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Colorado Police Arrest Powers For Minor Traffic Violations

By Colorado DUI – DWAI – Drug Crime Defense Lawyer – H. Michael Steinberg

Colorado Police Arrest Powers For Minor Traffic Violations requires a comprehension of an area of law that can be both frightening and very confusing.  Understanding the rights of the poilice detain and or to arrest you at the scene of a traffic stop requires a close examination of the arrest powers given to Colorado the police by the express laws of the state of Colorado.

Colorado Police Arrest Powers For Minor Traffic Violations

Colorado Police Arrest Powers

First A Very Practical Point – Don’t Resist An Arrest Lawful or Unlawful – The Street Is A Dangerous Place

A very practical point needs to be made here – the street is no place to test your knowledge of Colorado police arrest powers and laws.  On the street – the officer with the gun and his or her back up officers are in control. in short – do what they tell you and do it quickly without argument.  Legal challenges will come in court after you have been booked and released on bond.

The assertion that a Colorado Peace Officer may be mistaken as to a defendant’s guilt, or that a specific crime even occurred, is irrelevant so long as the arrest is made with probable cause to believe he is guilty and that a crime occurred. In this instance the arrest will still prove lawful.

Never “bad mouth” a police officer or try to run away, even if you believe what is happening is wrong. This could actually lead to your arrest. Alsodo not challenge the officer. Remember, you can always report misconduct by filing a complaint at a later time. Again – if you are arrested, you will have the opportunity to contest the arrest as part of the court processes.

Here are some additional excellent tips by a well known on line source known as Legal Match

If you see the lights or hearing the siren:

Slow down and safely pull over as soon as possible;

Remain calm.  Keep in mind that you may have committed a minor traffic violation which you are unaware of or the officer may have pulled you over because there is a problem with your vehicle.

Turn off your vehicle engine and turn your dome light on;

Remain in the driver’s seat with both hands clearly in sight on the steering wheel;

DO NOT exit your vehicle unless you are instructed to do so by the officer;

Be courteous and non-confrontational.  You should comply with the officer’s request to see your driver’s license, registration, and proof of insurance.  If these documents are in your glove box or some other location, informer the officer of their location and follow the officer’s instructions for retrieving the documents;

Listen carefully to the officer;

Remain polite and use your manners to respond properly to the officer’s commands.  Do not challenge the officer;

If you do not wish to answer any questions until you have spoken with an experienced criminal defense attorney, that is your right;

If you are issued a ticket that requires your signature, sign it.  This is not an admission of guilty.  You are merely acknowledging that you received the ticket.

Politely ask for the officer’s name and badge number.

Determine if you can leave.  You have the right to terminate an encounter with a police officer unless you are being detained or arrested.  If you are unsure, ask the officer.

A Colorado Police Officer’s Right to Arrest For A Minor Traffic Violation

A Colorado police officer’s right to make an arrest for a traffic violation is governed by Colorado state statute and by city ordinance.

It is critical to understand that the arrest guidelines that govern traffic cases are different than the arrest guidelines for general criminal violations.

You should be familiar with traffic arrest guidelines for two reasons:

1. The Admission At Trial of Search and Confession evidence: Absent a valid arrest, evidence discovered in the search of the person or his belongings and probably any statements may be suppressed – that is – thrown out of court at trial.

2. The civil liability for the arresting officer for false arrest – arrests made in violation of the state laws and or guidelines may create the possibility of a civil suit for false arrest.

The Power of the Police To Arrest Depends On The Criminal Law Violated

So – in a Colorado law creating a certain crime – look to the wording of the statute itself.  Does the law require an arrest?  Such as Colorado criminal laws on domestic violence (responding to a situation involving the violation of a domestic violence restraining or the violation of a protective order). 

In a criminal statute use of the word “may” in the law indicates that the officer is under no obligation to make an arrest…it is a matter of discretion whether or not, despite the existence of “probable cause,” an arrest will be made.

Again – a Colorado police officer is not generally (absent a command to do so in a particular, applicable statute) required to arrest an individual despite the officer’s determination that an arrest could legally be made.

