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16-3-402. Right to communicate with attorney and family.

Statute text

(1) Persons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or by communicating in any other reasonable manner. Such communication shall be permitted at the earliest possible time after arrival at the police station, sheriff's office, jail, or other like confinement facility to which such person is first taken after arrest.

(2) If the accused is transferred to a new place of custody, his right to communicate with an attorney and a member of his family is renewed.

(2.5) If the victim is able to demonstrate through the use of caller identification or other credible evidence that the incarcerated defendant has called the victim from the jail or correctional facility in violation of the protection order issued pursuant to section 18-1-1001, C.R.S., or in violation of any other valid protection order or emergency protection order in effect, the defendant shall not be entitled to further telephone calls except to such defendant's attorney, which calls shall be placed by a jail or correctional facility staff member. If the defendant was arrested for violating an order not to contact certain family members, the right to contact those family members by telephone shall be prohibited, and the jail or correctional facility staff shall place all outgoing telephone calls that the defendant wishes to make that are not identified in the protection order as prohibited.

(3) (a) Consistent with the provisions of section 21-1-103, C.R.S., if any person in custody indicates in any manner his desire to speak with an attorney or the court determines that an inquiry into the matter of indigency should occur, the public defender shall be permitted to communicate with that person to determine whether that person has counsel and, if the person desires that the public defender represent him, to make an initial determination as to whether the person is indigent. If the public defender determines that the person is indigent, such person shall apply for representation by the public defender in accordance with section 21-1-103, C.R.S.

(b) The public defender, upon his request and with due regard for reasonable law enforcement administrative procedures, shall be permitted to determine whether or not any person in custody has been taken without unnecessary delay before the nearest available county or district judge.


Source: L. 72: R&RE, p. 202, 1. C.R.S. 1963: 39-3-402. L. 81: Entire section R&RE, p. 924, 1, effective May 26. L. 86: (3)(a) amended, p. 731, 1, effective July 1. L. 88: (3)(a) amended, p. 663, 1, effective July 1. L. 94: (2.5) added, p. 2035, 13, effective July 1. L. 2003: (2.5) amended, p. 1013, 19, effective July 1. L. 2008: (2.5) amended, p. 1883, 20, effective August 5.





Annotator's note. For further annotations concerning the right to counsel, see 16 of art. II, of the Colo. Const.

Section codifies constitutional right to counsel. This section was enacted in 1972 as a part of the Colorado code of criminal procedure, and as such, the statute is merely a codification of the constitutional right to counsel in criminal cases. Cooper v. Dir. of Dept. of Rev., 42 Colo. App. 109, 593 P.2d 1382 (1979).

Statement during process of booking was voluntary. The identification, during the process of booking of defendants, of a baggage locker key as part of personal property, with the added statement, "Go see for yourself", cannot be challenged as not voluntary merely because defendant's father was not called before defendant was booked; nor can the failure to take defendant before a judge before defendant was booked affect the voluntariness of the identification of his personal belongings. Hubbard v. Patterson, 374 F.2d 856 (10th Cir.), cert. denied, 389 US 868, 88 S. Ct. 142, 19 L. Ed. 2d 144 (1967) (decided under repealed 39-1-1, C.R.S. 1963).

Suppression of evidence is not the proper remedy for an alleged violation of this statute. Suppression is generally a remedy for only constitutional violations not statutory violations. People v. Clayton, 207 P.3d 831 (Colo. 2009).