TITLE: CONCERNING SUBSTANTIVE CHANGES FOR THE STRENGTHENING OF THE CRIMINAL LAWS.

Fiscal Impact Summary	FY 1999/2000	FY 2000/2001
State Revenues General Fund	Fine Revenue	Fine Revenue
State Expenditures General Fund	$0	($1,720,093)
FTE Position Change	0	0
Other State Impact: TABOR
Effective Date:July 1, 1999
Appropriation Summary for FY 1999-2000: None
Local Government Impact: Refer to Local Government Section below.

On April 27, 1999, the Senate Committee of the Whole amended the reengrossed bill to strike the section establishing the crime of manslaughter as a crime of violence. This action decreases the fiscal impact in the long term (years 4 and 5) as manslaughter offenders would not have their sentences increased. The Senate Committee of the Whole also amended the reengrossed bill to establish the second offense of marihuana use in a detention facility as a class 5 felony. This action increases the fiscal impact as it increases bed occupancy for 2 offenders a year. These changes increase the fiscal impact (reduction in cost avoidance) of this bill in the short term (years 2 and 3) but decrease the fiscal impact (increase in cost avoidance) in the long term (years 4 and 5).

Sections 1-3 change harassment by stalking to the crime of stalking. Expands the crime to include circumstances under which the offender can present a credible threat to a person with whom the victim has or has had a relationship. Raises the penalty from a class 6 to a class 5 felony for first offenses and from a class 5 to a class 4 felony for second or subsequent and aggravated offenses. Makes stalking a crime of extraordinary risk of harm to allow enhanced sentencing. Section 4 makes harassment a class 1 misdemeanor if the offender commits harassment with the intent of harassing or intimidating another person because of the other person's actual or perceived race, color, religion, ancestry, or national origin. Section 5 clarifies that a charge of ethnic intimidation may be based on actions taken because of the offender's perception of the victim's race, color, religion, ancestry, or national origin. Raises ethnic intimidation resulting in bodily injury to a class 4 felony if the offender is physically aided or abetted by one or more persons while committing the offense. Section 6 increases the penalty for unlawful distribution, manufacturing, dispensing, sale, or possession of flunitrazepam to a class 3 felony or a class 2 felony for any second or subsequent offense. Requires the mandatory sentencing provisions for schedule I and II controlled substances to apply to flunitrazepam. Section 7 makes illegal possession or consumption of ethyl alcohol by an underage person an unclassified offense rather than a class 2 petty offense, thereby removing the right to a jury trial on the offense. Section 8 extends the ability to aggregate the amount of drugs involved in two or more transactions over a six-month period to all schedule I and schedule II controlled substances and flunitrazepam. Section 9 lowers the penalty for driving after revocation from a class 6 felony to a class 1 misdemeanor. Creates as a class 6 felony the crime of aggravated driving with a revoked license where a person convicted of driving with a revoked license is also convicted of other specified crimes. Section 10 clarifies that "bodily injury" as used in the crime of unlawful ownership of a dangerous dog does not include a fracture of a bone but does include injury that requires reconstructive surgery. Section 11 makes theft by receiving committed twice or more within 6 months a class 4 felony if the aggregate amount involved is $500 or more but less than $15,000 and a class 3 felony if the aggregate amount involved is $15,000 or more. Section 12 classifies remifentanil hydrochloride as a schedule II controlled substance. Section 13 classifies modafinil, pentazocine, sibutramine, and stadol (butorphanol tartrate) as schedule IV controlled substances. Section 14 clarifies that the crimes concerning escape or other offenses committed while under lawful confinement apply to persons who are confined due to convictions or adjudications occurring under the laws of this state, other states, or any United States territory. Section 15 clarifies that real property is not subject to seizure and forfeiture if it is neither proceeds of nor part of the same tract or lot of land used for the underlying public nuisance act. Sections 16-17 create, as a class 6 felony, the crime of unlawful use of marihuana or a controlled substance in a detention facility A second or subsequent offense is a class 5 felony. Section 18 makes any equipment, including computer equipment, used in committing sexual exploitation of a child or computer crime subject to forfeiture as a class 1 public nuisance. Section 19 clarifies that the crime of failing to register as a sex offender applies to persons required to register as sexually violent predators. Section 20 makes knowingly neglecting or otherwise acting in a manner injurious to the welfare of an at-risk juvenile a class 1 misdemeanor. Section 21 removes a defendant's right to appellate review of the propriety of a sentence if the sentence is within the range agreed upon by the parties pursuant to a plea agreement. Section 22 clarifies that enhanced sentencing applies where a defendant who is on bond for commission of a felony, is subsequently convicted of another felony and convicted in the case involving the previous felony charge.

This bill will have a fiscal impact on General Fund revenue as a result of expected increased fines from increased misdemeanor convictions. The bill also establishes new controlled substances that will have an impact upon the drug offender surcharge fund, pursuant to Section 18-19-103, C.R.S. The specific revenue amount generated from this change cannot be estimated at this time.

