The Denver Post has published a story outlining a study it did regarding what Colorado drivers can expect in the way of criminal sentencing for a repeat DUI or DWAI offense. The sum of the report is that sentences of jail, alternative confinement, fines and costs for repeat DUI/DWAI offenders can vary greatly depending upon the judge and jurisdiction. "The discrepancy, according to judges, lawyers and other experts, is the result of the collision between judicial philosophy and legal interpretation against the overriding reality of full jails," the story explained. Judges have a variety of options when it comes to sentencing repeat DUI or DWAI offenders, and they appear to be exercising those options depending on the circumstances mentioned above. You can read the entire Post story at http://www.denverpost.com/news/ci_13023973.
This story demonstrates the importance of experienced legal counsel to assist someone charged with a second or subsequent DUI or DWAI--counsel that can explain the intricacies of sentencing and make the strongest possible argument for sentencing conditions that are in the best interest of the accused.
Monday, August 10, 2009
Thursday, August 6, 2009
Traffic Tickets Bridge Revenue Gap
Anyone driving on our streets and highways recently will have noticed an abundance of law enforcement vehicles, both marked and unmarked, looking for any and all forms of traffic violations. Stepped-up enforcement of traffic signal lights, "aggressive driving" (AKA "road rage") laws, and of course, speed limits (which sometimes change by as much as 20 MPH on very short notice) are becoming the rule rather than exceptional law enforcement action. Why this beefed-up enforcement of our traffic code? One word: Revenue.
The recent economic recession has hit local governments particularly hard. With so many businesses failing or doing poorly and so many people out of work, tax revenues have taken their biggest plunge since the Great Depression (at least according to the Denver Post). Counties and municipalities are having to look to other means of raising money, and traffic tickets are a relatively easy and inexhaustive source of revenue. Law enforcement often limits concentration on traffic code violations because such action is rather unpopular with the folks who go to the polls and vote for sheriffs and on bond issues supporting law enforcement compensation. However, desperate times call for desperate measures and political leaders are willing to risk backlash at the polls in order to raise more money now. They know that most people won't bother to fight a ticket in court, simply because they can't afford to take the time from work or the attorney costs are higher than the fines. But keep in mind that traffic tickets have costs beyond the fines--insurance companies base their rates on driving records, and a handful of tickets will result in higher premiums, or in this economy, loss of coverage altogether.
Please drive safely and obey all traffic regulations...remember, they're watching!
The recent economic recession has hit local governments particularly hard. With so many businesses failing or doing poorly and so many people out of work, tax revenues have taken their biggest plunge since the Great Depression (at least according to the Denver Post). Counties and municipalities are having to look to other means of raising money, and traffic tickets are a relatively easy and inexhaustive source of revenue. Law enforcement often limits concentration on traffic code violations because such action is rather unpopular with the folks who go to the polls and vote for sheriffs and on bond issues supporting law enforcement compensation. However, desperate times call for desperate measures and political leaders are willing to risk backlash at the polls in order to raise more money now. They know that most people won't bother to fight a ticket in court, simply because they can't afford to take the time from work or the attorney costs are higher than the fines. But keep in mind that traffic tickets have costs beyond the fines--insurance companies base their rates on driving records, and a handful of tickets will result in higher premiums, or in this economy, loss of coverage altogether.
Please drive safely and obey all traffic regulations...remember, they're watching!
U.S. Supreme Court Puts Brakes on Auto Searches Following Arrest
This spring in the case of Arizona v. Gant, the U.S. Supreme Court rolled back a bright-line automobile search rule in criminal cases established over a quarter century ago in N.Y. v. Belton that permitted a full-blown search of the interior of an automobile recently occupied by the subject of an arrest. Forty years ago, in Chimel v. California, the U.S. Supreme Court ruled that, once a person was placed under lawful arrest, the police could lawfully search the person and the area of "immediate control" surrounding the person without a warrant. In Belton, the Court held that when a person was arrested after being in an automobile, the entire interior of the automobile was within the arrestee's "immediate control" and thus could be searched without a warrant.
All that was changed in the Gant case decided before the Court's summer recess. In Gant, the police were waiting with an arrest warrant for driving with a suspended driver's license at the defendant's home when they saw him drive into his driveway, park, and get out of his car. Once out of the car with the door shut, the police arrested Gant and then proceeded to search the interior of the car per Belton and found cocaine and a gun. Gant was then prosecuted on illegal drug and firearms charges. The evidence was suppressed by the Arizona Supreme Court, which was affirmed by the U.S. Supreme Court. Justice John Paul Stevens, writing for the majority, held that "...the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."
It is unclear if this rationale will be extended to other arrest situations that do not involve an automobile--homes, purses, suitcases, etc. What is clear is that police no longer have carte blanche to search the interior of a car if they arrest an occupant thereof.
All that was changed in the Gant case decided before the Court's summer recess. In Gant, the police were waiting with an arrest warrant for driving with a suspended driver's license at the defendant's home when they saw him drive into his driveway, park, and get out of his car. Once out of the car with the door shut, the police arrested Gant and then proceeded to search the interior of the car per Belton and found cocaine and a gun. Gant was then prosecuted on illegal drug and firearms charges. The evidence was suppressed by the Arizona Supreme Court, which was affirmed by the U.S. Supreme Court. Justice John Paul Stevens, writing for the majority, held that "...the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."
It is unclear if this rationale will be extended to other arrest situations that do not involve an automobile--homes, purses, suitcases, etc. What is clear is that police no longer have carte blanche to search the interior of a car if they arrest an occupant thereof.
Thursday, April 30, 2009
COA: No absolute 2-hour time limit for refusal revocation
A panel of the Colorado Court of Appeals has held that there is no absolute statutory requirement that a request for chemical test by person suspected of DUI that is refused be made within two hours of driving. In Stumpf v. Dept. of Revenue, announced April 30, a driver was revoked by the Department of Revenue for refusing a request for chemical test made over three hours after the driver was involved in an accident. The driver appealed to the district court, which reversed the revocation because the request for chemical test was made more than two hours after the accident. The COA reinstated the revocation of the Dept., holding that the refusal was valid as long as the request for chemical test was made "within a reasonable time" following driving. The COA refused to draw any bright line definition of what constitutes a "reasonable time," but held that in this specific case, a test request that came approximately three and one-half hours after the accident was reasonable because it [a chemical test] "potentially could have yielded relevant evidence."
It is important to note that the COA specifically distinguished administrative revocations where tests were conducted, and instances where tests were refused. The Stumpf holding applies only to revocation cases involving refusals.
It is important to note that the COA specifically distinguished administrative revocations where tests were conducted, and instances where tests were refused. The Stumpf holding applies only to revocation cases involving refusals.
Tuesday, November 25, 2008
DUI costs can top $10K
The Rocky Mountain News reports that the cost of a DUI conviction can approach or even exceed $10,000, including (but not limited to) fines, court costs, alcohol classes, insurance and probation fees. New DUI laws that go into effect January 1 will only increase these expenses. Read the entire story at http://www.rockymountainnews.com/news/2008/nov/25/cost-of-dui-conviction-10000-plus/.
Friday, June 6, 2008
Governor Signs Criminal Record Sealing Bill
Many people don't realize that any time a person is charged with a criminal offense, regardless of disposition, a record is created in one or more databases and/or archives. This information can show up on background checks for job applications and the like. Governor Ritter this week signed into law HB08-1082, which makes significant changes to the law regarding the sealing of criminal records. Previously, a person could NOT seal the record of a criminal conviction regardless of the offense. The new law makes two important changes in favor of persons with criminal records. First, persons can now petition to seal the record of criminal charges dismissed as the result of a plea bargain in another case after waiting only ten years instead of the previous fifteen. Secondly, and more importantly, persons sustaining actual convictions for petty offenses, misdemeanors, or class 5 or 6 felonies for drug possession charges can petition to seal the record of conviction after ten years following completion of sentence. Please note that this second change applies only to possession charges and does NOT apply to charges involving the sale, manufacture or dispensing of controlled drugs. It also applies to drug offenses only--convictions for all other types of offenses still cannot be sealed. The new law is effective July 1, 2008.
Records can be sealed only upon court order after showing the requisite statutory period has passed, that the petitioner has committed no new criminal offenses in the interim and he/she has satisfied all requirements of sentencing, including payment of all monies owed the court. The ultimate decision whether to grant a petition to seal any criminal record still resides with the court alone and a petition does NOT necessarily mean records will actually be sealed. Issues pertaining to the sealing of criminal records can be complicated and competent counsel should be consulted.
Records can be sealed only upon court order after showing the requisite statutory period has passed, that the petitioner has committed no new criminal offenses in the interim and he/she has satisfied all requirements of sentencing, including payment of all monies owed the court. The ultimate decision whether to grant a petition to seal any criminal record still resides with the court alone and a petition does NOT necessarily mean records will actually be sealed. Issues pertaining to the sealing of criminal records can be complicated and competent counsel should be consulted.
Monday, May 19, 2008
New revocation terms and reinstatement requirements begin January 1, 2009
Last week, Governor Ritter signed HB08-1194, described below, which will, among other things, increase the revocation period from three to nine months for first-time DUI suspects who test over the .08 limit. The new law takes effect January 1, 2009.
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