Advisement Rights Of A Defendant Accused Of A Misdemeanor Traffic Offense In A Colorado County Court
Individuals often fail to realize that, when charged with a misdemeanor traffic offense in a Colorado County Court, that the person accused is charged with a criminal offense, and that the individual therefore has numerous rights in asserting a defense. Unfortunately, often individuals appear in a County Court and, in an effort to expeditiously resolve their case, do not discern and appreciate the numerous rights that they can assert in their own defense.
When a person does assert their rights in a misdemeanor traffic offense case it very often results in their determination of the weaknesses of the prosecution’s case to the often great benefit of the defendant. Often, if a person does vigorously assert their Colorado traffic summons defense rights, the prosecution can sometimes result in a dismissal, a finding of not guilty after a trial, or, in many instances, a more favorable plea agreement, all for the benefit of the individual charged with the misdemeanor traffic offense.
Most rights of a criminal defendant have, as an origin, rights set forth in the United States Constitution and the Colorado State Constitution. As a practical matter these more general rights, such as the right to be afforded due process of law, have been given specificity, and practical meaning, by the enactment of laws in Colorado and, most significantly, procedural safeguards set forth in the Colorado Rules of Criminal Procedure.
Primary advisement rights for an individual accused in a Colorado Misdemeanor Traffic Offense matter, listed in chronological order of subject judicial proceedings, are as follows:
Initial Advisement Rights Under Rule 5. Of The Colorado Rules Of Criminal Procedure
Initially a person has numerous rights of which the Defendant must be clearly advised, enumerated in Rule 5. of the Colorado Rules of Criminal Procedure, entitled “Preliminary Proceedings.” These rights include that the Judge, prior to any other proceedings taking place, has the duty to inform an individual accused of a traffic offense of specific enumerated rights, and, more importantly, the Judge must also make a determination that the Defendant hears and understands these rights.
In other words, it is not sufficient for a person to solely be handed a document describing rights of the accused, nor is it sufficient for any individual, other than a judge or magistrate, to explain the rights a defendant has in the Court, nor is it sufficient for a Judge to simply explain the rights of a Misdemeanor Traffic Offense Defendant. The judge, or magistrate, must both explain the rights and, also, in addition, make certain that the defendant actually heard and understands the enumerated rights.
What this means, in practice, is that the judge or magistrate must have sufficient verbal interaction with the Defendant, in a Traffic Summons Case, to make the judicial determination that the person being advised not only heard the advisement, but that the person, when hearing the advisement, actually understands the cautions and advisement provided.
These rights include:
- That the accused must receive a full description of the misdemeanor traffic offenses alleged against the defendant;
- A caution to the accused that the accused does not need to make any statement and, in conjunction with that caution, an additional caution that any statement made by the defendant may be used against the defendant;
- That the defendant has the right to retain a defense attorney, at defendant’s expense, before the case proceeds further;
- If the defendant is indigent, and meets the acceptance criteria of the Colorado State Public Defender, the right to have a public defender represent the defendant prior to any further proceedings;
- If currently serving in the United States Armed Forces, or if a veteran of the United States Armed Forces, the defendant must be advised that the defendant may be entitled to receive substance use treatment, mental health treatment, or other such services as an active duty member of the armed services or as a veteran;
- The right of the defendant to have a bench trial, held exclusively before a judge, or a jury trial, typically before six (6) jurors. In the event of a jury trial, with the jury deciding all issues as to guilt or innocence, with the judge making procedural rulings and imposing any final sentence upon a defendant.
The right to a trial has been interpreted to not only include the right to a trial itself, but also to include numerous commensurate rights. These are, for instance, the right to have a jury trial in all misdemeanor traffic offense cases. The defendant has the prerogative to testify in his or her own defense, and the right of the defendant to refuse to testify. The accused also has the right to confront and cross-examine witnesses for the prosecution, The defendant has a right to have an attorney at that trial, the right to appeal an adverse verdict to a higher court, and among other rights, most importantly, the right to force the prosecution to prove the defendant guilty, beyond a reasonable doubt, to secure a conviction on any charge;
- An advisement that if the defendant chooses to enter a plea of guilty, to the original or any other charge, that guilty plea must be voluntary and not the result of undue influence, threats, or coercion;
- The right of a defendant to apply for bail and to be told the amount of bail that has been set by the judge in the defendant’s misdemeanor traffic offense case.
