The Affirmative Defense of Self-Defense by Renowned Expert Witness Massad Ayoob

 It is important for anyone who is licensed to carry a concealed handgun to know the law pertaining to self-defense and the use of force.  Here is excellent insight into the unique legal considerations pertaining to defending someone asserting the affirmative defense of defense of self/others.

https://armedcitizensnetwork.org/the-shifting-burden-of-proof?idU=1

Once again, these types of cases deal with a wide variety of legal concepts and issues, and it is always important to consult with an attorney experienced in this area of the law.

A Basic Primer on Red Flag/ERPO

Effective January 1, 2020, law-abiding gun owners in Colorado are subject to being “Red Flagged” under Colorado Revised Statutes 13-14.5-101 et seq. C.R.S. (Page number references below are only to this full text of the Act found at: https://leg.colorado.gov/…/defa…/files/2019a_1177_signed.pdf).

According to the abbreviated legislative summary of the new law (https://leg.colorado.gov/bills/hb19-1177), its purpose is to permit law enforcement or a household member (parent, sibling, child, spouse, domestic partner, unmarried co-parent, someone who resides or has resided with you during the last 6 months) (pg. 2 of Act) to seek a court order for the surrender/confiscation of any firearms in the subject's possession or control. The surrender can be voluntary or forced by search warrant (which could include a no-knock raid of your business, home or other property the subject controls at any time of the night or day).

In enacting this ill-conceived legislation, the General Assembly clearly failed to consider the safety of all parties involved in this Constitutionally-questionable process, including law enforcement, bystanders and the subject himself. In Maryland, where Red Flag/ERPO laws are already in place, 148 seizures occurred in the first 3 months with one gun-owner killed (https://baltimore.cbslocal.com/…/fatal-officer-involved-sh…/).

To obtain a preliminary ERPO, the accuser must establish before a judge by sworn petition and testimony that the subject poses a significant risk of causing personal injury to himself or others in the near future by having, purchasing, possessing or receiving a firearm (pg. 3). The standard of proof is a preponderance of the evidence--the lowest standard in our legal system (https://www.law.cornell.edu/w…/preponderance_of_the_evidence).

The court must hear the petition as soon as possible, but no later than the day after filing. The accuser and witnesses may appear by phone (pg. 4) and are not subject to formal cross-examination. The hearing is ex parte, meaning the subject of the order will not be aware of the hearing or issuance of an ERPO until the police arrive to execute it. The issued order will require the surrender (or seizure) of all firearms and any concealed-carry permit, but cannot address ammunition or other accessories. The subject of the order is entitled to a court hearing within 14 days (pg. 4), but the burden of proof is on the subject to counter the finding of the court that the subject poses a risk/threat/danger. Simply put, once an ERPO is in effect, a judge must be convinced that he/she was completely in error by initially granting the order, an extremely-remote likelihood.

ERPOs can also seek to prevent recovery of firearms already in police/government custody.  In one of the first cases filed after the law went into effect consisted of Denver Police seeking to retain firearms that were already in their possession as the result of a Domestic Violence investigation (https://www.9news.com/…/73-2c6b704c-bb49-4683-a8e8-df85b978…).

Given the complex legal issues involved in this new and highly-questionable law, the assistance of experienced legal counsel, especially in the areas of firearms and criminal law, is of vital importance.

New COA Ruling Removes Homeowner Exclusivity of Self-Defense in "Make My Day"

Earlier this month, the Colorado Court of Appeals ruled that a trespasser into a home can still assert self-defense against a homeowner if the trespasser did not knowingly trespass.  In People v. Jones, an intoxicated man (Jones) walked into an apartment he believed to be that of a friend.  Unbeknownst to Jones, his friend had moved and he walked into an apartment occupied by several strangers and began to assault one of the occupants.  When the occupants realized Jones was a trespasser, they began to attack him and, after Jones fled the apartment, the occupants followed, tackled and apprehended Jones.  During the melee, Jones stabbed one of the occupants with a knife he was carrying.

At Jones' trial, he asserted an affirmative defense of self-defense with respect to the stabbing, saying he did not attack anyone and was attacked by multiple persons who meant to do him serious bodily injury.  The prosecution argued that Jones was unable to assert such a defense due to the "Make My Day" law protecting homeowners from legal liability when they use force against an intruder.  The court allowed Jones to argue to the jury that he did not know he was trespassing when he entered the apartment and when he realized that he was in the wrong apartment he attempted to flee.  Jones was convicted of felony assault and misdemeanor assault, but was acquitted on charges of attempted murder and burglary. On appeal, the COA ruled that Jones should have received the benefit of an elemental jury instruction which required the jury to find that Jones both unlawfully AND knowingly broke/entered the apartment.  The COA found that this omission constituted reversible error and remanded the case for a new trial.

