NOTE: The governor signed this measure on 6/4/2012. HOUSE BILL 12-1053 BY REPRESENTATIVE(S) Gardner B., Barker, Brown, Fields, Kefalas, Kerr J., Labuda, Liston, Nikkel, Pace, Ryden, Schafer S., Solano, Summers, Todd, Young, Acree, Balmer, Baumgardner, Becker, Beezley, Bradford, Casso, Conti, Coram, Court, DelGrosso, Duran, Ferrandino, Fischer, Gerou, Hamner, Holbert, Hullinghorst, Jones, Joshi, Kagan, Kerr A., Lee, Levy, Looper, Massey, McCann, Miklosi, Murray, Pabon, Peniston, Priola, Ramirez, Scott, Singer, Sonnenberg, Soper, Stephens, Swalm, Swerdfeger, Szabo, Tyler, Vaad, Waller, Williams A., Wilson, McNulty; also SENATOR(S) Giron, Aguilar, Heath, Hodge, Hudak, Jahn, King S., Newell, Nicholson, Roberts, Schwartz, Tochtrop. Concerning the victims' rights act. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 24-4.1-302, amend (1) (gg), (2) (s), (2) (t), and (5); and add (1) (ii), (1) (jj), (1) (kk), (2) (u), and (3.5) as follows: 24-4.1-302. Definitions. As used in this part 3, and for no other purpose, including the expansion of the rights of any defendant: (1) "Crime" means any of the following offenses, acts, and violations as defined by the statutes of the state of Colorado, whether committed by an adult or a juvenile: (gg) Indecent exposure, in violation of section 18-7-302, C.R.S.; or (ii) Trafficking in adults, in violation of section 18-3-501, C.R.S.; or trafficking in children, in violation of section 18-3-502, C.R.S.; (jj) First degree burglary, in violation of section 18-4-202, C.R.S.; or (kk) Retaliation against a judge, in violation of section 18-8-615, C.R.S.; or retaliation against a juror, in violation of section 18-8-706.5, C.R.S. (2) "Critical stages" means the following stages of the criminal justice process: (s) The execution of an offender in a capital case; and (t) A hearing held pursuant to section 18-1-414 (2) (b), C.R.S.; and (u) The decision, whether by court order, stipulation of the parties, or otherwise, to conduct postconviction DNA testing to establish the actual innocence of the person convicted of a crime against the victim; the results of any such postconviction DNA testing; and court proceedings initiated based on the result of the postconviction DNA testing. An inmate's written or oral request for such testing is not a "critical stage". (3.5) "Modification of sentence" means an action taken by the court to modify the length, terms, or conditions of an offender's sentence pursuant to rule 35 (a) or (b) of the Colorado rules of criminal procedure. Action taken by the court includes an order by the court modifying an offender's sentence upon review of the written motion without a hearing but does not include an order denying a motion to modify a sentence without a hearing. (5) "Victim" means any natural person against whom any crime has been perpetrated or attempted, unless the person is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan as crime is defined under the laws of this state or of the United States, or, if such person is deceased or incapacitated, the person's spouse, parent, child, sibling, grandparent, grandchild, significant other, or other lawful representative. For purposes of notification under this part 3, any person under the age of eighteen years is considered incapacitated, unless that person is legally emancipated. It is the intent of the general assembly that this definition of the term "victim" shall apply only to this part 3 and shall not be applied to any other provision of the laws of the state of Colorado that refer to the term "victim". SECTION 2. In Colorado Revised Statutes, 24-4.1-302.5, amend (1) (b), (1) (c) (II), (1) (d) (V), (1) (d) (VI), (1) (j.5) (I), (1) (m), and (1) (u); and add (1) (d) (VII), (1) (d.5), (1) (w), (1) (x), (1) (y), (1.6), and (4) as follows: 24-4.1-302.5. Rights afforded to victims. (1) In order to preserve and protect a victim's rights to justice and due process, each victim of a crime shall have the following rights: (b) The right to be informed of and present for all critical stages of the criminal justice process as specified in section 24-4.1-302 (2); except that the victim shall have the right to be informed of, without being present for, the critical stages described in section 24-4.1-302 (2) (a), (2) (a.5), (2) (e.5), (2) (k.3), (2) (n), (2) (p), and (2) (q), and (2) (u); (c) (II) With respect to the release, or discharge, or permanent transfer of a person from a county jail or correctional facility, the provisions of subparagraph (I) of this paragraph (c) shall apply when the person released, or discharged, or permanently transferred is no longer within the care and control of the supervising law enforcement or correctional agency. The provisions of subparagraph (I) of this paragraph (c) shall not apply to the temporary transfer of the care and control of a person from a county jail or a correctional facility by the supervising law enforcement or correctional agency to another equally or more secure county jail or correctional facility, so long as the person will return to the care and control of the transferring supervisory agency. (d) The right to be heard at any court proceeding: (V) At which the sentence of a person accused or convicted of a crime against the victim is modified; or (VI) At which the defendant requests a modification of the no contact provision of the mandatory criminal protection order under section 18-1-1001, C.R.S., or section 