 | |
|
COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 29 years
traffic and criminal defense private practice in Colorado state and
municipal courts |
ROBERT D. GUSTAFSON
ATTORNEY AT LAW
6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719)
260-1002
Fax (719) 260-1003 *
Toll Free (800) 410-1002 |
|
|
|
|
|
|
|
|
|
|
|
Colorado Springs, Colorado, traffic
infraction, traffic offense, ticket, traffic ticket, penalty assessment,
civil, criminal, fine, jail, El Paso County, court, lawyer, attorney,
defense, traffic defense, traffic attorney, traffic lawyer, county court,
referee court |
|
|
|
 |
COURT PROCEEDINGS - SHORT SYNOPSIS
COLORADO STATE COURT
TRAFFIC INFRACTIONS AND PENALTY ASSESSMENT NOTICES |
|
|
|
|
|
|
|
|
|
NOTICE TO
PROSPECTIVE CLIENTS |
|
this is a civil case
- no prosecutor or opposing counsel with whom to negotiate
attorney can not help unless retained for trial |
|
|
INFRACTIONS -
GENERALLY
minor charges 4 points or
less
speed 1 mph through
24 mph over the limit |
|
OFFENSES
- GENERALLY
charges greater than 4 points
speed 26 mph or more over the limit |
|
|
|
|
|
|
|
|
Decriminalization. Minor traffic
violations were previously criminal offenses in which the defendant could request
a jury trial. In the 1980's the county courts across the state became
inundated with
DUI,
DEAC
or
DWAI
cases and the courts simply didn't have the time to conduct
jury trials on speeding tickets and other minor violations. |
| |
The State of Colorado therefore decriminalized minor traffic violations, and
pursuant to CRS 16-6-501 the
Supreme Court established the Colorado Rules of Traffic Infractions -
CRTI.
Since the possibility of jail was eliminated, criminal jury trials were no
longer a matter of right. Procedures were enacted to hear contested cases
before a magistrate - CRTI 7(a). If a traffic offense is charged with a
traffic infraction, the case is heard before a judge under the rules of criminal
procedure.
No
Constitutional Right to Jury Trial.
Since the decriminalization of minor traffic offenses, traffic
infractions are civil matters and are not punishable by imprisonment.
Class A traffic infractions are subject to a penalty of from five to
one hundred dollars and assessment of
points
defendant cannot request a jury trial, cf. C.R.T.I. 11. Defendant
alleged a 4 point traffic infraction and a 6 point traffic offense had
"substantially the same penalties." He contended that the statutory
classification was unreasonable and therefore denied him equal
protection. The court ruled the decision to treat higher rates of
speeding as more serious and as involving criminal conduct does not
violate equal protection. Determining where and how to draw the line
between criminal and non-criminal conduct is within the legislature's
discretion. Because the maximum penalty for a traffic infraction is
$100, an individual charged with a traffic infraction does not have a
constitutional right to a jury trial. People v. Lewis, 745 P.2d
668 (Colo. 1987); see Duncan v. Louisiana, 391 U.S. 145, 159
(1968); (right to jury trial for those charged with "serious crimes"
but not for those charged with "petty offenses"); Austin v. City
and County of Denver, 170 Colo. 448, 456, 462 P.2d 600, 604 (1969)
(in absence of contrary legislative mandate, petty offenses not
requiring jury trial are those for which maximum penalty does not
exceed $500 and six months' imprisonment).
Traffic infractions are
the smaller traffic violations - 4
points
or less
Excluding
careless driving and compulsory insurance,
Including 6 point speeding if 24 mph or less in excess of the speed
limit |
| |
|
State Court Traffic Infraction - Information
& Procedures
court costs $18 + victim compensation
fund "sin tax" would be in addition to the fines |
| |
|
State
Statutes - CRS
|
|
|
Adult
|
|
|
CRS
42-4-1701
|
Traffic Offenses & Infractions Classified - Penalties
|
|
CRS
42-2-127
|
Authority to Suspend or Deny License - Type of
Conviction - Points
|
|
Minors
|
|
|
CRS 19-2-104(1)(a)(I)
|
County
court and district court concurrent jurisdiction with juvenile court
|
|
CRS 19-2-104(1)(a)(I)
|
State traffic violations - minor treated as an adult
|
|
CRS
42-4-1706
|
Detention to be in a juvenile facility
|
|
| |
| 1.
Bail
Bond. Traffic infractions do
not carry the possibility of jail. A defendant would not have been booked. |
| |
|
2.
