1997 Colorado Criminal Legislation
by Phil Cherner
This article is a summary of 1997 Colorado legislation in the criminal arena. Unless otherwise indicated all legislation is effective July 1, 1997. Highlights of this year's enactments include a new death penalty post-conviction procedure and reduction of "special offender" penalties, to name a few.
DRIVING PRIVILEGES
The previous statutory scheme required loss of a driver's license for many drug offenses. There was a possible conflict in the statutes with one requiring that the offender submit his license to the court and another requiring the Department of Motor Vehicles to revoke the license for the same conduct. This act takes the court out of the loop by deleting the requirement in C.R.S. §42-2-131 that the license be surrendered to the judge. The mandatory revocation now begins when the Department gives notice of the revocation pursuant to C.R.S. §§42-2-125(1)(m) and 42-2-119(2).
The practitioner might want to consider whether this change enhances a double jeopardy challenge to the revocation. The previous scheme was less susceptible to attack because, arguably, the revocation occurred in the same proceeding in which the criminal penalty was imposed. Now the action clearly occurs in two different forums. There remains, of course, the question of whether the Motor Vehicle Department's revocation of one's drivers license for a drug offense is a "penalty" as that term is used in double jeopardy analysis.
HB97-1035 applies to cases in which a plea of guilty, no contest, or a finding of guilt by verdict was entered on or after May 21, 1997.
This year's General Assembly provided some statutory guidance for the robot systems which have recently been used around the state to detect traffic offenders. This act allows the use of such systems but bans point assessment for any such violation. The act also provides for a mechanism of service of process under the Colorado Municipal Court Rules and Procedures. The act is effective June 5, 1997.
This act provides a mechanism for revoking a driver's license for a person convicted of defacing property in violation of C.R.S. §18-4-509(2) or any municipal ordinance counterpart. The revocation is for six months. The court is required to report the conviction. This act applies to offenses committed on or after July 1, 1997.
This act makes it unlawful for an individual under 21 years of age to drive a motor vehicle with a blood or breath alcohol level of .02 or higher. The crime is a 4 point offense, and the license must be administratively revoked for driving with such a blood or breath alcohol level.
DEATH PENALTY
Post-conviction litigation in death penalty cases will take place in parallel with any direct appellate litigation. This act is an attempt to bring Colorado within the provisions of the Federal Anti-terrorism Act of 1996, thereby expediting Federal habeas review. The specific procedures are to be provided by Supreme Court rule but they must require completion of all appellate briefing within two years after the sentence of death is imposed. No extensions of any kind are allowed. The Supreme Court has promulgated draft rules and will be considering public comment on them this fall. The rules are to be promulgated no later than January 1, 1998.
This act amends C.R.S. §24-4.1-302.5 and C.R.S. §16-11-103 to provide that matters relating to the personal characteristics of the victim and the impact of the crime(s) on the victim's family may be presented at the penalty phase of a death case. The act applies to sentencing hearings conducted on or after March 21, 1997.
GRAND JURY
This act creates a mechanism for grand jury reports to be made public when there is no indictment. If the court is satisfied that the report meets certain statutory criteria and is in the public interest, the report can be released to the public. There is a mechanism for persons discussed in the report to file comments. To be "in the public interest", the report must make allegations of public malfeasance or commission of Class 1, 2, or 3 felony. Effective for reports submitted by grand juries on or after October 1, 1997.
JUVENILE
This act broadens the range of individuals who may be committed to the Department of Human Services for up to two years to include any felony or misdemeanor defendant. This is accomplished by amending C.R.S. §§19-2-909(1)(a) and 19-2-921(3)(c). Effective date was May 27, 1997.
NEW AND IMPROVED CRIMES
This act redefines the crime of harboring a minor, C.R.S. §18-6-601. The principal change is making the crime one of specific intent. The previous crime (defined as harboring a runaway child) required only knowing conduct. The offense remains a Class 2 misdemeanor. The act applies to crimes on or after May 22, 1997.
This act broadens the definition of complicity by including "encouraging" another person to plan or commit an offense within the definition.
HB97-1077 amends C.R.S. §12-47-903 regarding contributing to the delinquency of a minor. It appears to overrule People v. O'Donnell, 926 P.2d 114 (Colo. App. 1996), which held that if the delinquent conduct was underage drinking the defendant could only be convicted of a misdemeanor liquor code violation.
This act adds a new subsection to the crime of second degree assault,
C.R.S. §18-3-203. The new offense is one committed by an individual
confined in a facility who causes an employee of the facility to come into
contact with certain bodily fluids. The conduct has to be done with the
intent to infect, injure, harm, harass, annoy, threaten, or alarm the recipient.
PAROLE
HB97-1046, which went into effect March 20, 1997, calls for a study by the legislative counsel of the parole board's operation.
This act amends, retroactive to July 1, 1993, C.R.S. §17-22.5-405(5)(b) to allow offenders convicted of theft earned time credits while on parole. Since this provision is retroactive, D.O.C. has made an effort to review its records to identify offenders whose sentences need to be recalculated. They have asked any attorney who is aware of such an offender to bring that person to the attention of Ms. Donna Thurlow at the D.O.C. Headquarters in Colorado Springs.
PROCEDURAL CHANGES
This act:
1. Adds deferred judgments to the list of restitution orders that can be reduced to judgment pursuant to C.R.S. §16-11-101.5(1).
2. Allows the district attorney to reveal the contents of a probation report to a crime victim, C.R.S. §24-72-304(5).
3. Broadens the category of new offenses which would trigger a modification of a prior bond to include all felony offenses, C.R.S. §16-4-103(2).
