CO Code § 42-4-1708 (2021)
2021 Colorado Code|Title 42 - Vehicles and Traffic|Article 4 - Regulation of Vehicles and Traffic|Part 17 - Penalties and Procedure|§ 42-4-1708. Traffic Infractions - Proper Court for Hearing, Burden of Proof - Appeal - Collateral Attack

  Every hearing in county court for the adjudication of a traffic infraction, as provided by this article, shall be held before a county court magistrate appointed pursuant to part 5 of article 6 of title 13, C.R.S., or before a county judge acting as a magistrate; except that, whenever a crime and a class A or class B traffic infraction or a crime and both such class A and class B traffic infractions are charged in the same summons and complaint, all charges shall be made returnable before a judge or magistrate having jurisdiction over the crime and the rules of criminal procedure shall apply. Nothing in this part 17 or in part 5 of article 6 of title 13, C.R.S., shall be construed to prevent a court having jurisdiction over a criminal charge relating to traffic law violations from lawfully entering a judgment on a case dealing with a class A or class B traffic infraction.    When a court of competent jurisdiction determines that a person charged with a class 1 or class 2 misdemeanor traffic offense is guilty of a lesser-included offense which is a class A or class B traffic infraction, the court may enter a judgment as to such lesser charge.    The burden of proof shall be upon the people, and the traffic magistrate shall enter judgment in favor of the defendant unless the people prove the liability of the defendant beyond a reasonable doubt. The district attorney or the district attorney's deputy may, in the district attorney's discretion, enter traffic infraction cases for the purpose of attempting a negotiated plea or a stipulation to deferred prosecution or deferred judgment and sentence but shall not be required to so enter by any person, court, or law, nor shall the district attorney represent the state at hearings conducted by a magistrate or a county judge acting as a magistrate on class A or class B traffic infraction matters. The magistrate or county judge acting as a magistrate shall be permitted to call and question any witness and shall also act as the fact finder at hearings on traffic infraction matters.    Appeal from final judgment on a traffic infraction matter shall be taken to the district court for the county in which the magistrate or judge acting as magistrate is located.      Except as otherwise provided in paragraph (b) of this subsection (5), no person against whom a judgment has been entered for a traffic infraction as defined in section 42-4-1701 (3)(a) shall collaterally attack the validity of that judgment unless such attack is commenced within six months after the date of entry of the judgment. (5) (a) Except as otherwise provided in paragraph (b) of this subsection (5), no person against whom a judgment has been entered for a traffic infraction as defined in section 42-4-1701 (3)(a) shall collaterally attack the validity of that judgment unless such attack is commenced within six months after the date of entry of the judgment.    In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (5)(a) of this section are:   A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;    A case in which the court entering judgment did not have jurisdiction over the person of the violator;    Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment or certification of the violator to an institution for treatment as a person with a mental health disorder; or    Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.            History. Source: L. 94: Entire title amended with relocations, p. 2421, § 1, effective January 1, 1995. L. 2006: (5)(b)(III) amended, p. 1409, § 81, effective August 7. L. 2017: IP(5)(b) and (5)(b)(III) amended, (SB 17-242), ch. 263, p. 1381, § 308, effective May 25.    Editor's note:   This section is similar to former § 42-4-1505.3 as it existed prior to 1994.   Cross references:   For provisions concerning limitation for collateral attack upon trial judgment, see § 16-5-402 ; for penalties for class A and class B traffic infractions and class 1 and class 2 misdemeanor traffic offenses, see § 42-4-1701 (3)(a) .   ANNOTATION   Annotator's note. Since § 42-4-1708 is similar to § 42-4-1505.3 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, a relevant case construing that provision has been included with the annotations to this section.   This section requires traffic infractions and criminal offenses to be made returnable to a court having jurisdiction over the criminal offense when all charges are contained in the same summons and complaint. When a summons and complaint charging a traffic infraction are made returnable to a referee, the district attorney is precluded from participating in the proceeding. Williamsen v. People, 735 P.2d 176 (Colo. 1987).