Court Appointed
Counsel
(Public Defender's
Office). Traffic infractions are civil matters and carry no possibility of jail. The state has no obligation to
appoint an attorney for you even if you are indigent. An
indigent defendant has a constitutional right to appointed counsel "only
when, if he loses, he may be deprived of his physical liberty." Lassiter
v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68
L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed.2d 530 (1972); see also Stern v. County Court, 773 P.2d
1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of
crimes if imprisonment may be imposed). Conversely, when an indigent defendant
is not actually sentenced to a term of imprisonment, due process does not
require the appointment of counsel. See Scott v. Illinois, 440 U.S. 367,
99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). CRTI 7(a)(4) preserves
the right to counsel at defendant's expense. |
| |
| 3.
First Appearance. |
| |
a. The ticket is the charging document and advises defendant of the charges filed.
The ticket contains a date and time
defendant must appear in Court for
first appearance, where defendant will be advised of the nature of the charges and
possible penalties. At that time defendant will also be asked how he / she wishes to
proceed with his / her case. If defendant fails to appear on the ticket
date, default judgment will be entered and the
points
certified to the DMV for
assessment against defendant's driving privileges. C.R.T.I. 16(a) If this office has been hired, I will take care of the first
appearance for the client, and the client need not appear in Court unless I notify
the client.
b. We are all human -
periodically the law enforcement officer(s) make(s) an error on the summons.
Some errors are sufficient to deprive the court of jurisdiction to hear the
case. If an error exists, it may be worth making a big ta-do because it
may result in
dismissal
or a more favorable plea offer. Refer to the
jurisdictional attack links in the below criminal offense section. |
| |
| 4.
Entry of Plea &
Demand for Trial. |
| |
a. Speedy Trial. Under the
speedy
trial rule, trial must be provided within 6 months from the answer
date. C.R.T.I. 10(b) and CRS 42-4-1710(3). Failure to try the case
within that period may result in dismissal.
b. Plea. Because this is
a civil matter, the terms guilty and not guilty are not used. The terms
utilized are liable and not liable. If the defendant enters an answer of not liable at first appearance, the court will set the case for trial to
the court. There is no pre-trial conference (negotiation date) in traffic
infraction cases.
c. Trial. As indicated
above, there is no constitutional or statutory right to a jury trial.
Trial to the court will be conducted - a magistrate or referee will hear the case.
d. Acknowledgment of
Liability. Although a defendant may enter an answer of liable at first
appearance, the right to trial is
an important right which should never be waived unless for tactical reasons
(favorable disposition). Simple concern that the law enforcement officer
can prove the case is not a reason to enter a liable answer. Reduction in
fine or
points
would be a valid reason, particularly if the reduction will save
the driver's license or Colorado driving privileges.
|
| |
| 5.
Pre-Trial Conference.
There is no such thing as a pre-trial
conference in a traffic infraction. Sometimes it is possible to speak
to the law enforcement officer immediately preceding trial and attempt to
negotiate a disposition. Some officers will negotiate, others won't. |
| |
| 6.
No
Prosecutor.
This is a civil matter; prosecutors do not participate in negotiations or
trial. The local court became inundated with trial requests, so the
El Paso
County DA Office agreed to put a DDA in a back office to review cases
and make notes of a plea officer to be given orally to each defendant at first
appearance. The DDA is not accessible and will not negotiate. The
officer is simply read to the defendant at first appearance, and defendant is
free to accept the offer or reject it and proceed to trial. |
| |
| 7.
Discovery.
C.R.T.I. 8, the discovery rule, is deplorable.
Discovery is not available until at the time of trial, and that is only what the
officer brings to court as evidence. Defense may issue a subpoena duces
tecum for production of discovery items pursuant to C.R.T.I. 9. Production of documents or other items
of evidence is extremely limited. The purpose of the rule was to streamline the
system, move minor cases quickly and unclog the court's docket.
|
| |
| 8.
Motions Hearings.
Counsel may file any of several motions available. Traffic infraction
most common
motions:
|
| |
a.
Discovery Motion.
See above - discovery motions are not permitted under C.R.T.I. 8.
b.
Motion in Limine.
This is a motion to exclude evidence from trial on the basis of
evidentiary or statutory grounds. An example would be a
breath or blood test
which is not defendant's but mislabeled; and which could prejudice the jury
without having any importance on the issue of guilt or innocence.
c. Motion to Suppress.
This is a motion to exclude evidence from trial on the basis of
violation of constitutional rights. An example would be a warrantless
entry into a home without consent
for the purpose of fishing for evidence. Absent probable cause (reason to
believe defendant engaged in a crime) for the search, seizure or arrest and
absent reasons which place the entry outside the general warrant requirement, evidence obtained
subsequent to the entry may not be used against defendant. Similarly, forced
confessions or statements may not be used. There are many other arguments
which may be available in traffic infraction
cases. With limited exceptions,
defendant must be present in court for motion hearings which are
concurrently set with trial.. |
| |
| 9.
