July 22, 2018

Colorado Court of Appeals: Double Jeopardy Implicated where Defendant Convicted of DARP at First Trial and ADARP at Second Trial

The Colorado Court of Appeals issued its opinion in People v. Wambolt on Thursday, June 28, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Driving Under Restraint—Driving After Revocation Prohibited—Driving While Ability Impaired—Lesser Included Offense—Merger—Double Jeopardy—Motion to Suppress—Illegal Arrest—Miranda—Fifth Amendment.

Defendant was charged with aggravated driving after revocation prohibited (ADARP), driving under the influence (DUI), and driving under restraint (DUR). During a first trial, the jury was instructed on the elements of driving after revocation prohibited (DARP) and given a special interrogatory verdict form on the ADARP charge. The jury returned guilty verdicts on DARP and DUR, but hung on the DUI charge, and thus did not complete the ADARP special interrogatory. Defendant was retried in a two-phase trial. In the first phase, the jury returned a guilty verdict on driving while ability impaired (DWAI), a lesser included offense of DUI. In the second phase, the jury completed a special interrogatory finding that the prosecution had proved the ADARP charge. The trial court entered convictions for ADARP, DUR, and DWAI.

On appeal, defendant contended that he was unconstitutionally tried twice for the same offense when he was retried on the ADARP charge after the first jury had convicted him of DARP. Here, defendant was effectively tried for DARP twice and he was not properly tried for ADARP. Thus, under the circumstances of this case, defendant was unconstitutionally tried twice for the same offense. This error was obvious and substantial and significantly undermined the reliability of defendant’s ADARP conviction.

Defendant also argued that the trial court plainly erred in entering convictions for DUR and DARP because those convictions should have merged. DUR is a lesser included offense of DARP. Thus, the trial court erred in entering both convictions. However, because the relevant law in this area has undergone significant recent change, the error here was not plain because it was not obvious. The trial court did not plainly err in entering the DUR and DARP convictions.

Defendant further contended that the trial court erred in denying his motion to suppress statements he made after being detained. He argued that his statements resulted from an unlawful detention and were taken in violation of his Miranda rights. Here, although the officer found defendant compliant and “very easy to get along with,” he handcuffed him at gunpoint and placed him in the back of the patrol car. Defendant thereafter was removed from the patrol car, his handcuffs were removed, and he was read his Miranda rights and voluntarily waived them. Although defendant was unconstitutionally arrested, the statements were admissible because they were sufficiently attenuated from the unlawful arrest.

The judgment of conviction for DWAI and DUR was affirmed, the conviction for ADARP was vacated, and the case was remanded for the trial court to reinstate the DARP conviction and correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Probationary DUI Sentence Inappropriate Where Defendant Convicted of a Felony

The Colorado Court of Appeals issued its opinion in People v. Coleman on Thursday, May 17, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Careless Driving—Department of Corrections—Probation—Miranda—Motion to Suppress—Prosecutorial Misconduct—Illegal Sentence.

Coleman was convicted of aggravated driving after revocation prohibited—driving under the influence (ADARP); driving under the influence (DUI)—third or subsequent alcohol related offense; and careless driving. The trial court sentenced him to concurrent terms of one year in the custody of the Department of Corrections (DOC) on the ADARP conviction; one year of jail and one year of additional jail, suspended subject to completion of four years of probation, on the DUI conviction; and 90 days in jail on the careless driving conviction.

On appeal, Coleman contended that the trial court erred in denying his motion to suppress. He argued that because he was in custody when he first said he wanted to be taken to bond out and had not yet been given a Miranda advisement, that statement should have been suppressed. However, Coleman was not in custody during the brief traffic stop for Miranda purposes. Therefore, it was not error to deny the motion to suppress.

Coleman next contended that the prosecutor’s comments in summation on his pre-arrest and post-arrest silence violated his constitutional right against self-incrimination. Because defense counsel opened the door on the subject, Coleman’s pre-arrest silence was at issue, and the prosecutor’s comment was not error. Additionally, although the prosecutor’s comment on Coleman’s post-arrest silence was error, it was brief and did not materially contribute to defendant’s conviction. Therefore, there was no reversible error for this comment.

Lastly, Coleman contended that his probationary sentence is illegal under the DUI sentencing statute, C.R.S. § 42-4-1307. C.R.S. § 42-4-1307(6) prohibits a trial court from imposing probation on a defendant sentenced to DOC custody where that defendant has been sentenced to prison on a felony. Because Coleman cannot be sentenced to both the custody of the DOC and probation, his sentence was improper.

The judgment of conviction was affirmed. The entire sentence was vacated and the case was remanded for resentencing.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Finding of Half-empty Schnapps Bottle in Vehicle Did Not Negate Police Officers’ Reasonable Suspicion

The Colorado Court of Appeals issued its opinion in People v. Kessler on Thursday, May 3, 2018.

DUI—Evidence—Possession of a Controlled Substance—Search and Seizure—Search Incident to Arrest—Motor Vehicle—Reasonable Suspicion—Cross-Examination.

Defendant was pulled over by the police for speeding. Upon approaching the car with a flashlight, an officer spotted a half-empty schnapps bottle on the floor behind the passenger’s seat. The officer asked defendant for his license, registration, and proof of insurance multiple times before defendant presented his registration and proof of insurance. Defendant admitted he did not have a valid driver’s license. Because defendant showed signs of intoxication, the officer asked him to step out of the vehicle. Defendant needed to use the car door for support to get out of the car, and he eventually admitted he had drunk from the schnapps bottle. Defendant performed roadside sobriety maneuvers unsatisfactorily, and his breath test registered .154g/210L. Defendant was arrested for DUI and placed in the back of the police car. Two other officers then searched the car for further evidence of alcohol consumption and found a bag of cocaine in the console, inches from where defendant sat. Among other things, defendant was convicted of possession of a controlled substance (cocaine).

