Colorado Criminal Statute of Limitations & Colorado Speedy Trial - Colorado Springs criminal defense - bar to prosecution including but not limited to evidence, time computations, jurisdictional attack - felony offenses, misdemeanor offenses and petty offenses.

STATUTE OF LIMITATIONS COLORADO CRIMINAL CHARGES

CRS 16-5-401. Limitation for commencing criminal proceedings
        (1) (a) Except as otherwise provided by statute applicable to specific offenses or circumstances, no person shall be prosecuted, tried, or punished for any offense unless the indictment, information, or complaint is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant within the period of time after the commission of the offense as specified below:

        (2) The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.

        (3) The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal.

        (4) When an offense or delinquent act is based on a series of acts performed at different times, the period of limitation prescribed by this code starts at the time when the last act in the series of acts is committed.

..... other provisions omitted as irrelevant

        The burden of proof is upon the prosecution to show

        Evidence of the date of alleged offense is established by the charging document, law enforcement records and dispatch - 911 tapes / transcript.

        Evidence of the date of arrest is established by prosecution and law enforcement records and dispatch -911 tapes / transcript.

        If a prior prosecution was pending, evidence of the pending time is established by court documents.  This would usually be a criminal case dismissed for lack of jurisdiction or other reason before jeopardy attached.  Jeopardy attaches at the time the first witness is called in a trial to the court, or when the jury is sworn in a jury trial.

        Defense counsel must establish are that the defendant was not absent from the state during the relevant period of time.  This can be accomplished through a driving record, driver's license, voter registration and business records establishing presence, such as payroll records, local merchant charge or cash receipts bearing the date and names of the merchant and of the defendant.  National merchants would not be sufficient unless the receipt clearly establishes the location of the store as being in Colorado.  As evidence, I prefer to have at least one business record every two weeks during the relevant period of time.

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TRAFFIC OFFENSES FELONY AND MISDEMEANOR
Felony Offenses (F) 18-9-116.5. Vehicular eluding - reckless (F-5) 18-9-116.5. Vehicular eluding - reckless - bodily injury (F-4) 18-9-116.5. Vehicular eluding - reckless - death (F-4) 18-3-106. Vehicular homicide - alcohol (F-3) 18-3-106. Vehicular homicide - reckless (F-4) 18-3-205. Vehicular assault - alcohol (F-4) 18-3-205. Vehicular assault - reckless (F-5) Misdemeanor Offenses (M) 42-2-136. Unlawful use of license - alteration (M-3) 42-2-138. Driving under restraint 42-4-1301(1)(a) DUI  (M) 42-4-1301(1)(b) DWAI  (M) 42-4-1301(2) DEAC  (M) Class 1 Misdemeanor Traffic Offense 42-4-1402. Careless driving - bodily injury or death 42-4-1409. Compulsory insurance - penalty - repeal 42-4-1601. Hit & run - accidents involving death or personal injuries 42-4-1903. School buses - stops - signs - passing - 2nd offense within 5 years Misdemeanor Traffic Offenses unclassified (MTO) 42-4-203. Unsafe vehicles (MTO) 42-4-313. Emissions control - fraud (MTO) 42-4-413. Visible emissions from diesel-powered motor vehicles unlawful - penalty (MTO)	Class 2 Misdemeanor Traffic Offense 42-2-101 No operator’s license 42-2-115. License, permit, or identification card to be exhibited on demand 42-2-124. Surrender of license to court 42-2-129. Mandatory surrender of license or permit for driving under the influence or with excessive alcoholic content 42-2-130. Mandatory surrender of license or permit for drug convictions 42-2-132. Application for new license before expiration of period of suspension or revocation 42-2-136. Unlawful possession or use of license 42-2-137. DMV false affidavit - penalty 42-2-138. Driving under restraint - failure to surrender license 42-3-107. Taxable value of classes of property - license plate fraud 42-4-107. Obedience to police officers directing, controlling or regulating traffic 42-4-228. Restrictions on tire equipment. 42-4-233. Alteration of suspension system 42-4-235. Minimum standards for commercial vehicles 42-4-507. Wheel and axle loads 42-4-508. Gross weight of vehicles and loads 42-4-509. Vehicles weighed - excess removed 42-4-510. Permits for excess size and weight and for manufactured homes 42-4-1101. Speeding 25+ mph over limit 42-4-1105. Speed contests 42-4-1401. Reckless driving - penalty 42-4-1402. Careless driving 42-4-1413. Eluding or attempting to elude a police officer 42-4-1602. Hit & run - accident involving damage 42-4-1604. Hit & run - striking unattended vehicle or other property 42-4-1605. Hit & run - striking highway fixtures or traffic control devices 42-4-1606. Duty to report accidents 42-4-1704. Owner or any other person employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law. 42-4-1716. Notice to appear or pay fine - failure to appear - penalty 42-4-1903. School buses - stops - signs - passing

