Wednesday, January 8, 2020

A Basic Primer on Red Flag/ERPO


Effective January 1, 2020, law-abiding gun owners in Colorado are subject to being “Red Flagged” under Colorado Revised Statutes 13-14.5-101 et seq. C.R.S. (Page number references below are only to this full text of the Act found at: https://leg.colorado.gov/…/defa…/files/2019a_1177_signed.pdf).
According to the abbreviated legislative summary of the new law (https://leg.colorado.gov/bills/hb19-1177), its purpose is to permit law enforcement or a household member (parent, sibling, child, spouse, domestic partner, unmarried co-parent, someone who resides or has resided with you during the last 6 months) (pg. 2 of Act) to seek a court order for the surrender/confiscation of any firearms in the subject's possession or control. The surrender can be voluntary or forced by search warrant (which could include a no-knock raid of your business, home or other property the subject controls at any time of the night or day).
In enacting this ill-conceived legislation, the General Assembly clearly failed to consider the safety of all parties involved in this Constitutionally-questionable process, including law enforcement, bystanders and the subject himself. In Maryland, where Red Flag/ERPO laws are already in place, 148 seizures occurred in the first 3 months with one gun-owner killed (https://baltimore.cbslocal.com/…/fatal-officer-involved-sh…/).
To obtain a preliminary ERPO, the accuser must establish before a judge by sworn petition and testimony that the subject poses a significant risk of causing personal injury to himself or others in the near future by having, purchasing, possessing or receiving a firearm (pg. 3). The standard of proof is a preponderance of the evidence--the lowest standard in our legal system (https://www.law.cornell.edu/w…/preponderance_of_the_evidence).
The court must hear the petition as soon as possible, but no later than the day after filing. The accuser and witnesses may appear by phone (pg. 4) and are not subject to formal cross-examination. The hearing is ex parte, meaning the subject of the order will not be aware of the hearing or issuance of an ERPO until the police arrive to execute it. The issued order will require the surrender (or seizure) of all firearms and any concealed-carry permit, but cannot address ammunition or other accessories. The subject of the order is entitled to a court hearing within 14 days (pg. 4), but the burden of proof is on the subject to counter the finding of the court that the subject poses a risk/threat/danger. Simply put, once an ERPO is in effect, a judge must be convinced that he/she was completely in error by initially granting the order, an extremely-remote likelihood.
ERPOs can also seek to prevent recovery of firearms already in police/government custody.  In one of the first cases filed after the law went into effect consisted of Denver Police seeking to retain firearms that were already in their possession as the result of a Domestic Violence investigation (https://www.9news.com/…/73-2c6b704c-bb49-4683-a8e8-df85b978…).
Given the complex legal issues involved in this new and highly-questionable law, the assistance of experienced legal counsel, especially in the areas of firearms and criminal law, is of vital importance.

Thursday, August 16, 2018

New COA Ruling Removes Homeowner Exclusivity of Self-Defense in "Make My Day"

Earlier this month, the Colorado Court of Appeals ruled that a trespasser into a home can still assert self-defense against a homeowner if the trespasser did not knowingly trespass.  In People v. Jones, an intoxicated man (Jones) walked into an apartment he believed to be that of a friend.  Unbeknownst to Jones, his friend had moved and he walked into an apartment occupied by several strangers and began to assault one of the occupants.  When the occupants realized Jones was a trespasser, they began to attack him and, after Jones fled the apartment, the occupants followed, tackled and apprehended Jones.  During the melee, Jones stabbed one of the occupants with a knife he was carrying.

At Jones' trial, he asserted an affirmative defense of self-defense with respect to the stabbing, saying he did not attack anyone and was attacked by multiple persons who meant to do him serious bodily injury.  The prosecution argued that Jones was unable to assert such a defense due to the "Make My Day" law protecting homeowners from legal liability when they use force against an intruder.  The court allowed Jones to argue to the jury that he did not know he was trespassing when he entered the apartment and when he realized that he was in the wrong apartment he attempted to flee.  Jones was convicted of felony assault and misdemeanor assault, but was acquitted on charges of attempted murder and burglary. On appeal, the COA ruled that Jones should have received the benefit of an elemental jury instruction which required the jury to find that Jones both unlawfully AND knowingly broke/entered the apartment.  The COA found that this omission constituted reversible error and remanded the case for a new trial.

In its opinion, the COA correctly stated that "The make-my-day statute ... has three elements: (1) an unlawful entry; (2) the occupant’s reasonable belief that the person entering unlawfully has committed, is committing, or intends to commit a crime other than the entry; and (3) the occupant’s reasonable belief that the person entering unlawfully might use physical force against an occupant." But the court went on to point out that  "...in People v. McNeese, 892 P.2d 304, 310 (Colo. 1995): “[A]n unlawful entry means a knowing, criminal entry into a dwelling.”  As such, a mere trespass may NOT make an entry into a dwelling unlawful!