An Example of Colorado Police Arrest Authority In Minor Traffic Matters – Penalty Assessment Arrests

§ 16-2-201. Penalty Assessment Procedures

(1) When a person is arrested for a class 2 petty offense, the arresting officer may either give the person a penalty assessment notice and release him upon its terms or take him before a judge of the county court in the county in which the alleged offense occurred.

The choice of procedures shall be based upon circumstances which reasonably persuade the officer that the alleged offender is likely or unlikely to comply with the terms of the penalty assessment notice

Section 16-3-102 permits a police officer to arrest a person who has committed a crime in the officer’s presence. Again – when the Colorado crime involved is a class two petty offense, the arresting officer may either take the arrested suspect before a judge or release the suspect after issuing a penalty assessment.

How The Court’s Square Police Officer Options After “Taking Custody” Of The Arrestee

Police compliance with both statutes – custodial vs non-custodial is permitted because, even though the police conduct a full custodial arrest and search, they  may still release the offender without taking him before a judge.

A custodial arrest and a discretionary release therefore is not made mutually exclusive under this law.

An officer can decide, before or after a custodial arrest, to arrest or release a suspect, based upon whether the suspect is likely to appear as required in a summons. The arresting officer can choose either to release the suspect or to take the suspect before a judge even after the officer has effectuated a custodial arrest and conducted a search of the suspect.

The Colorado Law As Regards Arrest Authority and the Fourth Amendment

The Fourth Amendment to the United States Constitution does not prohibit police from effecting a full custodial arrest and conducting a search incident thereto for misdemeanors and petty criminal offenses perpetrated in an officer’s presence. Colorado’s constitution also presumes that an arrest for a criminal violation when predicated upon probable cause is permissible for any crime, not just a serious crime.

Arrests Fall Into Two Types: Custodial and Non-Custodial

The Colorado Supreme Court has divided arrests into two types: custodial and non-custodial.

Custodial arrests are arrests where the seizure of the person is made for the purpose of taking a person to a detention facility for booking procedures and the filing of criminal charges.

Non-Custodial arrests are arrests which involve only temporary detention for the purpose of issuing a summons.

The critical distinction is the duration – the length of time – of the detention.

A full search incident to arrest may only be conducted when the arrest is custodial. If an arrest is non-custodial, the officer is entitled only to:

(1) conduct a pat-down search for weapons whenever there is an officer safety concern;

and

(2) search for instrumentalities or evidence of the specific crime for which the officer had probable cause to make the arrest. 

Understanding Custodial vs. Non-custodial Arrests – A Closer Look

A custodial arrest is inconsistent with express laws which require the police officer to issue a summons. CRS § 16-2-201(1). A criminal traffic law that mandates issuance of a notice or summons and provides for release upon signing a promise to appear prohibits “custodial” arrests.  A statute that mandates the issuance of a notice or summons, however, is consistent ONLY with a non-custodial arrest.

The key distinction here is the duration of the authorized detention… therefore temporary detention required to issue a penalty assessment notice after a defendant is arrested for a misdemeanor traffic offense does not rise to the level of a custodial arrest.

CRS § 42-4-1501(4)(a), provides that an arresting officer may issue a penalty assessment notice after arresting defendant for commission of a misdemeanor traffic offense. If a defendant is released after a temporary detention, the arrest is non-custodial.

So Then What is “Custody?”

Custody is determined by whether a reasonable person in the suspect’s position would consider himself deprived of his freedom of action in any significant way.

The Supreme Court has held custody attaches whether or not an officer brings a person to the station.

“An arrested person is not invariably taken to a police station or confined; if an arrestee is taken to the police station, that is no more than a continuation of custody inherent in the arrest status.”

A custodial arrest occurs regardless of whether a person is eventually brought to the station. All arrests are inherently custodial.

Arrest Powers for Colorado State Traffic Infractions

Officers know that no arrest, even of non-residents, may be made for traffic infractions which are minor – such as those listed under CRS 42-4-1701 (4) (a) (I).

Even a person who refuses to sign or accept the infraction ticket may not be arrested. In such cases, C.R.S. 42- 4-1709 (5) says that merely “tendering” the ticket to the violator is sufficient service of the ticket.

