Nebraska, Oklahoma Sue Colorado Over Marijuana Legalization

Nebraska Attorney General Jon Bruning announced that his state will be filing a lawsuit in the U.S. Supreme Court asking that Colorado's recreational marijuana possession/use law be declared unconstitutional in that it violates the Supremacy Clause of the U.S. Constitution.  The Oklahoma AG Scott Pruitt has announced that his state will join in the lawsuit.  The U.S. Constitution provides that state/local laws cannot conflict with federal laws; federal law must reign supreme in instances where state/local laws contradict or conflict.  Colorado voters approved a state constitutional amendment in 2012 that permits individuals over 21 to possess a small amount of marijuana for personal use in private.  However, marijuana in any quantity remains illegal under federal law despite the declared reluctance of the current Justice Department to enforce federal standards in Colorado and Washington, which is the other state that has legalized limited marijuana possession/use.

The lawsuit is brought in the U.S. Supreme Court because, under the Constitution, that court has original jurisdiction in matters between two or more states.  Additional information may be found at http://www.omaha.com/news/nebraska/bruning-files-lawsuit-over-colorado-s-legalization-of-marijuana/article_89801fb6-86ef-11e4-b2e8-9bf0786ca418.html.

Despite its legalization in Colorado, many entities do not permit marijuana possession/use, citing its illegality under federal law.

The contradictions illustrated by this case once again demonstrate why experienced legal counsel is vital when confronted by the implications of the legal system.

SCOTUS Imposes New Double-Standard for Ignorance of the Law

This week, the U.S. Supreme Court issued its opinion in Heien v. NC, in which the Court held that evidence obtained as the result of a traffic stop predicated upon an officer's mistaken belief that a traffic law had been violated will not be suppressed under the century-old Exclusionary Rule.  In this particular case, an officer stopped a car that was later found to be transporting drugs based on his belief that the suspects' car had a defective brake light.  A subsequent search of the car revealed illegal drugs, but the defendant moved to suppress the search results because the car in fact was not in violation of the North Carolina vehicle code, i.e. the officer's belief that the brake light problem was illegal was in fact erroneous (NC law requires only one working brake light; defendant's car had one working light and one that was out).  The trial court and appellate court agreed, but the North Carolina Supreme Court reversed, ruling that the officer's mistake of law was made in good faith and therefore fell under the "good faith exception" to the Exclusionary Rule, the 1914 Supreme Court ruling that evidence obtained as the result of a Constitutional violation must be excluded at trial.  The U.S. Supreme Court upheld the ruling of the NC Supreme Court, holding that the officer's belief that only one operational brake light was a traffic violation to be reasonable despite later court rulings to the contrary.

The SCOTUS ruling in Heien is disturbing in that it appears to establish a double-standard under the law regarding required knowledge of established law.  We are all familiar with the time-honored legal axiom "Ignorance of the law is no excuse!", meaning of course that a person can be held criminally liable for his actions even if he was not aware of the illegality of those actions.  We are all presumed to know the law, whether we actually do or not.  However, the holding in Heien seems to give police officers a pass when it comes to knowing the laws they are presumably enforcing...with them, it now seems that ignorance of the law IS an excuse!  The "good faith" exception was instituted by the Supreme Court thirty years ago, and during that time courts have held that officers who act on prevailing law that is subsequently changed or overruled are covered by this exception.  However, the good faith exception has never heretofore been held to apply to long-standing applicable law that remains unchanged as was the situation in Heien.  Analysis of the Court's ruling appears to reveal that the Court really didn't consider the public perspective that his holding creates a double-standard, but rather seemed chiefly concerned with preventing clearly-guilty drug runners from beating the rap on a legal technicality.  It is the considered opinion of this blogger that the Constitution is NOT a legal loophole or technicality, but that giving law enforcement officers the means to make tenuous excuses to justify an illegal stop IS.

As always, cases like this reflect why it is important to know your rights and to have benefit of experienced legal counsel when confronted with any criminal charge, no matter how "minor" it may be.

NHTSA: No Evidence to Support Low Per Se Cannabis DUI Levels

The National Highway Traffic Safety Administration has issued a report that states that low cannabis/THC levels constituting "per se" DUI such as the one set in Colorado are NOT supported by sound scientific evidence.  When the current Colorado THC per se level of 5 ng was set following the legalization of recreation marijuana use two years ago, the General Assembly was provided with so-called scientific and medical testimony/evidence stating that most adults were significantly impaired at the 5 ng level.  The federal agency that oversees highway safety in the United States has found that such claims are NOT supported by sound science.  A story on this report may be found at http://www.enewspf.com/opinion/analysis/57576-nhtsa-report-evidence-fails-to-support-proposed-dui-impairment-levels-for-cannabis.html.

It has been well-known for many years that THC, the "active" chemical in marijuana, affects individuals variously without any real, identifiable consistency in its effects.  This NHTSA report essentially re-affirms that collective knowledge.  No drug or substance affects all people in the manner or to the same degree.  This is why it is essential to obtain experienced legal counsel whenever charged with an impaired driving offense.

Ohio Case Highlights Problems with Intoxylizer Machines

The Ohio Supreme Court has ruled that crucial scientific data pertaining to Intoxylizer 8000 machines (which are very similar to Intoxylizer 9000 machines currently used in Colorado) must be made available to defendants charged with DUI based on breath test results on these machines.

Many aspects of the reliability of Intoxylizers have been raised by the legal community in recent years.  This particular Ohio ruling deals with the inability of the Intoxylizer to discern mouth or regurgitated alcohol and lung alcohol, which is indicative of the level of alcohol actually in the bloodstream.  Colorado attorneys have thus far been unable to obtain full disclosure of the same information on the Intoxylizer 9000 as that sought in the Ohio case.  As the below-referenced story mentions, this issue is about the fairness of the process and not circumventing the law or justice.  When disclosure is incomplete, the evidence is incomplete and the process is unjust.

The Ohio television news story may be viewed at http://www.10tv.com/content/stories/2014/10/01/columbus-ohio-ohio-supreme-court-ruling-could-change-state-breathalyzer-test-laws.html.

DUI is a complex offense with a myriad of legal aspects and ramifications.  Experienced legal counsel is essential in providing persons charged with this type of offense a clear understanding of their rights and options in dealing with all aspects of DUI.

Judge Retention--It's YOUR Call!

Mail ballots will hit mailboxes in a week, and Election Day 2014is less than a month away.  Every election, a segment of the ballot is devoted to judicial retention elections.  Colorado has a very unique judicial selection and retention process, unlike most any other state.  Judges are appointed by the governor, but retained by the people.  Here's a review of the process so you can both understand and cast an informed vote this election.

In most jurisdictions, to become a judge in a state court (county, district, appellate, supreme) a candidate must be an elector (eligible voter, i.e. resident) in the jurisdiction to which he/she applies and have been a licensed attorney in Colorado for at least five years.  When a judicial vacancy opens up, whether as a newly-created court or the loss of an active judge, candidates submit their applications to that jurisdiction's Judicial Nominating Commission.  These commissions are comprised of both lawyers and laypersons appointed by the governor to assist him/her in the judicial selection process.  Each commission is chaired by a justice of the Colorado Supreme Court; the justices take turns serving on selection commissions as they are convened by necessity.  After the application deadline, the commission reviews the applications and decides which candidates it wishes to grant personal interviews.  Once the interviews are held, the commission is permitted to submit to the governor up to three names in nomination for each vacancy on that particular bench.  It is from that "short list" that the governor must select his appointment to the bench within fifteen days of receiving the list of nominees.  If for some reason the governor fails to appoint one of the nominees to the vacancy, the appointment falls to the Chief Justice of the Colorado Supreme Court.  Every judge appointed must serve a "probationary" term of two years before standing for retention election before the electorate of their jurisdiction.  If retained after his/her "probationary" term, the judges must stand for retention at regular intervals depending on what level court upon which he/she sits:  county court--four years; district court--six years; Court of Appeals--eight years; Supreme Court--ten years.  Appointments are for life, with the limitation that no judge may continue in a full, active capacity after reaching the age of seventy.  After at least five years on the bench, judges may choose to "retire" and continue to serve in a reduced/limited capacity as assistant/substitute judges at the highest level  at which they served actively or at a lower-level (e.g. a retired Supreme Court justice could serve as a substitute trial court judge in district or county court).

Before every regular state election, the state Judicial Performance Commission issues its report on all judges slated for retention in that election.  Judges are evaluated on their established court record, as well as by written evaluations submitted by lawyers and citizens commenting on the judge's performance and capabilities.  The Performance Commission publishes general comments of evaluation on each judge and then makes a general recommendation on retention:  retain, do not retain, or no recommendation (which is usually reserved for judges where there is insufficient information to make a recommendation).  Each judge is allowed to publish his/her own comments/response to the Commission's report/recommendation.  A summary of the Performance Commission's report is included in the official state voter information booklet, AKA the Blue Book.

Historically, members of the bench have generally been given the benefit of the doubt by the Performance Commission in its evaluations and recommendations.  The Commission realizes that judges have a difficult job and that, in every case, one or perhaps all parties will very likely walk away disgruntled and dissatisfied.  The Commission generally seeks to pare through the clear bias and look for trends or consistent threads of criticism in trying to decide if a judge is truly unfit for retention or just a victim of sour grapes.  It is for this reason that an extremely small number of judges are actually not recommended for retention each election, although there is another reason for that small number.  The Commission informs judges of its findings before they are made public, and many judges who receive a "do not retain" recommendation choose to step down in advance of the election.  In any case, in order to receive a "do not retain" recommendation, a judge normally must show either a great amount of legal incompetence or a decided lack of judicial demeanor/temperament or fairness.  A "do not retain" recommendation should be an enormous red flag to any voter evaluating whether he/she should vote to retain a particular judge.

It is therefore important, before you cast your ballot to extend a judge's term for a period of several years, to at least read the evaluations contained in the "Blue Book" and, if necessary, do additional research on your own.  It is highly recommended that you to talk to experienced lawyers who practice in your jurisdiction and ask their opinions--Is this judge fair?  Does he/she know/apply the law well?  Does he/she treat attorneys and parties with professionalism and courtesy?  Those are just a few questions every voter should be asking before they cast their ballot on judicial retention.  Informed voters improve and maintain our high standards of justice and their retention decisions are just as important as the decisions that nominate our judges in Colorado.

State Supreme Court: Felons Possessing Guns Must Show Imminent Threat

It is commonly known that it is a crime for convicted felons to possess firearms in Colorado, with the offense officially labeled "Possession of a Weapon by a Previous Offender" or POWPO.  However, for nearly forty years, the courts have operated under the common-law rule that a person charged with POWPO could assert an affirmative defense pursuant to his right under the Colorado Constitution to possess a firearm for defense of self/family and property.  In People v. Carbajal, announced today, the Colorado Supreme Court held that it was not error for a trial court to instruct a jury that, in order to avail himself of this affirmative defense, a defendant must show that any danger/threat necessitating the firearms possession must be imminent.  At trial, defendant introduced evidence that he had purchased three firearms 5-6 years prior to his POWPO charge, and that two of those purchased were directly following victimization for violent crimes.  Nonetheless, the Court found no error in the trial court's instruction that the threat for which the firearms were needed must be imminent, or immediate.  The Court went on to essentially establish a new rule on the subject, holding that the "Constitutional Right" affirmative defense to POWPO must be asserted as a "choice of evils" defense, whereby a defendant asserts lack of criminal liability because he was forced to break the law in order to prevent a greater harm, i.e. imminent danger to himself/others.

In a short but articulate dissent, Justice Hood (joined by Justice Hobbs), the newest member of the Court, pointed out that there is no imminency requirement in the Colorado Constitution, which merely states "The right of no person to keep and bear arms in defense of his home, person or property ...shall be called in question."  Neither was the imminency requirement in the form of a "choice of evils" format for the affirmative defense previously established in any Colorado case.  Once again, the majority of the Colorado Supreme Court seems to place punishment ahead of the U.S. and Colorado Constitutions.  It is important to have experienced, knowledgeable legal representation to ensure that the proper issues are raised and preserved should the need for appeal arise.

Legislative Cure Urged by Defense Bar Saves Colorado Drivers from Bizarre CO Supreme Court Decision

Today, in Francen v. Dept. of Revenue and Hanson v. Dept. of Revenue, the Colorado Supreme Court ruled that, prior to a legislative cure in the 2013 session of the General Assembly, police could stop vehicles without reasonable suspicion or probable cause and still have the evidence following the stop used against them in driver's license revocation proceedings.  In both cases, the drivers challenged their license revocations following DMV hearings where they challenged the constitutional basis for the vehicle stops.  In Francen, the District Court reversed the revocation and held that the officer conducting the stop did not have reasonable, articulable suspicion of a violation of the law, as required by the landmark SCOTUS case of Terry v. Ohio and its companion Colorado case, Stone v. People.  That ruling was overturned by the Colorado Court of Appeals which ruled in both Francen and Hanson that the basis for a vehicle stop or seizure of a driving suspect (in Hanson, the driver was seized from inside his home and was not stopped in his vehicle on the road) was not relevant to a driver's license revocation hearing--the only relevant issue vis-a-vis probable cause was whether the officer had probable cause to believe that the driver was impaired by alcohol, drugs or both.  As the result of the COA rulings, the Colorado General Assembly changed the Expressed Consent statute to specifically allow the basis for the motor vehicle stop to be challenged as part of any EC revocation appeal.  But for this legislative "cure", the result of today's CO Supreme Court ruling would be that officers could stop drivers in Colorado without any legal basis and, if the officer was able to develop probable cause of impairment following the stop, that driver could lose his/her license.

In criminal cases, in order to constitutionally justify the temporary detention of an individual for investigation, an officer must have reasonable, articulable facts at hand that would lead an ordinary officer to suspect that criminal activity was occurring.  In other words, police in the U.S. cannot just stop a person on a hunch, whim or "fishing expedition"--there must be a good reason for them to infringe on someone's right to move about freely.  If an officer fails to have "reasonable suspicion" when stopping someone, any evidence that is obtained following such an illegal stop is inadmissible against the accused.  For some strange and unexplained reason, both the Colorado Court of Appeals and Supreme Court don't have a problem with baseless police stops, at least within the confines of people losing their ability to legally drive in Colorado.  Today's rulings beg the question as to why it's okay for police to conduct baseless stops to revoke people's driver's licenses, but not to charge them with DUI/DWAI?  That's what today's decisions essential mean.

The legislative "cure" enacted in 2013 was the direct result of Colorado defense attorneys taking the problem directly to our elected officials and giving them the information and education necessary to restore fairness and justice to the driving revocation process.  When confronted with an impaired driving prosecution and/or revocation, it is important to have experienced, knowledgeable legal representation.

Unanimous SCOTUS: Cops Need Warrant to Search Cell Phone

In a surprising blow to law enforcement throughout the U.S., the U.S Supreme Court this week unanimously ruled that Americans have a Constitutional expectation of privacy in the content of their cell phones, thus triggering the requirement for a warrant before searching same.  In Riley v. California and companion federal case United States v. Wurie, the Supreme Court held that digital information in cell phones was protected by the Fourth Amendment of the Constitution and thus subject to the warrant requirement of that amendment.  The governments argued that such evidence was permissible to be obtained without a warrant as fruits of a search incident to lawful arrest, a long-held judicial exception to the warrant requirement established in Chimel v. California.  However, the Supreme Court declined to liken digital information contained within a cell phone to the contents of a cigarette case, per the government's cited precedent of the more recent decision in U.S. v. Robinson.  Simply put, the Court found the expectation of privacy in the contents of one's cell phone to be important and without reasonable question.

It is important to note that the Court did not reach the question/situation of exigent circumstances, which could be an identifiable exception to the warrant requirement with respect to cell phones.  Also, the Court did not find any objection in seizing a cell phone and otherwise guarding its contents until a warrant could be obtained, provided probable cause existed re the phone's contents.  Therefore, while the police are required to get a warrant before they examine what's in your phone, they can seize/control your phone while they are waiting to obtain a warrant.

This is just one of many legal issues relevant to the defense of a criminal charge, and why it is important to have knowledgeable and experienced legal representation.

SCOTUS Upholds Federal Law Prohibiting "Straw Purchase" of Firearms

In a case announced today, the U.S. Supreme Court upheld a federal law that prohibits persons from purchasing firearms for other persons from licensed dealers.  In Abramski v. U.S., a nephew (Abramski) agreed to purchase a firearm for his uncle using his law-enforcement discount.  In completing the Form 4473, the nephew replied in the affirmative that he was the actual purchaser of the firearm.  It was later discovered via investigation pertaining to an independent crime that Abramski purchased the firearm (a GLOCK pistol) expressly for his uncle, who paid him directly for the firearm's purchase price.  Although the uncle was in all forms and manner eligible to legally own/possess a firearm, Abramski was prosecuted and convicted for making false statements on the firearms purchase form.

In writing for the five-justice majority, Justice Kagan stated that the law had a clear purpose of keeping ineligible persons from obtaining firearms through indirect purchases through eligible persons, and that, in adhering to the express language of the law, there was no distinction made between purchasing firearms for legally-eligible or ineligible persons.  Justice Scalia, dissenting, disagreed, saying that even if Abramski's claim that he was the actual buyer of the firearm was false, such statement was not material to the otherwise lawfulness of the transaction since, but for the false answer, the firearms transaction was legal in all other respects.  Scalia also argued that it was not altogether legally settled that Abramski was in fact not the buyer of the firearm, as there is no clear law stating that a person who conducts a face-to-face purchase is not in fact the purchaser, regardless of what his ultimate intent or motive for the merchandise may be.

