§ 33-13-108.1. Operating a motorboat or sailboat while under the influence

(1)(a) It is a misdemeanor for any person to operate a motorboat or sailboat or be in actual physical control of a motorboat or sailboat in this state while:

(I) Under the influence of alcohol;

(II) The amount of alcohol, as shown by analysis of such person's blood or breath, in such person's blood is 0.10 or more grams of alcohol per one hundred milliliters of blood or 0.10 or more grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense or within two hours after operating a motorboat or sailboat if the evidence establishes beyond a reasonable doubt that such person did not consume any alcohol between the time of operation and the time of testing;

(III) Under the influence of any controlled substance as defined in section 12-22-303(7), C.R.S., or any other drug which renders him incapable of safely operating a motorboat or sailboat;

(IV) Under the influence of any combination of alcohol and any controlled substance as defined in section 12-22-303(7), C.R.S., or any other drug, when such combination of alcohol and controlled substance or any other drug renders him incapable of safely operating a motorboat or sailboat.

(b) For the purposes of this subsection (1), "under the influence of any controlled substance or any other drug" shall include the use of glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor.

(2)(a) In any prosecution of a violation of paragraph (a) 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, shall give rise to the following presumption: If there was at such time 0.10 or more grams of alcohol per one hundred milliliters of blood as shown by analysis of such person's blood or 0.10 or more grams of alcohol per two hundred ten liters of breath as shown by analysis of such person's breath, it shall be presumed that the defendant was under the influence of alcohol.

(b) The limitation of this subsection (2) 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.

(3) In any prosecution for a violation of subsection (1) of this section, the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what the tests show and other facts so that the trier of fact could infer that the tests were in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person's blood or breath.

(4)(a) On and after July 1, 1989, any person who operates a motorboat or sailboat or who is in actual physical control of a motorboat or sailboat on the waters of this state shall be deemed to have expressed his consent to the provisions of this subsection (4).

(b) Any person who operates a motorboat or sailboat or who is in actual physical control of a motorboat or sailboat on the waters of this state may be required to submit to a test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood or breath if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of subsection (1) of this section. If such person requests that said test be a blood test, then the test shall be of his blood; but, if such person requests that a specimen of his blood not be drawn, then a specimen of his breath shall be obtained and tested.

(c) Any person who operates a motorboat or sailboat or who is in actual physical control of a motorboat or sailboat on the waters of this state may be required to submit to a test or tests of his blood, saliva, and urine for the purpose of determining the drug content within his system if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of subsection (1) of this section.

(5) Any person who is required to submit to, or who requests that a specimen of his blood, breath, saliva, or urine be taken or drawn for, testing shall cooperate with the person authorized to obtain such specimens, including the signing of any release forms required by any person who is authorized to take or withdraw such specimens. If such person refuses to sign any release forms, such refusal shall be considered a refusal to take the tests, provided said forms conform to subsection (6) of this section. No peace officer shall physically restrain any person for the purpose of obtaining a specimen of his blood, breath, saliva, or urine for testing.

(6) The tests shall be administered at the direction of the arresting officer having reasonable grounds to believe that the person had been operating a motorboat or sailboat in violation of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health, with utmost respect for the constitutional rights, dignity of the person, and health of the person being tested. 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 technician 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 shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital in which such specimens are obtained as provided in subsection (4) of this section as a result of the act of obtaining such specimens from any person submitting thereto if such specimens were obtained according to the rules and regulations prescribed by the state board of health; except that such provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.

(7) Any person who is dead or unconscious shall be tested to determine the alcoholic content of his blood as provided in subsection (4) of this section. 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 will be made a part of the accident report.

(8) If a person refuses to submit to tests as provided for in subsection (4) of this section and such person subsequently stands trial for a violation of subsection (1) of this section, the refusal to submit to such tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to submit to any tests.

