(1) A summons shall be issued instead of a warrant in all petty offenses, class 3 misdemeanors, and all unclassified offenses which are punishable by a maximum penalty of six months' imprisonment or less, except in those cases where the court finds that:
The defendant has previously failed to respond to a summons for an offense; or
There is a substantial likelihood that the defendant will not respond to a summons; or
The whereabouts of the defendant is unknown and the issuance of an arrest warrant isnecessary in order to subject him to the jurisdiction of the court.
(2) Except in class 1, class 2, and class 3 felonies or level 1 or level 2 drug felonies, the general policy shall favor issuance of a summons instead of a warrant for the arrest of the defendant except where there is reasonable ground to believe that, unless taken into custody, the defendant will flee to avoid prosecution or will fail to respond to a summons. The court shall issue a summons instead of an arrest warrant when the prosecuting attorney so requests. When an application is made to a court for issuance of an arrest warrant or summons, the court may require the applicant to provide such information as reasonably is available concerning the following:
The defendant's residence;
The defendant's employment;
The defendant's family relationships;
The defendant's past history of response to legal process; and(e) The defendant's past criminal record.
Source: L. 72: R&RE, p. 216, § 1. C.R.S. 1963: § 39-5-207. L. 2013: IP(2) amended, (SB 13-250), ch. 333, p. 1928, § 39, effective October 1.
Information not filed - reasons. In all cases where on preliminary hearing in the county court concerning the commission of a felony the accused is bound over and is committed to jail, or recognized and held to bail, it is the duty of the district attorney to file an information in the district court. If the district attorney determines in any such case that an information ought not to be filed, he or she shall file with the clerk of the district court having jurisdiction of the supposed offense a written statement containing his or her reasons, in fact and in law, for not filing an information in the case, and such statement shall be filed within sixtythree days following the date upon which the offender was held for appearance.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-208. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 849, § 74, effective July 1.
Judge may require prosecution. The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so. The judge shall appoint the special prosecutor from among the fulltime district attorneys, assistant district attorneys, or deputy district attorneys who serve in judicial districts other than where the appointment is made; except that, upon the written approval of the chief justice of the supreme court, the judge may appoint any disinterested private attorney who is licensed to practice law in the state of Colorado to serve as the special prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as provided in section 20-1-308, C.R.S.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-209. L. 77: Entire section amended, p. 858, § 1, effective May 24. L. 2000: Entire section amended, p. 454, § 12, effective April 24.