Understanding Tampering with Physical Evidence in Colorado

Understanding Tampering with Physical Evidence in Colorado

By H. Michael Steinberg, A Colorado criminal defense lawyer practicing Colorado Criminal Law from both sides for over 40 years.

Introduction:

How C.R.S. § 18-8-610 Turns a Moment of Panic Into a Felony Charge

• A traffic stop ends with a driver quietly dropping a baggie under the seat.
• A homeowner wipes down a doorknob before police arrive.
• A person on probation submits a doctored drug test to their supervising officer.

Each of these moments feels, to the person doing it, like an act of self-preservation — a way to make a bad situation slightly less bad. But under Colorado law, each one is also a separate crime, entirely apart from whatever charge prompted the panic in the first place.

The crime charged is tampering with physical evidence, codified at C.R.S. § 18-8-610. It is one of the most commonly overlooked charges in the Colorado criminal code — overlooked, that is, until it shows up as an add-on count that turns a misdemeanor case into a felony exposure, or stacks a second felony onto an already serious case.

This article explains how the statute works, what prosecutors must prove, how Colorado courts have interpreted its key terms, and what the possible penalties are.

The Statute: Tampering With Physical Evidence – CO Rev. Stat. § 18-8-610 

Colorado’s tampering with physical evidence statute is not aimed at investigators or prosecutors mishandling evidence — it is a general-purpose obstruction statute that applies to anyone who alters the physical record of an event once they believe a court proceeding is coming.

The statute’s  subsection (2) defines “physical evidence” broadly: “any article, object, document, record, or other thing of physical substance.” Colorado’s courts have applied that language expansively — it is not limited to weapons or drugs. In other words,  for example, deleting a text message thread or a security-camera video file can carry the same exposure as throwing a knife into a storm drain.

What Counts as “Physical Evidence”

Colorado courts have read the statutory definition of physical evidence broadly, and two decisions in particular illustrate how far it reaches:

• Documents and sworn statements. In People v. Board, the Colorado Court of Appeals held that a false affidavit presented to a grand jury qualifies as physical evidence under the statute— that tampering is not limited to tangible objects such as weapons or contraband.
• Electronic and digital records. In People v. Rieger, 2019 COA 14, the court confirmed that electronically stored documents or information fall within the statute’s definition of physical evidence. Deleting files, wiping a phone, or altering a digital record can support a tampering charge just as readily as destroying a physical object.

The one notable carve-out is human remains. The legislature addressed that scenario separately: tampering with a deceased human body is charged under a companion statute, C.R.S. § 18-8-610.5, and is punished as a class 3 felony — substantially more severe than ordinary evidence tampering.

There Are Two Basic Ways to Commit the Offense of Tampering With Physical Evidence

The statute criminalizes two distinct categories of conduct, and prosecutors only need to prove one of them:

1. Destroying or hiding real evidence.
   Destroying, mutilating, concealing, removing, or altering genuine physical evidence, done with the intent to keep it from being available — or to change what it shows — in a proceeding that is pending or about to happen. This covers everything from flushing narcotics down a toilet to deleting a phone’s photo library to wiping blood from a vehicle.
2. Manufacturing or offering false evidence.
   Knowingly creating, presenting, or offering evidence the person knows is false or altered, intending that it be introduced in the proceeding. This covers planting evidence to frame someone else, forging a document, or submitting a falsified urinalysis or ignition-interlock record.

Both prongs require a culpable mental state — the highest level of mens rea –  the destruction, concealment, or fabrication has to be done with the intent to affect a proceeding.

Losing evidence, discarding something out of habit, or cleaning a space with no idea that police involvement was imminent does not satisfy the statute.

Intent is almost always the real battleground in these cases.

A Proceeding Must Be “Pending or About to Be Instituted”: The Timing Element

The primary defense in these cases is the timing of the criminal case: if no charges had even been filed yet, how can a person be guilty of tampering with evidence in a proceeding that didn’t exist?

Colorado’s courts have consistently rejected that argument. The statute does not require that a case already be filed; it only requires that the person believed a proceeding was “pending or about to be instituted.”

“The tampering statute is intended to criminalize behavior that interferes with an official proceeding even if that behavior occurs before the proceeding is instituted.”  People v. Atencio, 140 P.3d 73 (Colo. App. 2005)

In People v. Atencio, the Colorado Court of Appeals upheld a tampering conviction in which the defendant discarded a controlled substance while officers were in the process of taking him into custody — before any charges were formally filed — because he knew a search incident to arrest and the proceeding that would follow were imminent.

Also in People v. Frayer, the court found sufficient evidence for a jury to infer the defendant believed an official proceeding was about to be instituted against her, even without a filed case at the moment of the alleged tampering.

The practical takeaway is this: the moment law enforcement contact begins — a traffic stop, a knock at the door, a summons to appear — the clock on this statute can already be running, whether or not any charge has formally been filed.

Penalties

The severity of a tampering charge tracks the severity of the underlying case the evidence relates to — not the value or nature of the item itself. Destroying a plastic bag connected to a felony drug case carries the same exposure as destroying a weapon connected to a felony assault case.

	Felony-Related Evidence	Misdemeanor-Related Evidence
Classification	Class 6 Felony	Class 1 Misdemeanor
Prison / Jail	12–18 months DOC	Up to 364 days county jail
Fines	Up to $100,000	Up to $1,000
Parole	1 year mandatory parole	None (misdemeanor)

Because a tampering count is frequently charged alongside the underlying offense, a conviction can mean two separate felony records arising from what began as a single incident.

Common Scenarios That Lead to This Charge

• Discarding, hiding, or destroying drugs or paraphernalia during or immediately before a traffic stop or search.
• Deleting text messages, photos, browser history, or social media posts after learning of a pending investigation.
• Altering, hiding, or destroying a firearm connected to a shooting or assault investigation.
• Cleaning a vehicle or crime scene to remove blood, fingerprints, or other trace evidence.
• Submitting a forged document — a fake lease, a falsified pay stub, a doctored drug test — to a court, probation officer, or investigator.

Coaching a witness to fabricate physical corroboration for a false account (which can also trigger separate witness-tampering charges under C.R.S. §§ 18-8-703 through 18-8-707).

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A Closer Examination: Defending Against a Colorado Tampering Charge

Because intent and timing are critical elements of the statute, tampering charges are often more vulnerable to a strong defense than they first appear. Common defense strategies include:

• Lack of intent. The prosecution must prove the defendant acted with the specific intent to impair the availability of the evidence and therefore the truthfulness in a proceeding — not merely that an item was moved, discarded, or lost.
• No belief that a proceeding was pending or imminent. If the person had no reason to think an official proceeding was pending or about to be instituted at the time of the alleged act, the statute’s core element is missing.
• Legal right or authority to handle the item. The statute only applies to someone acting “without legal right or authority.” An owner disposing of their property before any investigation existed, for example, may fall entirely outside the statute.
• Insufficient nexus to a proceeding. The item must relate to a pending or prospective official proceeding — not simply be something the person didn’t want others to see.
• Challenging the underlying search or stop. If the evidence of the tampering itself was obtained through an unlawful stop, search, or seizure, a suppression motion can undercut the prosecution’s case regardless of intent.

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 Related Offenses to Tampering with Physical Evidence

Witness Tampering Under Colorado Law

Witness tampering is a serious offense closely related to tampering with physical evidence. It involves attempting to influence or intimidate a witness to change their testimony or withhold information in an official proceeding.

By manipulating witnesses, individuals seek to undermine the credibility and accuracy of evidence presented in the case. Witness tampering is considered a class 4 felony in Colorado.

A conviction can lead to severe penalties, including imprisonment for two to six years, substantial fines, and additional legal repercussions. Colorado law recognizes the importance of ensuring witnesses’ safety and independence in the pursuit of justice.

Bribing a Juror Under Colorado Law

Bribing a juror is another offense that is closely connected to tampering with physical evidence. It occurs when an individual offers or provides anything of value to a juror with the intent to influence their decision or corrupt the integrity of the jury system.

Bribing a juror is a class 4 felony in Colorado and carries significant penalties. Conviction for this offense may result in imprisonment for two to six years, substantial fines, and potential legal actions to safeguard the integrity of the jury system and maintain a fair trial process.

Bribing a Witness Under Colorado Law

Bribing a witness is a related offense that involves offering or providing inducements to a witness in exchange for altering their testimony or providing false information. This offense seeks to obstruct the truth-seeking process and undermines the credibility of witness testimony.

Bribing a witness is also a class 4 felony in Colorado, and the severity of the penalty depends on the specific circumstances of the case. Conviction of this offense can result in imprisonment for multiple years and substantial fines.

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Summary and Conclusion

In Colorado, tampering with physical evidence refers to intentionally impairing or destroying any object or item that is relevant to an official proceeding. Official proceedings can include court hearings, investigations, or any other legal process.

This prohibition aims to protect the integrity of evidence and ensure fair trials. The Colorado law strictly prohibits any individual from tampering with physical evidence, as it undermines the justice system and hinders the pursuit of truth.
Consequences and Penalties

The consequences of tampering with physical evidence in Colorado can range from severe to moderate, depending on the specific circumstances. If tampering is committed with the intent to impair the availability or value of the evidence, it is classified as a class 6 felony.

A conviction of a class 6 felony can result in imprisonment of 1 to 18 months and fines ranging from $1,000 to $100,000. On the other hand, if the intent is to prevent the evidence from being used in an official proceeding, the offense is considered a class 1 misdemeanor.

As a result, the convicted individual may face imprisonment for up to eighteen months and fines between $500 and $5,000.

Tampering with physical evidence encompasses not only its destruction but also its alteration, concealment, or removal, with the intent to disrupt an official proceeding. The law recognizes that tampering can take various forms and aims to address them all comprehensively.

By explicitly defining the prohibited actions, the legislation emphasizes the importance of preserving and presenting evidence in its original state, ensuring fair and just outcomes in legal proceedings.

Reasons and Examples of Tampering

Instances of tampering with physical evidence can occur for various reasons, each with grave implications for the pursuit of justice. Individuals may attempt to destroy evidence to evade the consequences of their actions or to mislead investigators.

Evidence can also be altered to manipulate the outcome of an investigation or to frame an innocent party. Planting false evidence is another egregious form of tampering, in which individuals try to shift blame or create a false narrative.

The legal system aims to protect witness integrity and ensure that their testimony is based solely on the truth, untainted by any external influence.

Understanding the definitions of these offenses, their penalties, and the importance of physical evidence in legal proceedings enhances our awareness of the gravity of these actions.

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Why Experienced Counsel Matters

Tampering charges rarely arrive alone — they are almost always attached to another, often more serious, allegation, and prosecutors use them as leverage in plea negotiations. A skilled Colorado criminal defense lawyer requires an understanding not just of the tampering statute itself, but also of how it interacts with the underlying charge, what the state’s actual evidence of intent looks like, and where the search or seizure that led to the discovery may be vulnerable to challenge.

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Colorado Criminal Law – Understanding Tampering with Physical Evidence in Colorado

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

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Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, including Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law, and he hopes this article helps you in some small way.