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42-2-138. Driving under restraint - penalty

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(1) (a) Except as provided in subsection (1.5) of this section, any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the persons license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of DUI, DUI per se, DWAI, or UDD is guilty of a misdemeanor. A court may sentence a person convicted of this misdemeanor to imprisonment in the county jail for a period of not more than six months and may impose a fine of not more than five hundred dollars.

(b) Upon a second or subsequent conviction under paragraph (a) of this subsection (1) within five years after the first conviction thereunder, in addition to any penalty imposed pursuant to said paragraph (a) of this subsection (1), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a drivers or minor drivers license or extended any driving privilege in this state for a period of three years after such second or subsequent conviction.

(c) This subsection (1) shall apply only to violations committed on or after July 1, 1974.

 

(d) (I) A person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the persons license or privilege to drive, either as a resident or nonresident, is restrained under section 42-2-126 (3), is restrained solely or partially because of a conviction of DUI, DUI per se, DWAI, or UDD, or is restrained in another state solely or partially because of an alcohol-related driving offense is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty days nor more than one year and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than one thousand dollars. Upon a second or subsequent conviction, the person shall be punished by imprisonment in the county jail for not less than ninety days nor more than two years and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than three thousand dollars. The minimum county jail sentence imposed by this subparagraph (I) shall be mandatory, and the court shall not grant probation or a suspended sentence thereof; but, in a case where the defendant is convicted although the defendant established that he or she had to drive the motor vehicle in violation of this subparagraph (I) because of an emergency, the mandatory jail sentence, if any, shall not apply, and, for a first conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than one year and, in the discretion of the court, a fine of not more than one thousand dollars, and, for a second or subsequent conviction, the court may impose a sentence of imprisonment in the county jail for a period of not more than two years and, in the discretion of the court, a fine of not more than three thousand dollars.

(II) In any trial for a violation of subparagraph (I) of this paragraph (d), a duly authenticated copy of the record of the defendants former convictions and judgments for DUI, DUI per se, DWAI, or UDD or an alcohol-related offense committed in another state from any court of record or a certified copy of the record of any denial or revocation of the defendants driving privilege under section 42-2-126 (3) from the department shall be prima facie evidence of the convictions, judgments, denials, or revocations and may be used in evidence against the defendant. Identification photographs and fingerprints that are part of the record of the former convictions, judgments, denials, or revocations and the defendants incarceration after sentencing for any of the former convictions, judgments, denials, or revocations shall be prima facie evidence of the identity of the defendant and may be used in evidence against the defendant.

(e) Upon a second or subsequent conviction under subparagraph (I) of paragraph (d) of this subsection (1) within five years after the first conviction thereunder, in addition to the penalty prescribed in said subparagraph (I), except as may be permitted by section 42-2-132.5, the defendant shall not be eligible to be issued a drivers or minor drivers license or extended any driving privilege in this state for a period of four years after such second or subsequent conviction.

(f) Upon a verdict or judgment of guilt for a violation of subsection (1)(a) or (1)(d) of this section, the court shall require the offender to immediately surrender the offenders drivers license, minor drivers license, temporary drivers license, or instruction permit issued by this state, another state, or a foreign country. The court shall forward to the department a notice of the verdict or judgment of guilt on the form prescribed by the department, together with the offenders surrendered license or permit. Any person who violates the provisions of this subsection (1)(f) by failing to surrender his or her license or permit to the court commits a class 2 misdemeanor traffic offense.

(1.5) Any person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the persons license or privilege to drive, either as a resident or a nonresident, is under restraint for an outstanding judgment is guilty of a class A traffic infraction as defined in section 42-4-1701 (3).

 

(2) (a) In a prosecution for a violation of this section, the fact of the restraint may be established by certification that a notice was mailed by first-class mail pursuant to section 42-2-119 (2) to the last-known address of the defendant, or by the delivery of such notice to the last-known address of the defendant, or by personal service of such notice upon the defendant.

(b) In a prosecution for a violation of this section, the fact of restraint in another state may be established by certification that notice was given in compliance with such states law.