It is important to understand what this ruling does and does not do.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has long held that purchasing a firearm to later give as a GIFT does not constitute a straw purchase unless the purchaser knows or has reason to know that the gift recipient is legally ineligible to own/possess a firearm.  The situation at bar in Abramski was clearly NOT a gift, since the uncle paid Abramski for the firearm, and therefore the court's ruling does not appear to change the legality of purchasing a firearm to later give as an outright gift.  However, outside the scope of a gift, the ruling in Abramski seems to make it clear that purchases intended for others, whether they are legally eligible to own/posses guns or not, are illegal.

Firearms laws change constantly, along with the court rulings interpreting them.  It is always advisable to consult an experienced attorney when issues arise concerning the sale, transfer, transport, use and possession of firearms.

Are DUI Breath Tests in Colorado Accurate?

It was recently reported by 9News in Denver that an Intoxilzer 9000 machine, used to measure breath alcohol in DUI cases in Colorado, in Weld County has been found to have been improperly calibrated and has been removed for service.  Cases involving this particular machine are being reviewed and may possibly have to be re-opened.

However, a larger problem continues to persist in Colorado pertaining to the 9000 machine.  There exists absolutely no evidence on record that the Intoxilizer 9000 machines that have been in use in Colorado for over a year were ever properly evaluated and certified under the specific standards set forth under Colorado law for such measuring devices.  Legal attempts to compel an accounting of the 9000 certification process, if one was ever used, have been stonewalled by the state; therefore, at this time, it cannot be ascertained whether the 9000 machines are legally qualified to provide admissible evidence against persons accused of DUI/DWAI in Colorado.

It is important to point out that the predecessor to the Intoxilizer 9000, the model 8000, has been disallowed for use in both Pennsylvania and Ohio, where the courts found the machines to be insufficiently scientifically accurate and reliable for results to be admissible in court.  The 9000 model has even less testing/vetting than the 8000 and Colorado is the only state that is using that model.

Current DUI cases involving the 9000 are being challenged by attorneys raising the certification issue surrounding the 9000, but no state-wide decisions/precedents currently address the situation.

In a constitutional republic, it is important that accused receive a fair trial, including due process of law.  This includes ensuring that scientific evidence admitted is grounded in sound, established scientific principles and the methods/procedures used are accurate and reliable.  This standard is NOT being observed in Colorado with respect to the Intoxilizer 9000.  Colorado citizens concerned about justice, fairness and due process should contact their legislators and the governor and insist on a PUBLIC investigation into the certification, or lack thereof, of the Intoxilizer 9000 and that its use be suspended until it can be ascertained that these machines are accurate and reliable according to established standards.

The 9News Weld County story may be found at http://www.9news.com/story/news/crime/2014/06/05/weld-county-breathalyzer/10009133/

SCOTUS: Anonymous Tip Can Justify Stop

In a startling ruling this week, the U.S. Supreme Court, in a 5-4 decision, held that an anonymous tip, under certain circumstances, can justify a motor vehicle stop without corroboration of the conduct described in the tip.

In Navarette v. CA, police received an anonymous tip via 911 regarding a suspected reckless/drunken driver.  Police located a vehicle matching the description of the reported car and followed it, but were unable to observe any suspicious behavior or violations.  The police nonetheless stopped the car and, upon contacting the driver, noticed an odor of marijuana.  The driver consented to a search and a large amount of marijuana was discovered.

In upholding the stop of the car, Justice Thomas ruled that the tip had "sufficient indicia of reliability" since it described a particular car and type of driving. The Court essentially ruled that an officer doesn't have to wait for a potentially-dangerous driver to actually injure someone in order to investigate and/or prevent a public danger; that reckless/drunken driving was more serious than a mere traffic infraction.  The Court noted that this particular ruling did not necessarily vacate or reverse previous rulings that disapproved reliance on an anonymous tip as a basis for stopping or seizing a person, but that the circumstances articulated by the officer, combined with the nature of the report, were of sufficient concern to merit investigation which could only be effected by stopping the vehicle.

Justice Scalia, in a pointed dissent, said "The court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness." 

An important point to note here is that, regardless of the basis for a stop, a driver should never consent to a search of his vehicle or person.  Though not specifically noted, it cannot be overlooked that the Court's concern for the claims of the appellant here were possibly clouded by the fact that he consented to the search that discovered the contraband at issue.