Hit & Run Defense - Colorado Springs - leaving the scene of an accident, failure to stop & render aid
failure to report accident, duty upon striking unattended vehicle, paint scrapings analysis

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        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

        When a criminal suspect voluntarily gives permission for police or law enforcement to search, items found in that search will likely be admissible as evidence.  Conversely, searches without a warrant are presumed unlawful with some exceptions.  Evidence found as a result of an unlawful search may be suppressed (excluded from admission) as a fruit of the poisonous tree.

        Every citizen has the constitutional right to be free from unreasonable search and seizure.  Never consent to a search or seizure without advice of legal counsel.  Let law enforcement procure a warrant or face possible constitutional challenge to the evidence.

        Similarly, no other rights should be waived by any criminal suspect or defendant without advice from counsel.  If you aren't certain what your rights are at the time of the police request, simply say no - I need to speak to an attorney.

DEFINITIONS - COLORADO STATE COURTS

1.  Vehicle means any device which is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks; but such term shall not include any farm tractor or any implement of husbandry designed primarily or exclusively for use and used in agricultural operations or any device moved by muscular power, or moved exclusively over stationary rails or tracks, or designed to move primarily through the air.  Source: COLJI 37(10) - that's a jury instruction.

2.  Motor Vehicle means any self-propelled vehicle which is designed primarily for travel on the public highways and which is generally and commonly used to transport persons and property over the public highways, but the term does not include motorized bicycles. For purposes of the offenses of vehicular homicide, driving under the influence, driving while impaired, or reckless driving for farm tractors operated on streets and highways, "motor vehicle" includes a farm tractor which is not otherwise classified as a motor vehicle.  Source COLJI 37(3)

3.  Driver means every person, including a minor driver under the age of twenty-one years, who drives or is in actual physical control of a vehicle.  CRS 42-1-102(27)

4.  Attorney Note. Notice the verbiage distinction in laws.  Most refer to vehicle; a few references are made to motor vehicle.  This is intentional and has meaning.  Prosecutors are now charging "DUI Bicycle" and could charge "Bicycle Hit & Run"

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CRS 42-4-1601. Accidents involving death or personal injuries - duties.
                Attorney Note - major offense for purposes of habitual offender finding

        (1) The driver of any vehicle directly involved in an accident resulting in injury to, serious bodily injury to, or death of any person shall immediately stop such vehicle at the scene of such accident or as close to the scene as possible but shall immediately return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 42-4-1603(1). Every such stop shall be made without obstructing traffic more than is necessary. 
        (1.5) It shall not be an offense under this section if a driver, after fulfilling the requirements of subsection (1) of this section and of section 42-4-1603(1), leaves the scene of the accident for the purpose of reporting the accident in accordance with the provisions of sections 42-4-1603(2) and 42-4-1606. 
        (2) Any person who violates any provision of this section commits: 
                (a) A class 1 misdemeanor traffic offense if the accident resulted in injury to any person; 
                (b) A class 5 felony if the accident resulted in serious bodily injury to any person; 
                (c) A class 4 felony if the accident resulted in the death of any person. 
        (3) The department shall revoke the driver's license of the person so convicted. 
        (4) As used in this section and sections 42-4-1603 and 42-4-1606: 
                (a) "Injury" means physical pain, illness, or any impairment of physical or mental condition. 
                (b) "Serious bodily injury" means injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree. 
        Refer to Sentencing page for more information.
        Refer to Nuisance Abatement page regarding forfeiture of vehicle.

CRS 42-4-1602. Accident involving damage - duty.
        (1) The driver of any vehicle directly involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall immediately return to and in every event shall remain at the scene of such accident, except in the circumstances provided in subsection (2) of this section, until the driver has fulfilled the requirements of section 42-4-1603. Every such stop shall be made without obstructing traffic more than is necessary. Any person who violates any provision of this subsection (1) commits a class 2 misdemeanor traffic offense. 
        (2) When an accident occurs on the traveled portion, median, or ramp of a divided highway and each vehicle involved can be safely driven, each driver shall move such driver's vehicle as soon as practicable off the traveled portion, median, or ramp to a frontage road, the nearest suitable cross street, or other suitable location to fulfill the requirements of section 42-4-1603. 
        Refer to Sentencing page for more information.

CRS 42-4-1603. Duty to give notice, information, and aid.  aka failure to stop & render aid
        (1) The driver of any vehicle involved in an accident resulting in injury to, serious bodily injury to, or death of any person or damage to any vehicle which is driven or attended by any person shall give the driver's name, the driver's address, and the registration number of the vehicle he or she is driving and shall upon request exhibit his or her driver's license to the person struck or the driver or occupant of or person attending any vehicle collided with and where practical shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if the carrying is requested by the injured person. 
        (2) In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (1) of this section and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsection (1) of this section, insofar as possible on the driver's part to be performed, shall immediately report such accident to the nearest office of a duly authorized police authority as required in section 42-4-1606 and submit thereto the information specified in subsection (1) of this section. 
        Refer to Sentencing page for more information.
        Refer to Nuisance Abatement page regarding forfeiture of vehicle.