In its opinion, the COA correctly stated that "The make-my-day statute ... has three elements: (1) an unlawful entry; (2) the occupant’s reasonable belief that the person entering unlawfully has committed, is committing, or intends to commit a crime other than the entry; and (3) the occupant’s reasonable belief that the person entering unlawfully might use physical force against an occupant." But the court went on to point out that  "...in People v. McNeese, 892 P.2d 304, 310 (Colo. 1995): “[A]n unlawful entry means a knowing, criminal entry into a dwelling.”  As such, a mere trespass may NOT make an entry into a dwelling unlawful!

This is a very important case for those staying abreast of the law pertaining to the use of force, including deadly force.  The "Make My Day" law was conceived to protect homeowners from criminal intruders, NOT mistaken trespassers.  However, the ruling in Jones begs the question of whether a homeowner needs to actually know that the intruder knowingly entered the home for criminal purposes.  The answer of course is no, the homeowner does not need to know the mental basis for the actions of an intruder.  The Jones case is about due process protections of one accused of a crime resulting from a mistaken trespass.  But this case does highlight the importance of prudence and basic caution in using force, especially deadly force, against a trespasser who may have merely made a mistake, which is not uncommon for individuals who are in a state of intoxication as in this case.  Jones is not about whether the occupants had a right to use force against Jones once he showed aggression, but rather whether Jones may have had a right to defend himself in this particular situation. 

There was a dissenting opinion which asserted that McNeese was inapplicable when it came to "Make My Day", improperly placing a burden of proof that the homeowner was aware that the intruder knew his entry was unlawful.  The dissent also asserted that any error regarding the elemental instruction was harmless in light of the myriad of instructions favorable to Jones regarding knowledge, mistake and intoxication as defenses to the crimes charged.  The dissent opined that it was not reasonable to believe the jury was misled or confused regarding the possible defenses asserted by Jones merely because they were not informed that there was a "knowing" element in refuting the "Make My Day" law.

Again, the use of force, particularly deadly force, is not a simple area of the law.  The counsel of an experienced attorney is always of great benefit when attempting to stay abreast of the current legal landscape.

Intoxylizer 9000 Certificates Get the Boot by Gilpin County Judge

After months of litigation and a days-long hearing on the issue, Gilpin County Judge David Taylor has ruled that certificates issued by the Colorado Department of Public Health and Environment (CDPHE) certifying that Intoxylizer 9000 machines used to measure breath alcohol in DUI cases cannot be used by prosecutors to establish that these machines were properly tested/vetted by CDPHE as required by statute and regulations.

The court made this ruling because it had been established at hearing that the certificates used by CDPHE exhibited the signature of a supervisor who has not worked at the agency for over a year and a half.  CDPHE continues to maintain that the signature is not a legal affirmation, but a simple formality and that the machines were properly tested/vetted.  The only problem with that claim is that, despite years of requests and legal demands, CDPHE continues to refuse to provide proper proof of its claim.

Colorado began substituting the old Intoxylizer 5000 machines, which had been properly tested/vetted/documented, with the 9000 version in May 2015.  Since then, there has remained controversy regarding the accuracy/reliability of these machines and requests for the information/documentation pertaining to their certification by CDPHE have been repeatedly ignored. The 9000's immediate predecessor, the Intoxilyzer 8000, has already been declared scientifically unreliable in two different states.  There is no substantive difference in the basic technology between the 8000 and 9000 machines.

As the result of Judge Taylor's ruling, verification of the certification of 9000 machines used in Colorado will have to come directly from CDPHE management testimony, which will no doubt prove costly and time-consuming.  Already, other judges in other counties have adopted Judge Taylor's ruling on this issue, with more expected each day.

For more info: http://www.denverpost.com/2017/06/13/breath-test-evidence-dui-cases/

Our law offices continue to maintain a close watch on this issue in the courts...experienced, knowledgeable legal counsel is essential in defending any DUI case.

Governor Rejects Defense Bar Demand for Investigation Into Intoxylizer Certifications--Says Investigation Was Done; But Where's the Report?

