Advisement Rights of a Defendant Accused of a Misdemeanor Traffic Offense

Colorado Procedure For Asking To Withdraw A Previous Guilty Plea And To Set-Aside A Misdemeanor Traffic Offense ConvictionRossKoplinCO2020-02-24T14:24:54-07:00

Colorado Procedure For Asking To Withdraw A Previous Guilty Plea And To Set-Aside A Misdemeanor Traffic Offense Conviction

There is no procedure to request expungement of an adult misdemeanor traffic offense conviction in the State of Colorado. Thus, it is not possible to expunge, from a Colorado Criminal Record, or a Colorado Motor Vehicle Record (MVR), an adult misdemeanor traffic offense conviction within the State of Colorado.

However, there is another avenue, that an individual convicted of such a traffic summons offense, can utilize to sometimes get a conviction removed from a Colorado Motor Vehicle Record (MVR), or reduced to a lesser charge, with lesser penalty points, after the conviction has entered. The procedure is to bring a motion to the court, where the conviction was entered, to collaterally attack the conviction, under Rule 35.(c) of the Colorado Rules of Criminal Procedure and the analogous provision in the Colorado Statutes which is C.R.S. § 18-1-410. Such a motion is not considered an appeal to a higher court of a final judgment, but rather a request to the trial court to address a post-conviction issue.

There are several grounds whereby an individual traffic offense defendant can bring a Rule 35.(c) motion subsequent to a conviction. Some of these are:

If a person is convicted under a statute that is in derogation of the constitution of the United States or the constitution of Colorado. Another ground is that the actions of the individual were constitutionally protected when engaged in by the individual who was thereafter accused;
That the court entering a conviction was, at that time of the conviction, without jurisdiction over the defendant or that the court, as of the time of entering the conviction, did not have jurisdiction over the subject matter;
That the sentence which was imposed exceeded the maximum authorized under State of Colorado law or was not, in some other material way, not in accordance with Colorado law;
That there exists, as of the time of filing the Rule 35.(c) motion, evidence of facts, not previously presented to and heard by a Colorado court, which, by the exercise of reasonable diligence, could not have been known or learned of by the accused, or the defense lawyer for the accused, prior to the end of the admission of evidence at trial, and which a judge decides reasonably require vacating of the conviction in the interest of justice;
The conviction was rendered, or the sentence imposed, in derogation of the constitution or laws of the United States or the constitution or laws of the State of Colorado;
That the sentence has been fully served or that there has been unlawful revocation of parole, probation or conditional release.

The invocation of a Colorado Rules of Criminal Procedure 35.(c) and C.R.S. § 18-1-410 motion is very often done in a Colorado misdemeanor traffic offense case after a defendant enters a plea agreement in the court, agrees to plead guilty to a traffic related charge or traffic related charges, and a conviction for a misdemeanor traffic offense is entered against the individual.

The reasons that can justify the filing of a motion to the trial court under Rule 35.(c) of the Colorado Rules of Criminal Procedure and C.R.S.§ 18-1-410 vary considerably in their scope and potential applicability. For instance, it is not often that a court enters a conviction against an individual when the Colorado court did not have jurisdiction over the person or did not have jurisdiction as to the subject matter of the accusation made. It is also extremely uncommon that a conviction of a defendant will be overturned based upon the argument that the actions of the accused, in a misdemeanor traffic offense case, were constitutionally protected.

There are two reasons set forth in Rule 35.(c) of the Colorado Rules of Criminal procedure that can perhaps most can reasonably precipitate the filing of a motion to set-aside a previous misdemeanor traffic offense conviction. Sometimes evidence can come to the attention of a defendant, or a defense attorney, after a conviction is entered by a Colorado trial level court, that neither the defendant, nor the defendant’s attorney, knew about at the time of the conviction and could not have reasonably known about prior to the entry of the conviction. For instance, an individual can come forward, that was a witness to what took place, and can testify as to the innocence of the accused. Sometimes certain types of relevant documents, photographs, or tests can get misplaced, or lost, or simply not recognized as evidence, until after a conviction has been entered against a defendant. These can all lead to the legitimate filing of a motion to withdraw a guilty plea and to set-aside the corresponding misdemeanor traffic offense conviction.

