Published on:

zoom-zoomGovernor Hickenlooper just signed Senate Bill 17-027 on June 1, 2017.  This law increases the penalties for texting while driving, however it appears that the elements required to prove a violation have also increased.

CRS 42-4-239 provides that a person under 18 years of age is prohibited from using a cell phone while operating a motor vehicle.  A violation of this provision of the statute is a Class A Traffic Infraction punishable by a $50 fine.  A second violation of this provision remains a Class A Traffic Infraction and carries an increased fine of $150.  1 point will be assessed against an under 18 year old driver’s record for either a 1st or 2nd offense.

CRS 42-4-239 further provides that a person shall not use a cell phone “for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission while operating a motor vehicle.”  A violation of this subsection of the statute is a Class 2 Misdemeanor Traffic Offense (criminal traffic offense) subject to a $300 fine and 4 points against a driver’s record.

If the violation is the proximate cause of bodily injury to another, the classification of the offense increases to a Class 1 Misdemeanor Traffic Offense (criminal traffic offense) and carries a possible penalty from 10 days to 1 year in jail, a fine of $300 to $1000, and 4 points against a driver’s record.

If the violation is the proximate cause of death to another, the classification of the offense is also a Class 1 Misdemeanor Traffic Offense (criminal traffic offense) and carries a possible penalty from 10 days to 1 year in jail, a fine of $300 to $1000, and 4 points against a driver’s record.

The state must be able to prove that a law enforcement officer saw the driver use a cell phone for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission in a manner that caused the operator to drive in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic and use of the streets and highways and all other attendant circumstances, as prohibited by CRS 42-4-1402 (the careless driving statute).

Thus basically, the state must prove the following:

  1. that a person was operating a motor vehicle;
  2. a police officer saw the person use a wireless phone;
  3. for the purpose of texting (or a similar form of manual data entry or transmission);
  4. and that the defendant was driving carelessly.

Clearly the aim of the statute is public safety.  Texting while driving is an extremely dangerous activity that puts lives at risk.  However, there could be much litigation in the courts regarding which violations actually satisfy the elements of the statute.  Many different factual scenarios could emerge.  For instance, what if someone is typing an address into a GPS/Navigation system and is charged under this statute?  A GPS/Navigation is not a wireless phone.  A “wireless telephone” by statute is defined as a telephone that operates without a physical, wireline connection to the provider’s equipment.  It includes, without limitation, cellular and mobile devices.

Another example may include someone entering data into an IPad or Tablet while driving.  An Ipad or Tablet may or may not be construed as a wireless phone.  If an Ipad or Tablet is able to make and receive calls, does it qualify as a “wireless telephone”?  What if someone was clearly using a wireless phone and texting, however he/she was not driving carelessly?  Thus, as long as they’re not driving carelessly is it then “ok” for them to text and drive as much as they want?  What if someone was using a cell phone to play “Pokemon Go” and was driving carelessly.  Does playing “Pokemon Go” satisfy the element of “manual data entry or transmission”?  The factual possibilities are endless.

Continue reading

Published on:

amon-1405220-1A recent Colorado Court of Appeals case involving Kilo the drug sniffing dog held that a dog’s alert alone does not establish the Probable Cause necessary to conduct the search of a vehicle occupied by individuals 21 years of age or older.

Under Amendment 64 of the Colorado Constitution, it is legal for people who are 21 years of age or older to possess up to 1 ounce of Marijuana for personal use.  This amendment went into effect in 2012.

In the case involving Moffat County’s Kilo the drug sniffing dog, a truck was parked in an alleyway and thereafter pulled in front of a house and parked for 15 minutes.  The house that the truck had parked in front of had been searched 7 weeks previously and illegal drugs were found.  When the truck drove away, cops pulled it over because the driver allegedly didn’t use his turn signal.

Upon contact, the cops claim to have recognized the passenger in the truck as a user of Meth.  The cops subsequently turned Kilo loose on the truck and then received an “alert” indicating that drugs were present.  It’s important to note that Kilo is trained to detect Meth, Weed, Ecstasy, Cocaine, and Heroin.  Kilo’s alert means that he detected one of the aforementioned substances but it’s unknown which one or what quantity.  Thus, the alert is simply a generalized alert.

The cops then ordered the occupants out of the truck and searched it.  While searching, the cops found a Meth pipe and charged the driver with possession of the pipe and of a controlled substance.

Previous Colorado cases have held that reasonable suspicion is required prior to a dog sniff search of the exterior of a vehicle.  In other words, the police must have specific and articulable facts to support their belief that the person stopped is involved with or may have been involved with criminal activity.  In determining whether reasonable suspicion exists, courts will look at the totality of the circumstances, the specific and articulable facts, and the rational inferences from those facts.

The driver of the truck attempted to suppress the evidence found in his truck by arguing that Kilo’s sniff of his truck was not supported by reasonable suspicion and that the search of his truck’s contents was not supported by probable cause.

Kilo’s alert indicated that he had detected either an illegal or legal substance.  Since the legalization of Marijuana, a K-9’s alert alone no longer establishes probable cause if the K-9 was trained to detect various drugs including Marijuana.

The result may be different if a K-9 is not trained to detect Marijuana or the occupants of the vehicle are not at least 21 years of age.

Continue reading

Published on:

photo_59583_20160110Colorado law requires all people arrested for any Felony offense to submit a DNA sample in relation to arrests on or after September 20, 2010.  Felony offenses include those charged by complaint, information, and indictment.  It even includes those not arrested who appear in court on a summons.

The law enforcement agency who completes the booking is responsible for the DNA collection process.  If DNA is not collected through the booking process then the Court is required to order the defendant to submit to DNA collection through the investigating agency responsible for the fingerprints in the case.

Law enforcement officers are authorized to use reasonable force to collect a DNA sample and thereafter are required to submit the sample to the Colorado Bureau of Investigation (CBI) for testing.  If a defendant’s DNA sample is already on file with CBI, then the law enforcement agency should not collect a new DNA sample.

Fortunately for those who’ve had their cases dismissed outright, have been found not guilty at trial, resolved their case to a Misdemeanor rather than a Felony offense, or were arrested but never charged, a process exists to expunge the collected DNA.  The process goes through the CBI rather than the Colorado court system.

A written request must be submitted to the CBI including the following information: date of arrest, or other date when the DNA sample was collected, the person’s name, date of birth, and address, the police agency which collected the DNA, a listing of the charges filed, which court the case is in, the case number, and a declaration that the person’s case qualifies for expungement.

Thereafter, the CBI submits an inquiry to the district attorney’s office who prosecuted the case.  Within 90 days after the CBI receives a request to expunge DNA, the CBI shall destroy the DNA and the results of the testing from both the state index system and the federal combined DNA index system unless the CBI receives notice from the district attorney’s office that the person does not qualify to have his/her DNA expunged.

Within  30 days after CBI receives notice from the district attorney’s office or at the end of the 90 day period referenced-above, whichever is earlier, CBI shall notify the person making the request that the DNA has been destroyed and the record expunged or why CBI didn’t destroy and expunge the records.

DNA evidence shall not be used against a person in a criminal case if the DNA was required to be destroyed and expunged or obtained after the deadline for destruction or expungement.

Continue reading

Published on:

photo_13072_20090812-2What are the requirements?  Well that depends.  Adult drivers age 21 and up who have been stopped for a DUI or DWAI offense in Colorado and have either submitted a chemical test of their blood or breath at .08 or higher, or, have refused a chemical test are subject to revocation of their driver’s license.  Out of state residents who are stopped in Colorado are subject to the same revocation process and term as Colorado residents.

The revocation for a 1st offense per se revocation, blood or breath .08 or greater but less than .15, is 9 months.  Colorado residents are eligible to reinstate early after 30 days of no driving with ignition interlock on their vehicle for 8 months.  Early removal of the interlock device is possible after 4 months of 100% compliance.  The specific language of the statute requires that the monthly monitoring reports reflect that the ignition interlock device did not prevent or interrupt the “normal operation” of the vehicle due to breath alcohol.  Further, no tampering is evident, and no other reports of circumvention or tampering exist, and there are no other grounds to extend the interlock requirement.  Thus, in light of full compliance with the interlock, the requirement can be whittled down to just 4 months.