On appeal, defendant contended that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). He argued that he was not in exclusive possession of the car on the date in question and denied knowing the cocaine was on the car. The possibility that someone else was in the car earlier that day does not change the fact that defendant was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inference that he knowingly possessed the cocaine. Further, the location of the cocaine and defendant’s testimony that no one else had interacted with the console support the inference. There was sufficient evidence for the jury to convict him on this charge.

Defendant next contended that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty bottle of schnapps. The police are permitted to search a vehicle incident to a lawful arrest. Here, the officer had probable cause to arrest defendant on a DUI charge, defendant initially denied consuming alcohol, and it was likely the officers would find evidence of alcohol while searching defendant’s vehicle. The officers’ reasonable suspicion that the car contained alcohol did not evaporate once the officers found some alcohol. Therefore, the search that uncovered the cocaine was proper.

Finally, at trial, the amount of alcohol in the schnapps bottle when the officer discovered it was contested: the officer said it was half full, while defendant testified it was two-thirds full. During cross-examination, the prosecution asked defendant if the officer “made up” the amount of schnapps in the bottle. Although the prosecution’s question was improper, it did not cast doubt on the reliability of the conviction. The error was not substantial and did not warrant reversal under the plain error rule.

The judgment of conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Regarding Fiduciary Duties of Title Insurance Entities, Public Official Oaths and Affirmations, and More

On Thursday, March 29, 2018, the governor signed 17 bills into law. He also signed 16 bills into law on Monday, April 2, 2018. To date, Governor Hickenlooper has signed 114 bills this legislative session and sent one to the Secretary of State without a signature. The bills signed Thursday and Monday include a bill concerning the fiduciary duties of title insurance entities with regard to funds held for closing, a bill exempting physicians who treat patients with rare disorders from non-compete agreements, several bills updating outdated statutory language, bills regarding financing broadband for rural areas, a bill requiring reporting when title to a motor vehicle has been transferred, and more. The bills signed Thursday and Monday are summarized here.

