Boulder Municipal Code Title V Chapter 2

5-2-1 Legislative Intent.

The provisions of this chapter apply to all prosecutions in municipal court for violation of this code, any ordinance of the city, or rule promulgated pursuant thereto.

5-2-2 Application of Code.

(a) A person is subject to prosecution in the municipal court for a violation committed through the conduct of such person or through the conduct of another for whom such person is legally accountable, if:

(1) The conduct constitutes a violation and is committed either wholly or partly within the city or within any city park, parkway, recreation area, or open space;

(2) The conduct outside the city constitutes an attempt, as defined by this code, to commit a violation within the city;

(3) The conduct outside the city constitutes a conspiracy to commit a violation within the city, and an act in furtherance of the conspiracy occurs in the city; or

(4) The conduct within the city constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction a violation prohibited under the laws of this city and such other jurisdiction.

(b) A violation is committed partly within this city if conduct occurs in this city that is an element of a violation or if the result of conduct in this city is such an element.

(c) Whether a violator is in or outside the city is immaterial to the commission of a violation based on an omission to perform a duty imposed by the law of this city.

(d) “City” as used in this section and in any summons, summons and complaint, or complaint alleging a violation of the code or any ordinance, includes both the area within the territorial limits of the City of Boulder, Colorado, and also those areas over which extraterritorial police power has been granted by the statutes of this state. It is the intent of the city council to extend the territorial jurisdiction of the municipal court as widely as possible. However, where specific sections of this code require that the violation occur “within the city” then the offense is limited to the territorial limits of the city.

5-2-3 Common Law Crimes Abolished.

Common law crimes are abolished, and no conduct shall constitute a violation unless it is prohibited by this code, an ordinance of the city, the charter, or a rule or regulation promulgated thereunder. But this provision does not affect the power of the municipal court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order lawfully entered, or a civil judgment or decree; nor does it affect the use of case law as an interpretive aid in the construction of the provisions of this code.

(Ordinance No. 4969 (1986))

5-2-4 General Penalties.

(a) The penalty for violation of any provision of this code or any ordinance is a fine of not more than $1,000.00 per violation, or incarceration for not more than ninety days in jail, or by both such fine and incarceration, except as follows:

(1) Where any different provision is made elsewhere in this code or any ordinance;

(2) Where the defendant’s criminal culpability is vicarious, jail may not be imposed as a penalty;

(3) Where a non-traffic violation is involved, in order to impose a jail sentence, the court must be satisfied from the evidence and other material available to it for sentencing that the defendant acted intentionally, knowingly, or recklessly with respect to the material elements of the violation. Where traffic offenses are concerned, ordinary negligence is sufficient to permit the imposition of jail;

(4) Where a defendant is a child under the age of ten years, in which case the child may not be held accountable in municipal court for any violation; or

(5) Where the defendant is a child of ten years through and including seventeen years of age, the child may not be sentenced to jail except upon conviction of a moving traffic violation for which penalty points are assessed against the driving privilege under the laws of this state.4

(b) Nothing in subsection (a) of this section is intended to:

(1) Remove or limit the discretion or authority of any public official to charge a child in a court other than the municipal court; or

(2) Limit the power of the municipal court to incarcerate a defendant for nonpayment of a fine or for contempt.

(c) The penalty for violation of any rule or regulations promulgated under authority delegated by the charter, this code, or any ordinance of the city is a fine of not more than $1,000.00 per violation, except as provided in paragraph (a)(4) of this section.

(d) The maximum penalty for violation of sections 5-3-1, “Assault in the Third Degree,” 5-3-2, “Brawling,” 5-3-3, “Physical Harassment,” 5-3-4, “Threatening Bodily Injury,” 5-3-6, “Use of Fighting Words,” and 5-4-1, “Damaging Property of Another,” B.R.C. 1981, when the offense is found to be a bias motivated crime, shall be a fine of not more than $2,000.00 per violation, or incarceration for not more than ninety days in jail, or both such fine and incarceration. The court shall not be required to make the findings required by subsection (a)(3) of this section in order to impose a sentence including incarceration. This ordinance shall not be applied in a manner that suppresses abstract thought or protected speech.

(Ordinance Nos. 4969 (1986); 5639 (1994); 7496 (2007))

5-2-5 Violations.

