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        There are two types of collateral attacks.

        1.  The first type of collateral attack involves a defendant is charged with a crime or has a DMV adverse action pending.  One of the elements in the pending case involves prior conviction(s).
                a.  In the pending criminal charge, the defendant moves to suppress evidence of the prior conviction(s) or moves to dismiss the current charge on the basis the prior conviction(s) was / were improperly entered, or the DMV lacked jurisdiction to enter the DMV adverse action order.  The most common example would be a defendant charged with felony or misdemeanor driving under restraint who claims in the pending criminal case that the DMV adverse action order which took away driving privileges was entered improperly upon infirm prior convictions or that the DMV lacked jurisdiction.  If the DMV adverse action order is void and unlawful, pending driving under restraint criminal charges must be dismissed.
                b.  In the DMV adverse action hearing, the driver alleges the prior "conviction(s)" or points may not be used as a basis for taking away driving privileges on the basis the "conviction(s)" was / were improperly entered.  This could be litigated in the DMV adverse action hearing, or the driver may request a continuance and file a collateral attack in the underlying traffic court case(s).  Litigation at DMV adverse action hearing is the safe course - if continuance is requested and denied, insufficient evidence would be in the record for appeal.

        2.  In the second type of collateral attack, after final disposition in a traffic case defendant asks the court to set aside conviction on the basis it was improperly entered.

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        In either circumstance with a meritorious claim, the defendant is attempting to undo a previous wrong.  Collateral attack is a confusing area of law with which many prosecutors are not terribly familiar.  Sometimes, to better the client's position, defense simply throws it up against the wall to see if it sticks.  

        Collateral attack on a DMV adverse action order (suspension, revocation, denial, habitual offender status) would be justified only in two circumstances.

        Collateral attack could be maintained if the DMV adverse action order were void, rather than merely erroneous or voidable, because the department had lacked jurisdiction over the person or the subject matter. Estate of Bonfils v. Davis, 190 Colo. 70, 543 P.2d 701 (1976); McLeod v. Provident Mutual Life Insurance Company of Philadelphia, 186 Colo. 234, 526 P.2d 1318 (1974); Davidson Chevrolet v. City and County of Denver, 138 Colo. 171, 330 P.2d 1116 (1958).
        The driver would be entitled to collaterally attack the revocation order had it been based on "a conviction obtained in violation of his / her constitutional rights". People v. Heinz, 197 Colo. 102, ___, 589 P.2d 931, 933 (1979).

        When an administrative agency has jurisdiction over the person and subject matter in question, and when the agency is not proceeding contrary to the requirements of the state or federal constitution, the fact that the agency's order is erroneously or improvidently granted does not justify failure to obey the order. Where a driver does not challenge a DMV adverse action order against the driver's license until after arrest for driving under restraint, collateral attack on erroneous application of law to the facts will not be heard.  Drivers have the duty to comply with a DMV adverse action order until it is rescinded pursuant to a direct appeal rather than a collateral attack.  People v. Able, 200 Colo. 115, 618 P.2d 1110 (Colo. 1980)

        Defendant must make a prima facie showing that the prior conviction was invalid.  Once such a showing has been made, the People have the burden to establish that the conviction was constitutionally obtained.  People v. Hampton, 619 P.2d 48 (Colo. 1980), People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (Colo. 1980), People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979).

CRS 42-4-1702. Alcohol- or drug-related traffic offenses - collateral attack. 
        (1) Except as otherwise provided in paragraph (b) of this subsection (1), no person against whom a judgment has been entered for a violation of section 42-4-1301 (1) or (2) shall collaterally attack the validity of that judgment unless such attack is commenced within six months after the date of entry of the judgment.
        (2) 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 paragraph (a) of this subsection (1) shall be:
                (a) A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;
                (b) A case in which the court entering judgment did not have jurisdiction over the person of the violator;
                (c) 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 of the violator to an institution for treatment as a mentally ill person; or
(d) 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.

CRS 42-4-1708. Traffic infractions - .... collateral attack. 
        (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.
                (b) 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 paragraph (a) of this subsection (5) shall be:
                        (I) A case in which the court entering judgment did not have jurisdiction over the subject matter of the alleged infraction;
                        (II) A case in which the court entering judgment did not have jurisdiction over the person of the violator;
                        (III) 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 of the violator to an institution for treatment as a mentally ill person; or
                        (IV) 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.

MISDEMEANOR AND TRAFFIC OFFENSES

        State Court - County Court.  Regarding traffic offenses and misdemeanor cases where defendant entered a plea before a judge, the collateral attack is brought in County Court in the county in which the case was held.  Upon filing the collateral attack, the file is ordered from archived records and a transcript of all proceedings would also be ordered upon defendant's motion.   Upon receipt of the file and transcript, hearing is held.  The standards and limitations are set forth above.

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TRAFFIC INFRACTIONS
Minor Traffic Violations - Usually Remitted (Paid) by Mail

        State Court - County Court.  Regarding PA Notices where the driver remitted payment by mail to DMV Denver, the collateral attack is brought in County Court in the county in which the ticket was written.  Upon filing the collateral attack, the file is ordered sent from DMV Denver to the local court.  Upon receipt of the file, hearing is held.  The standards and limitations are set forth above.

        Municipal Court.  Regarding PA notice where the driver remitted payment by mail to the local municipal court or paid at a traffic violations bureau (clerk of court), the collateral attack is brought in Municipal Court in the town or city in which the ticket was written.  Upon filing the collateral attack, the file is ordered from archived records.  Upon receipt of the file, hearing is held.  The standards and limitations are set forth above.

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PRACTICALITIES

        Regarding misdemeanor and traffic offenses, judges are usually very careful with the C.R.Crim.P. 11 providency hearing - advisements before acceptance of plea.  Generally, an improper advisement can not be anticipated.  That doesn't mean a prosecutor wouldn't deal a disposition in advance of hearing.

        If brought more than 6 months after the plea / payment, I tell prospective clients the collateral attack could be shut down by the prosecution, however if it is important, try anyway.  The local district attorney's office has been cooperative, but that could change if a given DDA were familiar with collateral attack law.  I have not had occasion to bring collateral attack in Municipal Court in years, and therefore can offer no indication regarding cooperation.

        Collateral attack would be a defense normally considered by counsel in a misdemeanor or felony driving under restraint charge.  Counsel conducts factual interviews with the client and would inquire regarding the circumstances surrounding each underlying "conviction."  On-Line Colorado Driving Records are now available instantaneously allowing an overview of the driving history leading to DMV adverse action.  It may be necessary to search or order court file records or transcripts of court proceedings, but the facts can be ascertained.  If relevant, collateral attack should be utilized.

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