19-2-707, C.R.S.; or (VII) Involving a subpoena for records concerning the victim's medical history, mental health, education, or victim compensation, or any other records that are privileged pursuant to section 13-90-107, C.R.S.; (d.5) (I) If a victim or a victim's designee is unavailable to be present for the critical stages described in paragraph (d) of this subsection (1) and the victim or the victim's designee wishes to address the court, the right to request that the court, within the court's resources, arrange and provide the means for the victim and the victim's designee to provide input to the court beyond a written victim impact statement. (II) For purposes of this paragraph (d.5), "unavailable" means that the victim or the victim's designee is physically unable to attend the court hearing, may sustain a financial hardship to attend the court hearing, is concerned for his or her safety if he or she attends the court hearing, may suffer significant emotional impact by attending the hearing, or is unavailable for other good cause. (III) The victim or the victim's designee shall notify the district attorney within a reasonable time that he or she is unavailable to attend the court hearing. The district attorney's office shall then inform the court that the victim or the victim's designee, due to his or her unavailability, is requesting the court to arrange for and provide the means to address the court, which may include but need not be limited to appearing by phone or similar technology. The district attorney shall inform the victim or the victim's designee of the court's decision regarding an alternate arrangement. (IV) This paragraph (d.5) applies to a victim who is incarcerated or otherwise being held in a local county jail or the department of corrections, but is limited to participation by telephone. (j.5) (I) The right to provide a written victim impact statement an oral victim impact statement, or both, that will be included with any referral made by the department of corrections or a district court to place an offender in a community corrections facility or program. A community corrections board may allow a victim to provide an oral statement to the community corrections board when an offender is being considered for a direct sentence to community corrections and may place reasonable limits on the victim's oral statement. (m) The right to be informed about what steps can be taken by a victim or a witness, including information regarding protection services, in case there is any intimidation or harassment by a person accused or convicted of a crime against the victim, or any other person acting on behalf of the accused or convicted person; (u) The right to be informed of the results of any HIV testing that is ordered and performed pursuant to section 18-3-415, C.R.S.; and (w) The right to have the district attorney, a law enforcement agency, a probation department, a state or private correctional facility, the department of human services, or the Colorado mental health institute at Pueblo make all reasonable efforts to exclude or redact a victim's social security number or a witness' social security number from a criminal justice document or record created or compiled as a result of a criminal investigation when the document or record is released to anyone other than the victim, the defense attorney of record, the defense attorney's agent, or a criminal justice agency that has duties under this article; (x) The right to be notified of how to request protection of their address pursuant to the Colorado rules of criminal procedure. (y) The right to receive a copy of the victim impact statement form from the district attorney's office. (1.6) The right to be informed of the existence of a criminal protection order under section 18-1-1001, C.R.S., or section 19-2-707, C.R.S., and, upon request of the victim, information about provisions that may be added or modified, and the process for requesting such an addition or modification. (4) If a victim contacts a criminal justice agency regarding a crime that occurred before 1993, and the offender who committed the crime is currently serving a sentence for the crime, the victim may request notification of any future critical stages of the criminal proceedings. In addition, if an arrest is made for a crime committed before 1993 that was previously unsolved, the victim of the crime may request notification of all future critical stages from the appropriate criminal justice agency. This provision does not require a criminal justice agency to proactively locate victims of crimes that occurred before 1993. SECTION 3. In Colorado Revised Statutes, 24-4.1-303, amend (9) (f), (9) (g), (10) (a) introductory portion, (10) (a) (V), (11) (f), (11) (g), (12) (e), (12) (f), (13.5) (a) (V), (14) introductory portion, (14) (g), (14) (h), (14.5), and (15); and add (9) (h), (11) (h), (11) (i), (12) (f.5), (12) (h), (12) (i), (13.5) (a) (V.5), (14) (i), and (18) as follows: 24-4.1-303. Procedures for ensuring rights of victims of crimes. (9) The district attorney and any law enforcement agency shall inform each victim as to the availability of the following services: (f) Interpretation services and information printed in languages other than the English language; and (g) Child care services to enable a victim or the victim's immediate family to give testimony or otherwise cooperate in the prosecution of a criminal proceeding; and (h) The existence of a criminal protection order under section 18-1-1001, C.R.S., or section 19-2-707, C.R.S., and, upon request of the victim, information about provisions that may be added or modified and the process for requesting such an addition or modification. (10) (a) After the initial contact between a victim and a law enforcement agency responsible for investigating a crime, such the agency shall promptly give the victim the following information in writing: (V) The availability of public records related to the case The right of a victim to request a copy of the law enforcement report and other documents related to the case, including the right to receive a free copy of the initial incident report. The release of any documents associated with the investigation is at the discretion of the law enforcement agency based on the status of the case. (11) The district attorney shall inform a victim of the following: (f) The availability of transportation to and from any court proceeding for any victim, except as provided in section 24-4.1-302.5 (2); and (g) The availability of restorative justice practices, as defined in section 18-1-901 (3) (o.5), C.R.S.; (h) The right to complete a written victim impact statement. The victim has the option to complete the statement on a form provided by the district attorney's office. The district attorney shall inform the victim that the defendant has a right to view the victim impact statement; (i) The availability of the district attorney to seek a court order to protect a victim's residential address. (12) Unless a victim requests otherwise, the district attorney shall inform each victim of the following: (e) The date, time, and location, of any hearing for reconsideration of any sentence imposed Any sentence imposed; (f) (I) Any sentence imposed and any modification of such sentence; and The date, time, and location of any hearing for modification of a sentence pursuant to rule 35 (a) or rule 35 (b) of the Colorado rules of criminal procedure or any provision of state or federal law. (II) If a hearing is not scheduled and the court has reviewed a written motion for modification of sentence and is considering granting any part of the motion without a hearing, the court shall inform the district attorney, and the district attorney shall notify and receive input from the victim to give to the court before the court rules on the motion. (III) If the court has reviewed and denied the written motion without a hearing, the district attorney is not required to notify the victim regarding the filing of or ruling on the motion. (IV) This paragraph (f) does not modify the probation department's responsibility to notify a victim that has opted to receive notifications described in subsection (13.5) of this section. (f.5) Any motion to modify the terms and conditions of an unsupervised deferred sentence for which the district attorney's office is the monitoring agency. The procedures for notifying victims outlined in subparagraphs (I) and (II) of paragraph (f) of this subsection (12) apply to the district attorney and the court with regard to this motion. (h) The right to receive information from the probation department concerning information outlined in subsection (13.5) of this section regarding a person convicted of a crime against the victim; and (i) The decision, whether by court order, stipulation of the parties, or otherwise, to conduct postconviction DNA testing to establish the actual innocence of the person convicted of a crime against the victim. If court proceedings are initiated based on the results of the postconviction DNA testing, the victim shall be notified of the court proceedings by the district attorney's office that filed and prosecuted the charges resulting in the entry of the judgment of conviction challenged by the defendant. If the attorney general's office is the agency that decides to conduct postconviction DNA testing, the attorney general's office is responsible for notifying the victim. (13.5) (a) Following a sentence to probation and upon the written request of a victim, the probation department shall notify the victim of the following information regarding any person who was charged with or convicted of a crime against the victim: (V) Any change of venue or transfer of probation supervision from one jurisdiction to another Any motion filed by the probation department requesting permission from the court to modify the terms and conditions of probation as described in section 18-1.3-204, C.R.S., if the motion has not been denied by the court without a hearing; (V.5) Any change of venue, transfer of probation supervision from one jurisdiction to another, or interstate compact transfer of probation supervision; (14) Upon receipt of a written victim impact statement as provided in section 24-4.1-302.5 (1) (j.5), the department of corrections shall include the statement with any referral made by the department of corrections or a district court to place an offender in a public or private community corrections facility or program. Upon written request of a victim, the department of corrections or the public or private local corrections authorities shall notify the victim of the following information regarding any person who was charged with or convicted of a crime against the victim: (g) The transfer to or placement in a nonsecured facility of a person convicted of a crime, any release or discharge from