SPEEDY TRIAL

SPEEDY TRIAL COLORADO STATE COURTS 6 Months from entry of plea of not guilty CRS 18-1-405, C.R.Crim.P. 48(b), Colorado Constitution Article 2, §16, U.S. Constitution, Amendment VI

Entry of Plea & Demand for Trial.

a.  Under the speedy trial rule, trial must be provided within 6 months from entry of not guilty plea.         Speedy & Public Trial: C.R.Crim.P. 48(b), CRS 18-1-405, Article II Section 16 of the Colorado Constitution and Amendment 6 to the U.S. Constitution.  See also 4th, 5th & 14th Amendments to the U.S. Constitution, and Article II, Sections 7, 18 & 25 of the Colorado Constitution         Speedy trial commences on the date of filing the not guilty plea. Harrison v. District Court, 192 Colo. 351, 559 P.2d 225 (1977), Rodman v. Adams County Court, 694 P.2d 871 (Colo. App. 1984).  This can become important as to speedy trial expiration if the case is transferred to division and advisement + oral not guilty plea is delayed.         b.  Demand must be made for jury trial: 1.  Felony offense cases - not guilty plea entered         a.  Jury trial is free - jail may be imposed in excess of 6 months upon conviction of any charge.         b.  Standard number of jurors is 12, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406 2.  Misdemeanor offense cases - not guilty plea entered         a.  Jury trial is free if jail may be imposed in excess of 6 months upon conviction of any charge.         b.  If potential jail is limited to 6 months or less for each charge, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Although local county court judges will likely grant a jury demand without payment of the jury deposit, absent timely jury deposit payment,  prosecutors may take the issue to the district court seeking a writ of prohibition.  In the likely event of adverse ruling, subsequent jury deposit payment would be outside the 10 day limitation and jury trial right would be lost.  This attorney will timely pay the jury deposit to avoid the issue and preserve the client's right to jury trial.         c.  Driving While Ability Impaired, CRS 42-4-1302(1)(b) has been determined not a petty offense and no jury deposit is required under CRS 16-10-109, C.R.Crim.P. 23.  Refer to Byrd v. Stavely, 113 P.3d 1273 (Colo. App 2005)  This is the exception to the 6+ month potential jail jury deposit rule.         d.  Standard number of jurors is 6, defendant may request 3 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406 3.  Petty offense cases - not guilty plea entered         a.  Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. Robran v. People, 173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (Colo. 1969)         b.  There is no constitutional right to a jury trial for a petty offense.         c.  The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine.          d.  Based upon statutory limitations of potential jail not more than 6 months, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Refer to ¶3(c)(1) above regarding timely payment.        e.  Standard number of jurors is 3, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406  Counsel requests 6 jurors.         f.  An El Paso County Court case appealed to the District Court resulted in a ruling that jury trial is a right in an MIP prosecution (underage possession / consumption) which does not fit the statutory definition of petty offense for purpose of jury trial right, however counsel would argue that right.         c.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.

Objection required.  If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of the speedy trial rule or statute.

Dismissal motion required.  To be entitled to a dismissal, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under of the speedy trial rule or statute.

A balancing test (4 factors) is used to determine whether right to speedy trial has been denied                 1.) the length of the delay, 2.) the reason for the delay, 3.) the defendant's assertion or demand for a speedy trial, and 4.) the prejudice to the defendant.  People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Chavez, 779 P.2d 375 (Colo. 1989), People v. Fears, 962 P.2d 272 (Colo. App. 1997), Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978).

Limited Identification of Issues or Factors Which May Become Relevant in Speedy Trial Argument Statutory Right to Speedy Trial vs. Constitutional Right to Speedy Trial Burden of Compliance Judicial Construction Court Docket Congestion - Claim for Relief From Burden of Compliance Dismissal Relief Commencement Date Used for Speedy Trial Delay and Speedy Trial Defendant's Absence from Court Proceeding Accommodation to Defense Counsel's Calendar Effect of Charging Amendment Upon Speedy Trial Effect of Dismissal and Re-Filing New Case Upon Speedy Trial Dismissal and Re-Filing or Amending Charges - Prosecution Good Faith or Bad Faith Extension of Speedy Trial - Exceptional Circumstances Colorado Witness Unavailability - Prosecution Due Diligence Out of State Witness - Prosecution Due Diligence     Effect of Request for Pre-Trial Conference Upon Speedy Trial Prosecution Request for Continuance - No Consent by Defense Prosecution Request for Continuance - Consent by Defense Defense Request for Continuance Defense Request for Continuance Prosecution Late Witness Endorsement - Defense Tactical Decision Defendant's Obligation to Object to Setting on the Basis of Speedy Trial Participation in Setting - Defense Affirmative Objection Obligations Generic Assertion of Speedy Trial Rights vs. Specific Objection Unilateral Off Record Setting - Obligation to Timely Object Prohibition as Remedy for Speedy Trial Violation Effect of Failed Plea Disposition upon Speedy Trial Guilty Plea Outside Speedy Trial Period Effect of Interlocutory Appeal Upon Speedy Trial Effect of Defense Continuance - Certiorari Original Proceeding Effect of Mistrial Upon Speedy Trial Effect of Reversal on Appeal Upon Speedy Trial Some periods of time defined by law are excluded from speedy trial.  Continuance requested by defendant or to which defendant consents will effect speedy trial.  Other periods of time (e.g. witness unavailability) may be excluded from speedy trial - this would extend the potential trial date beyond 6 months from date of not guilty plea. Continuance by Defense 6 months from the date upon which the continuance was granted Continuance by Prosecution - Defense Objection no extension of speedy trial Non-Appearance by Defendant 6 months from the date of next court appearance   Continuance by Prosecution - Defense Consent number of days between the date on which the continuance is granted and the date to which the trial is continued Speedy trial issues are complex consult counsel the attorney who represents you NOTE Legal Advice Limited to Clients - Not General Public

This is an unusual defense based upon the fact prosecutors and courts are mindful of speedy trial and set accordingly, but attorney has had domestic violence cases and other criminal or traffic cases dismissed upon speedy trial grounds.

SPEEDY TRIAL COLORADO MUNICIPAL COURTS 90 days from entry of plea of not guilty    C.Muni.C.P. 248(b)

C.Muni.C.P. 248(b)    -    90 days from entry of plea of not guilty         If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the case and the defendant shall not thereafter be tried for the same offense; except that if on the day of a trial set within the last ten days of the above time limit a necessity for a continuance arises which the court in the exercise of sound judicial discretion determines would warrant an additional delay, then one continuance, not exceeding thirty days, may be allowed, after which the dismissal shall be entered as above provided if trial is not held within the additional time allowed.

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MID-LITIGATION REPRESENTATION alternatives and find a lawyer links provided as a courtesy Attorney Policies Defendant Pro Se - Attempt to Defend Own Case 1.  Adequate Time.  If sufficient time exists to adequately prepare your defense and if prospective client approves this attorney's fees and costs structure, attorney will likely accept defense representation.  This shall not constitute an offer of representation; attorney and prospective client retain discretion through first consultation. 2.  Insufficient Time.  If you've waited until the eleventh hour and there is not sufficient time to prepare an adequate defense before a contested court proceeding, please do not call.  I decline. Alternatives FIND A LAWYER 3.  Limited Assistance.  Please do not call requesting instruction, directions, legal theory, forms completion or limited document drafting, partial representation, or an explanation of applicable law to assist you in defense of your own case.  I decline. Alternatives FIND A LAWYER Attorney Policies Representation by Previous Attorney 1.  Current Attorney.  Until an order has entered withdrawing representation by an attorney, an ethical rule violation exists if counsel knowingly speaks to another attorney's client without current attorney's consent.  This ethical rule governs all attorneys.  Please do not call until after you have terminated representation by a former attorney.  Please be aware, after other counsel's withdrawal it may be difficult for the the new attorney to "catch up." 2.  Adequate Time.  If prospective client terminates employment of the former attorney, if sufficient time exists to adequately prepare your defense, and if prospective client approves this attorney's fees and costs structure, attorney will likely accept defense representation.  This shall not constitute an offer of representation; attorney and prospective client retain discretion through first consultation. 3.  Insufficient Time.  If you've waited until the eleventh hour and there is not sufficient time to prepare an adequate defense before a contested court proceeding, please do not call.  I decline. Alternatives FIND A LAWYER 4.  Second Opinion.  I will not arm chair quarterback another attorney's defense tactics or theory of defense.  Please do not call for a second opinion or an opinion regarding the competence of your current defense.  I decline. Alternatives FIND A LAWYER

POST SENTENCING MATTERS PROBATION REVOCATION  *  PAROLE VIOLATION DEFERRED SENTENCE REVOCATION  *  APPEALS Post Sentencing.  I do not accept post sentencing matters in any criminal, DUI or traffic case unless I provided representation during the case in chief at the trial court level and am familiar with the facts, testimony and exhibits received into evidence, rulings & meritorious issues. That's been my policy for years.  Please do not call or inquire regarding post sentencing matters if you are not a former client. Alternatives FIND A LAWYER This includes appeals or plea to domestic violence or other criminal charge, DUI, DEAC or DWAI charge or other traffic charge and probation, deferred sentence, parole or incarceration or revocation proceedings based upon alleged failure to comply.   Exceptions.  If the underlying criminal case qualifies, refer to sealing criminal records.  I accept meritorious sealing cases regardless of whether or not you are a former client.  NOTICE: alcohol related traffic offenses, other traffic offenses or traffic infractions are a specifically excluded in the sealing statute and can not be sealed.  If relevant, I also accept meritorious collateral attack cases.

ATTORNEY TRADE AREA & TRAVEL OUTSIDE EL PASO COUNTY   GEOGRAPHIC DISTANCE ECONOMIC CONSIDERATIONS Colorado is a big state.  Easy communication access via internet, email and toll free phone doesn't change that fact. TRAVEL  RATES TRAVEL TIME  *  MILEAGE  *  EXPENSE Attorney is very willing to travel outside the Colorado Springs area to present or defend a case, but please be aware travel time, mileage and expense would apply.  If you are from out of state or are unfamiliar with Colorado geography, refer to the map to determine where Colorado Springs is located in relation to the county of your court case or hearing. Colorado MAP MUNICIPAL COURTS Southern Colorado Area If travel is necessary, a trust deposit would be required to cover anticipated travel time, mileage & expenses.  If it is not economically justifiable to retain my services with travel, please contact counsel in the locale of your case. COUNTIES CITIES / TOWNS El Paso County Colorado Springs / Manitou Springs / Fountain Chaffee County Salida I welcome new cases.  Intent is not to be harsh or to discard potential new business, but to be practical. Crowley County Ordway Custer County Westcliffe Metro Denver Area Douglas County Castle Rock COUNTIES CITIES / TOWNS Elbert County Kiowa / Simla City and County of Denver Denver Fremont County Canon City / Florence / Penrose Adams County Brighton Thornton Federal Heights Huerfano County Walsenburg Arapahoe County Littleton / Centennial / Englewood Las Animas County Trinidad Arapahoe County - East Aurora Lincoln County Hugo (county seat) / Limon Broomfield County Broomfield Otero County La Junta Gilpin County Blackhawk / Central City Park County Fairplay Jefferson County Golden / Wheat Ridge Pueblo County Pueblo FIND A LAWYER ALTERNATIVES Teller County Cripple Creek / Woodland Park

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