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The 13th Judicial District Attorney’s Office in Sterling prosecutes DUI and DWAI cases in Logan County, Colorado.  The year 2019 saw 96 DUI (driving under the influence) cases filed in Logan County and 4 cases filed as the lesser offense of DWAI (driving while ability impaired).  Eleven (11) DUI cases were filed as Felony offenses in Logan County District Court.  Felony DUI offenses may be filed when a person has 3 prior, in a lifetime, alcohol-related traffic convictions.  The district attorney’s office has the discretion under the law to file the offense as either a felony or as a misdemeanor.

The Logan County Sheriff’s Office, the Colorado State Patrol, and the Sterling Police Department are active in DUI enforcement throughout Logan County.  Compared with 2018, the number of DUI and DWAI offenses filed in 2019 increased across the 13th judicial district (Phillips, Morgan, Logan, Kit Carson, Sedgwick, Yuma, and Washington Counties).

DUI cases in Logan County are often initiated through a traffic stop for some sort of alleged traffic violation.  This traffic violation may be something as minor as failing to use a turn signal, having a license plate bulb out, having tinted windows that are too dark, or speeding just a couple miles an hour over the limit.  Other contacts may originate from a REDDI report, a sobriety checkpoint, a traffic accident (many times a single vehicle accident), or what the police like to call “a consensual encounter”.

Upon contact, the Logan County Sheriff’s Deputy, the CSP Trooper, or the Sterling Police Officer will be looking for “indicia of impairment”.  These indicia will often be the “usual indicia” alleged by all police: bloodshot watery eyes, slurred speech, fumbling hand movements, strong odor of alcohol, balance issues, etc.  If an officer claims to observe some or all of these indicia, she will typically ask the driver out of the vehicle for standard field sobriety tests.  Some officers explain that these field sobriety tests are voluntary…and some do not.

These tests may include a walk and turn test, a one leg stand, and a Horizontal Gaze Nystagmus (HGN) test.  Other tests may include an alphabet test, a counting backwards test (often from 57 to 43), a finger to nose test, a Modified Romberg, and a portable breath test (PBT).

Upon arrest, Colorado’s Express Consent is typically next which includes a blood test, breath test, or refusal.  When an officer requests a chemical test in Logan County, the driver (“respondent”) has just 7 days to request a hearing at Colorado DMV, otherwise the driver’s right to a hearing expires on the 8th day.  Logan County DMV hearings are all held via telephone.  The Logan County DUI case is separate from the Colorado Express Consent DMV case, thus it’s important for a driver to know that a Colorado DUI initiates two cases: a criminal case in the courts and a civil case at the Colorado DMV.

The initial contact, the officer’s alleged observations, the field sobriety tests, the blood/breath/refusal, and the civil Express Consent DMV case can all be challenged in Logan County DUI matters.  There is often video and audio evidence available in Logan County DUI cases that may be acquired as part of the defense investigation.

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pexels-photo-1117647Being charged with a DUI can be an incredibly stressful experience.  This stressful experience can be greatly magnified when one is charged with not only DUI, but also with Child Abuse (or multiple counts of Child Abuse), as a result of having a child or children in the vehicle.  A Child Abuse charge in a DUI case typically results from a child being unreasonably placed in a situation that poses a threat of injury to the child’s life or health.

Child Abuse resulting from a DUI comes in a few different forms depending upon the facts of the case.  One of the common forms is a Class 2 Misdemeanor charge whereby the driver is charged with acting “knowingly” or “recklessly” resulting in no death or injury to the child.  If more than one child is present in the vehicle, then the police typically charge multiple counts in relation to the number of children in the vehicle.

A Class 3 Misdemeanor is another common form of child abuse charged in conjunction with a DUI.  The Class 3 Misdemeanor is charged when a person acts with criminal negligence, resulting in no death or injury to the child.

Child Abuse may be charged regardless of whether or not the driver is the parent of the children in the vehicle.  No parental/child relationship is required.  The simple fact that the alleged DUI driver has children in the car is sufficient.  A child is defined under the child abuse statute as someone under 16 years of age.

