District Attorney Matt Margeson has objected to a COVID-related order by Montezuma County Sheriff Steve Nowlin that restricts certain arrests by law enforcement.

In an Oct. 6 letter to area law enforcement agencies, Nowlin stated that because of a local spike in positive COVID-19 cases, the type of arrest for detention into the Montezuma County Detention Center will be limited per Special Order 2021-2.

“We will only accept Class 1 through Class 3 Felonies, Sexual Assault (adult or child) and mandatory Domestic Violence arrests and/or (Domestic Violence) Protection Order violations. ... All others should be issued a summons,” Nowlin stated in the letter.

The order is set to expire Nov. 7.

If a subject tests positive for COVID-19 and is arrested for the listed crimes, the detention center deputies will be notified via telephone so arrangements can be made for isolation, Nowlin stated.

It is also requested that the on-call judge be notified of the situation so that advisement or further action determined by the court can be ordered, Nowlin’s letter said. Arrestees who have tested positive for the COVID-19 virus “will not enter the Detention Center without notification to the on-call judge for disposition,” Nowlin said.

In an Oct. 6 letter to law enforcement and the Montezuma County Board of County Commissioners, Margeson responded that the sheriff’s policy conflicts with Colorado law and was issued without consultation with the DA’s office.

“The District Attorney seeks immediate modification of the ... order to achieve compliance with Colorado law specifically as it relates to arrests and summons procedures,” Margeson said. “The District Attorney also suggests an expedited meeting with Chief Judge (Douglas) Walker so that an emergency bond schedule can be set allowing for compliance with state law and victim rights while promoting the health and safety of all concerned.”

Margeson said the statute “describes exceptionally limited circumstances under which law enforcement is authorized to use a felony summons in lieu of arrest.”

“This is not the first time the District Attorney has attempted to remedy the Sheriff’s jail admission policy and its conflict with Colorado law,” Margeson said. “It is regrettable this problem continues to exist.”

Margeson said Nowlin’s order conflicts with Colorado statute CRS 16-5-206 which outlines when law enforcement is allowed to issue a felony summons, instead of an arrest.

According to the statute, a felony summons can only be used for Class 5 and Class 6 nonviolent felonies, Margeson states.

He said a felony summons cannot be used for any victim rights act crime listed in CRS 24-4.1-302(1), and can cannot be used for any “unclassified felony” punishable by a maximum penalty of more than 10 years in prison.

Certain criteria must also be met to issue a summons in lieu of arrest, Margeson added in the letter.

There must be probable cause to believe the defendant committed the offense, there cannot be outstanding warrants for the defendants arrest, the defendant cannot have been arrested for a felony in the past five years, there must be reasonable likelihood that the defendant will appear in court, and the defendant cannot have used a deadly weapon in the commission of the crime.

Margeson is requesting modification of Nowlin’s order to read:

“(W)e will only accept Class 1 through Class 4 Felonies; all felonies classified as “Victim Rights Act” crimes per CRS 24-4.1-302(1); all felonies where a deadly weapon was used; all felonies not otherwise eligible for a felony summons per CRS 16-5-206; Sexual Assault (adult or child); and mandatory Domestic Violence arrests and/or DV Protection Order violations. For all others, the use of a summons is suggested in a manner consistent with Colorado law.”

Margeson supports a meeting with Walker, chief judge of the 22nd Judicial District for an emergency bond schedule.

“This bond schedule could help to reduce the number of inmates physically present within the Detention Center and would serve to accomplish the health goals of (Nowlin’s) Special Order 2021-2,” Margeson stated.

jmimiaga@the-journal.com