Colorado Springs Collateral Attack - Colorado Criminal & Traffic Defense - Colorado Springs Attorney Robert D. Gustafson

Attorney Fees & Costs

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
STATE COURTS
El Paso County Court and District Court

Colorado Springs
MUNICIPAL COURT

DRIVING UNDER RESTRAINT

Proceedings

Traffic

Misdemeanor

Felony

Municipal

Criminal Sentencing

Sealing Criminal Records

Criminal Defense Homepage Overview
Page Overview
Page Top

Attorney Fees & Costs

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).

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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
STATE COURTS
El Paso County Court and District Court

Colorado Springs
MUNICIPAL COURT

Proceedings

Traffic

Misdemeanor

Felony

Municipal

Criminal Sentencing

Sealing Criminal Records

Attorney Fees & Costs

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.

TRAFFIC DEFENSE & CRIMINAL DEFENSE
COLLATERAL ATTACK

UNDERLYING COURT

TRAFFIC * MISDEMEANOR * FELONY

DRIVING
UNDER RESTRAINT

COLORADO
STATE COURTS
El Paso County Court and District Court

Colorado Springs
MUNICIPAL COURT

Proceedings

Traffic

Misdemeanor

Felony

Municipal

Criminal Sentencing

Sealing Criminal Records

Attorney Fees & Costs

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.

TRAFFIC DEFENSE & CRIMINAL DEFENSE
COLLATERAL ATTACK

PENDING PROSECUTION

TRAFFIC * MISDEMEANOR * FELONY

DRIVING
UNDER RESTRAINT

COLORADO
STATE COURTS
El Paso County Court and District Court

Colorado Springs
MUNICIPAL COURT

Proceedings

Traffic

Misdemeanor

Felony

Municipal

Criminal Sentencing

Sealing Criminal Records

Criminal Defense Homepage Overview
Page Overview
Page Top

Attorney Fees & Costs

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.

FIND A LAWYER ANYWHERE

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 need not retain my services, but hire counsel.

ATTORNEY'S FEES AND COSTS
COLLATERAL ATTACK
Secure On-Line Payment

        At the time of the first visit, a prospective client will be quoted attorney's fees and estimated costs. The quote will be honored for a period of seven (7) days, after which it is subject to change without notice if this office has not been retained. 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.

        In most circumstances, attorney initially makes an option offer of 1.) billing to be upon hourly fees, or in the alternative, 2.) quote of a flat fee through trial court final hearing on collateral attack. ELECTION. Offered fee options will be up to the client, however client's initial election will be final.

        Included in attorney's primary website is a web page devoted to clear definition & understanding of free first consultation, fees and costs, retainer agreement and terms of representation. Additional information regarding fees & costs may be found via the links following potential quotes..

POTENTIAL FEE QUOTE
COLLATERAL ATTACK

HEARING FLAT FEE

$750

HOURLY FEE RATE

I generally offer hourly fees or a hearing flat fee. The hearing flat fee would be dependent upon the facts and circumstances of the case, however the above would be a common quote in a collateral attack. This shall neither constitute an offer, nor be construed as a binding estimate.

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.

TRUST DEPOSIT REQUEST

trust deposit request regarding fees & costs

PAYMENT
Secure On-Line Payment

Prior to commencement of representation, the attorney will quote the amount requested as a trust deposit against which attorney's fees and costs may be billed. The requested trust deposit will be dependent upon the facts and circumstances of your case.

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES
LITIGATION COSTS DEPOSIT

$ 750
$ 100

hearing common trust deposit request
transcript of court proceedings not required
including attorney's fees & litigation costs - excluding travel
map * travel policy - time & expenses * travel rates
OR

$ 850*

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES
LITIGATION COSTS DEPOSIT

$ 750
$ 250

hearing common trust deposit request
transcript of court proceedings required
including attorney's fees & litigation costs - excluding travel
map * travel policy - time & expenses * travel rates

$1,000*

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

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

FIRST CONSULTATION

ALTERNATIVES

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

MAJOR CREDIT CARDS ACCEPTED
PAYPAL ACCEPTED

Secure On-Line Payment

THIRD PARTY PAYMENT AUTHORIZATION

charge card merchant discount

PARTIAL LIST OF POTENTIAL COSTS
out of pocket costs are the responsibility of the client

generic costs relevant to any traffic * criminal action

generic costs relevant to any litigation

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

link to Colorado Judicial Branch website - current costs

COLORADO STATE COURT COSTS

CRIMINAL & TRAFFIC COURT COSTS

County Court
CRIMINAL COSTS

District Court
CRIMINAL COSTS

Price	Client Background Search
Varies	DMV Out of State Driving Record
10.00	Accident Report
20.00	Offense Report
10.00	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)
30.00	OJW fee to court (outstanding judgment warrant)
2.20	DMV admin hold release fee (OJW - outstanding judgment warrant)
500.00	Private Investigator initial retainer - if relevant - Rivera Investigations utilized by attorney 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
Varies	On-line legal research - dependent upon issues requiring legal research, if any
Rates	Travel time and expenses if the case is outside Colorado Springs

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.


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FIRST CONSULTATION	ACCOUNTING STRUCTURE	HOURLY FEES	COSTS
FLAT FEE - DEFINITION	SETTLEMENT PHASE	SETTLEMENT FLAT FEE
CONTESTED PHASE	TRIAL FLAT FEE	FLAT FEES - PHASES EARNED
HOURLY vs FLAT FEES	CLIENT'S ELECTION - FINAL	TRAVEL TIME & EXPENSES
FEES & COSTS SECURITY	TRUST ACCOUNT	WITHDRAWAL - TERMINATION
CLIENT DUTY TO DISCLOSE	OMISSION NON-DISCLOSURE	ALTERNATIVES
ATTORNEY SELECTION	RETAINING GUSTAFSON	ADVICE BY LAYMEN

Thank you for considering my services; I appreciate your inquiry.

ATTORNEY REPRESENTATION
AND DECLINED MATTERS

NOTICE: I NO LONGER ACCEPT CASES:
SEXUAL ASSAULT (RAPE) or SEXUAL ASSAULT ON A CHILD

NOTICE: I DO NOT ACCEPT THE FOLLOWING CASES

ROBBERY, FIRST DEGREE ASSAULT or MURDER CHILD ABUSE HOMICIDE OR FELONY CHILD ABUSE

SEALING CRIMINAL RECORDS CRIMINAL DEFENSE TRAFFIC DEFENSE DRUNK DRIVING - DUI DEFENSE

DRIVER LICENSE DEFENSE FAMILY LAW DEBT COLLECTION COMMUNITY RESOURCES

FIRST CONSULTATION ACCOUNTING STRUCTURE PRIMARY WEBSITE INDEX

ATTORNEY SELECTION RETAINING GUSTAFSON ADVICE BY LAYMEN

ALTERNATIVES

FIND A LAWYER

if you are seeking the below
please refer to above links for helpful information

sole practitioner attorney does not accept these matters

a. a pro-bono (free) lawyer
b. an attorney who may take lower fees - economic hardship
c. an attorney who may take installment payments

Attorney Welcomes

third party payment authorization

charge card merchant discount

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.

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.

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.

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.

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.