The Commission does not support a statute that creates a new felony for driving under the influence of alcohol and drugs.

Increase the minimum alcohol surcharge provided in C.R.S. 42-4-1301(7)(d) from $50 to $100. The additional funding shall be directed to a persistent impaired driving fund to be used for community and jail-based treatment as provided in C.R.S. 43-3.303, for reimbursement to county jails, evaluation of substance abuse treatment programs and, if warranted (see Recommendations DUI-11 and DUI-12), DUI Court expansion.

Any fiscal savings realized through the implementation of effective reforms shall be reallocated for the purpose of developing and sustaining viable, evidence-based substance abuse treatment programs related to DUI and associated behavioral health problems.

The court shall order treatment from a Department of Human Services approved provider pursuant to an alcohol/drug evaluation. If treatment is commenced during a period of incarceration such treatment shall be credited toward the treatment required as a condition of probation.

Substance abuse treatment provided while incarcerated must be accepted by private sector providers during post-release treatment. This means that any treatment module completed or treatment level attained by the offender while incarcerated shall not be required to be repeated once released.*

The Colorado Bureau of Investigation (CBI), in cooperation with the Division of Motor Vehicle (DMV), should work toward sharing all alcohol- and drug- related driving convictions that are documented in each agency's data bases, and ensure that information on drivers with multiple DUI convictions is available to peace officers via the Colorado Crime Information Center (CCIC).

On a 3rd and subsequent alcohol-related driving arrest, if the defendant is granted bond, the conditions of the bond must include participation in a treatment program and regular monitoring such as electronic monitoring, alcohol testing and/or vehicle disabling devices. Relief from these conditions can only occur upon motion of the defendant, a hearing, and a written finding by the court that the these conditions are not in the interests of justice and that public safety is not endangered by the removal of the conditions.

Training for court professionals on best practices for DUI cases should be expanded. To this end, the Commission will identify a working group to develop a short training curriculum for professionals in the criminal justice system on the subject of evidence-based sentencing practices for multiple DUI offenders. This information should be presented at the annual conferences for judges, the Colorado District Attorneys Association, and the Colorado Defense Bar.

Examine DUI evaluation studies from other jurisdictions and evaluate Colorado DUI courts.

If Colorado DUI court evaluation findings show positive outcomes, DUI courts should be expanded by developing demonstration projects that have local stakeholder commitment and adequate funding. When appropriate, funding sources for DUI courts should be actively explored by local officials.

D11A. No changes to penalties for the 1st DUI offense.

 

D11B. For all 2nd DUI offenses, the court must impose an initial minimum jail sentence of 10 consecutive days, up to one year.

D11C. At least 10 consecutive days must be served. This minimum sentence shall not be suspended and the offender is not eligible for earned time, good time, or trustee status. If work release is granted pursuant to this provision then the offender is not eligible for day-for-day credit on work release (C.R.S. 18-1.3-106)

D11D. Credit for time served while in custody for the offense prior to conviction is mandatory. If the offender only receives the minimum 10 consecutive days in jail then pretrial confinement will be credited against that period.

D11E. A mandatory probation period of 2 years and 1 year of jail suspended must be imposed in addition to the initial jail sentence.

D11F. Any time served during the initial sentence to jail shall not be credited against the 1 year of jail suspended as a condition of probation.

D11G. Imposition of jail sentences or other sanctions for violations of probation may be done incrementally, but cannot exceed an aggregate of 1 year. The court shall consider the level of severity of any violation when imposing any sanction.

D11H. Work release is allowed for existing job, education and court ordered treatment for the first 10 days on a 2nd offense.

D11J. A fine of $600-$1500 is required. However, this can be waived or suspended at judicial discretion.

D11K. If a 2nd DUI offense is  committed on or before 5 years of the date of offense for a prior DUI offense, then no alternative sentence shall be imposed (e.g., in-home detention).

D11L. However, once the minimum of 10 consecutive days is served the court may impose an alternative sentence.

D11M. If  a 2nd DUI offense is committed beyond 5 years of the date of offense for a prior DUI offense, then the offender shall be sentenced to jail for 10 days, up to one year, or an alternative sentence may be imposed (e.g., in-home detention). The consecutive requirement does not apply to this section.

