Friday, September 27, 2013

Court of Appeals: Medical MJ Use Can Violate Deferred Judgment

The Colorado Court of Appeals, in the case of People v. Wilburn decided this week, has ruled that use of medical marijuana is not an affirmative defense to violation of a deferred judgment and sentence stipulation.  In Wilburn's case, the trial court dismissed a petition to revoke his deferred judgment and sentence for violating a provision prohibiting the use of controlled substances.  The Court of Appeals held that the trial court erred in finding that the Colorado Constitution provision pertaining to medical marijuana afforded Wilburn an affirmative defense to revocation of the deferred judgment.  The Court of Appeals distinguished the prosecution for a crime, which IS afforded an affirmative defense under the Colorado Constitution, from a petition to revoke a deferred judgment and sentence stipulation where a plea has already been entered.  Although the trial court ruling was disapproved by the Court of Appeals, the dismissal of Wilburn's case was not vacated pursuant to Double Jeopardy prohibitions.

A deferred judgment and sentence is a form of plea bargain where a defendant enters a plea of guilty to a charge or charges, but his/her plea of guilty is held in abeyance by the court subject to the satisfactory completion of a probationary period, usually 1-2 years.  Upon successful completion of the probationary period, the defendant is allowed to withdraw his/her plea and the matter is then dismissed; failure to satisfactorily complete probation results in entry of judgment of conviction and subjects the defendant to the full array of possible sentences for the offense, including jail/prison.  While often a very effective way to resolve a criminal matter without trial, this form of plea bargain is nonetheless a binding legal agreement fraught with snares and complications.  It is always wise to have the assistance of an experienced attorney to explain ALL the implications before entering into such an agreement.

Wednesday, July 3, 2013

Habitual Domestic Violence Offender Law Gets View by COA

The Colorado Court of Appeals this week, in People v. Vigil, ruled that the rarely-used Habitual Domestic Violence Offender law, enacted over a decade ago, requires that charges filed under the law be prosecuted as felonies, even if the underlying offense is a misdemeanor.  The HDVO law provides that a misdemeanor offense charged as an Act of Domestic Violence, when preceeded by three or more convictions for Acts of Domestic Violence, becomes a Class 5 felony offense, punishable by sentence to the Colorado Department of Corrections.  Because the defendant in Vigil was not given the process afforded a person charged with a felony, namely trial before a district court judge and a jury of twelve persons, the COA reversed his conviction and remanded the case for trial in the proper court with the proper jury panel.

Criminal cases can be complicated, both factually and legally, and require the attention of an attorney experienced in this area of the law to ensure that the proper procedure is followed and, when it is not, that the matter is properly preserved for review by the appellate courts.

Permitting Jurors to Discuss Case Before Evidence Concludes Not a Constitutional Violation

The Colorado Supreme Court ruled this week that, although it was improper for a judge to permit jurors to discuss the case before the evidence was concluded, such conduct does not unconstitutionally deprive a criminal defendant of a fair trial.  In People v. Flockhart, the trial judge expressly permitted jurors to discuss the case among themselves prior to the conclusion of all the evidence in the case, contrary to both convention and the law.  Although the Supreme Court disapproved of this, it held that it did not deprived the defendant of any right enjoyed under the Constitution, namely of the due process of a fair trial.  Additionally, the Supreme Court also let stand the trial judge's practice of requiring trial counsel to state reasons for excusal for cause in front of the entire venire panel.  Although most judges permit, in fact require, such discussions to take place out of hearing of the potential jury members to avoid tainting and/or prejudicing the potential jurors, the Supreme Court held that the practice was entirely within the discretion of the trial court.

It is the opinion of this blog host that the Flockhart decision seriously weakens a defendant's ability to enjoy a fair trial, and reflects a decided lack of concern by the Colorado Supreme Court for same.  The Flockhart case illustrates how the need for an experienced criminal attorney is essential in the never-ending battle to obtain true fairness and justice before our Colorado courts.

