Colo. Rev. Stat. § 18-1-710, Affirmative defense

The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses.

Source: L. 71: R&RE, p. 412, � 1. C.R.S. 1963: � 40-1-810.

Cross references: For the affirmative defense of impaired mental condition, see �� 16-8-103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see �� 18-1-407 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18.

18-1-711. Immunity for persons who suffer or report an emergency drug or alcohol overdose event - definitions - repeal. (1) A person is immune from arrest and prosecution for an offense described in subsection (3) of this section if:

(a) The person reports in good faith an emergency drug or alcohol overdose event to a law enforcement officer, to the 911 system, or to a medical provider, or the person aids or seeks aid for the person who suffered the emergency drug or alcohol overdose;

(b) The person remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives or the person remains at the facilities of the medical provider until a law enforcement officer arrives;

(c) The person identifies himself or herself to, and cooperates with, the law enforcement officer, emergency medical responder, or medical provider; and

(d) The offense arises from the same course of events from which the emergency drug or alcohol overdose event arose.

(2) The immunity described in subsection (1) of this section also extends to the person who suffered the emergency drug or alcohol overdose event if all of the conditions of subsection (1) of this section are satisfied.

(3) The immunity described in subsection (1) of this section applies to the following criminal offenses:

(a) Unlawful possession of a controlled substance, as described in section 18-18-403.5 (2) or (2.5);

(b) Unlawful use of a controlled substance, as described in section 18-18-404;

(c) If committed on or after March 1, 2020, unlawful possession of two ounces or less of marijuana, as described in section 18-18-406 (5)(a)(I) prior to its repeal in 2021; or more than two ounces of marijuana but not more than six ounces of marijuana or not more than three ounces of marijuana concentrate, as described in section 18-18-406 (4)(c); or more than six ounces of marijuana or more than three ounces of marijuana concentrate, as described in section 18-18-406 (4)(b);

(d) Open and public display, consumption, or use of less than two ounces of marijuana, as described in section 18-18-406 (5)(b)(I);

(e) Transferring or dispensing two ounces or less of marijuana from one person to another for no consideration, as described in section 18-18-406 (5)(c);

(f) Use or possession of synthetic cannabinoids or salvia divinorum, as described in section 18-18-406.1;

(g) Possession of drug paraphernalia, as described in section 18-18-428;

(h) Illegal possession or consumption of ethyl alcohol or marijuana by an underage person or illegal possession of marijuana paraphernalia by an underage person, as described in section 18-13-122;

(i) A violation of section 18-18-405 (2)(a)(III)(A), if the unlawful distribution, manufacturing, dispensing, or sale of the material, compound, mixture, or preparation weighs not more than four grams and contains any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g); and

(j) A violation of section 18-18-405 (2)(d)(II) involving unlawful distribution or transferring.

(4) Nothing in this section shall be interpreted to prohibit the prosecution of a person for an offense other than an offense listed in subsection (3) of this section or to limit the ability of a district attorney or a law enforcement officer to obtain or use evidence obtained from a report, recording, or any other statement provided pursuant to subsection (1) of this section to investigate and prosecute an offense other than an offense listed in subsection (3) of this section.

(5) As used in this section, unless the context otherwise requires, emergency drug or alcohol overdose event means an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled substance, or of alcohol, or another substance with which a controlled substance or alcohol was combined, and that a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance.

(6) (a) Starting on July 1, 2022, and for three years thereafter, a law enforcement agency that responds to an emergency drug or alcohol overdose event shall report to the district attorney's office in the law enforcement agency's jurisdiction whether an arrest was made as a result of the investigation of an emergency drug or alcohol overdose event or when an arrest was not made pursuant to the provisions of this section.

(b) Starting on July 1, 2022, and for three years thereafter, each district attorney's office that receives a report regarding an arrest from law enforcement pursuant to subsection (6)(a) of this section shall prepare a report indicating each instance when a person was not prosecuted for an offense pursuant to this section if the event involved fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g). If the district attorney prosecutes a person who sought emergency assistance for an emergency drug or alcohol overdose event if the event involved fentanyl, carfentanil, benzimidazole opiate, or an analog thereof as described in section 18-18-204 (2)(g), the district attorney shall prepare a report detailing the facts and circumstances for the decision that the immunity provisions of subsection (1) of this section did not apply.

