2010 Legislative Wrap Up

On May 12, 2010, the 67th General Assembly ended what has been labeled as the most contentious legislative session that anyone can remember. Although, leadership in both houses used their opening day remarks to talk about bipartisanship, the sentiments were short lived. Not only were we entering an election year, but legislators were facing a billion-dollar-plus budget shortfall, with many of the one- time budget balancing measures, used in the past, no longer available. Some of the other issues that legislators would face included: shoring up the Public Employee’s Pension system and preventing it from becoming insolvent, improving educator effectiveness, addressing the fiscal challenges facing our higher education institutions, transitioning from coal-fired power plants to natural gas or lower emitting energy sources, and trying to regulate the use of medical marijuana.

Early on in the session, the lines were drawn between the democrats, who control the House, Senate and Governor’s office, and the business community. Although, the majority-party legislative leaders spoke about job creation and economic growth, several bills that were introduced ,were believed by the business community, to do just the opposite. The bills eliminated or suspended tax exemptions and exclusions or increased fees, costing business $231.3 million.

In addition to the federal government passing health care reform legislation, the Colorado legislature also felt the need to pass more health care mandates, recognizing that much of what they are requesting from the industry will need to be redone, in a few years, to comply with the federal legislation. The Governor has created a board of health-policy advisers to guide the transition to the new health system. The Interagency Health Reform Implementing Board consists of 11 members of various departments and offices of the administration.

Another issue that has been on the minds of elected officials throughout the session was the threat of citizen initiatives. In particular, the state, local governments and special districts will follow closely three measures on the November ballot. The proposals would slash at least $1 billion annually in state taxes, roll back property taxes statewide and drastically limit government’s ability to construct new buildings. Currently, the top gubernatorial candidates, from both parties, oppose the measures. Some are also suggesting that opposition to the ballot proposals may lead to some relationship mending between the business community and the democrat legislators.

COVA Bills of Interest

HB10-1090, Representative Mark Waller (R-Colorado Springs) and Senator John Morse (D-Colorado Springs) –Concerning the Punishment for a Person Who is Convicted of Driving a Motor Vehicle with Knowledge that His or Her Driver’s Lincense is Under Restraint. The bill removes the mandatory sentence requirement, but still allows a judge to sentence an offender to jail time. It does not change sentencing requirements for persons whose license restraint is due to an alcohol related offense, such as driving under the influence (DUI).

 

HB10-1090 was signed by the Governor on March 29, 2010.

 

HB10-1201, Representative Karen Middleton (D-Aurora) and Senator Pat Steadman (D-Denver) –Concerning Duties Related to Peace Officer Contacts. The bill requires a law enforcement officer intending to perform a consensual search of a person, vehicle, or home to orally advise the individual of their right to refuse such a search. The officer must have verbal or written consent before proceeding. The consent requirement only applies to searches for which there is no other legal basis.

 

HB10-1201 was signed by the Governor on April 29, 2010.

 

HB10-1233, Representative Su Ryden (D-Aurora) and Senator Linda Newell (D-Littleton) – Concerning the Relocation of the Crime of Stalking in the Colorado Revised Statutes. This bill relocates the crime of stalking in the statutes. Currently, the stalking statute is located in the section of the Criminal Code pertaining to offenses against public peace, order, and decency. The bill moves the statute to the section pertaining to offenses against a person.

 

HB10-1233 was signed by the Governor on April 14, 2010.

 

HB10-1239, Representative Mark Waller (R-Colorado Springs) – Concerning Requiring a Defendant to Provide Notice of the Intent to Raise Certain Statutory Defenses. The bill would have required a defendant to provide notice if he or she plannned to introduce evidence of a mental condition that prevented him or her from having the required mental state for the crime. The court would be able to order an evaluation after the notice was provided. A defendant would have been required to provide notice if he or she planned to introduce evidence concerning self-induced intoxication, including the type of substance taken and the name of the practitioner who prescribed the substance. For both the notice of the mental condition and the notice of self-induced intoxication, the defendant would provide notice at the time of arraignment or at least 30 days prior to the trial.

 

HB10-1239 was Postponed Indefinitely by the House Judiciary Committee on February 25, 2010.