The Department of Revenue will serve a driver with a notice of eligibility for early removal.  If on the other hand, the driver has been compliant and has not received notice of early removal eligibility from the Department of Revenue, then the driver may request a hearing to determine eligibility by contacting the Hearings Division at 303-205-5606.

If the driver submits a blood or breath test result at .15 or greater or refuses a chemical test, the ignition interlock requirement lasts for 2 years following reinstatement.  Colorado labels these drivers “persistent drunk drivers” by statute.  Those who submit a chemical test .15 or greater are eligible for reinstatement as a Colorado resident after 30 days of no driving.  Those who are found to refuse a chemical test are eligible after 60 days of no driving.  There is no temporary or restricted driving privileges available for any drivers during the 30 day or 60 day period of “no driving”.

If a driver who has submitted a chemical test at .15 or greater or refused a chemical test decides not to reinstate his/her license early after 30 days or 60 days of no driving they must still reinstate with ignition interlock for 2 years once they decide to get back on the road again.  Thus, there really is no benefit for a driver who has either refused or submitted a .15 or greater BAC to wait on the sidelines in the hopes of avoiding an ignition interlock requirement.  If they ever want to get their license back in Colorado, thus must have 2 years of interlock.

Some drivers who cannot afford the full monthly cost of ignition interlock are eligible for financial assistance to help pay for the ignition interlock device.  Information on this program may be obtained by contacting Driver Services at 303-205-5600.

Drivers who hold an ignition interlock restricted driver’s license must only drive a vehicle in which an approved ignition interlock machine is installed.  This is sometimes difficult for drivers to adhere to.  An example of a common violation is when a driver’s vehicle is in the shop for repairs and the driver “takes the wife’s car” to work and is stopped for not using a turn signal or other minor traffic infraction.  Thereafter, DMV may revoke the driver’s ignition interlock license for failing to drive a vehicle equipped with interlock.  The revocation will cause a driver to no be eligible to reinstate his/her license for one (1) year or the remaining period of license restraint imposed prior to driver obtaining the interlock license, whichever is longer.  A driver subject to this type of sanction is eligible to request (and should request) a hearing to determine whether or not the license will be revoked and the length of time in which the driver is deemed to be ineligible to reinstate.  Operating a vehicle not equipped with interlock (when the driver’s license requires an interlock equipped vehicle) is a Class 1 Misdemeanor Traffic Offense.

If a police officer stops a driver and thereafter determines that the driver is not driving a vehicle equipped with interlock (and is required to under the terms of their license), the police officer is required to confiscate the driver’s license, file an incident report on a special form provided by the Department of Revenue, and not permit the driver to continue to drive the vehicle not equipped with interlock.

Courts may not accept a plea of guilty to just any reduced traffic offense or infraction for a driver charged with circumventing interlock/driving without interlock.  Courts may only accept a plea to another offense or infraction of the district attorney prosecuting the case is willing to state to the Court that he/she doesn’t have a prima facie case for the interlock offense charged.

Continue reading

Published on:

file000769845610-1024x768Governor Herbert in Utah just signed a bill to lower Utah’s BAC threshold for DUI offenses from .08 to .05.  Utah will be the first state to lower their BAC to this level when the law takes effect in 2018.  It’s noteworthy that Utah was also the first state to lower their BAC from .10 to .08.  Thereafter, the rest of the country followed in their footsteps.  It has been illegal to drive with a BAC of .08 or greater in all 50 states since 2002.

In Colorado, there is a permissible inference that someone is under the influence of alcohol if they submit a chemical test of their blood or breath at .08 or more.  Similarly there is a permissible inference that a person is driving while ability impaired if they submit a chemical test of their blood or breath at .051 BAC up to .079 BAC.  A driver is presumed that they are not under the influence and not impaired if they submit a chemical test of their blood or breath at .05 or less (although sometimes Colorado police officers still charge people with DUI and DWAI even if they submit testing at .05 or less).

Drivers charged with DUI or DWAI after submitting chemical testing reflecting a BAC of .05 or less have the “power of the statute” behind them.  However, often times a DUI defense lawyer must “politely remind” a district attorney prosecuting this type of case as to what the statute reads CRS 42-4-1301.

Also in Colorado, if a person submits a chemical test of his blood yielding a result of 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter of whole blood there is a permissible inference that the person is under the influence of THC- Marijuana.