Governor Hickenlooper has rejected the demand by the Colorado Criminal Defense Bar that an official independent investigation be conducted regarding the certification of the Intoxylizer-9000 machines that have been used to measure breath alcohol in DUI suspects since 2013.

The governor's legal office claims that an investigation was conducted and no wrongdoing was found.  Although that may be the case, no reports/findings, formal or informal, of that investigation have ever been made public.  The procurement, testing, certification and implementation of the I-9000 remains shrouded in mystery and secrecy...

Here is the latest report on the matter from today's Denver Post:

http://www.denverpost.com/2017/03/14/colorado-dui-convictions-forgery-attorneys/

Intoxylizer-9000 Scandal Widens

A CDPHE whistle-blower has added yet another layer of scandal to the already beseiged Intoxylizer-9000 machine used to measure breath alcohol on DUI suspects. (See previous reports on this blog)

The former CDPHE employee Mike Barnhill has now reiterated for the media what he has already testified to in court--that certification of I-9000 machines was made by unqualified individuals using his qualifications and certification number, including false signatures.

CDPHE continues to maintain, publicly and in court, that these revelations are irrelevant to the accuracy and reliability of the I-9000.

Here's the Denver CBS4 report:

http://denver.cbslocal.com/2017/03/10/whistleblower-says-signatures-certifying-dui-machines-were-forged/

The Law Offices of Anthony J. Fabian, P.C. continues to remain abreast of these issues and how they affect the defense of DUI charges here in Colorado.

Questions Abound Regarding Certification of Intoxilizer-9000

As previously reported on this information page, there are serious unanswered questions regarding the validity of the certification process of the Intoxilizer-9000 (AKA I-9000) machine that has been used to measure breath alcohol content in DUI/DWAI cases in Colorado since 2013.  Legal issues surrounding those questions are now being litigated in Colorado courtrooms.  See, e.g.  http://kdvr.com/2017/02/15/attorneys-at-a-dui-trial-call-colorados-breathalyzers-into-question/

Prior to 2013, when the I-9000 was put into service statewide, Colorado used an older machine, the Intoxilizer-5000.  This machine not only measured breath alcohol content (BrAC), but it also captured a second breath sample for independent testing if the defendant desired.  This machine was certified under the requirements set forth in Colorado statutes and CDPHE regulations.  Further, the full technical information contained in the operation manuals of the I-5000 were available to attorneys and the public and CDPHE personnel readily answered all questions pertaining to the I-5000.

But it was a completely different story with the I-9000, which did away with second-sample capture of breath tests.  From its adoption, the I-9000 has been shrouded in secrecy and mystery.  CDPHE has repeatedly refused to provide any technical data or information regarding the testing and certification of the I-9000 prior to its deployment for use in DUI cases.  Both CDPHE and the I-9000 manufacturer have also refused to provide any technical or operation manuals for review by independent scientific experts.  It has now been discovered that serious irregularities took place during the certification of I-9000s by CDPHE and that unqualified/uncertified personnel were involved in the certification of machines.  Further, documents offered by prosecutors in court to verify the certification of I-9000 machines have been carrying the signature/facsimile signature of a CDPHE supervisor who has not worked at the department for over 18 months.  None of these issues have been directly and satisfactorily addressed by CDPHE, the Attorney General, or the District Attorneys of this state.

To summarize, Colorado citizens are currently being tried and convicted with evidence from a scientific device of which no one of scientific credentials is able to ascertain what it is made of, how it works, and how it was evaluated by the State to verify that it was sound and accurate before being used as prima facie evidence of DUI.  Further, the State continues to keep the operational and technical information regarding the I-9000 a secret and has taken all possible measures to prevent the proper scientific and legal vetting of this machine.  Simply put, juries are being told that since the State says the I-9000 is reliable and accurate, we have to just take their word for it!

The Constitutions of the U.S. and Colorado guarantee that a person accused of a crime receive due process of law and be able to confront/challenge the evidence offered against them, and it is the most egregious of violations of these rights to prevent accused persons from being able to investigate, vett, test, and challenge scientific evidence that is offered against them.  That is exactly what is happening in Colorado courtrooms when persons stand accused of DUI/DWAI pursuant to a breath test result from an Intoxilizer-9000.

The Law Offices of Anthony J. Fabian, P.C. remains attuned to these issues and in close communication with other professionals who are intimately involved with the various statewide legal challenges to the improper and unconstitutional implementation and use of the I-9000 and its test results.

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.

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.

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.

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.

