COA affirms requirement of police to request chemical testing for alcohol-related driving offenses

The Colorado Court of Appeals has affirmed that law enforcement officers are required to request that persons suspected of alcohol-related driving offenses complete a chemical test before obtaining a chemical sample without consent. In People v. Maclaren, a driver caused a head-on collision by crossing over the dividing line into the oncoming lane of traffic, resulting in serious bodily injury to the driver of the other vehicle. The driver who crossed the dividing line was also injured and taken by ambulance to a hospital. The driver admitted to having consumed alcohol earlier in the day and both the paramedics and police noticed an odor of alcohol on the driver's breath. Once at the hospital, the police officer ordered a blood draw on the driver without either advising the driver of the express consent laws or asking him to provide a sample for chemical testing. The driver was later charged with DUI and vehicular assault. At trial, the driver asked the court to suppress the blood test results and dismiss the case against him because he was not advised of the express consent law nor asked to submit to chemical testing. The trial court, while finding probable cause to justify a chemical test, nonetheless suppressed the test results and dismissed the case against the driver due to the statutory violation. The prosecution appealed. The Court of Appeals ruled that the willful disregard of the statutory requirement of the express consent law was sufficient grounds for the trial court to suppress the test results. The Court held that, even though officers with probable cause have the authority to obtain a blood draw without consent in a vehicular assault case, the statute nevertheless requires that a request for testing first be made after advising the driver that the officer has probable cause to believe the driver is at least impaired by the consumption of alcohol, drugs or both. The Court held that, because the officer made no attempt whatsoever to advise or request, and no extraordinary circumstances existed to justify such failure to advise/request, the trial court was well within its discretion to suppress the test results. However, the Court of Appeals held that full dismissal of the case was an excessive remedy to the statutory violation committed by the officer, and remanded the case to the trial court for further proceedings.

To review, Colorado law requires officers who have probable cause that a person has driven a motor vehicle while impaired or under the influence of alcohol, drugs or both to request that the driver submit to a test of their blood or breath and that, while the driver may refuse testing, refusal will result in the revocation of his driving privilege for at least one year. If an officer suspects that a person has committed vehicular assault or homicide (causing death or serious bodily injury while driving under the influence), he must make a similar request unless the driver is unconscious or unable to respond. As long as the officer has probable cause that the driver has committed vehicular assault/homicide, he can compel extraction of a blood sample without the driver's consent.

Recent Changes in Colorado Criminal Drug Laws

Several significant changes to Colorado's criminal drug laws have now taken effect. First, the level of offense for many use or possession offenses has been reduced--unlawful use of a schedule I/II controlled substance has gone from a class 6 felony to a class two misdemeanor, while unlawful use of a schedule III/IV/V controlled substance has gone from a class 1 to a class 2 misdemeanor. Simple possession of a controlled substance has been moved to a separate statutory section to eliminate legal association with the crimes of manufacturing, dispensing, selling, distributing or possession with intent to commit same--all of which carry more severe penalties than simple possession.

The threshold quantity for unlawful possession of a schedule I/II controlled substance has increased from one gram or less to four grams or less, except for methamphetamine, where the threshold quantity is two grams or less. There is also no longer an automatic increase in felony offense class if the defendant has a prior conviction. Also, possession of schedule III/IV/V has been reduced to a misdemeanor offense (class 1).

Marijuana offense laws have also been revamped. Possession thresholds have been increased for each level of offense, with new quantity classifications set at: two ounces or less for petty offenses; more than two but not more than six ounces for a class 2 misdemeanor; more than six ounces but less than twelve ounces for a class 1 misdemeanor; more than twelve ounces for a class six felony. Second offenses pertaining to marijuana possession no longer carry mandatory elevation to felony class. Marijuana cultivation offenses have now been reclassified as follows: six or fewer plants is a class 1 misdemeanor; seven to twenty-nine plants is a class 5 felony; thirty or more plants is a class 4 felony.

The final change of note pertains to the sentencing of Special Offenders in possession of a deadly weapon during the commission of a drug offense. The law now requires that in order to invoke Special Offender mandatory sentencing, the weapon must be on the defendant's person or within his immediate reach at the time of the offense, or if possessed by a confederate at the time of the offense, the defendant must have access to said weapon and the possession of such weapon must pose a risk to others or was in a vehicle occupied by the defendant at the time of the offense.

Drug offender surcharges (mandatory fees for drug convictions) have been increased and are now: $2000 for class 4 or greater felony; $1500 for class 5 felony; $1250 for class 6 felony; $1000 for class 1 misdemeanor; $600 for class 2 misdemeanor; $300 for class 3 misdemeanor; and $200 for petty offense.

These are not all the changes regarding drug offenses that have recently gone into effect, merely the most significant. When charged with a drug-related crime, the assistance of an experienced attorney is essential to understand all legal aspects of your case.

Gov. Signs Bill Increasing Penalties for Repeat DUI/DWAI Offenses

HB10-1347, discussed below, has been signed into law by Gov. Bill Ritter and becomes effective July 1. The major provisions of the new law include enhanced minimum-mandatory jail sentences for repeat DUI or DWAI offenders. A second lifetime alcohol driving offense will now carry a minimum 10-day jail sentence with no eligibility for home-detention if the previous offense was within five years. A third lifetime offense will now carry a minimum-mandatory 60-day jail sentence with no eligibility for home detention. Work/education release would still be possible for all mandatory jail sentences, however repeat offenders serving mandatory jail sentences will not be eligible for "good time" credit or reductions due to trustee status for the minimum-mandatory period of their sentences. The entire law may be found at www.leg.state.co.us.

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.