(2.5) A municipality may enforce violations of subsection (1.5) of this section in municipal court. A municipal court shall not waive or reduce the three-point penalty.

(3) The department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle, shall immediately examine its files to determine if the license or operating privilege of such person has been restrained. If it appears that said offense was committed while the license or operating privilege of such person was restrained for a reason other than an outstanding judgment, except as permitted by section 42-2-132.5, the department shall not issue a new license or grant any driving privileges for an additional period of one year after the date such person would otherwise have been entitled to apply for a new license or for reinstatement of a suspended license and shall notify the district attorney in the county where such violation occurred and request prosecution of such person under subsection (1) of this section.

(4) For purposes of this section, the following definitions shall apply:

(a) Knowledge means actual knowledge of any restraint from whatever source or knowledge of circumstances sufficient to cause a reasonable person to be aware that such persons license or privilege to drive was under restraint. Knowledge does not mean knowledge of a particular restraint or knowledge of the duration of restraint.

(b) Restraint or restrained means any denial, revocation, or suspension of a persons license or privilege to drive a motor vehicle in this state or another state.

(5) It shall be an affirmative defense to a violation of this section, based upon a restraint in another state, that the driver possessed a valid drivers license issued subsequent to the restraint that is the basis of the violation.

History

History.
Source: L. 94: Entire title amended with relocations, p. 2155, 1, effective January 1, 1995. L. 2000: (1)(f) added, p. 683, 2, effective July 1; (1)(b), (1)(e), and (3) amended, p. 1082, 12, effective January 1, 2001; (1)(b) and (1)(e) amended, p. 1358, 34, effective July 1, 2001. L. 2005: (1)(d), (2), (3), and (4)(b) amended and (5) added, p. 648, 17, effective May 27. L. 2008: (1)(a) and (1)(d) amended, p. 249, 13, effective July 1. L. 2010: (1)(a), (1)(b), and (1)(f) amended, (HB 10-1090), ch. 45, p. 171, 1, effective August 11. L. 2013: (1)(a) and (1)(d) amended, (HB 13-1325), ch. 331, p. 1882, 11, effective May 28. L. 2017: (1)(a) and (3) amended and (1.5) and (2.5) added, (HB 17-1162), ch. 208, p. 810, 1, effective August 9. L. 2020: (1)(f) amended, (SB 20-136), ch. 70, p. 299, 53, effective September 14.

Annotations

Editors note: (1) This section is similar to former 42-2-130 as it existed prior to 1994.

(2) Amendments to subsections (1)(b) and (1)(e) by Senate Bill 00-018 and Senate Bill 00-011 were harmonized, effective July 1, 2001.

Cross references: (1) For the penalty for a class 2 misdemeanor traffic offense, see 42-4-1701 (3)(a)(II).

(2) For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.

ANNOTATION

Annotators note. Since 42-2-128 is similar to 42-2-130 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1 and to repealed 13-3-31, CRS 53, relevant cases construing these provisions have been included in the annotations to this section.

Driver may collaterally attack constitutionality of uncounseled prior traffic offense convictions underlying the administrative order of suspension when prosecuted for driving under suspension. People v. Gandy, 685 P.2d 165 (Colo. 1984)(case arose prior to enactment of 42-4-1505.3).

This section deals with the subject of driving while license is suspended or revoked. Davis v. City County of Denver, 140 Colo. 30, 342 P.2d 674.

Municipal ordinance dealing with such penalty is invalid. Power to establish a licensing system carries with it authority to revoke and to penalize the driving of a motor vehicle while the license of the operator has been suspended or revoked, and the subject being predominately statewide and general, a municipal ordinance dealing with the identical subject is invalid. Davis v. City County of Denver, 140 Colo. 30, 342 P.2d 674 (1959).

