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Robert D.
Gustafson, Attorney At Law
COLORADO SPRINGS TRIAL LAWYER
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6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719) 260-1002
Toll Free (800) 410-1002
E-MAIL
ATTORNEY
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Attorney
Business Hours
Attorney
Availability Status
FREE
INITIAL CONSULTATION
Fax (719) 260-1003
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COLLATERAL ATTACK
COLORADO SPRINGS
CRIMINAL DEFENSE ATTORNEY |
WELCOME
I appreciate your interest
perhaps I will become your attorney |
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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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GENERAL
INFORMATION
What is a Collateral Attack? |
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| There are two types of collateral attacks. |
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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. |
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COLLATERAL
ATTACK STANDARDS
THRESHOLD AND BURDEN OF PROOF
Criminal Felony and Misdemeanor Traffic Cases
Driving
Under Restraint |
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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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| 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. |
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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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| 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. |
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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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STATUTES OF
LIMITATIONS
Time Limitations on Collateral Attacks
Underlying Conviction Court Cases |
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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COLLATERAL
ATTACK - UNDERLYING COURT |
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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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COLLATERAL
ATTACK - PENDING PROSECUTION |
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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DO
I NEED AN ATTORNEY?
Are prosecutors concerned with their
statistics? |
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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 need not retain my services, but hire counsel.
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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 |
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HOURLY
FEE RATE |
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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.
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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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trust deposit request
regarding fees & costs |
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PAYMENT
Secure
On-Line Payment
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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.
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collateral
attack defense
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this
shall not constitute an offer, nor be construed as a binding
estimate |
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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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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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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.
ATTORNEY
REPRESENTATION
AND DECLINED MATTERS
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NOTICE: I NO LONGER ACCEPT CASES:
SEXUAL ASSAULT (RAPE) or SEXUAL ASSAULT ON A CHILD |
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NOTICE:
I DO NOT ACCEPT THE FOLLOWING CASES |
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ROBBERY, FIRST DEGREE ASSAULT or MURDER |
CHILD ABUSE HOMICIDE OR FELONY
CHILD ABUSE |
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I
welcome representation inquiries however please refer to
first
consultation - the purpose is not to provide free legal advice to the
general public. Unless seeking to retain counsel, please do not email or
call. I do not provide legal opinions, answers or information in response
to questions submitted from non-clients. Given the scope of internet
accessibility I can not be the free "Colorado answer man" and will
politely decline. |
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ALTERNATIVES |
FIND
A LAWYER |
if
you are seeking the below
please refer to above links for helpful information |
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sole practitioner
attorney does not accept these matters |
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a. a pro-bono (free) lawyer
b. an attorney who may take
lower fees - economic hardship
c. an attorney who may take installment payments |
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MID-LITIGATION
REPRESENTATION
alternatives and find a lawyer links
provided as a courtesy |
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Attorney
Policies
Defendant
Pro Se - Attempt to Defend Own Case
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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. |
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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. |
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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. |
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Attorney
Policies
Representation
by Previous Attorney
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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." |
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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. |
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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. |
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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. |
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POST
SENTENCING MATTERS
PROBATION
REVOCATION * PAROLE VIOLATION
DEFERRED
SENTENCE
REVOCATION * APPEALS |
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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. |
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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. |
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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.
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