  • HB 18-1012 – “Concerning Vision Care Plans for Eye Care Services,” by Reps. Jon Becker & Susan Lontine and Sens. Kevin Lundberg & Irene Aguilar. The bill prohibits a carrier or entity that offers a vision care plan from requiring an eye care provider with whom the carrier or entity contracts to provide services at a set fee, charge a person for noncovered services, or participate in a carrier’s other vision plan networks.
  • HB 18-1091 – “Concerning Dementia Diseases, and, in Connection Therewith, Updating Statutory References to Dementia Diseases and Related Disabilities,” by Reps. Susan Beckman & Joann Ginal and Sens. Jim Smallwood & Nancy Todd. The bill updates statutory references to Alzheimer’s and other dementia diseases and reflects that dementia diseases have related disabilities impacting memory and other cognitive abilities.
  • HB 18-1099 – “Concerning Criteria that the Broadband Deployment Board is Required to Develop with Regard to an Incumbent Telecommunications Provider’s Exercise of a Right to Implement a Broadband Deployment Project in an Unserved Area of the State Upon a Nonincumbent Provider’s Application to the Broadband Deployment Board to Implement a Proposed Broadband Deployment Project in the Unserved Area,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill requires that the Broadband Deployment Board’s criteria include requirements that an incumbent telecommunications provider exercising its right to implement a broadband deployment project for the unserved area agree to provide demonstrated downstream and upstream speeds equal to or faster than the speeds indicated in the applicant’s proposed project and at a cost per household that is equal to or less than the cost per household indicated in the applicant’s proposed project.
  • HB 18-1103 – “Concerning the Ability of a Local Government to Require a Driver to Meet Safety Standards for the Use of an Off-highway Vehicle,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill clarifies that a local government does not violate state rules if it imposes certain requirements on a driver of an off-highway vehicle.
  • HB 18-1130 – “Concerning Increasing the Availability of Qualified Personnel who are Licensed in Another State to Teach in Public Schools,” by Reps. Dave Williams & Jeni James Arndt and Sen. Bob Gardner. The bill changes requirements for special education teacher requirements from 3 years of continuous experience to 3 years of experience within the previous 7 years.
  • HB 18-1137 – “Concerning the Scheduled Repeal of Reports to the General Assembly, and, in Connection Therewith, Continuing the Requirements for Reports by the Department of Transportation and the Department of Public Safety,” by Rep. Hugh McKean and Sen. Rachel Zenzinger. The bill continues reporting requirements of the Departments of Transportation and Public Safety.
  • HB 18-1138 – “Concerning Standardizing Public Official Oaths of Office, and, in Connection Therewith, Providing a Uniform Oath Text and Establishing Requirements for Taking, Subscribing, Administering, and Filing Public Oaths of Office,” by Rep. Jeni James Arndt and Sen. Rachel Zenzinger. The bill establishes a single uniform text for swearing or affirming an oath of office and the requirements regarding how and when an oath or affirmation of office must be taken, subscribed, administered, and filed.
  • HB 18-1139 – “Concerning the Removal of Outdated Statutory References to Repealed Reporting Requirements that were Previously Imposed on the Parks and Wildlife Commission with Regard to its Rule-making Authority to Set Fees,” by Rep. Edie Hooten and Sen. Rachel Zenzinger. The bill removes obsolete references to a statutory subsection that was repealed on September 1, 2017.
  • HB 18-1158 – “Concerning a Supplemental Appropriation to the Department of Corrections,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Corrections.
  • HB 18-1171 – “Concerning Adjustments in the Amount of Total Program Funding for Public Cchools for the 2017-18 Budget Year, and, in Connection Therewith, Making and Reducing an Appropriation,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill adjusts the minimum amount of total program funding specified in statute to reflect this intent for the actual funded pupil count and the actual at-risk pupil count.
  • HB 18-1196 – “Concerning Authorization to Verify the Disability of an Applicant to the Aid to the Needy Disabled Program,” by Rep. Tony Exum and Sens. Nancy Todd & Beth Martinez Humenik. Under current law, in order to receive assistance under the aid to the needy disabled program, an applicant must be examined by a physician, physician assistant, advanced practice nurse, or registered nurse. The bill adds to the list of persons authorized to perform an examination a licensed psychologist, or any other licensed or certified health care personnel the department of human services deems appropriate.
  • HB 18-1233 – “Concerning a Consumer Reporting Agency’s Placement of a Security Freeze on the Consumer Report of a Consumer who is Under the Charge of a Representative at the Request of the Consumer’s Representative,” by Reps. Crisanta Duran & Polly Lawrence and Sens. Stephen Fenberg & Bob Gardner. The bill authorizes a parent or legal guardian (representative) to request that a consumer reporting agency place a security freeze on the consumer report of either a minor less than 16 years of age or another individual who is a ward of the representative (protected consumer).
  • SB 18-002 – “Concerning the Financing of Broadband Deployment,” by Sens. Don Coram & Jerry Sonnenberg and Reps. KC Becker & Crisanta Duran. The bill amends the definition of ‘broadband network’ to increase the speed of downstream broadband internet service from at least 4 megabits per second to at least 10 megabits per second and the definition of ‘unserved area’ to refer to an area that is unincorporated, or within a city with a population of fewer than 7,500 inhabitants, and that is not receiving federal support to construct a broadband network to serve a majority of the households in each census block in the area, and requires the PUC to allocate money.
  • SB 18-028 – “Concerning the Repeal of Certain Requirements for Where a License Plate is Mounted on a Motor Vehicle,” by Sen. Ray Scott and Rep. Jeff Bridges. Current law requires each license plate to be at the approximate center of a motor vehicle and at least 12 inches from the ground. The bill repeals this requirement for the front license plate and replaces it with a requirement that the front license plate be mounted horizontally on the front in the location designated by the manufacturer.
  • SB 18-073 – “Concerning Reporting to the Department of Revenue when Ownership of a Motor Vehicle has been Transferred,” by Sen. Jim Smallwood and Reps. Kim Ransom & Leslie Herod. The bill creates a voluntary program administered by the Department of Revenue that authorizes the owner of a motor vehicle to report a transfer of ownership of the motor vehicle. If the previous owner reports the transfer to the Department, the previous owner is not subject to liability for the misuse of the vehicle.
  • SB 18-074 – “Concerning Adding Individuals with Prader-Willi Syndrome to the List of Persons with Intellectual and Developmental Disabilities,” by Sen. Nancy Todd and Rep. Chris Hansen. The bill adds Prader-Willi syndrome to the list of persons who have mandatory eligibility for services and supports and also to the definition of an ‘intellectual and developmental disability’ for the purpose of receiving services and supports.
  • SB 18-082 – “Concerning a Physician’s Right to Provide Continuing Care to Patients with Rare Disorders Despite a Covenant Not to Compete,” by Sen. Rachel Zenzinger and Sen. Chris Kennedy. The bill exempts physicians who provide care to patients with rare diseases from non-compete agreements.
