Criminal Law And Procedure - Digest of Bills

Digest of Bills - 2005

CRIMINAL LAW AND PROCEDURE

S.B. 05-34 Alcohol-without-liquid device - prohibition - penalty - alcohol beverage license suspension - exemptions - required notice. Prohibits the possession, sale, purchase, and use of certain devices that create alcohol vapor from a mixture of alcohol beverage and oxygen ("AWOL device"). Makes it a class 2 misdemeanor to violate the prohibition. Authorizes the state or a local alcohol beverage licensing authority to suspend or revoke the license of a licensee that violates the prohibition.

Exempts certain hospitals, state institutions, private colleges and universities, pharmaceutical companies, and biotechnology companies from the prohibition. Requires an exempt entity that possesses or intends to acquire an AWOL device to file a notice with the department of public health and environment.

APPROVED by Governor April 27, 2005
EFFECTIVE July 1, 2005

S.B. 05-68 Third-degree assault and reckless endangerment - enhanced sentencing - mental health professional victim. Allows the court to sentence a defendant to a sentence of up to twice the maximum of the sentencing range if the defendant is convicted of third-degree assault or reckless endangerment and the victim is a mental health professional employed by the department of human services.

APPROVED by Governor June 2, 2005
EFFECTIVE July 1, 2005

S.B. 05-137 Identity theft - security freeze - secretary of state removal of personal identify information in public documents - theft of personal identifying information from a trash receptacle. Permits a consumer to put a security freeze on his or her credit report. Allows the consumer to temporarily lift the security freeze to allow a particular entity access to the credit report for the purpose of issuing or extending credit to the consumer. Requires a consumer reporting agency to maintain the security freeze until the consumer specifically requests its removal. Allows a consumer reporting agency to charge a fee for temporarily or permanently lifting the security freeze. Requires that a consumer be notified of the right to place a security freeze on his or her credit report each time the consumer receives a summary of the rights relating to credit reports. Allows a consumer to bring a private civil right of action or arbitration against a consumer reporting agency that releases credit information in violation of a security freeze.

Permits the secretary of state to remove personal identifying information from publicly accessible documents maintained by the secretary of state.

Makes theft of personal identifying information, with the intent to defraud, from a trash receptacle a class 1 misdemeanor if the person unlawfully enters the trash receptacle.

APPROVED by Governor June 1, 2005
PORTIONS EFFECTIVE June 1, 2005
PORTIONS EFFECTIVE August 8, 2005
PORTIONS EFFECTIVE July 1, 2006
NOTE: Portions of this act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest. For additional information on the effective date of various provisions of this act see section 7 of Senate Bill 05-137.

S.B. 05-138 Procedural criminal statutes - trial when bail revoked or increased - automatic privilege waiver for ineffective assistance of counsel claim - closed-circuit testimony for child under 12 or developmentally disabled person - trial exceptions for admissibility of prior sexual conduct - place of jail and trial for restraining order violation - place of trial for bail bond violation - petty offense and municipal trial jury request timing. Repeals the requirement that a person whose bail is revoked or increased based upon the commission of a new felony be tried within 90 days after issuance of the order revoking or increasing bail or within 6 months after defendant's arraignment, whichever is earlier.

Clarifies that, when a defendant makes an ineffective assistance of counsel claim, the defendant automatically waives confidentiality related to the issues in the ineffective assistance of counsel claim. Upon request of the prosecution, requires the defendant or new counsel to allow the prosecution to inspect materials that the ineffective counsel or expert released to the defendant or new counsel.

Allows the court under certain circumstances to order the testimony of a child under 12 years of age or a developmentally disabled person to be taken in a room other than the courtroom and transmitted via closed circuit to the courtroom.

States that evidence of a victim's past sexual conduct is only admissible at trial. In a motion to offer evidence of a victim's past sexual conduct, requires the court to rule on the motion without testimony if the prosecution stipulates to the facts contained in the offer of proof. Permits, rather than requires, questioning of the victim at a hearing on a motion to offer evidence of a victim's past sexual conduct. Seals all motions, documents, records, recordings, and transcripts related to a motion to offer evidence of a victim's past sexual conduct unless the court rules the evidence is admissible and the case proceeds to trial.

