18-3-412.5. Failure to register as a sex offender.
Statute text
(1) A person who is required to register pursuant to article 22 of title 16 and who fails to comply with any of the requirements placed on registrants by said article 22, including but not limited to committing any of the acts specified in this subsection (1), commits the offense of failure to register as a sex offender:
(a) Failure to register pursuant to article 22 of title 16, C.R.S.;
(b) Submission of a registration form containing false information or submission of an incomplete registration form;
(c) Failure to provide information or knowingly providing false information to a probation department employee, to a community corrections administrator or his or her designee, or to a judge or magistrate when receiving notice pursuant to section 16-22-106 (1), (2), or (3), C.R.S., of the duty to register;
(d) If the person has been sentenced to a county jail, otherwise incarcerated, or committed, due to conviction of or disposition or adjudication for an offense specified in section 16-22-103, C.R.S., failure to provide notice of the address where the person intends to reside upon release as required in sections 16-22-106 and 16-22-107, C.R.S.;
(e) Knowingly providing false information to a sheriff or his or her designee, department of corrections personnel, or department of human services personnel concerning the address where the person intends to reside upon release from the county jail, the department of corrections, or the department of human services. Providing false information shall include, but is not limited to, providing false information as described in section 16-22-107 (4)(b), C.R.S.
(f) Failure when registering to provide the person's current name and any former names;
(g) Failure to register with the local law enforcement agency in each jurisdiction in which the person resides upon changing an address, establishing an additional residence, or legally changing names;
(h) Failure to provide the person's correct date of birth, to sit for or otherwise provide a current photograph or image, to provide a current set of fingerprints, or to provide the person's correct address;
(i) Failure to complete a cancellation of registration form and file the form with the local law enforcement agency of the jurisdiction in which the person will no longer reside pursuant to section 16-22-108 (4)(a)(II);
(j) When the person's place of residence is a trailer or motor home, failure to register an address at which the trailer or motor home is lawfully located pursuant to section 16-22-109 (1)(a.3), C.R.S.;
(k) Failure to register an e-mail address, instant-messaging identity, or chat room identity prior to using the address or identity if the person is required to register that information pursuant to section 16-22-108 (2.5), C.R.S.
(1.5) (a) In a prosecution for a violation of this section, it is an affirmative defense that:
(I) Uncontrollable circumstances prevented the person from complying;
(II) The person did not contribute to the creation of the circumstances in reckless disregard of the requirement to comply; and
(III) The person complied as soon as the circumstances ceased to exist.
(b) In order to assert the affirmative defense pursuant to this subsection (1.5), the defendant shall provide notice to the prosecuting attorney as soon as practicable, but not later than thirty-five days prior to trial, of his or her notice of intent to rely upon the affirmative defense. The notice shall include a description of the uncontrollable circumstance or circumstances and the dates the uncontrollable circumstances began and ceased to exist in addition to the names and addresses of any witnesses the defendant plans to call to support the affirmative defense. The prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such affirmative defense as soon as practicable after their names become known. Upon the request of the prosecution, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute sufficient evidence to support submission to the jury.
(2) (a) Failure to register as a sex offender is a class 6 felony if the person was convicted of felony unlawful sexual behavior, or of another offense, the underlying factual basis of which includes felony unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute felony unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves felony unlawful sexual behavior; except that any second or subsequent offense of failure to register as a sex offender by such person is a class 5 felony.
(b) Any person convicted of felony failure to register as a sex offender shall be sentenced pursuant to the provisions of section 18-1.3-401. If such person is sentenced to probation, the court may require, as a condition of probation, that the person participate until further order of the court in an intensive supervision probation program established pursuant to section 18-1.3-1007. If such person is sentenced to incarceration and subsequently released on parole, the parole board may require, as a condition of parole, that the person participate in an intensive supervision parole program established pursuant to section 18-1.3-1005.
(c) A person who is convicted of a felony sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits failure to register as a sex offender in this state commits felony failure to register as a sex offender as specified in paragraph (a) of this subsection (2) and shall be sentenced as provided in paragraph (b) of this subsection (2).
(3) (a) Failure to register as a sex offender is a class 1 misdemeanor if the person was convicted of misdemeanor unlawful sexual behavior, or of another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute misdemeanor unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior.
(b) A person who is convicted of a misdemeanor sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits failure to register as a sex offender in this state commits misdemeanor failure to register as a sex offender as specified in paragraph (a) of this subsection (3).
(4) (a) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be placed or committed out of the home for not less than one year.
(b) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a thirty-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence.
(5) For purposes of this section, unless the context otherwise requires, "unlawful sexual behavior" has the same meaning as set forth in section 16-22-102 (9), C.R.S.