By the far the most versatile, most wide ranging, and probably most often invoked, cause for the filing of a C.R.S. § 18-1-410, and Colorado Rule of Criminal Procedure Rule 35.(c) motion, to set-aside a previous conviction, is the allegation that the conviction was obtained in violation of the constitution or laws of the United States or the constitution of the State of Colorado. The reason for this is that an individual, accused of a misdemeanor traffic offense, is entitled to a relatively extensive and expansive listing of constitutionally protected safeguards, and advisories, prior to a conviction being entered against the individual. These safeguards include not only that an individual must be properly advised of the myriad of rights the individual has upon entering a court, and the rights an individual has upon entering into any plea agreement, but also the obligation of the Court to determine, with reasonable certainty, that the defendant both heard, and actually understood, those rights. Many times, subsequent to conviction, an individual will have not fully heard, and not adequately understood, their rights, and will have made a decision to plead guilty without fully understanding applicable options.

Of particular significance, especially in the context of filing of a motion under Rule 35.(b) as to misdemeanor traffic offenses, are the provisions of Colorado Rule of Criminal Procedure 11. (b)(4). The provisions of Colorado Rule of Criminal Procedure Rule 11.(b)(4) provide that, prior to entering a plea of guilty, a defendant must understand the possible penalty or penalties that can be imposed. Very often the judge will provide a short description of the possible penalties prior to accepting a plea agreement resulting in a conviction. However, the Colorado Division of Motor Vehicles very often imposes an additional penalty upon an individual, subsequent to conviction, limiting or suspending driving privileges for the defendant. Normally the defendant will come to understand about these additional driving restriction penalties only through a letter sent to the individual weeks after the defendant pleads guilty in the Colorado court to a misdemeanor traffic offense. Of particular significance is when the individual sustains an additional one, or sometimes multi-year, suspension of driving privileges or, in the worst case, a determination by the Colorado Division of Motor Vehicles (DMV) that the person, due to the recent traffic offense conviction, a Habitual Traffic Offender (HTO) which causes driving privileges to be revoked for a five (5) year period without any driving privileges available to the person, of any nature, during those five (5) years.

In response to the filing of a motion to collaterally attack a previous conviction under Rule 35.(c) of the Colorado Rules of Criminal Procedure, alleging that a defendant did not understand the implications of the driving restrictions that would be imposed after a traffic conviction, a prosecutor will often argue that DMV imposed penalties are a “collateral consequence” of the guilty plea. However, this can be disputed by the attorney for the accused and the judge makes a final determination as to whether a defendant was properly advised in accordance with Rule 35(c) of the Colorado Rules of Criminal Procedure.

The procedural rules for the filing and evaluation of a Colorado Rule of Criminal Procedure Rule 35.(c) motion are different than most other rules of Colorado procedure. Rule 35.(c) entails a prerogative for the Court to rule on the motion, and potentially deny the motion, prior to the prosecutor having to respond in any manner. If the motion is denied by the Court then the prosecutor never needs to respond. If the Court does not deny the motion then, but only then, the Court must require the prosecution to respond to the Rule 35.(c) motion within a set period of time. The prosecutor is not ever required to respond to a Rule 35.(c) motion until and unless ordered by the Court to respond.

The time limits for filing a motion under Rule 35.(c) of the Colorado Rules of Criminal Procedure and C.R.S. § 18-1-410 are strict and vary between six (6) for a petty offense and eighteen (18) months for misdemeanors, measured from the conviction date. However, the Court can make a determination that a delay, beyond the deadline, in filing the collateral attack against the misdemeanor traffic offense conviction as a Rule 35.(c) motion, was due to justifiable excuse or excusable neglect of the defendant and thus should be permitted.

Often individuals who have been defendants in Colorado County Courts have implications and penalties from a misdemeanor traffic offense conviction substantially different and greater than they expected when entering a plea of guilty. Often this is an additional penalty, imposed subsequent to a conviction, by the Colorado Division of Motor Vehicles (DMV). Such individuals need to fully understand the significance of the option of filing a Colorado Rule of Criminal Procedure Rule 35.(c) and C.R.S. § 18-1-410 motion to collaterally attack the conviction and potentially seek relief from the implications and penalties.

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.