Second Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 12-0765.01 Michael Dohr x4347 SENATE BILL 12-125 SENATE SPONSORSHIP Harvey, Cadman, Grantham, Brophy, King K., Lundberg, Neville, Renfroe HOUSE SPONSORSHIP Holbert, Swalm, Sonnenberg, Szabo Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning crimes against an unborn child. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill creates a new article for offenses against pregnant women and their unborn children. The new offenses are unlawful termination of a pregnancy in the first degree, unlawful termination of a pregnancy in the second degree, unlawful termination of a pregnancy in the third degree, unlawful termination of a pregnancy in the fourth degree, vehicular unlawful termination of a pregnancy, and aggravated vehicular unlawful termination of a pregnancy. The bill excludes from prosecution medical care for which the mother provided consent. The penalty for criminal abortion in which the woman does not die is increased from a class 4 felony to a class 2 felony. The bill makes conforming amendments. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, recreate and reenact, with amendments, article 3.5 of title 18 as follows: ARTICLE 3.5 Offenses Against Pregnant Women and Their Unborn Children 18-3.5-101. Definitions. As used in this article, unless the context otherwise requires: (1) "After deliberation" has the same meaning as provided in section 18-3-101. (2) "Consent" has the same meaning as provided in section 18-1-505. (3) "Driving under the influence" has the same meaning as provided in section 42-4-1301, C.R.S. (4) "Unlawful termination of pregnancy" means a termination of pregnancy by means other than birth or a justified medical termination as defined in section 18-6-101. 18-3.5-102. Exclusions. (1) Nothing in this article shall permit the prosecution of a person for any act of: (a) Providing medical, osteopathic, surgical, mental health, dental, nursing, optometric, or pharmaceutical care; (b) Furnishing inpatient or outpatient hospital or clinic services; (c) Furnishing telemedicine services; (d) Furnishing any service related to assisted reproduction or genetic testing; or (e) Providing a justified medical termination as defined in section 18-6-101. (2) Nothing in this article shall permit the prosecution of a woman for any act or any failure to act with regard to her own pregnancy. 18-3.5-103. Unlawful termination of pregnancy in the first degree. (1) A person commits the offense of unlawful termination of pregnancy in the first degree if, after deliberation and with the intent to terminate the pregnancy of another person, the person ends or causes to be ended the pregnancy of a woman without her consent. (2) Unlawful termination of pregnancy in the first degree is a class 1 felony. 18-3.5-104. Unlawful termination of pregnancy in the second degree. (1) A person commits the offense of unlawful termination of pregnancy in the second degree if the person knowingly ends or causes to be ended the pregnancy of a woman without her consent. (2) Unlawful termination of pregnancy in the second degree is a class 2 felony. 18-3.5-105. Unlawful termination of pregnancy in the third degree. (1) A person commits the offense of unlawful termination of pregnancy in the third degree if the person recklessly ends or causes to be ended the pregnancy of a woman without her consent. (2) Unlawful termination of pregnancy in the third degree is a class 4 felony. 18-3.5-106. Unlawful termination of pregnancy in the fourth degree. (1) A person commits the offense of unlawful termination of pregnancy in the fourth degree if, with criminal negligence, he or she ends or causes to be ended the pregnancy of a woman without her consent. (2) Unlawful termination of pregnancy in the fourth degree is a class 5 felony. 18-3.5-107. Vehicular unlawful termination of pregnancy. (1) If a person operates or drives a motor vehicle in a reckless manner and this conduct is the proximate cause of the unlawful termination of the pregnancy of another person, the person commits vehicular unlawful termination of pregnancy. (2) Vehicular unlawful termination of pregnancy in violation of subsection (1) of this section is a class 4 felony. 18-3.5-108. Aggravated vehicular unlawful termination of pregnancy. (1) (a) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of the unlawful termination of the pregnancy of another person, such person commits aggravated vehicular unlawful termination of pregnancy. This is a strict liability crime. (b) For the purposes of this section, "one or more drugs" means all substances defined as a drug in section 12-22-303 (13), C.R.S., all controlled substances defined in section 18-18-102 (5), and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412. (c) The fact that a person charged with the offense described in this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against a charge of aggravated vehicular unlawful termination of pregnancy. (2) Aggravated vehicular unlawful termination of pregnancy is a class 3 felony. (3) In any prosecution for aggravated vehicular unlawful termination of pregnancy, 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 presumptions or inferences: (a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol. (b) If there was at such time in excess of 0.05 grams but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 grams but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether the defendant was under the influence of alcohol. (c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, such facts give rise to the permissible inference that the defendant was under the influence of alcohol. (4) The limitations of subsection (3) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether the defendant was under the influence of alcohol. (5) (a) If a law enforcement officer has probable cause to believe that a person was driving under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct may result in or is the proximate cause of the unlawful termination of the pregnancy of another person, the person, upon the request of the law enforcement officer, shall take and complete, and cooperate in completing, any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcohol or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to take, complete, or cooperate in completing any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If a person refuses to take, complete, or cooperate in taking or completing any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3) (a), (3) (b), (3) (d), or (3) (e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S. (b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his or her blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. (c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed aggravated vehicular unlawful termination of pregnancy and in accordance with rules prescribed by the state board of health concerning the health of the person being tested and the accuracy of the testing. Strict compliance with the rules shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules shall only be considered in the weight to be given to the test results and not to the admissibility of the test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules of the state board of health shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with the rules if the certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit. (d) 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 authorized to withdraw blood for the purpose of determining the alcohol or drug content therein. In any trial on a charge of aggravated vehicular unlawful termination of pregnancy, testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who he or she reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that the person was so authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (5) as a result of the act of obtaining such specimens from any person if such specimens were obtained according to the rules prescribed by the state board of health; except that this subsection (5) shall not relieve any such person from liability for negligence in the obtaining of any specimen sample. (e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his or her blood or any drug content of his or her system as provided in this subsection (5). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva that was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by the provider that show the alcohol or drug content of the person's blood or any drug content within his or her system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his or her blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Any information obtained shall be made a part of the law enforcement officer's accident report. (f) If a person refuses to take, complete, or cooperate in completing any test or tests as provided in this subsection (5) and the person subsequently stands trial for a violation of paragraph (a) of subsection (1) of this section, the refusal to take, complete, or cooperate with completing any test or tests shall be admissible into evidence at the trial, and the person may not claim the privilege against self-incrimination with regard to the admission of his or her refusal to take, complete, or cooperate with completing any test or tests. (g) Notwithstanding any provision of section 42-4-1301.1, C.R.S., concerning requirements that relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S. (6) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic 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 his or her alcohol or drug level. This subsection (6) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (6) shall preclude a defendant from offering evidence concerning the accuracy of testing devices. SECTION 2. In Colorado Revised Statutes, amend 18-6-102 as follows: 18-6-102. Criminal abortion. (1) Except as otherwise prohibited by sections 18-3.5-103, 18-3.5-104, 18-3.5-105, 18-3.5-106, 18-3.5-107, and 18-3.5-108, any person who intentionally ends or causes to be ended the pregnancy of a woman by any means other than justified medical termination or birth commits criminal abortion. (2) Criminal abortion is a class 4 class 2 felony, but if the woman dies as a result of the criminal abortion, it is a class 2 felony. SECTION 3. In Colorado Revised Statutes, 42-4-1301, amend (6) (e) as follows: 42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties. (6) (e) Involuntary blood test - admissibility. Evidence acquired through an involuntary blood test pursuant to section 42-4-1301.1 (3) shall be admissible in any prosecution for DUI, DUI per se, DWAI, habitual user, or UDD, and in any prosecution for criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., or aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S. SECTION 4. In Colorado Revised Statutes, 42-4-1307, amend (5) (a) introductory portion, (5) (b) introductory portion, (6) (a) introductory portion, and (9) (a) as follows: 42-4-1307. Penalties for traffic offenses involving alcohol and drugs - repeal. (5) Second offenses. (a) Except as otherwise provided in subsection (6) of this section, a person who is convicted of DUI, DUI per se, DWAI, or habitual user who, at the time of sentencing, has a prior conviction of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person's driver's license was under restraint pursuant to section 42-2-138 (1) (d), shall be punished by: (b) If a person is convicted of DUI, DUI per se, DWAI, or habitual user and the violation occurred less than five years after the date of a previous violation for which the person was convicted of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., or aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person's driver's license was under restraint pursuant to section 42-2-138 (1) (d), the court shall not have discretion to employ any sentencing alternatives described in section 18-1.3-106, C.R.S., during the minimum period of imprisonment described in subparagraph (I) of paragraph (a) of this subsection (5); except that a court may allow the person to participate in a program pursuant to section 18-1.3-106 (1) (a) (II), (1) (a) (IV), or (1) (a) (V), C.R.S., only if the program is available through the county in which the person is imprisoned and only for the purpose of: (6) Third and subsequent offenses. (a) A person who is convicted of DUI, DUI per se, DWAI, or habitual user who, at the time of sentencing, has two or more prior convictions of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person's driver's license was under restraint pursuant to section 42-2-138 (1) (d) shall be punished by: (9) Previous convictions. (a) For the purposes of subsections (5) and (6) of this section, a person shall be deemed to have a previous conviction for DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person's driver's license was under restraint pursuant to section 42-2-138 (1) (d), if the person has been convicted under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of an act that, if committed within this state, would constitute the offense of DUI, DUI per se, DWAI, habitual user, vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., aggravated vehicular unlawful termination of pregnancy pursuant to section 18-3.5-108, C.R.S., aggravated driving with a revoked license pursuant to section 42-2-206 (1) (b) (I) (A) or (1) (b) (I) (B), or driving while the person's driver's license was under restraint pursuant to section 42-2-138 (1) (d). SECTION 5. In Colorado Revised Statutes, 42-4-1402, amend (2) as follows: 42-4-1402. Careless driving - penalty. (2) (a) Except as otherwise provided in paragraphs (b) and (c) (b), (c), and (d) of this subsection (2), any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. (b) If the person's actions are the proximate cause of bodily injury to another, such person commits a class 1 misdemeanor traffic offense. (c) If the person's actions are the proximate cause of death to another, such person commits a class 1 misdemeanor traffic offense. (d) If the person's actions are the proximate cause of the unlawful termination of a pregnancy of another as defined in section 18-3.5-101, C.R.S., such person commits a class 1 misdemeanor traffic offense. SECTION 6. In Colorado Revised Statutes, 42-4-1601, amend (2) (c) as follows: 42-4-1601. Accidents involving death or personal injuries - duties. (2) Any person who violates any provision of this section commits: (c) A class 3 class 4 felony if the accident resulted in the death or an unlawful termination of pregnancy as defined in section 18-3.5-101, C.R.S., of any person. SECTION 7. Potential appropriation. Pursuant to section 2-2-703, Colorado Revised Statutes, any bill that results in a net increase in periods of imprisonment in the state correctional facilities must include an appropriation of moneys that is sufficient to cover any increased capital construction and operational costs for the first five fiscal years in which there is a fiscal impact. Because this act may increase periods of imprisonment, this act may require a five-year appropriation. SECTION 8. Effective date - applicability. This act takes effect July 1, 2012, and applies to offenses committed on or after said date. SECTION 9. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.