confinement of the person, and any conditions attached to the release; and (h) The death of such the person while in custody or while under the jurisdiction of the state of Colorado concerning the crime; and (i) The transition of the person from a residential facility to a nonresidential setting. (14.5) (a) At any proceeding specified in section 24-4.1-302.5 (1) (d), the court shall inquire whether the victim is present and wishes to address the court. The court shall advise the victim of his or her right to address the court regarding issues relevant to the case. (b) At a proceeding specified in section 24-4.1-302.5 (1) (d) (VII), involving a subpoena for records of a victim, the court shall ascertain whether the victim received notice from the district attorney's office of the subpoena. After considering all evidence relevant to the subpoena, the court shall deny a request for a victim's records that are privileged pursuant to section 13-90-107, C.R.S., unless the court makes a finding supported by specific facts that a victim has expressly or impliedly waived the victim's statutory privilege specified in section 13-90-107, C.R.S. (15) (a) Unless specifically stated otherwise, the requirements of this section to provide information to the victim may be satisfied by either written, electronic, or oral communication with the victim or the victim's designee. The person responsible for providing such the information shall do so in a timely manner and advise the victim or the victim's designee of any significant changes in such the information. The victim or the victim's designee shall keep appropriate criminal justice authorities informed of the name, address, electronic mail address, if available, and telephone number of the person to whom such the information should be provided, and any changes of such the name, address, electronic mail address, and telephone number. (a.5) A victim who turns eighteen years of age has the right to request notification from a criminal justice agency and to become the primary point of contact. The designee for the victim shall also continue to receive notifications if the designee has requested notification; except that the notifying agency has the discretion to notify only the victim if the victim so requests or if the agency deems that extenuating and documentable circumstances justify discontinuing notification to the victim's designee. The right of a victim's designee to address the court remains in effect even if the victim requests notification from a criminal justice agency. (b) An agency that is required to notify a victim under this part 3 shall make reasonable attempts to contact the victim or the victim's designee by mail, electronic communication, if the victim or the victim's designee has provided an electronic mail address, and by telephone. If the victim or the victim's designee does not provide the agency with a forwarding address, electronic mail address, and telephone number and the agency is unable to locate the victim or the victim's designee after reasonable attempts have been made to contact the victim or the victim's designee, the agency shall be deemed to have met its obligation under this part 3 and shall not be required to notify the victim or victim's designee until the victim or victim's designee provides the agency with the current address, electronic mail address, if available, and telephone of the victim and the name of the victim's current designee, if applicable. (c) Any duties that are required to be performed by the district attorney pursuant to this part 3 may be performed by a designee of the district attorney An agency that is required to notify a victim under this part 3 may use an automated victim notification system. (18) The district attorney, a law enforcement agency, a probation department, a state or private correctional facility, the department of human services, or the Colorado mental health institute at Pueblo shall make all reasonable efforts to exclude or redact a victim's social security number or a witness' social security number from any criminal justice document or record created or compiled as a result of a criminal investigation when the document or record is released to anyone other than the victim, a criminal justice agency that has duties under this article, or the attorney for the defendant. SECTION 4. In Colorado Revised Statutes, 24-4.1-108, amend (1) (f) as follows: 24-4.1-108. Awarding compensation. (1) A person is entitled to an award of compensation under this part 1 if: (f) The application for an award of compensation under this part 1 is filed with the board within one year of the date of injury to the victim or within such further extension of time as the board, for good cause shown, allows. For purposes of this paragraph (f), "good cause" may include but is not limited to circumstances in which a crime has remained unsolved for more than one year. SECTION 5. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 8, 2012, if adjournment sine die is on May 9, 2012); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2012 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. ________________________________________________________ Frank McNulty Brandon C. Shaffer SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE ____________________________ ____________________________ Marilyn Eddins Cindi L. Markwell CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO