Drug Court Launched for Arapahoe and Douglas Counties

Commencing October 14, Douglas and Arapahoe Counties will be served by a new "Recovery Court," traditionally referred to as a drug court. These courts are alternative sentencing mechanisms designed to reduce the number of defendants convicted of drug offenses who are sentenced to jail by placing them in a comprehensive supervision and treatment program that is overseen directly by a judge. Persons sentenced to drug court must appear regularly before the judge to have their compliance and recovery progress reviewed, and if necessary, modify certain aspects of their supervision.

The program has been used for several years now in Denver, where it has shown noticeable success in reducing both the jail population and recidivism. Denver has also pioneered a similar review court system for DUI offenders, but so far no other jurisdictions have followed suit.

Several sentencing alternatives may be available to criminal defendants here in Colorado, depending on the offense and surrounding circumstances. Before pleading guilty to any crime, an experienced criminal defense attorney should be consulted in order to learn the various possible consequences of a criminal conviction.

No Per Se Levels for Marijuana DUI...For Now

The DUI(Drugs)--Marijuana Working Group, operating under the auspices of the Colorado Commission on Criminal and Juvenile Justice, has decided not to recommend a specific blood-level concentration of THC, the intoxicant contained in marijuana, to establish per se proof of intoxication and/or impairment. Earlier this year, the Colorado General Assembly addressed the issue (HB 11-1261) and decided that there was insufficient scientific evidence to conclusively establish that a particular level of THC resulted in intoxication and/or impairment in drivers. The aim of the bill was to establish a THC level that could be accepted as prima facie evidence that a person was impaired or under the influence with respect to operating a motor vehicle, much as the .08 and .05 alcohol levels operate to establish whether a driver is under the influence and impaired under current state law. Given the far greater use of marijuana in light of relaxed Colorado laws pertaining to marijuana use and possession in recent years, the Colorado criminal justice system has seen a significant increase in the number of cases alleging driving under the influence or driving while ability impaired caused by marijuana use.

The decision by the Working Group reinforces the findings by the General Assembly that, at least for the time being with the level of scientific knowledge and research available, THC levels cannot be used to conclusively establish intoxication or impairment in a broad application to the population as a whole. It is unlikely, however, that we have heard the last of the debate on this issue. A charge of driving under the influence or while ability impaird by marijuana is a serious charge that can be even more complex than a similar case involving alcohol, and an experienced attorney is essential in helping a defendant assess his legal options.

Members of the Working Group include marijuana legal advocate Sean McAllister, Arapahoe County Sheriff Grayson Robinson, State Judicial Department rep Heather Garwood, Division of Behavorial Health rep Christine Flavia, Colorado Spring Police rep Rod Walker, Eagle County DA Mark Hurlbert and drug addiction counselor Laura Spicer. Their formal report will be presented to the Commission next week.

Denver Adopts "Sobriety Courts" for Repeat DUI Offenders

Repeat DUI offenders in Denver will now be given the opportunity to participate in the city's "Sobriety Court" program as an alternative to lengthy jail sentences traditionally imposed. Based on the "Drug Court" program that has enjoyed extended success, defendants with previous drug/alcohol-related driving offenses can participate in an intense court-supervised treatment regimen that requires frequent (often weekly) reviews by the court of the defendant's progress in the program. Before institution of this new option, most judges relied on lengthy jail sentences of six months or more in addressing cases involving DUI/DWAI defendants with more than one prior offense. The goal of the program is to ensure complete compliance with substance-abuse treatment regimens and prevent recidivism. It has been reported that in Denver, about a third of alcohol-related driving offenses are committed by previous offenders.

Criminal Defense Bar Seeks Public's Assistance in Enforcing New Consent Search Law

Earlier this year, Colorado's new law went into effect requiring officers who conduct consent searches without probable cause to advise the party searched that they have the right to refuse consent (see earlier posts below on this subject). The Colorado Criminal Defense Bar is seeking to ensure that this law is observed and enforced, and requests that anyone who was subjected to a consensual search since June of this year without the required advisement being given to contact Art Way at (303) 867-0305 or art@progressivecoalition.org.

In most cases, law enforcement officers must have, at a minimum, probable cause to search a person or his/her property. However, if a person grants consent to search, probable cause is not necessary. Beginning this summer, officers in Colorado are required to advise a person from whom consent to search is sought to advise the person that their consent must be voluntary and that they have a right to refuse consent to search. Evidence that is obtained illegally may be excluded in court--an experienced attorney is essential in evaluting these situations.

