Castle Rock / Denver DUI Defense Attorney

Drug Court Launched for Arapahoe and Douglas Counties

2011-10-13T10:49:00.000-07:00

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

2011-09-01T09:26:00.000-07:00

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

2011-05-25T14:48:00.000-07:00

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

2010-12-13T13:14:00.000-08:00

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"

2010-11-29T09:25:00.000-08:00

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

2010-11-17T13:09:00.000-08:00

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

2010-10-20T09:40:00.000-07:00

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.

COA affirms requirement of police to request chemical testing for alcohol-related driving offenses

2010-09-02T10:54:00.000-07:00

The Colorado Court of Appeals has affirmed that law enforcement officers are required to request that persons suspected of alcohol-related driving offenses complete a chemical test before obtaining a chemical sample without consent. In People v. Maclaren, a driver caused a head-on collision by crossing over the dividing line into the oncoming lane of traffic, resulting in serious bodily injury to the driver of the other vehicle. The driver who crossed the dividing line was also injured and taken by ambulance to a hospital. The driver admitted to having consumed alcohol earlier in the day and both the paramedics and police noticed an odor of alcohol on the driver's breath. Once at the hospital, the police officer ordered a blood draw on the driver without either advising the driver of the express consent laws or asking him to provide a sample for chemical testing. The driver was later charged with DUI and vehicular assault. At trial, the driver asked the court to suppress the blood test results and dismiss the case against him because he was not advised of the express consent law nor asked to submit to chemical testing. The trial court, while finding probable cause to justify a chemical test, nonetheless suppressed the test results and dismissed the case against the driver due to the statutory violation. The prosecution appealed. The Court of Appeals ruled that the willful disregard of the statutory requirement of the express consent law was sufficient grounds for the trial court to suppress the test results. The Court held that, even though officers with probable cause have the authority to obtain a blood draw without consent in a vehicular assault case, the statute nevertheless requires that a request for testing first be made after advising the driver that the officer has probable cause to believe the driver is at least impaired by the consumption of alcohol, drugs or both. The Court held that, because the officer made no attempt whatsoever to advise or request, and no extraordinary circumstances existed to justify such failure to advise/request, the trial court was well within its discretion to suppress the test results. However, the Court of Appeals held that full dismissal of the case was an excessive remedy to the statutory violation committed by the officer, and remanded the case to the trial court for further proceedings.

To review, Colorado law requires officers who have probable cause that a person has driven a motor vehicle while impaired or under the influence of alcohol, drugs or both to request that the driver submit to a test of their blood or breath and that, while the driver may refuse testing, refusal will result in the revocation of his driving privilege for at least one year. If an officer suspects that a person has committed vehicular assault or homicide (causing death or serious bodily injury while driving under the influence), he must make a similar request unless the driver is unconscious or unable to respond. As long as the officer has probable cause that the driver has committed vehicular assault/homicide, he can compel extraction of a blood sample without the driver's consent.

Recent Changes in Colorado Criminal Drug Laws

2010-08-26T09:39:00.000-07:00

Several significant changes to Colorado's criminal drug laws have now taken effect. First, the level of offense for many use or possession offenses has been reduced--unlawful use of a schedule I/II controlled substance has gone from a class 6 felony to a class two misdemeanor, while unlawful use of a schedule III/IV/V controlled substance has gone from a class 1 to a class 2 misdemeanor. Simple possession of a controlled substance has been moved to a separate statutory section to eliminate legal association with the crimes of manufacturing, dispensing, selling, distributing or possession with intent to commit same--all of which carry more severe penalties than simple possession.

The threshold quantity for unlawful possession of a schedule I/II controlled substance has increased from one gram or less to four grams or less, except for methamphetamine, where the threshold quantity is two grams or less. There is also no longer an automatic increase in felony offense class if the defendant has a prior conviction. Also, possession of schedule III/IV/V has been reduced to a misdemeanor offense (class 1).

Marijuana offense laws have also been revamped. Possession thresholds have been increased for each level of offense, with new quantity classifications set at: two ounces or less for petty offenses; more than two but not more than six ounces for a class 2 misdemeanor; more than six ounces but less than twelve ounces for a class 1 misdemeanor; more than twelve ounces for a class six felony. Second offenses pertaining to marijuana possession no longer carry mandatory elevation to felony class. Marijuana cultivation offenses have now been reclassified as follows: six or fewer plants is a class 1 misdemeanor; seven to twenty-nine plants is a class 5 felony; thirty or more plants is a class 4 felony.

