Getting Criminal Cases Dismissed Based on Conflicting State Statutes and Municipal Ordinances

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While certain towns within Colorado and surrounding Denver may have their own legal rules, by virtue of an Ordinance or Municipal Code, there are different penalties based on where your case was filed.  Additionally, there may be an opportunity to seek a dismissal in your case if there is conflicting law between the Municipality and the State.  Though we will discuss some of the issues that need to be analyzed in order to seek a dismissal below, in order to determine which law and set of penalties applies in your particular case, and whether a motion to dismiss is appropriate for you, you will need to consult with a criminal defense attorney in Denver as to what law would apply to you. One document may supersede the other, or may even co-exist, as we will see in the case of City of Aurora v. Martin which involved the charge of assault.


The facts in this case surrounded the City of Aurora’s Municipal Ordinance. The defendant, Martin was found to be guilty of assault and battery, based on this Ordinance, which defined assault and battery as: “An assault and battery is an unlawful beating of another. It shall be unlawful to commit assault and battery upon the person of another. Any person found guilty of assault and battery upon conviction, shall be fined an amount not to exceed three hundred dollars ($300.00), or by imprisonment not to exceed ninety (90) days.” The issue here was that the State of Colorado too has its own definition of the offenses, with the only difference being with regard to the penalty and the duration of imprisonment.


According to the District Court, the offense of assault, for our purposes, should not be the concern of the state alone, but rather of both local and state. The Municipal Court had however, viewed it differently, stating that it is a state-wide issue. Looking further into the view of the District Court then, while it was true that in the particular town, the primary cause of such offenses was domestic abuse, and it seemed to be more of a ‘local’ concern, the state too needed to take into account this factor, but not necessarily with the same definitions of the offenses, as the State looked at assault and battery through a wider lens. Therefore, the State’s concerns could be protected even if the Municipal Ordinance was followed, regardless of the discrepancies.  As a result, an assault case, filed in Municipal Court, is typically viewed as being properly filed even if the case could have been filed in County Court.  Similarly, an action that is properly filed in County Court that could have been filed in Municipal Court is valid as well. 


The gist of this view was laid out in simple terms in Pasco V Ross (1985), where it was stated that ‘—the Colorado Supreme Court found “there is sufficient local concern with the subject of assault and battery so that it becomes a matter of `mixed’ state and local concern.”


On the matter of in what scenario one piece of legislation would actually cancel out or supersede the other, another case Sant v Stephens (1988) explained, “In determining whether two pieces of legislation conflict, the critical inquiry is “whether the ordinance authorizes what the state forbids, or forbids what the state has expressly authorized.” This seems like a fairly straightforward method of identifying a conflict.

Ultimately, a challenge to a statute, requesting a dismissal based on conflicting legislation, would need to be brought under this analysis in Sant v. Stephens.  If there is a conflict between the two statutes, then there is the possibility that a case could be dismissed.


Yet another example: “The question then becomes whether the municipal ordinance and the state statute can co-exist within the city.” – McCarville v City of Colorado Spring (2013)


If this question was put to you, as to whether an offence such as assault must be a ‘local concern’ what would your answer be? Would you agree with the decision of the Municipal Court in the case. This would seem a difficult question as some issues may actually be a greater concern for one town rather than the next, even within a single state.


If you have concerns regarding assault in a domestic violence context, a domestic violence and assault attorney in Denver would be able to guide you with the right information about where you would stand with regard to your assault charge and whether there is a challenge that you can make based on conflicting statutes.


The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

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Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca