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COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years
private practice in Colorado state and
municipal courts |
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ROBERT D. GUSTAFSON |
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ATTORNEY AT LAW
6538 Charter
Drive
Colorado Springs, CO 80918-1335 |
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Phone (719)
260-1002
Fax (719) 260-1003 *
Toll Free (800) 410-1002 |
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Consultation Terms |
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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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representation inquiries are invited & welcome
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public questions seeking free
advice or information declined
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consultation terms |
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attorney does not accept
installment payments
* full payment
is due at the time attorney is retained * major charge cards
accepted |
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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. |
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TRAFFIC DEFENSE &
CRIMINAL DEFENSE
COLLATERAL ATTACK
GENERAL INFORMATION
What is a Collateral Attack?
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| TRAFFIC * MISDEMEANOR * FELONY |
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DRIVING
UNDER RESTRAINT |
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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.
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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
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Collateral attack on a
DMV adverse
action order (suspension, revocation, denial, habitual offender
status) would be justified only in two circumstances. |
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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).
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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.
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DMV has assessed points or conviction against wrong
person |
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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. |
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Points not identified on traffic infraction penalty
assessment |
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Municipal court default judgment - defendant failure to appear - traffic
infraction penalty assessment.
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Penalty assessment notice
deficiency |
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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. |
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Summary
if you snooze, you
lose |
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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
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TRAFFIC
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MISDEMEANOR
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FELONY |
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DRIVING
UNDER RESTRAINT |
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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
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TRAFFIC
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MISDEMEANOR
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FELONY |
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DRIVING
UNDER RESTRAINT |
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MISDEMEANOR AND TRAFFIC OFFENSES |
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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. |
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TRAFFIC
INFRACTIONS
minor traffic violations - usually remitted (paid) by mail |
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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.
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PRACTICALITIES |
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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.
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TRAFFIC DEFENSE &
CRIMINAL DEFENSE
COLLATERAL ATTACK
PENDING
PROSECUTION
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TRAFFIC
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MISDEMEANOR
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FELONY |
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DRIVING
UNDER RESTRAINT |
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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.
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TRAFFIC & CRIMINAL DEFENSE
DO I NEED AN ATTORNEY? |
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Do I need an attorney?
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Probably time to loosen the pocket book and
hire a
defense attorney.
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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.
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ATTORNEY'S FEES AND COSTS
COLLATERAL ATTACK
Colorado Traffic Defense and Criminal
Defense Trial Practice 30+ Years |
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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. |
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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. |
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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 |
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attorney does not accept
installment payments
* full payment
is due at the time attorney is retained
*
major charge cards
accepted |
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COLLATERAL ATTACK
No Transcript Required
Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES
LITIGATION COSTS DEPOSIT |
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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 |
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* this shall not
constitute an offer, nor be construed as a binding estimate |
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COLLATERAL ATTACK
Transcript Required
Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES
LITIGATION COSTS DEPOSIT |
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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 |
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* this shall not
constitute an offer, nor be construed as a binding estimate |
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Out of pocket
litigation cost
expenditures are the client's responsibility - trust deposit for attorney fees
& costs noted above. |
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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. |
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trust
deposit for anticipated fees & costs is due when
retained |
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attorney does not accept installment payments |
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regular billings are
scheduled on the 1st and 15th
payment not received
as agreed = representation withdrawn |
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MAJOR CREDIT CARDS
ACCEPTED |
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PARTIAL LIST OF POTENTIAL
COSTS
out of pocket costs are the responsibility of the
client |
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e-Filing
availability and court mandatory requirements |
litigation costs
fluctuate - not within attorney control
costs change & below cost information may be
obsolete |
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COLORADO STATE COURT WEBSITE |
| link to Colorado
Judicial Branch website - current costs |
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CRIMINAL & TRAFFIC COURT COSTS |
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Potential Expenses |
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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) |
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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 |
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$3 per page 250.00 |
Transcriptionist - law
enforcement 911 / dispatch audio files & investigator interview audio
recordings if relevant |
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Varies |
On-line
legal
research - dependent upon issues requiring legal research,
if any |
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Rates |
Travel
time and expenses if the case
is outside El Paso County |
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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
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Toxicology - UA
qualitative or
quantitative toxicology screen for marijuana,
substance quantitative
toxicology screen for marijuana or
qualitative and quantitative drug screen |
3,000
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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 |
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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.
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Thank you for considering my
services; I appreciate your inquiry.
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thank you for visiting my
webpage
your interest in my services is appreciated |
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| please feel free
to call or email if you are a client or are seeking representation |
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email counsel |
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INITIAL CONSULTATION TERMS
not an offer for legal advice - refer to link for terms
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter |
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PRIMARY WEBSITE |
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| GUSTAFSON LAW OFFICE TOPICAL
WEBSITES |
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Topical Website Copyright © 2003
- All Rights Reserved - Document Revised
January 30, 2012
mountains photo image, attorney photo image & law office logo copyright ©
Robert D. Gustafson - all rights reserved -
no copyright claimed to other images
Topical Website Initial Publication Date: February
29, 2004 - Republication Date: May 24, 2006
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Serving Colorado Springs
Area Zip Codes |
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| 80918 80920 80919 80917 80915
80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 |
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80905 80906 80907 80910 80911 80912
80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 |
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80937 80940 80941 80942 80943 80944 80945
80946 80947 80949 80950 80960 80962 80970 80977 80995 90997 |
collateral attack, criminal defense, traffic defense, prior guilty plea, guilty plea, unlawful guilty plea, unlawful plea, prior conviction, underlying conviction, unlawful conviction, conviction, traffic infraction, traffic offense, petty offense, misdemeanor offense, felony offense, jurisdiction, court, improper advisement, statute of limitations, threshold of proof, burden of proof, Colorado Springs, El Paso County, Colorado, Colorado Springs Municipal Court, criminal defense, defense lawyer, lawyer,
attorney
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