(c) Each district attorney shall provide the reports collected pursuant to this subsection (6) to the legislative service agencies of the Colorado general assembly for the purpose of a post-enactment review.

(d) This subsection (6) is repealed, effective July 1, 2026.

Source: L. 2012: Entire section added, (SB 12-020), ch. 225, p. 986, � 2, effective May 29. L. 2013: (3)(c), (3)(d), and (3)(e) amended, (SB 13-250), ch. 333, p. 1934, � 52, effective October 1. L. 2014: (3)(h) amended, (SB 14-129), ch. 387, p. 1938, � 6, effective June 6. L. 2016: IP(1) amended, (HB 16-1390), ch. 184, p. 649, � 1, effective August 10. L. 2017: (3)(a) amended, (SB 17-294), ch. 264, p. 1393, � 37, effective May 25. L. 2019: IP(3) and (3)(c) amended, (HB 19-1263), ch. 291, p. 2679, � 5, effective March 1, 2020. L. 2021: (3)(c) amended, (HB 21-1090), ch. 157, p. 900, � 1, effective May 20. L. 2022: (3)(g) and (3)(h) amended and (3)(i) and (6) added, (HB 22-1326), ch. 225, p. 1630, � 5, effective July 1. L. 2023: (1)(a), (3)(a), (3)(h), and (3)(i) amended and (3)(j) added, (HB 23-1167), ch. 144, p. 615, � 1, effective May 1.

Cross references: For the legislative declaration in the 2012 act adding this section, see section 1 of chapter 225, Session Laws of Colorado 2012. For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to � 2-2-1201 scheduled in 2024, 2025, and 2027, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to Legislative Resources and Requirements on the Colorado General Assembly's website.

18-1-712. Immunity for a person who administers an opioid antagonist during an opioid-related drug overdose event - definitions. (1) Legislative declaration. The general assembly hereby encourages the administration and distribution of opioid antagonists, including expired opioid antagonists, by persons and entities, including law enforcement personnel, school district personnel, and health-care providers, for the purpose of saving the lives of people who suffer opioid-related drug overdose events. The general assembly also encourages each person who administers an opioid antagonist to another person to call for emergency medical services immediately.

(2) General immunity. (a) A person, other than a health-care provider, is immune from criminal prosecution if the person acts in good faith to:

(I) Furnish or administer an opioid antagonist to an individual the person believes to be suffering an opioid-related drug overdose event or to an individual who is in a position to assist the individual at risk of experiencing an opioid-related drug overdose event; or

(II) Distribute the opioid antagonist.

(b) This subsection (2) also applies to:

(I) An eligible entity described in section 25-1.5-115.1 (1); except that an employee or agent of a school, or an employee or agent of a school district, a district school, the charter school institute, an institute charter school, or a nonpublic school who operates or is on a school bus, must be acting in accordance with section 12-30-110 (1)(b), (2)(b), and (4)(b), and, as applicable, section 22-1-119.1; and

(II) A person who acts in good faith to furnish or administer an opioid antagonist in accordance with section 25-20.5-1001.

(3) (a) Licensed prescribers and dispensers. An individual who is licensed by the state under title 12 and is permitted by section 12-30-110 or by other applicable law to prescribe or dispense an opioid antagonist is immune from criminal prosecution for:

(I) Prescribing or dispensing an opioid antagonist in accordance with the applicable law; or

(II) Any outcomes resulting from the eventual administration of the opioid antagonist by a layperson.

(b) Repealed.

(4) The provisions of this section shall not be interpreted to establish any duty or standard of care in the prescribing, dispensing, or administration of an opioid antagonist.

(5) Definitions. As used in this section, unless the context otherwise requires:

(a) Repealed.

(b) (I) Health-care provider means:

(A) A licensed or certified physician, nurse practitioner, physician assistant, or pharmacist; or

(B) A health maintenance organization licensed and conducting business in this state.

(II) Health-care provider does not include a podiatrist, optometrist, dentist, or veterinarian.

(d) Opioid antagonist has the same meaning as set forth in section 12-30-110 (7)(d).

