CO Code § 16-13-307 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 13 - Special Proceedings|Part 3 - Abatement of Public Nuisance|§ 16-13-307. Jurisdiction - Venue - Parties - Process

  The several district courts of this state shall have original jurisdiction of proceedings under this part 3. (1.5) No judgment of forfeiture of property in any forfeiture proceeding shall be entered unless and until an owner of the property is convicted of an offense listed in section 16-13-301 or 16-13-303 , or a lesser included offense of an eligible offense if the conviction is the result of a negotiated guilty plea. Nothing in this section shall be construed to require the conviction to be obtained in the same jurisdiction as the jurisdiction in which the forfeiture action is brought. In the event criminal charges arising from the same activity giving rise to the forfeiture proceedings are filed against any individual claiming an interest in the property subject to the forfeiture proceeding, the trial and discovery phases of the forfeiture proceeding shall be stayed by the court until the disposition of the criminal charges. A stay shall not be maintained during an appeal or post-conviction proceeding challenging a criminal conviction. Nothing in this section shall be construed to prohibit or prevent the parties from contemporaneously resolving criminal charges and a forfeiture proceeding arising from the same activity. (1.6) Upon acquittal or dismissal of a criminal action against a person named in a forfeiture action related to the criminal action, unless the forfeiture action was brought pursuant to one or more of paragraphs   to (f) of subsection (1.7) of this section, the forfeiture claim shall be dismissed and the seized property shall be returned as respects the subject matter property or interest therein of that person, if the case has been adjudicated as to all other claims, interests, and owners, unless possession of the property is illegal. If the forfeiture action is dismissed or judgment is entered in favor of the claimant, the claimant shall not be subject to any monetary charges by the state for storage of the property or expenses incurred in the preservation of the property, unless at the time of dismissal the plaintiff shows that those expenses would have been incurred to prevent waste of the property even if it had not been seized. (1.7) Notwithstanding the provisions of subsection (1.5) of this section:     A person shall lack standing for and shall be disallowed from pursuit of a claim or defense in a civil forfeiture action upon a finding that a warrant or other process has been issued for the apprehension of the person, and, in order to avoid criminal prosecution, the person: (a) (I) A person shall lack standing for and shall be disallowed from pursuit of a claim or defense in a civil forfeiture action upon a finding that a warrant or other process has been issued for the apprehension of the person, and, in order to avoid criminal prosecution, the person:   Purposely leaves the state; or    Declines to enter or reenter the state to submit to its jurisdiction; or    Otherwise evades the jurisdiction of the court in which a criminal case is pending against the person or from which a warrant has been issued, by failing to appear in court or surrender on a warrant; and    Is not known to be confined or held in custody in any other jurisdiction within the United States for commission of criminal conduct in that jurisdiction.       If a person lacks standing pursuant to this paragraph (a), the forfeiture action may proceed and a judgment of forfeiture may be entered without a criminal conviction of an owner, upon motion and notice as provided in the rules of civil procedure.       If, following notice to all persons known to have an interest, or who have asserted an interest in the property subject to forfeiture, an owner fails to file an answer or other appropriate pleading with the court claiming an interest in the subject matter property, or no person establishes standing to contest the forfeiture action pursuant to section 16-13-303 (5), a forfeiture action may proceed and a judgment of forfeiture may be entered without a criminal conviction of an owner.    If the plaintiff proves by clear and convincing evidence that the property was instrumental in the commission of an offense listed in section 16-13-303 (1) or that the property is traceable proceeds of the offense or related criminal activity by a nonowner and the plaintiff proves by clear and convincing evidence that an owner is not an innocent owner pursuant to section 16-13-303 (5.2)(a), a judgment of forfeiture may be entered without a criminal conviction of an owner.    If an owner of the property who was involved in the public nuisance act or conduct giving rise to the claim of forfeiture subsequently dies, and was not an innocent owner pursuant to section 16-13-303 (5.2)(a), a judgment of forfeiture may be entered without a criminal conviction of an owner.    