What The Is The Difference Between Colorado Traffic Infraction and Traffic Offense Tickets?

The importance to this article of the differences between traffic infraction tickets and traffic offense tickets is the possible penalties and legal rights and procedures that occurs during for the  resolution of the ticket.

Colorado Traffic Infraction Tickets

The most common tickets issued in Colorado are traffic infractions tickets….traffic infractions include such minor are numerous and include Changing Lanes When Unsafe, Speeding from One to Twenty-Four Miles Above the Speed Limit, and Failing to Obey a Traffic Control Signal.

Traffic infractions consist of Class A and Class B infractions. Colorado Class A and Class B traffic infractions were “made” non-criminal many years ago and are legally civil in nature – the rights that attach to these charges cannot include jail and the penalties that can be imposed upon a conviction of an individual for a traffic infraction can be no more than a fine, court costs.

Class B traffic infractions are issued only for the most minor traffic related matters, and do not carry points.

In most traffic infractions an individual is issued a Penalty Assessment Notice by a law enforcement officer that typically provides an opportunity to return a guilty plea by mail, with a payment, prior to a deadline, to resolve the traffic infraction. Most often an offer is made on the ticket for the penalty points to be automatically reduced upon timely payment.

BUT – the Colorado driver also has the option of contesting a traffic infraction ticket in the  local county or municipal court. Due process is then provided to the defendant but the procedures that are applied are expedited.

For example the driver is NOT entitled to a jury in a final hearing regarding a traffic infraction, may not receive the police reports prior to the final hearing, and may never even speak to the local prosecutor about the case – as the police officer becomes the prosecutor and has the responsibility for litigating the traffic infraction.

Colorado Traffic Offense Tickets

The most serious traffic tickets are classified as misdemeanor traffic offenses.

These are mandated as criminal matters in Colorado. All of the constitutional rights accorded in criminal cases are therefore given to the Colorado driver.  Examples of common misdemeanor traffic offense tickets are Driving A Vehicle Without A Valid Driver’s License, Careless Driving, Driving Without Insurance, and Speeding Greater than 24 Miles Per Hour Above the Speed Limit.

Like Colorado traffic infractions – misdemeanor traffic offense tickets are also classified into two categories.

The less serious misdemeanor traffic offenses under Colorado state law are Class 2 misdemeanor traffic offenses.

Here are the penalties for Colorado Traffic Infractions and Colorado Traffic Misdemeanors:

Penalty for Class 1 Misdemeanor Offense:

Up to One Year in the county jail AND -OR Up to a $1,000.00 fine. ( plus court costs).

Penalty for Class 2 Misdemeanor Offense:

Up to 90 Days in the county jail AND -OR Up to a $300.00 fine. ( plus court costs).

Both include the possibility of public service hours, restitution and other conditions that are entirely within the judge’s discretion – such as an apology letter or other therapy.

Summary of Law of Infractions

A traffic infraction is a violation of a law, such as failing to use turn signals; the only punishment is a fine and a surcharge (a penalty in money). A traffic infraction is a civil case, not a criminal case. On many tickets, there is a box that the officer checks to identify whether it is an infraction or an offense.

You have two choices: pay the penalty or appear in court. If you choose to pay the penalty, you must pay the amount shown on your ticket within 20 days to the Motor Vehicle Division (to Denver County Court for Denver tickets). If you mail the payment to the Motor Vehicle Division (or Denver County Court) after 20 days, the payment will be returned to you with instructions to contact the court. It is still possible to pay without appearing, but court costs will be added.

By paying, you are pleading guilty, and you give up your right to contest the ticket. If you have not paid your ticket by the appearance date on the ticket, you must appear in court and (1) plead guilty and pay costs or (2) plead not guilty and set your case for final hearing.

The district attorney may or may not speak with you the first time you appear in court. The district attorney is not required to be there because this is a civil case. Also, it is possible to enter a not guilty plea by mail requesting the case be set for a trial, requiring only one appearance. At the final hearing, you are innocent until proven guilty beyond a reasonable doubt.