(e) Opioid-related drug overdose event means an acute condition, including a decreased level of consciousness or respiratory depression, that:

(I) Results from the consumption or use of a controlled substance or another substance with which a controlled substance was combined;

(II) A layperson would reasonably believe to be an opioid-related drug overdose event; and

(III) Requires medical assistance.

Source: L. 2013: Entire section added, (SB 13-014), ch. 178, p. 656, � 2, effective May 10. L. 2015: (2), IP(3)(a), (3)(a)(I), and (5)(e) amended and (3)(b) repealed, (SB 15-053), ch. 78, p. 216, � 9, effective April 3. L. 2019: (2) amended, (SB 19-227), ch. 273, p. 2579, � 7, effective May 23; (2) and IP(3)(a) amended, (HB 19-1172), ch. 136, p. 1674, � 90, effective October 1. L. 2020: (2)(b)(I) amended, (HB 20-1206), ch. 304, p. 1526, � 7, effective July 14; (2)(a) amended, (HB 20-1065), ch. 287, p. 1420, � 5, effective September 14. L. 2021: (2)(b)(I) amended, (SB 21-122), ch. 33, p. 137, � 3, effective April 15. L. 2022: (2)(b)(I) amended, (HB 22-1326), ch. 225, p. 1644, � 18, effective July 1. L. 2024: (1), (2)(a), (2)(b)(II), (3)(a), (4), (5)(c), (5)(d), IP(5)(e), and (5)(e)(II) amended and (5)(a) repealed, (HB 24-1037), ch. 458, p. 3163, � 3, effective June 6; (2)(b)(I) amended, (HB 24-1003), ch. 121, p. 397, � 8, effective August 7. L. 2025: (2)(b)(I) amended, (SB 25-164), ch. 168, p. 684, � 8, effective August 6.

Editor's note: Amendments to subsection (2) by SB 19-227 and HB 19-1172 were harmonized.

Cross references: (1) For the legislative declaration in the 2013 act adding this section, see section 1 of chapter 178, Session Laws of Colorado 2013. For the legislative declaration in HB 24-1003, see section 1 of chapter 121, Session Laws of Colorado 2024.

(2) For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to � 2-2-1201 scheduled in 2024, 2025, and 2027, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to Legislative Resources and Requirements on the Colorado General Assembly's website.

18-1-712.3. Possession of opioid antagonist - insufficient for probable cause. The mere presence of a drug approved by the federal food and drug administration for opioid overdose reversal is not indicative of a crime and shall not be used to support probable cause.

Source: L. 2024: Entire section added, (HB 24-1037), ch. 458, p. 3164, � 4, effective June 6.

18-1-712.5. Immunity for sex workers and persons who are victims of human trafficking for sexual servitude and who suffer or report an assault - definition. (1) As used in this section, unless the context otherwise requires, person means:

(a) A person who is the victim of an offense set forth in subsection (3) of this section;

(b) A person who is a victim of human trafficking of a minor for sexual servitude pursuant to section 18-3-504; or

(2) A person is immune from arrest and prosecution for prostitution as described in section 18-7-201, soliciting for prostitution as described in section 18-7-202, and a prostitute making display as described in section 18-7-207, if the person seeks assistance from a law enforcement officer, the 911 system, or a medical provider and if the evidence for the charge of prostitution, soliciting prostitution, or a prostitute making display was obtained as a result of the person seeking assistance, as a result of the need for assistance, or as a result of the reporting of assistance. This subsection (2) also applies to equivalent municipal charges and arrests.

(3) A person who is a victim of one of the following offenses, or a person who witnesses one of the following offenses, qualifies for the immunity from prostitution charges as described in subsection (2) of this section:

(a) Murder in the first degree, as described in section 18-3-102;

(b) Murder in the second degree, as described in section 18-3-103;

(d) Criminally negligent homicide, as described in section 18-3-105;

(e) Vehicular homicide, as described in section 18-3-106;

(f) Assault in the first degree, as described in section 18-3-202;

(g) Assault in the second degree, as described in section 18-3-203;

(h) Assault in the third degree, as described in section 18-3-204;

(i) Vehicular assault, as described in section 18-3-205;

(j) Menacing, as described in section 18-3-206;

(k) Criminal extortion or aggravated extortion, as described in section 18-3-207;

(l) Reckless endangerment, as described in section 18-3-208;

(m) First degree kidnapping, as described in section 18-3-301;