4. Amends C.R.S. §16-11.7-102(2) to insure that individuals who receive deferred judgments for sex offenses are deemed "convicted" for purposes of treatment requirements.
5. Makes certain changes in conditional release revocations for individuals found not guilty by reason of insanity, C.R.S. §16-8-115.5.
This act denies personal recognizance bonds to individuals whose rap sheets show that they have failed to appear in a case involving a Class 1 misdemeanor or felony in the preceding five years, unless the district attorney consents. (C.R.S. §16-4-105(n.5)) The act is effective ninety days after final adjournment of the General Assembly, or August 6.
SENTENCING
This act amends C.R.S. §17-27-105(2)(b). The former statute required a community corrections referral for prison inmates not serving a sentence imposed pursuant to C.R.S. §16-11-309 at least sixteen months before parole eligibility. The amended statute requires such a referral for inmates not serving a sentence for an offense referred to in C.R.S. §16-11-309 (a somewhat broader definition). In any event, the violent offender remains eligible for referral to community 180 days prior to parole eligibility.
HB97-1046 also repeals Colorado's pre-parole program, C.R.S. §17-2-401 et seq. It went into effect March 20, 1997.
HB97-1077 reduces the minimum sentence for a "special offender" in the drug statute, C.R.S. §18-18-407(1), from 24 years to 8 years. Colorado, through 97-1077, has now adopted a penalty scheme for drug offenses related to the quantity of the most common drugs. If the item involved is at least 25 grams but less than 450 grams of any material containing a Schedule I or Schedule II controlled substance, the defendant must receive at least a minimum term of incarceration in the presumptive range to the Department of Corrections. If the quantity is 450 grams but less than 1 kilogram, the sentence to the Department of Corrections must be for a term of at least the mid-point in the presumptive range but not more than twice the presumptive range maximum. If the weight of the item is 1 kilogram or more, the sentencing range must be greater than the maximum presumptive range but not more than twice the maximum. It is unclear whether these statutes prevent the court from imposing any sentence other than to the Department of Corrections. The literal wording seems to indicate that a prison sentence is mandatory, however, there is no discussion of whether the sentence can be suspended as some other mandatory sentence statutes contain. Note that simple possession of a Class 1 or Class 2 controlled substance is included in these definitions. It is likely that possession of at least 25 grams of a Schedule I or Schedule II controlled substance requires a mandatory prison term.
HB97-1077 adds an additional aggravator to the list of circumstances requiring a sentence to at least the mid-point in the presumptive range under C.R.S. §18-1-105(9)(a). The new aggravator applies when the offender is on juvenile probation when he commits the adult felony.
A similar statute amends C.R.S. §18-1-105(9.5) to provide that the aggravators listed therein apply to individuals who are sentenced as adults but are less than the age of 18.
The threshold for felony theft has been raised by HB97-1077 from four to five hundred dollars. Unfortunately, similar amendments to other theft-related crimes, such as theft by receiving, theft of rental property, and criminal mischief were not made, so those thresholds remain at four hundred dollars.
HB97-1077 also amends the deferred judgment statute, C.R.S. §16-7-403(2) by requiring that an individual convicted of any crime for which the underlying factual basis includes an act of domestic violence must stipulate to the treatment conditions contained in C.R.S. §16-11-204(2)(b).
SEX OFFENDERS
This act creates the status of "sexually violent predator." An individual meets this definition if they have been convicted on or after January 1, 1999, of any one of a number of sex offenses including first or second degree sexual assault, some forms of third degree sexual assault, and sexual assault on a child (and by one in a position of trust), and are a person "whose victim was [either] a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization", and qualifies under a risk assessment screening instrument to be developed by the Division of Criminal Justice as an individual likely to again commit one or more of the previously enumerated offenses.
The court must determine, prior to sentencing, whether the individual is a sexually violent predator if the district attorney or the probation department so requests. The only apparent effect of the label at this point is that the individual must register as a sexually violent predator pursuant to C.R.S. §18-3-412.5(3.5).
This act amends C.R.S. §18-6.5-103 to raise the penalties for sexual assaults against at risk individuals.
VICTIM'S RIGHTS
This act broadens the victim's assistance statutes to add careless driving
(C.R.S. §42-4-1402) and hit and run (C.R.S. §42-4-1601) to the
list of compensable crimes contained in C.R.S. §24-4.1-102(4)(a),
when such action causes the death of an individual. The definition of "victim"
is also expanded to include an individual killed or injured by an act of
international terrorism as defined by federal law. Harassment by stalking
and ethic intimidation are also added to the list of crimes contained in
C.R.S. §24-4.1-302(1). These are crimes to which the victim's rights
legislation, C.R.S. §24-4.1-301 et. seq., applies. The definition
of "critical stages" at which the victims have rights has been
expanded to add the filing of some probation revocation complaints, a request
to change probation supervision to another jurisdiction, and the request
to terminate probation early. C.R.S. §24-4.1-302(2).
WIRETAPPING AND EAVESDROPPING
HB97-1060 adds cellular phones to the type of communications covered under telecommunications crimes, C.R.S. §18-9-309. Telecommunication crime is then added to the list of predicate offenses under Colorado's organized crime statute, C.R.S. §18-17-101 et seq.
This act broadens the wire-tapping statute, C.R.S. §16-15-101 et seq. by including communication from the radio portion of a cordless telephone to the base unit. Effective ninety days after final adjournment of the General Assembly, unless overturned by popular vote. It will therefore be effective August 6.