Monday, October 6, 2014

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

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.