 

HB10-1334, Representative Steve King (R-Grand Junction) and Senator Pat Steadman (D-Denver), Concerning Changes to Indecency Crimes- The bill changes the criminal statutes concerning public

indecency and indecent exposure in the following ways:

• moves masturbation from public indecency to indecent exposure;

• moves the knowing exposure of a person's genitals with the purpose of causing affront

or alarm from indecent exposure to public indecency;

• makes a subsequent offense of exposing a person's genitals with the purpose of causing

affront or alarm a class 1 misdemeanor and unlawful sexual behavior under the

Colorado Sex Offender Registration Act; and

• makes the exposure of a person's genitals with the intent to arouse or satisfy the sexual

desire of any person part of the indecent exposure statute.

Public indecency is a class 1 petty offense and indecent exposure is a class 1 misdemeanor.

 

HB10-1334 was signed by the Governor on June 7, 2010.

 

HB10-1338, Representative Beth McCann (D-Denver) and Senator Pat Steadman (D-Denver), CONCERNING THE ELIGIBILITY FOR PROBATION OF A PERSON WHO HAS TWO

OR MORE FELONY CONVICTIONS, AND MAKING APPROPRIATIONS IN

CONNECTION THEREWITH- The bill allows individuals with two or more felony convictions that occur after the effective date of the bill to apply for probation with certain exceptions. A defendant may not apply for probation if the current or a prior conviction is for one of the following offenses:

• first or second degree murder;

• manslaughter;

• first or second degree assault;

• first or second degree kidnapping;

• a sex offense;

• first degree arson;

• first or second degree burglary;

• robbery or aggravated robbery;

• theft from the person of another;

• any felony offense committed against a child; or

• criminal attempt or conspiracy to commit any of the offenses listed above.

 

HB10-1338 was signed by the Governor on May 25, 2010

 

HB10-1347, Representative Claire Levy (D-Boulder) and Senator John Morse (D-Colorado Springs), CONCERNING MISDEMEANOR PENALTIES FOR PERSONS WHO ARE

CONVICTED OF MULTIPLE TRAFFIC OFFENSES INVOLVING ALCOHOL OR

DRUGS, AND MAKING AN APPROPRIATION THEREFOR- The bill adjusts the penalties for a second offense and creates a new set of penalties for a third or subsequent offense. During the mandatory period of imprisonment, an individual may only participate in certain county jail sentencing alternatives (i.e., work, educational, and medical release; home detention; and day reporting) if such programs are available through the county where the individual is incarcerated and if it is for the purpose of:

• continuing a position of employment held at the time of sentencing;

• continuing attendance at an educational institution at which the individual was enrolled

at the time of sentencing; or

• participation in a court-ordered alcohol or substance abuse education or treatment

program.

 

A subsequent offense that occurs less than five years after a prior conviction is not eligible for

alternative sentencing options such as a deferred prosecution, a deferred sentence, home detention,

day reporting, etc., except under the circumstances listed above. Repeat offenders are also not

eligible for earned time, good time, or trusty prisoner status while serving their mandatory jail

sentences. In addition to the mandatory jail sentence, fine, and community service, all repeat offenders

must complete a period of probation of at least two years. As a condition of probation the court:

• is required to impose a one-year suspended jail sentence, all or part of which may be

imposed if the offender violates a condition of probation;

• is required to include a mandate that the offender complete an alcohol or substance abuse

treatment program at the offender's expense;

• is required to order the offender to make restitution;

• may impose additional probation, not to exceed two years, to monitor the offender or

ensure that he or she continues to receive treatment;

• may require the offender to begin a treatment program while in jail;

• may require the offender to appear in court at any time during the probation period;

• may require the offender to use an ignition interlock device during the period of

probation at the offender's own expense;

• may require the person to submit to continuous alcohol monitoring; and

• may impose any additional conditions of probation that are allowed by law.

 

The existing minimum persistent drunk driver surcharge is raised from $50 to $100, which

will be deposited into the existing Persistent Drunk Driver Fund.

 

HB10-1347 was signed by the Governor on May 25, 2010.

