A common defense to forgery charges is that the defendant had no intent to defraud.
Examples:
Writing a fake signature on a credit card charge slip,
Altering information on a loan application, or1
Fabricating a fake letter of recommendation2
The language of Section 18-5-104 states that
(1) A person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument of a kind not described in section 18-5-102 or 18-5-104.5. (2) Second degree forgery is a class 1 misdemeanor.
The following table compares the elements and penalties of Colorado’s primary forgery offenses.
2nd-degree forgery is a misdemeanor, whereas 1st-degree is a felony.
1. Elements
Second-degree forgery is creating a false document – or altering an existing one – with the intent to defraud others with it. Second-degree forgery occurs when someone forges any document other than the following:
Money, stamps, securities, or other valuable instruments issued by a government;
Stocks, bonds, or similar instruments;
Deeds, wills, codicils, contracts, assignments, commercial instruments, promissory notes, checks, or other instruments which affect a legal right;
A public record or instrument legally fileable in or with a public office;
A written instrument created by a public office or government agency;
Tokens, transfers, certificates, or other articles for use in transportation or in place of money;
Lottery tickets or shares;
Academic records, including transcripts, diplomas, grade reports, or similar documents.3
(Falsifying any of the above documents is first-degree forgery (C.R.S. 18-5-102), except that forging an academic record is prosecuted under C.R.S. 18-4-104.5.)
Note that forgery is a crime even if the person receiving the fake document knows it is fake. All that is necessary is that the defendant has the intent to defraud.4
Example: A nurse steals one of the doctor’s RX slips and writes herself a prescription for a heartburn medication by forging the doctor’s signature. Then she takes it to the pharmacy, where the pharmacist knows it is a fake when she compares it to other prescriptions that doctor has written. The pharmacist rips it up, and the nurse leaves. Here, the nurse committed 2nd-degree forgery by faking the doctor’s signature on the RX slip. It makes no difference that the pharmacist did not fall for it.
Also note that the crime of forgery comprises creating fake documents from scratch as well as falsifying existing documents. Had the nurse in the above example created her own RX slip instead of using a real one, it would still count as forgery.5
2. Penalties
Second-degree forgery is a class 2 misdemeanor in Colorado. The punishment includes:
Up to 120 days in jail, and/or
Up to $750 in fines.6
Meanwhile, possessing a second-degree forged instrument is a petty offense punishable by up to 10 days in jail and/or up to $300 in fines.7Forging a doctor’s prescription is a type of 2nd-degree forgery under CRS 18-5-104.
3. Defenses
Having no intent to defraud is the typical defense to forgery charges:
Example: Amy is a graduate student reviewing a grant application. She misreads the bottom which asks for her adviser’s signature. She thought it just asked for her adviser’s name, so she writes it in her typical script. Here, Amy did not commit criminal forgery of her adviser’s signature because she had no intent to defraud. She genuinely believed she was just providing her adviser’s name. And the fact she did not mask her handwriting is evidence she did not try to trick anyone.
In most forgery cases, prosecutors have the burden to prove defendants have an intent to defraud. But in cases involving giving forged documents to police or other peace officers, the court can presume the defendant meant to be deceptive. Then the burden falls on the defendant to prove otherwise.8
Three other possible defenses to C.R.S. 18-5-104 charges are:
Depending on the case, defense attorneys may call upon forensic experts to testify as to the authenticity of the allegedly forged documents.
4. Immigration Consequences
Forgery is a deportable criminal offense.9 Therefore, non-citizens charged with violating Colorado criminal code 18-5-104 should hire an experienced lawyer. Getting the charges dismissed or changed to a non-removable offense may be possible.
Learn more about the criminal defense of immigrants.
5. Record Seals
Yes, forgery offenses may be sealed under Colorado criminal law. But there is a wait to seal convictions:
Colorado prosecutors have an 18-monthstatute of limitations to bring second-degree forgery charges. After 18 months have elapsed from the discovery of the alleged forgery crime, the D.A. may not bring charges.11
For further information, refer to our article, What is the statute of limitations of forgery in Colorado?Colorado Legal Defense Group140 E 19th Avenue, Suite 500Denver, Colorado 80203(303) 222-0330
Arrested in California? See our article on California forgery laws (470 PC). Arrested in Nevada? See our article on forgery (NRS 205.090).
C.R.S. 18-5-107 (criminal possession of a forged document, also referred to as criminal possession of a forged instrument). Prior to March 1, 2022, possession of a 2nd-degree forged instrument was a class 2 misdemeanor, carrying 3 to 12 months in jail and/or up to $250 to $1,000 in fines. SB21-271.