This is a very important case for those staying abreast of the law pertaining to the use of force, including deadly force.  The "Make My Day" law was conceived to protect homeowners from criminal intruders, NOT mistaken trespassers.  However, the ruling in Jones begs the question of whether a homeowner needs to actually know that the intruder knowingly entered the home for criminal purposes.  The answer of course is no, the homeowner does not need to know the mental basis for the actions of an intruder.  The Jones case is about due process protections of one accused of a crime resulting from a mistaken trespass.  But this case does highlight the importance of prudence and basic caution in using force, especially deadly force, against a trespasser who may have merely made a mistake, which is not uncommon for individuals who are in a state of intoxication as in this case.  Jones is not about whether the occupants had a right to use force against Jones once he showed aggression, but rather whether Jones may have had a right to defend himself in this particular situation. 

There was a dissenting opinion which asserted that McNeese was inapplicable when it came to "Make My Day", improperly placing a burden of proof that the homeowner was aware that the intruder knew his entry was unlawful.  The dissent also asserted that any error regarding the elemental instruction was harmless in light of the myriad of instructions favorable to Jones regarding knowledge, mistake and intoxication as defenses to the crimes charged.  The dissent opined that it was not reasonable to believe the jury was misled or confused regarding the possible defenses asserted by Jones merely because they were not informed that there was a "knowing" element in refuting the "Make My Day" law.

Again, the use of force, particularly deadly force, is not a simple area of the law.  The counsel of an experienced attorney is always of great benefit when attempting to stay abreast of the current legal landscape.

Tuesday, June 13, 2017

Intoxylizer 9000 Certificates Get the Boot by Gilpin County Judge

After months of litigation and a days-long hearing on the issue, Gilpin County Judge David Taylor has ruled that certificates issued by the Colorado Department of Public Health and Environment (CDPHE) certifying that Intoxylizer 9000 machines used to measure breath alcohol in DUI cases cannot be used by prosecutors to establish that these machines were properly tested/vetted by CDPHE as required by statute and regulations.

The court made this ruling because it had been established at hearing that the certificates used by CDPHE exhibited the signature of a supervisor who has not worked at the agency for over a year and a half.  CDPHE continues to maintain that the signature is not a legal affirmation, but a simple formality and that the machines were properly tested/vetted.  The only problem with that claim is that, despite years of requests and legal demands, CDPHE continues to refuse to provide proper proof of its claim.

Colorado began substituting the old Intoxylizer 5000 machines, which had been properly tested/vetted/documented, with the 9000 version in May 2015.  Since then, there has remained controversy regarding the accuracy/reliability of these machines and requests for the information/documentation pertaining to their certification by CDPHE have been repeatedly ignored. The 9000's immediate predecessor, the Intoxilyzer 8000, has already been declared scientifically unreliable in two different states.  There is no substantive difference in the basic technology between the 8000 and 9000 machines.

As the result of Judge Taylor's ruling, verification of the certification of 9000 machines used in Colorado will have to come directly from CDPHE management testimony, which will no doubt prove costly and time-consuming.  Already, other judges in other counties have adopted Judge Taylor's ruling on this issue, with more expected each day.

For more info: http://www.denverpost.com/2017/06/13/breath-test-evidence-dui-cases/

Our law offices continue to maintain a close watch on this issue in the courts...experienced, knowledgeable legal counsel is essential in defending any DUI case.

Wednesday, March 15, 2017

Governor Rejects Defense Bar Demand for Investigation Into Intoxylizer Certifications--Says Investigation Was Done; But Where's the Report?

Governor Hickenlooper has rejected the demand by the Colorado Criminal Defense Bar that an official independent investigation be conducted regarding the certification of the Intoxylizer-9000 machines that have been used to measure breath alcohol in DUI suspects since 2013.

The governor's legal office claims that an investigation was conducted and no wrongdoing was found.  Although that may be the case, no reports/findings, formal or informal, of that investigation have ever been made public.  The procurement, testing, certification and implementation of the I-9000 remains shrouded in mystery and secrecy...

Here is the latest report on the matter from today's Denver Post:

http://www.denverpost.com/2017/03/14/colorado-dui-convictions-forgery-attorneys/

Monday, March 13, 2017

Intoxylizer-9000 Scandal Widens

A CDPHE whistle-blower has added yet another layer of scandal to the already beseiged Intoxylizer-9000 machine used to measure breath alcohol on DUI suspects. (See previous reports on this blog)

The former CDPHE employee Mike Barnhill has now reiterated for the media what he has already testified to in court--that certification of I-9000 machines was made by unqualified individuals using his qualifications and certification number, including false signatures.

CDPHE continues to maintain, publicly and in court, that these revelations are irrelevant to the accuracy and reliability of the I-9000.

Here's the Denver CBS4 report:

http://denver.cbslocal.com/2017/03/10/whistleblower-says-signatures-certifying-dui-machines-were-forged/

The Law Offices of Anthony J. Fabian, P.C. continues to remain abreast of these issues and how they affect the defense of DUI charges here in Colorado.


