Criminal Law And Procedure - Digest of Bills

Digest of Bills - 1997

CRIMINAL LAW AND PROCEDURE

S.B. 97-34 Death penalty - testimony of victim's family. Clarifies that members of the family of a homicide victim have the right to testify at the penalty phase of a death penalty case. Specifies that the act is applicable to all sentencing hearings conducted on or after the effective date.

APPROVED by Governor March 21, 1997
EFFECTIVE March 21, 1997

S.B. 97-84 Victim rights - sexually violent predators - notifications while on probation - miscellaneous changes - appropriation. On and after January 1, 1999, upon request from either the district attorney or the probation department, requires a court to determine whether a person is a sexually violent predator. Defines sexually violent predator as a person convicted of specified crimes against certain victims who, according to a risk assessment screening instrument, is more likely to commit additional sexually violent crimes. If sentenced as a sexually violent predator, requires the person to register with local law enforcement agencies quarterly rather than annually. Excludes juveniles from the additional registration requirements.

Expands the sex offender treatment board to 14 members including 2 additional mental health professionals and one clinical polygraph examiner. Directs the division of criminal justice in consultation with the sex offender treatment board to develop a risk assessment instrument by January 1, 1999, to assist the sentencing court in determining whether an offender is a sexually violent predator.

Expands the definition of critical stages of the criminal justice process to which victims are entitled to notice to include certain probation hearings and changes in probationary status. Clarifies that a victim must be informed of the process for enforcing compliance with the victim's rights requirements. Grants victims the right to be notified by the probation department of certain information concerning persons charged or convicted of crimes against the victim. Permits the probation department to apply to the victims and witnesses assistance and law enforcement board for grants to implement victim's rights.

Clarifies that grants from the victims assistance and law enforcement fund to criminal justice agencies and victim assistance organizations are to provide statewide or multi-jurisdictional assistance to victims. For district victims and witnesses assistance and law enforcement boards, changes the body to whom reports are made and that resolves conflicts of interest from the legislative audit committee to the victims compensation and assistance coordinating committee.

Expands the definition of victim for purposes of application for crime victim compensation to include persons who are victims of crime or victims of terrorism in another country where there is no other crime victim compensation. Adds to the list of compensable crimes careless driving resulting in death and hit and run when the accident results in death. Adds careless driving resulting in death, hit and run when the accident results in death, stalking, ethnic intimidation, and being an accessory to any of the specified crimes to the list of crimes to which statutory victim's rights apply.

Makes a technical correction in the definition of victim for purposes of restitution.

Appropriates $30,000 from the sex offender surcharge fund to pay for the development of the risk assessment instrument. Appropriates $114,952 and 3.3 FTE from the victim assistance and law enforcement fund to pay for the victim notifications.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

S.B. 97-96 Concealed handguns - permits - criteria - procedure - appropriation. Authorization for permits. Specifies that the issuance of permits to carry concealed handguns is a matter of statewide concern, and assigns to county sheriffs and the police chiefs responsibility for issuing the permits.

Qualifications to receive permits. Specifies the qualifications for receiving a permit, including:

Residency;
21 years of age or older;
Criminal history;
Whether the applicant is the subject of a restraining order or an emergency protection order;
Use of controlled substances and alcoholic beverages;
Mental health and competency;
Whether the applicant has failed to pay child support;
Competence with a handgun;
Whether the sheriff or police chief has grounds to believe the applicant would be dangerous to himself or herself or to others.

Use of permits. Specifies the contents of the permit and how the permit may be used. Identifies failure to carry and produce a permit upon demand as a class 2 misdemeanor that shall be dismissed if the permittee produces the permit in court.