Trial.
|
| |
a. If defendant fails to
appear at trial, default judgment will be entered and the
points
certified to
the DMV for assessment against defendant's driving privileges. C.R.T.I.
16(a) If the officer fails to appear, default will be entered in favor
of defendant. C.R.T.I. 10(a).
b. At a trial, the court will
determine whether a defendant is
liable. Defendant has the right to remain silent, and as in
criminal cases, defendant's statements will be against him / her.
C.R.T.I. 7(a)(6). The burden of proof is upon the state to prove each and every
element of the infraction beyond a reasonable doubt. C.R.T.I. 7(a)(7).
Defendant has the rights to testify, to subpoena witnesses, to confront and
cross-examine witnesses against him / her, and to present evidence in
defense. C.R.T.I. 7(a)(8).
c. The law enforcement officer will
present his / her case without aid of a prosecutor. The court is free to
ask questions in the fact finding process, but must remain neutral.
C.R.T.I. 11(a).
d. The hearing is informal and not governed by the rules of
evidence. C.R.T.I. 11(a) & (c). Essentially - the
beloved TV Judge
Wapner or Judge Judy and "The Peoples Court."
e. If the magistrate does not find
liability, the case is over - similar to a criminal case not guilty verdict.
f. If the magistrate finds liability,
the court will proceed to immediate imposition of fine and costs.
Failure to pay will result in an OJW hold being placed with the DMV upon the
driver's license. Driver can not renew the license until the fine and
costs + the OJW fee is paid. OJW stands for outstanding judgment
warrant.
g. Defendant has the right to
appeal on the written record by a district court
judge. Review is not automatic; written appeal must be filed within 30
days pursuant to C.R.Crim.P. 37 and CRS 13-6-504. |
| |
| 10.
Considerations. |
| |
a. A penalty assessment notice is
paid by mail to DMV or it turn to summons and trial. The only detriment to
defendant is an extra $18
court costs. If the officer fails to appear, it's a dismissal and the
insurance premiums don't go up or the driver doesn't incur the
points
&
possible suspension. What does a defendant have to lose?
b. Detriment to trial. If
defendant loses, full
points
will be assessed. If paid by mail, see below
for point reduction. |
|
|
|
| |
CRS 42-2-127
(5.5) If a person receives a penalty assessment notice for a violation under
CRS 42-4-1701 (5) and such person pays the fine and surcharge for the violation on or before the date the payment is due, the
points
assessed for the violation are reduced as follows:
(a) For a violation having an assessment of three or more
points
under subsection (5) of this section, the
points
are reduced by two
points;
(b) For a violation having an assessment of two
points
under subsection (5) of this section, the
points
are reduced by one point.
(5.6) (a) Any municipality may elect to have the provisions of subsection (5.5) of this section apply to penalty assessment notices issued by the municipality pursuant to counterpart municipal ordinances. Whenever a municipality reduces a traffic offense, the reduced offense and the
points
assessed for such reduced offense shall conform to the point assessment schedule under subsection (5) of this section.
(b) Any county may elect to have the provisions of subsection (5.5) of this section apply to penalty assessment notices issued by the county pursuant to counterpart county ordinances. Whenever a county reduces a traffic offense, the reduced offense and the
points
assessed for such reduced offense shall conform to the point assessment schedule under subsection (5) of this section. |
|
|
|
|
|
|
COURT PROCEEDINGS - SHORT SYNOPSIS
COLORADO STATE COURT
MISDEMEANOR TRAFFIC OFFENSES & MISDEMEANORS |
|
|
|
|
|
|
|
|
criminal case
- prosecutor is available for plea negotiations and jury
trial is also available |
OFFENSES - GENERALLY
charges greater than 4 points
speed 26 mph or more over the limit |
INFRACTIONS -
GENERALLY
minor charges 4
points or less
speed 1 mph through
24 mph over the limit |
|
|
|
|
|
| |
|
Traffic offenses are criminal charges and generally carry the possibility of jail
in addition to fine, court costs,
points
and other conditions as may be
specified by statute or are reasonably related to rehabilitation.
State Court Traffic Offense - Information
& Procedures
court costs $18 + victim compensation
fund "sin tax" would be in addition to the fines
|
| |
|
State
Statutes - CRS
|
|
|
Adult
|
|
|
CRS
42-4-1701
|
Traffic Offenses & Infractions Classified - Penalties
|
|
CRS
42-2-127
|
Authority to Suspend or Deny License - Type of
Conviction - Points
|
|
Minors
|
|
|
CRS 19-2-104(1)(a)(I)
|
County
court and district court concurrent jurisdiction with juvenile court
|
|
CRS 19-2-104(1)(a)(I)
|
State traffic violations - minor treated as an adult
|
|
CRS
42-4-1706
|
Detention to be in a juvenile facility
|
|
| |
| 1.