The final change of note pertains to the sentencing of Special Offenders in possession of a deadly weapon during the commission of a drug offense. The law now requires that in order to invoke Special Offender mandatory sentencing, the weapon must be on the defendant's person or within his immediate reach at the time of the offense, or if possessed by a confederate at the time of the offense, the defendant must have access to said weapon and the possession of such weapon must pose a risk to others or was in a vehicle occupied by the defendant at the time of the offense.

Drug offender surcharges (mandatory fees for drug convictions) have been increased and are now: $2000 for class 4 or greater felony; $1500 for class 5 felony; $1250 for class 6 felony; $1000 for class 1 misdemeanor; $600 for class 2 misdemeanor; $300 for class 3 misdemeanor; and $200 for petty offense.

These are not all the changes regarding drug offenses that have recently gone into effect, merely the most significant. When charged with a drug-related crime, the assistance of an experienced attorney is essential to understand all legal aspects of your case.

Gov. Signs Bill Increasing Penalties for Repeat DUI/DWAI Offenses

2010-05-26T14:41:00.000-07:00

HB10-1347, discussed below, has been signed into law by Gov. Bill Ritter and becomes effective July 1. The major provisions of the new law include enhanced minimum-mandatory jail sentences for repeat DUI or DWAI offenders. A second lifetime alcohol driving offense will now carry a minimum 10-day jail sentence with no eligibility for home-detention if the previous offense was within five years. A third lifetime offense will now carry a minimum-mandatory 60-day jail sentence with no eligibility for home detention. Work/education release would still be possible for all mandatory jail sentences, however repeat offenders serving mandatory jail sentences will not be eligible for "good time" credit or reductions due to trustee status for the minimum-mandatory period of their sentences. The entire law may be found at www.leg.state.co.us.

Enhanced DUI penalty bill clears House

2010-04-21T10:17:00.000-07:00

HB10-1347, which will expand penalties and restrict discretionary sentences for repeat DUI/DWAI offenders, has been approved by the Colorado House and will now be considered by the State Senate. Among many new provisions, the bill mandates a minimum 60-day jail sentence for thrice-convicted offenders, as well as restricting the availability of sentencing alternatives such as in-home detention. The entire bill can be found at www.leg.state.co.us.

Watered-down consent search bill goes to Gov.

2010-04-21T10:06:00.000-07:00

A watered-down version of HB10-1201, which requires law enforcement officers to advise persons prior to a consensual search that they are being asked to voluntarily consent to the search and that they have the right to refuse consent, has been sent to Governor Ritter. Despite the advisement requirement, the bill provides virtually no consequences should an officer fail to give such advisement--a reviewing court can merely consider the failure to give the advisement as it applies to the totality of the circumstances in determining whether consent to search was voluntary. The original version of this bill required written proof of the advisement in order for consent to search to be valid under the law. Should the Governor approve the bill, the advisement requirement would apply to consensual searches only; no such advisement would be required when other legal grounds for a search are present.

Amended Consent Search Bill Passes House

2010-03-09T13:55:00.000-08:00

An amended version of HB10-1201, referenced below, has been approved by the Colorado House and will now be considered by the State Senate. The bill, which requires that consent searches of a person or vehicle be made only after a verbal advisement that consent does not have to be given and that any consent given be in writing, was amended to remove homes as an area for consent searches covered by this law. Current law does not require any kind of advisement or that consent be in writing in order to be valid under the law. Rather, the only constitutional requirements for valid consent are that it be voluntary and that consent be granted by a person with apparent authority to grant the consent.

Attempt to Make Third DUI a Felony Fails

2010-03-09T13:34:00.000-08:00

HB10-1184, sponsored by Rep. Cory Gardner (R-63), which would have made a third lifetime DUI conviction a felony in Colorado, has been killed by the Colorado House Judiciary Committee on a party-line vote. Gardner's bill would have made a third DUI conviction a class six felony, punishable by up to three years in prison and a $100,000 fine. The chief opposition to the legislation lay with its increased cost of adding new inmates to an already-inadequate state felony corrections system. Many states have had similar laws for several years.

