Statute of Limitations
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Colorado Springs, Colorado    El Paso County
Robert D. Gustafson  *  Attorney at Law  *  Colorado Springs
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COLORADO CRIMINAL STATUTE OF LIMITATIONS & SPEEDY TRIAL

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COLORADO CRIMINAL STATUTE OF LIMITATIONS
COLORADO SPEEDY TRIAL
Colorado Criminal Statute of Limitations & Speedy Trial - bar to prosecution & time computation
felony, misdemeanor, petty offenses, DUI & traffic offenses - Colorado Springs criminal defense

ATTORNEY HOMEPAGE

Colorado Springs Criminal Defense Lawyer and Traffic Defense Lawyer
Attorney Trial Practice 30+ years Colorado State Courts, Colorado Springs Municipal Court & Colorado DMV License Hearings & Appeals

representation inquiries are invited & most welcome ** questions from public seeking free advice or information declined ** first consultation terms
attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted
 

WEBPAGE INDEX

 

Statute of Limitations Burden of Proof & Evidence Felony & Misdemeanor Traffic Offenses
Method of Time Computation
Speedy Trial
Sealing Criminal Justice Records
 
Bail Bond Public Service Remedial Links Completion Forms

 
 ATTORNEY POLICIES
  Cases Outside Colorado Springs - Travel
 No Pro Bono Assistance  *  No Installment Payment
 Legal Advice Limited to Clients - Not General Public
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attorney does not accept criminal & traffic cases after sentencing unless he defended the underlying case
non-acceptance includes probation revocation, deferred sentence revocation, parole violation or appeal  **  eligible sealing and collateral attack cases accepted
 

BASIC INFORMATION
please refer to the below links for basic information regarding defense of criminal & traffic cases

Right to Silence Search & Seizure Defendant Demeanor Bail Bond Independent Service Providers Advice from Laymen

STATUTE OF LIMITATIONS
COLORADO CRIMINAL CHARGES

CRS 16-5-401. Limitation for commencing criminal proceedings
   
     (1) (a) Except as otherwise provided by statute applicable to specific offenses or circumstances, no person shall be prosecuted, tried, or punished for any offense unless the indictment, information, or complaint is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant within the period of time after the commission of the offense as specified below:

Murder, kidnapping, treason, and any forgery regardless of the penalty provided

No limit

Attempt, conspiracy, or solicitation to commit murder;
attempt, conspiracy, or solicitation to commit kidnapping;
attempt, conspiracy, or solicitation to commit treason; and 
attempt, conspiracy, or solicitation to commit any forgery
regardless of the penalty provided

No limit

Other felonies

Three years

Misdemeanors - including DUI, DWAI, DEAC

Eighteen months

Class 1 and 2 misdemeanor traffic offenses

One year

Petty offenses

Six months

        (2) The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.

        (3) The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal.

        (4) When an offense or delinquent act is based on a series of acts performed at different times, the period of limitation prescribed by this code starts at the time when the last act in the series of acts is committed.

..... other provisions omitted as irrelevant

METHOD OF TIME COMPUTATION
 
  Alleged offense to arrest or service      ____ years, ____ months, ____ days
       Less prior pending prosecution Case No. _______. -    ____ years, ____ months, ____ days
       Less time out of state -    ____ years, ____ months, ____ days
  Net creditable time offense to arrest or service =   ____ years, ____ months, ____ days
       Less Statute of Limitations CRS 16-5-401(1)(a) -    ____ years, ____ months, ____ days
  Time exceeding statute of limitations =   ____ years, ____ months, ____ days

BURDEN OF PROOF AND EVIDENCE

        The burden of proof is upon the prosecution to show

        Evidence of the date of alleged offense is established by the charging document, law enforcement records and dispatch - 911 tapes / transcript.

        Evidence of the date of arrest is established by prosecution and law enforcement records and dispatch - 911 tapes / transcript.

        If a prior prosecution was pending, evidence of the pending time is established by court documents.  This would usually be a criminal case dismissed for lack of jurisdiction or other reason before jeopardy attached.  Jeopardy attaches at the time the first witness is called in a trial to the court, or when the jury is sworn in a jury trial.

        Defense counsel must establish are that the defendant was not absent from the state during the relevant period of time.  This can be accomplished through a driving record, driver's license, voter registration and business records establishing presence, such as payroll records, local merchant charge or cash receipts bearing the date and names of the merchant and of the defendant.  National merchants would not be sufficient unless the receipt clearly establishes the location of the store as being in Colorado.  As evidence, I prefer to have at least one business record every two weeks during the relevant period of time.