Jail. Traffic
offenses are criminal charges which carry a possibility of jail. |
| |
|
2.
Bail
Bond. If you were booked into
jail, you have likely bonded since you are looking at this webpage.
Alternatively you have a loved one currently sitting in jail shortly
after an arrest.
Pending trial, the fasted way to get out of jail is to procure a bail
bond. Refer to the
Bail
Bond page for additional information. |
| |
| 3.
Court Appointed
Counsel |
| |
a. If jail may be imposed for any
period, including offenses less than 6 months jail, the state has an obligation to
appoint an attorney for an indigent (poor) defendant. An
indigent defendant has a constitutional right to appointed counsel "only
when, if he loses, he may be deprived of his physical liberty." Lassiter
v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68
L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed.2d 530 (1972 (petty offense case); see also Stern v. County Court, 773 P.2d
1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of
crimes if imprisonment may be imposed).
b. The defendant may not choose
his / her own lawyer. When an appointment is made, the court appoints the
Public Defender's
Office and if there is a conflict due to multiple defendants, the court
a member of the private defense bar who has contracted with the state for court
appointments.
c. If the
prosecutor
waives jail, the state's obligation to provide counsel is negated. When an indigent defendant
is not actually sentenced to a term of imprisonment, due process does not
require the appointment of counsel. See Scott v. Illinois, 440 U.S. 367,
99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). |
| |
| 4.
First Appearance. |
| |
a. The ticket is the charging document and advises defendant of the charges filed.
The ticket contains a date and time
defendant must appear in court for
first appearance, where defendant will be advised of the nature of the charges and
possible penalties. At that time defendant will also be asked how he / she wishes to
proceed with his / her case. If defendant fails to appear, a warrant will be issued for
his / her arrest. If this office has been hired, I will take care of the first
appearance for the client, and the client need not appear in Court unless I notify
the client.
b. We are all human -
periodically the law enforcement officer(s) make(s) an error on the summons.
Some errors are sufficient to deprive the court of jurisdiction to hear the
case. If an error exists, it may be worth making a big ta-do because it
may result in
dismissal
or a more favorable plea offer. |
|
|
|
|
| |
| 5.
Entry of Plea &
Demand for Trial. |
| a. In El Paso County, initial
appearance hearings are held in the First Appearance Center.
The case then transfers to a judge's division. |
| b. 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. |
|
|
c. Demand must be made for jury
trial: |
| 1. 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 |
|
| 2.
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. |
|
|
|
d. The right to jury trial is an important right which
should never be waived unless for tactical reasons after
consulting with counsel. |
|
| |
6.
Pre-Trial Conference.
Pursuant to Colorado Supreme Court Chief Justice Directive 08-05 (benchmarks)
which pertains to delay prevention, performance review of judges and
retention (judge's jobs), since May, 2008 the courts in El Paso County have
changed policy multiple times.
DUI, DUS, DUR, traffic offense, petty
offense and misdemeanor cases
were no longer set for uncontested pre-trial conference negotiations, but directly into contested
proceedings.
Counsel believes the judges found
their courtroom dockets clogged by this policy. At present, DUS, DUR, traffic offense and
MIP, petty offense or minor misdemeanor cases are set for pre-trial conference in First
Appearance Center. That's an uncontested court appearance where defendant
or defense counsel negotiates with the prosecution to determine whether the case
can be settled by plea bargain.
Initial setting to contested proceedings
remains regarding DUI, domestic violence and more serious misdemeanors.
Settings may include subpoena duces tecum return, motion hearing,
readiness hearing and jury trial. Courts will not set motions hearing
absent filing of a motion, therefore an initial motion to suppress will be
filed with entry of appearance. Prior to contested hearing dates, the
defense attorney may negotiate with prosecutors to discuss possible alternatives and attempt to reach an
agreement to dispose of the case. This is called plea bargaining.
Some local judges are setting DUI and
more serious misdemeanors for pre-trial conference in the court division.
It appears to counsel that each judge is determining his or her policies based upon the above Supreme Court
judicial retention directive.
Clients have inquired
"What's a
deferred
sentence?" Refer to the link for information.
Are prosecutors concerned with their
statistics? If a plea bargain is obtained
which is acceptable to the client, the case is dismissed or set for sentencing.
If a plea bargain is not obtained which is acceptable to the client, the case is
set for motion hearings or trial, or both. Locally the courts require a
defendant's presence unless an out of state resident. Offer of flat dismissal is unlikely in
most cases. The goal
is to procure a disposition with which the defendant can live, e.g. not going
to
jail or not
losing
the driver's license if relevant, or perhaps a
deferred
sentence to a lesser charge which would not be reflected on the consumer
driving
abstract.
|
|
a. Some local judges are setting trial dates 60 days out from
initial appearance - similar to
domestic violence fast track.
