The Law Concerning DUI Checkpoints

With the holiday season in full-swing, the presence of law enforcement on the roads looking for impaired drivers will be great.  In addition to heightened patrols on the roads, many agencies, especially municipal police departments, will be operating what they commonly refer to as sobriety checkpoints.  If you drive in the Denver Metro Area for very long, you are likely to run across one of these "checkpoints" somewhere, and the holidays are a favorite time for law enforcement to set up these operations, given the frequency of celebrations offering alcoholic beverages.  There are established procedures police must follow in conducting these checkpoints, and many videos may be found online of individuals who have recorded their encounters.  Here are some things to keep in mind should you encounter of these "sobriety checkpoints"...

First, these checkpoints ARE legal/constitutional, as long as they are conducted properly.  These roadblocks or checkpoints are considered administrative searches under the Fourth Amendment, which means that they are conducted for general maintenance of health, safety and/or welfare of the community.  The stopping of vehicles normally requires, at a minimum, reasonable suspicion of illegal activity.  However, in administrative searches, as long as every vehicle coming through the checkpoint is stopped, or if there is a random formula of selection, e.g. every third car is stopped, then the roadblock is permissible.  Colorado law requires that advance notice of the checkpoint be posted to allow persons who do not wish to be subjected to the roadblock the opportunity to take an alternate route.  Although avoiding a checkpoint is NOT in and of itself reasonable suspicion, police can and often do follow vehicles that avoid these checkpoints and, if driving violations are observed, stop these vehicles and contact the driver. 

Once stopped, police are only permitted to contact the driver and require the driver to produce standard, required documentation, such as driver's license, automobile registration and proof of insurance.  Drivers and occupants are not required to answer any questions posed by officers or engage them in conversation if they do not wish to do so.  Officers can only require the driver or occupants to exit the vehicle if the officer has reasonable suspicion of illegal activity.  However, even if you are required to exit your vehicle, you still are not required to answer any questions, make any statement, or perform any type of "roadside sobriety" tests, referred by law enforcement as Standard Field Sobriety Tests.  Should an officer believe he/she has probable cause to believe a driver is impaired or under the influence, the officer can request that a chemical test of the driver's blood or breath be completed; failure to complete such a requested test can result in loss of the driver's license.

Sobriety checkpoints are common this time of year, and although they are legal if properly conducted, your rights are still very much in play as in any police contact.  Should your encounter with a checkpoint result in criminal/traffic charges, an experienced attorney will be helpful in evaluating the validity of your contact and charges and in determining what legal defenses may be available to you.  Have a safe and enjoyable holiday season!

SCOTUS: Police Cannot Prolong Traffic Stops for Dog Sniff Without Reasonable Suspicion

This week, the U.S. Supreme Court held in Rodriguez v. U.S. that detaining a driver stopped for a traffic violation longer than necessary to issue a citation violates the driver's Fourth Amendment right against unreasonable searches/seizures.  In this case, a police officer in Nebraska detained a driver for failing to remain in his lane, and after the officer had run a review of the driver's record and determined there were no outstanding warrants/violations, issued the driver a citation.  However, and despite the admitted absence of probable cause or reasonable suspicion, the officer refused to let the driver go on his way until a canine unit arrived to conduct a dog sniff of the driver's vehicle.  The government argued that the detention of the driver was not unreasonable in that it was a minimal, temporary inconvenience to the driver and that dog sniffs were a common tool of law enforcement.

SCOTUS disagreed, and reiterated rules it had laid out in previous cases holding that the length of an investigatory detention is governed by the scope of the reasonable suspicion that justifies the detention.  While the stop of the driver's vehicle was justified, continuing the detention after the traffic matter was resolved without additional legal grounds was not. 

It is significant to note that the driver in this case did NOT consent to the extended detention or subsequent dog sniff and search of his vehicle.  Consenting to police detentions and/or searches constitutes a WAIVER of your Constitutional rights.  You should never consent to a waiver of your rights for any reason unless/until you have conferred with experienced legal counsel.

Leglislative impacts on DUI and ID

Governor Hickenlooper recently signed new legislation impacting DUI driver's license revocation hearings and criminal identification procedures.

HB15-1073 corrects a confusing and unreasonable decision handed down by the Colorado Supreme Court in Francen v. Dept. of Revenue, which held that, despite language in Colorado statutes permitting drivers to challenge the basis for police contact in appealing a driver's license revocation based on the Express Consent law mandating chemical testing of suspected impaired drivers, DMV hearing officers did not have to ignore evidence obtained from improper/unconstitutional vehicle stops.  The new law requires DMV hearing officers to suppress evidence resulting from an invalid or unconstitutional stop of an appellant driver, legislatively overruling Francen.

SB15-58 will require all state law enforcement agencies to adopt procedures relating to eyewitness identifications with the aim of improving the accuracy of suspect IDs.  Recent studies have shown that many witness ID methods employed by law enforcement are unreliable and susceptible to serious bias/error; this law will attempt to prevent past common procedures that have come to be proven problematic at best and utterly unreliable at worst.

The Rest of the Story About the Proposed Felony DUI Law

We've been hearing a WHOLE lot of misinformation coming from the media and proponents of the felony DUI bill before the Colorado General Assembly...here are the arguments, and why they aren't telling you the whole story...

1. "We need to send repeat offenders to jail!"  Newsflash...we already DO!  Minimum MANDATORY ten days for a second offense and minimum MANDATORY sixty days for a third/subsequent offense.  Most judges impose a minimum of six months on a third offense, and often max offenders out at a year.

2.  "Even if it's your tenth DUI, the most jail you can serve is one year!"  That is correct, but what they fail to mention is that repeat offenders are GUARANTEED to go to jail under current law; the new law would not guarantee felony DUI offenders would do any time at all.  In fact, the original sponsor of the initial bills offered in earlier sessions admitted that felony DUI offenders were likely to get probation rather than jail/prison.

3.  "There needs to be a deterrent so DUI offenders won't repeat!"  Available statistics from states that have passed similar felony DUI laws show that these laws have had NO deterrent effect on reducing DUI recidivism.

4. "Drunk drivers who injure/kill people should face felony charges!"  Another newsflash...CO law already makes it a felony to cause death or serious bodily injury while driving under the influence--the offenses are vehicular assault and vehicular homicide, respectively.

5.  "The projected costs of this law have been over-estimated!"  This law is projected to add nearly $20 million in new Department of Corrections costs.  The original bill's sponsor says that estimate is too high because most felony offenders won't be sent to prison but rather placed on probation.  We thought the reason for this law was to mete out greater punishment for repeat DUI offenders?  The proponents seem to be contradicting themselves.

Bottom line:  This is a bill being pushed by politicians who want to appear tough on crime.  The fact is, CO is tough on DUI offenders, mandating jail for repeat offenders, not to mention the negative consequences regarding driver's licenses.  Even the bill's proponents admit that creating a felony DUI charge will result in LESS incarceration for multiple offenders, not more.

In any case, DUI is a complicated legal charge and the assistance of an experienced attorney is no longer just preferred, it is essential!

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.