Enhanced DUI penalty bill clears House

HB10-1347, which will expand penalties and restrict discretionary sentences for repeat DUI/DWAI offenders, has been approved by the Colorado House and will now be considered by the State Senate. Among many new provisions, the bill mandates a minimum 60-day jail sentence for thrice-convicted offenders, as well as restricting the availability of sentencing alternatives such as in-home detention. The entire bill can be found at www.leg.state.co.us.

Watered-down consent search bill goes to Gov.

A watered-down version of HB10-1201, which requires law enforcement officers to advise persons prior to a consensual search that they are being asked to voluntarily consent to the search and that they have the right to refuse consent, has been sent to Governor Ritter. Despite the advisement requirement, the bill provides virtually no consequences should an officer fail to give such advisement--a reviewing court can merely consider the failure to give the advisement as it applies to the totality of the circumstances in determining whether consent to search was voluntary. The original version of this bill required written proof of the advisement in order for consent to search to be valid under the law. Should the Governor approve the bill, the advisement requirement would apply to consensual searches only; no such advisement would be required when other legal grounds for a search are present.

Amended Consent Search Bill Passes House

An amended version of HB10-1201, referenced below, has been approved by the Colorado House and will now be considered by the State Senate. The bill, which requires that consent searches of a person or vehicle be made only after a verbal advisement that consent does not have to be given and that any consent given be in writing, was amended to remove homes as an area for consent searches covered by this law. Current law does not require any kind of advisement or that consent be in writing in order to be valid under the law. Rather, the only constitutional requirements for valid consent are that it be voluntary and that consent be granted by a person with apparent authority to grant the consent.

Attempt to Make Third DUI a Felony Fails

HB10-1184, sponsored by Rep. Cory Gardner (R-63), which would have made a third lifetime DUI conviction a felony in Colorado, has been killed by the Colorado House Judiciary Committee on a party-line vote. Gardner's bill would have made a third DUI conviction a class six felony, punishable by up to three years in prison and a $100,000 fine. The chief opposition to the legislation lay with its increased cost of adding new inmates to an already-inadequate state felony corrections system. Many states have had similar laws for several years.

HB10-1347, sponsored by Rep. Claire Levy (D-13), which would increase mandatory jail penalties and limit alternative jail sentences for repeat DUI offenders, has yet to be heard in the State House Judiciary Committee.

Bill Would Require Advisement Prior to Consensual Searches and Consent in Writing

HB10-1201, sponsored by State Rep. Karen Middleton (D-42) and State Sen. Pat Steadman (D-31), would require law enforcement officers who conduct consensual searches of persons, their automobiles or premises, to obtain said consent in writing after advising the person that they have the right to refuse such a search. Currently, the law makes no such requirement for officers who conduct a consensual search of a person or his/her property. The written permission after advisement requirement would not apply to searches where the officer is otherwise permitted by law to conduct a search, such as pursuant to a search warrant or incident to lawful arrest.

State legislators seek to increase DUI penaties

The Denver Post reports that State Representative Claire Levy (D-Boulder) will introduce legislation this session that will impose greater minimum-mandatory jail sentences for repeat DUI/DWAI offenders. Per the news report, Levy's bill would increase the minimum-mandatory jail sentence for all second alcohol offenses to ten days and impose a minimum-mandatory 60-day sentence for a third offense. Courts would still have discretion to permit work-release, and home detention would be permissible on second offenses where the previous offense was more than three years in the past. Levy's bill is less-stringent than that considered by Gov. Ritter's Commission on Criminal and Juvenile Justice, which would have mandated 30 days in jail for a second offense. It was also reported that Rep. Cory Gardner (R-Yuma) is introducing legislation that would make a third drunk-driving offense a felony, subjecting the offender to a potential prison sentence rather than county jail.

An overriding concern expressed by county commissioners and sheriffs is that expanded mandatory sentences will greatly increase costs at a time when budgets are strained to their limits. The Post report estimated that expanding mandatory sentences to the levels recommended by the Commission would increase incarceration costs by $20 million statewide, at a time where many counties are scrambling for ways to reduce jail costs, which are estimated at $65-70 per day per inmate. The cost for creating felony DUI convictions, including the requirement for new prisons, was estimated at $107 million in 2008.

The details of these proposed bills will be made public once the General Assembly begins its 2010 session later this week.

'Tis the Season...For DUI Checkpoints

The holiday season means celebration, and law enforcement knows celebration means alcohol consumption. In addition to mid-summer, this is the most common time of year to encounter DUI checkpoints run by state and local law enforcement. The purpose of the checkpoints is to enforce basic traffic laws like ensuring drivers are licensed and vehicles registered and insured, and also to verify that people on the road are driving sober.

Such checkpoints are constitutional, provided they comply with certain guidelines. The means for selecting which vehicles are stopped and checked cannot be arbitrary (i.e. you cannot be selected because of the way you look or the type of vehicle you are driving)...either all vehicles entering the checkpoint must be contacted or they must be selected entirely at random, such as every third vehicle. The checkpoints must be posted so drivers receive notice before they enter the contact zone, and there must be an available route for drivers to detour if they do not wish to proceed through the checkpoint. Of course, these detour routes are also watched by law enforcement and any sign of impairment of the driver (such as weaving, driving excessively slow, slowing or stopping abruptly, etc.) will very likely result in a traffic stop.

If you are contacted during the course of one of these checkpoints, keep in mind that you have the same rights as with any other traffic stop. That means you do not have to make any statement or answer any questions, nor do you have to participate in any roadside sobriety testing. You are required, if requested, to provide your driver's license, registration and proof of insurance. Also keep in mind that if an officer has probable cause to believe you are impaired and requests that you take a test, you have a choice between blood or breath. If you take a blood test, a second sample of your blood must be preserved for independent testing at your request, while no such sample of your breath will be preserved in a breath test. Refusal to take a test or failure to complete a test will result in a one-year revocation of your driver's license with no eligibility for a probationary or restricted license.

Please remember to drive safely and soberly this holiday season, and have a healthy and prosperous New Year!