  • SB 18-090 – “Concerning ‘Rights of Married Women,'” by Sen. Rachel Zenzinger and Rep. Edie Hooten. The bill modernizes the language in statutory sections concerning the “rights of married women” to be inclusive of married men and women.
  • SB 18-095 – “Concerning the Removal of Statutory References to the Marital Status of Parents of a Child,” by Sens. Rachel Zenzinger & Beth Martinez Humenik and Reps. Edie Hooten & Hugh McKean. The bill removes or modernizes outdated statutory references to a ‘legitimate’ or ‘illegitimate’ child and a ‘child born out of wedlock’. Colorado only recognizes parentage of a child and acknowledges that the parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents.
  • SB 18-098 – “Concerning Amending a Statutory Provision Relating to Interest on Damages that was Ruled Unconstitutional by the Colorado Supreme Court,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill amends C.R.S. § 13-21-101 (1), concerning interest on damages, to reflect a 1996 decision made by the Colorado Supreme Court that ruled certain language in that subsection violated the equal protection clause of the constitution.
  • SB 18-099 – “Concerning the Alignment of Early Childhood Quality Improvement Programs with the Colorado Shines Quality Rating and Improvement System,” by Sens. Michael Merrifield & Kevin Priola and Reps. Brittany Pettersen & James Wilson. The bill amends the application and eligibility requirements for the school-readiness quality improvement program and the infant and toddler quality and availability grant program to align with the Colorado shines quality rating and improvement system to streamline the administration of the programs.
  • SB 18-102 – “Concerning the Requirement for an Odometer Reading when a Motor Vehicle’s Identification Number is Physically Verified,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill repeals the requirement that the odometer be read when a motor vehicle’s identification number is physically verified.
  • SB 18-104 – “Concerning a Requirement that the Broadband Deployment Board File a Petition with the Federal Communications Commission to Seek a Waiver from the Commission’s Rules Prohibiting a State Entity from Applying for Certain Federal Money Earmarked for Financing Broadband Deployment in Remote Areas of the Nation,” by Sen. Kerry Donovan and Reps. Yeulin Willett & Barbara McLaughlin. The bill requires the broadband deployment board, on or before January 1, 2019, to petition the federal communications commission (FCC) for a waiver from the FCC’s rules prohibiting a state entity from applying for federal money earmarked for broadband deployment in remote areas of the nation through the remote areas fund created as part of the connect America fund established by the FCC.
  • SB 18-111 – “Concerning the Removal of an Obsolete Date in the Law that Designates State Legal Holidays,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law specifies that if executive branch employees who are in the state personnel system are required to work on a state legal holiday, the employees shall receive an alternate day off or be paid in accordance with the state personnel system or state fiscal rules in effect on April 30, 1979. The state fiscal rules in effect in 1979 have been amended numerous times since that time and are no longer applicable or relevant. The bill removes the reference to April 30, 1979.
  • SB 18-121 – “Concerning Certain Expenses Allowed to a State Employee when the Employee is Required to Change his or her Place of Residence in Connection with a Change in Job Duties,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law allows an employee in the state personnel system his or her moving and relocation expenses if an appointing authority requires the employee to change his or her place of residence due to a change in job duties. The bill specifies that moving expenses, including the reasonable expenses of moving household goods and personal effects and the reasonable costs of traveling to a new residence, are reimbursable in accordance with rules promulgated by the state controller and in compliance with the regulations of the federal internal revenue service.
  • SB 18-125 – “Concerning Fiduciary Responsibilities of Title Insurance Entities to Protect Funds held in Conjunction with Real Estate Closing Settlement Services,” by Sens. Bob Gardner & Daniel Kagan and Rep. Pete Lee. The bill requires title insurance entities and affiliates or subsidiaries to hold funds belonging to others in a fiduciary capacity. ‘Fiduciary funds’ means all funds received in conjunction with real estate closing and settlement services.
  • SB 18-131 – “Concerning Modifications to the “State Employees Group Benefits Act,” by Sen. Jack Tate and Rep. Edie Hooten. The bill modifies several provisions of the State Employees Group Benefits Act to bring it into compliance with current state and federal law and to eliminate obsolete provisions.
  • SB 18-134 – “Concerning the Exemption of Nonprofit Water Companies from Regulation by the Public Utilities Commission,” by Sen. John Cooke and Rep. Jeni James Arndt. Under current law, the public utilities commission is directed to grant simplified regulatory treatment to water companies that serve fewer than 1,500 customers. The bill expands on this concept by deregulating water companies that are registered as nonprofits, so long as their rates, charges, and terms and conditions of service are just and reasonable.
  • SB 18-135 – “Concerning Updates to the Colorado Code of Military Justice,” by Sen. Bob Gardner and Reps. Terri Carver & Pete Lee. The bill updates several parts of the Colorado Code of Military Justice.
  • SB 18-138 – “Concerning Authorization for Retail Sellers of Alcohol Beverages for On-premises Consumption to Sell Remaining Inventory to Another On-premises Retail Seller of Alcohol Beverages with whom there is Common Ownership when No Longer Licensed to Sell Alcohol Beverages for On-premises Consumption,” by Sens. Bob Gardner & Andy Kerr and Reps. Matt Gray & Larry Liston. The bill allows persons with certain retail licenses to purchase alcohol beverages from another retail licensee when there is common ownership between the licensees and the seller has surrendered its license within the last 60 days.
  • SB 18-160 – “Concerning the Authority to Operate Certain Teacher Development Programs, and, in Connection Therewith, Establishing Alternative Licensure Programs and Induction Programs,” by Sen. Kent Lambert and Rep. Millie Hamner. Under existing law, school districts are permitted to operate induction programs for teachers, special services providers, principals, and administrators, and alternative licensure programs for teachers and principals, who do not hold professional licenses. The bill clarifies that charter schools and the state charter school institute may operate such programs.
  • SB 18-165 – “Concerning Requirements for Public Administrators,” by Sens. Tim Neville & Nancy Todd and Reps. Faith Winter & Lori Saine. The bill The bill increases the amount of bond public administrators are required to maintain to $100,000 and clarifies additional requirements.
  • SB 18-173 – “Concerning the Ability of Certain Establishments Licensed to Sell Alcohol Beverages for On-premises Consumption that Serve Food to Allow a Customer to Remove One Opened Container of Partially Consumed Vinous Liquor from the Licensed Premises,” by Sen. Bob Gardner and Rep. Leslie Herod. Currently, certain liquor licensees may sell one opened container of partially consumed vinous liquor to a customer if the licensee has meals available for consumption on the licensed premises. The bill expands the requirement to include licensees that makes sandwiches and light snacks available for consumption on the premises.

For a list of all of Governor Hickenlooper’s 2018 legislative actions, click here.

Bills Signed Regarding Appropriating Retail Marijuana Sales Tax to Schools, Clarifying Standard for Deceptive Trade Practices, and More

On Thursday, March 15, 2018, the governor signed 15 bills into law. To date, he has signed 55 bills this legislative session. Many of Thursday’s bills involved the relocation of statutes from Title 12. Some of the other bills signed include a bill to clarify which entities are eligible to apply for special event beverage licenses, a bill appropriating retail marijuana sales tax to schools, a bill changing the date of special district elections to May every-other year, and more. The bills signed Thursday are summarized here.

  • HB 18-1027 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of the Lottery from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. Daniel Kagan. The bill creates Title 44 and relocates the sections of Title 12 related to the regulation of the lottery to Title 44.
  • HB 18-1028 – “Concerning Clarification of the Standard Required for Applications for a Court Order to Require Compliance with Investigations of Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Lois Court & Jack Tate. The bill would allow a judge to issue a court order if compliance with an investigation is necessary to investigate a deceptive trade practice.
  • HB 18-1039 – “Concerning Changing Regular Special District Elections to May of Each Odd-numbered Year, and, in Connection Therewith, Adjusting the Length of Terms Served by Directors Elected in 2020 and 2022 in Order to Implement the New Election Schedule,” by Rep. Kim Ransom and Sen. Bob Gardner. The bill moves regular special district elections to the Tuesday following the first Monday of May in odd-numbered years, rather than the Tuesday immediately succeeding the first Monday of May in every even-numbered year, starting in 2023.
  • HB 18-1087 – “Concerning Department of Public Safety Authority to Repeal Rules Relating to Defunct Boards,” by Rep. Dan Thurlow and Sens. Don Coram & Daniel Kagan. The victims compensation and assistance coordinating committee and the victims assistance and law enforcement advisory board in the department of public safety were repealed in 2009. The bill gives the executive director of the department of public safety the authority to repeal rules relating to those repealed boards.
  • HB 18-1096 – “Concerning the Eligibility of Certain Entities to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Rep. Matt Gray and Sen. Kevin Priola. The bill adds to the list of organizations authorized to obtain a special event permit to sell alcohol beverages for a limited period an organization that is incorporated under Colorado law for educational purposes.
  • HB 18-1100 – “Concerning the Continuous Appropriation of Money in the Educator Licensure Cash Fund,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill extends the continuous appropriation of money to the State Board of Education and the Department of Education (Department) for its expenses incurred in the administration of the “Colorado Educator Licensing Act of 1991” for three more years.
  • HB 18-1101 – “Concerning Modification of the Manner in which Gross Retail Marijuana Tax Revenue that is Transferred from the General Fund to the State Public School Fund as Required by Current Law is Appropriated from the State Public School Fund,” by Rep. Millie Hamner and Sen. Kent Lambert. Beginning in the 2018-19 fiscal year, the bill requires 12.59% of the gross retail marijuana sales tax revenue remaining in the general fund after a required allocation of 10% of the revenue to local governments to be transferred to the state public school fund, and continuously appropriates that revenue for the same state fiscal year in which it is transferred from the state public school fund to the department of education to help meet the state share of total program funding for school districts and institute charter schools.
  • HB 18-1140 – “Concerning Public Official Personal Surety Bonds, and, in Connection Therewith, Repealing Obsolete Provisions and Authorizing the Purchase of Insurance in Lieu of Public Official Personal Surety Bonds,” by Rep. Hugh McKean and Sen. Dominick Moreno. The bill repeals obsolete provisions related to personal surety bonds and authorizes a public entity to purchase insurance in lieu of a public official personal surety bond and states the requirements for the insurance.
  • SB 18-036 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Tobacco Sales to Minors from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12, and, in Connection Therewith, Making an Appropriation,” by Sen. Daniel Kagan and Rep. Cole Wist. The bill creates Title 44, then relocates the sections of Title 24 regarding the regulation of tobacco sales to minors to Title 44.
  • SB 18-091 – “Concerning Modernizing Terminology in the Colorado Revised Statutes Related to Behavioral Health,” by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The bill is a follow-up and clean-up to Senate Bill 17-242, which updated and modernized terminology in the Colorado Revised Statutes related to behavioral health, including mental health disorders, alcohol use disorders, and substance use disorders.
  • SB 18-092 – “Concerning Updating Statutory References to ‘County Departments of Social Services,'” by Sen. Beth Martinez Humenik and Rep. Edie Hooten. The bill modernizes outdated references in statute to “County Department(s) of Social Services,” or similar terms, to “County Department(s) of Human or Social Services.” Counties throughout the state have different ways of referring to the department in the county that does human or social services work, so it is necessary for statute to reflect that not all county departments go by one label.
  • SB 18-094 – “Concerning the Repeal of a Duplicate Definitions Section in Article 60 of Title 27, Colorado Revised Statutes,” by Sen. Beth Martinez Humenik and Rep. Edie Hooten. The bill repeals section 27-60-102.5, Colorado Revised Statutes, which is a duplicate definitions section for general provisions related to behavioral health found in article 60 of title 27, Colorado Revised Statutes. The bill leaves in place section 27-60-100.3, Colorado Revised Statutes, enacted by Senate Bill 17-242.
  • SB 18-100 – “Concerning Disclosure of Additional Mandatory Charges by Motor Vehicle Rental Companies,” by Sen. Tim Neville and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill requires a motor vehicle rental company to disclose to a potential customer, in any vehicle rental cost quote and in the rental agreement, additional mandatory charges applicable to the motor vehicle rental.
  • SB 18-103 – “Concerning the Issuance of Performance-based Incentives for Film Production Activities in the State,” by Sens. Nancy Todd & Jim Smallwood and Reps. Tracy Kraft-Tharp & Timothy Leonard. The bill strengthens the requirements necessary to earn performance-based incentives for film production activities in the state in various ways.
  • SB 18-164 – “Concerning the Repeal of Reporting Requirements for Certain Unfunded Programs in the Department of Human Services Until Such Time as Funding is Received,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill directs that reporting requirements for programs established in the department of human services that have not received funding in several years be placed on hold until such time as the program receives funding.

For all of the governor’s 2018 legislative decisions, click here.

Bills Signed Regarding Continuation of Family Medical Benefits After Death of State Worker, Creating a Crime of Cruelty to Police Horse, and More

On Wednesday, March 7, 2018, the governor signed 10 bills into law. To date, he has signed 40 bills this legislative session. The bills signed Wednesday included a bill to continue family medical benefits after the death of a state employee, a bill adding free-standing emergency rooms to Colorado’s safe haven laws, a bill creating the crime of cruelty to a working police horse, a bill removing the 30-day waiting period for importation of alcoholic beverages, and more. The bills signed Wednesday are summarized here.

