Chapter 1 - § 1.1 • THE SUMMONS AND COMPLAINT

• Jurisdiction: Colorado

§ 1.1 • THE SUMMONS AND COMPLAINT

§ 1.1.1—Summary

A "summons" is the order directing the person charged to appear in court at a specific place and time. C.R.S. § 16-1-104(17); Crim. P. 4.1(a)(3). A "complaint" is the written statement of the charge. C.R.S. § 16-1-104(7); Crim. P. 4.1(a)(1). A summons and complaint combines both functions and is the document that typically begins a DUI prosecution. C.R.S. § 16-2-102; Crim. P. 4.1(a)(4). C.R.S. §§ 16-2-101, etseq. and Crim. P. 4.1 provide simplified procedures for the issuance and content of summons and complaints in county court.

A summons and complaint may be issued by a peace officer for a misdemeanor if the offense was committed in his or her presence or if he or she has probable cause to believe the crime was committed and the defendant committed it. C.R.S. § 16-2-104; Crim. P. 4.1(c)(3). The summons and complaint must contain the name of the defendant; the offense charged, including a brief description of the offense; and the date and approximate location of the offense. C.R.S. § 16-2-106; Crim. P. 4.1(c)(4). It must also direct the defendant to appear before a specified county court at a stated time and place. Id.

Upon appearance before a judge for an offense under C.R.S. §§ 42-2-138(1)(d) and 42-4-1301(1) or (2)(a), a judge may order conditions of the summons. C.R.S. § 16-2-113(2). Such conditions may include, but are not limited to, drug and alcohol evaluation and treatment. But consider Martell v. County Court, 854 P.2d 1327 (Colo. App. 1992), and how this implicates the U.S. Constitution's Fifh Amendment privilege against self-incrimination. Martell, 854 P.2d at 1330.

However, effective August 9, 2017, C.R.S. § 16-4-105(6)(c) prohibits the court from requiring as a condition of any bond that a person who is in possession of a valid registry identification card abstain from the use of medical marijuana. The statute does not prohibit the court from imposing other conditions of bond to ensure community safety, such as no driving within 24 hours of use of marijuana.

Virtually all DUI cases begin with a summons and complaint issued by a police officer, although a DUI case could begin with a filing by a district attorney, and will if the DUI case is charged as a felony. A police officer who issues a summons and complaint may then let the defendant go, may take the defendant to jail and then release the defendant, or may arrest the defendant. Rarely is a DUI defendant simply let go; virtually all defendants are taken to jail, tested, and then either jailed or released by the jail.

§ 1.1.2—Contents of Summons and Complaint

It is well settled that the legislature, acting within constitutional limitations, has the power to dispense with technicalities and to establish and modify procedure in criminal cases. The statutes for simplified criminal procedures have generally been upheld. See Alessi v. Municipal Court, 556 P.2d 87 (Colo. App. 1976) (upholding home-rule city's traffic summons and complaint under the Colorado Municipal Court Rules of Procedure); Cave v. Colorado Department of Revenue, 501 P.2d 479 (Colo. App. 1972) (simplified procedures for penalty assessments for minor traffic offenses do not offend due process).

Under these simplified procedures, a charging document is sufficient and comports with constitutional notice, due process, and double jeopardy requirements, if it contains the essential elements of the offense, adequately apprises the accused of what he or she must be prepared to defend against, and enables the accused to plead a judgment in the case as a bar to any subsequent prosecution for the same offense. United States v. Kilpatrick, 821 F.2d 1456 (10th Cir. 1987). The Colorado Supreme Court in People v. Hunter, 666 P.2d 570 (Colo. 1983), adopted the same basic principles: an information (or a summons and complaint) is sufficient if it advises the defendant of the nature of the charges against him or her so that the defendant can adequately defend himself or herself and be protected from further prosecution for the same offense. See also Esquivel-Castillo v. People, 2016 CO 7; People v. Williams, 984 P.2d 56 (Colo. 1999); People v. Albo, 575 P.2d 427 (Colo. 1978); People v. Bergstrom, 544 P.2d 396 (Colo. 1975). "Even under the modern standard, an information that fails to charge an essential element of an offense will be fatally defective, but we have often noted that an information need not follow the precise wording of the statute defining the offense it charges." Esquivel-Castillo, ¶ 11.

Crim. P. 4.1(c)(4) and C.R.S. § 16-2-106 address the requirements of a valid summons and complaint. They comport with the requirements set out in the case law above, are virtually identical to each other, and require that the summons and complaint contain the following:

• The name of defendant;
• The offense charged, including a citation to the statute allegedly violated;
• A brief statement or description of the offense charged, including the date and approximate location thereof; and
• Direction to the defendant to appear before a specified county court at a specified date, time, and place.

The parameters for compliance with these procedures were established by the Colorado Supreme Court in Stubert v. County Court, 433 P.2d 97, 99 (Colo. 1967), where the court held:

By carefully spelling out in detail the "contents" of a summons and complaint issued by a peace officer, the fact that there is no mention of any requirement that the "summons and complaint" contain a verification becomes quite significant. In other words, the "contents" of a summons and complaint are those things enumerated in 1965 Perm. Supp. C.R.S. 1963, 37-17-7, nothing more, nothing less. The expression of one thing has long been said to mean the exclusion of another.

(emphasis omitted). See also Francis v. County Court, 487 P.2d 375, 376 (Colo. 1971).

Article VI, section 22 of the Colorado Constitution requires all prosecutions to be brought in the name of "the People of the State of Colorado," to be carried on "in the name and by the authority of 'The People of the State of Colorado,'" and conclude with "against the peace and dignity of the same." However, omission of the phrase "against the peace and dignity of the same" is merely a matter of form and not substance and does not deprive the court of jurisdiction. People v. Hunter, 666 P.2d 570 (Colo. 1983); Chemgas v. Tynan, 116 P. 1045 (Colo. 1911).

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