Notwithstanding 43-5-207, recognizing the power of municipalities to regulate particular areas of traffic as parking, signal control, one-way streets, speed and traffic at intersectionsdoes not specifically authorize such municipalities to punish the operator of a vehicle driving without a license, this authority has been preempted by the state and withheld from a municipality. Davis v. City County of Denver, 140 Colo. 30, 342 P.2d 674 (1959).

Renewing suspension pending hearing where suspension terminated violates due process. The practice of renewing the suspension of a license, pending a hearing at which vacation of the renewed suspension is a certainty, violates due process of law. Harris v. Colo., 516 F. Supp. 1128 (D. Colo. 1981).

Knowledge of fact of revocation is an essential element of crime of driving while license revoked. Jolly v. People, 742 P.2d 891 (Colo. 1987).

Driving while license is denied, suspended, or revoked pursuant to this section and driving after revocation pursuant to 42-2-206 proscribe the same act, and defendant may not be convicted or punished under both statutes. People v. Rodriguez, 849 P.2d 799 (Colo. App. 1992).

Driving while license denied, suspended, or revoked under this section does not merge with 42-2-206. A person is liable to be convicted under both provisions. The elements are different because operating is a different standard than driving and highways do not include private ways. People v. Zubiate, 2013 COA 69, 411 P.3d 757, affd, 2017 CO 17, 390 P.3d 394, (disagreeing with People v. Rodriguez cited above) (disapproved by supreme court in People v. Rock, 2017 CO 84, 402 P.3d 472).

Driving under restraint under this section is a lesser included offense of driving after revocation under 42-2-206. Although a person may commit driving after revocation without committing driving under restraint, a person could not commit driving under restraint without committing driving after revocation. People v. Wambolt, 2018 COA 88, 431 P.3d 681.

The drive element of driving under restraint is included within the operate element of driving after revocation because a person who drives a car necessarily operates it. People v. Wambolt, 2018 COA 88, 431 P.3d 681.

The department of revenue can impose an additional period of revocation under subsection (3) upon receiving an accident report for a person who is driving under revocation and after finding that the person was driving under restraint at the time of the accident. The statute authorizes such additional time without a conviction of driving under restraint, and such authorization is consistent with the remedial nature of the statute. Colo. Dept. of Rev. v. Garner, 66 P.3d 106 (Colo. 2003).

Driving under restraint charges may be prosecuted only for those whose licenses have been suspended, denied, or revoked in the state of Colorado. Therefore, charge of driving under restraint was dismissed against driver whose Massachusetts license was under restraint. Driving without a valid license is a lesser included offense of driving under restraint and the violation notice could proceed on the charge of driving without a license. United States v. Rogers, 865 F. Supp. 718 (D. Colo. 1994)(decided prior to 1994 repeal and reenactment).

Statute authorizes only a permissive inference of the licensees knowledge of fact of revocation and not a conclusive presumption and, therefore, comports with due process of law. Jolly v. People, 742 P.2d 891 (Colo. 1987).

Subsection (3) furthers a legitimate governmental purpose by penalizing drivers under denial, suspension, or revocation who commit additional traffic offenses and does not violate equal protection guarantees. Allen v. Charnes, 674 P.2d 378 (Colo. 1984).

Driving under restraint is a public welfare offense that requires actual knowledge or knowledge of circumstances sufficient to cause a reasonable person to be aware that such persons license to drive was under restraint. People v. Ellison, 14 P.3d 1034 (Colo. 2000); People v. Boulden, 2016 COA 109, 381 P.3d 454.

The second part of the driving under restraint statute that requires a reasonable person standard does not violate due process of law under the federal and Colorado Constitutions. People v. Ellison, 14 P.3d 1034 (Colo. 2000).

Requiring knowledge limits punishment to those who are subjectively aware of circumstances that would lead a responsible driver to realize his or her license was under restraint. Thus the knowledge requirement encourages a driver to monitor his or her infractions on the driving privilege hereby advancing the state interest in promoting driver responsibility. People v. Ellison, 14 P.3d 1034 (Colo. 2000).

Section merely permits department to exercise power to renew or extend period of suspension. Ewing v. Motor Vehicle Div., 624 P.2d 353 (Colo. App. 1980).