This is a form of docket control for the courts.
Convenient for those who set policy, but in fairness, El Paso
County Court is inundated with cases. |
|
b. This court policy places a heavy burden upon defense
counsel and defendants. Plea negotiations should not take
place until the attorney has an understanding of the case -
receipt of a copy of the DA Office file (which includes summons
& complaint(s) law enforcement officer notes and reports,
accident report, Colorado driving record & witness list), plus client factual interview and receipt of driving
records. If an alcohol charge is alleged, discovery to be
procured includes roadside sobriety checklist, lab reports, DOH
lab certifications and defense counsel blood BAC re-test by
independent laboratory. If driving under restraint
is charged, discovery to be procured includes a
DMV
discovery packet & file. This takes time. If the case can not be
settled, a very short window exists for
investigator interviews
and for counsel to file supplemental motions & briefs, witness
endorsements, exhibit endorsements, jury instructions, and
theory of defense. The court may not grant continuance of
hearings. |
|
c. Even though contested proceedings are set, attorney
settlement fees may be quoted. If the client rejects the
plea offer,
trial
fees and costs will be due at the time client
elects to proceed to trial - no exceptions. Cases will
proceed to jury trial within 2 months from initial court
appearance. Be aware of this very short window of time.
Counsel will approach cases outside of El Paso County similarly. |
|
d. Given the short amount of time between initial
appearance and trial setting, this attorney would prefer to
prepare each case for trial at the outset. Since this is a
new policy, counsel will give it an opportunity to see how
timing works, but the court policy may simply result in the need
for trial preparation in each case at the time of representation
commencement. Depending upon where court policy finally
settles, settlement fees may become a thing of the
past. |
|
| |
| 7.
Motions Hearings.
Counsel may file any of several motions available. Traffic most common
motions:
|
| |
a. Discovery Motion.
This is a request to discover information in order to prepare an
adequate defense
b.
Motion in Limine.
This is a motion to exclude evidence from trial on the basis of
evidentiary or statutory grounds.
If
DUI,
DWAI
or
DEAC
is charged, an example would be a
breath or blood test
which is not defendant's but mislabeled; and which could prejudice the jury
without having any importance on the issue of guilt or innocence.
Another example would be
an attack upon a
radar gun
which was not property
maintained,
operated or
tested by
tuning forks
if speeding were also charged. Unreliable DMV notice mailing log books
could also by the subject of a motion in limine.
c.
Motion to Suppress.
This is a motion to exclude evidence from trial on the basis of
violation of constitutional rights. An example would be a random
stop for the purpose of an evidentiary fishing expedition.
Absent probable cause (reason to believe defendant engaged in a crime)
for the stop or arrest, evidence obtained therefrom may not be used
against defendant. Similarly, forced confessions or statements
may not be used. There are many other arguments which may be
available in criminal or traffic cases. With limited exceptions, defendant must
be present in court for motion hearings. |
| |
| 8.
Trial. At a trial, guilt or innocence ill be determined, and it must be decided
unanimously (all jurors agree). Every defendant has the right to a
trial by jury of 6 persons, or to the judge alone. The right to trial
by jury should never be waived (given away) without advice of counsel; it is
an important right. At trial, the prosecution must prove each and
every element of the crime(s) charged beyond a reasonable doubt. Every
defendant is presumed innocent unless and until the prosecution proves guilt
beyond a reasonable doubt. Every defendant may remain silent, or may
testify if he / she chooses. Defense may call witnesses and make them come
to court by subpoena. Every defendant may confront and cross-examine
witnesses against him / her. A trial on a traffic offense charge is a
criminal trial with all rights attached. If defendant is found not guilty,
the case is concluded. If defendant is found guilty of any charge,
including a lesser charge (e.g. reckless driving charge convicted of
careless driving), the case is set for sentencing. Defendant must be
present in court for a trial. Under some circumstances, the court may
proceed to trial without the presence of the defendant, but that's a bad
idea from defense perspective. |
| |
| 9.
Sentencing:
Traffic offenses can carry jail. The
court may impose jail, fine, court costs and prosecution costs as provided
by statutes. Law requires every defendant make restitution (make the
victim whole). As a condition of probation, the court may also impose
any other condition reasonably related to rehabilitation. e.g.
traffic
safety class,
useful
public service, or if an alcohol related factual basis,
alcohol
education or therapy,
Alcoholics Anonymous - AA Meetings, Rx disulfiram (antabuse) and
monitored abstinence or
drug
treatment.
