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CRS 16-5-401. Limitation for commencing criminal proceedings
        (1) (a) Except as otherwise provided by statute applicable to specific offenses or circumstances, no person shall be prosecuted, tried, or punished for any offense unless the indictment, information, or complaint is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant within the period of time after the commission of the offense as specified below:

        (2) The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.

        The burden of proof is upon the prosecution to show

        Evidence of the date of alleged offense is established by the charging document, law enforcement records and dispatch - 911 tapes / transcript.

        Evidence of the date of arrest is established by prosecution and law enforcement records and dispatch - 911 tapes / transcript.

        If a prior prosecution was pending, evidence of the pending time is established by court documents.  This would usually be a criminal case dismissed for lack of jurisdiction or other reason before jeopardy attached.  Jeopardy attaches at the time the first witness is called in a trial to the court, or when the jury is sworn in a jury trial.

        Defense counsel must establish are that the defendant was not absent from the state during the relevant period of time.  This can be accomplished through a driving record, driver's license, voter registration and business records establishing presence, such as payroll records, local merchant charge or cash receipts bearing the date and names of the merchant and of the defendant.  National merchants would not be sufficient unless the receipt clearly establishes the location of the store as being in Colorado.  As evidence, I prefer to have at least one business record every two weeks during the relevant period of time.

        A limited (special) appearance is filed with a motion to dismiss.  In personam (personal) jurisdiction is attacked, not in rem (subject matter) jurisdiction.  This is to avoid a general appearance.  Refer to Jurisdictional Attack page

        This is an unusual defense based upon the fact law enforcement is usually efficient at re-service or re-arrest if a case is dismissed, but it has arisen in DUI cases which had been initially dismissed for jurisdictional defect.

SPEEDY TRIAL STATE COURTS
CRS 18-1-405, C.R.Crim.P. 48(b), Colorado Constitution Article 2, §16, U.S. Constitution, Amendment VI
        6 Months from entry of plea of not guilty
        Continuances or delays requested by or caused by the defendant extend the time of speedy trial
        Continuance - 6 months from the date upon which the continuance was granted
        Non-Appearance - 6 months from the date of next court appearance

        Dismissal motion required.  To be entitled to a dismissal, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under this section.

        Objection required.  If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section

        Other periods of time defined by law are excluded from speedy trial.

        A balancing test (4 factors) is used to determine whether right to speedy trial has been denied
                1.) the length of the delay, 2.) the reason for the delay, 3.) the defendant's assertion or demand for a speedy trial, and 4.) the prejudice to the defendant.  People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Chavez, 779 P.2d 375 (Colo. 1989), People v. Fears, 962 P.2d 272 (Colo. App. 1997), Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978).

        This is an unusual defense based upon the fact prosecutors and courts are mindful of speedy trial and set accordingly, but I have had domestic violence cases dismissed upon speedy trial grounds.

SPEEDY TRIAL MUNICIPAL COURTS   C.Muni.C.P. 248(b)    -    90 days from entry of plea of not guilty
        If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the case and the defendant shall not thereafter be tried for the same offense; except that if on the day of a trial set within the last ten days of the above time limit a necessity for a continuance arises which the court in the exercise of sound judicial discretion determines would warrant an additional delay, then one continuance, not exceeding thirty days, may be allowed, after which the dismissal shall be entered as above provided if trial is not held within the additional time allowed.

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