Collateral Attack

 

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COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years private practice in Colorado state and municipal courts

ROBERT D. GUSTAFSON
  ATTORNEY AT LAW
6538 Charter Drive
Colorado Springs, CO 80918-1335

 

Phone (719) 260-1002
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COLORADO CRIMINAL CONVICTION COLLATERAL ATTACK
Colorado Springs, El Paso County, Colorado
Pikes Peak Region  *  Surrounding Colorado Counties  *  Southern Colorado  *  Front Range  *  Continental Divide  *  Eastern Plains
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  WEBPAGE INDEX
COLLATERAL ATTACK UPON COLORADO TRAFFIC OR CRIMINAL CONVICTION

 

General Information
What is a Collateral Attack?
Threshold & Burden of Proof
Criminal Cases & Misdemeanor Traffic Cases
Statutes of Limitations
Time Limitations on Collateral Attacks
COLLATERAL ATTACK
Underlying Court
COLLATERAL ATTACK
Pending Prosecution
ATTORNEY'S FEES AND COSTS Do I need an Attorney? Sealing Criminal Records
 
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Colorado Springs Collateral Attack - Colorado Criminal Defense & Traffic Defense - collateral attack upon prior guilty plea or conviction - the underlying conviction - traffic infraction, traffic offense, petty offense, misdemeanor offense, felony offense. Attack upon jurisdiction of the court, improper advisement, unlawful guilty plea, statute of limitations, threshold of proof and burden of proof.


TRAFFIC DEFENSE & CRIMINAL DEFENSE
COLLATERAL ATTACK
 
 
GENERAL INFORMATION
What is a Collateral Attack?
 
TRAFFIC * MISDEMEANOR * FELONY
DRIVING
UNDER RESTRAINT
 

Colorado Springs
MUNICIPAL COURT

 
        There are two types of collateral attacks.
 
 

        1.  The first type of collateral attack involves a defendant is charged with a crime or has a DMV adverse action pending.  One of the elements in the pending case involves prior conviction(s).
                a.  In the pending criminal charge, the defendant moves to suppress evidence of the prior conviction(s) or moves to dismiss the current charge on the basis the prior conviction(s) was / were improperly entered, or the DMV lacked jurisdiction to enter the DMV adverse action order.  The most common example would be a defendant charged with felony or misdemeanor Driving Under Restraint who claims in the pending criminal case that the DMV adverse action order which took away driving privileges was entered improperly upon infirm prior convictions or that the DMV lacked jurisdiction.  If the DMV adverse action order is void and unlawful, pending Driving Under Restraint criminal charges must be dismissed.
                b.  In the DMV adverse action hearing, the driver alleges the prior "conviction(s)" or points may not be used as a basis for taking away driving privileges on the basis the "conviction(s)" was / were improperly entered.  This could be litigated in the DMV adverse action hearing, or the driver may request a continuance and file a collateral attack in the underlying traffic court case(s).  Litigation at DMV adverse action hearing is the safe course - if continuance is requested and denied, insufficient evidence would be in the record for appeal.

        2.  In the second type of collateral attack, after final disposition in a traffic case defendant asks the court to set aside conviction on the basis it was improperly entered.

 
        In either circumstance with a meritorious claim, the defendant is attempting to undo a previous wrong.  Collateral attack is a confusing area of law with which many prosecutors are not terribly familiar.  Sometimes, to better the client's position, defense simply throws it up against the wall to see if it sticks.  

TRAFFIC DEFENSE & CRIMINAL DEFENSE
COLLATERAL ATTACK
 
 
STANDARDS
THRESHOLD & BURDEN OF PROOF
FELONY CASES  *  MISDEMEANOR CASES
 TRAFFIC OFFENSES 
*  TRAFFIC INFRACTIONS
 
 

Colorado Springs
MUNICIPAL COURT

 

DRIVING UNDER RESTRAINT
 
        Collateral attack on a DMV adverse action order (suspension, revocation, denial, habitual offender status) would be justified only in two circumstances.
 