CRS 42-4-1604. Duty upon striking unattended vehicle or other property.
        The driver of any vehicle which collides with or is involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and either locate and notify the operator or owner of such vehicle or other property of such fact, the driver's name and address, and the registration number of the vehicle he or she is driving or attach securely in a conspicuous place in or on such vehicle or other property a written notice giving the driver's name and address and the registration number of the vehicle he or she is driving. The driver shall also make report of such accident when and as required in section 42-4-1606. Every stop shall be made without obstructing traffic more than is necessary. This section shall not apply to the striking of highway fixtures or traffic control devices which shall be governed by the provisions of section 42-4-1605. Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. 
        Refer to Sentencing page for more information.

CRS 42-4-1605. Duty upon striking highway fixtures or traffic control devices.

CRS 42-4-1606. Duty to report accidents.  aka failure to report accident
        (1) The driver of a vehicle involved in a traffic accident resulting in injury to, serious bodily injury to, or death of any person or any property damage shall, after fulfilling the requirements of sections 42-4-1602 and 42-4-1603(1), give immediate notice of the location of such accident and such other information as is specified in section 42-4-1603(2) to the nearest office of the duly authorized police authority and, if so directed by the police authority, shall immediately return to and remain at the scene of the accident until said police have arrived at the scene and completed their investigation thereat. 
        (2) Repealed. 
        (3) The department may require any driver of a vehicle involved in an accident of which report must be made as provided in this section to file supplemental reports whenever the original report is insufficient in the opinion of the department and may require witnesses of accidents to render reports to the department. 
        (4)    (a) (I) It is the duty of all law enforcement officers who receive notification of traffic accidents within their respective jurisdictions or who investigate such accidents either at the time of or at the scene of the accident or thereafter by interviewing participants or witnesses to submit reports of all such accidents to the department on the form provided, including insurance information received from any driver, within five days of the time they receive such information or complete their investigation. The law enforcement officer shall indicate in such report whether the inflatable restraint system in the vehicle, if any, inflated and deployed in the accident. For the purposes of this section, "inflatable restraint system" has the same meaning as set forth in 49 CFR sec. 507.208 S4.1.5.1 (b). 
                    (II) Repealed. 
                (b) The law enforcement officer shall not be required to complete an investigation or file an accident report: 
                    (I) In the case of a traffic accident involving a motor vehicle, if the law enforcement officer has a reasonable basis to believe that damage to the property of any one person does not exceed one thousand dollars and if the traffic accident does not involve injury to or death of any person; except that the officer shall complete an investigation and file a report if specifically requested to do so by one of the participants or if one of the participants cannot show proof of insurance; or 
                    (II) In the case of a traffic accident not involving a motor vehicle, if the traffic accident does not involve serious bodily injury to or death of any person. 
        (5) The person in charge at any garage or repair shop to which is brought any motor vehicle which shows evidence of having been struck by any bullet shall report to the nearest office of the duly authorized police authority within twenty-four hours after such motor vehicle is received, giving the vehicle identification number, registration number, and, if known, the name and address of the owner and operator of such vehicle together with any other discernible information. 
        (6) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. 
        Refer to Sentencing page for more information.
        Refer to Nuisance Abatement page regarding forfeiture of vehicle.

CRS 42-4-1607. When driver unable to give notice or make written report. 
        (1) Whenever the driver of a vehicle is physically incapable of giving an immediate notice of an accident as required in section 42-4-1606(1) and there was another occupant in the vehicle at the time of the accident capable of doing so, such occupant shall give or cause to be given the notice not given by the driver.
        (2) Repealed. 
        (3) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. 
        Refer to Sentencing page for more information.

CRS 42-4-1608. Accident report forms. 
        (1) The department shall prepare and upon request supply to police departments, coroners, sheriffs, and other suitable agencies or individuals forms for accident reports required under this article, which reports shall call for sufficiently detailed information to disclose, with reference to a traffic accident, the contributing circumstances, the conditions then existing, and the persons and vehicles involved.
        (2) Every required accident report shall be made on a form approved by the department, where such form is available.

42-4-1609. Coroners to Report. 
        Every coroner or other official performing like functions shall on or before the tenth day of each month report in writing to the department the death of any person within such official's jurisdiction during the preceding calendar month as the result of an accident involving a motor vehicle and the circumstances of such accident. 

42-4-1610. Reports by interested parties confidential. 
        All accident reports and supplemental reports required by law to be made by any driver, owner, or person involved in any accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department; except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his or her presence at such accident. Except as provided in section 42-7-504(2), no such report shall be used as evidence in any trial, civil or criminal, arising out of an accident; except that the department shall furnish, upon demand of any person who has, or claims to have, made such a report or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or failure to comply with the requirement that such a report be made to the department. This section shall not be construed to mean that reports of investigation or other reports made by sheriffs, police officers, coroners, or other peace officers shall be confidential, but the same shall be public records and shall be subject to the provisions of section 42-1-206. 

