C.R.S. Section 18-1-1105
Law enforcement agency request for permission to dispose of evidence

  • procedures

(1)

A law enforcement agency may not request permission to dispose of DNA evidence in cases described in section 18-1-1102 (1)(a) and (1)(b).

(2)

In cases described in section 18-1-1102 (1)(c) and (1)(d), a law enforcement agency may seek to dispose of DNA evidence by providing notice, in the form developed pursuant to section 18-1-1108, to the district attorney that prosecuted the charges arising out of the investigation.

(3)

Upon receipt of the notice described in subsection (2) of this section, the district attorney shall determine whether to object to the disposal of the DNA evidence. The district attorney may determine that a portion of the DNA evidence may be disposed of and a portion of the DNA evidence shall be preserved.

(4)

Intentionally left blank —Ed.

(a)

If the district attorney determines that the DNA evidence should not be disposed of, the district attorney shall provide notice to the law enforcement agency that the DNA evidence shall be preserved. Upon the receipt of the notice from the district attorney to preserve the DNA evidence, the law enforcement agency shall preserve the DNA evidence until such time as the law enforcement agency is permitted by a court order to dispose of the DNA evidence.

(b)

Intentionally left blank —Ed.

(I)

If the district attorney determines that all or a portion of the DNA evidence may be disposed of, he or she shall send notice to the defendant and the law enforcement agency specifying which DNA evidence may be disposed of. Notice to the defendant shall include a copy of the notice form prepared by the law enforcement agency pursuant to subsection (2) of this section.

(II)

The defendant shall have ninety-eight days from the date the notice was sent by the district attorney to file a motion to preserve DNA evidence in the court in which the defendant was convicted. The motion shall state specific grounds supporting the preservation of the DNA evidence, and the defendant shall provide copies of the motion to the district attorney and the law enforcement agency.

(III)

If no motion is filed within the ninety-eight-day period, the district attorney or the law enforcement agency requesting disposal of the evidence shall file with the court a copy of the notice sent to the defendant pursuant to subparagraph (I) of this paragraph (b), and the court shall forthwith, without hearing, enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency.

(IV)

If the defendant files a motion, the court shall follow the procedure set forth in subsection (6) of this section.

(c)

Intentionally left blank —Ed.

(I)

If the law enforcement agency does not receive notice from the district attorney as described in paragraph (a) or (b) of this subsection (4) within a reasonable amount of time or does receive timely notice from the district attorney pursuant to paragraph (a) of this subsection (4), the law enforcement agency may file a motion with the court that entered the conviction in the case in which the evidence was collected, asking for a court order to dispose of the DNA evidence. The motion shall include a copy of the notice the law enforcement agency provided to the district attorney. The law enforcement agency shall provide a copy of the disposal motion to the district attorney and the defendant contemporaneously with the filing of the motion. The law enforcement agency shall specify the DNA evidence for which disposal is requested in the motion.

(II)

The defendant or the district attorney shall have ninety-eight days after the disposal motion is sent to file an objection in the court in which the disposal motion was filed. The objection shall state specific grounds supporting the preservation of the DNA evidence. If the district attorney files an objection, the district attorney shall provide copies of the objection to the defendant and the law enforcement agency. If the defendant files an objection, the defendant shall provide copies of the objection to the district attorney and the law enforcement agency.

(5)

The defendant, through legal counsel, shall have a reasonable right to review the DNA evidence to prepare the filing of a timely objection to the disposal motion or the district attorney’s notice received pursuant to paragraph (b) of subsection (4) of this section.

(6)

Intentionally left blank —Ed.

(a)

Upon receipt pursuant to subparagraph (II) of paragraph (c) of subsection (4) of this section of a timely filed objection, the court may deny the objection without a hearing if it finds on the face of the objection no grounds supporting the request to preserve the DNA evidence. The court shall then enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency.

(b)

If the court determines that a timely filed objection or motion to preserve states adequate grounds to require preservation of the DNA evidence, the court may set a hearing on the objection or motion to preserve, with notice to the district attorney, the law enforcement agency, and the defendant, or the court may deny the disposal motion without a hearing.

(c)

In considering an objection or motion to preserve pursuant to this subsection (6), the court shall consider the following factors in determining whether to order preservation of the DNA evidence:

(I)

Whether identification was a disputed issue;

(II)

Whether the evidence contains known DNA;

(III)

Whether it is possible to perform DNA testing on the evidence that has not previously been performed;

(IV)

Whether the defendant has served all of his or her sentence; and

(V)

Whether the defendant has state appellate or collateral attack rights that have not been exhausted, in which case there shall be a presumption that the DNA evidence should be preserved.

(d)

Following a hearing on a disposal motion or motion to preserve, the court shall enter an order either authorizing disposal of the DNA evidence or ordering the DNA evidence to be preserved. If the court orders preservation, the order may state the length of time the DNA evidence shall be preserved or establish a condition precedent for the disposition of the DNA evidence.