Wednesday, June 12, 2013

CDPHE Official Featured in AG Report Chief Witness for New Per Se THC Standards for DUI

It is important to note that one of the chief witnesses supporting the new per se THC standards for DUI-MJ cases is the same Colorado Department of Public Health and Environment supervisor severely criticized in the recently-released Attorney General report which revealed serious problems with the CDPHE lab and its testing of blood samples in criminal cases. 

Despite much evidence to the contrary, former CDPHE lab supervisor Cindy Burbach has testified as an expert favoring legislation that establishes 5 ng/ml of THC as a presumptive level for impairment in DUI cases involving marijuana use.  In fact, the majority of scientific experts believe that a baseline standard for driving impairment caused by THC cannot be established given the wide and varied effects, and degree thereof, of THC on individual persons.  Simply put, while alcohol affects the vast majority of people in a very similar manner and degree, THC, the active chemical in marijuana, does not.

Given the grave questions about Ms. Burbach raised in the recently-release AG report, including her oft-expressed bias for the prosecution in DUI cases, it is our belief that the General Assembly needs to seriously revisit this issue in its next session and review the scientific evidence in light of the revelations about Ms. Burbach and the science behind establishing a baseline standard for THC impairment.

No reasonable person favors or wishes to endorse/protect impaired driving.  But the imposition of medical/physiological legal standards subjecting people to criminal liability that are not supported by scientific fact/study/research are de facto arbitrary and capricious, and thus unconstitutional.

Colorado Supreme Court: Police Detention of Car for Dog Sniff Without RS Illegal

Although recent Colorado case law has established that police can detain a person to conduct a dog sniff for contraband, provided that they have reasonable, articulable suspicion of such, the Colorado Supreme Court has recently made it clear that any detention must be justified by reasonable suspicion actually necessitating the dog sniff itself.

In People v. Mason, decided June 3, the defendant was stopped for failing to signal properly and failing to come to a complete stop at a stop sign.  Even after the driver was found to be driving under suspension as well and issued a traffic citation, he was not given back his identification and detained because a fellow officer informed officers on scene that the driver may be involved in drug trafficking.  The driver was detained until a canine unit arrived and conducted a sniff of the vehicle, which revealed the presence of controlled substances.

Both the trial court and the Supreme Court held that the reasonable suspicion that justified the stop and detention of the driver ended once he was cited for the driving violations, and that the inarticulated suspicions of another officer that the driver was possibly involved in drug trafficking was insufficient to justify further detention of the driver once he was cited.

Simply put, as long as law enforcement officers retain a driver's identification and other legal documents during a traffic stop, that driver is seized for purposes of the Fourth Amendment, and that continued seizure is only justified if the officer has reasonable, articulable suspicion that the driver is involved in criminal activity that extends beyond mere traffic violations for which he/she was stopped.

Even traffic stops implicate the Constitution.  It is important to have the assistance of an experienced attorney to assess whether the conduct of law enforcement officers was proper.

AG Report Details Serious Problems with CDPHE Testing, Begging the Question: When Did the DA's Know?

The Colorado Attorney General has disclosed a Colorado Department of Public Health and Environment (CDPHE) personnel lab evaluation that was completed on March 18, 2013. The Colorado Criminal Defense Bar (CCDB) received this from the Attorney General just prior to 5 pm on Friday, June 7, 2013.  The investigation report was also sent to Governor Hickenlooper’s office, all Colorado District Attorney offices, and the Public Defender’s office.

The contents of the report describe a systemic problem at the CDPHE laboratory and is clearly exculpatory evidence for all DUI and criminal cases involving the CDPHE laboratory for the time periods described in the report and potentially a much greater timeframe. Of great concern is the timing of this disclosure and the source of the information. The information was provided by the Attorney General and not from any of the District Attorney offices that prosecute DUI cases.