The Law Concerning DUI Checkpoints

With the holiday season in full-swing, the presence of law enforcement on the roads looking for impaired drivers will be great.  In addition to heightened patrols on the roads, many agencies, especially municipal police departments, will be operating what they commonly refer to as sobriety checkpoints.  If you drive in the Denver Metro Area for very long, you are likely to run across one of these "checkpoints" somewhere, and the holidays are a favorite time for law enforcement to set up these operations, given the frequency of celebrations offering alcoholic beverages.  There are established procedures police must follow in conducting these checkpoints, and many videos may be found online of individuals who have recorded their encounters.  Here are some things to keep in mind should you encounter of these "sobriety checkpoints"...

First, these checkpoints ARE legal/constitutional, as long as they are conducted properly.  These roadblocks or checkpoints are considered administrative searches under the Fourth Amendment, which means that they are conducted for general maintenance of health, safety and/or welfare of the community.  The stopping of vehicles normally requires, at a minimum, reasonable suspicion of illegal activity.  However, in administrative searches, as long as every vehicle coming through the checkpoint is stopped, or if there is a random formula of selection, e.g. every third car is stopped, then the roadblock is permissible.  Colorado law requires that advance notice of the checkpoint be posted to allow persons who do not wish to be subjected to the roadblock the opportunity to take an alternate route.  Although avoiding a checkpoint is NOT in and of itself reasonable suspicion, police can and often do follow vehicles that avoid these checkpoints and, if driving violations are observed, stop these vehicles and contact the driver. 

Once stopped, police are only permitted to contact the driver and require the driver to produce standard, required documentation, such as driver's license, automobile registration and proof of insurance.  Drivers and occupants are not required to answer any questions posed by officers or engage them in conversation if they do not wish to do so.  Officers can only require the driver or occupants to exit the vehicle if the officer has reasonable suspicion of illegal activity.  However, even if you are required to exit your vehicle, you still are not required to answer any questions, make any statement, or perform any type of "roadside sobriety" tests, referred by law enforcement as Standard Field Sobriety Tests.  Should an officer believe he/she has probable cause to believe a driver is impaired or under the influence, the officer can request that a chemical test of the driver's blood or breath be completed; failure to complete such a requested test can result in loss of the driver's license.

Sobriety checkpoints are common this time of year, and although they are legal if properly conducted, your rights are still very much in play as in any police contact.  Should your encounter with a checkpoint result in criminal/traffic charges, an experienced attorney will be helpful in evaluating the validity of your contact and charges and in determining what legal defenses may be available to you.  Have a safe and enjoyable holiday season!

SCOTUS: Police Cannot Prolong Traffic Stops for Dog Sniff Without Reasonable Suspicion

This week, the U.S. Supreme Court held in Rodriguez v. U.S. that detaining a driver stopped for a traffic violation longer than necessary to issue a citation violates the driver's Fourth Amendment right against unreasonable searches/seizures.  In this case, a police officer in Nebraska detained a driver for failing to remain in his lane, and after the officer had run a review of the driver's record and determined there were no outstanding warrants/violations, issued the driver a citation.  However, and despite the admitted absence of probable cause or reasonable suspicion, the officer refused to let the driver go on his way until a canine unit arrived to conduct a dog sniff of the driver's vehicle.  The government argued that the detention of the driver was not unreasonable in that it was a minimal, temporary inconvenience to the driver and that dog sniffs were a common tool of law enforcement.

SCOTUS disagreed, and reiterated rules it had laid out in previous cases holding that the length of an investigatory detention is governed by the scope of the reasonable suspicion that justifies the detention.  While the stop of the driver's vehicle was justified, continuing the detention after the traffic matter was resolved without additional legal grounds was not. 

It is significant to note that the driver in this case did NOT consent to the extended detention or subsequent dog sniff and search of his vehicle.  Consenting to police detentions and/or searches constitutes a WAIVER of your Constitutional rights.  You should never consent to a waiver of your rights for any reason unless/until you have conferred with experienced legal counsel.

Leglislative impacts on DUI and ID

Governor Hickenlooper recently signed new legislation impacting DUI driver's license revocation hearings and criminal identification procedures.

HB15-1073 corrects a confusing and unreasonable decision handed down by the Colorado Supreme Court in Francen v. Dept. of Revenue, which held that, despite language in Colorado statutes permitting drivers to challenge the basis for police contact in appealing a driver's license revocation based on the Express Consent law mandating chemical testing of suspected impaired drivers, DMV hearing officers did not have to ignore evidence obtained from improper/unconstitutional vehicle stops.  The new law requires DMV hearing officers to suppress evidence resulting from an invalid or unconstitutional stop of an appellant driver, legislatively overruling Francen.

