House Bill Would Restore 4th Amendment Rights in DUI Revocation Proceedings

HB13-1077, sponsored by State Rep. Joe Salazar (D-Adams Co.), would reverse the appellate court rulings discussed below that held that the State could still revoke the license of a DUI suspect even if the officer did not have valid grounds to pull over the vehicle.  Salazar, himself an attorney, is a freshman legislator and vice-chair of the House State, Veterans and Military Affairs Committee.

Court of Appeals Throws Out the Constitution on DUI Stops

In an astonishing split decision, a three-judge panel of the Colorado Court of Appeals has ruled that police stops of vehicles without reasonable suspicion cannot be used to challenge the revocation of the driver's license of someone suspected of DUI.  In Francen v. Dept. of Revenue, the COA ruled that DMV does not have to consider whether an officer had reasonable suspicion to stop a driver who challenges the revocation of his/her license under the Colorado Express Consent law.  This case overrules a twenty-year old COA decision in Peterson v. Tipton that held that an unjustified stop of a licensee was grounds to challenge an EC revocation.  The majority in Francen held that, since the 1989 revision of the EC statute no longer explicitly required an actual arrest of a driver to invoke the testing mandate, the basis for the stop of a driver was not relevant in an EC appeal hearing and the DMV should not apply the Exclusionary Rule (striking evidence obained in violation of the Constitution--in this instance, the Fourth Amendment) in administrative revocation proceedings.  The dissent diasgreed that Peterson was wrongly decided and cited several examples where that case had been affirmed and reaffirmed by Colorado appellate courts in the twenty years since it was decided.  The dissent believed that the requirement that all police stops of EC suspects be legal was implicit in the EC statute and that it was unreasonable to conclude otherwise.

Under the EC law, which mandates that persons whom an officer has probable cause to believe is impaired or under the influence must take a blood or breath test or risk an absolute one-year revocation of their driver's license, a person can challenge a driver's license revocation for excessive alcohol content (.08 or greater) or refusal of testing by requesting a hearing before DMV.  Those hearings are rather informal and, beginning this year, are now almost exclusively held by telephone.  The COA's ruling in Francen greatly dimishes an already meager opportunity for due process in challenging a government action that has severe repercussions for everyone in our modern automobile-dependent society.  Simply put, the Colorado Court of Appeals has said it is okay for police to stop drivers for no reason and, if the officer believes the driver is impaired/intoxicated, revoke his/her driver's license for up to one year.  This is what the majority in Francen stated; that if the General Assembly intended for EC stops to be lawful, they would have written it into the law! It is time to ask our representative and senators in the General Assembly if that is indeed what they intended with this law.

Contrary to what you may read or hear, the law pertaining to DUI and Express Consent is not simple and straightfoward, and as demonstrated above, is constantly changing.  The assistance of an experienced attorney is not just helpful, it is essential.

Your Rights Regarding Police "Knock and Talk" Contacts

Many people are unaware of their basic Constitutional rights when it comes to warrantless police contacts at the entrance of a residence. A recent Colorado Court of Appeals case, People v. Nelson, gives a comprehensive summary and review of these "knock-and-talk" situations.

Everyone knows that police can enter a home without consent if they have a valid search and/or arrest warrant. But what happens when the police show up at your door just wanting to "talk and have a look around?" In the Nelson case, police officers acting on a tip of illegal drug use, actually said they were maintenance personnel in an attempt to get Mr. Nelson to open the door of his apartment. Once Mr. Nelson opened the door, officers spied what appeared to be drug paraphernalia inside the apartment and another man running into the back of the apartment. Officers entered the apartment and arrested both Mr. Nelson and the other occupant. Officers then obtained consent from Mr. Nelson's girlfriend to search the rest of the apartment and conducted a search over Nelson's objection. Drugs and paraphernalia were found and the police later obtained a search warrant and a search of the entire apartment turned up more drugs and weapons.

The Court of Appeal held that the ruse of posing as maintenance personnel to get Nelson to open the door of his apartment was legally permissible, as long as it did not extend to coercing Nelson to actually admit the officers. The Court went on to justify the warrentless entry of the apartment by holding that it was reasonable for the officers to conclude that the man running was trying to flee, obtain a weapon or destroy evidence, and such circumstances established a need for immediate response. However, the Court held that the consent of the girlfriend to conduct a further warrantless search of the apartment after the arrest of Nelson and the other man was not valid because of Nelson's objection. Citing the 2006 U.S. Supreme Court case of Georgia v. Randoph which held that consent to search a premises is not valid unless all residents present consent to the search, the Court held that evidence obtained from the consent search was inadmissible. However, the Court went to to hold that, even when discounting the suppressed evidence of the consent search, there was sufficient probable cause to justify the subsequent search warrant and the fruits thereof.