(a) The terms “crime,” “offense,” “misdemeanor,” and “violation” as used in this code or any uncodified ordinance are synonymous. Any act or omission declared to be a violation or to be unlawful or required or prohibited by the phrase “no person shall,” or similar mandatory language in or by this code or any ordinance of the city or any rule promulgated thereunder constitutes a violation.

(b) Unless otherwise specifically provided in this code or an ordinance of the city or a rule promulgated thereunder, every day of a violation of the code, ordinance, or rule constitutes a separate violation.

5-2-6 Statute of Limitations.

No person shall be prosecuted, tried, or punished for any violation under this code or any ordinance unless the action for said violation is instituted within one year of the date of the alleged violation, but the statute of limitations within which a prosecution must be instituted shall be tolled for:

(a) Any period not to exceed one year when the accused is absent from the city; or

(b) Any period in which a prosecution is pending against the accused for the same conduct, even if the summons, the complaint, or the summons and complaint that commence the prosecution is quashed or the proceedings thereon are set aside or reversed on appeal.

5-2-7 Requirements for Criminal Liability and for Offenses of Strict Liability and of Mental Culpability.

(a) The minimum requirement for criminal liability is the performance by a person of conduct that includes an act or the omission to perform an act. If such conduct is all that is required for commission of a particular violation, the violation is one of “strict liability.” If a culpable mental state on the part of the actor is required with respect to any material element of a violation, the violation is one of “mental culpability.”

(b) If a section of this code provides that negligence suffices to establish an element of a violation, that element also is established if a person acts recklessly, knowingly, or intentionally. If recklessness suffices to establish an element of a violation, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establishing an element of a violation, that element also is established if a person acts intentionally.

5-2-8 Principals and Parties Subject to Charge Under This Code.

(a) A person is guilty of a violation committed by the behavior of another individual if:

(1) Such person is made accountable for the conduct of that other individual by the section defining the violation or by specific provision of this code or other ordinance of the city; or

(2) Such person acts with a mental state sufficient for the commission of the violation in question and causes an innocent individual to engage in such behavior. As used in this subsection, “innocent individual” includes any individual who is not guilty of the violation in question, despite such individual’s behavior, because of duress, legal incapacity or exemption, or unawareness of the illegal nature of the conduct in question, or of the defendant’s illegal purpose, or any other factor that precludes the mental state sufficient for the commission of the offense in question.

(b) A person is legally accountable as principal for the behavior of another constituting a violation if, with the intent to promote or facilitate the commission of the violation, such person aids, abets, or advises the other in planning or committing the violation.

(c) Unless otherwise provided by the section of this code or other ordinance of the city defining the violation, a person is not legally accountable for behavior of another individual constituting a violation if such person is a victim of that violation or the violation is so defined that such person’s conduct is inevitably incidental to its commission.

(d) It is a specific defense under subsection (b) of this section that, prior to the commission of a violation, the defendant’s effort to promote or facilitate its commission was terminated by the defendant, and such defendant either gave timely warning to law enforcement authorities or gave timely warning to the intended victim.

(e) In any prosecution for a violation in which liability is based upon the behavior of another pursuant to this code, it is no defense that the other has not been prosecuted for or convicted of any violation based upon the behavior in question or has been convicted of a different violation or degree of violation or that the defendant belongs to a class of persons who by definition of the violation are legally incapable of committing the violation in an individual capacity.

(f) A corporation is guilty of a violation if:

(1) The conduct constituting the violation consists of an omission to discharge a specific duty of affirmative performance imposed on the corporation by law; or

(2) The conduct constituting the violation is engaged in or solicited by the board of directors or by an employee acting within such employee’s scope of employment or on behalf of the corporation.

(3) It is a specific defense to corporate liability for moving traffic violations, other than those in which defects in equipment are involved, that the corporation placed no pressure on its employees that would reasonably be understood by them to encourage or require unlawful driving, and that the corporation also had a policy that it regularly followed of training its employees in safe driving and disciplining its employees for unsafe or illegal driving.

(g) A person is criminally liable for conduct constituting a violation that such person performs the act, omission, or possession, or causes it to occur in the name of or on behalf of a corporation to the same extent as if such person performed or caused that conduct in such person’s own name or on such person’s own behalf.