FELONY AND MISDEMEANOR
TRAFFIC OFFENSES
 

Felony Offenses (F)
18-9-116.5. Vehicular eluding - reckless (F-5)
18-9-116.5. Vehicular eluding - reckless - bodily injury (F-4)
18-9-116.5. Vehicular eluding - reckless - death (F-4)
18-3-106. Vehicular homicide - alcohol (F-3)
18-3-106. Vehicular homicide - reckless (F-4)
18-3-205. Vehicular assault - alcohol (F-4)
18-3-205. Vehicular assault - reckless (F-5)

Misdemeanor Offenses (M)
42-2-136. Unlawful use of license - alteration (M-3)
42-2-138. Driving under restraint
42-4-1301(1)(a) DUI  (M)
42-4-1301(1)(b) DWAI  (M)
42-4-1301(2) DEAC  (M)

Class 1 Misdemeanor Traffic Offense
42-4-1402. Careless driving - bodily injury or death
42-4-1409. Compulsory insurance - penalty - repeal
42-4-1601. Hit & run - accidents involving death or personal injuries
42-4-1903. School buses - stops - signs - passing - 2nd offense within 5 years

Misdemeanor Traffic Offenses unclassified (MTO)
42-4-203. Unsafe vehicles (MTO)
42-4-313. Emissions control - fraud (MTO)
42-4-413. Visible emissions from diesel-powered motor vehicles unlawful - penalty (MTO)

 

Class 2 Misdemeanor Traffic Offense
42-2-101 No operator’s license
42-2-115. License, permit, or identification card to be exhibited on demand
42-2-124. Surrender of license to court
42-2-129. Mandatory surrender of license or permit for driving under the influence or with excessive alcoholic content
42-2-130. Mandatory surrender of license or permit for drug convictions
42-2-132. Application for new license before expiration of period of suspension or revocation
42-2-136. Unlawful possession or use of license
42-2-137. DMV false affidavit - penalty
42-2-138. Driving under restraint - failure to surrender license
42-3-107. Taxable value of classes of property - license plate fraud
42-4-107. Obedience to police officers directing, controlling or regulating traffic
42-4-228. Restrictions on tire equipment.
42-4-233. Alteration of suspension system
42-4-235. Minimum standards for commercial vehicles
42-4-507. Wheel and axle loads
42-4-508. Gross weight of vehicles and loads
42-4-509. Vehicles weighed - excess removed
42-4-510. Permits for excess size and weight and for manufactured homes
42-4-1101. Speeding 25+ mph over limit
42-4-1105. Speed contests
42-4-1401. Reckless driving - penalty
42-4-1402. Careless driving
42-4-1413. Eluding or attempting to elude a police officer
42-4-1602. Hit & run - accident involving damage
42-4-1604. Hit & run - striking unattended vehicle or other property
42-4-1605. Hit & run - striking highway fixtures or traffic control devices
42-4-1606. Duty to report accidents
42-4-1704. Owner or any other person employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law.
42-4-1716. Notice to appear or pay fine - failure to appear - penalty
42-4-1903. School buses - stops - signs - passing

JURISDICTIONAL ATTACK

        A limited (special) appearance is filed with a motion to dismiss.  In personam (personal) jurisdiction is attacked, not in rem (subject matter) jurisdiction.  This is to avoid a general appearance.  Refer to Jurisdictional Attack page

        This is an unusual defense based upon the fact law enforcement is usually efficient at re-service or re-arrest if a case is dismissed, but it has arisen in DUI cases which had been initially dismissed for jurisdictional defect.

SPEEDY TRIAL

 

SPEEDY TRIAL
COLORADO STATE COURTS

6 Months from entry of plea of not guilty
CRS 18-1-405, C.R.Crim.P. 48(b), Colorado Constitution Article 2, §16, U.S. Constitution, Amendment VI
 
Entry of Plea & Demand for Trial.  
        a.  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.

        b.  Demand must be made for jury trial:
1.  Felony offense cases - not guilty plea entered

        a.  Jury trial is free - jail may be imposed in excess of 6 months upon conviction of any charge.

        b.  Standard number of jurors is 12, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406

2.  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

3.  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.

        c.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.
 

        Objection required.  If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of the speedy trial rule or statute.

 

        Dismissal motion required.  To be entitled to a dismissal, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under of the speedy trial rule or statute.

 

        A balancing test (4 factors) is used to determine whether right to speedy trial has been denied
                1.) the length of the delay, 2.) the reason for the delay, 3.) the defendant's assertion or demand for a speedy trial, and 4.) the prejudice to the defendant.  People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Chavez, 779 P.2d 375 (Colo. 1989), People v. Fears, 962 P.2d 272 (Colo. App. 1997), Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978).