COA: No Statutory Preference for State's Chemical Test in Determining "Persistent Drunk Driver"

The Colorado Court of Appeals has ruled that Department of Revenue hearing officers cannot, as a matter of law, disregard conflicting chemical test evidence in determining whether a driver is a "persistent drunk driver" under Colorado law. In Garcia v. Huber, a Dept. of Revenue hearing officer refused to consider the driver's independent chemical test results which conflicted with the state's blood test results which showed the driver's BAC at .174, claiming that Colorado statute established legal preference for chemical tests conducted by the state over private testing done on behalf of the driver. The COA clearly found that, while a preference for state-conducted tests exists in determining Blood/Breath Alcohol Content for per se revocations, no such preference exists regarding BAC levels in determining whether a driver is a "persistent drunk driver."

Colorado law provides enhanced criminal penalties and harsher driver's license restrictions for persons found to be "persistent drunk drivers." In order for a person to be designated a "persistent drunk driver," he/she must be found driving a vehicle with a Blood/Breath Alcohol content of .170 or greater. This is but one example of the many unique provisions of Colorado DUI law which necessitate the assistance of an experienced attorney to understand all implications of this type of criminal charge.

COA: No "Good Faith" Exception to Unlawful Entry Element of "Make My Day" Law

The Colorado Court of Appeals has ruled that there is no intruder "good faith" exception concerning the unlawful entry element of Colorado's "Make My Day" law. In People v. Zukowski, the defendant was convicted of first degree assault of a person who entered the defendant's condominium after 1 AM. The defendant was denied pre-trial immunity based on the "Make My Day" law, but asserted the law as an affirmative defense at trial. At trial, the jury was instructed, in part, that "...in order for the [Make My Day defense] to apply, the other person's unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law." (emphasis added) On appeal, the COA ruled that the instruction was not in accordance with the "Make My Day" statute, which makes no such provision for a "good faith" exception to the unlawful entry element of the defense. As a result, Zukowski's conviction was reversed and the case remanded for a new trial consistent with the COA's ruling.

To review, Colorado law provides immunity and/or an affirmative defense when the occupant of a dwelling uses deadly force against a person who has unlawfully entered the occupant's dwelling and the occupant has a reasonable belief that the intruder 1) has committed, is committing or intends to commit a crime inside the dwelling other than the unlawful entry, and 2) uses or may use physical force, no matter how slight, against any occupant of the dwelling. All three elements--unlawful entry, additional criminal activity, and use/threat of force against an occupant--must be present to assert immunity/defense under "Make My Day." This is but one example of many legal defenses that can be asserted to refute criminal charges; anyone charged with a crime should consult an experienced attorney to explore all possible legal defenses.

New Domestic Violence Treatment Standards Can Spell Longer Terms of Court-Ordered Treatment

Starting this fall, treatment standards for persons convicted of crimes constituting an act of domestic violence have changed dramatically. Colorado law stipulates that, in addition to any other sentence imposed by the court, a person convicted of a crime constituting an act of domestic violence must undergo an evaluation and complete a treatment program recommended by the evaluation. Formerly, most persons entering the statutorily-required counseling could basically count on a 36-week treatment regimen. However, the new standards do not place a minimum or maximum period standard, but rather requires offenders be periodically evaluated and meet acceptable levels of knowledge and acceptance of treatment principles. Basically, first-time offenders will be assigned to a treatment provider, evaluated, and assigned a level of treatment--A, B or C, in ascending order of intensity based on risk assessment of the offender. Once the treatment plan is commenced, the offender is evaluated every 2-3 months on his progress, and will be discharged from the program only when the Multidisciplinary Treatment Team (provider, probation and victim advocate) or "MTT" agrees the offender demonstrates knowledge of Core Competencies related to domestic violence and there is sufficiently-low risk of re-offense. High-risk or repeat offenders cannot be assigned to entry, or A, level treatment.

In summary, the term of domestic violence treatment programs, not unlike sex offender treatment programs, has become indefinite. The fate of offenders entering the program lies with the evaluation of the MTT and will not likely result in shorter periods of treatment, but longer ones. It is possible under the system to complete treatment in a few months, but terms of less than six months will be extremely rare, while terms of a year or more will become more commonplace. Given the implications of these new standards, it is more important than ever to consult experienced legal counsel to navigate this serious and complex area of criminal offenses.