  • HB 18-1010 – “Concerning Youth Committed to the Department of Human Services, and, in Connection Therewith, Requiring the Department to Report Certain Data and Adding Members to the Youth Restraint and Seclusion Working Group,” by Reps. Pete Lee & James Wilson and Sen. Don Coram. The bill requires the Department of Human Services to annually collect recidivism data and calculate the recidivism rates and educational outcomes for juveniles committed to the custody of the department who complete their parole sentences and discharge from department supervision.
  • HB 18-1024 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Racing from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill creates Title 44 and moves statutes related to the regulation of racing from title 12 to the new title.
  • HB 18-1026 – “Concerning the Nonsubstantive Relocation of the Law Creating the Liquor Enforcement Division and State Licensing Authority Cash Fund from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sens. John Cooke & Bob Gardner. The bill creates Title 44 and moves statutes creating the liquor enforcement division and state licensing authority cash fund from title 24 to the new title.
  • HB 18-1041– “Concerning Adding Certified Police Working Horses to the Crime of Cruelty to a Service Animal or a Certified Police Working Dog,” by Rep. Marc Catlin and Sen. Don Coram. The bill adds a definition for “certified police working horse” to statute and adds certified police working horses to the crime of cruelty to a service animal or a certified police working dog.
  • HB 18-1048 – “Concerning the Expenditure of Money from the Hesperus Account by the Board of Trustees of Fort Lewis College,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill eliminates the requirement that spending from the Fort Lewis College Hesperus account is subject to an appropriation by the general assembly.
  • HB 18-1105 – “Concerning the Unlicensed Sale of Vehicles,” by Reps. Larry Liston & Jovan Melton and Sen. Jack Tate. The bill clarifies that money received as fines for certain violations may be deposited in the auto dealers license fund.
  • SB 18-025 – “Concerning Modernization of Election Procedures for the Urban Drainage and Flood Control District to Conform with the Current Requirements of State Law,” by Sen. Kevin Priola and Rep. James Coleman. The bill makes several changes to statutory provisions related to flood control district elections.
  • SB 18-050 – “Concerning Including Staff of Free-standing Emergency Facilities as Part of Colorado’s Safe Haven Laws,” by Sen. Jim Smallwood and Reps. James Coleman & Marc Catlin. The bill expands Colorado’s safe haven laws to include staff members of community clinic emergency centers as persons allowed to take temporary physical custody of infants 72 hours old or younger when the infant is voluntarily surrendered by its parent or parents.
  • SB 18-124 – “Concerning the Removal of the Thirty-day Waiting Period Related to the Sale of Imported Alcohol Beverages,” by Sen. Owen Hill and Rep. Dan Pabon. Current law requires a manufacturer or importer of imported alcohol beverages to file a statement and notice of intent to import with the state licensing authority at least 30 days before the import or sale of the imported alcohol beverages. The bill removes the 30-day waiting period requirement.
  • SB 18-148 – “Concerning the Continuation of Certain Benefits Through the ‘State Employee Group Benefits Act’ for Dependents of a State Employee who Dies in a Work-related Death,” by Sens. Beth Martinez Humenik & Dominick Moreno and Reps. Polly Lawrence & Tony Exum. The bill specifies that dependents of an employee who dies in a work-related death are automatically qualified for the continuation of dental or medical benefits through the act for 12 months from the end of the month in which the work-related death occurred, so long as the dependents had dental or medical benefits pursuant to the act at the time of the employee’s work-related death.

For all of the governor’s 2018 legislative actions, click here.

Governor Signs Bill to Correct Typographical Error

On Monday, March 5, 2018, the governor signed one bill into law. To date, he has signed 30 bills this legislative session. The bill signed Monday, SB 18-105, made a correction to last session’s bill, HB 17-1367. The summary is as follows:

  • SB 18-105 – “Concerning Clarifying Changes to Provisions that were Contained in House Bill 17-1367,” by Sen. Randy Baumgardner and Rep. Dan Pabon. House Bill 17-1367 required that a state, local, or municipal agency only employ or use the results of marijuana tests if the tests were conducted by an analytical laboratory that was both certified by the state marijuana enforcement division (MED) and accredited pursuant to the International Organization for Standardization/International Electrotechnical Commission standard (international standard). The requirement that an analytical laboratory be both certified by the MED and accredited pursuant to the international standard was an inadvertent error. The intent was that an analytical laboratory could either be certified by the MED or accredited pursuant to the international standard. The bill changes the ‘and’ to an ‘or’ in order to effectuate the original intent.

For all of the governor’s 2018 legislative decisions, click here.

Bills Signed Allowing Alcohol to be Auctioned at Special Events, Amending Employer Ability to Access FPPA Plans, and More

On Thursday, March 1, 2018, Governor Hickenlooper signed 26 bills into law. To date, he has signed 29 bills this legislative session. Many of the bills signed Thursday were supplemental appropriations bills or bills moving statutes from Title 12, C.R.S., but among the rest were bills allowing the auctioning of alcohol in sealed containers at special events, amending an employer’s ability to access Fire and Police Pension Association plans, and adopting the Enhanced Nurse Licensure Compact. Summaries of the bills signed Thursday are available here.