Advisement Rights Under Rule 10. Of The Colorado Rules Of Criminal Procedure
Subsequent to the initial appearance in the Court, a Misdemeanor Traffic Offense Defendant is entitled to have an Arraignment as described in Rule 10. of the Colorado Rules of Criminal Procedure. At an Arraignment Hearing the individual accused in a Colorado Traffic Offense Summons is to be informed of the offense to which the Defendant has been charged. This advisement, of the offense charged, must be given even if the Defendant has been previously advised of the designated charge. The Defendant, at that Arraignment Hearing, can enter a plea of guilty or not guilty to the charge.
If a Defendant appears at an Arraignment Hearing, without an attorney, the judge or magistrate is required, as described in Rule 10. of the Colorado Rules of Criminal Procedure, to actually read the information, indictment or complaint by the judge or magistrate or by the Court Clerk. The defense of insanity must be pleaded at the time of an arraignment except, however, for good cause shown, the defense of insanity can be pleaded at a later time in the proceedings.
Advisement Rights Under Rule 11. Of The Colorado Rules Of Criminal Procedure
The basics tenets of procedural due process are the most intensive, and strictly applied, when a person accused in a Colorado Traffic Ticket Summons elects to plead guilty to a traffic charge or traffic charges. The law provides that the judge or magistrate must not accept a plea of guilty, to any charge, unless the judge or magistrate has determined that the person accused of a traffic offense has been properly advised of all the rights the person has in accordance with Rule 5. of the Colorado Rules of Criminal Procedure and also Rule 11.(b) of the Colorado Rules of Criminal Procedure. The judge or magistrate must determine, in accordance with Rule 11.(b) of the Colorado Rules of Criminal procedure that:
- That the defendant understands that he or she has the right to a bench trial or a jury trial and that, upon pleading guilty, the accused waives the right to a bench trial or a jury trial on all issues that could have been heard by a jury;
- That the plea is entirely voluntary and not the result of threats, coercion, undue influence or false promises or statements made to the defendant;
- That the defendant understands the character of the charge and the specific enumerated elements of the misdemeanor traffic offense to which the accused is pleading;
- That the defendant understands the effect of the plea and the general consequences of the plea of guilty;
- There is a factual basis for the plea that is based upon the original misdemeanor traffic offense charge alleged against the defendant. This means that the judge or magistrate must determine that there exists some evidence that the person accused committed a traffic offense upon which the plea of guilty is based. Alternatively, if the plea is entered as a result of a plea agreement, the judge or magistrate shall explain to the defendant, and also the judge or magistrate shall satisfy himself or herself, that the defendant fully understands the basis for the plea agreement. If no factual basis exists for such reduced plea of guilty, the court must advise defendant that, if defendant desires to accept the plea agreement to a lesser charge, defendant may waive the establishment of a factual basis;
- That the accused understands that the judge or magistrate will not be committed to any representations made to the defendant by anyone concerning the penalty to be imposed unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;
- That a misdemeanor traffic offense defendant understands that the judge or magistrate will not be committed to any representations made to the defendant by anyone concerning the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;
- That the defendant understands the possible penalty or penalties or for the charge of which the defendant is convicted. This means that the defendant must understand all possible penalties and not just understand the most severe or the most likely penalties that may be imposed.
Remedies For Failure To Provide Defendant Procedural Advisories And Cautions
The forgoing sets forth the due process rights of a Defendant to receive cautions and advisories from the Court and, more importantly the right to have the judge or magistrate to ascertain that the misdemeanor traffic offense defendant actually heard and, in addition, understood, the rights expressed.
Defendant does have a recourse if the accused is convicted through a plea agreement and the defendant later determines that he or she was not provided the advisory rights accorded by the Colorado Rules of Criminal Procedure. The Defendant can initiate what is commonly referred to as a collateral attack upon the judgment by filing a motion in accordance with Rile 35.(c) of the Colorado Rules of Criminal Procedure. This is a motion which will most often request that the court set-aside the traffic conviction and let the defendant have another opportunity to defend against the charges brought against defendant.
Legal Disclaimer – The information contained at this web site is not intended to be legal advice and all information regarding Colorado traffic law is general content only and should not be relied upon for any specific Colorado traffic law situation. Information on this web site is not intended to cover all the issues, nuances or ramifications related to the topic discussed. This web site may not be updated routinely to reflect the most current Colorado traffic law.