Thus, people may wonder if Colorado will follow along with Utah and lower their BAC threshold from .08 to .05.

According to an article by Amy Joi O’Donoghue of Desert News Utah, the Utah governor “pointed out that 85 percent of the world’s population currently lives in countries with laws that have .05 percent blood-alcohol limits or less, including France and Italy”.

Some countries even have stricter BAC limits.  China and Colombia for instance have a BAC limit of .02.  Whereas India, Japan, and Taiwan have a BAC limit of .03.

Only time will tell how Utah’s direction with this new BAC legislation will impact other states who may wish to follow in their footsteps.

Continue reading

Published on:

IMG_7083-768x1024As of August 10, 2016, Colorado criminal defendants who have had their cases completely dismissed can go through a quick, streamlined, and simple process to seal their criminal records pursuant to CRS 24-72-702.5.  Dismissals under this statute relate to not only outright dismissals but also acquittals (not guilty at trial), a successfully completed deferred judgment, and a successfully completed diversion.  Cases that were dismissed prior to August 10, 2016 are not eligible for the streamlined process.  Cases that were dismissed prior to August 10, 2016 and are otherwise eligible for a record seal may be sealed under the standard record sealing process pursuant to CRS 24-72-702.

Juvenile records which qualify for an expungement are not eligible for the streamlined record sealing process referenced above.  Juvenile records, if eligible, may be expunged pursuant to CRS 19-1-306.  In Colorado, record “sealing” relates to adult criminal records, whereas “expungement” relates to juvenile records.

The simplified process permits a Colorado criminal defendant to make an oral motion in court to have their records sealed or subsequent to the dismissal by filing a later written motion with the Court.  Under this simplified process, the Court shall grant the request.  This saves the defendant from filing a separate civil action and paying the much higher fee to seal the records.  It also saves the Colorado criminal defendant from the burden of showing that his interest in sealing the records outweighs the public’s interest.  Plus, under this simplified process, the Court does much of the work for the defendant and provides a copy of the Order to Seal to each entity who may have records related to the dismissed action.  The defendant may also provide the Order to Seal to additional entities under the Order.

There is a record sealing fee of $65 related to this simplified process (versus $224 under the standard process).

Continue reading

Published on:

file000496525036-1024x391Colorado law mandates that ignition interlock drivers are required to extend their ignition interlock lease agreements by a period of 12 months when it is reported by their ignition interlock provider that the ignition interlock device has prevented the operation of a motor vehicle in 3 of 12 consecutive reporting periods due to excessive alcohol.  This information is downloaded by the ignition interlock provider and submitted to DMV when it appears that the threshold for a suspension has been met.  Thus, it is critically important to always request a hearing regarding alleged ignition interlock violations.

The suspension process is initiated when DMV sends out a violation notice letter to a respondent indicating that the respondent is alleged to have violated the terms and conditions of the interlock device.  A respondent must then either submit a new ignition interlock lease agreement (with a 12 month extension) by the deadline indicated in the letter.  Or, the respondent must request a hearing on the matter.  A respondent should never simply agree to the ignition interlock extension.  A hearing should always be requested.  At the hearing, the extension may be either rescinded, reduced, or sustained.

A violation must be shown to interrupt or prevent the normal operation of the vehicle in 3 of 12 consecutive reporting periods.

Rolling retests don’t count.  Although an action may be triggered due to rolling retests, theses “fails” should not be upheld at an ignition interlock violation hearing.  Why?  Because they don’t fit the textbook definition of a fail.

The threshold alcohol detection level which triggers a fail is .025 BAC.  This figure is set by the Colorado Department of Public Health and Environment in 5 CCR 1005-3 and is defined as the “setpoint value”.

Many interferents may cause this setpoint value to trigger a “fail” aside from a driver drinking alcohol.  This is a false positive.  Some known causes include mouthwash, windshield washer fluid, contaminants from orthodontics/oral appliances, spicy foods, energy drinks, sweets such as cookies and donuts, mouthspray, chewing tobacco, and many other reported interferents.

It is imperative in ignition interlock violation hearings that the complete interlock reports be acquired from the interlock company and investigated well in advance of the hearing.  Often times due to the sheer number of interlock violation hearings being held the reports are sent out by DMV only a few days in advance of the hearing.  This shortens the time period the respondent has to investigate the reports and prepare for the hearing.  The ignition interlock reports tell a very detailed story of the history of the use of the machine and are vital in defense preparation.

Continue reading

Published on:

file0001882885044-1024x715The burden of proof at an Express Consent Revocation Hearing in a Colorado DUI case is a preponderance of the evidence.  In order to sustain a refusal revocation, the police must show that the respondent was driving or in actual physical control of a motor vehicle (a commercial vehicle also applies) in Colorado on the date alleged.  Secondly, the police must show that they had probable cause to believe that the respondent’s ability to drive was impaired even to this slightest degree and that they requested that the respondent complete a chemical test.  Finally, the police must show that respondent refused to take, complete, or cooperate in the completion of a chemical test of respondent’s blood, breath, saliva, or urine such that the test could be obtained within two (2) hours of driving.

According to the case law a respondent may not refuse a chemical test simply because the police officer requested the test more than two (2) hours after driving.  A reasonable time after driving is sufficient as long as the time is not so remote that it diminishes the evidentiary value of the test.

An Express Consent Revocation Hearing is independent from the DUI criminal case.  As such, often times when a driver is arrested for DUI, he will have two (2) cases pending.  The first is the Express Consent Revocation Hearing (administrative hearing) regarding his driver’s license through the Department of Revenue.  The second case is a criminal DUI case in the county where the action occurred.

Many people are familiar with the Miranda warnings of the police from watching crime television shows or movies.  The warnings encompass the following rights of a defendant: 1) the right to remain silent; 2) anything you say can and will be used against you in a court of law; 3) you have the right to an attorney;  4) if you cannot afford an attorney, one will be appointed for you.  Police officers often advise a defendant of these rights upon arrest.

A problem can arise for the police when they advise a defendant of his Miranda rights before a request to take a blood or breath test.

Specifically, if a defendant is 1) read his Miranda rights; 2) chooses to remain silent and requests a lawyer; 3) the police give the defendant an Express Consent Advisement; 4) the defendant refuses the test because he wants a lawyer; and 5) the police do nothing to alleviate the confusion that they caused.

This scenario appeared in the Calvert case.  In Calvert, a Denver Police Officer observed Mr. Calvert drive his car in an erratic fashion.  Thereafter, the officer observed a strong odor of alcohol and staggering while Mr. Calvert walked.  He was arrested for DUI.  Calvert was subsequently read his Miranda rights and he requested to call his lawyer.  However, the officer refused to let him call his lawyer.

The Denver officer then handed Calvert a form regarding Colorado Express Consent (previously “implied consent”) and asked him to sign it.  Calvert refused to sign until he consulted with his lawyer (as you will recall the officer previously told him that he was entitled to a lawyer).  The police officer alleged that he refused a chemical test and the hearing officer at his driver’s license revocation hearing agreed.

Calvert appealed and won.  The Court found that Calvert was advised of Miranda, requested to speak with his lawyer, and was not advised that he didn’t have a right to speak with his lawyer regarding completing a chemical test.  Therefore Calvert was not held responsible for the refusal because the police failed to advise him that the right to remain silent did not include the right to refuse to submit to the test or the right to consult with a lawyer.

Thus the essential elements for a respondent to potentially avoid a driver’s license revocation sanction after Miranda are the following: a Miranda advisement, request to speak to a lawyer, confusion caused by the police about the right to a lawyer, and a failure of the police to clear up the confusion.

If your alleged refusal contains those elements mentioned above you may have a shot at keeping your driver’s license.

Continue reading

Published on:

fat-young-bud-1024x768Colorado statute 18-1.3-204 provides that medical Marijuana users shall not be prohibited from possessing or using medical Marijuana while on probation.  It appears that this is welcome news for medical Marijuana users.  However, a closer look at the statute reflects two major exceptions to this groundbreaking law.  One of the exceptions provides enormous discretion to the Court to rule against a probationer’s use of medical Marijuana on probation.

The first exception to the law that permits medical Marijuana use on probation applies to those who are sentenced to probation for a conviction under article 43.3 of title 12, also known as the Medical Marijuana Code.

