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18-8-610. Tampering with physical evidence.

Statute text

(1) A person commits tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal right or authority, he:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding; or

(b) Knowingly makes, presents, or offers any false or altered physical evidence with intent that it be introduced in the pending or prospective official proceeding.

(2) "Physical evidence", as used in this section, includes any article, object, document, record, or other thing of physical substance; except that "physical evidence" does not include a human body, part of a human body, or human remains subject to a violation of section 18-8-610.5.

(3) (a) Tampering with physical evidence of a felony crime is a class 6 felony.

(b) Tampering with physical evidence of a misdemeanor crime is a class 1 misdemeanor.

History

Source: L. 71: R&RE, p. 466, 1. C.R.S. 1963: 40-8-610. L. 89: (3) amended, p. 840, 87, effective July 1. L. 2016: (2) amended, (SB 16-034), ch. 72, p. 191, 2, effective September 1. L. 2021: (3) amended, (SB 21-271), ch. 462, p. 3201, 302, effective March 1, 2022.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law. 880 (1982). For article, "The Search for Truth Continued: More Disclosure, Less Privilege", see 54 U. Colo. L. Rev. 51 (1982). For article, "The Search for Truth Continued, The Privilege Retained: A Response to Judge Frankel", see 54 U. Colo. L. Rev. 67 (1982).

The tampering statute is intended to criminalize behavior that interferes with an official proceeding even if that behavior occurs before the proceeding is instituted. In this case, the defendant knew proceedings were "about to be instituted", because the defendant was about to be taken into custody and had a controlled substance that would have been discovered upon a search incident to arrest. People v. Atencio, 140 P.3d 73 (Colo. App. 2005).

There is no requirement that acts sufficient to support a tampering charge must occur subsequently to either a defendant's contact with police or a defendant's discovery that the defendant is about to be arrested. People v. Newton, 2022 COA 59, 517 P.3d 79.

Rather, the offense of tampering with physical evidence depends, to an important degree, on the defendant's conduct and intent. People v. Newton, 2022 COA 59, 517 P.3d 79.

And a defendant could believe, without certainty, that an official proceeding is about to be instituted even if the police have not contacted the defendant. People v. Newton, 2022 COA 59, 517 P.3d 79.

This section plainly requires the jury to assess the defendant's intent at the moment the defendant acts and not whether the defendant's objectives later changed. People v. Newton, 2022 COA 59, 517 P.3d 79.

"Physical evidence" includes false affidavit presented to a grand jury. People v. Board, 656 P.2d 712 (Colo. App. 1982).

"Physical evidence" includes electronically stored documents or information. People v. Rieger, 2019 COA 14, 436 P.3d 610.

Evidence sufficient for jury to infer that defendant believed official proceeding was about to be instituted against her. People v. Frayer, 661 P.2d 1189 (Colo. App. 1982), aff'd, 684 P.2d 927 (Colo. 1984).