Monday, June 30, 2014

State Supreme Court: Felons Possessing Guns Must Show Imminent Threat

It is commonly known that it is a crime for convicted felons to possess firearms in Colorado, with the offense officially labeled "Possession of a Weapon by a Previous Offender" or POWPO.  However, for nearly forty years, the courts have operated under the common-law rule that a person charged with POWPO could assert an affirmative defense pursuant to his right under the Colorado Constitution to possess a firearm for defense of self/family and property.  In People v. Carbajal, announced today, the Colorado Supreme Court held that it was not error for a trial court to instruct a jury that, in order to avail himself of this affirmative defense, a defendant must show that any danger/threat necessitating the firearms possession must be imminent.  At trial, defendant introduced evidence that he had purchased three firearms 5-6 years prior to his POWPO charge, and that two of those purchased were directly following victimization for violent crimes.  Nonetheless, the Court found no error in the trial court's instruction that the threat for which the firearms were needed must be imminent, or immediate.  The Court went on to essentially establish a new rule on the subject, holding that the "Constitutional Right" affirmative defense to POWPO must be asserted as a "choice of evils" defense, whereby a defendant asserts lack of criminal liability because he was forced to break the law in order to prevent a greater harm, i.e. imminent danger to himself/others.

In a short but articulate dissent, Justice Hood (joined by Justice Hobbs), the newest member of the Court, pointed out that there is no imminency requirement in the Colorado Constitution, which merely states "The right of no person to keep and bear arms in defense of his home, person or property ...shall be called in question."  Neither was the imminency requirement in the form of a "choice of evils" format for the affirmative defense previously established in any Colorado case.  Once again, the majority of the Colorado Supreme Court seems to place punishment ahead of the U.S. and Colorado Constitutions.  It is important to have experienced, knowledgeable legal representation to ensure that the proper issues are raised and preserved should the need for appeal arise.

Legislative Cure Urged by Defense Bar Saves Colorado Drivers from Bizarre CO Supreme Court Decision

Today, in Francen v. Dept. of Revenue and Hanson v. Dept. of Revenue, the Colorado Supreme Court ruled that, prior to a legislative cure in the 2013 session of the General Assembly, police could stop vehicles without reasonable suspicion or probable cause and still have the evidence following the stop used against them in driver's license revocation proceedings.  In both cases, the drivers challenged their license revocations following DMV hearings where they challenged the constitutional basis for the vehicle stops.  In Francen, the District Court reversed the revocation and held that the officer conducting the stop did not have reasonable, articulable suspicion of a violation of the law, as required by the landmark SCOTUS case of Terry v. Ohio and its companion Colorado case, Stone v. People.  That ruling was overturned by the Colorado Court of Appeals which ruled in both Francen and Hanson that the basis for a vehicle stop or seizure of a driving suspect (in Hanson, the driver was seized from inside his home and was not stopped in his vehicle on the road) was not relevant to a driver's license revocation hearing--the only relevant issue vis-a-vis probable cause was whether the officer had probable cause to believe that the driver was impaired by alcohol, drugs or both.  As the result of the COA rulings, the Colorado General Assembly changed the Expressed Consent statute to specifically allow the basis for the motor vehicle stop to be challenged as part of any EC revocation appeal.  But for this legislative "cure", the result of today's CO Supreme Court ruling would be that officers could stop drivers in Colorado without any legal basis and, if the officer was able to develop probable cause of impairment following the stop, that driver could lose his/her license.

In criminal cases, in order to constitutionally justify the temporary detention of an individual for investigation, an officer must have reasonable, articulable facts at hand that would lead an ordinary officer to suspect that criminal activity was occurring.  In other words, police in the U.S. cannot just stop a person on a hunch, whim or "fishing expedition"--there must be a good reason for them to infringe on someone's right to move about freely.  If an officer fails to have "reasonable suspicion" when stopping someone, any evidence that is obtained following such an illegal stop is inadmissible against the accused.  For some strange and unexplained reason, both the Colorado Court of Appeals and Supreme Court don't have a problem with baseless police stops, at least within the confines of people losing their ability to legally drive in Colorado.  Today's rulings beg the question as to why it's okay for police to conduct baseless stops to revoke people's driver's licenses, but not to charge them with DUI/DWAI?  That's what today's decisions essential mean.

The legislative "cure" enacted in 2013 was the direct result of Colorado defense attorneys taking the problem directly to our elected officials and giving them the information and education necessary to restore fairness and justice to the driving revocation process.  When confronted with an impaired driving prosecution and/or revocation, it is important to have experienced, knowledgeable legal representation.

Friday, June 27, 2014

Unanimous SCOTUS: Cops Need Warrant to Search Cell Phone

In a surprising blow to law enforcement throughout the U.S., the U.S Supreme Court this week unanimously ruled that Americans have a Constitutional expectation of privacy in the content of their cell phones, thus triggering the requirement for a warrant before searching same.  In Riley v. California and companion federal case United States v. Wurie, the Supreme Court held that digital information in cell phones was protected by the Fourth Amendment of the Constitution and thus subject to the warrant requirement of that amendment.  The governments argued that such evidence was permissible to be obtained without a warrant as fruits of a search incident to lawful arrest, a long-held judicial exception to the warrant requirement established in Chimel v. California.  However, the Supreme Court declined to liken digital information contained within a cell phone to the contents of a cigarette case, per the government's cited precedent of the more recent decision in U.S. v. Robinson.  Simply put, the Court found the expectation of privacy in the contents of one's cell phone to be important and without reasonable question.