Submittal of applications. Specifies the documents, including an application, the permit fee, evidence of competence with a handgun, and a photograph, that an applicant must submit to the sheriff of the county or police chief of the city or city and county in which the applicant resides. Provides that the application shall be a statewide standardized form developed by the attorney general's office, and limits the contents of the application. Instructs the sheriff or police chief to witness the applicant's signature on the permit application, verify the applicant's identity, take two full sets of the applicant's fingerprints, and conduct a background investigation on the applicant to determine whether to grant the permit. Specifies the procedures for denying a permit, including judicial review of the denial. Instructs the sheriff or police chief to notify the CBI of persons receiving permits. Directs the sheriff or police chief to establish the amount of the new and renewal permit fees based on the costs of issuing and renewing the permits, and sets caps on the fee amounts. Allows the sheriff or police chief to release the names of persons to whom he or she issues permits.

Duties of CBI. Requires the CBI to send one set of fingerprints to the federal bureau of investigation for processing and process the other set of fingerprints. Requires the CBI to maintain a listing of permit holders that is available only to law enforcement agencies.

Duties of Attorney General's Office. Requires the attorney general's office to prepare a written examination concerning lawful use of deadly physical force. Specifies that the test shall be designed so that a person with a basic understanding of the law may achieve a passing score. Requires the attorney general's office to prepare the permit application form.

Emergency permits. Establishes procedures by which sheriffs or police chiefs may issue a temporary emergency permit to any person who is in immediate danger.

Maintaining and renewing permits. Specifies conditions under which a permit may become invalid or may be suspended. Establishes procedures for renewing a permit, including the documents and fee to be filed and the sheriff's or police chief's duties.

Exemptions. Exempts peace officers, level I and level Ia, and comparable federal officers and peace officers, level II, while on duty, from the requirement to obtain a permit.

Carrying restrictions. Specifies that a permit does not authorize a permittee to carry a concealed handgun in areas where carrying is prohibited by federal law. Specifies that a local government may prohibit the carrying of handguns, open or concealed, in any discrete area within its jurisdiction; except that it is not an offense under the local ordinance if the person carrying the handgun has a permit.

Immunity. Grants civil immunity to the CBI, local law enforcement agencies, and employees of said entities for the good faith implementation of the act. Grants civil immunity for damages arising from issuance or denial of a permit to persons who may provide information concerning an applicant.

Existing permits. Provides that permits issued prior to July 1, 1997, shall expire on June 30, 1998. Specifies procedures for renewing the permits.

Appropriation. Appropriates $528,380 and 2.0 FTE to the department of public safety for the implementation of this act.

VETOED by Governor May 16, 1997

H.B. 97-1009 Grand jury reports - release. In any case where a grand jury does not return an indictment and the prosecuting attorney does not file charges, authorizes the grand jury to prepare a report of its findings if it determines a report would be in the public interest. Specifies that preparation of the report must be approved by at least the same number of jurors as would be required to return an indictment. Requires the grand jury to certify that release of the report is in the public interest.

Requires the prosecuting attorney to notify any person or business named in the report and give such person or business an opportunity to review the report and prepare a written response. Instructs the prosecuting attorney to submit the report, with the certification and any responses, to the court. Lists the criteria the court applies in determining whether to release the report. Allows release of response only if the respondent agrees in writing.

APPROVED by Governor April 8, 1997
EFFECTIVE October 1, 1997

H.B. 97-1013 Controlled substances - emergency prescriptions for hospice patients. Authorizes a pharmacist to dispense a prescription without written authorization from the physician in emergency situations involving hospice patients as long as such dispensing is consistent with federal law on emergency prescriptions. Allows for the transmission of the written order from the physician to the pharmacist by the methods and within the time frames in federal law.

APPROVED by Governor March 20, 1997
EFFECTIVE March 20, 1997

H.B. 97-1060 Telecommunications crime - cloning equipment - exemptions - appropriation. Broadens telecommunications crime by making it a class 4 felony to knowingly use cloning equipment to intercept signals or create a cloned cellular phone or to aid, abet, advise, or encourage anyone to do the same. Exempts certain telecommunications service employees, law enforcement officers, public officials, and employees of state and federal agencies from prosecution for telecommunications crime if committed in the course of providing telecommunications services or law enforcement. Clarifies that prosecution for telecommunications crime does not preclude civil liability for the same actions.

Adds telecommunications crime to the list of crimes that may constitute racketeering activity.