(9) The fact that any person charged with a violation of subparagraph (II) or (III) of paragraph (a) of subsection (1) of this section is or has been entitled to use such controlled substance or drug under the laws of this state shall not constitute a defense against any person charged with such violation.

(10) No court shall accept a plea of guilty to a violation of section 33-13-108(4) or a non-alcohol-related or non-drug-related boating offense from a person charged with a violation of subsection (1) of this section; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related boating offense upon a good faith representation by the prosecuting attorney that he could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.

(11) When a peace officer has reasonable grounds to believe that a person is operating a motorboat or sailboat while under the influence of alcohol or that the operator has been involved in a boating accident resulting in injury or death, the peace officer may request the operator to provide a sample of the operator's breath for a preliminary screening test using a device approved by the executive director of the department of public health and environment as being accurate to within ten percent of the actual reading obtained by the officer upon administering the test. The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to administer a test pursuant to paragraph (b) of subsection (4) of this section but shall not be used in any court action except to prove that a test was properly authorized pursuant to this section. The results of such test shall be made available to the operator or his attorney upon request. The preliminary screening test shall not constitute the test for the purposes of subsection (4) of this section.

(12)(a) Every person who is convicted of a violation of subsection (1) of this section shall be punished by imprisonment in the county jail for not less than five days nor more than one hundred eighty days, and, in addition, the court may impose a fine of not less than one hundred dollars nor more than one thousand dollars. Except as provided in paragraph (c) of this subsection (12), the minimum period of imprisonment provided for such violation shall be mandatory. In addition to any other penalty which is imposed, every person who is convicted of a violation to which this paragraph (a) applies shall perform no more than ninety-six hours of useful public service.

(b) Upon a conviction of a second or subsequent violation of subsection (1) of this section which occurred within five years of the date of a previous violation of subsection (1) of this section, the offender shall be punished by imprisonment in the county jail for not less than sixty days nor more than one year, and, in addition, the court may impose a fine of not less than five hundred dollars nor more than one thousand five hundred dollars. The minimum period of imprisonment as provided for such violation shall be mandatory, but the court may suspend up to fifty-five days of the period of imprisonment if the offender complies with the provisions of paragraph (c) of this subsection (12). In addition to any other penalty which is imposed, every person who is convicted of a violation to which this paragraph (b) applies shall perform not less than sixty hours nor more than one hundred twenty hours of useful public service. The performance of the minimum period of service shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.

(c) The sentence of any person subject to the provisions of paragraph (a) or (b) of this subsection (12) may be suspended to the extent provided for in said paragraphs if the offender receives a presentence alcohol and drug evaluation and, based on that evaluation, if such offender satisfactorily completes an appropriate level I or level II alcohol and drug driving safety education or treatment program and abstains from the use of alcohol for a period of one year from the date of sentencing. Such abstinence shall be monitored by the treatment facility by the administration of disulfiram or by any other means that the director of the treatment facility deems appropriate. If, at any time during the one-year period, the offender does not satisfactorily comply with the conditions of the suspension, that sentence shall be reimposed, and the offender shall spend that portion of his sentence which was suspended in the county jail.

(d) In addition to any other penalty provided by law, the court may sentence a defendant who is convicted pursuant to this section to a period of probation for the purposes of treatment not to exceed two years.

(e) For the purposes of this subsection (12), "useful public service" shall have the same meaning as that set forth in section 42-4-1301(9)(i), C.R.S., and the useful public service program authorized therein shall be utilized for the purposes of this subsection (12). An offender sentenced to such useful public service program or to such work assignments shall complete the same within the time established by the court. In addition to any other penalties, fines, fees, or costs prescribed in this section, the court shall assess an amount not to exceed the amount established in section 42-4-1301(9)(i), C.R.S., upon any person required to perform useful public service. Such amount shall be used only to pay for the costs authorized in section 42-4-1301(9)(i), C.R.S.

