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When Is A Colorado Mandatory Drug Crime Surcharge 18-19-103 Not Mandatory – A New Colorado Case – 2014 – One of the difficult aspects of criminal convictions in Colorado are the – sometimes – large fines – couched as “surcharges” that are imposed at the time of sentencing. These surcharges appear most often in Colorado sex and drug crime cases.
In a recent decision by the Colorado Court of Appeals – People v. Archuleta-Ferales, 2014 COA 178 (December 31, 2014), the Court reversed a lower court’s decision on the issue of compelling a Defendant convicted of a serious drug crime to pay the Colorado Mandatory Drug Offender Surcharge
In Archuleta-Ferales, a Mesa County Judge had ruled that no portion of the drug offender surcharge could be waived unless he found the defendant was unable to pay all of the surcharge.
The Court of Appeals said no to that reasoning citing the plain language of the law.
Here is the rule: a judge HAS the authority to waive any portion of the mandatory drug offender surcharge IF the judge finds the defendant does not have the financial means to pay the fine. unable to pay.
The trial court judge must first find – before the judge can order the entire surcharge – that the defendant is able to pay the entire surcharge. Only then may the Judge refuse to waive any part of the surcharge.
In making this determination – the Judge CAN consider a defendant’s family contributions to living expenses and the defendant’s future ability to pay the surcharge to make the finding of a financially ability to pay the surcharge.
After a conviction of a Colorado drug crime – pursuant to Section 18-19-103 – certain drug surcharges apply – here they are:
Reprinted below, as of 2014, is the actual section of the law – 18-19-103 – that applies:
(1) For offenses committed on and after July 1, 1996, each drug offender who is convicted, or receives a deferred sentence pursuant to section 18-1.3-102 , shall be required to pay a surcharge to the clerk of the court in the county in which the conviction occurs or in which the deferred sentence is entered. Such surcharge shall be in the following amounts:
(a) For each class 2 felony or level 1 drug felony of which a person is convicted, four thousand five hundred dollars;
(b) For each class 3 felony or level 2 drug felony of which a person is convicted, three thousand dollars;
(c) For each class 4 felony or level 3 drug felony of which a person is convicted, two thousand dollars;
(d) For each class 5 felony or level 4 drug felony of which a person is convicted, one thousand five hundred dollars;
(e) For each class 6 felony of which a person is convicted, one thousand two hundred fifty dollars;
(f) For each class 1 misdemeanor or level 1 drug misdemeanor of which a person is convicted, one thousand dollars;
(g) For each class 2 misdemeanor of which a person is convicted, six hundred dollars;
(h) For each class 3 misdemeanor or level 2 drug misdemeanor of which a person is convicted, three hundred dollars
(a) The court may not waive any portion of the surcharge required by this section unless the court first finds that the drug offender is financially unable to pay any portion of said surcharge.
(b) The finding required by paragraph (a) of this subsection (6) shall only be made after a hearing at which the drug offender shall have the burden of presenting clear and convincing evidence that he is financially unable to pay any portion of the surcharge.
(c) The court shall waive only that portion of the surcharge which the court has found the drug offender is financially unable to pay.
The burden of proof falls on the shoulders of the convicted Colorado drug crime Defendant to prove by clear and convincing evidence – that he or she cannot pay the surcharge or a portion thereof.
The Judge then has the authority to waive any portion of the “mandatory” drug offender surcharge that the Judge determines the Defendant is financially unable to pay. The Judge must waive that portion of the surcharge that the Judge finds the Defendant cannot pay.
Section 18-19-103(6) permits the drug offender surcharge to be waived “in full or in part based upon a defendant’s financial ability to pay.”
in making the determination of the inability to pay the Judge’s inquiry must focus on a person’s present ability to pay, not the person’s AND the Defendant’s future ability to pay.
The Judge may consider a Defendant’s “historical expenses and income” as well that Defendant’s “reasonable prospects for future employment in light of her disabilities and any assets she may have, in determining her ability to pay the surcharge.”
But this finding cannot be made on speculative “future increases or decreases in income or expenses in the absence of a record basis for making such projections” and must be supported by competent evidence in the record.
The Colorado Drug Offender Surcharge may come as a shock at the time of sentencing for many of those convicted of Colorado drug crimes. The competent and experienced Colorado criminal defense lawyer should gather whatever financial information that is available to the Defendant along with the Defendant’s sworn testimony if necessary – to reduce or even eliminate that financial burden at the time of sentencing.
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A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.
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