(6) (a) When a peace officer determines that there is probable cause to believe that a crime of failure to register as a sex offender has been committed by a person required to register as a sexually violent predator in this state pursuant to article 22 of title 16, C.R.S., or in any other state, the officer shall arrest the person suspected of the crime. It shall be a condition of any bond posted by such person that the person shall register pursuant to the provisions of section 16-22-108, C.R.S., within seven days after release from incarceration.
(b) When a peace officer makes a warrantless arrest pursuant to this subsection (6), the peace officer shall immediately notify the Colorado bureau of investigation of the arrest. Upon receiving the notification, the Colorado bureau of investigation shall notify the jurisdiction where the sexually violent predator last registered. The jurisdiction where the sexually violent predator last registered, if it is not the jurisdiction where the probable cause arrest is made, shall coordinate with the arresting jurisdiction immediately to determine the appropriate jurisdiction that will file the charge. If the sexually violent predator is being held in custody after the arrest, the appropriate jurisdiction shall have no less than seven days after the date of the arrest to charge the sexually violent predator.
History
Source: L. 91: Entire section added, p. 393, 1, effective April 17. L. 94: Entire section R&RE, p. 1736, 1, effective July 1. L. 95: (6) amended and (6.5) and (9) added, p. 1309, 1, effective June 5; (3) and (4) amended, p. 468, 16, effective July 1. L. 96: (1), (2), (4), and (6) amended and (6.7) added, p. 1581, 5, effective July 1; (8) amended, p. 1691, 25, effective January 1, 1997. L. 97: IP(6.7) amended, p. 173, 1, effective March 31; (1)(f) amended, p. 1547, 19, effective July 1; (2) and (6.7)(c) amended and (6.7)(e) added, pp. 1553, 1554, 6, 7, effective July 1; (3.5) added and IP(7) and (8) amended, p. 1563, 9, effective July 1. L. 98: Entire section amended, p. 389, 1, effective April 21. L. 99: (1)(a)(II), IP(1)(b), (1)(b)(XXI) to (1)(b)(XXIII), (1)(c), (2)(a), (2)(c), (3)(d), (6)(b), (6.5)(b), (6.5)(c), (7)(a)(II), and (7)(a)(III) amended and (1)(d), (4)(a)(III.5), and (6)(b.5) added, pp. 1144, 1146, 1150, 1156, 1155, 1151, 2, 6, 13, 20, 19, 14, 21, effective July 1; IP(4)(a) amended, p. 799, 19, effective July 1. L. 2000: (2)(a)(I) and (6)(b) amended and (3)(e), (3.5)(e), (3.5)(f), and (4)(a)(VI) added, pp. 718, 719, 2, 5, 3, 1, 4, effective May 23; IP(1)(b), (1)(d), (2)(a)(I), (3)(a), (3)(d), (3.5)(a), (6)(c), (6.5)(d), and IP(7)(a) amended and (1)(b)(XXIV), (3.7), (4)(a)(VII), (5)(c), (6)(e), (6.5)(e), and (7)(c) added, pp. 915, 919, 920, 918, 1, 5, 6, 8, 2, 3, 4, effective July 1; (1)(b)(I), (1)(b)(II), (1)(b)(III), (7)(a)(II), and (7)(a)(III) amended, p. 705, 30, effective July 1; (8.5) added, p. 432, 2, effective July 1; (6.5)(b) amended, p. 250, 3, effective August 2. L. 2001: (4)(b) and (4)(c) amended, p. 567, 2, effective May 29; (3)(a)(I.5) and (3.9) added and (7)(c) amended, pp. 656, 658, 1, 8, 2, effective May 30; (2)(a)(I), (2)(a)(II), (3)(e), (3.5)(e), (3.5)(f), (6)(b), (6.5)(c), (6.5)(d), IP(7)(a), (7)(a)(I), (7)(a)(II), and (7)(a)(III) amended and (3.6) and (7)(a)(VI) added, pp. 962, 960, 961, 3, 1, 2, effective June 5. L. 2002: Entire section R&RE, p. 1178, 2, effective July 1; (2)(b) amended, p. 1567, 393, effective October 1. L. 2004: (2)(c) and (5) added and (3) amended, p. 1119, 17, 18, effective May 27; (3) amended, p. 635, 7, effective August 4. L. 2006: (6) added, p. 1313, 7, effective May 30. L. 2007: IP(1) amended and (1)(j) added, p. 211, 4, effective March 26; (1)(k) added, p. 1682, 4, effective July 1. L. 2011: (1.5) added and (2)(b) amended, (HB 11-1278), ch. 224, p. 965, 10, effective May 27. L. 2012: (1.5)(b) and (6) amended, (SB 12-175), ch. 208, p. 872, 128, effective July 1. L. 2018: IP(1) and (1)(i) amended, (HB 18-1356), ch. 255, p. 1559, 2, effective August 8. L. 2022: (3)(a) amended, (HB 22-1229), ch. 68, p. 344, 22, effective March 1.
