this section and must not revert or transfer to the general fund except by further act of the general assembly.
(b) The judicial department shall ensure that qualified personnel are placed in the judicial districts. The judicial department and the office of behavioral health in the department of human services shall jointly develop and maintain criteria for evaluation techniques, treatment referral, data reporting, and program evaluation.
(c) The alcohol and drug driving safety program shall cooperate in providing services to a defendant who resides in a judicial district other than the one in which the arrest was made. Alcohol and drug driving safety programs may cooperate in providing services to any defendant who resides at a location closer to another judicial district's program. The requirements of this section shall not apply to persons who are not residents of Colorado at the time of sentencing.
(d) Notwithstanding any provision of paragraph (a) of this subsection (4) to the contrary, on March 5, 2003, the state treasurer shall deduct one million dollars from the alcohol and drug driving safety program fund and transfer such sum to the general fund.
(5) The provisions of this section 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 alcohol evaluation, level I or level II education program, or level I or level II treatment program 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.
(6) An approved alcohol or drug treatment facility that provides level I or level II programs as provided in paragraph (c) of subsection (3) of this section shall not require a person to repeat any portion of an alcohol and drug driving safety education or treatment program that he or she has successfully completed while he or she was imprisoned for the current offense.
Source: L. 2002: Entire section added with relocations, p. 1907, 3, effective July 1; (5) amended, p. 1561, 368, effective October 1. L. 2003: (4)(d) added, p. 459, 22, effective March 5. L. 2010: (4)(a) amended, (SB 10-175), ch. 188, p. 808, 87, effective April 29; IP(2)(a)(I) amended and (6) added, (HB 10-1347), ch. 258, p. 1159, 5, effective July 1. L. 2011: (1) and (2) amended, (HB 11-1268), ch. 267, p. 1217, 1, effective June 2; (3)(c)(IV) and (4)(b) amended, (HB 11-1303), ch. 264, p. 1182, 110, effective August 10. L. 2013: (5) amended, (HB 13-1156), ch. 336, p. 1960, 13, effective August 7. L. 2017: (3)(c)(IV), (4)(a), and (4)(b) amended, (SB 17-242), ch. 263, p. 1259, 25, effective May 25.
Editor's note: (1) This section is similar to former 42-4-1301 (9)(e)(I), (9)(f)(I), (9)(f)(II), and (10) as it existed prior to 2002.
(2) Subsection (5) was originally numbered as 42-4-1301 (10)(g), and the amendments to it in House Bill 02-1046 were harmonized with subsection (5) as it appeared in Senate Bill 02-057.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (5), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.