Allows law enforcement to take a person arrested for violation of a restraining order to jail in the county where the restraining order was issued. Permits a charge of violation of a restraining order to be tried either in the county where the violation occurred or in the county where the restraining order was issued.

Allows a case involving violation of bail bond conditions to be tried either in the county where the violation occurred or in the county where the bond was issued. In petty offense cases and municipal criminal trials, gives the defendant 20 days after entry of a plea to make a jury request in writing.

APPROVED by Governor April 29, 2005
PORTIONS EFFECTIVE April 29, 2005
PORTIONS EFFECTIVE July 28, 2005

H.B. 05-1014 Substantive criminal changes - drug lab restitution - credible threats made towards someone at a school - bias-motivated crimes - addition to schedule I narcotics. For purposes of the definition of restitution, adds costs incurred as a result of a drug lab clean-up. For purposes of the definition of falsely completing a written instrument in the fraud statutes, removes language that makes it a question of law as to whether information used in completing a written instrument is material. Makes it a class 1 misdemeanor to make a credible threat to cause bodily injury with a deadly weapon or death to a person the actor believes to be a student, school official, or employee of an education institution or an invitee on the premises of an educational institution. Changes the crime of ethnic intimidation to bias-motivated crime by adding physical or mental disability and sexual orientation to the classes of victims against which such a crime may be committed. Effective July 1, 2006, adds 2 hallucinogenic substances to the list of schedule-I narcotics.

APPROVED by Governor June 9, 2005
PORTIONS EFFECTIVE July 1, 2005
PORTIONS EFFECTIVE July 1, 2006

H.B. 05-1029 Second degree contraband offenses - electronic communication devices. Adds portable electronic communication devices to the list of items that are contraband for the purposes of the crime of introducing contraband in the second degree.

APPROVED by Governor May 27, 2005
EFFECTIVE July 1, 2005

H.B. 05-1035 Sex offender registry - additional public access - website posting. Eliminates the jurisdictional and "need-to-know" restrictions that limit the Colorado bureau of investigation's and local law enforcement agencies' ability to release sex offender information to a requesting person. Allows a person to request a copy of the sex offender registry from the Colorado bureau of investigation. Gives a local law enforcement agency discretion whether to release information regarding a person registered on the sex offender registry to a person not residing in the local law enforcement agency's jurisdiction. Permits a local law enforcement agency to post on its website a list of the following persons on its registration list:

● Adults convicted of felonies requiring registration;

● Adults convicted of second or subsequent offenses of certain misdemeanors involving unlawful sexual behavior;

● Juveniles adjudicated for two or more offenses involving unlawful sexual behavior or a crime of violence; and

● Juveniles who fail to register as sex offenders and are required to register as the result of an adjudication of offenses that would have been felonies if committed by an adult.

Allows the Colorado bureau of investigation to post a list of all persons on the sex offender registry who are required to register as the result of a conviction for a felony.

APPROVED by Governor May 27, 2005
EFFECTIVE May 27, 2005

H.B. 05-1055 Restitution - money advanced by governmental agency for service animal. Expands the definition of "restitution" in the context of criminal sentencing to include money advanced by a governmental agency for a service animal. Defines the term "money advanced by a governmental agency for a service animal" to include veterinary costs, disposal costs, and costs to train a replacement for a service animal that was harmed while aiding in official duties. Defines the term "service animal" to mean any animal that is used to aid the performance of official duties by law enforcement, fire, or search and rescue personnel.

APPROVED by Governor April 7, 2005
EFFECTIVE July 1, 2005

H.B. 05-1078 Colorado integrated criminal justice information system - executive board - composition - chief information officer - designation. Modifies the governing structure for the Colorado integrated criminal justice information system ("CICJIS") by replacing the CICJIS program task force with an executive board. Specifies the composition of the executive board. Changes the title of "chief officer" of the task force to "chief information officer" of the executive board. Modifies the method by which the chief information officer is designated. Recognizes the validity of electronic signatures used in CICJIS.