Points
are assessed for traffic offenses. Based upon
points
reported by the
court,
the
DMV may take
adverse
action
against Colorado driving privileges.
Habitual
offender status may even be a possibility - that can occur from too many
speeding
or other minor infraction tickets. |
| |
| 10.
Preparation
for Sentencing. |
| |
In a criminal traffic case, counsel
looks for facts which may lead to dismissal of charges or not guilty
verdict. Plea negotiations are affected by weaknesses in the
DA's
case.
"Shoot for the
best - plan for the worst." It is also wise to plan for
other contingencies; conviction of an offense or infraction. Anticipating you may
subsequently face a judge, to prepare for the most favorable sentencing
result a defendant should immediately commence possible consequences noted
above. That will also aid negotiations.
|
|
|
|
|
COURT PROCEEDINGS - SHORT SYNOPSIS
COLORADO SPRINGS MUNICIPAL COURT
TRAFFIC OFFENSES |
|
most information generic to any Municipal
Court in Colorado |
|
|
|
|
|
|
|
criminal case
- prosecutor is available for plea negotiations and jury
trial is also available |
|
|
|
| |
|
Colorado Springs City
Ordinances have not decriminalized minor traffic violations - they
remain criminal offenses. Some cities have decriminalized and made minor
violations civil infractions. See below
for maximum
Colorado
Springs Municipal Court
jurisdiction. The
Colorado
Springs City Attorney's Office prosecutes the case. |
| |
|
Municipal Court Traffic Offense - Information
& Procedures
court costs $10 + crossing guard
surcharge $10 "sin tax" would be in addition to any fines
all municipal court traffic
offenders are helping to keep our children safe |
| |
|
State
Statutes - CRS
Colorado
Springs City Ordinances
|
|
|
|
|
|
Colorado Springs Municipal Ordinance 1.1.201
|
General Penalty - maximum jurisdiction:
Jail 90 days and/or Fine $500
|
|
|
|
|
Minors
|
|
|
State statute - CRS
19-2-104(1)(a)(II)
|
Municipal
court concurrent jurisdiction with juvenile court
Municipal ordinances - except traffic - maximum 10
days jail
Municipal traffic violations - minor treated as an adult
Municipal criminal violations - maximum 10 days jail
or juvenile court assumes exclusive jurisdiction
|
|
|
|
|
State statute - CRS
42-4-1706
|
Traffic detention to be in a juvenile facility
|
|
|
|
|
Colorado Springs Municipal
Ordinance 1.1.202
|
Minor Offenders
Municipal traffic violations - minor treated as an adult
Municipal criminal violations
Maximum jurisdiction: Home detention - 10 days and/or Fine
$500
|
|
| |
| 1.
Jail.
Municipal Court traffic offenses are criminal charges which carry a
possibility of jail, however that would be unusual. |
| |
| 2.
Bail
Bond.
It would be highly unusual to be booked on a municipal court traffic
offense, however if were booked into jail, you have likely bonded since you
are looking at this webpage. Alternatively you have a loved one
currently sitting in jail shortly after an arrest. Pending trial, the
fasted way to get out of jail is to procure a bail bond. Refer to the
bail
bond page for additional information. |
| |
| 3.
First Appearance. |
| |
a. The ticket is the charging document and advises defendant of the charges filed.
The ticket contains a date and time
defendant must appear in court for
first appearance, where defendant will be advised of the nature of the charges and
possible penalties. At that time defendant will also be asked how he / she wishes to
proceed with his / her case. If defendant fails to appear, a warrant will be issued for
his / her arrest. If this office has been hired, I will take care of the first
appearance for the client, and the client need not appear in Court unless I notify
the client.
b. We are all human -
periodically the law enforcement officer(s) make(s) an error on the summons.
Some errors are sufficient to deprive the court of jurisdiction to hear the
case. If an error exists, it may be worth making a big ta-do because it
may result in
dismissal
or a more favorable plea offer. Refer to the
jurisdictional
attack links in the above criminal offense section. |
| |
| 4.
Court Appointed
Counsel |
| |
a. If jail may be imposed for any
period, including offenses less than 6 months jail, the city has an obligation to
appoint an attorney for an indigent (poor) defendant. An
indigent defendant has a constitutional right to appointed counsel "only
when, if he loses, he may be deprived of his physical liberty." Lassiter
v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68
L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed.2d 530 (1972 (petty offense case); see also Stern v. County Court, 773 P.2d
1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of
crimes if imprisonment may be imposed).
b.
Public Defender's
Office is a state agency and therefore unavailable. The defendant
may not choose his / her own lawyer. When an appointment is made, the
court appoints a member of the private defense bar who has contracted with the
city for court appointments.
c. If the
prosecutor
waives jail, the state's obligation to provide counsel is negated. When an indigent defendant
is not actually sentenced to a term of imprisonment, due process does not
require the appointment of counsel. See Scott v. Illinois, 440 U.S. 367,
99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). |
| |
| 5.