HB10-1347, sponsored by Rep. Claire Levy (D-13), which would increase mandatory jail penalties and limit alternative jail sentences for repeat DUI offenders, has yet to be heard in the State House Judiciary Committee.

Bill Would Require Advisement Prior to Consensual Searches and Consent in Writing

2010-01-28T14:12:00.000-08:00

HB10-1201, sponsored by State Rep. Karen Middleton (D-42) and State Sen. Pat Steadman (D-31), would require law enforcement officers who conduct consensual searches of persons, their automobiles or premises, to obtain said consent in writing after advising the person that they have the right to refuse such a search. Currently, the law makes no such requirement for officers who conduct a consensual search of a person or his/her property. The written permission after advisement requirement would not apply to searches where the officer is otherwise permitted by law to conduct a search, such as pursuant to a search warrant or incident to lawful arrest.

State legislators seek to increase DUI penaties

2010-01-11T09:52:00.000-08:00

The Denver Post reports that State Representative Claire Levy (D-Boulder) will introduce legislation this session that will impose greater minimum-mandatory jail sentences for repeat DUI/DWAI offenders. Per the news report, Levy's bill would increase the minimum-mandatory jail sentence for all second alcohol offenses to ten days and impose a minimum-mandatory 60-day sentence for a third offense. Courts would still have discretion to permit work-release, and home detention would be permissible on second offenses where the previous offense was more than three years in the past. Levy's bill is less-stringent than that considered by Gov. Ritter's Commission on Criminal and Juvenile Justice, which would have mandated 30 days in jail for a second offense. It was also reported that Rep. Cory Gardner (R-Yuma) is introducing legislation that would make a third drunk-driving offense a felony, subjecting the offender to a potential prison sentence rather than county jail.

An overriding concern expressed by county commissioners and sheriffs is that expanded mandatory sentences will greatly increase costs at a time when budgets are strained to their limits. The Post report estimated that expanding mandatory sentences to the levels recommended by the Commission would increase incarceration costs by $20 million statewide, at a time where many counties are scrambling for ways to reduce jail costs, which are estimated at $65-70 per day per inmate. The cost for creating felony DUI convictions, including the requirement for new prisons, was estimated at $107 million in 2008.

The details of these proposed bills will be made public once the General Assembly begins its 2010 session later this week.

'Tis the Season...For DUI Checkpoints

2009-12-11T09:02:00.000-08:00

The holiday season means celebration, and law enforcement knows celebration means alcohol consumption. In addition to mid-summer, this is the most common time of year to encounter DUI checkpoints run by state and local law enforcement. The purpose of the checkpoints is to enforce basic traffic laws like ensuring drivers are licensed and vehicles registered and insured, and also to verify that people on the road are driving sober.

Such checkpoints are constitutional, provided they comply with certain guidelines. The means for selecting which vehicles are stopped and checked cannot be arbitrary (i.e. you cannot be selected because of the way you look or the type of vehicle you are driving)...either all vehicles entering the checkpoint must be contacted or they must be selected entirely at random, such as every third vehicle. The checkpoints must be posted so drivers receive notice before they enter the contact zone, and there must be an available route for drivers to detour if they do not wish to proceed through the checkpoint. Of course, these detour routes are also watched by law enforcement and any sign of impairment of the driver (such as weaving, driving excessively slow, slowing or stopping abruptly, etc.) will very likely result in a traffic stop.

If you are contacted during the course of one of these checkpoints, keep in mind that you have the same rights as with any other traffic stop. That means you do not have to make any statement or answer any questions, nor do you have to participate in any roadside sobriety testing. You are required, if requested, to provide your driver's license, registration and proof of insurance. Also keep in mind that if an officer has probable cause to believe you are impaired and requests that you take a test, you have a choice between blood or breath. If you take a blood test, a second sample of your blood must be preserved for independent testing at your request, while no such sample of your breath will be preserved in a breath test. Refusal to take a test or failure to complete a test will result in a one-year revocation of your driver's license with no eligibility for a probationary or restricted license.

Please remember to drive safely and soberly this holiday season, and have a healthy and prosperous New Year!