SB15-58 will require all state law enforcement agencies to adopt procedures relating to eyewitness identifications with the aim of improving the accuracy of suspect IDs.  Recent studies have shown that many witness ID methods employed by law enforcement are unreliable and susceptible to serious bias/error; this law will attempt to prevent past common procedures that have come to be proven problematic at best and utterly unreliable at worst.

The Rest of the Story About the Proposed Felony DUI Law

We've been hearing a WHOLE lot of misinformation coming from the media and proponents of the felony DUI bill before the Colorado General Assembly...here are the arguments, and why they aren't telling you the whole story...

1. "We need to send repeat offenders to jail!"  Newsflash...we already DO!  Minimum MANDATORY ten days for a second offense and minimum MANDATORY sixty days for a third/subsequent offense.  Most judges impose a minimum of six months on a third offense, and often max offenders out at a year.

2.  "Even if it's your tenth DUI, the most jail you can serve is one year!"  That is correct, but what they fail to mention is that repeat offenders are GUARANTEED to go to jail under current law; the new law would not guarantee felony DUI offenders would do any time at all.  In fact, the original sponsor of the initial bills offered in earlier sessions admitted that felony DUI offenders were likely to get probation rather than jail/prison.

3.  "There needs to be a deterrent so DUI offenders won't repeat!"  Available statistics from states that have passed similar felony DUI laws show that these laws have had NO deterrent effect on reducing DUI recidivism.

4. "Drunk drivers who injure/kill people should face felony charges!"  Another newsflash...CO law already makes it a felony to cause death or serious bodily injury while driving under the influence--the offenses are vehicular assault and vehicular homicide, respectively.

5.  "The projected costs of this law have been over-estimated!"  This law is projected to add nearly $20 million in new Department of Corrections costs.  The original bill's sponsor says that estimate is too high because most felony offenders won't be sent to prison but rather placed on probation.  We thought the reason for this law was to mete out greater punishment for repeat DUI offenders?  The proponents seem to be contradicting themselves.

Bottom line:  This is a bill being pushed by politicians who want to appear tough on crime.  The fact is, CO is tough on DUI offenders, mandating jail for repeat offenders, not to mention the negative consequences regarding driver's licenses.  Even the bill's proponents admit that creating a felony DUI charge will result in LESS incarceration for multiple offenders, not more.

In any case, DUI is a complicated legal charge and the assistance of an experienced attorney is no longer just preferred, it is essential!

Nebraska, Oklahoma Sue Colorado Over Marijuana Legalization

Nebraska Attorney General Jon Bruning announced that his state will be filing a lawsuit in the U.S. Supreme Court asking that Colorado's recreational marijuana possession/use law be declared unconstitutional in that it violates the Supremacy Clause of the U.S. Constitution.  The Oklahoma AG Scott Pruitt has announced that his state will join in the lawsuit.  The U.S. Constitution provides that state/local laws cannot conflict with federal laws; federal law must reign supreme in instances where state/local laws contradict or conflict.  Colorado voters approved a state constitutional amendment in 2012 that permits individuals over 21 to possess a small amount of marijuana for personal use in private.  However, marijuana in any quantity remains illegal under federal law despite the declared reluctance of the current Justice Department to enforce federal standards in Colorado and Washington, which is the other state that has legalized limited marijuana possession/use.

The lawsuit is brought in the U.S. Supreme Court because, under the Constitution, that court has original jurisdiction in matters between two or more states.  Additional information may be found at http://www.omaha.com/news/nebraska/bruning-files-lawsuit-over-colorado-s-legalization-of-marijuana/article_89801fb6-86ef-11e4-b2e8-9bf0786ca418.html.

Despite its legalization in Colorado, many entities do not permit marijuana possession/use, citing its illegality under federal law.

The contradictions illustrated by this case once again demonstrate why experienced legal counsel is vital when confronted by the implications of the legal system.

