Decriminalization of Municipal Offenses in Colorado
| Publication year | 1990 |
| Pages | 1327 |
1990, July, Pg. 1327. Decriminalization of Municipal Offenses in Colorado
In 1982, Colorado decriminalized traffic offenses of four points or fewer.(fn1) Since then, several cities have followed the state's lead. Boulder, Denver, Dillon, Lakewood, Long-mont and Wheat Ridge are among the cities that have decriminalized municipal offenses. This decriminalization generally includes all traffic infractions the state has decriminalized, but also legally may include non-traffic ordinances.
The decriminalization of these offenses and the elimination of criminal procedures raises numerous constitutional issues. This article discusses various aspects of and limitations on decriminalization.
Courts are not bound by the civil or criminal label attached to a system of laws. They look to the substance of the system to determine whether it is, in fact, civil or criminal. In determining whether a system is effectively decriminalized, courts scrutinize the entire system for criminal features.
According to the weight of case law, no single element is controlling; however, retention of too many criminal features will result in a judicial finding that the system is criminal.(fn2) A review of the cases indicates that certain elements are mandatory, although the language used to describe these elements may vary from court to court. These elements include a legislative declaration of intent to establish a civil or administrative system as distinguished from a criminal system of adjudication.(fn3) A clear statement of legislative intent is necessary to establish a civil system. Whether a penalty is civil or criminal is first a question of statutory construction.(fn4) In the absence of a clear declaration of intent to create a civil penalty, the courts will use every possible construction to avoid eliminating criminal procedural rights. In addition, mens rea elements and other criminal terminology should be eliminated from the system, because their use may be construed by the courts as evidence of legislative intent to preserve a criminal or quasi-criminal system.(fn5)
Some other elements that must be included in a decriminalized system include the following:
1) the right of law enforcement officers to detain suspects is strictly limited to identification and citation;(fn6)
2) the right of law enforcement officers to arrest is eliminated;(fn7)
3) fines for offenses not related to a business or occupation do not exceed $500;(fn8) and
Penalties and Remedies4) jail penalties are eliminated.(fn9) Finally, under City of Greenwood Village v. Fleming,(fn10) in a decriminalized system, the "collateral consequences" of criminal convictions must be eliminated. The Colorado Supreme Court has not explained what it meant by collateral consequences in Fleming, but probably was referring to various disabilities that criminal convictions may impose, such as the inability to own firearms,(fn11) disqualification from public office or public employment,(fn12) loss of valuable licenses(fn13) and loss of citizenship.(fn14) Collateral consequences probably also would include the ability (1) to use the civil conviction to enhance punishment in subsequent criminal offenses and (2) to use the civil conviction for impeachment of credibility.(fn15) However, the impeachment problem should not arise in Colorado because only felonies may be used for that purpose.(fn16)
In general, the extent and nature of the potential penalties are the most important factors in determining whether a system is, in fact, decriminalized.(fn17) The penalty must be designed to be corrective or regulatory and not punitive or retributive.(fn18) The constitutional prohibition
against cruel and unusual punishments does not apply to civil penalty actions.(fn19) However, the due process clause prohibits cruel and excessive penalties in civil cases.(fn20) The use of specific penalties and remedies is detailed below.
All jail penalties must be eliminated for decriminalization offenses. Without this elimination, the system is criminal, rather than civil. Therefore, merely labeling the system "civil" or "administrative" does not take the system out of the criminal realm.(fn21)
Under decriminalized systems, the court retains the power to impose fines and forfeitures. The amount of the fine must not be so high as to be punitive in purpose or effect.(fn22) Where the offense is related to the regulation of a business or occupation, the courts seem willing to permit much larger civil penalties.(fn23)
Under Colorado's traffic infraction law at CRS § 42-2-123(6)(a), a judgment of guilty or a default judgment will lead to the assessment of points against the defendant's driver's license and subsequent suspension if excess points are accumulated. However, such a judgment under a municipal traffic infraction law will not lead to points or suspension.(fn24) This anomoly was created by a glitch in the drafting of CRS § 42-2-123(6)(a). House Bill ("H.B.") 1272, passed during the 1990 session of the Colorado General Assembly and effective July 1, 1990, will correct this problem. H.B. 1272 amends CRS § 42-2-123(6)(a) to permit the assessment of points and suspension of drivers' licenses based on municipal traffic infraction judgments.
The fact that a judgment of guilty may lead to the assessment of points and the suspension of a driver's...
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