Thursday, September 22, 2016

COA: Statutory Two-Hour Limit on Chemical Testing Mandatory in Per Se Revocations

Today, the Colorado Court of Appeals ruled that the statutory two-hour time limit to conduct a chemical test of drivers suspected of DUI/DWAI is mandatory and cannot be circumvented by excuse or good-faith actions/intentions.

Colorado's "Expressed Consent" law requires the revocation of a driver's license if he/she is contacted by law enforcement with probable cause that the driver is DUI/DWAI and a chemical test conducted within two hours of driving reveals a blood/breath alcohol content of .08 or greater.  In recent years, the Department of Revenue, Motor Vehicles Division has interpreted existing case law to permit revocation even when proven that the chemical test was conducted more than two hours after driving, or when it could not be definitively ascertained just how much time had elapsed between driving and conduct of the chemical test.

In Edwards v. Dept. of Revenue, a panel of the COA reversed the per se revocation of a driver who was stopped and suspected of DUI.  Because of Intoxylizer error messages for two abortive testing attempts, a measured breath sample of .229 was not achieved until two hours and five minutes after the driver was last known to be driving.  At the DMV hearing, the hearing officer concluded that, since the first attempts at testing were made before the statutory two-hour limit had expired, the test results obtained outside the two-hour test limits were nonetheless valid to be considered re revocation.  The driver appealed to the District Court, which upheld the revocation on different grounds; holding that the statutory time limit had been violated, but that given the high BrAC test result, the driver's BrAC was no doubt well-above the legal limit when testing began inside the two-hour time limit.

The COA disagreed and reversed the per se revocation, holding that the two-hour limit does include any exceptions or exclusions for special circumstances.  Since the test results that were used against the driver were obtained outside the two-hour limit, the results could not be used in a per se revocation proceeding against the driver.  The COA was careful to point out that this two-hour time limit applies only to civil, administrative revocation proceedings conducted by DMV; test results obtained outside of two hours may still be offered against a defendant in a criminal proceeding provided the test results meet all the other evidentiary requirements of scientific tests.

As one can see from this case along, DUI is a very complex body of law, and the assistance of an experienced attorney is no longer advisable, but essential.

Monday, June 27, 2016

SCOTUS: Reckless Misdemeanor DV Convictions Trigger Lautenberg Gun Ban

Today, the U.S. Supreme Court ruled that the Misdemeanor Crime of Domestic Violence ("MCDV")provisions of the federal firearms laws, commonly referred to as the "Lautenberg Amendment", are in fact triggered when a person is convicted of a misdemeanor crime where the culpable mental state is "reckless".

In Voisine v. U.S., the Court held that, even when it is unclear as to whether the defendant was convicted of a MCDV where the culpable mental state was specific or general intent (knowingly) or reckless, the firearm prohibitions of 18 USC sec. 922 (g)(9) still applied.  In a previous case (U.S. v. Castleman), the Court has ruled that either specific or general intent crimes could trigger the Lautenberg Amendment, but did not address the culpable mental states of reckless or negligent.  The Court clarified that issue in Voisine, where it held that although recklessness is different that intentional or knowingly, it nonetheless required a voluntary act and conscious decision to proceed in the face of an unjustifiable risk, and was thus not accidental or inadvertent.

Firearms ownership is just one collateral risk that must be considered when resolving a criminal charge.  The assistance of a skilled, experienced attorney is essential in navigating the myriad of consequences of your decisions in these cases.

Colorado Supreme Court: Odor of Marijuana a Valid Factor in Warrantless Auto Search

The Colorado Supreme Court today ruled that, although personal consumption of small quantities of marijuana is legal in the state, the odor of marijuana, along with other suspicious factors viewed under the totality of circumstances, can be considered in determining whether probable cause exists to conduct a warrantless search of an automobile.

In People v. Zuniga, the Court approved a warrantless search by a Colorado State Trooper of an automobile from which an odor of burned marijuana was emanating.  The Court held that, although personal consumption of marijuana is legal in Colorado, there are other laws pertaining to the illegal possession of marijuana that may have been in play, and the odor, along with the nervous demeanor of the occupants, their diverging stories, and the alert of a drug-sniffing canine, was sufficient to constitute probable cause to search the vehicle in this case.