The bill will impact General Fund expenditures of the Department of Corrections (DOC). Each section of the bill that has a fiscal impact is explained below. Evidence for this fiscal note was derived from samples of the current DOC inmate population stock, the court database of the Colorado District Attorney’s Council (CDAC) and conversations with the Attorney General's office and the Judicial Department. This fiscal note calculates the impact upon prison costs over the next five years, pursuant to Section 2-2-703, C.R.S., which requires that bills that would result in a net increase in periods of imprisonment be accompanied by five years of appropriations for prison bed construction and operating costs. The overall bed impact of this bill upon the DOC is identified in Table 3 on page 7 of this fiscal note.

Sections 1-3: State Fiscal Impact - Add 0.4 beds in year 2 and 2.0 beds thereafter to DOC

This section changes the crime of "harassment by stalking" to "stalking" and changes first offenses from class 6 felonies to class 5 felonies. Repeat or aggravated offenses are changed from class 5 felonies to class 4 felonies. In FY 1997-98, there were eight offenders charged and convicted of harassment by stalking, four of which were considered class 6 felonies. This fiscal note assumes a similar number of offenses for this crime. Four first-time offenders a year convicted of stalking will be sentenced to DOC as class 5 felons. These offenders will serve an estimated length of stay of 16.8 months (6.1 months longer than if this crime were maintained as a class 6 felony). Because each of the 4 felons will remain in prison for an extended sentence, DOC will need an additional 0.4 beds in year 2 and every year thereafter for each of the offenders to complete their occupancy of that bed through the year [12 months - 10.7 months = 1.3 months or 0.1 years x 4 offenders = 0.4 beds a year]. DOC will need an additional 1.6 beds beginning in year 3 and every year thereafter to accommodate the rest of the added sentence length of stay [16.8 months - 12 months served = 4.8 months or 0.4 years x 4 offenders = 1.6 beds a year].

This section classifies harassment as a class 1 misdemeanor instead of a class 3 misdemeanor if the crime is associated with ethnic intimidation. During FY 1997-98, there were 2 occasions in which the highest final charge was harassment and there were associated counts of ethnic intimidation. Only one of these two occurrences ended in a conviction. This fiscal note assumes there will be one offender convicted of harassment in which there is an associated charge of ethnic intimidation. It is estimated that they will serve between six months and eighteen months in county jail and/or pay a fine amount between $500 and $5,000.

This section makes ethnic intimidation resulting in bodily injury a class 4 felony if the offender is aided or abetted by one or more persons. In FY 1997-98, there were seven cases in which the highest final charge was ethnic intimidation with causing bodily injury. All of these offenses occurred on different dates, suggesting that the offenders acted alone. However, this fiscal note assumes that a conviction of ethnic intimidation resulting in bodily injury with the aid of another person is likely to occur once in the next five years. Therefore, DOC will need to build an additional bed for this offense, the estimated length of stay of which is 29.8 months.

Section 6: State Fiscal Impact - Add 1.0 bed over five years to DOC and increased revenue from fines

This section changes the penalty associated with the crime of possession, distribution, dispensing, or manufacturing of flunitrazepam (a schedule IV drug) from a class 5 felony to a class 3 felony. If the offense is a repeat or aggravated offense, the penalty changes from a class 4 felony to a class 2 felony. Flunitrazepam is a chemical that is commonly used in connection with sexual assault crimes. According to the CDAC database, there were no occurrences of sexual assault filings in connection with distribution or possession of schedule IV drugs. While it may be rare to find this offense unaccompanied by a charge of sexual assault (which would carry a more severe consecutive punishment than this penalty), this fiscal note assumes that one first time offense will occur every five years. Because the crime will change from a class 5 to a class 3 felony, the estimated length of prison stay will increase by 33.1 months and DOC will need an additional 1.0 beds in year 4.

This section changes the crime of consumption of ethyl alcohol by a minor from a class 2 petty offense to an unclassified offense. Under current law, any defendant charged with a petty offense has a right to a trial by jury if requested (Section 16-10-109, C.R.S.). With this change, county courts would not be required to call a jury of 3 to 6 members for trials of this crime. Therefore, county courts should realize a minor cost avoidance due to decreased case processing. In FY 1997-98, there were 233 cases of illegal possession or consumption of ethyl alcohol by an underage person. At this time, it is not possible to determine the number of cases that went to a trial by jury.

This section adds all schedule I or II drugs controlled substances (including flunitrazepam) to the statute that allows the quantity of controlled substances to be aggregated between two or more offenses within a six month period. If the aggregated amount equals or exceeds 25 grams, the mandatory sentences must be imposed, according to Table 1 on page 5.

FY 1997-98 admissions for schedule I and II distribution, manufacturing, dispensing, sale, or possession included 8 class 2 felonies, 320 class 3 felonies, and 108 class 4 felonies. This fiscal note estimates that this change will affect 5% of current admissions every year for the duration of this forecast. The DOC will have to build the number of beds shown in Table 2 on page 5.