Governor Reverses Plans to Raid LEAF

2009-09-03T12:23:00.000-07:00

A day after the Denver Post reported a move by Governor Ritter to divert most of the money from a special DUI enforcement fund to plug holes in the state's budget, the Governor's office announced that the plan has been scrapped and that the Law Enforcement Assistance Fund will remain intact for use by law enforcement agencies thoroughout the state for dedicated enforcement of drunk-driving laws. The Governor cited numerous concerns by law enforcement as the chief reason for the reversal of the executive order. Details of the Denver Post article may be found at http://www.denverpost.com/ci_13256898.

Governor Seeks to Raid Special DUI Enforcement Fund

2009-09-02T09:10:00.000-07:00

Governor Ritter has announced he will seek to permanently divert over $1 million in the state's Law Enforcement Assistance Fund (LEAF) that was started over 25 years ago in order to alleviate a state budget shortfall of $318 million, according to the Denver Post. LEAF funds are distributed to law enforcement agencies statewide to pay for extra DUI enforcement and officer overtime. LEAF is funded by surcharges paid by all persons who are convicted of alcohol-related driving offenses. Most recently, LEAF funds have been used to promote and fund "The Heat is On!" anti-drunk-driving campaign enforcement. The effect of the Governor's action will be the elimination of special or extraordinary DUI enforcement measures by most law enforcement agencies, but don't expect overall DUI arrest numbers to be significantly affected, as there will still be plenty of patrol officers statewide looking for any form of traffic offense, including DUI. The Denver Post article on this matter may be found at http://www.denverpost.com/ci_13249269.

Not All Courts Equal When It Comes to DUI/DWAI Sentencing

2009-08-10T08:57:00.001-07:00

The Denver Post has published a story outlining a study it did regarding what Colorado drivers can expect in the way of criminal sentencing for a repeat DUI or DWAI offense. The sum of the report is that sentences of jail, alternative confinement, fines and costs for repeat DUI/DWAI offenders can vary greatly depending upon the judge and jurisdiction. "The discrepancy, according to judges, lawyers and other experts, is the result of the collision between judicial philosophy and legal interpretation against the overriding reality of full jails," the story explained. Judges have a variety of options when it comes to sentencing repeat DUI or DWAI offenders, and they appear to be exercising those options depending on the circumstances mentioned above. You can read the entire Post story at http://www.denverpost.com/news/ci_13023973.

This story demonstrates the importance of experienced legal counsel to assist someone charged with a second or subsequent DUI or DWAI--counsel that can explain the intricacies of sentencing and make the strongest possible argument for sentencing conditions that are in the best interest of the accused.

Traffic Tickets Bridge Revenue Gap

2009-08-06T09:10:00.000-07:00

Anyone driving on our streets and highways recently will have noticed an abundance of law enforcement vehicles, both marked and unmarked, looking for any and all forms of traffic violations. Stepped-up enforcement of traffic signal lights, "aggressive driving" (AKA "road rage") laws, and of course, speed limits (which sometimes change by as much as 20 MPH on very short notice) are becoming the rule rather than exceptional law enforcement action. Why this beefed-up enforcement of our traffic code? One word: Revenue.

The recent economic recession has hit local governments particularly hard. With so many businesses failing or doing poorly and so many people out of work, tax revenues have taken their biggest plunge since the Great Depression (at least according to the Denver Post). Counties and municipalities are having to look to other means of raising money, and traffic tickets are a relatively easy and inexhaustive source of revenue. Law enforcement often limits concentration on traffic code violations because such action is rather unpopular with the folks who go to the polls and vote for sheriffs and on bond issues supporting law enforcement compensation. However, desperate times call for desperate measures and political leaders are willing to risk backlash at the polls in order to raise more money now. They know that most people won't bother to fight a ticket in court, simply because they can't afford to take the time from work or the attorney costs are higher than the fines. But keep in mind that traffic tickets have costs beyond the fines--insurance companies base their rates on driving records, and a handful of tickets will result in higher premiums, or in this economy, loss of coverage altogether.

Please drive safely and obey all traffic regulations...remember, they're watching!

U.S. Supreme Court Puts Brakes on Auto Searches Following Arrest

2009-08-06T08:47:00.000-07:00

This spring in the case of Arizona v. Gant, the U.S. Supreme Court rolled back a bright-line automobile search rule in criminal cases established over a quarter century ago in N.Y. v. Belton that permitted a full-blown search of the interior of an automobile recently occupied by the subject of an arrest. Forty years ago, in Chimel v. California, the U.S. Supreme Court ruled that, once a person was placed under lawful arrest, the police could lawfully search the person and the area of "immediate control" surrounding the person without a warrant. In Belton, the Court held that when a person was arrested after being in an automobile, the entire interior of the automobile was within the arrestee's "immediate control" and thus could be searched without a warrant.