(h) Whenever the law imposes a specific duty of affirmative performance on any person, where that person is:

(1) A partnership, all the partners are liable for any failure to perform that duty;

(2) An association, all the members are liable for any failure to perform that duty; or

(3) A corporation, all the officers and agents who are responsible in the course of their employment for the performance of the duty are liable for any failure to perform that duty.5

5-2-9 Criminal Attempt.Go to the top

(a) A person commits criminal attempt if, acting with the kind of mental culpability otherwise required for commission of a violation, the person engages in conduct that constitutes a substantial step toward the commission of the violation. A substantial step is any conduct, whether act, omission, or possession, that strongly corroborates the firmness of the actor’s purpose to complete the commission of the violation. Factual or legal impossibility of committing the violation is not a defense if the violation could have been committed had the intended circumstances been as the actor believed them to be, nor is it a defense that the violation attempted was actually perpetrated by the accused.

(b) A person who engages in conduct intending to aid another to commit a violation commits criminal attempt if the conduct would establish such person’s complicity were the violation committed by the other, even if the other is not guilty of committing or attempting the violation.

(c) It is an affirmative defense to a charge under this section that the defendant abandoned the effort to commit the violation or otherwise prevented its commission, under circumstances manifesting the complete and voluntary renunciation of the defendant’s illegal intent.

(d) The maximum penalty upon conviction of attempting to violate a provision of this code, any ordinance of the city, or any rule promulgated thereunder is half the penalty that would apply if the offense had been committed.

5-2-10 Conspiracy.Go to the top

(a) A person commits conspiracy to commit a violation if, with the intent to promote or facilitate its commission, such person agrees with another individual or individuals that they, or one or more of them, will engage in conduct that constitutes a violation or an attempt to commit a violation, or such person agrees to aid the other individual or individuals in the planning or commission of a violation or an attempt to commit a violation.

(b) No person may be convicted of conspiracy to commit a violation unless an overt act is proved to have been done by such person or by an individual with whom such person conspired in pursuit of that conspiracy.

(c) If a person knows that an individual with whom such person conspires to commit a violation has conspired with another individual or individuals to commit the same violation, such person is guilty of conspiring to commit a violation with the other individual or individuals, whether or not such person knows their identity.

(d) If a person conspires to commit a number of violations, such person is guilty of only one conspiracy as long as such multiple violations are part of a single criminal episode.

(e) Subject to the provisions of subsection (f) of this section, two or more persons charged with conspiracy may be prosecuted jointly if:

(1) They are charged with conspiring with one another; or

(2) They are charged with being involved in conspiracies that are so related as to constitute different aspects of a scheme of organized illegal conduct. In such case it is immaterial that the persons charged are not parties to the same conspiracy.

(f) In any joint prosecution under subsection (e) of this section:

(1) Neither the liability of any defendant nor the admissibility against such defendant of evidence of acts or declarations of another shall be enlarged by this joinder; and

(2) The judge shall order a severance or take a special verdict as to any defendant who so requests, if the judge deems it necessary or appropriate to promote the fair determination of the defendant’s guilt or innocence.

(g) It is an affirmative defense to a charge of conspiracy that the offender, after conspiring to commit a violation, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of the offender’s illegal intent.

(h) Conspiracy is a continuing course of conduct that terminates when the violation or violations that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom the defendant conspired.

(1) Abandonment is presumed if neither the defendant nor anyone with whom the defendant conspired does any overt act in pursuit of the conspiracy during the year prior to institution of the action.

(2) If an individual abandons the agreement, the conspiracy is terminated as to such individual only if and when such individual gives timely notice of such abandonment to those with whom the individual conspired, and the notice is evidenced by circumstances that corroborate the giving of the notice, or such individual informs the law enforcement authorities having jurisdiction of the existence of the conspiracy and of such individual’s participation therein.

(i) It is immaterial to the liability of a person who conspires with another to commit a violation that:

(1) Such person or the individual with whom such person conspires does not occupy a particular position or have a particular characteristic that is an element of the violation, if such person believes that one of them does; or

(2) The individual with whom such person conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the violation.

(j) No person shall conspire to violate this code or the charter or any ordinance of the city.