There is no right to a jury trial in infraction cases. You only have a right to a hearing before a judge or magistrate. The officer who issued the ticket must be present at the final hearing. You have the right to call your own witnesses at the final hearing to tell your side of the story. If they will not come on their own, the court can prepare a legal paper (subpoena) requiring your witnesses to come to your hearing. You can either tell your side of the story (testify) or stay silent. If you remain silent, this cannot be used against you in your case.

The district attorney, or the city attorney, as the case may be, is most often directly involved in the prosecution of alleged traffic offense violations. In many traffic offense matters a person can obtain discovery and is entitled, upon making an appropriate demand and remitting any required fee, to a trial by jury.

Class 1 and Class 2 State Traffic Offenses

Here is the Colorado LAW reprinted:

§ 42-4-1705. Person arrested to be taken before the proper court

(1) Whenever a person is arrested for any violation of this article punishable as a misdemeanor, the arrested person shall be taken without unnecessary delay before a county judge who has jurisdiction of such offense as provided by law, in any of the following cases:

(a) When a person arrested demands an appearance without unnecessary delay before a judge;

(b) When the person is arrested and charged with an offense under this article causing or contributing to an accident resulting in injury or death to any person;

(c) When the person is arrested and charged with DUI, DUI per se, habitual user, or UDD;

(d) When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injuries, or damage to property;

(e) In any other event when the provisions of section 42-4-1701(5) (b) and (5) (c) apply and the person arrested refuses to give a written promise to appear in court as provided in section 42-4-1707 .

(2) Whenever any person is arrested by a police officer for any violation of this article punishable as a misdemeanor and is not required to be taken before a county judge as provided in subsection

(1) of this section, the arrested person shall, in the discretion of the officer, either be given a written notice or summons to appear in court as provided in section 42-4-1707 or be taken without unnecessary delay before a county judge who has jurisdiction of such offense when the arrested person does not furnish satisfactory evidence of identity or when the officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court. The court shall provide a bail bond schedule and available personnel to accept adequate security for such bail bonds.

(2.5) In any case in which the arrested person that is taken before a county judge pursuant to subsection (1) or (2) of this section is a child, as defined in section 19-1-103(18), C.R.S., the provisions of section 42-4-1706(2) shall apply.

(3) Any other provision of law to the contrary notwithstanding, a police officer may place a person who has been arrested and charged with DUI, DUI per se, or UDD and who has been given a written notice or summons to appear in court as provided in section 42-4-1707 in a state-approved treatment facility for alcoholism (DETOX) even though entry or other record of such arrest and charge has been made. Such placement shall be governed by article 81 of title27, C.R.S., except where in conflict with this section. 

……………..

Summary Traffic Offenses

A traffic offense is a more serious traffic violation, such as reckless or careless driving. A traffic offense is a criminal case; being found guilty can mean going to jail and paying a fine and costs.

Carefully check your ticket. You have 20 days to pay a fine (penalty assessment) and plead guilty, or you may be required to appear in court. If you go to court and plead not guilty, you will have an opportunity to speak with the district attorney either at the time of your arraignment (first appearance) or at a later pre-trial conference. The pre-trial conference is when you can talk about your case with a district attorney and discuss how to settle the case.

Trial for Traffic Offenses

If you decide to have a trial, you can have a jury trial or a trial without a jury (trial to the court before a judge). At a trial, you have the right to listen to and look at the people who testify against you, and you can ask them questions about what they saw.

You have the right to call your own witnesses at the trial and to tell your side of the story. If your witnesses will not come on their own, the court can prepare a legal paper (subpoena) that requires them to come to your trial. You can either tell your side of the story (testify) or stay silent. If you stay silent, this cannot be used against you in your case.

Right To A Speedy Trial

You have the right to a speedy trial for an infraction or an offense. This means that your trial must be held within six months from the date of your not guilty plea for an offense.

Right To A Jury Trial

You cannot have a jury trial if you are charged with an infraction. If you are charged with a traffic offense, you may request a jury trial.

Please call our law firm if you have questions about ..

Colorado Police Arrest Powers For Minor Traffic Violations

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277

If you have questions about Colorado Police Arrest Powers For Minor Traffic ViolationsColorado in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters…as regards Colorado Police Arrest Powers For Minor Traffic Violations.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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