 

Limited Identification of Issues or Factors Which May Become Relevant in Speedy Trial Argument

Statutory Right to Speedy Trial vs. Constitutional Right to Speedy Trial
Burden of Compliance
Judicial Construction
Court Docket Congestion - Claim for Relief From Burden of Compliance
Dismissal Relief
Commencement Date Used for Speedy Trial
Delay and Speedy Trial
Defendant's Absence from Court Proceeding
Accommodation to Defense Counsel's Calendar
Effect of Charging Amendment Upon Speedy Trial
Effect of Dismissal and Re-Filing New Case Upon Speedy Trial
Dismissal and Re-Filing or Amending Charges - Prosecution Good Faith or Bad Faith
Extension of Speedy Trial - Exceptional Circumstances
Colorado Witness Unavailability - Prosecution Due Diligence
Out of State Witness - Prosecution Due Diligence
 
 

Effect of Request for Pre-Trial Conference Upon Speedy Trial
Prosecution Request for Continuance - No Consent by Defense
Prosecution Request for Continuance - Consent by Defense
Defense Request for Continuance
Defense Request for Continuance
Prosecution Late Witness Endorsement - Defense Tactical Decision
Defendant's Obligation to Object to Setting on the Basis of Speedy Trial
Participation in Setting - Defense Affirmative Objection Obligations
Generic Assertion of Speedy Trial Rights vs. Specific Objection
Unilateral Off Record Setting - Obligation to Timely Object
Prohibition as Remedy for Speedy Trial Violation
Effect of Failed Plea Disposition upon Speedy Trial
Guilty Plea Outside Speedy Trial Period
Effect of Interlocutory Appeal Upon Speedy Trial
Effect of Defense Continuance - Certiorari Original Proceeding
Effect of Mistrial Upon Speedy Trial
Effect of Reversal on Appeal Upon Speedy Trial

Some periods of time defined by law are excluded from speedy trial.  Continuance requested by defendant or to which defendant consents will effect speedy trial.  Other periods of time (e.g. witness unavailability) may be excluded from speedy trial - this would extend the potential trial date beyond 6 months from date of not guilty plea.
Continuance by Defense
6 months from the date upon which the continuance was granted
Continuance by Prosecution - Defense Objection
no extension of speedy trial
Non-Appearance by Defendant
6 months from the date of next court appearance
 
Continuance by Prosecution - Defense Consent
number of days between the date on which the continuance is granted
and the date to which the trial is continued

Speedy trial issues are complex - consult the attorney who represents you

NOTE Legal Advice Limited to Clients - Not General Public

 

        This is an unusual defense based upon the fact prosecutors and courts are mindful of speedy trial and set accordingly, but attorney has had domestic violence cases and other criminal or traffic cases dismissed upon speedy trial grounds.

 

SPEEDY TRIAL
COLORADO MUNICIPAL COURTS

90 days from entry of plea of not guilty

   C.Muni.C.P. 248(b)

 

C.Muni.C.P. 248(b)    -    90 days from entry of plea of not guilty
   
     If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the case and the defendant shall not thereafter be tried for the same offense; except that if on the day of a trial set within the last ten days of the above time limit a necessity for a continuance arises which the court in the exercise of sound judicial discretion determines would warrant an additional delay, then one continuance, not exceeding thirty days, may be allowed, after which the dismissal shall be entered as above provided if trial is not held within the additional time allowed.

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GUSTAFSON LAW OFFICE TOPICAL WEBSITES

DUI DEFENSE - DWAI & DEAC DRUNK DRIVING DEFENSE MIP - UNDERAGE ALCOHOL TRAFFIC TICKET DEFENSE DRIVING UNDER RESTRAINT SPEEDING TICKET DEFENSE
HIT AND RUN DEFENSE DRIVER LICENSE DEFENSE CRIMINAL DEFENSE PROSTITUTION DEFENSE DOMESTIC VIOLENCE DEFENSE
SEALING CRIMINAL RECORDS NUISANCE FORFEITURE DEFENSE SHOPLIFTING - THEFT DEFENSE
FAMILY LAW DISSOLUTION OF MARRIAGE COLORADO DIVORCE LEGAL SEPARATION STEP-PARENT ADOPTION GRANDPARENT ADOPTION
PATERNITY - LEGAL PARENTAGE CHILD SUPPORT SUPPORT ENFORCEMENT RESTRAINING ORDERS DEBT COLLECTION PRIVATE INVESTIGATORS

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Website Copyright © 2003 - All Rights Reserved - Document Revised January 30, 2012
mountains photo image, attorney photo image & law office logo copyright © Robert D. Gustafson - all rights reserved - no copyright claimed to other images
Website Initial Publication Date: October 18, 2003 - Republication Date:
July 22, 2011

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