 

D11N. For all 3rd and subsequent DUI offenses the court must impose an initial minimum jail sentence of 60 consecutive days, up to one year.

D11O. At least 60 consecutive days must be served. This minimum sentence shall not be suspended and the offender is not eligible for earned time, good time, or trustee status. If work release is granted pursuant to this provision then the offender is not eligible for day for day credit on work release (C.R.S. 18-1.3-106)

D11P. Credit for time served while in custody for the offense prior to conviction is mandatory.

D11Q. A mandatory probation period of 2 years and 1 year of jail suspended must be imposed in addition to the initial jail sentence.

D11R. Any time served during the initial sentence to jail shall not be credited against the 1 year of jail suspended as a condition of probation.

D11S. Imposition of jail sentences or other sanctions for violations of probation may be done incrementally, but cannot exceed an aggregate of 1 year. The court shall consider the level of severity of any violation when imposing any sanction.

D11T. Work release is allowed for existing job, education and court ordered treatment for the first 60 consecutive days on a 3rd offense.

D11U. No alternative sentence shall be imposed (e.g., in-home detention).

D11V. However, once the minimum of 60 consecutive days is served the court may impose an alternative sentence.

D11W. Between 48 and 120 hours of public service is required.

D11X. A fine of $600-$1500 is required. However, this can be waived or suspended at judicial discretion.

D11Y. If a 3rd DUI offense is  committed on or before 7 years of the date of offense for a prior DUI offense, then 60 consecutive days in jail must be served, work release is not allowed and no alternative sentence shall be imposed (e.g., in-home detention).

D11Z. To be written as a preamble.*  The legislature recognizes that the court has the authority and encourages the use of sanctions in addition to a jail sentence as conditions of probation for any DUI offense. This includes, but is not limited to, wearing a continuous alcohol monitoring device, in-home detention during probation, and/or mandatory ignition interlock device even while license is under suspension.

 

D11AA. A mandatory minimum of two years probation for second and subsequent offenses must be imposed as a separate component of the sentence. This probationary period will commence immediately upon sentencing. The judge may impose up to an additional two years of probation, if necessary, for further monitoring and treatment.

D11BB. In addition to the initial jail sentence the court shall impose and suspend 1 year of jail as a condition of probation.

D11CC. The initial sentence to jail is not credited against probationary jail time.

D11DD. Any alcohol and/or drug education or treatment ordered must be done by an approved provider.

D11EE. Court ordered treatment must be completed before the offender may be released from probation. The court may mandate that this treatment begin during any sentence to incarceration.

D11FF. The prosecution, defendant, defendant's counsel, or probation officer may petition the court for early termination of probation by demonstrating substantial compliance with all terms and conditions of probation, successful completion of approved alcohol and/or drug treatment, and that the termination of probation will not endanger public safety.

 

Funding should be set aside for public education regarding changes to DUI law as proposed by the previous recommendations.

Eliminate non-alcohol related Driving Under Revocation (DUR), Driving Under Suspension (DUS) and Driving Under Denial (DUD) as a major offense for consideration by the Division of Motor Vehicle (DMV) for a habitual traffic offense (see C.R.S. 42-2-203).

Eliminate non-alcohol related Driving Under Revocation (DUR), Driving Under Suspension (DUS) and Driving Under Denial (DUD) as a major offense for consideration by the DMV as a predicate offense to classification as a Habitual Traffic Offender (HTO). Eliminate mandatory jail sentences for non-alcohol related DUR, DUS and DUD while still retaining them as discretionary (see C.R.S. 42-2-202).

Possession shall be a new and separate statute.

Possession of four grams or less of any Schedule I or II substance shall be a class 6 felony, except for possession of methamphetamine. Possession of two grams or less of methamphetamine shall be a class 6 felony.

Possession of an amount of any Schedule I or II substance in excess of the amounts identified in FY10-D16 (above) shall be a class 4 felony.

Possession of any Schedule III - V controlled substance (except Flunitrazepam and Ketamine) shall be a class 1 misdemeanor.

Possession of any amount of Flunitrazepam or Ketamine (date rape drugs) shall be treated like a Schedule I or II controlled substance: four grams or less is a Class 6 felony; more than 4 grams is a class 4 felony.

