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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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.