For fiscal year 1997-98, appropriates $73,636 to the corrections expansion reserve fund for implementation of the act. For fiscal year 1998-99, appropriates $22,458 to the department of corrections for implementation of the act. For fiscal year 1999-2000, appropriates $22,458 to the department of corrections for implementation of the act. For fiscal year 2000-2001, appropriates $11,229 to the department of corrections for implementation of the act.

APPROVED by Governor May 27, 1997
EFFECTIVE July 1, 1997

H.B. 97-1077 Criminal laws - substantive changes - appropriation. Deletes harassment by stalking from the list of extraordinary risk misdemeanors. Adds certain sexual offenses to the list of crimes against at-risk adults and at-risk juveniles. Clarifies the statute on complicity by specifying that encouraging a person to commit a crime constitutes complicity. Adds physical actions that would cause a person to be in fear to the definition of "credible threat" in the harassment by stalking statute.

Clarifies that a person providing alcoholic beverages to a minor or encouraging a minor to obtain alcoholic beverages may be prosecuted for contributing to the delinquency of a minor. Clarifies that only one of the types of identifying information provided to a law enforcement agency need be false to constitute the offense of false reporting to authorities. Specifies that the conditions applicable to persons placed on probation for domestic violence also apply to persons granted a deferred sentence.

Reduces the penalty for conviction as a special offender with regard to controlled substances. Clarifies that possession of 25 grams or more of a schedule II controlled substance is not a class 4 felony. Provides for enhanced sentencing for manufacturing, dispensing, selling, distributing, possessing, or possessing with intent to manufacture, dispense, sell, or distribute any schedule I or II controlled substance, based on the amount involved. Clarifies controlled substance special offender sentencing when the offense is committed on or near school grounds or public housing developments.

Conforms the elements of "heat of passion" assault in the first and second degree to those of "heat of passion" second degree murder. Repeals the requirement that political cards, pamphlets, circulars, posters, dodgers, and advertisements relating to an election campaign include the name of a person responsible for such material.

Clarifies that any juvenile who has been convicted of a felony and is being sentenced as an adult and who is on probation or bond or under a deferred judgment for an offense that would have constituted a felony if committed by an adult is subject to aggravated sentencing.

Corrects the name of one of the offenses for which sex-offender registration is required. Amends the definition of "render assistance" as an accessory to a crime to include harboring or concealing the victim or a witness to a crime and concealing, destroying, or altering testimonial evidence. Includes all sex offenses for which a defendant is required to register as a sex offender as crimes subject to the $1000 surcharge for victims and witnesses assistance. Eliminates all loitering provisions except for loitering on school grounds. Raises the maximum amount for class 2 misdemeanor theft and the minimum amount for class 4 felony theft from $400 to $500. Deletes theft from the list of violent felony offenses for which a defendant may not receive earned time while on parole.

For fiscal year 2000-01, transfers $478,634 to the capital construction fund and appropriates said amount to the corrections expansion reserve fund for implementation of the act. For fiscal year 2001-02, transfers $905,723 to the capital construction fund and appropriates said amount to the corrections expansion reserve fund and appropriates an additional $145,977 of general funds to the department of corrections for implementation of the act.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

H.B. 97-1084 Nursing care facility applicants - criminal background checks. Authorizes a nursing care facility or a person seeking employment at a nursing care facility to obtain the required criminal background check on the applicant through a private criminal background check company authorized to do business in the state of Colorado that is approved by the state board of nursing. Authorizes such a company to utilize fingerprints to ascertain information from the federal bureau of investigation. Requires the criminal background check, whether done by the Colorado bureau of investigation or a private company, to be conducted not more than 90 days prior to employment of the applicant.

Gives the state board of nursing the authority to approve private criminal background check companies for the purpose of conducting such background checks. In approving private criminal background check companies, identifies that approval shall be based upon the provision of lawfully available, accurate, and thorough information pertaining to criminal histories, including arrest and conviction records.