APPROVED by Governor March 25, 2005
EFFECTIVE March 25, 2005

H.B. 05-1109 Sentencing - juveniles convicted as adults - legislative study - fund created - repeal. Creates a legislative oversight committee ("committee") to study and develop legislative proposals related to charging juveniles as adults and the subsequent treatment of juveniles in the adult criminal justice system. Specifies the appointment of 8 legislative members to the committee by July 1, 2005. Requires the committee to report the results of the study to the judiciary committees of the senate and the house of representatives during the 2006 regular legislative session. Specifies that the committee and any legislation introduced by members of the committee are not subject to the legislative rules pertaining to interim committees. Specifies that the members of the committee shall serve without compensation, but may receive reimbursement for expenses to the extent moneys are available from gifts, grants, or donations.

Creates a 24-member task force on juveniles in the adult criminal justice system ("task force"). Specifies the appointment of the members by July 15, 2005. Specifies the duties of the task force, including reporting monthly to the committee and submitting to the committee a report of the results of the study on or before March 1, 2006. Specifies that members of the task force shall serve without compensation.

Specifies the issues that the committee and the task force will address pertaining to charging juveniles as adults and the subsequent treatment of juveniles in the adult criminal justice system. Authorizes the director of research of the legislative council to accept contributions, grants, services, and in-kind donations for the costs associated with the duties of the committee and the task force. Creates the juvenile offender sentencing study fund ("fund") for any moneys received. Authorizes the legislative staff and staff of represented executive agencies to provide assistance to the committee to the extent moneys are available in the fund for the costs of staff assistance. Prohibits the committee and the task force from proceeding with the study unless at least $18,964 is deposited in the fund as of July 1, 2005.

Repeals the act, effective July 1, 2006.

VETOED by Governor May 27, 2005

H.B. 05-1110 Methamphetamine precursor drugs - retail sale - limitations - violation - penalty - exemptions from liability - discretion of district attorney. Limits the retail sale of ephedrine, pseudoephedrine, and phenylpropanolamine ("methamphetamine precursor drugs") to a certain packaging type and number of packages. Makes it a class 2 misdemeanor for a person to knowingly violate the requirements concerning the retail sale of methamphetamine precursor drugs. Clarifies that certain persons connected with the ownership, operation, or management of a store that sells methamphetamine precursor drugs shall not be liable for violating the sales requirements if the person had no knowledge of the sale and did not direct or participate in the sale.

Clarifies that a district attorney retains discretion to prosecute a person for selling methamphetamine precursor drugs when the person also is charged with selling or distributing materials to manufacture controlled substances.

APPROVED by Governor May 27, 2005
EFFECTIVE July 1, 2005

H.B. 05-1143 Trafficking in persons - interagency task force. Creates an interagency task force on trafficking in persons ("task force"). Specifies the members of the task force. Identifies the tasks pertaining to trafficking in persons that the task force is required to complete. Requires state and local agencies to cooperate with the task force. Directs the task force to report its findings and recommendations to the house and senate judiciary committees by January 15, 2007.

APPROVED by Governor April 5, 2005
EFFECTIVE April 5, 2005

H.B. 05-1160 Unlawful recordings - distribution of an unlawfully recorded live performance. Changes the penalty for dealing in unlawfully packaged recorded articles from a class 3 misdemeanor to a class 1 misdemeanor and removes the requirement that the articles be copyrighted. Criminalizes recording a live performance without consent with the intent to sell the recording of the live performance, making it a class 1 misdemeanor. Gives performers in a live performance the rights to record the performance absent an agreement or law to the contrary. Criminalizes offering to sell, selling, or distributing an unlawfully recorded live performance, making it a class 1 misdemeanor.

APPROVED by Governor April 7, 2005
EFFECTIVE July 1, 2005

H.B. 05-1183 Alcohol consumption - furnishing alcohol to minor penalties and mitigation - minor in possession immunity and penalties - social host liability. Increases the penalty for furnishing alcohol to a person under 21 years of age from a class 2 misdemeanor to a class 1 misdemeanor. Requires the court to consider the following in mitigation for the offense of furnishing alcohol to a person under 21 years of age: In the case that an underage person consumes alcohol and needs medical assistance as a result of that consumption, the defendant contacts police or emergency medical personnel within 6 hours after the underage person consumes the alcohol to report the underage person's need of medical assistance.