 

HB10-1352, Representative Mark Waller (R-Colorado Springs) and Senator Pat Steadman (D-Denver) - CONCERNING CHANGES TO CRIMES INVOLVING CONTROLLED SUBSTANCES, AND MAKING AN APPROPRIATION IN CONNECTION THEREWITH. The bill makes a number of changes to

offenses related to controlled substances. In particular, it:

• lowers the penalty for the unlawful use of a controlled substance from various levels,

depending on the circumstances, to a class 2 misdemeanor, regardless of the

circumstances;

• separates the crime of possession of a controlled substance (other than marijuana) from

the crime of manufacturing, dispensing, selling, distributing, or possessing with intent

to manufacture, dispense, sell, or distribute;

• adds the sale of a controlled substance to a minor (under the age of 18) to the definition

of unlawful distribution, manufacturing, dispensing, sale or possession of a controlled

substance. Sale of a controlled substance to a minor is a class 3 felony and carries a

mandatory prison sentence;

• lowers the penalties for the crimes of unlawful possession of a controlled substance and

manufacturing, dispensing, selling, distributing, or possessing with intent to manufacture,

dispense, sell, or distribute;

• substantially changes offenses related to marijuana with regard to the amount required

to constitute a crime and lowers associated penalties;

• requires the court, in a case where an individual who is 18 or older is convicted of

transferring or dispensing any amount of marijuana to a person under the age of 15, to

sentence the defendant to a mandatory period of incarceration;

• increases the amount of a schedule I or II controlled substance necessary for a defendant,

who is convicted of unlawfully introducing, distributing, or importing such a substance

into Colorado, to be designated as a special offender for sentencing purposes;

• clarifies the conditions under which possession of a firearm in the commission of a drug

offense designates a defendant as a special offender;

• lowers the penalty for fraud and deceit related to a controlled substance to a class 6

felony;

• directs the General Assembly to appropriate the savings generated by the bill to the Drug

Offender Treatment Fund;

• requires that moneys appropriated pursuant to the bill be deposited in the Drug Offender

Surcharge Fund and allocated according to a plan developed by specified stakeholders

to cover the costs associated with the treatment of substance abuse or co-occurring

disorders of adult offenders who are assessed to be in need of treatment and who are:

• on probation;

• on diversion;

• on parole;

• in community corrections; or

• in jail;

• requires the Division of Criminal Justice (DCJ) in the Department of Public Safety to

annually analyze the amount of fiscal savings the bill generates over the previous fiscal

year and report such analysis to the Joint Budget Committee; and

• makes conforming amendments.

 

The bill raises the surcharge for class 4, 5, and 6 felonies,

class 1, 2, and 3 misdemeanors, and class 2 petty offenses related to the possession of marijuana.

 

HB10-1352 was signed by the Governor on May 25, 2010.

 

HB10-1364- Representative Su Ryden (D-Aurora) and Senator Evie Hudak (D-Westminster) - CONCERNING THE SEX OFFENDER MANAGEMENT BOARD, AND, IN

CONNECTION THEREWITH, CONTINUING THE SEX OFFENDER MANAGEMENT

BOARD, AND MAKING AN APPROPRIATION. The bill extends the repeal date for the Sex Offender Management Board (SOMB) from July 1, 2010, to July 1, 2015. Definitions of adult sex offender and juvenile who has committed a sex offense are added to the statutory section concerning the SOMB. In various statutory sections, juvenile offenders are referred to as juveniles who have committed a sexual offense rather than juvenile sex offenders. The following four existing crimes are added to the definition of a sex offense for the purposes of this statutory section:

• felony internet luring of a child (this was previously limited to the class 4 felony and now

includes the class 5 felony);

• sexual conduct in a penal institution;

• second degree kidnapping; and

• wholesale promotion of obscenity to a minor or promotion of obscenity.

 

The statutory section governing the creation, duties, and repeal of the SOMB is repealed and

reenacted with amendments. The membership and terms of the board stay the same, although the

members of the SOMB are now required to elect a chair and vice chair from among the board

membership, rather than having the executive director of the Department of Public Safety choose

the chair and vice chair. The bill makes the following changes to the duties of the board:

• language stating that there is no known cure for the propensity to commit sex abuse is

amended in the requirement that the SOMB prescribe a standardized procedure for the

evaluation and identification of adult sex offenders to acknowledge that, certain adult sex offenders are extremely habituated and cannot or will not respond to treatment;

• the requirement that the SOMB develop and implement standards for a system of

programs for the treatment of adult and juvenile sex offenders is removed;

• family counseling and shared living arrangements are added to the continuum of

treatment programs that may be used for all sex offenders;

• clarifying language is included stating that, to the extent possible, treatment programs

may be accessed by all offenders, including those with mental illness and co-occurring

disorders;

• the standards adopted by the SOMB must include a requirement that anyone who

provides sex offender evaluation, treatment, or polygraph services provide the SOMB

with the data and information the board deems necessary to carry out its duties; and

• the SOMB's existing duty to research and analyze the effectiveness of evaluation,

identification, and treatment procedures includes a review of the "no known cure"

philosophy and the containment model for sex offender management and treatment.