Section includes power to extend denials. The power to extend suspensions or revocations in subsection (3) also includes the power to extend denials. Allen v. Charnes, 674 P.2d 378 (Colo. 1984).

It does not mandate exercise of discretion by the department. Ewing v. Motor Vehicle Div., 624 P.2d 353 (Colo. App. 1980).

No distinction between revocation under implied consent and order of denial. There is no real distinction, for purposes of a prosecution under subsection (1)(a), between a driver whose license has been revoked under the implied consent law and a person against whom an order of denial has been entered. People v. Lessar, 629 P.2d 577 (Colo. 1981).

Five-day jail sentence set forth in subsection (1)(a). Subsection (1)(a) sets forth, in unmistakable terms, that a five-day jail sentence must be imposed when a defendant is convicted of violating this section. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).

The general assembly did not intend to repeal the mandatory sentencing provision of this section, sub silentio, by implication, or otherwise by enactment of 16-11-201. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).

Such provision was retained as additional exception to general probation provisions. The driving under suspension sentencing requirements in subsection (1)(a) were retained by the general assembly as an additional exception to the general Colorado statutory probation provisions. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).

County court could not grant probation. Where defendant was convicted under this section for driving while his license was suspended, and subsection (1)(a) mandated a five-day minimum jail sentence to which general statutory probation provisions did not apply, a county court could neither impose a probationary sentence nor grant probation. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).

Conviction of any motor vehicle offense authorizes extension of suspension. Conviction of any motor vehicle offense prior to the expiration of a period of suspension is sufficient to support an extension of that suspension period by the department, pursuant to subsection (3). Conway v. Colo. Dept. of Rev., 653 P.2d 411 (Colo. App. 1982).

The general assembly did not intend to limit the provisions of subsection (3) to persons charged or convicted of the offense of driving while license suspended. Conway v. Colo. Dept. of Rev., 653 P.2d 411 (Colo. App. 1982).

Driving status of denied continues until conditions met. Before a person against whom an order of denial has been entered is entitled to operate a motor vehicle, he must reapply for a new license at the end of the period of denial, pay the restoration fee required by 42-2-124 (3), file proof of financial responsibility as required by 42-7-406 (1), and must be in receipt and possession of the new license. Unless and until these conditions are satisfied, his driving status as denied continues, and he is subject to prosecution under subsection (1)(a) for driving under denial. People v. Lessar, 629 P.2d 577 (Colo. 1981).

An order of denial entered pursuant to the implied consent law will subject a driver to prosecution for driving under denial, when that person operates a motor vehicle after the expiration of the temporal term of the denial order but without having obtained a license in accordance with the conditions of the order. People v. Lessar, 629 P.2d 577 (Colo. 1981).

For purposes of extending the suspension of a Colorado drivers license pursuant to subsection (3) of this section, the initial suspension is not terminated until the driver has paid the restoration fee required by 42-2-124 (3). Conway v. Colo. Dept. of Rev., 653 P.2d 411 (Colo. App. 1982).

A persons driving status of suspended continues unless and until the driver obtains removal of the suspension at the end of the designated period of suspension by paying the restoration fee and providing the requisite proof of insurance. Colo. Dept. of Rev. v. Brakhage, 735 P.2d 195 (Colo. 1987).

Section 42-2-123 hearing not required. The requirements for a hearing in 42-2-123 cannot be extended to this section. Harris v. Colo., 516 F. Supp. 1128 (D. Colo. 1981).

Statute as basis for jurisdiction. See People v. Pinyan, 190 Colo. 304, 546 P.2d 488 (1976).

Applied in People v. Roybal, 618 P.2d 1121 (Colo. 1980); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981); Colo. Dept. of Rev. v. Smith, 640 P.2d 1143 (Colo. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983); Klingbeil v. State, Dept. of Rev., 668 P.2d 930 (Colo. 1983); Harris v. Colo. Dept. of Rev., 714 P.2d 1325 (Colo. App. 1985).