Provides immunity for up to three persons to a minor in possession charge if: An underage person calls 911 and reports that another underage person is in need of medical assistance due to alcohol consumption and he or she is the first to make the call; the person who called 911 provided his or her name and the name of the others acting in concert to the 911 operator; and the three persons remained on scene with the underage person that needed medical assistance and cooperated with medical assistance and law enforcement personnel on the scene.

Raises the fine for the offense of illegal possession or consumption of alcohol by an underage person in the following manner: First offense $250 and second offense $500. Requires the court to order a defendant for a second or subsequent conviction for underage possession of alcohol to complete an alcohol evaluation or attend an alcohol education program or an alcohol treatment program. Makes a third or subsequent conviction for underage possession of alcohol a class 2 misdemeanor.

Provides liability for a social host who provides a person under 21years of age a place to consume alcohol if said person then causes damages. Removes the element of willfulness from the social host liability provision related to persons under 21 years of age.

APPROVED by Governor June 3, 2005
EFFECTIVE July 1, 2005

H.B. 05-1188 Abuse of a corpse crime - meaning of lawful authority - statutory authority to consent to moving a corpse. In the crime of abuse of a corpse, clarifies that a person must have statutory or court-ordered authority to disinter a corpse without consent. Changes the consent requirement from the close relatives or close friends to the person who has statutory authority to dispose of the corpse.

APPROVED by Governor April 7, 2005
EFFECTIVE July 1, 2005

H.B. 05-1202 Animal cruelty - reporting - civil immunity - false report - penalty. Grants immunity from civil liability to persons who in good faith report animal cruelty incidents to a local law enforcement agency or to the state bureau of animal protection. Specifies that immunity is not granted to a person who knowingly makes a false report of animal cruelty. Makes it a class 3 misdemeanor to knowingly make a false report of animal cruelty to a local law enforcement agency or to the state bureau of animal protection.

APPROVED by Governor April 22, 2005
EFFECTIVE July 1, 2005

H.B. 05-1206 Extradition proceedings - bail eligibility - withdrawal of waiver of extradition procedure. Prohibits a fugitive from being eligible for bail when the fugitive has escaped from custody or confinement or sentence in the demanding state or has signed a waiver of extradition.

Prohibits a fugitive from withdrawing a waiver of extradition unless the fugitive can show good cause for the withdrawal. Requires the fugitive to provide the court, governor, and district attorney with the request to withdraw the waiver of extradition. Requires a fugitive who successfully withdraws a waiver of extradition to be held without bond for a specified term of at least 30 days and not longer than 90 days, or until delivered to an agent of the demanding state.

APPROVED by Governor May 27, 2005
EFFECTIVE May 27, 2005

H.B. 05-1306 Driver's license suspension - providing alcohol to a minor. Requires the division of motor vehicles ("division") in the department of revenue to suspend for a period of at least 6 months the driver's license of a person convicted of providing alcohol to an underage person or allowing an underage person to use an adult's identification to purchase alcohol. Permits the person to have a hearing on the suspension. Allows the division to issue a probationary license to permit the person to drive to work or school.

APPROVED by Governor May 27, 2005
EFFECTIVE July 1, 2005

H.B. 05-1308 Sex offender registration - not guilty by reason of insanity. Compels the court to include, as a condition of release or removal, a requirement that a defendant who received a verdict of not guilty by reason of insanity register as a sex offender if:

● The defendant was found not guilty by reason of insanity on a charge of an offense involving unlawful sexual behavior; or

● The defendant was found not guilty by reason of insanity on a charge of any other offense, the underlying factual basis of which includes an offense involving unlawful sexual behavior.

APPROVED by Governor June 2, 2005
EFFECTIVE June 2, 2005

H.B. 05-1338 Patronizing a prostitute - enhanced penalty. Makes a third or subsequent offense of patronizing a prostitute a class 1 misdemeanor.

APPROVED by Governor June 3, 2005
EFFECTIVE July 1, 2005

H.B. 05-1347 Identity theft - criminalize phishing. Makes it a class 1 misdemeanor to use a false identity to gain the personal identifying information of another individual over the internet, over the telephone, or by any other electronic medium.

APPROVED by Governor June 1, 2005
EFFECTIVE July 1, 2005