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18-1.3-501. Misdemeanors classified - drug misdemeanors and drug petty offenses classified - penalties - legislative intent - definitions

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(1) (a) Except as otherwise provided in subsection (1)(d) of this section, misdemeanors are divided into three classes that are distinguished from one another by the following penalties that are authorized upon conviction except as provided in subsection (1.5) of this section:

 

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(b) A term of imprisonment for conviction of a misdemeanor shall not be served in a state correctional facility unless served concurrently with a term for conviction of a felony.

(c) A term of imprisonment in a county jail for a conviction of a misdemeanor, petty, or traffic misdemeanor offense shall not be ordered to be served consecutively to a sentence to be served in a state correctional facility; except that if, at the time of sentencing, the court determines, after consideration of all the relevant facts and circumstances, that a concurrent sentence is not warranted, the court may order that the misdemeanor sentence be served prior to the sentence to be served in the state correctional facility and prior to the time the defendant is transported to the state correctional facility to serve all or the remainder of the defendants state correctional facility sentence.

(d) Except as provided in subsection (1)(d.5) of this section, for purposes of sentencing a person convicted of a misdemeanor drug offense described in article 18 of this title 18, committed on or after October 1, 2013, drug misdemeanors are divided into two levels that are distinguished from one another by the following penalties that are authorized upon conviction:

 

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(d.5) (I) It is the intention of the general assembly to classify most drug possession on and after March 1, 2020, as a misdemeanor offense with different sentencing options and limited incarceration penalties. The purpose of this sentencing scheme is to provide offenders who are assessed to be in need of treatment or other intervention with probation supervision in conjunction with effective medical and behavioral intervention and treatment. For those drug possessors who are not in need of treatment, sentencing by the courts system should be limited. This sentencing scheme recognizes that drug use and possession is primarily a health concern and should be treated as such by Colorado courts.

(II) Notwithstanding the provisions of subsection (1)(d) of this section, for the purpose of sentencing a person convicted of a level 1 drug misdemeanor committed on or after March 1, 2020, in violation of section 18-18-403.5 or 18-18-406 (4)(b), a court may sentence an offender to probation for up to two years, with the possibility of a total of one hundred eighty days in county jail or, for a third or subsequent offense, a total of up to three hundred sixty-four days in county jail, which may be imposed in whole or in part during the time period of probation as a condition of probation or as a sanction for a violation of probation; or the court may sentence an offender to up to one hundred eighty days in the county jail; except that, for a third or subsequent offense, the court may sentence an offender to up to three hundred sixty-four days in the county jail. In addition to the sentence to probation or to the county jail, the offender may be punished by a fine of not more than one thousand dollars.

(III) Notwithstanding the provisions of subsection (1)(d) of this section, for the purpose of sentencing a person convicted of a level 2 drug misdemeanor committed on or after March 1, 2020, in violation of section 18-18-404, 18-18-406 (4)(c), 18-18-406.1, or 18-18-412, a court may sentence an offender to probation for up to one year, with the possibility of a total of one hundred twenty days in county jail or, for a third or subsequent offense, a total of up to one hundred eighty days in county jail, which may be imposed in whole or in part during the time period of probation as a condition of probation or as a sanction for a violation of probation; or the court may sentence an offender to up to one hundred twenty days in the county jail; except that, for a third or subsequent offense, the court may sentence an offender to up to one hundred eighty days in the county jail. In addition to the sentence to probation or to the county jail, the offender may be punished by a fine of not more than five hundred dollars.

(IV) Nothing in this subsection (1)(d.5) infringes upon the authority and discretion vested with a district attorney to file misdemeanor charges in either district court or county court, which courts, pursuant to section 13-6-106, have concurrent original jurisdiction over violations of state law that constitute misdemeanors. District attorneys are encouraged to file misdemeanor or drug charges in the court where, if there is a conviction, treatment and supervision can most effectively be matched to the defendants assessed risk and treatment need levels.

(e) For each drug petty offense, the sentencing range is stated in the offense statute.

 

(1.5) (a) If a defendant is convicted of assault in the third degree under section 18-3-204 and the victim is a peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties, notwithstanding subsection (1) of this section, the court shall sentence the defendant to a term of imprisonment greater than the maximum sentence but no more than twice the maximum sentence authorized for the same crime when the victim is not a peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties. In addition to the term of imprisonment, the court may impose a fine on the defendant under subsection (1) of this section. At any time after sentencing and before the discharge of the defendants sentence, the victim may request that the defendant participate in restorative justice practices with the victim. If the defendant accepts responsibility for and expresses remorse for his or her actions and is willing to repair the harm caused by his or her actions, an individual responsible for the defendants supervision shall make the necessary arrangements for the restorative justice practices requested by the victim.