The penalties increase significantly if a child is injured or dies as a result of the alleged DUI driver’s conduct.  If a person acts knowingly or recklessly and the child dies, an alleged DUI driver will be charged with a Class 2 Felony.  If the person acts with criminal negligence and the child dies, the alleged DUI driver will be charged with a Class 3 Felony.  Similarly, if a child sustains serious bodily injury (SBI) as a result of knowing or reckless behavior, an alleged DUI driver will be charged with a Class 3 Felony.  If the alleged DUI driver’s behavior is a result of criminal negligence and a child received serious bodily injury, the driver will be charged with a Class 4 Felony.

Injuries that are not defined as serious bodily injury will cause a driver to be charged with a Class 1 Misdemeanor if the driver’s action was knowingly and recklessly.  Alternatively, a Class 2 Misdemeanor will be charged if the driver’s action was criminally negligent and resulted in injury to the child (not SBI).

In addition to the penalties for DUI and Child Abuse, a driver will typically also face an investigation by the Colorado Department of Human Services Division of Child Welfare.  A conviction for child abuse may also carry collateral consequences including loss of employment, professional licensing issues, and family law issues including visitation rights and custody.

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new-job-tablet-shows-changing-jobs-or-employmentGreat news for those with criminal conviction records in Colorado! Under recent legislation you might be eligible for a “clean slate”.  You can now seal MANY criminal records in Colorado that previously weren’t eligible (convictions included).

Which records are eligible? A whole pile of ’em.

If your criminal record shows a petty offense or drug petty offense conviction, wait just one year after the final disposition or release from supervision, whichever is later, have no new criminal convictions since then, and you’re eligible. Simple as that.

Gotta Class 2 Misdemeanor or Class 3 Misdemeanor conviction that you’d like sealed?  Maybe you’ve got a Drug Misdemeanor conviction? Your wait is only 2 years after the final disposition date or the release date from supervision, whichever is later.  You may then petition to seal those records.

Perhaps you’ve got a Felony. If it’s a Class 4, 5, or 6 Felony conviction, a Level 3 of 4 Drug Felony conviction, or a Class 1 Misdemeanor conviction your wait is 3 years after the final disposition date or release date from supervision (whichever is later).

Maybe your offense isn’t listed in the above categories?  You still have hope under the new law.  Subject to some limitations discussed below, for all other offenses you may file for a record seal after waiting 5 years from the date of final disposition or release from supervision (whichever is later).

Relief under this new law potentially opens up many opportunities for those with criminal records who previously couldn’t obtain employment, housing, or were generally disadvantaged due to the stigma of a criminal record.

Pay your fines! You can’t seal your records if you still owe court fines, costs, and/or restitution.

There’s no hearing necessary to seal a petty offense or a drug petty offense.  As long as the person has not been convicted of a criminal offense since the date of the final disposition or release from supervision (whichever is later) in the case he/she is requesting to be sealed.  If the motion is sufficient on its face, no hearing is necessary, and under the new law the Court shall order that the records be sealed after the motion is filed.

When a motion is filed to seal a Class 2 Misdemeanor, Class 3 Misdemeanor, or any Drug Misdemeanor, a copy of the motion goes to the District Attorney’s Office for their input.  The District Attorney may or may not object to the motion.  If the DA doesn’t object, and the records don’t pertain to a Victim’s Rights case, and the petitioner hasn’t been convicted of a criminal offense since the date of release from supervision or the date of final disposition of the case to be sealed (whichever is later), the Court shall order the records to be sealed (i.e. “express lane”, no hearing required).  On the other hand, if the DA objects, the matter relates to a Victim’s Rights case, and/or the victim objects, the Court shall set the matter for a hearing.  If there’s a hearing, the Court will decide to grant or deny the motion after essentially considering if the petitioner’s interest in sealing the records outweighs the public’s interest in keeping the records open to the public.  The Court will also need to determine that the petitioner hasn’t been convicted of another criminal offense since final resolution of the case or release from supervision, whichever is later.

Bottom line: there’s no reason to panic if the DA objects.  Obviously a DA’s objection typically doesn’t help the case, however it’s up to the Court to determine if the petitioner’s interest outweighs the public’s.  Showing how the petitioner has been negatively impacted in the past, currently, and will continue to be impacted in the future as a result of the open records can be critical in tipping the scales in favor of the petitioner.  Proper preparation for the hearing is essential in these cases.

When a motion to seal is filed regarding a Class 4 Felony, Class 5 Felony, Class 6 Felony, Level 3 Drug Felony, Level 4 Drug Felony, or a Class 1 Misdemeanor notice of the motion goes to the District Attorney and he/she has the opportunity to object.  If the DA does not object and the case being sealed does not pertain to a Victim’s Rights case, the Court may grant the motion with or without a hearing (it’s up to the Court).  On the other hand, if the DA objects, or the matter relates to a Victim’s Rights case and the Victim requests a hearing, then the Court shall set the matter for a hearing.  The Court will then grant or deny the petitioner’s request to seal the records after determining whether the petitioner has not been convicted of a criminal offense since the final disposition in the case or the release from supervision, whichever is later and whether the petitioner’s interest in sealing the records outweighs the public’s interest.

For all other offenses that don’t fall into the above categories (and not subject to an exception below), the petitioner must provide a copy of the motion to the DA and the matter will be set for a hearing with the Court.  A Court may seal the records if it determines that the petitioner has not been convicted of a criminal charge since the final resolution in the case or release from supervision (whichever is later).  Further, the Court must determine if the petitioner’s interest in sealing the records outweighs the public’s interest in keeping the records open and available.

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Unfortunately, here comes the list of all the records that aren’t eligible for a record seal (the exceptions):

Class 1 or 2 Misdemeanor Traffic offenses, Class A or B Traffic Infractions (for whatever reason the Courts don’t want people sealing traffic cases)

DUI, DUI per se, and DWAI convictions.

Offenses with an underlying factual basis of unlawful sexual behavior.

Child abuse.

Sentences for a crime involving extraordinary aggravating circumstances.

Sentence for an extraordinary risk crime.

Sentence for a crime involving a pregnant victim.

Sentence for a crime pertaining to a special offender.

Sentence for a crime with an underlying factual basis of domestic violence.

Sentence for a criminal conviction for a sexual offense.

Sentence for a crime of violence.

Sentence for a felony crime under CRS 24-4.1-302(1).

Sentence for a felony offense under the Cruelty to animals statute CRS 18-9-202.

Sentence for a Class 1, 2, 3 Felony or a Level 1 Drug Felony.

Sentence for an offense under part 1 of article 6 of title 18.

Sentence for an offense under the identity theft statute CRS 18-5-902.

Sentence for an offense of unlawful termination of pregnancy under CRS 18-3.5-103(4),(5),(6),(7),(8),(9).

Sentence for pandering under CRS 18-7-203.

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That’s the end of the exceptions.  Even though the list of exceptions is lengthy, the good news is that the list of eligible offenses is equally lengthy.  Thus, this new law has the ability to be a real game changer for many hard working people who are hindered by a criminal record.

It’s also worth noting that there’s a “loophole” of eligibility for misdemeanors that aren’t technically eligible for a record seal (whereby you might be able to get it sealed anyway).  If the DA consents to the record seal or if the Court finds by clear and convincing evidence that the petitioner’s need for sealing the record is significant and substantial, enough time has passed that the petitioner is no longer a threat to public safety, and keeping the record open in public is no longer necessary to protect or inform the public, the Court may seal the record.

Now that Colorado has greatly broadened the list of offenses that are eligible for a record seal, the only question that remains is: “why wouldn’t you seal your record?”