Annotations
Editor's note: (1) Amendments to subsection (2)(a)(I) by House Bill 00-1232 and House Bill 00-1317 were harmonized. Amendments to subsection (3) by House Bill 04-1388 and Senate Bill 04-154 were harmonized.
(2) Section 47 of chapter 68 (HB 22-1229), Session Laws of Colorado 2022, provides that the act amending subsection (3)(a) is effective March 1, 2022, but the governor did not approve the act until April 7, 2022.
Annotations
Cross references: (1) For provisions relating to sex offender registration requirements, see article 22 of title 16.
(2) For the legislative declaration contained in the 2000 act enacting subsection (8.5), see section 1 of chapter 125, Session Laws of Colorado 2000. For the legislative declaration contained in the 2001 act amending subsections (4)(b) and (4)(c), see section 1 of chapter 176, Session Laws of Colorado 2001. For the legislative declaration contained in the 2002 act amending subsection (2)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in HB 18-1356, see section 1 of chapter 255, Session Laws of Colorado 2018.
Annotations
ANNOTATION
Annotations
Failure to register as a sex offender is a continuing offense. Since the general assembly determined that sex offenders pose a continuous threat to society and registration is necessary to continually monitor sex offenders, it follows that the failure to register offense is a continuing offense. People v. Lopez, 140 P.3d 106 (Colo. App. 2005).
When the prosecution relies on the continuing offense doctrine to prosecute a failure to register offense, the prosecution must provide the court and defense the dates that the prosecution intends to rely on to prosecute the failure to register offense. The jury instructions should also reflect the dates provided by the prosecution. People v. Lopez, 140 P.3d 106 (Colo. App. 2005).
Failure to register as a sex offender is not a strict liability offense but includes the mental state of knowingly. People v. Lopez, 140 P.3d 106 (Colo. App. 2005).
Subsection (1)(a) is not a catchall that incorporates all of the duties to register found in article 22 of title 16. Rather, subsection (1)(a) refers to the discrete and statutorily defined set of duties that relate to sex offender registration: Initial registration, registration with the correct law enforcement agency, timely registration, confirmation of registration, and reregistration. People v. Halbert, 2013 COA 95, 411 P.3d 47.
Eviction, homelessness, or lack of a fixed residence do not negate requirement to register within five days of release into community. The requirement for initial registration as a sex offender is based on number of days following release into the community and is not tied to where an individual is living or whether that location changed during the five-day period. People v. Wilson, 2017 COA 89, 488 P.3d 1.
A person who fails to comply with any of the requirements placed on registrants in subsections (1)(a) through (1)(k) commits the offense of failure to register as a sex offender. Subsections (1)(a) through (1)(k) are not merely examples of failure to register. People v. Poage, 272 P.3d 1113 (Colo. App. 2011).
A violation of 16-22-108 (3)(i) must be charged under the catchall provision of subsection (1) of this section, and not under subsection (1)(g) of this section. If, in 2012, the general assembly had intended to broaden the meaning of subsection (1)(g), it could have amended that provision to explicitly include the situation of a sex offender who lacks a fixed residence. People v. Jones, 2017 COA 116, 405 P.3d 504.
Subsection (1)(i) requires that prosecution prove defendant moved away from the county of his or her last registration. The prosecution presented no evidence that defendant, who was homeless, had moved out of the county. Therefore, the conviction must be vacated. People v. Poage, 272 P.3d 1113 (Colo. App. 2011).
A prior conviction for failure to register as a sex offender is not an element of the offense for subsequent violation, but instead the prior conviction is a sentence enhancer. People v. Dorsey, 2021 COA 126, 503 P.3d 145.
Failure to register as a sex offender is not a crime involving moral turpitude under the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii). Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011).
Defendant not required to register as a sex offender for offense committed in another state if all of the Colorado elements of the crime are not met. Because statute included one element that the other state's statute did not, the prosecution did not satisfy all of the elements of the crime of indecent exposure, thus defendant was not required to register as a sex offender for a conviction of indecent exposure in another state. People v. Brooks, 2012 COA 52, 296 P.3d 216.
Whether defendant's failure to register as a sex offender conviction is a grave and serious offense depends on the circumstances of the conviction. When defendant informed his parole officer of his new residence, but did not register, the failure to register caused little harm to society and thus was not grave and serious. But, when defendant failed to register for years and lived at eight or nine different residences, the police were unable to determine if he was a threat to society, so that offense was grave and serious. People v. Foster, 2013 COA 85, 364 P.3d 1149.
Court did not err in allowing factual evidence of defendant's previous failure to register as a sex offender conviction in subsequent failure to register trial. The evidence showed defendant's knowledge of the requirement and negated any argument of mistake. People v. Foster, 2013 COA 85, 364 P.3d 1149.