Use of a controlled substance shall be a class 2 misdemeanor regardless of substance used. This modification eliminates the provisions of the "use" statute allowing a court to dismiss the case upon completion of treatment, but maintains the ability of a defendant to receive a deferred judgment or deferred prosecution upon recommendation of the prosecutor.

Modify C.R.S. 18-18-415 making fraud and deceit a class 6 felony with no increase in the offense level for any subsequent offense.

C.R.S. 18-18-408 limits any type of money laundering activity to drug related crimes only. This provision should be removed from the drug code and a new statute covering any and all criminal money laundering activity should be added to Title 18.

Limit to 100 feet the current 1,000 foot zone that pertains to the sale, distribution, and manufacture of controlled substances.

Create a new crime category involving the sale of any controlled substance (other than marijuana) by a person over the age of 18 to a minor.

Amend and clarify subsection (1)(f) related to deadly weapons to provide that the special offender provision applies as follows.

Amend the special offender statute at subsection (1)(d) (the importation of Schedule I and II drugs provision) to apply only when the amount being transported into the state is more than 4 grams.

The petty offense for possession shall be increased from the current maximum amount of one ounce to a maximum amount of 4 ounces.

The class 1 misdemeanor for the possession of amounts of marijuana of more than 1 ounce but less than 8 ounces shall be changed to a range of more than 4 ounces to less that 16 ounces (1 pound).

The possession of any amount of marijuana concentrate shall be decreased from a class 5 felony to a class 1 misdemeanor.

Distribution of 4 ounces or less of marijuana without remuneration shall be a petty offense.

Possession of 16 ounces (1 pound) or more of marijuana shall be a class 6 felony and there shall be no increase in the felony level on a second offense.

Distribution or sale of more than 4 ounces but less than 5 pounds of marijuana shall be a class 5 felony.

Distribution or sale of 5 pounds or more of marijuana shall be a class 4 felony.

Distribution or sale of any amount of marijuana concentrate shall be a class 5 felony.

The distribution or sale of any amount of marijuana to a child by a person over the age of 18 where the seller is older by two years or more than the child shall be a class 3 felony.

Cultivation of six plants or less shall be a class 1 misdemeanor.

Cultivation of more than 6 plants but less than 30 plants shall be a class 5 felony.

Cultivation of more than 30 plants shall be a class 4 felony.

The spelling of the marijuana shall be corrected throughout the statutes.

Modify C.R.S. 18-1.3-201(2) to remove the mandatory application of the two prior felony probation exclusion rule to drug cases, consistent with Recommendation FY10-S3.

A fiscal analysis should be conducted of the impact of these sentencing modifications on the approximately $4.8 million collected annually from drug offender surcharges. Based on that analysis, surcharges on class 1 misdemeanors, class 6 felonies and class 5 felonies must be increased to avoid a loss of revenue.

If the General Assembly generates revenue from the regulation of medical marijuana, it should consider allocating a portion of these funds for drug treatment across the state.

The following policy statements provide the context for the recommendations that follow and were developed, in part, as a proposed replacement of C.R.S. 18-18-401.

 

D43A. The Commission on Criminal and Juvenile Justice recommends that the public policy of Colorado recognize alcoholism and substance use disorders as illnesses and public health problems affecting the health, safety, economy, and general welfare of the state.

 

D43B. The Commission recommends that the Colorado General Assembly seek to improve public safety, reduce recidivism, and promote substance abuse treatment by implementing a system of evidence-based sentencing practices and community-based interventions that focus on the individual defendant.

 

This approach will combine accountability, risk and needs assessments, criminal penalties, and appropriate treatment for individuals who are addicted to substances and convicted of criminal offenses. This system will differentiate among the following types of individuals:

a) a defendant who is an illegal drug user but is not addicted or involved in other criminal activity;

b) a defendant who is addicted but is not otherwise engaged in other criminal activity;

c) a defendant who is addicted and engaged in nonviolent crime to support their addiction;

d) a defendant who is addicted and engaged in violent crime; and

e) a defendant who is engaged in drug trafficking or manufacture for profit who is not addicted to illegal drugs.

 

D43C. Persons addicted to or dependent on controlled substances and whose criminal behavior is associated with the addiction should, upon conviction, be sentenced in a manner most likely to promote rehabilitation and to be consistent with public safety.

 

D43D. For those sentenced to the community for a drug crime and who are found to be addicted to or dependent on controlled substances, meaningful interventions should be available and applied to non-violent as well as violent offenders based upon individual needs and demonstrated risk to the community.

 

D43E. The manufacture, distribution and delivery of illicit controlled substances have a substantial and detrimental effect on the health and general welfare of the people of this state, especially children. As such, persons who habitually or commercially engaged in the trafficking of illicit substances and prescription drugs present a menace to public health and safety.

 

D43F. The purpose of sentencing occasional users and experimenters is to induce them to shun further contact with controlled substances and to learn acceptable alternatives to drug abuse. This approach requires differentiating recreational or one-time users with few or no addiction treatment needs from those who are chemically dependent and require treatment.

 

D43G. Because addiction is a chronic disease, drug relapse and return to treatment are common features in the path to recovery for individuals with substance use disorders. Therefore, judges, district attorneys, public defenders, private attorneys, probation officers, parole officers, and other professionals involved in the criminal justice system must anticipate, recognize, plan for, and appropriately respond to the potential for relapse that may occur for individuals involved in treatment.

 

D43H. The purpose of sentencing defendants with treatment needs can be achieved by promoting evidence-based sentencing of individuals convicted of drug-related offenses. Strategies include the following:

a) Allowing judges and other judicial officers to use available information and resources to develop informed and flexible evidence-based sentencing plans that meet the needs of the individual offender, that

 i. ensure appropriate safeguards to protect the defendant's rights while assigning the individual to appropriate treatment programs, and

 ii. are based on, when practical, the risk level and treatment needs of the offender as determined by objective assessment tools.

b) Allowing for the appropriate combination of supervision and treatment based on research indicating that this combined approach has the greatest likelihood of recidivism reduction and protecting the public.

c) Allowing for consideration of the significant collateral consequences that a criminal record has on employment and lifetime earnings of drug-related convictions, and how such convictions can undermine successful community reintegration.

d) Using treatment programs with demonstrated rates of success.

e) Targeting interventions to offenders with moderate- to high-level treatment needs rather than those identified with low-risk and low-needs.

f) Targeting individuals who could benefit from appropriate treatment programs.

Identify a working group to develop funding strategies.

Ensure statutory reforms are consistent with sentencing policy, evidence-based practices and recidivism reduction.

Establish a transparent mechanism to ensure that fiscal savings resulting from CCJJ recommendations are reallocated toward treatment programs.

Design differential intervention approaches for defendants.

Community-based treatment should be expedited for alcohol and drug-involved defendants.

Intermediate sanctions and rewards should be authorized when working with drug-involved offenders.

Judicial districts should develop a collaborative decision-making process for cases involving drug-addicted offenders.

Those prosecuting drug-involved defendants must proactively address minority over-representation.

Modify court sanctions for first-time offenders to help individuals maintain or obtain employment.

Allow felony arrest records to be sealed when the conviction is for a misdemeanor drug crime.

Assess all drug-involved defendants for risk and treatment needs as early as possible in the criminal court process.

Remove barriers to conducting risk and treatment needs assessments while protecting a defendant's Constitutional rights.

Treatment programs that receive state funding should be evaluated and evaluation data should be coordinated through the Division of Behavioral Health at the Colorado Department of Human Services.

The Division of Criminal Justice, State Judicial Branch, and the Division of Behavioral Health should collaborate in the evaluation of alcohol and drug treatment programs.

Develop empirically-based core competencies and standards of practice in offender management along with standardized training and regulation for providers working with offenders.

 

CRS 17-2-207 (NOTE: A strikethrough of words indicates suggested deletions from existing statute.)

(3) Offenders on parole shall remain under legal custody and shall be subject at any time to be returned to a correctional facility. If any paroled offender leaves the state without lawful permission, he shall be held as a parole violator and arrested as such. If any parolee not paroled to reside in a county in which a correctional facility is located is found within the boundaries of such county without lawful permission, or if any parolee who is paroled to reside in such county or is in such county without lawful permission is found within the boundaries of state property without lawful permission, he shall be arrested as a parole violator.

 

CRS 17-22.5-405 (NOTE: Capital letters indicate suggested new material to be added to existing statutes; a strikethrough of words indicates suggested deletions from existing statute.)

(1.5) (a) Earned time, not to exceed twelve days for each month of incarceration or parole, may be deducted from an inmate's sentence if the inmate:

i. Is serving a sentence for a class 4, class 5, or class 6 felony;

ii. Has incurred no CLASS I code of penal discipline violations WITHIN THE PREVIOUS TWENTY-FOUR MONTHS AND NO CLASS II CODE OF PENAL DISCIPLINE VIOLATIONS WITHIN THE PREVIOUS TWELVE MONTHS OR SINCE BEING CURRENTLY INCARCERATED IF LENGTH OF INCARCERATION TIME ON CURRENT CONVICITON IS LESS THAN TWENTY-FOUR MONTHS. while incarcerated  

iii. IS CURRENTLY has been program-compliant;

iv. Was not convicted of, and has not previously been convicted of a felony crime in sections 18-7-402 to 18-7-407, C.R.S., section 18-12-102, C.R.S., or section 18-12-109, C.R.S., SECTION 18-6-701, SECTION 18-3-303, SECTION 18-3-305, SECTION 18-3-306, or a crime listed in section 24-4.1-302 (1), C.R.S.

 

(6) Earned release time shall be scheduled by the parole board and the time computation unit in the department of corrections for inmates convicted of class 4 and class 5 felonies up to sixty days prior to the mandatory release date and for inmates convicted of class 6 felonies up to thirty days prior to the mandatory release date for inmates who meet the following criteria:

(a) The inmate has INCURRED no CLASS I code of penal discipline violations WITHIN THE PREVIOUS TWENTY-FOUR MONTHS AND NO CLASS II CODE OF PENAL DISCIPLINE VIOLATIONS WITHIN THE PREVIOUS TWELVE MONTHS OR SINCE BEING CURRENTLY INCARCERATED IF LENGTH OF INCARCERATION TIME ON CURRENT CONVICITON IS LESS THAN TWENTY-FOUR MONTHS.

(b) The inmate is CURRENTLY program-compliant; and

(c) The inmate was not convicted of, and has not previously been convicted of a felony crime in sections 18-7-402 to 18-7-407, C.R.S., section 18-12-102, C.R.S., or section 18-12-109, C.R.S., SECTION 18-6-701, SECTION 18-3-303, SECTION 18-3-305, SECTION 18-3-306 or a crime listed in section 24-4.1-302 (1), C.R.S.

Introduce a structured decision-making guide for use by the Colorado parole board. Include in the legislative declaration (C.R.S. 17-22.5-404) that the guidelines reflect evidence-based practices by prioritizing public safety and actuarially-determined risk, criminogenic needs, and offender readiness for parole; organize and streamline existing information; promote consistency in parole decision making; and allow for systematically collecting data on parole decision making.

Modify C.R.S. 18-8-209 to accomplish the following: Any individual who is on inmate status irrespective of the facility in which they are held will be subject to a mandatory consecutive sentence to prison. Any individual not on inmate status is eligible for a consecutive sentence but not a mandatory consecutive sentence.

Study in designated pilot sites the viability of responding to offenders who abscond from a community corrections halfway house or Intensive Supervision Parole (inmate status) by imposing on those offenders intermediate sanctions instead of escape filings. Data from the pilot sites would be combined with community corrections escape data to determine whether intermediate sanctions appear to be safe and effective in the management of offenders who walk away from halfway houses.

Modify C.R.S. 18-1.3-201(2)(a) to allow for probation eligibility for those who have multiple prior felony convictions. Offenders with two or more prior felony convictions, one or more of which is for a crime of violence as defined in 18-1.3-406 or where one of the two or more prior felonies or the present felony was a conviction for manslaughter, 2nd degree burglary, robbery, theft from a person, or a felony offense committed against a child would be ineligible for probation without a recommendation of waiver by the district attorney. Repeal 18-1.3-201(2)(b) and 18-1.3-201(4)(a)(ll).

The complex nature of Colorado statutes pertaining to aggravated, extraordinary risk, and mandatory minimum sentences requires detailed analysis and careful study to ensure that any recommended modifications conform to broader sentencing policies and structures, and to ensure that the consequences of any modifications are analyzed and well understood by stakeholders. The Commission must first undertake this analysis to guarantee that any recommended statutory reforms must be consistent with evidence-based practices and recidivism reduction.