        Under Colorado law, if the insurance information of a driver was not included in a law enforcement traffic accident report, a State of Colorado Accident Report must be submitted to the DMV within 10 days of an accident. CRS 42-4-1609 Also by statute, statements by a driver in the accident report may not be used in conjunction with any court proceedings, criminal or civil, except that the DMV may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his or her presence at such accident. CRS 42-4-1610, CRS 42-7-504.  The primary purpose of filing the accident report is to comply with state law, and to provide evidence of insurance on the vehicle - thereby avoiding an FRA suspension.- refer to link for information.  If any of the below charges are alleged, a driver should consult with his or her defense attorney regarding exercise of constitutional privileges before making any oral or written statement.

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        DMV - State of Colorado Accident Report
        DMV - Evidence of Insurance
        DMV - Affidavit of Financial Responsibility
        DMV - FRA - Release from Liability
        DMV - FRA - Waiver of Security - Financial Responsibility
        DMV - Promissory Note Contract
        DMV - Affidavit - Out of State Residency - FRA SR-22 Avoidance
        Other DMV forms

        CSPD Accident Cold Report    due within 72 hours of accident  (large file - please be patient)
                Any person may obtain a hardcopy cold report from the CSPD Police Operations Center

Defendant's Vehicle Not Involved in Accident

1. Damage and transfer paint
           The suspect's vehicle may have damage and transfer paint on it the same color as that of the victim's vehicle or other damaged object.  That damage:
               a.)  may have occurred in the alleged hit and run accident, 
               b.)  may have been pre-existing damage with similar color transfer paint
           The victim's vehicle may have sustained damage and transfer paint from the vehicle which struck it. That transfer paint may appear to be the same as on the defendant's vehicle and:
               a.)  may be from the suspect's / defendant's vehicle
               b.)  may be from a third person's vehicle

2. "Red paint is not red paint"
           Paint scrapings may be procured from both the defendant's vehicle and the victim's vehicle or other damaged item.
           Even paint batches of the same color applied by the same vehicle manufacturer will have slightly different chemical composition.
           Paint scrapings analysis - infrared spectroscopy and scanning electron microscopy with x-ray emission of the paints will reveal chemical composition and can prove whether or not the transfer and original paints are from the same batch.  Simply put - the red transfer paint on your white vehicle didn't come from this red vehicle belonging to defendant - exculpatory proof.

3. Dust off your check book - time to pay an investigator to procure the paint samples and preserve chain of custody, and to pay the laboratory for for testing of paint scrapings by infrared spectroscopy and scanning electron microscopy with x-ray emission.  Refer to laboratory costs - it's quite expensive.  A series of tests are performed by the lab in search of exclusion.  As more tests are required to exclude, laboratory fees and costs increase.

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Defendant Not Driving

1. The State must prove beyond a reasonable doubt that the defendant was the person driving a vehicle involved in the alleged accident.
           It is common for a eyewitness to record the license number of the vehicle leaving the scene, however not recall any particulars regarding the driver - including but not limited to sex, age, race or physical appearance.

2. Law enforcement officers are not required to offer Miranda warnings unless an interrogation (questioning) takes place in a custodial setting.  They therefore frequently attempt to ask questions regarding ownership and usage of the vehicle, perhaps by phone when the suspect is caught totally unaware.  Arrest by phone is a tough argument for defense counsel regarding custodial setting.  Police may then include a request for an in person interview at the station, with an invitation to come arrest and book through the jail house if the suspect's cooperation is not forthcoming.
           This attorney recommends the suspect exercise his / her rights to silence and the presence of counsel.
           If the officer intends to arrest, the defendant can make prior arrangements with a bail bondsman to reduce the amount of time from initial booking to release.  Refer to the Bail Bond page.
           Arrest without sufficient evidence to convict is preferable to admissions which may ultimately lead to conviction.

3. Law enforcement officers can obtain a court order to produce the vehicle, however they frequently intimidate the owner by threatening to use production and damage assessment.  
           This attorney recommends production of the vehicle at counsel's office or a private investigator's office.
           Defendant client is not available to the law enforcement officer for questioning, only the vehicle for inspection
           Intimidation and admissions can not occur if the vehicle owner / client is not present
           This attorney has seen law enforcement officers photograph a client's vehicle and take measurements, however in 25+ years of traffic practice, I have never seen the State procure paint scrapings and conduct electrophoresis testing regarding a hit and run charge.

4. The defendant may have an alibi - other location at the time of the alleged incident.

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Burden of Proof.  The state must prove each and every element of the offense charged beyond a reasonable doubt.  If a factual defense exists such as wrong transfer paint or someone else driving, it's a good idea to preserve and present the evidence necessary to convince a jury of your claims.  You may even convince the prosecutor that the state's case is so weak, they drop charges before trial.

        Where relevant, I utilize the services of independent professionals.  Rates of independent providers of professional services change periodically and billings are not controlled by counsel.

        If retained by counsel as an agent of the attorney, such independent service providers are bound by the attorney-client privilege.  If retained privately by the client, no such agency or confidentiality exists.