APPROVED by Governor March 31, 1997
EFFECTIVE March 31, 1997

H.B. 97-1088 Cigarette vending machines. In the criminal provision relating to the sale of cigarettes in vending machines, modifies restrictions on the location of such machines to allow the sale in establishments where the machine dispenses cigarettes through the operation of a device that enables an adult employee of the establishment to prevent the dispensing of cigarettes to minors.

APPROVED by Governor May 16, 1997
EFFECTIVE May 16, 1997

H.B. 97-1125 Graffiti - revocation of driver's license. Makes mandatory revocation of a driver's license one of the penalties for defacing property by graffiti. Broadens the elements of defacement of property to include any marring of the surface of the property using any substance or object. Specifies that the driver's license is revoked for 6 months for each conviction and that revocations run consecutively. Specifies that, if a person under 16 years of age has any convictions for defacing property, he or she shall not be eligible to receive a driver's license until the entire revocation period has elapsed, as measured from the person's 16th birthday. Clarifies that "conviction" includes adjudication as a juvenile delinquent for purposes of mandatory revocation of a driver's license for defacing property. Requires the court to notify the department of revenue of any conviction for defacement, and specifies when the revocation period begins. Exempts revocation of a license due to conviction for defacing property from the circumstances under which a person must file proof of financial responsibility.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

H.B. 97-1145 Criminal laws - miscellaneous procedural changes. Specifies that a restitution order constitutes a final judgment if it is entered against a person who pleads guilty pursuant to a deferred judgment, rather than being convicted. Specifies that the district attorney has the discretion to allow a crime victim or an immediate family member of the crime victim to view a presentence report. Clarifies that, for purposes of discovery, public nuisance actions constitute expedited proceedings under the Colorado rules of civil procedure. Clarifies that the state grand jury may investigate cases that the attorney general has authority to prosecute. Provides that commission of any felony, not just a class 1, 2, 3, or 4 felony, is grounds for bond revocation. Requires businesses that provide temporary nursing care services to obtain background checks on employees.

Requires a judge or magistrate to give notice to sex offenders regarding registration when such offenders are released without being placed on probation, sentenced to jail, or sentenced to the department of corrections. Includes persons who receive a deferred judgment or deferred sentence for a sex offense in the group of persons required to undergo sex offender treatment. Revises the procedure for revocation of conditional release from commitment for persons found guilty by reason of insanity. Specifies that only the chairman of a legislative committee, rather than any member of the committee, may administer an oath to a witness appearing before the committee.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

H.B. 97-1181 Animal cruelty - fund - penalties - appropriations. Creates a surcharge and imposes a mandatory minimum fine for certain persons convicted of animal cruelty. Authorizes the court to require persons convicted of any crime, the underlying factual basis of which has been found to include the knowing or intentional torture or torment of an animal which needlessly injures, mutilates, or kills an animal, to complete an anger management treatment program or other appropriate treatment program. Authorizes the court to order an evaluation prior to sentencing.

States that the provisions on the surcharge, mandatory minimum fines, and the anger management treatment programs do not apply to certain uses of animals, including the treatment of pack or draft animals by negligently overdriving, overloading, or overworking them, the treatment of livestock in farming or ranching, or to the treatment of animals involved in research, rodeos, hunting, or to activities involving wildlife and predator control.

Creates an animal cruelty prevention fund in the state treasury to pay for the care of abused animals and for court-ordered anger management treatment programs and counseling for indigent persons.

Authorizes the court to require juveniles who have been adjudicated a juvenile delinquent, the underlying factual basis of which has been found to include the knowing or intentional torture or torment of an animal which needlessly injures, mutilates, or kills an animal, to complete an anger management treatment program or other appropriate treatment program. Authorizes the court to order an evaluation prior to disposition. Defines "nonviolent misdemeanor" to exclude crimes involving animal cruelty.

Appropriates $33,176 out of the animal cruelty prevention fund to the judicial department for the implementation of this act. Appropriates $31,824 out of the animal cruelty prevention fund to the department of agriculture for the implementation of this act.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

H.B. 97-1186 Assault - inmates - causing contact with bodily fluids or hazardous materials - appropriation. Makes exposing an employee of a detention facility to bodily fluids or hazardous materials by an inmate a second degree assault. Requires a person bound over for trial, indicted for, or convicted of the offense to submit to a medical test for communicable diseases and to supply bodily fluids for such test. Requires the results of such test to be disclosed to any victim of the offense who requests such disclosure.