5-2-11 Prosecution of Multiple Counts for Same Act.Go to the top

(a) When any conduct of a defendant establishes the commission of more than one violation, the defendant may be prosecuted for each such violation. A defendant may not be convicted for more than one violation if:

(1) One violation is included in the other, as defined in subsection (e) of this section;

(2) One violation consists only of an attempt to commit the other;

(3) Inconsistent findings of fact are required to establish the commission of the violations;

(4) The violations differ only by the fact that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(5) The violation is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless this code provides that specific periods or instances of such conduct constitute separate violations. This paragraph does not apply where counts differ only by the fact that they occurred on different days.

(b) If the several violations are known to the city attorney at the time of commencing the prosecution, all such violations upon which the city attorney elects to proceed shall be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any violation not thus joined at trial by separate count cannot thereafter be the basis of a subsequent prosecution.

(c) If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (b) of this section, the sentences imposed shall run concurrently. This paragraph does not apply where counts differ only in that they occurred on different days or at different times on the same day.

(d) When a defendant is charged with two or more violations based on the same act or series of acts arising from the same criminal episode, the judge may, on application of either the defendant or the city attorney if the interest of justice so requires, order any such charge to be tried separately.

(e) A defendant may be convicted of a violation included in a violation charged in the complaint. A violation is so included if:

(1) It is established by proof of the same or less than all of the facts required to establish the commission of the violation charged;

(2) It consists of an attempt to commit the violation charged or to commit a violation otherwise included therein; or

(3) It differs from the violation charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lessor kind of culpability suffices to establish its commission.

(f) The judge is not obligated to charge the jury with respect to an included violation unless there is evidence sufficient to support a verdict acquitting the defendant of the violation charged and convicting the defendant of the included violation.

(g) If the same conduct is defined as a violation in different enactments or sections of this code or any ordinance of the city, the violator may be prosecuted under any one or all of the enactments or sections subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the violation as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the city council at a later date than another, unless the later section or enactment specifically repeals the earlier.

5-2-12 Applicability of Defenses.Go to the top

Other than a failure of proof of any element of a violation, only the following may be defenses to a prosecution alleging violations of this code or other ordinance of the city.

(a) Any defense made specifically applicable by the section, chapter, or title defining the violation. All such defenses are specific defenses unless explicitly denominated as affirmative defenses.

(b) Any affirmative defenses defined in this chapter insofar as they are made specifically applicable by the section defining them.

(c) Any specific defenses defined in this chapter insofar as they are made specifically applicable by the section defining them.

(d) Except as specifically provided to the contrary, all exceptions, excuses, provisos, or exemptions found in the section defining a violation or in any other relevant section, if not matters of law, constitute specific defenses.6

5-2-13 Consent.Go to the top

(a) The consent of the victim to conduct charged to constitute a violation or to the result thereof is not a defense unless the consent negates an element of the violation or precludes the infliction of the harm or evil sought to be prevented by the law defining the violation.

(b) When conduct is charged to constitute a violation because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, the conduct and the injury are reasonably foreseeable hazards in joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under this code or other ordinance of the city.

(c) Unless otherwise provided by this code or by the law defining the violation, assent does not constitute consent if:

(1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the violation;

(2) It is given by a person who, by reason of immaturity, mental disease, mental defect, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the violation;

(3) It is given by a person whose consent is sought to be prevented by the law defining the violation; or

(4) It is induced by force, duress, or deception.

(d) Consent under this section is an affirmative defense, except for traffic law violations, where it is a specific defense. It is inapplicable where any government agency is the claimed victim.

5-2-14 Execution of Public Duty.Go to the top

(a) Unless inconsistent with other provisions of this code defining justifiable use of physical force or with other provisions of law, conduct that would otherwise constitute a violation is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in the city.

(b) A “provision of law” and a “judicial decree” as used in subsection (a) of this section mean:

(1) Laws defining duties and functions of public servants;

(2) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;

(3) Laws governing the execution of legal process;

(4) Laws governing the military service and conduct of war; and

(5) Judgments and orders of court.

(c) Execution of public duty under this section is an affirmative defense.

5-2-15 Choice of Evils.Go to the top

(a) Conduct that would otherwise constitute a violation is justifiable and not criminal when it is unavoidably necessary as an emergency measure to avoid imminent public or private physical injury that is about to occur by reason of a situation occasioned or developed through no conduct of the actor and that is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly and convincingly outweigh the desirability of avoiding the injury sought to be prevented by the code section or ordinance defining the violation at issue.