It is important to note that the Court did not reach the question/situation of exigent circumstances, which could be an identifiable exception to the warrant requirement with respect to cell phones.  Also, the Court did not find any objection in seizing a cell phone and otherwise guarding its contents until a warrant could be obtained, provided probable cause existed re the phone's contents.  Therefore, while the police are required to get a warrant before they examine what's in your phone, they can seize/control your phone while they are waiting to obtain a warrant.

This is just one of many legal issues relevant to the defense of a criminal charge, and why it is important to have knowledgeable and experienced legal representation.

Monday, June 16, 2014

SCOTUS Upholds Federal Law Prohibiting "Straw Purchase" of Firearms

In a case announced today, the U.S. Supreme Court upheld a federal law that prohibits persons from purchasing firearms for other persons from licensed dealers.  In Abramski v. U.S., a nephew (Abramski) agreed to purchase a firearm for his uncle using his law-enforcement discount.  In completing the Form 4473, the nephew replied in the affirmative that he was the actual purchaser of the firearm.  It was later discovered via investigation pertaining to an independent crime that Abramski purchased the firearm (a GLOCK pistol) expressly for his uncle, who paid him directly for the firearm's purchase price.  Although the uncle was in all forms and manner eligible to legally own/possess a firearm, Abramski was prosecuted and convicted for making false statements on the firearms purchase form.

In writing for the five-justice majority, Justice Kagan stated that the law had a clear purpose of keeping ineligible persons from obtaining firearms through indirect purchases through eligible persons, and that, in adhering to the express language of the law, there was no distinction made between purchasing firearms for legally-eligible or ineligible persons.  Justice Scalia, dissenting, disagreed, saying that even if Abramski's claim that he was the actual buyer of the firearm was false, such statement was not material to the otherwise lawfulness of the transaction since, but for the false answer, the firearms transaction was legal in all other respects.  Scalia also argued that it was not altogether legally settled that Abramski was in fact not the buyer of the firearm, as there is no clear law stating that a person who conducts a face-to-face purchase is not in fact the purchaser, regardless of what his ultimate intent or motive for the merchandise may be.

It is important to understand what this ruling does and does not do.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has long held that purchasing a firearm to later give as a GIFT does not constitute a straw purchase unless the purchaser knows or has reason to know that the gift recipient is legally ineligible to own/possess a firearm.  The situation at bar in Abramski was clearly NOT a gift, since the uncle paid Abramski for the firearm, and therefore the court's ruling does not appear to change the legality of purchasing a firearm to later give as an outright gift.  However, outside the scope of a gift, the ruling in Abramski seems to make it clear that purchases intended for others, whether they are legally eligible to own/posses guns or not, are illegal.

Firearms laws change constantly, along with the court rulings interpreting them.  It is always advisable to consult an experienced attorney when issues arise concerning the sale, transfer, transport, use and possession of firearms.

Thursday, June 5, 2014

Are DUI Breath Tests in Colorado Accurate?

It was recently reported by 9News in Denver that an Intoxilzer 9000 machine, used to measure breath alcohol in DUI cases in Colorado, in Weld County has been found to have been improperly calibrated and has been removed for service.  Cases involving this particular machine are being reviewed and may possibly have to be re-opened.

However, a larger problem continues to persist in Colorado pertaining to the 9000 machine.  There exists absolutely no evidence on record that the Intoxilizer 9000 machines that have been in use in Colorado for over a year were ever properly evaluated and certified under the specific standards set forth under Colorado law for such measuring devices.  Legal attempts to compel an accounting of the 9000 certification process, if one was ever used, have been stonewalled by the state; therefore, at this time, it cannot be ascertained whether the 9000 machines are legally qualified to provide admissible evidence against persons accused of DUI/DWAI in Colorado.

It is important to point out that the predecessor to the Intoxilizer 9000, the model 8000, has been disallowed for use in both Pennsylvania and Ohio, where the courts found the machines to be insufficiently scientifically accurate and reliable for results to be admissible in court.  The 9000 model has even less testing/vetting than the 8000 and Colorado is the only state that is using that model.

Current DUI cases involving the 9000 are being challenged by attorneys raising the certification issue surrounding the 9000, but no state-wide decisions/precedents currently address the situation.

In a constitutional republic, it is important that accused receive a fair trial, including due process of law.  This includes ensuring that scientific evidence admitted is grounded in sound, established scientific principles and the methods/procedures used are accurate and reliable.  This standard is NOT being observed in Colorado with respect to the Intoxilizer 9000.  Colorado citizens concerned about justice, fairness and due process should contact their legislators and the governor and insist on a PUBLIC investigation into the certification, or lack thereof, of the Intoxilizer 9000 and that its use be suspended until it can be ascertained that these machines are accurate and reliable according to established standards.

The 9News Weld County story may be found at