SCOTUS Imposes New Double-Standard for Ignorance of the Law

This week, the U.S. Supreme Court issued its opinion in Heien v. NC, in which the Court held that evidence obtained as the result of a traffic stop predicated upon an officer's mistaken belief that a traffic law had been violated will not be suppressed under the century-old Exclusionary Rule.  In this particular case, an officer stopped a car that was later found to be transporting drugs based on his belief that the suspects' car had a defective brake light.  A subsequent search of the car revealed illegal drugs, but the defendant moved to suppress the search results because the car in fact was not in violation of the North Carolina vehicle code, i.e. the officer's belief that the brake light problem was illegal was in fact erroneous (NC law requires only one working brake light; defendant's car had one working light and one that was out).  The trial court and appellate court agreed, but the North Carolina Supreme Court reversed, ruling that the officer's mistake of law was made in good faith and therefore fell under the "good faith exception" to the Exclusionary Rule, the 1914 Supreme Court ruling that evidence obtained as the result of a Constitutional violation must be excluded at trial.  The U.S. Supreme Court upheld the ruling of the NC Supreme Court, holding that the officer's belief that only one operational brake light was a traffic violation to be reasonable despite later court rulings to the contrary.

The SCOTUS ruling in Heien is disturbing in that it appears to establish a double-standard under the law regarding required knowledge of established law.  We are all familiar with the time-honored legal axiom "Ignorance of the law is no excuse!", meaning of course that a person can be held criminally liable for his actions even if he was not aware of the illegality of those actions.  We are all presumed to know the law, whether we actually do or not.  However, the holding in Heien seems to give police officers a pass when it comes to knowing the laws they are presumably enforcing...with them, it now seems that ignorance of the law IS an excuse!  The "good faith" exception was instituted by the Supreme Court thirty years ago, and during that time courts have held that officers who act on prevailing law that is subsequently changed or overruled are covered by this exception.  However, the good faith exception has never heretofore been held to apply to long-standing applicable law that remains unchanged as was the situation in Heien.  Analysis of the Court's ruling appears to reveal that the Court really didn't consider the public perspective that his holding creates a double-standard, but rather seemed chiefly concerned with preventing clearly-guilty drug runners from beating the rap on a legal technicality.  It is the considered opinion of this blogger that the Constitution is NOT a legal loophole or technicality, but that giving law enforcement officers the means to make tenuous excuses to justify an illegal stop IS.

As always, cases like this reflect why it is important to know your rights and to have benefit of experienced legal counsel when confronted with any criminal charge, no matter how "minor" it may be.

NHTSA: No Evidence to Support Low Per Se Cannabis DUI Levels

The National Highway Traffic Safety Administration has issued a report that states that low cannabis/THC levels constituting "per se" DUI such as the one set in Colorado are NOT supported by sound scientific evidence.  When the current Colorado THC per se level of 5 ng was set following the legalization of recreation marijuana use two years ago, the General Assembly was provided with so-called scientific and medical testimony/evidence stating that most adults were significantly impaired at the 5 ng level.  The federal agency that oversees highway safety in the United States has found that such claims are NOT supported by sound science.  A story on this report may be found at http://www.enewspf.com/opinion/analysis/57576-nhtsa-report-evidence-fails-to-support-proposed-dui-impairment-levels-for-cannabis.html.

It has been well-known for many years that THC, the "active" chemical in marijuana, affects individuals variously without any real, identifiable consistency in its effects.  This NHTSA report essentially re-affirms that collective knowledge.  No drug or substance affects all people in the manner or to the same degree.  This is why it is essential to obtain experienced legal counsel whenever charged with an impaired driving offense.

Ohio Case Highlights Problems with Intoxylizer Machines

The Ohio Supreme Court has ruled that crucial scientific data pertaining to Intoxylizer 8000 machines (which are very similar to Intoxylizer 9000 machines currently used in Colorado) must be made available to defendants charged with DUI based on breath test results on these machines.

Many aspects of the reliability of Intoxylizers have been raised by the legal community in recent years.  This particular Ohio ruling deals with the inability of the Intoxylizer to discern mouth or regurgitated alcohol and lung alcohol, which is indicative of the level of alcohol actually in the bloodstream.  Colorado attorneys have thus far been unable to obtain full disclosure of the same information on the Intoxylizer 9000 as that sought in the Ohio case.  As the below-referenced story mentions, this issue is about the fairness of the process and not circumventing the law or justice.  When disclosure is incomplete, the evidence is incomplete and the process is unjust.

The Ohio television news story may be viewed at http://www.10tv.com/content/stories/2014/10/01/columbus-ohio-ohio-supreme-court-ruling-could-change-state-breathalyzer-test-laws.html.

DUI is a complex offense with a myriad of legal aspects and ramifications.  Experienced legal counsel is essential in providing persons charged with this type of offense a clear understanding of their rights and options in dealing with all aspects of DUI.