(b) As used in this section, peace officer, emergency medical service provider, emergency medical care provider, or firefighter engaged in the performance of his or her duties means a peace officer as described in section 16-2.5-101, C.R.S., emergency medical service provider as defined in part 1 of article 3.5 of title 25, C.R.S., emergency medical care provider as defined by section 18-3-201 (1), or a firefighter as defined in section 18-3-201 (1.5), who is engaged or acting in or who is present to engage or act in the performance of a duty, service, or function imposed, authorized, required, or permitted by law to be performed by a peace officer, emergency medical service provider, emergency medical care provider, or firefighter, whether or not the peace officer, emergency medical service provider, emergency medical care provider, or firefighter is within the territorial limits of his or her jurisdiction, if the peace officer, emergency medical service provider, emergency medical care provider, or firefighter is in uniform or the person committing an assault upon or offense against or otherwise acting toward the peace officer, emergency medical service provider, emergency medical care provider, or firefighter knows or reasonably should know that the victim is a peace officer, emergency medical service provider, emergency medical care provider, or firefighter or if the peace officer, emergency medical service provider, emergency medical care provider, or firefighter is intentionally assaulted in retaliation for the performance of his or her official duties.

 

(1.7) (a) If a defendant is convicted of assault in the third degree pursuant to section 18-3-204 or reckless endangerment pursuant to section 18-3-208 and the victim is a mental health professional employed by or under contract with the department of human services engaged in the performance of his or her duties, notwithstanding the provisions of subsection (1) of this section, the court may sentence the defendant to a term of imprisonment greater than the maximum sentence but not more than twice the maximum sentence authorized for the crime when the victim is not a mental health professional employed by or under contract with the department of human services engaged in the performance of his or her duties. In addition to a term of imprisonment, the court may impose a fine on the defendant pursuant to subsection (1) of this section.

(b) Mental health professional means a mental health professional licensed to practice medicine pursuant to article 240 of title 12 or a person licensed as a mental health professional pursuant to article 245 of title 12, a person licensed as a nurse pursuant to article 255 of title 12, a nurse aide certified pursuant to article 255 of title 12, and a psychiatric technician licensed pursuant to article 295 of title 12.

(2) The defendant may be sentenced to perform a certain number of hours of community or useful public service in addition to any other sentence provided by subsection (1) of this section, subject to the conditions and restrictions of section 18-1.3-507. An inmate in county jail acting as a trustee shall not be given concurrent credit for community or useful public service when such service is performed in his or her capacity as trustee. For the purposes of this subsection (2), community or useful public service means any work which is beneficial to the public, any public entity, or any bona fide nonprofit private or public organization, which work involves a minimum of direct supervision or other public cost and which work would not, with the exercise of reasonable care, endanger the health or safety of the person required to work.

 

(3) (a) The general assembly hereby finds that certain misdemeanors which are listed in paragraph (b) of this subsection (3) present an extraordinary risk of harm to society and therefore, in the interest of public safety, the maximum sentence for such misdemeanors shall be increased by six months.

(b) Misdemeanors that present an extraordinary risk of harm to society shall include the following:

(I) Assault in the third degree, as defined in section 18-3-204;

 

(I.5) (A) Sexual assault, as defined in section 18-3-402; or

(B) Sexual assault in the second degree, as defined in section 18-3-403, as it existed prior to July 1, 2000;

 

(II) (A) Unlawful sexual contact, as defined in section 18-3-404; or

(B) Sexual assault in the third degree, as defined in section 18-3-404, as it existed prior to July 1, 2000;

(III) Child abuse, as defined in section 18-6-401 (7)(a)(V);

(IV) Second and all subsequent violations of a protection order as defined in section 18-6-803.5 (1.5)(a.5);

(V) Misdemeanor failure to register as a sex offender, as described in section 18-3-412.5;

(VI) Misdemeanor invasion of privacy for sexual gratification, as described in section 18-3-405.6; and

(VII) False reporting of an emergency, as described in section 18-8-111.

(4) Notwithstanding any provision of law to the contrary, any person who attempts to commit, conspires to commit, or commits against an elderly person any misdemeanor set forth in part 4 of article 4 of this title, part 1, 2, 3, or 5 of article 5 of this title, or article 5.5 of this title shall be required to pay a mandatory and substantial fine within the limits permitted by law. However, all moneys collected from the offender shall be applied in the following order: Costs for crime victim compensation fund pursuant to section 24-4.1-119, C.R.S.; surcharges for victims and witnesses assistance and law enforcement fund pursuant to section 24-4.2-104, C.R.S.; restitution; time payment fee; late fees; and any other fines, fees, or surcharges. For purposes of this subsection (4), an elderly person or elderly victim means a person sixty years of age or older.

(5) Every sentence entered under this section shall include consideration of restitution as required by part 6 of this article and by article 18.5 of title 16, C.R.S.

(6) For a defendant who is convicted of assault in the third degree, as described in section 18-3-204, the court, in addition to any fine the court may impose, shall sentence the defendant to a term of imprisonment of at least six months, but not longer than the maximum sentence authorized for the offense, as specified in this section, which sentence shall not be suspended in whole or in part, if the court makes the following findings on the record:

(a) The victim of the offense was pregnant at the time of commission of the offense; and

(b) The defendant knew or should have known that the victim of the offense was pregnant.

(c) (Deleted by amendment, L. 2003, p. 2163, 4, effective July 1, 2003.)

History

History.
Source: L. 2002: Entire article added with relocations, p. 1413, 2, effective October 1. L. 2003: (3)(b)(IV) amended, p. 1014, 22, effective July 1; (6)(b) and (6)(c) amended, p. 2163, 4, effective July 1; (1.5)(b) amended, p. 1624, 44, effective August 6. L. 2004: (3)(a) amended, p. 634, 3, effective August 4. L. 2005: (1.7) added, p. 1009, 1, effective July 1. L. 2007: (1) amended, p. 557, 4, effective April 16. L. 2008: (1.7)(b) and (4) amended, p. 1890, 55, effective August 5. L. 2009: (1.5) amended, (HB 09-1120), ch. 305, p. 1650, 2, effective July 1. L. 2010: (1.5)(b) amended, (HB 10-1422), ch. 419, p. 2073, 32, effective August 11; (3)(b)(IV) and (3)(b)(V) amended and (3)(b)(VI) added, (SB 10-128), ch. 415, p. 2046, 6, effective July 1, 2012. L. 2011: (1.5) amended, (HB 11-1105), ch. 250, p. 1087, 1, effective August 10. L. 2012: (1.5) amended, (HB 12-1059), ch. 271, p. 1434, 11, effective July 1. L. 2013: IP(1)(a) amended and (1)(d) and (1)(e) added, (SB 13-250), ch. 333, p. 1907, 5, effective October 1. L. 2014: (1)(d) amended, (SB 14-163), ch. 391, p. 1974, 12, effective June 6; (1.5)(b) amended, (HB 14-1214), ch. 336, p. 1498, 9, effective August 6. L. 2015: (1.5)(b) amended, (SB 15-126), ch. 109, p. 319, 5, effective July 1; (1.5)(b) amended, (SB 15-067), ch. 337, p. 1367, 4, effective September 1. L. 2018: (3)(b)(V) and (3)(b)(VI) amended and (3)(b)(VII) added, (SB 18-069), ch. 401, p. 2372, 3, effective July 1. L. 2019: (1)(a) and (1)(d) amended, (HB 19-1148), ch. 59, p. 201, 2, effective August 2; (1.7)(b) amended, (HB 19-1172), ch. 136, p. 1674, 91, effective October 1; (1)(d) amended and (1)(d.5) added, (HB 19-1263), ch. 291, p. 2679, 6, effective March 1, 2020. L. 2020: (1.7)(b) amended, (HB 20-1183), ch. 157, p. 700, 51, effective July 1.

Annotations

Editors note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editors note: (1) This article was added with relocations in 2002 containing provisions of some sections formerly located in title 16. Former C.R.S. section numbers are shown in editors notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.

(2) Amendments made by House Bills 02-1141, 02-1223, 02-1225, 02-1229, 02-1258, and 02-1352 and Senate Bills 02-010, 02-018, 02-019, 02-036, and 02-057 to sections containing criminal sentencing provisions have been harmonized with the provisions of this article pursuant to section 398 of House Bill 02-1046. See the former sections as contained in titles 16, 17, and 18 of the 2001 Colorado Revised Statutes. See the comparative table located in the back of the index.

Cross references: For the legislative declaration contained in the 2002 act enacting this article, see section 1 of chapter 318, Session Laws of Colorado 2002.

Editors note: (1) This section is similar to former 18-1-106 as it existed prior to 2002.

(2) Amendments to subsection (1.5)(b) by SB 15-067 and SB 15-126 were harmonized.

(3) Amendments to subsection (1)(d) by HB 19-1148 and HB 19-1263 were harmonized, effective March 1, 2020.

Cross references: For the legislative declaration contained in the 2003 act amending subsections (6)(b) and (6)(c), see section 1 of chapter 340, Session Laws of Colorado 2003.

ANNOTATION

Law reviews. For note, Comment: Constitutional Law Symbolic Speech Colorado Flag Desecration Statute, see 48 Den. L. J. 451 . For article, Criminal Prosecutions under the Colorado Securities Act, see 47 U. Colo. L. Rev. 233 (1976). For article, Exceeding Presumptive Maximum Sentences in Colorado, see 44 Colo. Law. 43 (Dec. 2015).