 

        Collateral attack could be maintained if the DMV adverse action order were void, rather than merely erroneous or voidable, because the department had lacked jurisdiction over the person or the subject matter. Estate of Bonfils v. Davis, 190 Colo. 70, 543 P.2d 701 (1976); McLeod v. Provident Mutual Life Insurance Company of Philadelphia, 186 Colo. 234, 526 P.2d 1318 (1974); Davidson Chevrolet v. City and County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958).
        The driver would be entitled to collaterally attack the revocation order had it been based on "a conviction obtained in violation of his / her constitutional rights". People v. Heinz, 197 Colo. 102, ___, 589 P.2d 931, 933 (1979).

 

        When an administrative agency has jurisdiction over the person and subject matter in question, and when the agency is not proceeding contrary to the requirements of the state or federal constitution, the fact that the agency's order is erroneously or improvidently granted does not justify failure to obey the order. Where a driver does not challenge a DMV adverse action order against the driver's license until after arrest for Driving Under Restraint, collateral attack on erroneous application of law to the facts will not be heard.  Drivers have the duty to comply with a DMV adverse action order until it is rescinded pursuant to a direct appeal rather than a collateral attack.  People v. Able, 200 Colo. 115, 618 P.2d 1110 (Colo. 1980)

        The driver may have had the below defenses available at DMV adverse action hearing, however they are merely erroneous application of the law to the facts.  Below DMV adverse action defenses are not based upon DMV lack of jurisdiction and do not rise to constitutional proportions.  Therefore the below defenses will not be considered by a court in a Driving Under Restraint criminal case collateral attack.

 

DMV has assessed points or conviction against wrong person

 
This may be a defense in a subsequent Driving Under Restraint criminal charge as a collateral attack (DMV order void for lack of personal jurisdiction).  However that is questionable.  DMV has subject matter jurisdiction over license actions and personal jurisdiction is acquired when the notice of hearing is served.  There is no Colorado appellate caselaw on the issue of whether misidentification deprives the DMV of personal jurisdiction to proceed with adverse action.  If not argued at DMV hearing, use of an improper conviction may be considered a mere error in application of the law and denial of criminal case collateral attack.
 

Points not identified on traffic infraction penalty assessment

 
Municipal court default judgment - defendant failure to appear - traffic infraction penalty assessment.
 

Penalty assessment notice deficiency

 
This may be a defense in a subsequent Driving Under Restraint criminal charge as a collateral attack - (inadequate notice reaches constitutional proportions)  However that is questionable - no Colorado cases have been decided whether PA notice deficiency may be used as a collateral attack in a subsequent Driving Under Restraint criminal charge.  If not argued at DMV hearing, use of an improper conviction may be considered a mere error in application of the law and denial of criminal case collateral attack.
 

Summary
if you snooze, you lose

 

        Driving Under Restraint criminal charges carry mandatory jail and some are felonies carrying penitentiary time.  If you have a license problem and your driver's license is important to you, it's a plan to consult an attorney as quickly as possible.

        Defendant must make a prima facie showing that the prior conviction was invalid.  Once such a showing has been made, the People have the burden to establish that the conviction was constitutionally obtained.  People v. Hampton, 619 P.2d 48 (Colo. 1980), People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (Colo. 1980), People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979).


TRAFFIC DEFENSE & CRIMINAL DEFENSE
COLLATERAL ATTACK
 
STATUTE OF LIMITATIONS
TIME LIMITATIONS FOR COLLATERAL ATTACK
IN UNDERLYING CONVICTION COURT CASES

 
TRAFFIC * MISDEMEANOR * FELONY
DRIVING
UNDER RESTRAINT
 

Colorado Springs
MUNICIPAL COURT

CRS 42-4-1702. Alcohol- or drug-related traffic offenses - collateral attack
        (1) Except as otherwise provided in paragraph (b) of this subsection (1), no person against whom a judgment has been entered for a violation of section 42-4-1301 (1) or (2) shall collaterally attack the validity of that judgment
unless such attack is commenced within six months after the date of entry of the judgment.
        (2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in paragraph (a) of this subsection (1) shall be:
                (a) A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;
                (b) A case in which the court entering judgment did not have jurisdiction over the person of the violator;
                (c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the violator to an institution for treatment as a mentally ill person; or
               
