Bill Would Require Advisement Prior to Consensual Searches and Consent in Writing

HB10-1201, sponsored by State Rep. Karen Middleton (D-42) and State Sen. Pat Steadman (D-31), would require law enforcement officers who conduct consensual searches of persons, their automobiles or premises, to obtain said consent in writing after advising the person that they have the right to refuse such a search. Currently, the law makes no such requirement for officers who conduct a consensual search of a person or his/her property. The written permission after advisement requirement would not apply to searches where the officer is otherwise permitted by law to conduct a search, such as pursuant to a search warrant or incident to lawful arrest.

State legislators seek to increase DUI penaties

The Denver Post reports that State Representative Claire Levy (D-Boulder) will introduce legislation this session that will impose greater minimum-mandatory jail sentences for repeat DUI/DWAI offenders. Per the news report, Levy's bill would increase the minimum-mandatory jail sentence for all second alcohol offenses to ten days and impose a minimum-mandatory 60-day sentence for a third offense. Courts would still have discretion to permit work-release, and home detention would be permissible on second offenses where the previous offense was more than three years in the past. Levy's bill is less-stringent than that considered by Gov. Ritter's Commission on Criminal and Juvenile Justice, which would have mandated 30 days in jail for a second offense. It was also reported that Rep. Cory Gardner (R-Yuma) is introducing legislation that would make a third drunk-driving offense a felony, subjecting the offender to a potential prison sentence rather than county jail.

An overriding concern expressed by county commissioners and sheriffs is that expanded mandatory sentences will greatly increase costs at a time when budgets are strained to their limits. The Post report estimated that expanding mandatory sentences to the levels recommended by the Commission would increase incarceration costs by $20 million statewide, at a time where many counties are scrambling for ways to reduce jail costs, which are estimated at $65-70 per day per inmate. The cost for creating felony DUI convictions, including the requirement for new prisons, was estimated at $107 million in 2008.

The details of these proposed bills will be made public once the General Assembly begins its 2010 session later this week.

'Tis the Season...For DUI Checkpoints

The holiday season means celebration, and law enforcement knows celebration means alcohol consumption. In addition to mid-summer, this is the most common time of year to encounter DUI checkpoints run by state and local law enforcement. The purpose of the checkpoints is to enforce basic traffic laws like ensuring drivers are licensed and vehicles registered and insured, and also to verify that people on the road are driving sober.

Such checkpoints are constitutional, provided they comply with certain guidelines. The means for selecting which vehicles are stopped and checked cannot be arbitrary (i.e. you cannot be selected because of the way you look or the type of vehicle you are driving)...either all vehicles entering the checkpoint must be contacted or they must be selected entirely at random, such as every third vehicle. The checkpoints must be posted so drivers receive notice before they enter the contact zone, and there must be an available route for drivers to detour if they do not wish to proceed through the checkpoint. Of course, these detour routes are also watched by law enforcement and any sign of impairment of the driver (such as weaving, driving excessively slow, slowing or stopping abruptly, etc.) will very likely result in a traffic stop.

If you are contacted during the course of one of these checkpoints, keep in mind that you have the same rights as with any other traffic stop. That means you do not have to make any statement or answer any questions, nor do you have to participate in any roadside sobriety testing. You are required, if requested, to provide your driver's license, registration and proof of insurance. Also keep in mind that if an officer has probable cause to believe you are impaired and requests that you take a test, you have a choice between blood or breath. If you take a blood test, a second sample of your blood must be preserved for independent testing at your request, while no such sample of your breath will be preserved in a breath test. Refusal to take a test or failure to complete a test will result in a one-year revocation of your driver's license with no eligibility for a probationary or restricted license.

Please remember to drive safely and soberly this holiday season, and have a healthy and prosperous New Year!

Governor Reverses Plans to Raid LEAF

A day after the Denver Post reported a move by Governor Ritter to divert most of the money from a special DUI enforcement fund to plug holes in the state's budget, the Governor's office announced that the plan has been scrapped and that the Law Enforcement Assistance Fund will remain intact for use by law enforcement agencies thoroughout the state for dedicated enforcement of drunk-driving laws. The Governor cited numerous concerns by law enforcement as the chief reason for the reversal of the executive order. Details of the Denver Post article may be found at http://www.denverpost.com/ci_13256898.

Governor Seeks to Raid Special DUI Enforcement Fund

Governor Ritter has announced he will seek to permanently divert over $1 million in the state's Law Enforcement Assistance Fund (LEAF) that was started over 25 years ago in order to alleviate a state budget shortfall of $318 million, according to the Denver Post. LEAF funds are distributed to law enforcement agencies statewide to pay for extra DUI enforcement and officer overtime. LEAF is funded by surcharges paid by all persons who are convicted of alcohol-related driving offenses. Most recently, LEAF funds have been used to promote and fund "The Heat is On!" anti-drunk-driving campaign enforcement. The effect of the Governor's action will be the elimination of special or extraordinary DUI enforcement measures by most law enforcement agencies, but don't expect overall DUI arrest numbers to be significantly affected, as there will still be plenty of patrol officers statewide looking for any form of traffic offense, including DUI. The Denver Post article on this matter may be found at http://www.denverpost.com/ci_13249269.

Not All Courts Equal When It Comes to DUI/DWAI Sentencing

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.

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!