 

The statutory section concerning sex offender evaluation and treatment is repealed and

reenacted with amendments. Specifically, the bill makes the following changes to existing law. It:

• grants the SOMB specific authority to develop an application and review process for

approving individuals to be included on a list of persons who may provide sex offender

evaluation, treatment, and polygraph services, including a renewal process for those on

the list;

• establishes a formal process for the review of complaints and grievances against

individuals who provide services to sex offenders that involves referring such complaints

to the Department of Regulatory Agencies (DORA) for review;

• requires DORA to investigate the complaints and grievances and take appropriate

disciplinary action against the individual and share the results of the investigation and

disciplinary action with the SOMB;

• permits the SOMB to take additional disciplinary action against the individual, including

removing the individual from the provider list; and

• permits the SOMB to determine requirements for returning a provider to the list after he

or she has been removed following disciplinary action or another reason.

• Each offender entering treatment on or after July 1, 2010, shall be given a choice of at least three appropriate approved providers where available.

 

The SOMB is required to annually report the following information to the Judiciary

Committees of the House and Senate:

• the board's research and analysis of the effectiveness of evaluation, identification, and

treatment procedures including a review of the "no known cure" philosophy and the

containment model for sex offender management and treatment.

• best practices for the treatment and management of sex offenders;

• the number of treatment providers in the state;

• numbers of individuals who have committed sex offenses and information about

treatment; and

• a summary of the complaints or grievances against providers that were reviewed and

investigated by DORA and the resolution of those complaints.

 

A statutory provision concerning the designation of sexually violent predators is amended

to clarify when an offender convicted of a sex offense in another state or jurisdiction will be

designated a sexually violent predator in Colorado. Anyone so designated has the right to appeal the

designation in district court. The executive director of the Department of Public Safety is required,

after consultation with the SOMB, to promulgate rules regarding sex offender treatment standards,

lifetime supervision criteria, and eligibility standards for treatment providers. Finally, DORA is

required to conduct a sunset review of the SOMB prior to July 1, 2015.

 

HB10-1364 was vetoed by the Governor on May 21, 2010. A bill must be introduced in the 2011 Legislative Session to continue the SOMB.

 

HB10-1366, Representative Dennis Apuan (D-Colorado Springs) and Senator Linda Newell (D-Littleton) – Concerning the Prohibition of a Person Who is Serving a Sentence Under Community Supervision as a Result of Conviction for Certain Offenses From Acting as a Petition Circulator Unless the Person Receives Written Permission From the Appropriate Supervisory Entity Prior to Circulating any Petition. Thebill would have prohibited an individual from circulating a petition for an initiative or a referendum if the individual is on probation or parole for an offense involving unlawful sexual behavior or felony fraud, unless the individual received written permission from either the Parole Board, the court, or an appropriate probation officer.

 

HB10-1366 was Postponed Indefinitely by the Senate Finance Committee.

 

HB10-1413, Rep. Claire Levy (D-Boulder) and Rep. Mike May (R-Parker), Senator Linda Newell (D-Littleton) and Senator Kevin Lundberg (R-Berthoud) - CONCERNING JUVENILES WHO ARE TRIED AS ADULTS, AND MAKING AN APPROPRIATION IN CONNECTION THEREWITH. The bill repeals and

reenacts the direct file statute with changes. It raises the minimum age to 16, except in cases of:

• first degree murder;

• second degree murder; or

• a sex offense combined with one of the following:

• the alleged crime is a crime of violence;

• the juvenile used or threatened the use of a deadly weapon during the commission of

the crime;

• the juvenile has, within the previous two years, been adjudicated as a juvenile

delinquent for committing a class 3 felony;

• the juvenile has previously had charges direct filed or transferred, unless he or she

was found not guilty of such charges; or

• the juvenile is determined to be a habitual juvenile offender.

 

A district attorney who intends to direct file charges against a juvenile must provide notice

of such intent with the juvenile court at least 14 days prior to doing so. At the discretion of the

district attorney, the 14-day notice requirement does not apply to cases of first degree murder, second

degree murder, or sex offenses. The district attorney is:

• required to consider specific criteria in determining whether to direct file;

• permitted to extend the 14-day period for consideration, at his or her discretion;

• encouraged to meet with the defense counsel to discuss information relevant to the

factors being considered; and

• required to provide written notice about which factors led to such a decision.