Entry of Plea &
Demand for Trial. |
| |
a. Under the
speedy
trial rule, trial must be provided within 90 days (3 months).
b. If the defendant enters a
plea of not guilty at first appearance, the court may set the case for trial and
deny a request for pre-trial conference - a negotiation date. This is to
avoid speedy trial dismissals. Frequently a defendant will delay entry of
a not guilty plea and simply set the case for pre-trial conference. If not
settled at pre-trial conference, then a not guilty plea is entered, and the case
set for trial.
c. Demand must be made for jury
trial. The demand must be accompanied by a $25 jury
deposit within 10 days from entry of not guilty plea. Standard
number of jurors is 3, defendant may request 6 jurors.
1. There is no constitutional right to a jury trial
for a petty offense. 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)
2. The statutory right to jury trial in a
municipal court offense is established in
CRS 13-10-114.
d. The right to jury trial is
an important right which should never be waived unless for tactical reasons
after consulting with counsel.
|
| |
6.
Pre-Trial Conference.
At the time of first appearance, the court
sets most cases for pre-trial conference. At this time, defendant or
defense counsel will meet with the prosecutor to discuss possible
alternatives and attempt to reach an agreement to dispose of the case.
This is called plea bargaining. Plea bargaining can also occur outside
pre-trial conference setting.
"Defendant Smith -- Come on down! - -
Let's Make a Deal!" (door number 3 is usually the best
choice)
It's not all or nothing as
in a trial - a middle ground can be found by plea bargaining
School zone
speeding tickets are
more difficult to negotiate
Clients have inquired "What's
a
deferred
sentence?" Refer to the link for information. If a plea bargain is obtained which is
acceptable to the client, the case is dismissed or the court usually proceeds
to immediate sentencing. If a plea
bargain is not obtained which is acceptable to the client, the case is set for motion
hearings or trial, or both. Locally the courts require a defendant's presence
unless an out of state resident. Offer of flat dismissal is unlikely in
most cases. The goal
is to procure a disposition with which the defendant can live, e.g. not going
to
jail or not
losing
the driver's license, or perhaps a
deferred
sentence which would not be reflected on the consumer
driving
abstract.
|
| |
| 7.
Motions Hearings.
Counsel may file any of several motions
available. Traffic most common motions:
|
| |
a. Discovery Motion.
This is a request to discover information in order to prepare an
adequate defense.
Rules in
Municipal
Court are significantly different that in
State
Court.
b.
Motion in Limine.
This is a motion to exclude evidence from trial on the basis of
evidentiary or statutory grounds. An example would be
an attack upon a
radar gun
which was not property
maintained,
operated or
tested by
tuning forks
which could prejudice the jury without having any importance on the issue of
guilt or innocence if speeding was charged.
c.
Motion to Suppress.
This is a motion to exclude evidence from trial on the basis of
violation of constitutional rights. An example would be a random
stop for the purpose of an evidentiary fishing expedition.
Absent probable cause (reason to believe defendant engaged in a crime)
for the stop or arrest, evidence obtained therefrom may not be used
against defendant. Similarly, forced confessions or statements
may not be used. There are many other arguments which may be
available in traffic cases. With limited exceptions, defendant must
be present in court for motion hearings. |
| |
| 8.
Trial. At a trial, guilt or innocence ill be determined, and it must be decided
unanimously (all jurors agree). Every defendant has the right to a trial by jury
(presumptive 3 persons- maximum 6 persons upon request) with payment of the
$25 jury deposit, or to the
judge alone (no cost). The right to trial by jury should never be waived (given
away) without
advice of counsel; it is an important right. At trial, the prosecution must
prove each and every element of the crime(s) charged beyond a reasonable
doubt. Every defendant is presumed innocent unless and until the prosecution proves
guilt beyond a reasonable doubt. Every defendant may remain silent, or may testify if
he / she chooses. Defense may call
witnesses and make them come to court by subpoena. Every defendant may confront and
cross-examine witnesses against him / her. A trial on a traffic offense charge is a criminal
trial with all rights attached. If defendant is found not guilty, the case is
concluded. If defendant is found guilty of any charge, including a lesser charge
(e.g. reckless driving charge convicted of careless driving), the case is set for sentencing. Defendant must be present in court for a
trial. Under some circumstances, the court may proceed to trial without
the presence of the defendant, but that's a bad idea from defense
perspective.
|
| |
| 9.
Sentencing. |
| |
a. Municipal Court traffic offenses can carry jail, but is unlikely.