Thursday, February 16, 2017

Questions Abound Regarding Certification of Intoxilizer-9000

As previously reported on this information page, there are serious unanswered questions regarding the validity of the certification process of the Intoxilizer-9000 (AKA I-9000) machine that has been used to measure breath alcohol content in DUI/DWAI cases in Colorado since 2013.  Legal issues surrounding those questions are now being litigated in Colorado courtrooms.  See, e.g.  http://kdvr.com/2017/02/15/attorneys-at-a-dui-trial-call-colorados-breathalyzers-into-question/

Prior to 2013, when the I-9000 was put into service statewide, Colorado used an older machine, the Intoxilizer-5000.  This machine not only measured breath alcohol content (BrAC), but it also captured a second breath sample for independent testing if the defendant desired.  This machine was certified under the requirements set forth in Colorado statutes and CDPHE regulations.  Further, the full technical information contained in the operation manuals of the I-5000 were available to attorneys and the public and CDPHE personnel readily answered all questions pertaining to the I-5000.

But it was a completely different story with the I-9000, which did away with second-sample capture of breath tests.  From its adoption, the I-9000 has been shrouded in secrecy and mystery.  CDPHE has repeatedly refused to provide any technical data or information regarding the testing and certification of the I-9000 prior to its deployment for use in DUI cases.  Both CDPHE and the I-9000 manufacturer have also refused to provide any technical or operation manuals for review by independent scientific experts.  It has now been discovered that serious irregularities took place during the certification of I-9000s by CDPHE and that unqualified/uncertified personnel were involved in the certification of machines.  Further, documents offered by prosecutors in court to verify the certification of I-9000 machines have been carrying the signature/facsimile signature of a CDPHE supervisor who has not worked at the department for over 18 months.  None of these issues have been directly and satisfactorily addressed by CDPHE, the Attorney General, or the District Attorneys of this state.

To summarize, Colorado citizens are currently being tried and convicted with evidence from a scientific device of which no one of scientific credentials is able to ascertain what it is made of, how it works, and how it was evaluated by the State to verify that it was sound and accurate before being used as prima facie evidence of DUI.  Further, the State continues to keep the operational and technical information regarding the I-9000 a secret and has taken all possible measures to prevent the proper scientific and legal vetting of this machine.  Simply put, juries are being told that since the State says the I-9000 is reliable and accurate, we have to just take their word for it!

The Constitutions of the U.S. and Colorado guarantee that a person accused of a crime receive due process of law and be able to confront/challenge the evidence offered against them, and it is the most egregious of violations of these rights to prevent accused persons from being able to investigate, vett, test, and challenge scientific evidence that is offered against them.  That is exactly what is happening in Colorado courtrooms when persons stand accused of DUI/DWAI pursuant to a breath test result from an Intoxilizer-9000.

The Law Offices of Anthony J. Fabian, P.C. remains attuned to these issues and in close communication with other professionals who are intimately involved with the various statewide legal challenges to the improper and unconstitutional implementation and use of the I-9000 and its test results.


Thursday, September 22, 2016

COA: Statutory Two-Hour Limit on Chemical Testing Mandatory in Per Se Revocations

Today, the Colorado Court of Appeals ruled that the statutory two-hour time limit to conduct a chemical test of drivers suspected of DUI/DWAI is mandatory and cannot be circumvented by excuse or good-faith actions/intentions.

Colorado's "Expressed Consent" law requires the revocation of a driver's license if he/she is contacted by law enforcement with probable cause that the driver is DUI/DWAI and a chemical test conducted within two hours of driving reveals a blood/breath alcohol content of .08 or greater.  In recent years, the Department of Revenue, Motor Vehicles Division has interpreted existing case law to permit revocation even when proven that the chemical test was conducted more than two hours after driving, or when it could not be definitively ascertained just how much time had elapsed between driving and conduct of the chemical test.

In Edwards v. Dept. of Revenue, a panel of the COA reversed the per se revocation of a driver who was stopped and suspected of DUI.  Because of Intoxylizer error messages for two abortive testing attempts, a measured breath sample of .229 was not achieved until two hours and five minutes after the driver was last known to be driving.  At the DMV hearing, the hearing officer concluded that, since the first attempts at testing were made before the statutory two-hour limit had expired, the test results obtained outside the two-hour test limits were nonetheless valid to be considered re revocation.  The driver appealed to the District Court, which upheld the revocation on different grounds; holding that the statutory time limit had been violated, but that given the high BrAC test result, the driver's BrAC was no doubt well-above the legal limit when testing began inside the two-hour time limit.

The COA disagreed and reversed the per se revocation, holding that the two-hour limit does include any exceptions or exclusions for special circumstances.  Since the test results that were used against the driver were obtained outside the two-hour limit, the results could not be used in a per se revocation proceeding against the driver.  The COA was careful to point out that this two-hour time limit applies only to civil, administrative revocation proceedings conducted by DMV; test results obtained outside of two hours may still be offered against a defendant in a criminal proceeding provided the test results meet all the other evidentiary requirements of scientific tests.

As one can see from this case along, DUI is a very complex body of law, and the assistance of an experienced attorney is no longer advisable, but essential.