(f) For the purposes of this subsection (12), "alcohol and drug driving safety education or treatment" shall have the same meaning as that set forth in section 42-4-1301(10), C.R.S., and the alcohol and drug driving safety program and the presentence alcohol and drug evaluations authorized therein shall be utilized for the purposes of this subsection (12). The presentence alcohol and drug evaluation shall be conducted on all persons convicted of a violation of subsection (1) of this section; except that this requirement shall not apply to persons who are not residents of Colorado at the time of sentencing. Any defendant sentenced to level I or level II education or treatment programs shall be instructed by the court to meet all financial obligations of such programs. If such financial obligations are not met, the sentencing court shall be notified for the purpose of collection or review and further action on the defendant's sentence. In addition to any other penalties, fines, fees, or costs prescribed in this section, the court shall assess an amount, not to exceed the amount established in section 42-4-1301(10), C.R.S., upon any person convicted of a violation of subsection (1) of this section. Such amount shall be used only to pay for the costs authorized in section 42-4-1301(10), C.R.S. The court shall consider the alcohol and drug evaluation prior to sentencing. The provisions of this paragraph (f) are also applicable to any defendant who receives a deferred prosecution in accordance with section 16-7-401, C.R.S., or who receives a deferred sentence in accordance with section 16-7-403, C.R.S.

(g) Upon a conviction for a first offense, in addition to any other penalties, fines, fees, or costs imposed for a violation of subsection (1) of this section, the court shall order the person to not operate a motorboat or sailboat for a three-month period. Upon a conviction for a second or subsequent offense, in addition to any other penalties, fines, fees, or costs imposed for a violation of subsection (1) of this section, the court shall order the person to not operate a motorboat or sailboat for a one-year period. For the purposes of this paragraph (g), "conviction" includes a conviction in any court of record or municipal court, a plea of no contest accepted by the court, or the forfeiture of any bail or collateral deposited to secure a defendant's appearance in court or the failure to appear in court by a defendant charged with a violation of subsection (1) of this section who has been issued a summons and complaint to appear pursuant to section 33-15-102(2).

(h) Upon a plea of guilty or a verdict of guilty by the court or a jury to any offense specified in subsection (1) of this section, the court shall order the defendant to immediately report to the sheriff's department in the county where the defendant was convicted, at which time the defendant's fingerprints and photographs shall be taken and returned to the court, which fingerprints and photographs shall become a part of the court's official documents and records pertaining to the defendant's conviction and the defendant's identification in association with such conviction. In any trial for a violation of any of the offenses specified in subsection (1) of this section, a duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. Identification photographs and fingerprints that are part of the record of such former convictions and judgments of any court of record or are part of the record at the place of such party's incarceration after sentencing for any of such former convictions and judgments shall be prima facie evidence of the identity of such party and may be used in evidence against him. Any person who fails to immediately comply with the court's order to report to the sheriff's department, to furnish fingerprints, or to have his photographs taken may be held in contempt of court.

(13)(a) No owner or operator of a motorboat or sailboat shall knowingly authorize such motorboat or sailboat to be operated by or come under the actual physical control of any other person if such person is under the influence of alcohol, a controlled substance or any other drug, or any combination thereof.

(b) Any person who is convicted of a violation of paragraph (a) of this subsection (13) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not less than one hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment.

(14) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related boating 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 the alcohol or drug level. This subsection (14) shall not prevent the necessity of establishing during a trial that the testing devices used were in proper working order and that such testing devices were properly operated. Nothing in this subsection (14) shall preclude a defendant from offering evidence of the accuracy of the testing device.

(15) As used in this section, "convicted" includes a plea of no contest accepted by the court.

(16)(a) Upon conviction of or plea of no contest to a violation of this section, the court shall forward a certified copy of such conviction or plea to the division.

(b) When a peace officer requests a person to submit to tests as required by subsection (4) of this section and such person refuses to submit to such tests, the officer shall forward to the division a verified report of all relevant information, including information which adequately identifies such person and a statement of the officer's probable cause for requesting such person to submit to the tests.