U.S. Supreme Court Puts Brakes on Auto Searches Following Arrest

This spring in the case of Arizona v. Gant, the U.S. Supreme Court rolled back a bright-line automobile search rule in criminal cases established over a quarter century ago in N.Y. v. Belton that permitted a full-blown search of the interior of an automobile recently occupied by the subject of an arrest. Forty years ago, in Chimel v. California, the U.S. Supreme Court ruled that, once a person was placed under lawful arrest, the police could lawfully search the person and the area of "immediate control" surrounding the person without a warrant. In Belton, the Court held that when a person was arrested after being in an automobile, the entire interior of the automobile was within the arrestee's "immediate control" and thus could be searched without a warrant.

All that was changed in the Gant case decided before the Court's summer recess. In Gant, the police were waiting with an arrest warrant for driving with a suspended driver's license at the defendant's home when they saw him drive into his driveway, park, and get out of his car. Once out of the car with the door shut, the police arrested Gant and then proceeded to search the interior of the car per Belton and found cocaine and a gun. Gant was then prosecuted on illegal drug and firearms charges. The evidence was suppressed by the Arizona Supreme Court, which was affirmed by the U.S. Supreme Court. Justice John Paul Stevens, writing for the majority, held that "...the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."

It is unclear if this rationale will be extended to other arrest situations that do not involve an automobile--homes, purses, suitcases, etc. What is clear is that police no longer have carte blanche to search the interior of a car if they arrest an occupant thereof.

COA: No absolute 2-hour time limit for refusal revocation

A panel of the Colorado Court of Appeals has held that there is no absolute statutory requirement that a request for chemical test by person suspected of DUI that is refused be made within two hours of driving. In Stumpf v. Dept. of Revenue, announced April 30, a driver was revoked by the Department of Revenue for refusing a request for chemical test made over three hours after the driver was involved in an accident. The driver appealed to the district court, which reversed the revocation because the request for chemical test was made more than two hours after the accident. The COA reinstated the revocation of the Dept., holding that the refusal was valid as long as the request for chemical test was made "within a reasonable time" following driving. The COA refused to draw any bright line definition of what constitutes a "reasonable time," but held that in this specific case, a test request that came approximately three and one-half hours after the accident was reasonable because it [a chemical test] "potentially could have yielded relevant evidence."

It is important to note that the COA specifically distinguished administrative revocations where tests were conducted, and instances where tests were refused. The Stumpf holding applies only to revocation cases involving refusals.

DUI costs can top $10K

The Rocky Mountain News reports that the cost of a DUI conviction can approach or even exceed $10,000, including (but not limited to) fines, court costs, alcohol classes, insurance and probation fees. New DUI laws that go into effect January 1 will only increase these expenses. Read the entire story at http://www.rockymountainnews.com/news/2008/nov/25/cost-of-dui-conviction-10000-plus/.

Governor Signs Criminal Record Sealing Bill

Many people don't realize that any time a person is charged with a criminal offense, regardless of disposition, a record is created in one or more databases and/or archives. This information can show up on background checks for job applications and the like. Governor Ritter this week signed into law HB08-1082, which makes significant changes to the law regarding the sealing of criminal records. Previously, a person could NOT seal the record of a criminal conviction regardless of the offense. The new law makes two important changes in favor of persons with criminal records. First, persons can now petition to seal the record of criminal charges dismissed as the result of a plea bargain in another case after waiting only ten years instead of the previous fifteen. Secondly, and more importantly, persons sustaining actual convictions for petty offenses, misdemeanors, or class 5 or 6 felonies for drug possession charges can petition to seal the record of conviction after ten years following completion of sentence. Please note that this second change applies only to possession charges and does NOT apply to charges involving the sale, manufacture or dispensing of controlled drugs. It also applies to drug offenses only--convictions for all other types of offenses still cannot be sealed. The new law is effective July 1, 2008.

Records can be sealed only upon court order after showing the requisite statutory period has passed, that the petitioner has committed no new criminal offenses in the interim and he/she has satisfied all requirements of sentencing, including payment of all monies owed the court. The ultimate decision whether to grant a petition to seal any criminal record still resides with the court alone and a petition does NOT necessarily mean records will actually be sealed. Issues pertaining to the sealing of criminal records can be complicated and competent counsel should be consulted.

New revocation terms and reinstatement requirements begin January 1, 2009

Last week, Governor Ritter signed HB08-1194, described below, which will, among other things, increase the revocation period from three to nine months for first-time DUI suspects who test over the .08 limit. The new law takes effect January 1, 2009.

House OKs Legislation to Extend Alcohol Suspensions

Last week, the Colorado House passed HB1194, which extends mandatory revocations and suspensions of drivers licenses for alcohol-related offenses. Most noteworthy is the extension of first-time revocations of persons testing over the .08 limit from the current 3-month period to 9 months. First-time offenders would be eligible to apply for a restricted license with ignition interlock after a minimum revocation period of 30 days. The bill also more than doubles the current reinstatement fee from $60 to $130. If enacted, the new law would go into effect January 1, 2009.

New Regs Require Formal Advisement on Test Choice

New Colorado Department of Revenue Regulations pertaining to Express Consent revocations now require officers who invoke the Express Consent law to specifically advise drivers that (1) they may elect either a blood or breath test; (2) that if they choose a breath test a second sample for independent chemical testing will NOT be preserved; and (3) failure to take and/or complete a blood or breath test will result in a one-year revocation of the driver's license.

This is an important regulation that overrules decades of legal precedent which held that there was no requirement for an officer to offer a choice of chemical tests under the Express Consent law. Now, failure to specifically offer a choice of tests is in direct contravention of Colorado Department of Revenue Regulations.

Note the other new regulation mentioned above--second breath samples for independent chemcial testing will no longer be preserved. Drivers who submit to a breath test must now submit two separate breath samples, which will be measured and recorded, with the lowest of the two measurements determining BrAC. Blood tests will continue to draw two blood samples, with one held for independent testing.