Friday, July 13, 2012

Court of Appeals Throws Out the Constitution on DUI Stops

In an astonishing split decision, a three-judge panel of the Colorado Court of Appeals has ruled that police stops of vehicles without reasonable suspicion cannot be used to challenge the revocation of the driver's license of someone suspected of DUI.  In Francen v. Dept. of Revenue, the COA ruled that DMV does not have to consider whether an officer had reasonable suspicion to stop a driver who challenges the revocation of his/her license under the Colorado Express Consent law.  This case overrules a twenty-year old COA decision in Peterson v. Tipton that held that an unjustified stop of a licensee was grounds to challenge an EC revocation.  The majority in Francen held that, since the 1989 revision of the EC statute no longer explicitly required an actual arrest of a driver to invoke the testing mandate, the basis for the stop of a driver was not relevant in an EC appeal hearing and the DMV should not apply the Exclusionary Rule (striking evidence obained in violation of the Constitution--in this instance, the Fourth Amendment) in administrative revocation proceedings.  The dissent diasgreed that Peterson was wrongly decided and cited several examples where that case had been affirmed and reaffirmed by Colorado appellate courts in the twenty years since it was decided.  The dissent believed that the requirement that all police stops of EC suspects be legal was implicit in the EC statute and that it was unreasonable to conclude otherwise.

Under the EC law, which mandates that persons whom an officer has probable cause to believe is impaired or under the influence must take a blood or breath test or risk an absolute one-year revocation of their driver's license, a person can challenge a driver's license revocation for excessive alcohol content (.08 or greater) or refusal of testing by requesting a hearing before DMV.  Those hearings are rather informal and, beginning this year, are now almost exclusively held by telephone.  The COA's ruling in Francen greatly dimishes an already meager opportunity for due process in challenging a government action that has severe repercussions for everyone in our modern automobile-dependent society.  Simply put, the Colorado Court of Appeals has said it is okay for police to stop drivers for no reason and, if the officer believes the driver is impaired/intoxicated, revoke his/her driver's license for up to one year.  This is what the majority in Francen stated; that if the General Assembly intended for EC stops to be lawful, they would have written it into the law! It is time to ask our representative and senators in the General Assembly if that is indeed what they intended with this law.

Contrary to what you may read or hear, the law pertaining to DUI and Express Consent is not simple and straightfoward, and as demonstrated above, is constantly changing.  The assistance of an experienced attorney is not just helpful, it is essential.

Monday, April 2, 2012

Your Rights Regarding Police "Knock and Talk" Contacts

Many people are unaware of their basic Constitutional rights when it comes to warrantless police contacts at the entrance of a residence. A recent Colorado Court of Appeals case, People v. Nelson, gives a comprehensive summary and review of these "knock-and-talk" situations.

Everyone knows that police can enter a home without consent if they have a valid search and/or arrest warrant. But what happens when the police show up at your door just wanting to "talk and have a look around?" In the Nelson case, police officers acting on a tip of illegal drug use, actually said they were maintenance personnel in an attempt to get Mr. Nelson to open the door of his apartment. Once Mr. Nelson opened the door, officers spied what appeared to be drug paraphernalia inside the apartment and another man running into the back of the apartment. Officers entered the apartment and arrested both Mr. Nelson and the other occupant. Officers then obtained consent from Mr. Nelson's girlfriend to search the rest of the apartment and conducted a search over Nelson's objection. Drugs and paraphernalia were found and the police later obtained a search warrant and a search of the entire apartment turned up more drugs and weapons.

The Court of Appeal held that the ruse of posing as maintenance personnel to get Nelson to open the door of his apartment was legally permissible, as long as it did not extend to coercing Nelson to actually admit the officers. The Court went on to justify the warrentless entry of the apartment by holding that it was reasonable for the officers to conclude that the man running was trying to flee, obtain a weapon or destroy evidence, and such circumstances established a need for immediate response. However, the Court held that the consent of the girlfriend to conduct a further warrantless search of the apartment after the arrest of Nelson and the other man was not valid because of Nelson's objection. Citing the 2006 U.S. Supreme Court case of Georgia v. Randoph which held that consent to search a premises is not valid unless all residents present consent to the search, the Court held that evidence obtained from the consent search was inadmissible. However, the Court went to to hold that, even when discounting the suppressed evidence of the consent search, there was sufficient probable cause to justify the subsequent search warrant and the fruits thereof.

To summarize, police cannot enter a residence without a warrant unless the resident grants consent or exigent circumstances exist that necessitate immediate police entry and response. Police can use deception in getting someone to open the door, but cannot use deception in gaining consent for entry. The lessons from the Nelson case: 1) You should never open the door for someone you do not know; and 2) You never have to admit law enforcement into your home unless they present a valid warrant, and you never have to consent to police entry or search of your home.