(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

CRS 42-4-1708. Traffic infractions - .... collateral attack. 
        (5)    (a) Except as otherwise provided in paragraph (b) of this subsection (5), no person against whom a judgment has been entered for a traffic infraction as defined in section 42-4-1701 (3) (a) shall collaterally attack the validity of that judgment
unless such attack is commenced within six months after the date of entry of the judgment.
                (b) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in paragraph (a) of this subsection (5) shall be:
                        (I) A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;
                        (II) A case in which the court entering judgment did not have jurisdiction over the person of the violator;
                        (III) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the violator to an institution for treatment as a mentally ill person; or
                        (IV) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.
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MISDEMEANOR AND TRAFFIC OFFENSES

 
        State Court - County Court.  Regarding traffic offenses and misdemeanor cases where defendant entered a plea before a judge, the collateral attack is brought in County Court in the county in which the case was held.  Upon filing the collateral attack, the file is ordered from archived records and a transcript of all proceedings would also be ordered upon defendant's motion.   Upon receipt of the file and transcript, hearing is held.  The standards and limitations are set forth above.
 

TRAFFIC INFRACTIONS
minor traffic violations - usually remitted (paid) by mail

 

        State Court - County Court.  Regarding PA Notices where the driver remitted payment by mail to DMV Denver, the collateral attack is brought in County Court in the county in which the ticket was written.  Upon filing the collateral attack, the file is ordered sent from DMV Denver to the local court.  Upon receipt of the file, hearing is held.  The standards and limitations are set forth above.

        Municipal Court.  Regarding PA notice where the driver remitted payment by mail to the local municipal court or paid at a traffic violations bureau (clerk of court), the collateral attack is brought in Municipal Court in the town or city in which the ticket was written.  Upon filing the collateral attack, the file is ordered from archived records.  Upon receipt of the file, hearing is held.  The standards and limitations are set forth above.

 

PRACTICALITIES

 

        Regarding misdemeanor and traffic offenses, judges are usually very careful with the C.R.Crim.P. 11 providency hearing - advisements before acceptance of plea.  Generally, a proper advisement can be anticipated.  That doesn't mean a prosecutor wouldn't deal a disposition in advance of hearing.

        If brought more than 6 months after the plea / payment, I tell prospective clients the collateral attack could be shut down by the prosecution, however if it is important, try anyway.  The local district attorney's office has been cooperative, but that could change if a given DDA were familiar with collateral attack law.  I have not had occasion to bring collateral attack in Municipal Court in years, and therefore can offer no indication regarding cooperation.


        Collateral attack would be a defense normally considered by counsel in a misdemeanor or felony Driving Under Restraint charge.  Counsel conducts factual interviews with the client and would inquire regarding the circumstances surrounding each underlying "conviction."  Colorado driving records are now available instantaneously on-line allowing an overview of the driving history leading to DMV adverse action.  It may be necessary to search or order court file records or transcripts of court proceedings, but the facts can be ascertained.  If relevant, collateral attack should be utilized.


TRAFFIC & CRIMINAL DEFENSE
DO I NEED AN ATTORNEY?

 

Do I need an attorney?

Probably time to loosen the pocket book and hire a defense attorney.

If you are contemplating a collateral attack, more likely than not you are in way over your head and need defense counsel.  You may retain my services or the services of another attorney, but hire defense counsel.


 
 
 

ATTORNEY'S FEES AND COSTS
COLLATERAL ATTACK
Colorado Traffic Defense and Criminal Defense Trial Practice 30+ Years

 
 
 
 
 
 
map * travel policy - time & expenses * travel rates click jitney for travel tables
outside El Paso County
 

At the time of the first visit, a prospective client will be given a quote for fees and estimated costs. The quote will be honored for a period of seven (7) days, after which quotes are subject to change without notice if this office has not been retained.  Fee quote and costs trust deposit is dependent upon the facts and circumstances of each individual case.  Attorney fee options + litigation costs: hourly fees or flat fee through trial court final hearing on collateral attack at client's discretion.  Litigation costs are not included in fees - client's obligation.  Attorney is a sole practitioner with need to manage his caseload.  Pending proposed client acceptance and payment, retainer agreement proposals are subject to withdrawal.  Attorney reserves the right to decline any case.  Refer to:  a) first consultation  b) attorney fees * costs * billings page  c) additional information.

In the event collateral attack is successful and the plea is set aside, the case would be restored to initial status before conviction or entry of deferred sentence.