 

The bill allows judges the discretion to sentence juveniles who were convicted of class 2 felonies

(excluding sex offenses) to the YOS except in the case of a second or subsequent sentence to the

DOC or the YOS.

 

HB10-1413 was signed by the Governor on May 25, 2010.

SB10-042, Senator Gail Schwartz (D-Snowmass Village) and Representative Jerry Frangas (D-Denver) – Concerning Prior Consent for Release of Financial Information to Facilitate Investigations of Financial Exploitation of At-Risk Adults. The bill adds a new article to Title 6 which pertains to consumer and

commercial affairs. It requires financial institutions to offer each eligible account holder who is or

becomes an at-risk adult, as defined in the Colorado Criminal Code, the option to voluntarily sign

a prior consent form for placement in the account holder's file. In signing the form, the account

holder waives the confidentiality limitations related to his or her financial records for the purpose

of investigations of financial exploitation. Nothing in the article or in a signed prior consent form

obligates a financial institution to report known or suspected financial exploitation of an account

holder. The Attorney General is required to develop the prior consent form by September 1, 2010.

The form shall be developed with input from the Division of Banking and the Division of Financial

Services in the Department of Regulatory Agencies, and other specified stakeholders.

 

SB10-042 was signed by the Governor June 8, 2010.

 

SB10-066, Senator Evie Hudak (D-Westminster) and Representative Claire Levy (D-Boulder) – Concerning the Requirement that Certain Persons Report Child Abuse or Neglect. Under current law, a mandatory reporter must report suspected child abuse and neglect even if the child is no longer a minor. The bill removes the requirement if the mandatory reporter:

• does not learn of the abuse or neglect until after the child is over the age of 18; and

• does not have reasonable cause to suspect that the perpetrator has abused or neglected

any other children who are currently below the age of 18 years old .

• Is not currently in a position of trust, as defined in Section 18-3-401(3.5)CRS

 

SB10-066 was signed by the Governor on June 10, 2010.

 

SB10-128, Senator Evie Hudak (D-Westminster) and Representative Joe Rice (D-Littleton) – Concerning Invasion of Privacy, and Making an Appropriation in Connection Therewith. Thebill moves the offense of invasion of privacy for sexual gratification from the unlawful sexual contact statute to its own statute. The penalty for invasion of privacy for sexual gratification is raised from a class 1 misdemeanor to a class 6 felony when it is the second or subsequent offense or the person observed or photographed is under the age of 15. The definition of a "photograph" for the purpose of invasion of privacy for sexual gratification and criminal invasion of privacy is expanded to include a live feed. The penalty for the offense of eavesdropping is lowered from a class 6 felony to a class 1 misdemeanor. The sections of the bill pertaining to invasion of privacy for sexual gratification do not take effect until July 1, 2012, and the remaining portions of the bill take effect

July 1, 2010.

 

SB10-128 was signed by the Governor June 10, 2010.

 

SB10-140, Senator Shawn Mitchell (R-Broomfield) and Representative Beth McCann (D-Denver) -  Concerning Human Trafficking. This bill repeals and relocates, statutory provisions related to trafficking in adults, trafficking in children, and coercion of involuntary servitude. Proof of force, fraud or coercion is required for trafficking in adults or children, while proof of force or fraud is required for coercion of involuntary servitude. All three offenses are added to the definition of "racketeering activity" under the Colorado Organized Crime Control Act.

 

SB10-140 was signed by the Governor on April 21, 2010.

 

SB10-159, Senator Joyce Foster (D-Denver) and Representative Joe Miklosi (D-Denver) –Concerning Defendant’s Statements at a Community Corrections Hearing. Community corrections boards are required to allow offenders, who are under consideration for transitional placement into a community corrections facility, to submit a written statement concerning the offender's transition plan, community support, and the appropriateness of placement in a community corrections program. A board may also choose to allow an offender to designate a person to submit a written statement or give an oral statement on the offender's behalf at a hearing concerning the placement of the offender. If an offender chooses to submit a written statement, he or she must do so within the timeframe and procedures established by the Department of Corrections (DOC). The DOC is not required to provide notice of a community corrections board hearing to anyone except a registered victim. Neither the community corrections boards nor the DOC is required to provide transportation or make arrangements for the appearance of an offender (or person designated by the offender to speak on his or behalf) at a community corrections hearing.

 

SB10-159 was signed by the Governor on May 27, 2010.