Colorado § 16-10-109 - Trial by jury for petty offenses.

§ 16-10-109. Trial by jury for petty offenses.

(1) For the purposes of this section, "petty offense" means any crime or offense classified as a petty offense or, if not so classified, which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine, and includes any violation of a municipal ordinance or offense which was not considered a crime at common law; except that violation of a municipal traffic ordinance which does not constitute a criminal offense or any other municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment under any counterpart state statute shall not constitute a petty offense. No child under the age of eighteen years shall be entitled to a trial by jury for a violation of a municipal ordinance or a county ordinance for which imprisonment in jail is not a possible penalty. Nothing in this subsection (1) shall prohibit a municipality or county from granting a right to trial by jury for ordinance violations.

(2) A defendant charged with a petty offense shall be entitled to a jury trial if, within twenty-one days after entry of a plea, the defendant makes a request to the court for a jury trial, in writing, and tenders to the court a jury fee of twenty-five dollars unless the fee is waived by the judge because of the indigence of the defendant. The jury shall consist of three jurors unless a greater number, not to exceed six, is requested by the defendant in said jury demand. If the charge is dismissed or the defendant is acquitted of the charge or if the defendant, having paid the jury fee, files with the court at least seven days before the scheduled trial date a written waiver of jury trial, the jury fee shall be refunded.

(3) At the time of arraignment for any petty offense in this state, the judge shall advise any defendant not represented by counsel of the defendant's right to trial by jury, of the requirement that the defendant, if he or she desires to invoke his or her right to trial by jury, request such trial by jury within twenty-one days after entry of a plea, in writing, of the number of jurors allowed by law, and of the requirement that the defendant, if he or she desires to invoke his or her right to trial by jury, tender to the court within twenty-one days after entry of a plea a jury fee of twenty-five dollars unless the fee is waived by the judge because of the indigence of the defendant.

Source: L. 72: R&RE, p. 238, § 1. C.R.S. 1963: § 39-10-109. L. 79: (1) amended, p. 679, § 4, effective July 1. L. 82: (1) amended, p. 655, § 6, effective January 1, 1983. L. 88: (1) amended, p. 667, § 2, effective July 1. L. 93: (1) amended, p. 1728, § 6, effective July 1. L. 96: (1) amended, p. 1680, § 3, effective January 1, 1997. L. 2001: (1) amended, p. 859, § 8, effective July 1. L. 2005: (2) and (3) amended, p. 427, § 9, effective July 28. L. 2012: (2) and (3) amended, (SB 12-175), ch. 208, p. 853, § 82, effective July 1.

ANNOTATION

Law reviews. For article, "Colorado's Municipal System", see 30 Colo. Law. 33 (Dec. 2001). For article, "The Right to a Jury Trial in Petty Offense Cases", see 45 Colo. Law. 27 (Dec. 2016).

Defendant's right to trial by jury has been expanded to include petty offenses. Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980).

Where plaintiff was charged with violations of the Denver municipal code pertaining to overtime parking and the maximum possible punishment for each violation was a $5 fine, plaintiff was entitled to jury trials on these matters. Trinen v. Diamond, 44 Colo. App. 325, 616 P.2d 986 (1980).

Where defendant was a juvenile charged with theft under the Longmont municipal code, which charge is punishable by a maximum $300 fine and the counterpart state statute to which provides for punishment by imprisonment, the charge qualified as a petty offense and defendant was entitled to a jury trial. Bradford v. Longmont Municipal Court, 830 P.2d 1135 (Colo. App. 1992).

Defendants charged with municipal violation that constitutes petty offense are entitled to a jury trial. Bradford v. Longmont Mun. Court, 830 P.2d 1135 (Colo. App. 1992).

The fact that a violation is punishable by fine alone does not dictate the character of the violation as criminal or noncriminal, but merely reflects the severity of the violation. Thus, the fact that the ordinance imposes only a fine does not mean that it is not criminal in nature. Roalstad v. City of Lafayette, 2015 COA 146, 363 P.3d 790.

A municipality cannot simply avoid providing a jury trial under this section by purporting to decriminalize an ordinance that has a counterpart in the state criminal statutes and would otherwise be criminal. Roalstad v. City of Lafayette, 2015 COA 146, 363 P.3d 790.

Right to jury trial not abridged by trial forum. The statutory right to a jury trial cannot be abridged on account of the forum in which the petty offense is tried. City of Aurora ex rel. People v. Erwin, 706 F.2d 295 (10th Cir. 1983).

Written jury demand need not specify number of jurors. Subsection (2) does not require a defendant charged with a petty offense in municipal court to state a particular number of jurors in his written jury demand. Lininger v. City of Sheridan, 648 P.2d 1097 (Colo. App. 1982).

City's vicious animal ordinance is a "petty offense" for purposes of subsection (1) of this section. Section 18-9-204.5 is a "counterpart state statute" to the ordinance, as described in subsection (1) of this section. Roalstad v. City of Lafayette, 2015 COA 146, 363 P.3d 790.

Dog owner charged under a municipal ordinance with owning vicious animals is entitled to a jury trial in municipal court. Roalstad v. City of Lafayette, 2015 COA 146, 363 P.3d 790.

A first-time charge of driving while ability impaired is not a petty offense. The general assembly's placement of numerous alcohol and drug-related offenses in a single statute demonstrates an intention not to treat first-time driving while ability impaired offenses as petty offenses. The penalties are dependent upon circumstances that may not be known by the court at the time of arraignment. The penalties for a first-time offense may easily exceed those of a petty offense under this section. Therefore, defendants are not required to file with a court under this section to obtain a trial by jury. Byrd v. Stavely, 113 P.3d 1273 (Colo. App. 2005).

Section governs over municipal court rules. Inasmuch as the right to a jury trial in petty offenses is a substantive right granted to all citizens of this state, subsection (2) governs over rule 223(a), C.M.C.R. Lininger v. City of Sheridan, 648 P.2d 1097 (Colo. App. 1982).

And over § 13-10-114. This section controls over § 13-10-114 (4). Lininger v. City of Sheridan, 648 P.2d 1097 (Colo. App. 1982) (decided prior to 1983 amendment of § 13-10-114).

This section and § 13-10-114 cannot be harmonized on the question of a defendant's duty to designate the jury size in his written jury demand. Lininger v. City of Sheridan, 648 P.2d 1097 (Colo. App. 1982) (decided prior to 1983 amendment to § 13-10-114).