Refer to substantive charges re fees.
 

hourly fees may be less than offered flat fees, however are not capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of flat fee + estimated costs total trust deposit required to retain
trust deposit overage - refunded at case conclusion   **   undercapitalization - immediate trust deposit required
CLIENT'S INITIAL ELECTION RE FLAT FEE OR HOURLY FEES SHALL BE BINDING AND FINAL

 

 

attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted

 

COLLATERAL ATTACK
No Transcript Required
 
Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT

 
 
 

$ 1,250  
$ 500  
contested hearing common trust deposit request
including attorney's fees & litigation costs - excluding travel
additional cost deposit may be requested as trial preparation proceeds & anticipated litigation expenses solidify

$1,750*

 

 
 
* this shall not constitute an offer, nor be construed as a binding estimate

 
 
COLLATERAL ATTACK
Transcript Required
 
Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT

 
 
 

$ 1,250  
$ 1,000  
contested hearing common trust deposit request
including attorney's fees & litigation costs - excluding travel
additional cost deposit may be requested as trial preparation proceeds & anticipated litigation expenses solidify

$2,250*

 

 
 
* this shall not constitute an offer, nor be construed as a binding estimate
Out of pocket litigation cost expenditures are the client's responsibility - trust deposit for attorney fees & costs noted above.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
payment not received as agreed = representation withdrawn

   
 
PARTIAL LIST OF POTENTIAL COSTS
out of pocket costs are the responsibility of the client
e-Filing availability and court mandatory requirements
litigation costs fluctuate - not within attorney control
costs change & below cost information may be obsolete
COLORADO STATE COURT WEBSITE
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    Potential Expenses
Price   Background Search - cost per person searched - client and alleged victim
10.00   Accident Report
20.00   Offense Report
25.00   DA Office discovery packet - estimate (actual may be more or less)
25.00   State court jury deposit (some offenses) C.R.Crim.P. 23, CRS 16-10-109 (non-refundable except by acquittal)
10.00   Court records search & copy costs (actual may be more or less)
10.00   Copy expense at courthouse for prior offense files (estimate - may vary)
______   Court transcript of C.R.Crim.P. 11 providency hearing (plea advisement and sentencing)
75.00   Public Service supervision fee
37.50   OJW fee to court (outstanding judgment warrant) - anticipating Integral Recoveries collection agency costs
500 - 1,500.00   Private Investigator variable based upon number of witnesses to interview
200.00   Law enforcement 911 / dispatch records, tapes & transcript - widely variable
200.00   Subpoena process service expense - depends on number of subpoenas issued
$3 per page  250.00   Transcriptionist - law enforcement 911 / dispatch audio files & investigator interview audio recordings if relevant
Varies   On-line legal research - dependent upon issues requiring legal research, if any
Rates   Travel time and expenses if the case is outside El Paso County
    Alcohol or Substance Testing & Testimony if Relevant
$165.00   Toxicology - BAC Ethanol (alcohol) only - relevant only if alcohol or drug involved
215.00   Toxicology - BAC Ethanol (alcohol) + NaFl (preservative)
95.00   Toxicology - UA qualitative toxicology screen for marijuana
consult counsel or lab
 
  Toxicology - UA qualitative or quantitative toxicology screen for marijuana,
       substance quantitative toxicology screen for marijuana or qualitative and quantitative drug screen
3,000
 
  Laboratory - Toxicologist testimony hourly fees and travel mileage  -  if expert testimony relevant
                          misdemeanor hourly rate $350 - 5 hours travel time + minimum 1.5 hours court time

Depending upon the seriousness of the charges and factual circumstances, it may be prudent to place law enforcement 911 * dispatch tapes and records, plus other law enforcement records under subpoena duces tecum.  Same applies to hospital or medical records or EMT trip reports & records in the event of treatment.  Expense will depend upon the amount of time the law enforcement agency spends searching dispatch tapes and records and medical facility records research / reproduction costs.

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.  *limited search pricing*  Absent knowledge of specific facts, no realistic cost estimation can be made in a collateral attack case regarding court transcripts of testimony or exhibits in underlying proceedings.

 
 
************************* ************************* *************************
 
ACCOUNTING INFORMATION and ATTORNEY SELECTION
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Hourly vs Flat Fees Client's Election Final Travel Time & Expenses
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Topical Website Initial Publication Date: February 29, 2004 - Republication Date: May 24, 2006

 

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