  • HB 18-1022 – “Concerning a Requirement that the Department of Revenue Issue a Request for Information for an Electronic Sales and Use Tax Simplification System,” by Reps. Lang Sias & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the department of revenue to issue a request for information for an electronic sales and use tax simplification system that the state or any local government that levies a sales or use tax, including a home rule municipality and county, could choose to use that would provide administrative simplification to the state and local sales and use tax system.
  • HB 18-1031 – “Concerning Employer Entry into the Fire and Police Pension Association Defined Benefit System,” by Reps. Jovan Melton & Kim Ransom and Sens. John Cooke & Matt Jones. The bill allows an employer that provides a money purchase plan to apply to the board, with a single application, to cover some or all of the existing members of its money purchase plan in the defined benefit system. Current law requires the employer to apply to the board separately for each plan.
  • HB 18-1075 – “Concerning the Enactment of Colorado Revised Statutes 2017 as the Positive and Statutory Law of the State of Colorado,” by Reps. Pete Lee & Leslie Herod and Sens. Daniel Kagan & John Cooke. This bill enacts the softbound volumes of Colorado Revised Statutes 2017, including the corrected replacement volume consisting of titles 42 and 43, as the positive and statutory law of the state of Colorado and establishes the effective date of said publication.
  • HB 18-1079 – “Concerning a Requirement that the Works Allocation Committee Prepare Annual Recommendations for the Use of the Colorado Long-term Works Reserve,” by Rep. Susan Beckman and Sen. Larry Crowder. The bill requires the works allocation committee to annually submit to the executive director of the Department of Human Services, the governor, and the joint budget committee recommendations for the use of the money in the Colorado long-term works reserve for the upcoming state fiscal year.
  • HB 18-1144 – “Concerning Certain Publishing Requirements for the Department of Revenue’s ‘Disclosure of Average Taxes Paid’ Table,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill updates language regarding mailing of tax tables, and refers in general to the department’s website and also requires the department to provide the table on the software platform that the department makes available to taxpayers to file individual income taxes rather than refer to the “NetFile” link.
  • HB 18-1159 – “Concerning a Supplemental Appropriation to the Department of Education,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Education.
  • HB 18-1160 – “Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the offices of the governor, lieutenant governor, and state planning and budgeting.
  • HB 18-1161 – “Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Health Care Policy and Financing.
  • HB 18-1162 – “Concerning a Supplemental Appropriation to the Department of Human Services,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Human Services.
  • HB 18-1163 – “Concerning a Supplemental Appropriation to the Judicial Department,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Judicial Department.
  • HB 18-1164 – “Concerning a Supplemental Appropriation to the Department of Personnel,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Personnel.
  • HB 18-1165 – “Concerning a Supplemental Appropriation to the Department of Public Safety,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Public Safety.
  • HB 18-1166 – “Concerning a Supplemental Appropriation to the Department of Regulatory Agencies,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Regulatory Agencies.
  • HB 18-1167 – “Concerning a Supplemental Appropriation to the Department of Revenue,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Revenue.
  • HB 18-1168 – “Concerning a Supplemental Appropriation to the Department of State,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of State.
  • HB 18-1169 – “Concerning a Supplemental Appropriation to the Department of the Treasury,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of the Treasury.
  • HB 18-1170 – “Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes supplemental appropriations for capital construction projects.
  • HB 18-1173 – “Concerning a Supplemental Transfer of Money from the General Fund to the Information Technology Capital Account of the Capital Construction Fund for the 2017-18 State Fiscal Year,” by Rep. Bob Rankin and Sen. Kent Lambert. For the 2017-18 fiscal year, the bill transfers $2,888,529 from the general fund to the information technology capital account of the capital construction fund.
  • SB 18-019 – “Concerning an Expansion of the Duration for which the Colorado Water Resources and Power Development Authority may Make a Loan Under the Authority’s Revolving Loan Programs,” by Sens. Kerry Donovan & Don Coram and Reps. Chris Hansen & Jeni James Arndt. Current law limits the duration of any water pollution control loan to 20 years; this bill removes the 20-year limitation.
  • SB 18-027 – “Concerning the Enactment of the ‘Enhanced Nurse Licensure Compact’, and, in Connection Therewith, Making an Appropriation,” by Sens. Jim Smallwood & Nancy Todd and Reps. Tracy Kraft-Tharp & Hugh McKean. The bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.
  • SB 18-030 – “Concerning the Nonsubstantive Relocation of Laws Related to Self-Propelled Vehicles from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Chris Holbert & Daniel Kagan and Reps. Mike Foote & Yeulin Willett. The bill creates Title 44 in the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-032 – “Concerning the Nonsubstantive Relocation of Laws from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Reps. Mike Foote & Leslie Herod. The bill relocates articles 26 and 26.1 from Title 12 to a new part in Title 18, and relocates the Uniform Unsworn Declarations Act to a new article in Title 13.
  • SB 18-034 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Gaming from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. John Cooke & Lucia Guzman and Reps. Cole Wist & Pete Lee. The bill creates a new Title 44 and relocates certain statutory sections to Title 44.
  • SB 18-035 – “Concerning the Nonsubstantive Relocation of Laws Related to Gambling Payment Intercept from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Rep. Cole Wist. The bill creates Title 44 of the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-041 – “Concerning the Ability of Operators of Sand and Gravel Mines to Use Water Incidental to Sand and Gravel Mining Operations to Mitigate the Impacts of Mining,” by Sens. Don Coram & Randy Baumgartner and Reps. Lori Saine & Jeni James Arndt. The bill specifies that the groundwater replacement plan or the plan of substitute supply and the permit may authorize uses of water incidental to open mining for sand and gravel, including specifically the mitigation of impacts from mining and dewatering.
  • SB 18-054 – “Concerning a Limitation on the Amount of an Increase in Fees Assessed Against Assisted Living Residences by the Department of Public Health and Environment,” by Sen. Larry Crowder and Rep. Larry Liston. Current law requires the State Board of Health to establish a schedule of fees for health facilities, including assisted living facilities. The bill applies an inflation rate limitation to the fees for assisted living facilities.
  • SB 18-067 – “Concerning the Ability of Certain Organizations Conducting a Special Event to Auction Alcohol Beverages in Sealed Containers for Fundraising Purposes under Specified Circumstances,” by Sens. Rachel Zenzinger & Kevin Priola and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill specifically allows certain organizations to bring onto and remove from the premises where an event will be held, whether licensed or unlicensed, alcohol beverages in sealed containers that were donated to or otherwise lawfully obtained by the organization and will be used for an auction for fundraising purposes as long as the alcohol beverages remain in sealed containers at all times and the licensee does not realize any financial gain related to the alcohol beverage auction.