All that was changed in the Gant case decided before the Court's summer recess. In Gant, the police were waiting with an arrest warrant for driving with a suspended driver's license at the defendant's home when they saw him drive into his driveway, park, and get out of his car. Once out of the car with the door shut, the police arrested Gant and then proceeded to search the interior of the car per Belton and found cocaine and a gun. Gant was then prosecuted on illegal drug and firearms charges. The evidence was suppressed by the Arizona Supreme Court, which was affirmed by the U.S. Supreme Court. Justice John Paul Stevens, writing for the majority, held that "...the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."

It is unclear if this rationale will be extended to other arrest situations that do not involve an automobile--homes, purses, suitcases, etc. What is clear is that police no longer have carte blanche to search the interior of a car if they arrest an occupant thereof.

COA: No absolute 2-hour time limit for refusal revocation

2009-04-30T14:48:00.000-07:00

A panel of the Colorado Court of Appeals has held that there is no absolute statutory requirement that a request for chemical test by person suspected of DUI that is refused be made within two hours of driving. In Stumpf v. Dept. of Revenue, announced April 30, a driver was revoked by the Department of Revenue for refusing a request for chemical test made over three hours after the driver was involved in an accident. The driver appealed to the district court, which reversed the revocation because the request for chemical test was made more than two hours after the accident. The COA reinstated the revocation of the Dept., holding that the refusal was valid as long as the request for chemical test was made "within a reasonable time" following driving. The COA refused to draw any bright line definition of what constitutes a "reasonable time," but held that in this specific case, a test request that came approximately three and one-half hours after the accident was reasonable because it [a chemical test] "potentially could have yielded relevant evidence."

It is important to note that the COA specifically distinguished administrative revocations where tests were conducted, and instances where tests were refused. The Stumpf holding applies only to revocation cases involving refusals.

DUI costs can top $10K

2008-11-25T09:30:00.000-08:00

The Rocky Mountain News reports that the cost of a DUI conviction can approach or even exceed $10,000, including (but not limited to) fines, court costs, alcohol classes, insurance and probation fees. New DUI laws that go into effect January 1 will only increase these expenses. Read the entire story at http://www.rockymountainnews.com/news/2008/nov/25/cost-of-dui-conviction-10000-plus/.

Governor Signs Criminal Record Sealing Bill

2008-06-06T14:57:00.000-07:00

Many people don't realize that any time a person is charged with a criminal offense, regardless of disposition, a record is created in one or more databases and/or archives. This information can show up on background checks for job applications and the like. Governor Ritter this week signed into law HB08-1082, which makes significant changes to the law regarding the sealing of criminal records. Previously, a person could NOT seal the record of a criminal conviction regardless of the offense. The new law makes two important changes in favor of persons with criminal records. First, persons can now petition to seal the record of criminal charges dismissed as the result of a plea bargain in another case after waiting only ten years instead of the previous fifteen. Secondly, and more importantly, persons sustaining actual convictions for petty offenses, misdemeanors, or class 5 or 6 felonies for drug possession charges can petition to seal the record of conviction after ten years following completion of sentence. Please note that this second change applies only to possession charges and does NOT apply to charges involving the sale, manufacture or dispensing of controlled drugs. It also applies to drug offenses only--convictions for all other types of offenses still cannot be sealed. The new law is effective July 1, 2008.

Records can be sealed only upon court order after showing the requisite statutory period has passed, that the petitioner has committed no new criminal offenses in the interim and he/she has satisfied all requirements of sentencing, including payment of all monies owed the court. The ultimate decision whether to grant a petition to seal any criminal record still resides with the court alone and a petition does NOT necessarily mean records will actually be sealed. Issues pertaining to the sealing of criminal records can be complicated and competent counsel should be consulted.

New revocation terms and reinstatement requirements begin January 1, 2009

2008-05-19T15:50:00.000-07:00

Last week, Governor Ritter signed HB08-1194, described below, which will, among other things, increase the revocation period from three to nine months for first-time DUI suspects who test over the .08 limit. The new law takes effect January 1, 2009.