It is important to remember that a law enforcement agent cannot search an automobile with out a warrant unless he has probable cause that criminal activity has occurred or is occurring.  Absent probable cause or a warrant, an officer must obtain consent of the driver/owner in order to search the automobile.  Consent must be voluntary and not the product of coercion or trickery.  A person is NEVER required to give consent to search his person or property.

Ascertaining the constitutionality of an officer's conduct requires an experienced criminal attorney, so it is important to consult with capable counsel when confronted with a criminal charge.

Thursday, June 23, 2016

SCOTUS: No Warrant Needed for DUI Post-Arrest Breath Test; Warrant Still Required for Blood

This week, the U.S. Supreme Court further addressed the issue of mandatory chemical testing in DUI cases.  The Court had previously held that states could not force DUI blood tests without a warrant, and thus prosecuting persons for refusing blood testing absent a warrant violated the Fourth Amendment.  Colorado does not criminalize a refusal to consent to chemical testing, but in light of the SCOTUS rulings regarding warrantless DUI blood draws many Colorado courts have ruled that refusal to consent voluntarily to a blood test could not be used against a defendant at trial except for purposes of impeachment.  Refusal of chemical testing can still be used against a Colorado DUI suspect in administrative proceedings involving his driving privilege, as criminal Constitutional protections did not likewise apply.

Today, the Court issued its ruling in Birchfield v. North Dakota, holding that intoxilizer breath tests do not rise to the same level of intrusion as blood tests and therefore do NOT require a warrant.  As neither blood nor breath samples are "testimonial" evidence, they are not protected by the Fifth Amendment right against self-incrimination.  However, the Fourth Amendment does protect individuals from "unreasonable searches and seizures" and therefore require a warrant or a valid legal exception therefrom.  In Birchfield, the Court held that that the intrusion of requiring a breath sample was extremely minimal and was not comparable to the actual physical intrusion of piercing the skin for a blood draw.  The Court did not carve out a new exception to the Fourth Amendment warrant requirement, but merely applied the long-standing "search incident to lawful arrest" established nearly a half-century ago in California v. Chimel. However, this ruling clearly expands the boundaries of Chimel and its progeny, as the search incident to lawful arrest exception was clearly approved to facilitate officer/community safety by ensuring an arrestee was not carrying weapons/contraband into detention facilities, NOT to discover additional evidence or evidence of new crimes as in the present case.

Criminal law and the law pertaining to DUI is complex and ever-changing, and the assistance of an experience lawyer is important in defending these types of cases.

Tuesday, June 21, 2016

Absent Scalia, SCOTUS Issues Bizarre Fourth Amendment Ruling

On Monday, the U.S. Supreme Court, still absent one justice following the death earlier this year of Anton Scalia, ruled that evidence obtained after the warrant arrest of a suspect is admissible despite the fact that the basis for detaining the suspect violated the Fourth Amendment.

Writing for the five-justice majority in Utah v. Strieff, Justice Thomas held that, although the officer in question had no reasonable, articulable suspicion to initially detain Strieff, the existence of an active warrant for his arrest gave the officer complete authority under the Fourth Amendment to search Strieff after placing him in custody.  All three female justices--Sotomayor, Kagan and Ginsberg--dissented and pointed out that the discovery of the warrant and the arrest could not have taken place but for the unconstitutional detention of the suspect.  The dissent opined that this ruling will only encourage police to indiscriminantly stop and detain young minorities in a fishing expedition of hoping to find some with active warrants.

Colorado case law holds differently than SCOTUS in this area.  In People v. Martinez, (08SA317) issued seven years ago, the Colorado Supreme Court held that the unlawful detention of a suspect resulting in the discovery of a warrant and subsequent arrest tainted any evidence discovered as the result of the arrest.  Therefore, in the wake of Strieff, Colorado currently offers greater Fourth Amendment protection for persons unlawfully detained by the police who are subsequently found to have active warrants.

As you can see, the Constitutional aspects of criminal law are complex and ever-changing, and the assistance of a seasoned attorney is essential in exploring all aspects of defending a criminal charge.