Table 1: Mandatory Sentences for Unlawful Distribution, Manufacturing, Dispensing, Sale, or Possession of Controlled Substances

Circumstance	Mandatory Sentence
Between 25 and 450 grams	Minimum of presumptive range
Between 450 and 1000 grams	Midpoint of presumptive range
1000 grams or more	Between maximum and twice maximum

Felony Class	Estimated Offenders Annually (5%)	Current LOS (months)	New LOS (months)	Change in LOS per Offender (months)	5 Year Bed Impact (not compounded)
2	0.4	80.6	86.0	5.4	None (until year 7)
3	16.0	31.6	48.6	17.0	22.7 beds
4	5.4	22.6	26.9	4.3	1.9 beds
Total	21.8				24.6 beds

Local Impact - Increase 74.0 detainees each year over five years in county jails

This section changes the crime of driving with a revoked license from a class 6 felony to a class 1 misdemeanor. It also establishes the crime of "aggravated driving with a revoked license" that can be charged if a habitual traffic offender commits the crime of driving with a revoked license and during that offense ("as a result of the same criminal episode") commits one of the following additional crimes: driving under the influence (DUI), driving while ability impaired (DWAI), reckless driving, eluding or attempting to elude a police officer, or failure to report an accident involving bodily injury. Aggravated driving with a revoked license is a class 6 felony.

In FY 1997-98, there were 240 DOC placements for the habitual traffic offense of "driving after revocation." In a random sampling of this population, 70 percent of those sampled had additional guilty charges of DUI, DWAI, reckless driving, eluding a police officer, or failure to report an accident. This suggests that the remaining 30 percent did not have additional offenses associated with aggravated driving. DOC and Legislative Council Staff estimate there will be 275 habitual traffic offenders sentenced as "driving after revocation" in FY 2000-01. This fiscal note assumes that 83 (30% of 275) of habitual traffic offenders will not have additional counts associated with aggravated driving with a revoked license. If this bill passes, the sentence of a class 1 misdemeanor will send these 83 offenders to county jails instead. Assuming these offenders will serve the average length of stay of class 6 felons, 10.7 months, this will relieve DOC of 74.0 beds a year.

This section classifies Remifentanil hydrochloride as a schedule II controlled substance and others as schedule IV drugs. These are also controlled substances associated with sexual assault crimes. According to the CDAC database, there were no occurrences of sexual assault filings in connection with distribution or possession of schedule IV drugs. Moreover, there was no anecdotal evidence that these drugs have been in circulation in Colorado. However, according to the Drug Enforcement Agency, these drugs have been introduced to the United States. This fiscal note assumes that one first time offense (class 5 felony) will occur every five years. Therefore, DOC will need to create and fill 1.0 bed over the next five fiscal years for an estimated length of stay of 16.8 months.

This section establishes that a second offense of possession or use of marihuana in a detention facility is a class 5 felonious crime. According to DOC, approximately 30 offenders test positive for marihuana per year. Of those, it is estimated that 20-25%, or 7, of these offenders will be convicted of use or possession of marihuana, currently a class 6 felony. It is further estimated that of those 7 offenders a year, 2 of them will be second or subsequent offenders. This fiscal note assumes that there will be 2 convictions every year in which the penalty will be associated with a class 5 felony, as opposed to a class 6 felony. It is estimated this will increase the length of stay by 6.1 months per offender, which will impact DOC attendance by 1.2 beds each year.

This section makes knowingly neglecting an at-risk juvenile a class 1 misdemeanor. Because this is a new crime, this fiscal note assumes a conviction once every five years, with a sentence of a jail term of 6 to 18 months in county jail and/or a fine of $500 to $5,000.

This section clarifies that a defendant cannot appeal a conviction if he or she agreed to a sentencing range. The Judicial Department noted that the few cases that are filed in appellate courts are quickly dismissed on account of the sentence agreement in the lower court. Therefore, it is estimated that this section would not provide a significant cost avoidance in time and/or cost to the court caseload.

Section 2-2-703, C.R.S. requires that bills that would result in a net increase in periods of imprisonment be accompanied by five years of appropriations for prison bed construction and operating costs. Table 3 below illustrates this impact. Construction costs are estimated to be $69,467 per bed and operating costs of $24,105 per bed. The cost avoidance shown in this table can be attributed to section 9 of this bill.

Fiscal Year	ADA Impact	Construction Cost	Operating Cost	Total Cost
FY 1999-00	0.0	$0	$0	$0
FY 2000-01	(71.4)	0	(1,720,093)	(1,720,093)
FY 2001-02	(68.3)	0	(1,647,054)	(1,647,054)
FY 2002-03	(61.7)	0	(1,486,636)	(1,486,636)
FY 2003-04	(46.2)	0	(1,112,606)	(1,112,606)
Total		$0	($5,966,389)	($5,966,389)

This bill would have a fiscal impact on local government due to the projected increase in misdemeanor offenses and county jail sentence terms associated with misdemeanors. Because the sentencing court has the discretion to impose the fine, a jail sentence, or both, the impact upon local governments is unknown at this time.

This fiscal note implies that the DOC would not require a General Fund appropriation in FY 1999-00 or a five-year General Fund appropriation (pursuant to Section 2-2-703, C.R.S.).