Makes a five-year statutory appropriation with an appropriation of $228,272 for fiscal year 1997-98 out of the capital construction fund to the corrections expansion reserve fund to implement this act.

APPROVED by Governor June 4, 1997
EFFECTIVE July 1, 1997

H.B. 97-1225 Death penalty - unitary review. Recognizes the necessity of establishing a unitary system of review for class 1 felony cases in which a death sentence is imposed. Establishes a single procedure for review in such cases. Specifies that the act applies to class 1 felony convictions for which the death penalty is imposed on or after the date that the Colorado supreme court adopts rules implementing the unitary review procedure.

Instructs the trial court to enter a stay of execution upon imposition of a death sentence, pending further order of the Colorado supreme court. Requires the trial court to hold a hearing to advise the defendant and the prosecution about postconviction review and direct appeal processes, including appointment of new postconviction counsel and direct appeal counsel if necessary. Establishes procedures and criteria for appointment of new postconviction counsel.

Specifies the contents of and issues that may be raised in a motion for postconviction review. Provides that, if the defendant alleges ineffective assistance of counsel, he or she waives the attorney-client privilege with respect to information related to the ineffective assistance claim. Prohibits either party from bringing a motion for reconsideration or rehearing of the trial court's ruling on the motion for postconviction review.

Establishes the procedure for filing a notice of appeal with the Colorado supreme court. Specifies that, if the defendant is seeking review of direct appeal issues and postconviction review appeal issues, the appeal must consolidate and resolve all issues at one proceeding. Identifies the appeals that the prosecution may bring.

Instructs the Colorado supreme court to adopt rules, on or before January 1, 1998, establishing procedures, including time limits, for postconviction review and the unitary appeal process. Specifies particular issues to be addressed by rule. Requires the rules to ensure that final appellate briefing in the unitary review process is completed within 2 years after the sentence of death is imposed, and prohibits any extensions of time beyond the 2-year period. Urges the Colorado supreme court to expedite consideration of death sentence appeals.

Prohibits the defendant from bringing a motion for postconviction review after the passage of the stated filing deadlines, except under specified circumstances. Specifies that the provisions of the act are severable.

APPROVED by Governor June 4, 1997
EFFECTIVE June 4, 1997

H.B. 97-1241 Pretrial release - personal recognizance bond - pretrial services program report. Unless the district attorney consents, prohibits release of an adult on personal recognizance if the person's criminal record indicates he or she failed to appear on bond for any felony or class 1 misdemeanor charge in the preceding 5 years. Requires each local pretrial services program to annually report on the recommendations made by the program and the number of defendants under pretrial supervision who failed to appear on bond. Instructs the judicial department to submit to the general assembly an annual compilation of the reports.

APPROVED by Governor April 16, 1997
EFFECTIVE August 6, 1997
NOTE: This act was passed without a safety clause. It shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution; except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.

H.B. 97-1268 Privacy of electronic communications - cordless telephones. Conforms the definition of "electronic communications" to the federal "Electronic Communications Privacy Act" by eliminating the exception for the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

Makes wiretapping involving a cordless telephone a class 1 misdemeanor.

States that it is not unlawful for a district attorney or law enforcement officer to listen to a recording or to read a transcription of an electronic communication involving a cordless telephone when the district attorney or officer comes into possession of such materials from a third party. Requires the district attorney or law enforcement officer to have a reasonable basis for believing that the recording or transcription is reliable and to have probable cause to believe a crime was committed in order to use the materials as evidence in a prosecution for a crime other than wiretapping or eavesdropping. States that nothing in this provision shall preclude a district attorney from prosecuting a person for a violation of the criminal laws on wiretapping or eavesdropping.

APPROVED by Governor April 30, 1997
EFFECTIVE August 6, 1997
NOTE: This act was passed without a safety clause. It shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution; except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.