(b) The necessity and justifiability of conduct under subsection (a) of this section do not rest upon considerations pertaining only to the morality and advisability of the code section or ordinance, either in its general application or with respect to its application to a particular class of cases arising thereunder.

(c) Before evidence relating to a defense of justification under this section is presented to a jury, the defendant shall first make a detailed offer of proof to the judge, who shall rule as a matter of law whether the claimed facts or circumstances would, if established, constitute a justification. If the judge admits such evidence, the judge shall again rule as a matter of law on the sufficiency of the evidence that, if believed by the jury, would establish the defense.

(d) Choice of evils under this section is a specific defense. It does not apply to traffic violations.

(Ordinance No. 5099 (1988))

5-2-16 Use of Physical Force.Go to the top

(a) The use of physical force upon another person that would otherwise constitute a violation is justifiable and not criminal under any of the following circumstances:

(1) A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person and a teacher or other person entrusted with the care or supervision of a minor may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or the incompetent person.

(2) A superintendent or other authorized official of a jail or correctional institution may, in order to maintain order and discipline, use reasonable and appropriate physical force when and to the extent that such official reasonably believes it necessary to maintain order and discipline.

(3) A person responsible for maintaining order in a common carrier of passengers or an individual acting under such person’s direction may use reasonable and appropriate physical force when and to the extent that it is necessary to maintain order and discipline.

(4) A person acting under a reasonable belief that another individual is about to commit suicide or to self-inflict serious bodily injury may use reasonable and appropriate physical force upon that individual to the extent that it is reasonably necessary to thwart the result.

(5) A duly licensed physician or a person acting under such physician’s direction may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that such physician reasonably believes to be adapted to promoting the physical and mental health of the patient if:

(A) The treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of a parent, guardian, or other person entrusted with the patient’s care and supervision; or

(B) The treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person wishing to safeguard the welfare the patient would consent.

(6) A police officer acting in good faith under color of official authority.

(b) Justification of use of physical force under this section is an affirmative defense.

5-2-17 Use of Physical Force in Defense of a Person.Go to the top

(a) Except as provided in subsection (b) of this section a person is justified in using physical force upon another individual in self defense or in defense of a third person from what the first person reasonably believes to be the use or imminent use of unlawful physical force by that other individual.

(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force if:

(1) With an intent to cause bodily injury to another individual, such person provokes the use of unlawful physical force by that other individual;

(2) Such person is the initial aggressor, except that the use of physical force upon another individual under the circumstances is justifiable if such person withdraws from the encounter and effectively communicates to the other individual, the intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

(3) The physical force involved is the product of a combat by agreement not specifically authorized by law.

(c) Use of physical force in defense of a person under this section is an affirmative defense.

5-2-18 Use of Physical Force in Defense of Premises.Go to the top

(a) A person in possession or control of any building, realty, or other premises or a person who is licensed or permitted to be thereon is justified in using reasonable and appropriate physical force upon another individual when and to the extent that such person reasonably believes it necessary to prevent or terminate what such person reasonably believes to be the commission or attempted commission of an unlawful trespass by the other individual in or upon the building, realty, or premises.

(b) Use of physical force in defense of premises under this section is an affirmative defense.

5-2-19 Use of Physical Force in Defense of Property.Go to the top

(a) A person is justified in using reasonable and appropriate physical force upon another individual when and to the extent that such person reasonably believes it necessary to prevent what is, in such person’s reasonable belief, an attempt by the other individual to commit theft, criminal mischief, or criminal tampering involving property.

(b) Use of physical force in defense of property under this section is an affirmative defense.

5-2-20 Use of Physical Force in Making an Arrest or in Preventing an Escape.Go to the top

(a) A police officer, a person who has been directed by a police officer to assist the officer, or a private person acting on his or her own account, is justified in using reasonable and appropriate physical force upon another individual when and to the extent that such officer or person reasonably believes it necessary as authorized by state or city law in making an arrest or in preventing an escape.

(b) Use of physical force in making an arrest or in preventing an escape under this section is an affirmative defense.

5-2-21 Duress.Go to the top

(a) A person may not be convicted of a violation based upon conduct in which such person engaged because of the use of or threatened use of unlawful physical force upon such person or upon another individual, which force or threatened use thereof a reasonable person in such a situation would have been unable to resist. This defense is not available when a person intentionally, knowingly, or recklessly engages in a situation in which it is foreseeable that such person will be subjected to such force or threatened use thereof.