The
court may impose jail, fine, court costs and prosecution costs as provided
by statutes. Law requires every defendant make restitution (make the
victim whole). As a condition of probation, the court may also impose
any other condition reasonably related to rehabilitation. e.g.
traffic
safety class,
useful
public service, or if an alcohol related factual basis,
alcohol
education or therapy,
Alcoholics Anonymous - AA Meetings, Rx disulfiram (antabuse) and
monitored abstinence or
drug
treatment.
Traffic safety class or
useful public service would be the most
common conditions
b.
Points
are assessed for traffic offenses. Based upon
points
reported by the
court,
the
DMV may take
adverse
action
against Colorado driving privileges.
Habitual
offender status may even be a possibility - that can occur from too many
speeding
or other minor infraction tickets. |
| |
| 10.
Preparation
for Sentencing. |
| |
In a municipal court criminal traffic case, counsel
looks for facts which may lead to dismissal of charges or not guilty
verdict. Plea negotiations are affected by weaknesses in the
Colorado
Springs City Attorney's Office case.
"Shoot for the
best - plan for the worst." It is also wise to plan for
other contingencies; conviction of an offense or infraction. Anticipating you may
subsequently face a judge, to prepare for the most favorable sentencing
result a defendant should immediately commence possible consequences noted
above. That will also aid negotiations.
|
|
|
|
|
| |
|
Driver has remitted (paid) by mail
or otherwise entered
Plea of guilt - traffic offense
Plea of liable - traffic
infraction or penalty assessment
Driver desires to vacate, eliminate,
convert, re-negotiate or otherwise get rid of the conviction
"Ooooopps, maybe I
shouldn't have done that"
Remedy is:
COLLATERAL
ATTACK - SET ASIDE PLEA |
|
| |
|
|
|
|
|
LOSS OF COLORADO
DRIVING PRIVILEGES |
|
|
Driving in Colorado is
a constitutionally protected privilege, but nevertheless a privilege
which may be lost. Multiple statutes can cause loss of driving
privileges for different driver behavior. Drivers are entitled
to a
DMV hearing. In some circumstances the right to hearing
precedes potential DMV adverse action; under other Colorado traffic
laws the adverse order is entered, then the driver is provided notice
of the adverse action and right to request subsequent hearing.
If hearing has been held or a DMV final order has otherwise
entered and the Colorado driver's license or Colorado driving privileges have
been suspended, revoked or denied, the driver's remaining recourse is appeal to
the District
Court.
DMV appeal is subject to a
statute of limitations. Right to
appeal may be lost if the driver delays. Upon District Court final order, either party make take the case on appeal to the
Colorado Court of
Appeals. |
|
|
|
|
|
|
|
|
|
thank you for visiting my
webpage
your interest in my services is appreciated |
Adobe Acrobat Reader version 5 or
later is required to view .pdf files 
Free Download |
|
| |
| please feel free
to call or email if you are a client or are seeking representation |
|
|
|
|
email counsel |
|
FREE INITIAL CONSULTATION
not an offer for free legal advice - refer to link
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter |
|
|
|
| |
 |
|
PRIMARY WEBSITE |
|
|
|
| |
| GUSTAFSON LAW OFFICE TOPICAL
WEBSITES |
|
|
Topical Website Copyright © 2003
- All Rights Reserved - Document Revised
March 10, 2010
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
| |
|
Serving Colorado Springs
Area Zip Codes |
|
|
| 80918 80920 80919 80917 80915
80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 |
|
80905 80906 80907 80910 80911 80912
80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 |
|
80937 80940 80941 80942 80943 80944 80945
80946 80947 80949 80950 80960 80962 80970 80977 80995 90997 |
Colorado Springs, Colorado, traffic
infraction, traffic offense, ticket, traffic ticket, penalty assessment, civil,
criminal, fine, jail, El Paso County, court, lawyer, attorney, defense, traffic
defense, traffic attorney, traffic lawyer, county court, referee court,
traffic infractions Colorado Springs, Colorado Springs traffic Infractions, traffic infraction Colorado Springs, Colorado Springs traffic Infraction, traffic infractions Colorado, Colorado traffic Infractions, traffic infraction Colorado, Colorado traffic Infraction, traffic offenses Colorado Springs, Colorado Springs traffic offenses, traffic offense Colorado Springs, Colorado Springs traffic offenses, traffic offenses Colorado, Colorado traffic offenses, traffic offense Colorado, Colorado traffic offense, traffic infractions, traffic infraction, traffic offenses, traffic offense, traffic tickets, traffic ticket, civil, civil penalty, civil matter, criminal charges, criminal charge, criminal offense, criminal matter, criminal, difference, Colorado Springs, El Paso County, Colorado, court, Colorado Springs Municipal Court, criminal defense, defense lawyer, lawyer,
attorney
|