To summarize, police cannot enter a residence without a warrant unless the resident grants consent or exigent circumstances exist that necessitate immediate police entry and response. Police can use deception in getting someone to open the door, but cannot use deception in gaining consent for entry. The lessons from the Nelson case: 1) You should never open the door for someone you do not know; and 2) You never have to admit law enforcement into your home unless they present a valid warrant, and you never have to consent to police entry or search of your home.

Drug Court Launched for Arapahoe and Douglas Counties

Commencing October 14, Douglas and Arapahoe Counties will be served by a new "Recovery Court," traditionally referred to as a drug court. These courts are alternative sentencing mechanisms designed to reduce the number of defendants convicted of drug offenses who are sentenced to jail by placing them in a comprehensive supervision and treatment program that is overseen directly by a judge. Persons sentenced to drug court must appear regularly before the judge to have their compliance and recovery progress reviewed, and if necessary, modify certain aspects of their supervision.

The program has been used for several years now in Denver, where it has shown noticeable success in reducing both the jail population and recidivism. Denver has also pioneered a similar review court system for DUI offenders, but so far no other jurisdictions have followed suit.

Several sentencing alternatives may be available to criminal defendants here in Colorado, depending on the offense and surrounding circumstances. Before pleading guilty to any crime, an experienced criminal defense attorney should be consulted in order to learn the various possible consequences of a criminal conviction.

No Per Se Levels for Marijuana DUI...For Now

The DUI(Drugs)--Marijuana Working Group, operating under the auspices of the Colorado Commission on Criminal and Juvenile Justice, has decided not to recommend a specific blood-level concentration of THC, the intoxicant contained in marijuana, to establish per se proof of intoxication and/or impairment. Earlier this year, the Colorado General Assembly addressed the issue (HB 11-1261) and decided that there was insufficient scientific evidence to conclusively establish that a particular level of THC resulted in intoxication and/or impairment in drivers. The aim of the bill was to establish a THC level that could be accepted as prima facie evidence that a person was impaired or under the influence with respect to operating a motor vehicle, much as the .08 and .05 alcohol levels operate to establish whether a driver is under the influence and impaired under current state law. Given the far greater use of marijuana in light of relaxed Colorado laws pertaining to marijuana use and possession in recent years, the Colorado criminal justice system has seen a significant increase in the number of cases alleging driving under the influence or driving while ability impaired caused by marijuana use.

The decision by the Working Group reinforces the findings by the General Assembly that, at least for the time being with the level of scientific knowledge and research available, THC levels cannot be used to conclusively establish intoxication or impairment in a broad application to the population as a whole. It is unlikely, however, that we have heard the last of the debate on this issue. A charge of driving under the influence or while ability impaird by marijuana is a serious charge that can be even more complex than a similar case involving alcohol, and an experienced attorney is essential in helping a defendant assess his legal options.

Members of the Working Group include marijuana legal advocate Sean McAllister, Arapahoe County Sheriff Grayson Robinson, State Judicial Department rep Heather Garwood, Division of Behavorial Health rep Christine Flavia, Colorado Spring Police rep Rod Walker, Eagle County DA Mark Hurlbert and drug addiction counselor Laura Spicer. Their formal report will be presented to the Commission next week.

Denver Adopts "Sobriety Courts" for Repeat DUI Offenders

Repeat DUI offenders in Denver will now be given the opportunity to participate in the city's "Sobriety Court" program as an alternative to lengthy jail sentences traditionally imposed. Based on the "Drug Court" program that has enjoyed extended success, defendants with previous drug/alcohol-related driving offenses can participate in an intense court-supervised treatment regimen that requires frequent (often weekly) reviews by the court of the defendant's progress in the program. Before institution of this new option, most judges relied on lengthy jail sentences of six months or more in addressing cases involving DUI/DWAI defendants with more than one prior offense. The goal of the program is to ensure complete compliance with substance-abuse treatment regimens and prevent recidivism. It has been reported that in Denver, about a third of alcohol-related driving offenses are committed by previous offenders.

Criminal Defense Bar Seeks Public's Assistance in Enforcing New Consent Search Law

Earlier this year, Colorado's new law went into effect requiring officers who conduct consent searches without probable cause to advise the party searched that they have the right to refuse consent (see earlier posts below on this subject). The Colorado Criminal Defense Bar is seeking to ensure that this law is observed and enforced, and requests that anyone who was subjected to a consensual search since June of this year without the required advisement being given to contact Art Way at (303) 867-0305 or art@progressivecoalition.org.

In most cases, law enforcement officers must have, at a minimum, probable cause to search a person or his/her property. However, if a person grants consent to search, probable cause is not necessary. Beginning this summer, officers in Colorado are required to advise a person from whom consent to search is sought to advise the person that their consent must be voluntary and that they have a right to refuse consent to search. Evidence that is obtained illegally may be excluded in court--an experienced attorney is essential in evaluting these situations.