(n) Second degree kidnapping, as described in section 18-3-302;

(o) False imprisonment, as described in section 18-3-303;

(p) Enticement of a child, as described in section 18-3-305;

(q) Internet luring of a child, as described in section 18-3-306;

(r) Sexual assault, as described in section 18-3-402;

(s) Unlawful sexual contact, as described in section 18-3-404;

(t) Sexual assault on a child, as described in section 18-3-405;

(u) Human trafficking for involuntary servitude or human trafficking of a minor for involuntary servitude, as described in section 18-3-503;

(v) Human trafficking for sexual servitude or human trafficking of a minor for sexual servitude, as described in section 18-3-504; or

(w) Stalking, as described in section 18-3-602.

(4) The immunity described in subsection (2) of this section for the offense of prostitution is not grounds for suppression of evidence in other criminal charges. Nothing in this section prohibits the prosecution of a person for offenses other than those listed in subsection (2) of this section, or to limit the ability of a district attorney or law enforcement officer to obtain or use evidence from a report, recording, or any other statement provided pursuant to subsection (2) of this section to prosecute an offense other than those listed in subsection (2) of this section. Nothing in this section prohibits the provision of immunity pursuant to other sections of law, as applicable, including section 18-1-711.

Source: L. 2022: Entire section added, (HB 22-1288), ch. 148, p. 954, � 1, effective May 2.

18-1-713. Victims of human trafficking of a minor for involuntary servitude or sexual servitude - affirmative defenses. (1) Except as provided in section 18-7-209, it is an affirmative defense to any charge, other than a class 1 felony, if the minor being charged proves, by a preponderance of the evidence, that he or she was, at the time of the offense:

(a) A victim of human trafficking of a minor for involuntary servitude pursuant to section 18-3-503 or human trafficking of a minor for sexual servitude pursuant to section 18-3-504; and

(b) Forced or coerced into engaging in the criminal act charged.

Source: L. 2019: Entire section added, (SB 19-185), ch. 147, p. 1766, � 5, effective May 6.

Cross references: For the legislative declaration in SB 19-185, see section 1 of chapter 147, Session Laws of Colorado 2019.

18-1-714. Protective hearing - victim's, defendant's, or witness's gender identity, gender expression, or sexual orientation - definitions. (1) Evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to subsection (2) of this section. At trial, evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered by any party in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence is presumed to be irrelevant.

(2) In any criminal prosecution, if evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation is to be offered by any party at trial in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence, the following procedures shall be followed:

(a) A written motion must be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the specific factual relevancy and materiality of evidence of a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation;

(b) The written motion must be accompanied by an affidavit in which the offer of proof is stated;

(c) If the court finds that the offer of proof is sufficient, the court shall notify the other parties. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set an in-camera hearing prior to trial. In the hearing, to the extent the facts are in dispute, the court may allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.

(d) An in-camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown;

(e) At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.

(f) All motions and supporting documents filed pursuant to this section must be filed under seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed.

(g) The court shall seal all court transcripts, digital or other recordings, and records of proceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, digital or other recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed.

(3) (a) In any criminal prosecution, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the victim or witness. The court may, at any time upon motion of the defendant or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the defendant. The court may punish a violation of a protective order by contempt of court.

(b) The person who would be the subject of the protective order may object to the motion for a protective order.

(4) If evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation is admitted at trial, the court shall instruct the jury to not allow bias or any kind of prejudice based upon gender identity, gender expression, or sexual orientation to influence its decision. If admitted for a limited purpose, the court shall further instruct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.

(5) This section does not apply when evidence of a victim's actual or perceived gender identity, gender expression, or sexual orientation is offered in a criminal prosecution for a bias-motivated crime as described in section 18-9-121. In such prosecutions, the rules of evidence shall govern the admissibility of evidence of a victim's actual or perceived gender identity, gender expression, or sexual orientation.

(6) As used in this section, unless the context otherwise requires:

(a) Gender identity and gender expression have the same meaning as in section 18-1-901 (3)(h.5).

(b) Intimate relationship has the same meaning as in section 18-6-800.3.

Source: L. 2020: Entire section added, (SB 20-221), ch. 279, p. 1366, � 4, effective July 13.

Cross references: For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.