It is unknown at this time when prosecutors became aware of this information and what information had been disseminated to prosecutors. Exculpatory evidence and information is required by statute and case law to be disclosed to criminal defendants. Failing to disclose exculpatory evidence can cause the government to be sanctioned by a court which can include the suppression of evidence, or in the case of severe violations, complete dismissal of the criminal case.

The Attorney General admits that the laboratory report contains what could be “mitigating evidence” that affect cases where the CDPHE lab was or is currently involved. The CDPHE has responsibility for the forensic testing of chemical samples used in the prosecution of DUI and other criminal cases.  The scope of this disclosure is far reaching and confirms what many members of the CCDB have long suspected concerning oversight, management and forensic testing at the CDPHE laboratory.

It is important to note that many defense attorneys and legal professionals have fought for this information for years, and this is the evidence that shows what we have been seeking has been there all along. Without the concerted efforts of the several dedicated defense attorneys and other legal professionals mentioned above, many more persons charged with DUI and similar offenses would continue to suffer under these abuses.
For the entire AG report: Click here for report 

Monday, May 20, 2013

General Assembly Returns Fourth Amendment Protection to DUI Stops

Governor Hickenlooper has signed into law HB13-1077, discussed below, which restores the 4th Amendment protection against unreasonable searches/seizures in DUI Express Consent driver's license revocation cases.  Last year, the Colorado Court of Appeals ruled that officers did not have to have reasonable suspicion to stop automobiles in cases involving DUI Express Consent license revocations.  The law is now clear that, in addition to other legal grounds, drivers accused of either driving with excessive alcohol content (.08 or greater) or refusing testing can challenge at a DMV hearing the Constitutional basis for the stopping an contacting of the driver by law enforcement.

This law establishes just one reason why experienced legal counsel is important in exploring all of your options in dealing with a DUI charge.

Colo. Supreme Court Rules Silence Not the Same as Objection to House Search

The Colorado Supreme Court has ruled that an express objection must be made in order for one joint occupant of a home to cancel the consent of the other to search the home.  In People v. Fuerst, announced today, the Court held that a husband's silence behind a locked door did not invalidate the consent to search the home given to the police by his wife.  To review, absent a valid search warrant, police may only search a residence if exigent/emergency circumstances require entry or if they receive consent from the residents.  In 2006, the United States Supreme Court ruled in Georgia v. Randolph that if both spouses were present at the time of the request for consent to search their home, the consent had to be unanimous, i.e. if either spouse objected to the search then the consent of the other was not valid.  Since Randolph, Colorado courts have ruled that in order for the objection to be valid it must be made in person, on-scene and at the time of the search.  Now, in Fuerst, the Colorado courts have further clarified that the objection must be clearly expressed; the mere absence of an express objection does not itself constitute an objection to search.  In Fuerst, police responded to a report of protection order violation.  They were met by Fuerst's wife, who consented to admit the police to conduct a search of the premises.  Police found a locked door, behind which was Fuerst, and when he did not respond to their requests, the police unlocked the door and entered, finding Fuerst, a convicted felon, in possession of firearms, which was also a violation of a protection order which he was under.

Under the Constitution, a person's home enjoys highly-protected status from government intrusion.  However, pusuant to the above ruling, any consent that is not immediately withdrawn or objected to will likely be considered valid by the courts.  When confronted with criminal charges, it is important to know your rights and whether or not they have been violated by law enforcement, and only an experienced attorney can provide the assistance needed to understand and defend those rights.

Wednesday, January 30, 2013

House Bill Would Restore 4th Amendment Rights in DUI Revocation Proceedings

HB13-1077, sponsored by State Rep. Joe Salazar (D-Adams Co.), would reverse the appellate court rulings discussed below that held that the State could still revoke the license of a DUI suspect even if the officer did not have valid grounds to pull over the vehicle.  Salazar, himself an attorney, is a freshman legislator and vice-chair of the House State, Veterans and Military Affairs Committee.