16-4-101. Bailable offenses - definitions.
Statute text
(1) All persons shall be bailable by sufficient sureties except:
(a) For capital offenses when proof is evident or presumption is great; or
(b) When, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that the proof is evident or the presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:
(I) A crime of violence alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;
(II) A crime of violence alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;
(III) A crime of violence alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony;
(IV) A crime of possession of a weapon by a previous offender alleged to have been committed in violation of section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), as those provisions existed prior to their repeal on March 1, 2022;
(V) Sexual assault, as described in section 18-3-402, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, sexual assault in the second degree, as described in section 18-3-403, as it existed prior to July 1, 2000, sexual assault on a child, as described in section 18-3-405, or sexual assault on a child by one in a position of trust, as described in section 18-3-405.3 in which the victim is fourteen years of age or younger and seven or more years younger than the accused.
(c) When a person has been convicted of a crime of violence or a crime of possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), as those provisions existed prior to their repeal on March 1, 2022, at the trial court level and the person is appealing the conviction or awaiting sentencing for the conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail; or
(d) For the offense of murder in the first degree, as described in section 18-3-102, committed on or after the effective date of this subsection (1)(d), when proof is evident or presumption is great.
(2) For purposes of this section, "crime of violence" shall have the same meaning as set forth in section 18-1.3-406 (2), C.R.S.
(3) In any capital case or case in which the defendant is charged with murder in the first degree, the defendant may make a written motion for admission to bail upon the ground that the proof is not evident or that presumption is not great, and the court shall promptly conduct a hearing upon the motion. At the hearing, the burden is on the people to establish that the proof is evident or that the presumption is great. The court may combine in a single hearing the questions as to whether the proof is evident or the presumption great with the determination of the existence of probable cause to believe that the defendant committed the crime charged.
(4) Except in the case of a capital offense or case in which the defendant is charged with murder in the first degree, if a person is denied bail pursuant to this section, the trial of the person must be commenced not more than ninety-one days after the date on which bail is denied. If the trial is not commenced within ninety-one days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of the bail for the person.
(5) When a person is arrested for a crime of violence, as defined in section 16-1-104 (8.5), or a criminal offense alleging the use or possession of a deadly weapon or the causing of bodily injury to another person, or a criminal offense alleging the possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), as those provisions existed prior to their repeal in 2022, and such person is on parole, the law enforcement agency making the arrest shall notify the department of corrections within twenty-four hours. The person so arrested shall not be eligible for bail to be set until at least seventy-two hours from the time of his or her arrest has passed.
History
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 820, 2, effective May 11. L. 2023: (1)(b)(IV), (1)(c), and (5) amended, (HB 23-1301), ch. 303, p. 1819, 18, effective August 7. L. 2024: (1)(c), (3), and (4) amended and (1)(d) added, (HB 24-1225), ch. 130, p. 458, 1, effective December 17 (see editor's note).
Annotations
Editor's note: Section 3 of chapter 130, Session Laws of Colorado 2024, provides that the amendments to subsections (1)(c), (3), and (4) and subsection (1)(d) are effective only if House Concurrent Resolution 24-1002 is approved by the people at the November 2024 statewide election, in which case the amendments take effect on the date of the official declaration of the vote thereon by the governor. That resolution was approved by a vote of the registered electors of Colorado on November 5, 2024, as Amendment I. Amendments to subsections (1)(c), (3), and (4) and subsection (1)(d) were effective upon the proclamation of the Governor, December 17, 2024, see L. 2025, p. 3633. The vote count for the measure was as follows:
FOR: 2,058,063
AGAINST: 953,652
Annotations
ANNOTATION
Annotations
Law reviews. For article, "The Use of 'No Bond' Holds in Colorado", see 32 Colo. Law. 81 (Nov. 2003).
Annotator's note. Since 16-4-101 is similar to 16-4-101 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under former provisions similar to that section have been included in the annotations to this section.
Purpose of bail is to insure the defendant's presence at the time of trial and not to punish a defendant before he has been convicted. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975).
Proviso refers to proof of guilt. The requirement in the constitution that capital offenses are nonbailable when "the proof is evident or the presumption great" simply goes to the proof of guilt, not to the kind of proof needed for the imposition of the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
Offense does not cease to be capital where death penalty may not be imposed. Although by statute the death penalty cannot be imposed on the basis of only circumstantial evidence, the petitioner does not cease to be charged with a capital offense and thus become entitled to bail as a matter of right where the prosecution probably did not have the direct evidence necessary to seek the death penalty. The offense with which he was charged was still a capital one, even if it should later develop that the type of evidence adduced did not support a verdict imposing the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
And denial of bail unaffected by constitutionality of death penalty. The United States supreme court decision prohibiting imposition of death penalty in the circumstances then before it did not preclude denial of bail pursuant to state constitutional provision that bail may be denied where capital offense is charged when the proof is evident, or the presumption great, that defendant has committed the charged offense. People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972).
Standard which the constitution requires before bail may be denied is greater than probable cause though less than that required for a conviction. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975).
Guilt or innocence of the accused is not the issue in a bail hearing. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975).
Burden on prosecution to show nonbailable case. If bail is to be denied, it is incumbent upon the prosecution to come forward and show that the proof is evident or the presumption great that the crime set forth was committed by the defendant, but if evidence is not presented by the prosecution, it is incumbent upon the court, looking to the guidelines laid down by statute, to set reasonable bail in compliance with the Colorado constitution and the eighth amendment of the constitution of the United States. People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972).
The burden is upon the prosecution to show that the exception to the right to bail is applicable, and only with that showing can the conditional freedom secured by bail properly be denied. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975).
Denial of bail not foreclosed by fact that defendant was minor. The fact that defendant was 16 years of age, a minor, who could not be subjected to the death penalty, would not have foreclosed the denial of bail. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975).
Mere filing of an information or the production of evidence which would establish probable cause that the crimes charged were committed will not meet the Colorado constitutional standard for denying bail in capital cases. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975).
Trial judge exceeded jurisdiction but did not lose right to revoke or modify bail. The trial judge exceeded his jurisdiction by equating probable cause to the Colorado constitutional standard for denying bail in capital cases and by imposing an impermissible condition on the defendant at the time bail was granted. However, the right of the court to revoke or modify bail which has been previously granted after notice is given to the defendant was not negated. Lucero v. District Court, 188 Colo. 67, 532 P.2d 955 (1975).
Only criminal defendants vested with legal rights in bail. Statutory provisions concerning bail do not purport to vest any persons other than criminal defendants with any legal rights in the determination of the terms, amount, or conditions of bail. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).
Child does not have absolute constitutional or statutory right to bail pending adjudication of the charges filed against him in juvenile court. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
When juvenile detainable without bail. A trial court may detain a juvenile without bail only after giving due weight to the presumption that a juvenile should be released pending a dispositional hearing except in narrowly defined circumstances where the state establishes that detention is necessary to protect the child from imminent harm or to protect others in the community from serious bodily harm which the child is likely to inflict. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
In the event a new trial is granted in a capital case, the court is required to hold the defendant without bond until defendant requests admission to bail. Once requested, the court must hold a hearing to set bail, even if the district attorney does not contend the proof is evident or presumption great. People v. Blagg, 2015 CO 2, 340 P.3d 1137.
Applied in Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981); People v. Turman, 659 P.2d 1368 (Colo. 1983); People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 (Colo. 1984).