'Tis the Season...For DUI Checkpoints

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

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

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

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

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

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

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.