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.

Judge Retention--It's YOUR Call!

Mail ballots will hit mailboxes in a week, and Election Day 2014is less than a month away.  Every election, a segment of the ballot is devoted to judicial retention elections.  Colorado has a very unique judicial selection and retention process, unlike most any other state.  Judges are appointed by the governor, but retained by the people.  Here's a review of the process so you can both understand and cast an informed vote this election.

In most jurisdictions, to become a judge in a state court (county, district, appellate, supreme) a candidate must be an elector (eligible voter, i.e. resident) in the jurisdiction to which he/she applies and have been a licensed attorney in Colorado for at least five years.  When a judicial vacancy opens up, whether as a newly-created court or the loss of an active judge, candidates submit their applications to that jurisdiction's Judicial Nominating Commission.  These commissions are comprised of both lawyers and laypersons appointed by the governor to assist him/her in the judicial selection process.  Each commission is chaired by a justice of the Colorado Supreme Court; the justices take turns serving on selection commissions as they are convened by necessity.  After the application deadline, the commission reviews the applications and decides which candidates it wishes to grant personal interviews.  Once the interviews are held, the commission is permitted to submit to the governor up to three names in nomination for each vacancy on that particular bench.  It is from that "short list" that the governor must select his appointment to the bench within fifteen days of receiving the list of nominees.  If for some reason the governor fails to appoint one of the nominees to the vacancy, the appointment falls to the Chief Justice of the Colorado Supreme Court.  Every judge appointed must serve a "probationary" term of two years before standing for retention election before the electorate of their jurisdiction.  If retained after his/her "probationary" term, the judges must stand for retention at regular intervals depending on what level court upon which he/she sits:  county court--four years; district court--six years; Court of Appeals--eight years; Supreme Court--ten years.  Appointments are for life, with the limitation that no judge may continue in a full, active capacity after reaching the age of seventy.  After at least five years on the bench, judges may choose to "retire" and continue to serve in a reduced/limited capacity as assistant/substitute judges at the highest level  at which they served actively or at a lower-level (e.g. a retired Supreme Court justice could serve as a substitute trial court judge in district or county court).

Before every regular state election, the state Judicial Performance Commission issues its report on all judges slated for retention in that election.  Judges are evaluated on their established court record, as well as by written evaluations submitted by lawyers and citizens commenting on the judge's performance and capabilities.  The Performance Commission publishes general comments of evaluation on each judge and then makes a general recommendation on retention:  retain, do not retain, or no recommendation (which is usually reserved for judges where there is insufficient information to make a recommendation).  Each judge is allowed to publish his/her own comments/response to the Commission's report/recommendation.  A summary of the Performance Commission's report is included in the official state voter information booklet, AKA the Blue Book.

Historically, members of the bench have generally been given the benefit of the doubt by the Performance Commission in its evaluations and recommendations.  The Commission realizes that judges have a difficult job and that, in every case, one or perhaps all parties will very likely walk away disgruntled and dissatisfied.  The Commission generally seeks to pare through the clear bias and look for trends or consistent threads of criticism in trying to decide if a judge is truly unfit for retention or just a victim of sour grapes.  It is for this reason that an extremely small number of judges are actually not recommended for retention each election, although there is another reason for that small number.  The Commission informs judges of its findings before they are made public, and many judges who receive a "do not retain" recommendation choose to step down in advance of the election.  In any case, in order to receive a "do not retain" recommendation, a judge normally must show either a great amount of legal incompetence or a decided lack of judicial demeanor/temperament or fairness.  A "do not retain" recommendation should be an enormous red flag to any voter evaluating whether he/she should vote to retain a particular judge.

It is therefore important, before you cast your ballot to extend a judge's term for a period of several years, to at least read the evaluations contained in the "Blue Book" and, if necessary, do additional research on your own.  It is highly recommended that you to talk to experienced lawyers who practice in your jurisdiction and ask their opinions--Is this judge fair?  Does he/she know/apply the law well?  Does he/she treat attorneys and parties with professionalism and courtesy?  Those are just a few questions every voter should be asking before they cast their ballot on judicial retention.  Informed voters improve and maintain our high standards of justice and their retention decisions are just as important as the decisions that nominate our judges in Colorado.

State Supreme Court: Felons Possessing Guns Must Show Imminent Threat

It is commonly known that it is a crime for convicted felons to possess firearms in Colorado, with the offense officially labeled "Possession of a Weapon by a Previous Offender" or POWPO.  However, for nearly forty years, the courts have operated under the common-law rule that a person charged with POWPO could assert an affirmative defense pursuant to his right under the Colorado Constitution to possess a firearm for defense of self/family and property.  In People v. Carbajal, announced today, the Colorado Supreme Court held that it was not error for a trial court to instruct a jury that, in order to avail himself of this affirmative defense, a defendant must show that any danger/threat necessitating the firearms possession must be imminent.  At trial, defendant introduced evidence that he had purchased three firearms 5-6 years prior to his POWPO charge, and that two of those purchased were directly following victimization for violent crimes.  Nonetheless, the Court found no error in the trial court's instruction that the threat for which the firearms were needed must be imminent, or immediate.  The Court went on to essentially establish a new rule on the subject, holding that the "Constitutional Right" affirmative defense to POWPO must be asserted as a "choice of evils" defense, whereby a defendant asserts lack of criminal liability because he was forced to break the law in order to prevent a greater harm, i.e. imminent danger to himself/others.

In a short but articulate dissent, Justice Hood (joined by Justice Hobbs), the newest member of the Court, pointed out that there is no imminency requirement in the Colorado Constitution, which merely states "The right of no person to keep and bear arms in defense of his home, person or property ...shall be called in question."  Neither was the imminency requirement in the form of a "choice of evils" format for the affirmative defense previously established in any Colorado case.  Once again, the majority of the Colorado Supreme Court seems to place punishment ahead of the U.S. and Colorado Constitutions.  It is important to have experienced, knowledgeable legal representation to ensure that the proper issues are raised and preserved should the need for appeal arise.

Legislative Cure Urged by Defense Bar Saves Colorado Drivers from Bizarre CO Supreme Court Decision

Today, in Francen v. Dept. of Revenue and Hanson v. Dept. of Revenue, the Colorado Supreme Court ruled that, prior to a legislative cure in the 2013 session of the General Assembly, police could stop vehicles without reasonable suspicion or probable cause and still have the evidence following the stop used against them in driver's license revocation proceedings.  In both cases, the drivers challenged their license revocations following DMV hearings where they challenged the constitutional basis for the vehicle stops.  In Francen, the District Court reversed the revocation and held that the officer conducting the stop did not have reasonable, articulable suspicion of a violation of the law, as required by the landmark SCOTUS case of Terry v. Ohio and its companion Colorado case, Stone v. People.  That ruling was overturned by the Colorado Court of Appeals which ruled in both Francen and Hanson that the basis for a vehicle stop or seizure of a driving suspect (in Hanson, the driver was seized from inside his home and was not stopped in his vehicle on the road) was not relevant to a driver's license revocation hearing--the only relevant issue vis-a-vis probable cause was whether the officer had probable cause to believe that the driver was impaired by alcohol, drugs or both.  As the result of the COA rulings, the Colorado General Assembly changed the Expressed Consent statute to specifically allow the basis for the motor vehicle stop to be challenged as part of any EC revocation appeal.  But for this legislative "cure", the result of today's CO Supreme Court ruling would be that officers could stop drivers in Colorado without any legal basis and, if the officer was able to develop probable cause of impairment following the stop, that driver could lose his/her license.

In criminal cases, in order to constitutionally justify the temporary detention of an individual for investigation, an officer must have reasonable, articulable facts at hand that would lead an ordinary officer to suspect that criminal activity was occurring.  In other words, police in the U.S. cannot just stop a person on a hunch, whim or "fishing expedition"--there must be a good reason for them to infringe on someone's right to move about freely.  If an officer fails to have "reasonable suspicion" when stopping someone, any evidence that is obtained following such an illegal stop is inadmissible against the accused.  For some strange and unexplained reason, both the Colorado Court of Appeals and Supreme Court don't have a problem with baseless police stops, at least within the confines of people losing their ability to legally drive in Colorado.  Today's rulings beg the question as to why it's okay for police to conduct baseless stops to revoke people's driver's licenses, but not to charge them with DUI/DWAI?  That's what today's decisions essential mean.

The legislative "cure" enacted in 2013 was the direct result of Colorado defense attorneys taking the problem directly to our elected officials and giving them the information and education necessary to restore fairness and justice to the driving revocation process.  When confronted with an impaired driving prosecution and/or revocation, it is important to have experienced, knowledgeable legal representation.