The second exception to the law that permits medical Marijuana use on probation applies to probationers when the Court determines that based on the assessment in Colorado statute 18-1.3-209 a prohibition against the possession or use of marijuana is “necessary and appropriate to accomplish the goals of sentencing” as stated in Colorado statue 18-1-102.5.  This exception grants wide latitude to the Court (and the probation department through their assessment) in determining who ultimately can and cannot use Marijuana on probation.

The assessment referenced above (18-1.3.209) is a substance abuse assessment.  Persons convicted of a petty offense or misdemeanor on or after July 1, 2008 or a felony on or after July 1, 1992 that are sentenced to supervised probation (or a deferred judgment) are required to complete a substance abuse evaluation for alcohol or drugs.

The Court shall order probationers to comply with the recommendations outlined in the alcohol and drug assessment.  If the person is sentenced to supervised probation (or a deferred judgment and sentence), or any other sentence (except straight jail time without probation), the probationer shall be required to comply with the treatment plan as a condition of the sentence.  The probationer is required to pay for the evaluation and treatment recommended unless he or she is indigent.

The goals of sentencing as referenced above include those as outlined in Colorado statute 18-1-102.5.  The first goal of sentencing is to punish the defendant for his/her offense based upon the seriousness of the offense.  Fair and consistent treatment of all offenders is to be considered with the goal of eliminating unjustified disparity in sentences.  Fair warning of the nature of the sentence to be imposed and fair procedures for the imposition of the sentence are also to be considered.

Further goals of sentencing in light of Colorado statute 18-1-102.5 also include deterrence and rehabilitation of offenders through cooperation and participation in correctional programs.  The Court should also consider a sentence, sentence length, and level of supervision in light of the person’s individual characteristics that will reduce the probability that the person will re-offend.

Promotion of acceptance of responsibility and accountability, restoration and healing of victims and the community, and reducing recidivism and costs to society through restorative justice practices are also factors for the Court to consider.

Thus, the bottom line of this fairly new legislation that permits medical Marijuana use on probation appears to be that medical Marijuana patients may be permitted continued use, but only if the Court and probation agree and the probationer is not sentenced for committing an offense defined under the Medical Marijuana Code.

Continue reading

Published on:

file1951276608914-768x1024Colorado’s Felony DUI law is relatively new and went into effect on August 5, 2015.  In Colorado, driving under the influence (DUI), driving under the influence per se (DUI per se) and driving while ability impaired (DWAI) offenses are misdemeanors.  However, under the new law, a fourth offense (of DUI, DUI per se, or DWAI) is now a Class 4 Felony if the current offense occurred after three or more prior convictions arising out of separate cases for DUI, DUI per se, vehicular homicide, DWAI, or vehicular assault.  These five offenses are considered “priors” if they are convictions under the laws of Colorado, the U.S., any state in the U.S., and any territory under the jurisdiction of the U.S.

Some previous offenses do not result in convictions.  Thus if a person is facing a potential Felony DUI, it’s critical to determine whether or not a previous offense actually resulted in a “conviction”.  An example of a DUI charge not resulting in a conviction would be a case that was dismissed.  Another example of a DUI charge that does not result in a conviction would be a successfully completed deferred judgment and sentence.  Under a deferred judgment and sentence a guilty plea to a charge enters, however if the defendant complies 100% with the terms and conditions of the deferred and successfully completes it then the plea is withdrawn and the case is dismissed.  An additional example of a DUI charge not resulting in a conviction is through the trial process whereby a defendant is found not guilty.  Thus, every case that is charged as a DUI or DWAI under Colorado law or the laws of another state does not necessarily result in a conviction.

The punishment for a Class 4 Felony DUI is 2-6 years in prison (exceptional circumstances may lower this presumptive range to 1 year or increase the range to 12 years) if incarceration is the most suitable option in light of the facts of the case.  A fine of $2000 to $500,000 may also be imposed.  A defendant will also be subject to 3 years of mandatory parole.  By law, the Court  must consider the defendant’s willingness to participate in treatment, whether all reasonable and appropriate sanctions have been exhausted, do not appear likely to be successful, or there is an unacceptable risk to public safety.  Thus, in light of the provisions of the new law a defendant may avoid prison time, however the discretion is left in the hands of the Court.

Clearly multiple offense DUIs in Colorado are extremely serious.

Continue reading