House OKs Legislation to Extend Alcohol Suspensions

2008-03-16T16:15:00.000-07:00

Last week, the Colorado House passed HB1194, which extends mandatory revocations and suspensions of drivers licenses for alcohol-related offenses. Most noteworthy is the extension of first-time revocations of persons testing over the .08 limit from the current 3-month period to 9 months. First-time offenders would be eligible to apply for a restricted license with ignition interlock after a minimum revocation period of 30 days. The bill also more than doubles the current reinstatement fee from $60 to $130. If enacted, the new law would go into effect January 1, 2009.

New Regs Require Formal Advisement on Test Choice

2007-07-13T08:57:00.000-07:00

New Colorado Department of Revenue Regulations pertaining to Express Consent revocations now require officers who invoke the Express Consent law to specifically advise drivers that (1) they may elect either a blood or breath test; (2) that if they choose a breath test a second sample for independent chemical testing will NOT be preserved; and (3) failure to take and/or complete a blood or breath test will result in a one-year revocation of the driver's license.

This is an important regulation that overrules decades of legal precedent which held that there was no requirement for an officer to offer a choice of chemical tests under the Express Consent law. Now, failure to specifically offer a choice of tests is in direct contravention of Colorado Department of Revenue Regulations.

Note the other new regulation mentioned above--second breath samples for independent chemcial testing will no longer be preserved. Drivers who submit to a breath test must now submit two separate breath samples, which will be measured and recorded, with the lowest of the two measurements determining BrAC. Blood tests will continue to draw two blood samples, with one held for independent testing.

DUI Test Bill Going to Governor

2007-03-29T07:59:00.000-07:00

Senate Bill 154, which will require drivers suspected of DUI to take a different chemical test from the one they choose if an officer is unable to administer the original choice of test, has been approved by the General Assembly and is expected to be signed by Governor Ritter. Current Colorado law requires that, if a driver suspected of DUI elects a specific chemical test of his/her blood or breath, then that test must be administered. Under the new law, if a driver elects a specific test that cannot be administered through no fault of law enforcement, an officer can require the driver to complete a different type of test--refusal to complete the substitute test would result in a one-year suspension of the driver's license. This bill was introduced following the Supreme Court's ruling earlier this year in Turbyne v. People, discussed below.

DUI Bill Rejected by House Judiciary Committee

2007-03-08T09:33:00.000-08:00

HB1189, discussed below, was defeated in the House Judiciary Committee March 7. The bill, which would have mandated interlock devices on vehicles driven by those convicted of DUI/DWAI and greatly increased driver's license suspensions following such convictions, lost on a 7-4 vote. The failure of this bill does not spell the end of the effort to change Colorado's DUI laws--a state "DUI Task Force" commissioned by the General Assembly is expected to make recommendations later this year on how to improve the current DUI statutes, most of which have been in place for over twenty years.

DUI Bill Would Mandate Interlock Devices

2007-02-02T09:42:00.000-08:00

Colorado House Bill 1189, sponsored by Rep. Joel Judd (D-Denver), would limit first-time DUI offenders to restricted licenses requiring ignition interlock devices on the vehicles they drive for five years following conviction. Offenders with prior convictions would be required to maintain a restricted interlock license for twenty years. Current law mandates a one-year suspension without probationary or restricted licenses for first-time DUI offenders and a two-year suspension with eligibility for a restricted license after one year for offenders with a prior conviction. The 5- and 20-year suspension periods set forth in HB1189 do not include revocations under the Express Consent law, which mandates a three-month revocation for failing a blood/breath alcohol test in conjunction with driving, and a one-year revocation for refusing such a test.

Ignition interlock devices require that a driver submit an alcohol-free breath sample before the automobile can be started.

CO Supreme Court Rules on Express Consent

2007-01-26T09:00:00.000-08:00

The Colorado Supreme Court recently ruled that failure to administer the form of alcohol test requested by an accused drunk driver will not automatically result in dismissal of the charges. In Turbyne v. People, a suspected drunk driver requested a blood test. Due to weather, volume of police calls and other uncontrollable factors, a blood test was not available and the arresting officer offered a breath test instead. The driver initially refused the breath test, but later agreed when the officer told him refusal to take a test would result in the loss of his driver's license for one year. The test result showed a BrAC more than twice the legal limit. At trial, the driver moved to dismiss the charges on the grounds that the requested form of test was not administered. The trial court dismissed the charges, but the DA appealed to the District Court, which reversed the trial court and remanded the case.

