 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Yascavage11/30/2004
. Similarly, court rules explicitly identify the requirement for a subpoena when applicable. See C.R.C.P. 5(b); C.R.C.P. 45; Crim. P. 9. So while it is clear that a summons is not limited to a subpoena, the statutes do not give us clear guidance regarding the level of process required to suffice for "legally summoned." In the face of that ambiguity, we look to our principles of statutory construction, such as legislative history, consequences of a given construction and overall legislative intent.
When viewing the statute as a whole, it is clear that the general assembly intended to define victim and witness broadly, but it is also clear that it intended "legally summoned" to have some meaning.
The "legally summoned" language of section 18-8-707 originated from Model Penal Code section 241.6:
(1) Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:
. . . (d) absent himself from any proceeding or investigation to which he has been legally summoned.
In contrast to the Colorado statute, the Model Penal Code specifically covered informants and witnesses: those who are under subpoena, may be subpoenaed, or may be called to testify. The Colorado statute covers a broader class of persons at the outset. Witnesses, victims, informants and persons the defendant perceives to be among those classifications are all protected under 18-8-707. Comment two to the Model Penal Code specifically questions whether "witness" is limited to a person under subpoena, but clarifies that the term should be given a more expansive meaning. The drafters further comment that paragraph (d) may appear only to apply to witnesses, creating a substantive gap between the intent of section (1) and the application of (d), but go on to explain that "an informant becomes a witness with the issuance of a legal summons." MPC § 241.6 cmt. 2.
Hence, the Colorado general assembly did not adopt the Model Penal Code's restrictive language, but rather used a broad introductory provision and then more narrow subsections.
Some states have eliminated the term "legally" prior to summons. See, e.g., N.Y. Penal Law § 215.10 (2004), Ark. Code Ann. § 5-53-110 (2003), Model Penal Code § 241.6 cmt 2. The result is that any request to appear may be included, whether by order of the court or request of a party, potentially even a letter or a phone call.
Conversely, when called upon to interpret the Oregon statute, the Oregon court of appeals concluded that the term "legally summoned" requires a subpoena. See Or. Rev. Stat. § 162.285 (2003). In State v. Martin, 769 P.2d 203 (Or. Ct. App. 1989), the defendant, an attorney, was representing a man in a driving while intoxicated prosecution. The attorney was convicted of tampering with a witness after he spoke to the officer who had arrested his client and asked "if there was any way he could keep from reissuing the case" in exchange for two hundred and fifty dollars. Id. at 204. The court reversed his conviction because the arresting officer had not been served with a subpoena when the defendant induced him to absent himself from trial. Id. at 206.
We are guided by the expansive definition of witness or victim in the introductory portion of the statute, and by the overall legislative intent. However, we must also give effect to each subsection. In interpreting "legally summoned," we do not read it strictly to mean that a subpoena is the only acceptable form of process. Were the legislature to have intended that outcome, it would presumably have used the word subpoe
Page 1 2 3 4 5 6 7 8 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|