If an owner received a deferred judgment, deferred sentence, or participated in a diversion program, or in the case of a juvenile a deferred adjudication or deferred sentence or participated in a diversion program for the offense, a judgment of forfeiture may be entered without a criminal conviction.    A defendant or claimant shall be permitted to waive the requirement of a criminal conviction in order to settle a forfeiture action. (1.8) Nothing in this section shall be construed to limit the temporary seizure of property for evidentiary, investigatory, or protective purposes.          An action to abate a public nuisance shall be brought in the county in which the subject matter of the action, or some part thereof, is located or found or in the county where the public nuisance act, or any portion thereof, was committed. (2.5) All forfeiture actions shall proceed in state district court if the property was seized by a local or state law enforcement agency as a result of an ongoing state criminal investigation and the owner is being prosecuted in state court. Unless directed by an authorized agent of the federal government, no state or local law enforcement agency may transfer any property seized by the state or local agency to a federal agency for forfeiture under federal law unless an owner of the property is being prosecuted in federal court.    Except as otherwise provided in this part 3, the practice and procedure in an action to abate a public nuisance shall be governed by the Colorado rules of civil procedure. (3.5) An action brought pursuant to this part 3 regarding a class 1 public nuisance shall be filed within sixty-three days following the seizure of the property pursuant to section 16-13-315 . The plaintiff may file the complaint after the expiration of sixty-three days from the date of seizure only if the complaint is accompanied by a written petition for late filing. Such petition for late filing shall demonstrate good cause for the late filing of the complaint. The sixty-three-day time limitation established by this subsection (3.5) shall not apply where the seizure of the property occurred pursuant to a warrant authorizing such seizure or otherwise under any statute or rule of criminal procedure, if the property is held as evidence in a pending criminal investigation or in a pending criminal case.    An action to abate a public nuisance may be brought by the district attorney, or the attorney general with the consent of the district attorney, in the name of the people of the state of Colorado or in the name of any officer, agency, county, or municipality of this state whose duties or functions include or relate to the subject matter of the action. Any action to abate a class 3 public nuisance as defined by section 16-13-305 (1)(f) may be brought only upon the request of the agency or officer issuing the order or under whose authority the order was issued when such order relates to unlawful pollution or contamination.    An action to abate a public nuisance, other than a class 4 public nuisance, and any action in which a temporary restraining order, temporary writ of injunction, or preliminary injunction is requested, shall be commenced by the filing of a complaint, which shall be verified or supported by affidavit. Summons shall be issued and served as in civil cases; except that a copy of the complaint and copies of any orders issued by the court at the time of filing shall be served with the summons.    During all discovery procedures in actions brought pursuant to this part 3, a witness or party may refuse to answer any question if said witness or party makes a good faith assertion that the disclosure would tend to identify, directly or indirectly, a confidential informant for a law enforcement agency, unless the district attorney intends to call said informant as a witness at any adversarial hearing. On a motion to compel discovery, no witness or party shall be sanctioned in any manner for withholding information pursuant to this subsection (6).    Actions to abate a public nuisance shall be heard by the court, without a jury, at all stages of the proceedings.    Repealed.    Part 2 of article 41 of title 38, C.R.S., shall not apply to any action under this part 3.      Continuance of the trial of a public nuisance action shall be granted upon stipulation of the parties or upon good cause shown.    (Deleted by amendment,L. 2003, p. 897, § 8, effective July 1, 2003.)    Public nuisance actions shall be included in the category of “expedited proceedings” specified in rules 16 and 26 of the Colorado rules of civil procedure; except that each party may conduct limited discovery as provided for in rule 26 (b)(2) of the Colorado rules of civil procedure. In addition, each party may move the court to authorize additional discovery upon good cause shown.       No claim for relief shall be asserted by any party other than the plaintiff in a public nuisance action; except that the defendant may make a request for the return of property seized pursuant to this part 3.    If a public nuisance trial pursuant to this part 3 results in an order to return subject personal property and the prosecution states an intent to appeal and proceeds to appeal that judgment or order, the court shall stay the judgment or order pending appeal, unless the court finds that the appeal was taken in bad faith or for the purpose of delay. No appeal bond shall be required, but the court may make appropriate orders to preserve the value of the property pending appeal.    Unknown persons who may claim an interest in the property, persons whose whereabouts are unknown despite a diligent good faith search, and persons upon whom the plaintiff has been unable to effect service as otherwise provided in the Colorado rules of civil procedure despite diligent good faith efforts may be served pursuant to a court order by publishing a copy of a summons twice in a newspaper of general circulation. The summons shall describe the property and state where the complaint and attendant documents may be obtained, and a party shall have thirty-five days after the last publication date to respond.     History. Source: L. 72: R&RE, p. 262, § 1. C.R.S. 1963: § 39-13-307 . L. 87: (2) and (4) amended and (6) to (13) added, p. 633, § 5, effective July 1. L. 90: (8) repealed, p. 988, § 14, effective April 24. L. 92: (3.5) added and (10) and (13) amended, p. 449, § 3, effective July 1. L. 97: (10)(a) amended and (10)(c) added, p. 1552, § 3, effective July 1. L. 2002: (1.5), (1.6), (1.7), (1.8), and (2.5) added, p. 919, § 3, effective July 1. L. 2003: (1.5), (1.6), (1.7), (10)(a), and (10)(b) amended, pp. 892, 897, §§ 4, 8, effective July 1. L. 2012: (3.5) and (13) amended,(SB 12-175), ch. 208, p. 856, § 90, effective July 1.    Cross references:   For the issuance of summons, see C.R.C.P. 4.   ANNOTATION   Annotator's note. Since § 16-13-307 is similar to repealed laws antecedent to CSA, C 1, § 3, relevant cases construing those provisions have been included in the annotations to this section.   Public nuisance suits may be either criminal or civil in nature. People v. Cory, 183 Colo. 1 , 514 P.2d 310 (1973).   The statute authorizing forfeiture for a public nuisance is penal in nature. In an action premised on a penal statute as opposed to a civil claim, the statute of limitations is jurisdictional in nature, in that it specifies the time period during which a cause of action exists. Since the statute of limitations is jurisdictional, it may be raised at any stage of the proceeding, including a motion to dismiss. People v. Steinberg, 672 P.2d 543 (Colo. App. 1983).   Where a civil action is brought to abate a public nuisance, the only remedy is injunctive relief. People v. Cory, 183 Colo. 1 , 514 P.2d 310 (1973).   And rules of civil procedure followed. Where a civil action for injunctive relief is brought to abate a public nuisance, the rules of civil procedure must be followed. People v. Cory, 183 Colo. 1 , 514 P.2d 310 (1973); Barker v. District Court, 199 Colo. 416 , 609 P.2d 628 (1980).   An action to enjoin the operation of premises as a nuisance is aimed at the unlawful use, irrespective of ownership. Gaskins v. People, 84 Colo. 582 , 272 P. 662 (1928).   Personal judgment against owner not served with process is invalid. In an action to enjoin maintenance of a nuisance, personal judgment against the owner of the property who was not served with process and did not appear, held invalid, although her property was bound by the decree. Gaskins v. People, 84 Colo. 582 , 272 P. 662 (1928).   Owner of leased premises may be enjoined. Even though there is no evidence that defendant owner kept a place constituting a nuisance, or that he leased the premises for such use; nevertheless under this section the owner may be enjoined from permitting their use for such purposes. Gregg v. People, 65 Colo. 390 , 176 P. 483 (1918).   A forfeiture action is commenced and jurisdiction of the trial court is invoked by the filing of a complaint in district court. People v. Grell, 950 P.2d 660 (Colo. App. 1997).   The 60-day time frame for filing a complaint and the exceptions under this section are procedural requirements, therefore, failure to file a complaint within such time frame is not a jurisdictional defect that would divest court of subject matter jurisdiction. People v. Grell, 950 P.2d 660 (Colo. App. 1997).   The phrase “dismissal of a criminal action” refers only to the dismissal of a criminal case before or during a trial proceeding in which a forfeiture claim is pending. It does not refer to a dismissal of a criminal case occurring on remand as the result of the reversal of a related criminal conviction on appeal after a forfeiture judgment has been entered and no appeal or stay has been taken from the judgment of forfeiture. People v. $11,200.00 U.S. Currency, 2013 CO 64, 313 P.3d 554.