For a list of the governor’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment, and Court Has Jurisdiction to Review District Court’s Denial

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, January 25, 2018.

Crim. P. 32(d)—Withdrawal of Plea—Deferred Judgment —Immigration—Deportation—Ineffective Assistance of Counsel.

Defendant pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea to the possession count, arguing that his defense and immigration counsel were ineffective for failing to advise him of the clear immigration consequences of the plea. After an evidentiary hearing, the district court denied the motion.

The People filed a motion to dismiss the appeal, arguing that there was no jurisdiction to review the order denying the Crim. P. 32(d) motion. They contended that the order was not final and appealable because defendant’s motion challenged a deferred judgment (a non-final judgment) that had not been revoked when the court entered the order or when defendant filed the notice of appeal. Under Crim. P. 32(d), a defendant may challenge a guilty plea involving a deferred judgment that is still in effect. The court of appeals concluded it could review the district court’s order denying the Crim. P. 32(d) motion.

Defendant argued on appeal that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. The record supports the district court’s finding that defendant’s counsel advised him on multiple occasions that a guilty plea to a drug felony would result in deportation. The court also rejected defendant’s argument that counsel should have advised him that he would be held in custody during the removal proceeding, because counsel was not required to give this advice. Therefore, counsel’s performance was not deficient, and the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Actual Person Needs to be At Risk to Satisfy Reckless Manslaughter and Assault Elements

The Colorado Supreme Court issued its opinion in People v. Griego on Monday, January 22, 2018.

Attempted Recklessness—Attempted Reckless Manslaughter—Equal Protection.

In this case, the supreme court considered whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place “another person” at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or whether “another person” can refer to the public at large. The court concluded that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Here, because the People presented no evidence that defendant’s actions put any particular person at risk, the court affirmed the court of appeals’ judgment reversing his convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Non-Law Enforcement Evidence Need Not Be Admitted in Affidavit Form in Revocation Hearing

The Colorado Supreme Court issued its opinion in Department of Revenue v. Rowland on Monday, January 8, 2018.

Evidence—Revocation of License—Evidence of Sobriety Tests.

In this case, the Colorado Supreme Court considered whether C.R.S. § 42-2-126(8)(c) requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings. C.R.S. § 42-2-126(8)(c) provides that, in driver’s license revocation proceedings, a hearing officer “may consider evidence contained in affidavits from persons other than the respondent,” so long as those affidavits meet certain requirements, including the requirement that the affidavits be sworn to under penalty of perjury. The supreme court held that C.R.S. § 42-2-126(8)(c) does not require all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings.

Specifically, the court held that the blood alcohol content test report in this case did not have to meet the affidavit requirements of C.R.S. § 42-2-126(8)(c) for the hearing officer to consider its contents. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Restitution Statute Does Not Require Prosecution’s Requested Specificity for Setoff

The Colorado Court of Appeals issued its opinion in People v. Stanley on Thursday, September 7, 2017.

Traffic Accident—Unapportioned Settlement—Crime Victim Compensation Program—Restitution—Setoff—Burden of Proof.

Stanley’s automobile insurer, Geico Indemnity Co. (Geico), entered into a “Release in Full of All Claims” (release) with the victim and her husband. Under the settlement, Geico paid the victim $25,000 for all claims related to and stemming from the accident in exchange for a full and final release of all claims against Stanley and Geico. Thereafter, Stanley pleaded guilty to felony vehicular assault, driving under the influence, and careless driving. The prosecution filed a motion to impose restitution and attached a report from the Crime Victim Compensation Program (CVCP). It showed that the CVCP had paid the victim $30,000, the maximum amount allowable by statute, for pecuniary losses proximately caused by Stanley’s criminal conduct. The Court awarded Stanley a $25,000 setoff against restitution for the amount paid by Geico, and ordered him to pay the $5,000 net amount.

On appeal, the prosecution argued that Stanley should not receive a setoff for the settlement funds because the release was an unapportioned settlement that did not “earmark” the proceeds for the same expenses compensated by the CVCP, leaving open the possibility that the victim used the proceeds for losses not compensated by the CVCP. When a victim receives compensation from a civil settlement against a defendant, the defendant may request a setoff against restitution “to the extent of any money actually paid to the victim for the same damages.” For purposes of a setoff, however, the court cannot allocate proceeds from an unapportioned civil settlement agreement without “specific evidence that the settlement included particular categories of loss,” because in civil cases victims may recover both pecuniary losses covered by the restitution statute and other damages specifically excluded under the restitution statute. Because the information needed to determine whether a victim has been fully compensated or has received a double recovery is known only by the victim, once a defendant has shown that a civil settlement includes the same categories of losses or expenses as compensated by the CVCP and awarded as restitution, the defendant has met his burden of going forward, and the prosecution may then rebut the inference that a double recovery has occurred. Here, Stanley met his burden of proving a setoff, but the victim may have used some or all of the settlement proceeds for losses not compensated by the CVCP.

The order was affirmed, and the case was remanded to permit the prosecution to show that the victim did not receive a double recovery from the settlement proceeds and the CVCP payment.

Summary provided courtesy of Colorado Lawyer.