The Supreme Court held that, although the results of the breath test were inadmissible because the requested form of test was not administered and the breath test was the product of unfair coercion, the failure to administer the requested form of alcohol test did not constitute bad faith on the part of the arresting officer and thus dismissal of the charge was not justified.

To summarize the law on this subject, Colorado law sets forth that drivers in this state, by virtue of their sanctioned driving privilege, have expressed consent to complete a chemical test of their blood or breath when requested by a law enforcement officer who has probable cause that the driver is driving impaired or under the influence. An officer is NOT required to offer a choice of test, but a driver can elect either blood or breath and whichever choice he/she selects must be administered. Refusal or failure to satisfactorily complete the test will result in a one-year suspension of the driver's license. As per above, if an officer fails to administer the form of test requested, the driver cannot be penalized at trial for failing to take the test and, if bad faith in failing to administer the test is found by the court, the charge can be fully dismissed.

Facts & Questions Regarding DUI in The State Of Colorado

2007-01-23T13:08:00.000-08:00

Why are Colorado DUI laws so vigorously enforced?

There are tremendous societal pressures to make DUI arrests. MADD puts a great deal of pressure on the General Assembly, District Attorneys and Police Departments to get “tough” on people that drink and drive.

When should I hire a criminal defense attorney?

Immediately. Colorado law requires that a request for a hearing to keep your license must be made within 7 days from the date of your DUI arrest. If you fail to hire an attorney, and a hearing is not requested, you waive the opportunity to fight the license suspension. In short, the sooner you act the better chance I will have in providing the best criminal DUI defense you need.

I was arrested for DUI in Colorado. Is my license automatically suspended?

No. However, if you refused to provide a sample of your breath or blood, or if you provided a sample and they say it had an alcohol concentration of .08 or greater, and a hearing is not requested to fight the DUI suspension, it will be suspended.

Is there any benefit in requesting an Administrative License Revocation (ALR) Hearing?

Absolutely. We have been able to keep a number of our clients here in Colorado from ever having their license suspended. Even if your license is suspended, there may be other options for a limited driving privilege.

If my license is suspended for a DUI, can I get a license to drive to work?

It depends. Suspensions for refusal of tests and DUI convictions do not allow for a probationary license. Suspensions for driving with excessive alcohol content (over .08%) carry the possibility of obtaining a probationary license after one month of no driving. Suspensions of more than twelve months may allow for restricted licenses after one year if an intoxilizer interlock device is installed in your car.

I got a Colorado DUI and I have never been in trouble before. Am I going to jail?

Probably not. All cases are different, and I will have to look at your specific facts, but in most cases, I can successfully fight to keep you out of jail.

What part of your practice is devoted to defending Colorado DUI cases?

A substantial part of my practice involves handling DUI cases. Colorado DUI laws and techniques in defending DUI are constantly changing. What worked yesterday may not be the best approach today. It is important to find a lawyer who stays on top of the current Colorado DUI laws, trends, and what occurs in Courts everyday. I am such a lawyer. Also, I attend many Continuing Legal Education on DUI-specific seminars in addition to other criminal law areas of practice.

Are you familiar with the breath test machine, the Intoxilyzer 5000, used in Colorado?

Yes. To the average criminal defense attorney, a breath test above the legal limit means "plead guilty" from the beginning, even though they will not tell you this until after the fee has been paid. To a true DUI defense attorney, a failed breath test in no way means you are guilty. I understand how the breath test machine works, what can cause you to submit an erroneously high reading, the philosophy behind breath testing, and how alcohol is absorbed and eliminated from the body. This is often the difference between a guilty and Not Guilty verdict. If you are serious about being found Not Guilty, it is a must that your lawyer be very knowledgeable about alcohol and the human body and its affect on breath testing.

Can you get my DUI case dismissed?

It would be unethical for me to promise that I will get your DUI case dismissed, and the plain truth is that these types of cases are almost never dismissed outright. That being said, my goal will be to explore every option available at law, including getting your case dismissed if possible, to keep your record clean and prevent you from losing your freedom, dignity, and license to drive.

We hope that you will find this information helpful in answering your questions about selecting a lawyer. If you have any further questions, please contact us by calling 303.663.9339