Source: Section 18-1-1105 — Law enforcement agency request for permission to dispose of evidence - procedures, https://leg.­colorado.­gov/sites/default/files/images/olls/crs2023-title-18.­pdf (accessed Oct. 20, 2023).

18‑1‑101
Citation of title 18
18‑1‑102
Purpose of code, statutory construction
18‑1‑102.5
Purposes of code with respect to sentencing
18‑1‑103
Scope and application of code
18‑1‑104
“Offense” defined - offenses classified - common-law crimes abolished
18‑1‑201
State jurisdiction
18‑1‑202
Place of trial - applicability
18‑1‑301
Second trial barred by former prosecution for same offense
18‑1‑302
Second trial barred by former prosecution for different offense
18‑1‑303
Second trial barred by prosecution in another jurisdiction
18‑1‑304
Former prosecution not a bar
18‑1‑401
Purpose
18‑1‑402
Presumption of innocence
18‑1‑403
Legal assistance and supporting services
18‑1‑404
Preliminary hearing or waiver - dispositional hearing
18‑1‑405
Speedy trial - definition
18‑1‑406
Right to jury trial
18‑1‑407
Affirmative defense
18‑1‑408
Prosecution of multiple counts for same act
18‑1‑409
Appellate review of sentence for a felony
18‑1‑410
Postconviction remedy
18‑1‑410.5
Relief from improperly entered guilty pleas - legislative declaration
18‑1‑410.6
Relief from improperly entered guilty pleas for certain misdemeanor and municipal offenses - legislative declaration
18‑1‑411
Postconviction testing of DNA - definitions
18‑1‑412
Procedure for application for DNA testing - appointment of counsel
18‑1‑413
Content of application for DNA testing
18‑1‑414
Preservation of evidence
18‑1‑415
Testing - payment
18‑1‑416
Results of the DNA test
18‑1‑417
Ineffective assistance of counsel claims - waiver of confidentiality
18‑1‑501
Definitions
18‑1‑502
Requirements for criminal liability in general and for offenses of strict liability and of mental culpability
18‑1‑503
Construction of statutes with respect to culpability requirements
18‑1‑503.5
Principles of criminal culpability
18‑1‑504
Effect of ignorance or mistake upon culpability
18‑1‑505
Consent
18‑1‑601
Liability based upon behavior
18‑1‑602
Behavior of another
18‑1‑603
Complicity
18‑1‑604
Exemptions from liability based upon behavior of another
18‑1‑605
Liability based on behavior of another - no defense
18‑1‑606
Criminal liability of business entities - definitions
18‑1‑607
Criminal liability of an individual for corporate conduct
18‑1‑701
Execution of public duty
18‑1‑702
Choice of evils
18‑1‑703
Use of physical force - special relationships
18‑1‑704
Use of physical force in defense of a person - definitions
18‑1‑704.5
Use of deadly physical force against an intruder
18‑1‑705
Use of physical force in defense of premises
18‑1‑706
Use of physical force in defense of property
18‑1‑706.5
Justification and exemption from liability when rendering emergency assistance to an at-risk person or animal in a locked vehicle
18‑1‑707
Use of force by peace officers - definitions
18‑1‑708
Duress
18‑1‑709
Entrapment
18‑1‑710
Affirmative defense
18‑1‑711
Immunity for persons who suffer or report an emergency drug or alcohol overdose event - definitions - repeal
18‑1‑712
Immunity for a person who administers an opiate antagonist during an opiate-related drug overdose event - definitions
18‑1‑712.5
Immunity for sex workers and persons who are victims of human trafficking for sexual servitude and who suffer or report an assault - definition
18‑1‑713
Victims of human trafficking of a minor for involuntary servitude or sexual servitude - affirmative defenses
18‑1‑714
Protective hearing - victim’s, defendant’s, or witness’s gender identity, gender expression, or sexual orientation - definitions
18‑1‑801
Insufficient age
18‑1‑802
Insanity
18‑1‑803
Impaired mental condition
18‑1‑804
Intoxication
18‑1‑805
Responsibility - affirmative defense
18‑1‑901
Definitions
18‑1‑1001
Protection order against defendant - definitions
18‑1‑1001.5
Protection order against defendant - transfer of wireless telephone service in domestic violence cases - definitions
18‑1‑1002
Criminal contempt proceedings - notice to district attorney
18‑1‑1101
Definitions
18‑1‑1102
Scope
18‑1‑1103
Duty to preserve DNA evidence
18‑1‑1104
Manner and location of preservation of DNA evidence
18‑1‑1105
Law enforcement agency request for permission to dispose of evidence - procedures
18‑1‑1106
Defendant request for disposition of or waiver of preservation of DNA evidence - procedures
18‑1‑1107
Victim request for disposition of DNA evidence - procedures
18‑1‑1108
Notice - form and sufficiency
Green check means up to date. Up to date

Current through Fall 2024

§ 18-1-1105’s source at colorado​.gov