(b) Duress under this section is an affirmative defense.

5-2-22 Entrapment.Go to the top

(a) Conduct that would otherwise constitute a violation is not criminal if the accused engaged in the proscribed conduct because the accused was induced to do so by a law enforcement official or a person acting under such official’s direction seeking to obtain evidence for the purpose of prosecution and if the methods used to obtain that evidence were such as to create a substantial risk that the conduct would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements are used that are calculated to overcome the violator’s fear of detection.

(b) Entrapment under this section is a specific defense.

5-2-23 Impaired Mental Condition.Go to the top

Evidence of an impaired mental condition or insanity may be offered in a proper case as bearing upon the capacity of the accused to form a specific intent if such an intent is an element of the violation charged. Otherwise, insanity is never a defense to a charge of violation of this code or other ordinance of the city.

5-2-24 Intoxication.Go to the top

(a) Intoxication of the accused is not a defense to a charge of violation of this code or other ordinance of the city, except as provided in subsection (b) of this section; but in any prosecution for a violation, evidence of intoxication of the accused may be offered by the accused when it is relevant to negate the existence of a specific intent, if such intent is an element of the crime charged.

(b) A person is not criminally responsible for conduct if, by reason of intoxication that is not self-induced at the time of the conduct, such person lacks capacity to conform the conduct to the requirements of the law.

(c) “Intoxication” as used in this section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.

(d) “Self-induced intoxication” means intoxication caused by substances that the accused knows or that a reasonable person would know have the tendency to cause intoxication and that the accused knowingly introduced or allowed to be introduced into the accused’s body.

(e) Intoxication under this section is a specific defense.

5-2-25 Mistake.Go to the top

(a) A person is not relieved of criminal liability for conduct because such person engaged in that conduct under a mistaken belief of fact unless:

(1) It negates the existence of a particular mental state essential to the commission of the violation;

(2) The section defining the violation or a section relating thereto expressly provides that a factual mistake or the mental state resulting therefrom constitutes a defense or exemption; or

(3) The factual mistake or the mental state resulting therefrom is of a kind that supports a defense of justification as defined in this code and is reasonable.

(b) A person is not relieved of liability for conduct because such person engages in that conduct under a mistaken belief that it does not as a matter of law constitute a violation, unless the conduct is permitted by one or more of the following:

(1) A provision of the charter, this code, or an ordinance of the city;

(2) A written administrative regulation, order, or grant of permission by a body or official authorized to make such order or grant of permission under the charter, this code, or an ordinance of the city;

(3) An official written interpretation of the section, ordinance, regulation, or order relating to the violation, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting this section, ordinance, regulation, or order. If such interpretation is by judicial decision, it must be binding in the city.

(c) Ignorance or mistake under this section is a specific defense.

5-2-26 Matters of Local and Mixed Concern.Go to the top

It is the intention of the city council that those ordinances and provisions of this code that deal with matters of “local” concern supersede the laws of the State of Colorado to the extent that they conflict and that those that deal with matters of “mixed” concern apply concurrently with the laws of the State of Colorado. No provision of this code on a matter of “mixed” concern is to be construed expressly or by implication to permit conduct that is illegal under the laws of the State of Colorado or to prohibit conduct that is expressly permitted by the laws of the state. The provisions of this code are to be construed to apply to misdemeanors and other minor and petty offenses only and are not to be interpreted to apply to conduct that is defined as a felony under the laws of the State of Colorado.

5-2-27 Penalties Not Released by Repeal.Go to the top

(a) The repeal, revision, amendment, or consolidation of any section of the Boulder Revised Code 1981, as amended, does not constitute a bar to the prosecution and punishment of an act already committed in violation of the section so repealed, unless the repealing, revising, amending or consolidating ordinance expressly so provides.

(b) Any such section so repealed, amended, revised, or consolidated shall remain in full force and effect for the purpose of sustaining all actions, suits, proceedings, and prosecutions brought thereunder that arose before the effective date of the repeal, amendment, revision, or consolidation. An administrative order that is stayed by administrative or judicial appeal shall be deemed to be an “action” brought under the code within the meaning of this subsection.



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