Annotators note. Since 18-1.3-501 is similar to 18-1-106 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.

Credit required for presentence confinement. A sentencing judge is constitutionally required to give an indigent defendant credit for time served in presentence confinement, even where the total of the presentence confinement and the sentence imposed after trial is less than the maximum sentence allowed for the offense. Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981).

No equal protection violation inherent in mandatory sentencing provision as applicable to a conviction for misdemeanor offense of third degree assault on an on-duty peace officer. Sentence not more severe than that for the felony offense of second degree assault, and four-year sentence to department of corrections with possibility of probation after four months was determined to be more harsh than a sentence of two years and one day in a county jail with possibility of home detention. People v. Thompson, 942 P.2d 1242 (Colo. App. 1996).

Establishment of more severe penalty for third degree assault of an on-duty peace officer than for conviction of reckless manslaughter or vehicular assault on a victim who is not a peace officer does not constitute violation of equal protection clause. The former punishes an act that has a greater social impact, which is reasonably related to the sentence. People v. Thompson, 942 P.2d 1242 (Colo. App. 1996).

Misdemeanor defined. Since felonies are defined in the constitution to be offenses punishable by death or imprisonment in the penitentiary, it follows that misdemeanors are violations of the public laws not thus punishable. City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1 (1888) (decided under G.S. 689).

A crime carrying a possible penitentiary sentence is a felony while a crime punishable by fine or imprisonment in county jail is a misdemeanor. People v. Green, 734 P.2d 616 (Colo. 1987).

Misdemeanor sentence in conjunction with felony sentence. A court may not sentence an adult offender 21 years of age or older to the department of corrections for a misdemeanor conviction unless such defendant has already been sentenced to the department for a felony and the misdemeanor sentence is made expressly concurrent with the felony sentence. People v. Green, 734 P.2d 616 (Colo. 1987).

Any consecutive sentence imposed on such offender for a misdemeanor conviction must be served in the county jail. People v. Green, 734 P.2d 616 (Colo. 1987); People v. Battle, 742 P.2d 952 (Colo. App. 1987).

Because defendants misdemeanor sentence expired while he was being held by the corrections department on felony conviction, trial court improperly altered judgment and mittimus to require defendant to serve his misdemeanor time consecutively with his felony term. People v. Battle, 742 P.2d 952 (Colo. App. 1987).

Absent some fault on defendants part, defendant was entitled to serve his misdemeanor sentence in uninterrupted manner, and mistaken transfer of defendant, by sheriff, to corrections department on subsequently imposed sentence for felony conviction should not have suspended running of defendants misdemeanor sentence. People v. Battle, 742 P.2d 952 (Colo. App. 1987).

In subsection (1)(c), the phrase to be served includes a situation where a portion of a prison sentence has already been served but the remainder of the prison sentence is yet to be served. This interpretation is consistent with the last phrase in the provision, which requires that the defendant serve the consecutive county jail sentence before being transferred to the custody of the department of corrections to serve all or the remainder of the prison sentence. People v. Valadez, 2016 COA 62, 374 P.3d 529.

In subsection (1)(c), may means shall. The legislative history sufficiently indicates that the general assembly intended the word may in the last clause of the provision to mean must or shall. People v. Valadez, 2016 COA 62, 374 P.3d 529.

In passing subsection (1)(c), the general assembly intended that, when a district court determines that a concurrent sentence is not warranted for a misdemeanor committed by a prisoner in a state prison facility, the court must toll the prison sentence, order that the county jail sentence for the misdemeanor be served before the remainder of the prison sentence, and send a mittimus to the department of corrections reflecting its sentence. After fully serving the jail sentence, the prisoner must then be transferred back to the custody of the department of corrections to serve the remainder of his or her prison sentence. People v. Valadez, 2016 COA 62, 374 P.3d 529.

To the extent that subsection (1)(c) of this section conflicts with 17-22.5-402 (1), subsection (1)(c) controls because it is the more specific and more recently enacted statute. People v. Valadez, 2016 COA 62, 374 P.3d 529.

Applied in United States v. Dunn, 545 F.2d 1281 (10th Cir. 1976); People v. Storey, 191 Colo. 546, 554 P.2d 694 (1976); People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Knaub, 624 P.2d 922 (Colo. App. 1980); People v. Martinez, 628 P.2d 608 (Colo. 1981); People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981); Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Dunoyair, 660 P.2d 890 (Colo. 1983); People v. Giles, 662 P.2d 1073 (Colo. 1983); People v. Clary, 950 P.2d 654 (Colo. App. 1997).