By H. Michael Steinberg Colorado Criminal Defense Lawyer
What Exactly IS A Statute Of Limitations?
A statute is a law. A statute of limitations is a law that exactly specifies the maximum length of time allowed for Colorado District Attorneys to filed charges in a criminal case.
The purpose of a criminal statute of limitations is to encourage a swift and efficient prosecution of criminal cases. The policy underlying the Colorado statute of limitations is to ensure that physical evidence or eyewitness testimony has not deteriorated or become less reliable over time thus impacting the rights of the accused to due process of law (basic fairness).
It is important to note that a statute of limitations provides what is commonly termed a “non-exculpatory defense” to a person charged in a criminal case. Even if a Defendant is actually guilty of a crime and the evidence is overwhelming, a violation of the time limits provided by the relevant statute of limitations prohibits the possibility of a conviction.
What Is The Real Impact Of A Statute Of Limitation?
In a few words, statutes of limitation that force the police and District Attorneys to finish their investigations and decide to file, or not file charges, within a reasonable period of time.
With a few exceptions (see below) statutes of limitation grant repose a form of closure to an alleged wrongdoer. This results, as a matter of policy, in a more stable and forward-looking society.
Continues Crimes And The Statute Of Limitations
For most crimes, the statute of limitations begins to run when a crime is completed.. that is when all of the “elements” of the crime have been committed. However, some crimes, such as embezzlement, a form of an ongoing theft constitute “continuous offenses” and consist of an act or series of acts set in motion by a single impulse and operated by un-intermittent force.
This is a crime that does not end with a single act but rather, it continues unabated subsisting for a definite period of time. As such, the statute of limitations does not start until the last act, in the series of acts, has been committed.
Discovery Of The Act
Another exception provides for a delay in the start of the statute of limitation “clock” based on the discovery of the crime, NOT the completion of the crime. These are crimes that are easily concealed and consist of such crimes as bribery, organized crime, fraud, and cybercrimes.
As noted, a statute of limitations will begin to run when the crime is completed – when all of the “elements” of a crime have been completed. Like embezzlement, conspiracies may continue with through an uninterrupted series of several “overt acts” with the goal of the conspiracy – the ultimate commission of the underlying crimes – the very objective of the conspiracy.
The statute of limitations in such cases begins to run, not with the first overt act committed in furtherance of the conspiracy, but when the last act of the conspiracy has been committed.
All 50 states have criminal statutes of limitations.
Colorado Criminal Statutes Of Limitation Have Different Time Limits.
The type of crime affects the time limit. Violent crimes, for example, can have a much longer statute of limitations than misdemeanor non-violent crimes. Some crimes, such as homicide have no limits on the time to file charges – no statute of limitations at all.
Colorado Crimes That Have No Statute Of Limitations?.
Murder – First-degree (18-3-102) and Second-degree (18-3-103)
Kidnapping (18-3-301 & 18-3-302)
Any Felony Forgery (18-5-102) Offense, Regardless of the Penalty
Sexual Assault (18-3-402) – (DNA Evidence Exception)
Any Sexual Offense Against a Child, Which Includes:
Enticement of a Child (18-3-305)
Sexual Assault (18-3-402) – Victim under 15
Unlawful Sexual Contact (18-3-404) – Victim under 15
Sexual Assault on a Child (18-3-405)
Sexual Assault on a Child by One in a Position of Trust (18-3-405.3)
Aggravated Incest (18-6-302)
Human Sex Trafficking (18-3-504) – (Minors)
Sexual Exploitation of Children (18-6-403)
Procurement of a Child for Sexual Exploitation (18-6-404)
Indecent Exposure (18-7-302)
Soliciting for Child Prostitution (18-7-402)
Pandering of a Child (18-7-403)
Procurement of a Child (18-7-403.5)
Keeping a Place of Child Prostitution (18-7-404)
Pimping of a Child (18-7-405)
Inducement of Child Prostitution (18-7-405.5)
Patronizing a Prostituted Child (18-7-406)
Internet Luring of a Child (18-3-306 (3)) – Class 4 Felony
Internet Sexual Exploitation of a Child ( 18-3-405.4)
Unlawful Electric Sexual Communication ( 18-3-418)
(Or Any Attempt ( 18-2-101), Conspiracy ( 18-2-201), or Solicitation ( 18-2-301) of the above Crimes.
Key Question – When Does The Statute Of Limitation Start To “Run”.
As a general rule criminal statutes of limitations either begin on the date the wrongdoing occurred or when the wrongdoing is first discovered.
The “Tolling” Of The Statute Of Limitation
“Tolling” essentially means that the statute of limitations is legally suspended in time (the clock stops) so that criminal charges may be filed after what would have been the “expiration date” set by the law. Tolling then, pauses or stops the clock during this time and restarts it after an event takes place that changes the situation.
For example, criminal statutes of limitations are “tolled” when the offender is absent from the state. If a suspect flees Colorado in an attempt to evade prosecution for a crime, Colorado law, “stays” (stops) the running of the statute of limitations for up to five years.
How To Assert A Violation Of Colorado’s Criminal Statutes of Limitations
Violation of a statute of limitations is considered an “affirmative defense” that must be raised by the Defendant. Affirmative defenses, such as a violation of the statute of limitations, is raised in a Motion to Dismiss when it is clear that the case was not filed within the statutory period set out in the relevant criminal statute of limitation.
Colorado’s Criminal Statute Of Limitations
No Statute of Limitations
Murder, kidnapping, treason, any sex offense against a child, and any forgery reg: penalty provided. This also applies to attempt, conspiracy, or solicitation to co kidnapping, treason, forgery, or any sex offense against a child.
Five (5) Year Statute of Limitations
Vehicular homicide, leaving a scene of an accident that resulted in death, and crim of the Colorado Commodity Code. The statutes of limitations run upon discovery c act or upon the commission of the offense, respectively.
Three (3) Year Statute of Limitations
All other felonies; clock begins upon the commission of the offense.
18 Months Statute of Limitations
Misdemeanors; clock begins upon discovery of the criminal act.
One (1) Year Statute of Limitations
Class 1 and 2 misdemeanor traffic offenses; clock begins upon the discovery of the crime.
6 Month Statute of Limitations
Petty offenses; clock begins upon discovery of the criminal act.
sources: 6-4-118 and 16-5-401, C.R.S.
If you have more questions about the law on the application of the Colorado Statute of Limitations in your Colorado Criminal case please feel free to contact my law firm – H. Michael Steinberg