Chapter 1 - § 1.2 • PROCEDURES FOLLOWING ARREST

• Jurisdiction: Colorado

§ 1.2 • PROCEDURES FOLLOWING ARREST

§ 1.2.1—General Procedures Following Arrest

If a person is arrested for DUI, DWAI, or DUI per se, the statutes and rules require that the person be taken before a county judge without unnecessary delay. A person who is not arrested need not be taken immediately before a judge. C.R.S. § 16-2-111; Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991). If the person is arrested, a complaint should be filed immediately and a copy given to the defendant at or before arraignment. Violation of these requirements, however, does not automatically result in dismissal. An arrestee also has the right to a prompt probable cause determination, pursuant to County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and that right is discussed below in § 1.2.3.

The statutes and rules require that a person arrested for DUI, DUI per se, DWAI, or UDD be taken before a county judge "without unnecessary delay." Crim. P. 4.1(a), 5(c)(1); C.R.S. § 42-4-1705(1)(c); Washington v. People, 405 P.2d 735 (Colo. 1965); England v. People, 486 P.2d 1055 (Colo. 1971). An accused's right to be taken before the nearest court without unnecessary delay and to be advised of the matters set forth in Crim. P. 5(a)(2) is not based on the state or federal constitutions, but instead is established by the Colorado Rules of Criminal Procedure and finds its basic authority in the Colorado Supreme Court's supervisory power over state prosecutions. People v. Florez, 680 P.2d 219 (Colo. 1984) (citing Butterwood v. United States, 365 F.2d 380 (10th Cir. 1966)). The purpose of prohibiting "unnecessary delay" is to ensure that a defendant will be quickly and fully informed of the offense involved and of his or her constitutional rights. People v. Garcia, 746 P.2d 560, 564 (Colo. 1987); People v. Heintze, 614 P.2d 367 (Colo. 1980); People v. Weaver, 500 P.2d 980 (Colo. 1972); People v. Reed, 502 P.2d 952 (Colo. 1972).

Each case, of course, must be decided on its own facts. Weaver, 500 P.2d 980. The Colorado Supreme Court has declined to adopt a per se rule of exclusion of evidence for Crim. P. 5 violations and instead has articulated a two-prong test requiring that defendants show (1) that the delay was unnecessary and (2) that some prejudice resulted therefrom. People v. Roybal, 55 P.3d 144, 148 (Colo. App. 2001).

A "necessary delay" is one reasonably related to the administrative process attendant to the arrest of the accused, such as the delay associated with fingerprinting, photographing, taking inventory of personal belongings, preparation of necessary charging documents and reports, and other legitimate administrative procedures. Roybal, 55 P.3d at 148; People v. Raymer, 662 P.2d 1066 (Colo. 1983); Heintze, 614 P.2d 367. Delay necessary to treat the defendant's wounds has been held not unreasonable. People v. Valencia, 506 P.2d 743 (Colo. 1973). Where the defendant was taken before a judge on the afternoon following the evening of his arrest, such delay was not unreasonable. People v. Casey, 521 P.2d 1250 (Colo. 1974).

Other delays have been found to be "unnecessary." Where prolonged inadvertence is the only basis for the delay, such delay is unnecessary. Heintze, 614 P.2d 367 (62-hour delay "unnecessary"); Hervey v. People, 495 P.2d 204 (Colo. 1972) (six-day delay unreasonable). Delay for the purpose of conducting a custodial interrogation is unnecessary. Raymer, 662 P.2d at 1071. It is not proper to hold a defendant without bringing him or her before a judge until charges in another jurisdiction are resolved, and a two-month delay in doing so was a violation of the rule. People v. Garcia, 746 P.2d 560 (Colo. 1987).

A violation of this requirement, however, does not automatically result in dismissal. People v. Wiedemer, 504 P.2d 667 (Colo. 1972). Where prejudice is alleged as a result of a claimed violation of the rules, every presumption will be indulged in favor of the regularity of the proceedings and the burden of showing error is on the party asserting it. Gottfried v. People, 408 P.2d 431 (Colo. 1965).

Remedies for violations should be tailored to each case on an individual basis with a view to the purposes of the rule and the prejudice alleged. Noncompliance with the rule may be waived. Washington v. People, 405 P.2d 735 (Colo. 1965). Before a violation of Crim. P. 5 may be grounds for sanctions, the defendant must prove both unnecessary delay and prejudice. Garcia, 746 P.2d 560; People v. Johnson, 653 P.2d 737 (Colo. 1982). The defendant must show that he or she was unfairly prejudiced or denied some basic constitutional right by reason of the failure to comply with the rule. If the defendant presents sufficient evidence of prejudice, the court should tailor the sanction it imposes to redress the prejudice caused by the violation. The drastic sanction of dismissal should be imposed only when the violation of Crim. P. 5 renders the accused unable to fairly defend against the charges. Garcia, 746 P.2d 560; Johnson, 653 P.2d 737.

Crim. P. 4.1(d) and 5(c)(1) provide that the defendant must be served with the summons and complaint "at or before arraignment." There is no requirement that a defendant be served with a copy of the summons and complaint prior to his or her being admitted to jail. A complaint that follows a warrantless arrest must also be filed with the court "immediately." Crim. P. 5(c)(1).

§ 1.2.2—The Rights of Persons in Custody

A person in custody has, at a minimum, those rights enumerated by the Colorado Code of Criminal Procedure, C.R.S. §§ 16-3-401, et seq., including the right:

• To have no unlawful means used to obtain...