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        Ideas contained in this web page may be very important in relation to a criminal, DUI or traffic case.  When a defendant attacks the jurisdiction of the court, defense requests dismissal because the court does not have power to hear the case.  If granted, the case must be dismissed without reaching the merits - that's a win for the defendant regardless of the facts.  Two attacks may be made:
                1.  in personam jurisdiction - personal jurisdiction - most common attack
                2.  in rem jurisdiction - subject matter jurisdiction

        When an in personam jurisdictional attack is filed, defendant or litigant enters a limited (special) appearance claiming the court lacks power over his / her person to enter any order other than dismissal.  When an in rem jurisdictional attack is filed, it is deemed a general appearance by the defendant or litigant, and he / she claims the court does not have power over the subject matter of the litigation.  e.g.
                1.  in personam.  Defendant does not contest that the court has power to hear misdemeanor criminal cases for DUI criminal acts committed within the county and state, but claims that charging errors committed by law enforcement or prosecution fail to bring the defendant within the power of the court.
                2.  in rem.  Defendant essentially states, Hi judge, I'm here, but you don't have power to decide any case of this nature.  As example, municipal courts may hear petty theft - shoplifting cases, but lack the power to hear a serious felony theft - robbery.

        LIMITED APPEARANCE IRRELEVANT. Necessity of limited appearance or special appearance for purpose of contesting jurisdiction over the person of the defendant has been eliminated. see Treadwell v. District Court, 133 Colo. 520 - 523, 297 P.2d 891 (1956), At Home Magazine v. District Court, 194 Colo. 331, 572 P.2d 476 (1977). Jurisdiction may be contested at any time. McWherter v. Fischer, 126 P.3d 330, 331 (Colo. App. 2005).

        Except for bars to prosecution (statute of limitations and joinder) dismissals, all dismissals would be without prejudice.  Assuming the Statute of Limitations has not run, that means the prosecution (city or state) may re-serve new summons and complaints or may cause the defendant to be arrested on new charges.  In the event of defective charging, at hearing it is common practice for prosecutors to dismiss the fatally defective case and have an officer present to re-serve or arrest the defendant on new charges.  Whether the new case has been properly commenced is another issue - I've had one client charged improperly with 3 separate criminal cases arising out of the same criminal episode, resulting in dismissals.

        Gee whiz, this seems much to do about nothing - why go to the effort and expense?  The state may not effect service or arrest within the Statute of Limitations.  For misdemeanor traffic offenses, that is one year.  For misdemeanors, including DUI - DEAC - DWAI, that is eighteen months.  If they haven't "gotcha" within the applicable period, the state is barred from further prosecution.  Classification - refer to link for classification of offense.

        In many circumstances, the facts of the case may not present well at a trial on the merits.  Dismissal short circuits prosecution.  Dismissal upon jurisdictional grounds is particularly appreciated by persons who have prior offenses and may be facing jail.

        Ok, it makes sense to avoid service or arrest until after the Statute of Limitations runs, but how do I avoid being re-served or arrested at motions hearing?

        If a defendant fails to appear, to avoid loss of jurisdiction the court must issue a warrant for his / her arrest, and failure to appear is a class 2 misdemeanor traffic offense.  CRS 42-4-1716.  Additionally, if defendant fails to appear, that can be considered waiver of claim and default ruling, or the court may simply not rule until defendant appears.  Seems to be a problem, eh?

        In many circumstances, litigants can appear by counsel.  Counsel will enter a written limited (special) appearance on behalf of defendant for the sole purpose of contesting jurisdiction.  The retainer agreement is drafted for that limited purpose.  Counsel is not the client's agent for service of process in any other matter, including but not limited to new charges arising out of the same criminal episode.  Assuming dismissal is entered at hearing, much to the chagrin of prosecutors or law enforcement officers, counsel subsequently declines to accept service of new summons and complaints.

        Immediately prior to hearing, it is common practice for prosecutors to demand physical appearance of the defendant, with threat of demand for issuance of a warrant and no future plea negotiations.  In other words, cave in or the state will come down upon you with all its wrath.

        Hearing may be held on the issue of whether defendant is subject to arrest warrant for failure to appear or default dismissal of the motion.  I have my client execute a waiver of appearance at jurisdictional attack motion hearing, and file the waiver at the same time as filing the motion to dismiss for lack of jurisdiction.  I also file a brief on the merits and another brief on the issue of appearance by counsel, but physical non-appearance.  It can get dicey - jurisdictional attacks frustrate prosecutors to no end.  But, that's what being a trial lawyer is all about - resolution of contested issues.  Having a meritorious claim and strong adversarial positions is the fun part for defense attorneys, and I firmly believe every defendant has a right to test a meritorious claim. 

        If the court dismisses the case for lack of jurisdiction, prosecutors may apply for a warrant for the defendant's arrest on new charges arising from the same criminal episode.  Alternatively, a "want" may be placed in the computers of the law enforcement agency.  Either way, it is up to the state to affect service or arrest within the Statute of Limitations.  It would not be uncommon for the Deputy DA to make demand upon law enforcement for immediate service or arrest.  Service of a new summons and complaint may also be achieved via certified U.S. Mail.  The old saying applies:  "nothing good comes by certified mail."  Simply tell your postman you decline to accept and don't sign anything.  Yes, after careful advice, I've had a client sign "because the postman was standing there."  When you know it's not a plan - DOH !!! - that's a Homer Simpson.

        Through the years in prior cases, it has appeared the efforts die down after the first 30-45 days, and the want or warrant simply lays in the law enforcement agency computers waiting for a traffic stop or some other reason for contact.  The client is then left with necessity to avoid that contact - in other words don't drive down Academy Blvd. at 90 miles per hour.  It never ceases to amaze me.  I had 4 DUI dismissal clients return in the spring of 2003 who were stopped by and came into contact with police for frivolous traffic reasons which could have been avoided with a little exercise of judgment and care.  When you know it's not a plan - DOH !!! - that's again a Homer Simpson.

        In practicality, home phone can be changed to non-published.  

        If the trial court judge denies the motion to dismiss, a defendant has two options.  
                 1.) Proceed with the case on the merits -- negotiations on the merits (if the DA Office will still negotiate) and perhaps contested proceedings (motion hearing, readiness hearing and trial); or 
                2.) Request jurisdictional review from a higher court under C.R.Civ.P. 106(a)(4).  Jurisdictional review was previously called Writ of Prohibition, and is available where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law.  Review is limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.  In layman's language:  "drop back 10 and punt, or if at first you don't succeed, try, try again."

        This type of decision is left to the client after advisement by counsel regarding facts, applicable law and merits of the argument.  My observation is that clients have made the determination based upon potential sanctions if convicted (multiple offender) and expense.  Put another way - how important is it to you?