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pexels-photo-1550136Governor Polis recently signed into law Colorado’s Vulnerable Road User.  It’s essentially “careless driving on steroids” that carries strict new punishments.  If there is an accident with what is defined as “serious bodily injury”, the alleged violator is subject to stiff new penalties including 12 points against a driver’s license, the possibility of up to 1 year in jail, up to 320 community service hours, restitution for current and future medical expenses, and a mandatory suspended license.  Needless to say, the stakes are very high under this new law.

Although the new law applies statewide, it seems to be especially impactful to traffic in downtown Denver.  When driving through downtown Denver, a driver must be extremely aware of his/her surroundings and account for all of the other drivers and riders on and off the road.  When driving through downtown Denver, a driver can be inundated with the task of not colliding with electric motorized scooters riders, skateboarders, walkers, joggers, rollerbladers, gas moped riders, motorcyclists, hoverboard riders, electric bicyclists, other automobile drivers, and this seemingly never-ending list goes on and on.

The drafters of this new Vulnerable Road User law attempted to incorporate this never ending list of roadway users.  Accordingly, the following persons are defined as “vulnerable road users” if they are lawfully using a public right-of-way, crosswalk, or shoulder of the roadway: motorcyclists, scooter riders, moped riders, roller skaters, inline skaters, skateboarders, sled riders, farm equipment riders, animal-drawn wheeled vehicle users, off-highway vehicle riders, electric personal assistive mobility device users, wheelchair users, baby stroller users, pull wagon users (non motorized), farm tractor riders or users of other vehicles designed for farm use, bicyclists, tricyclists, electrical assisted bicyclists, or users of other-pedal powered vehicles, pedestrians, peace officers outside his/her vehicle performing the peace officer’s duties in a right-of-way, persons riding or leading an animal.

The existing careless driving law is incorporated by reference in the new Vulnerable Road User law.  Thus, if a person drives a motor vehicle, bicycle, electric scooter, low powered scooter, or electrical assisted bicycle 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, he/she is guilty of careless driving.  Thus under the Vulnearble Road User Law, one has to be guilty of careless driving plus serious bodily injury.

So, if you’ve been charged under this new law, what’s your defense?

The possible defenses depend upon the circumstances and evidence in each case. Some examples may include whether or not the prosecutor can prove serious bodily injury.  Perhaps the defendant’s driving wasn’t careless. Maybe the “Vulnerable Road User” wasn’t lawfully using the public right of way, crosswalk, or shoulder.  Perhaps the defendant’s actions were not the proximate cause of serious bodily injury.

What’s serious bodily injury?  According to the statute, serious bodily injury includes a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

If a driver is convicted of Vulnerable Road User, restitution attaches.  This means that a driver can potentially be liable for pecuniary expenses not covered by automobile insurance.  Restitution awards accrue interest if not paid in full when ordered.  Restitution can also include the cost of future medical expenses.

Because the Vulnerable Road User charge is a 12-point Class 1 Misdemeanor Criminal Traffic Offense, a driver is subject to a mandatory driver’s license suspension and up to 1 year in jail.

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auto-racing-558089_1920-1024x683Drag Racing, Speed Contest, Speed Exhibition, and Street Racing charges are becoming more prevalent in both county and municipal courts throughout Colorado.  Law enforcement is really cracking down on this type of activity.  What may start out as a seemingly innocent acceleration with a car next to you at a traffic light can quickly turn into multiple and serious criminal charges with a real possibility of jail and loss of a driver’s license.  Drag racing/speed contest charges are criminal offenses in both county court and municipal court and each drag racing/speed contest charge carries 12 points against a driver’s license, which is significant enough to suspend a license for the accumulation of too many points.

Increasingly, other drivers who witness the alleged “race” are getting involved and completing witness statements, calling 911, speaking to the cops, and are willing to testify against the alleged racers.  Sometimes other drivers even present video of the “races” from the dash cameras in their own vehicles.  Although no one is advocating that street racing is “ok” or acceptable, the police have unbridled discretion to charge street racing/speed contest in some of the most benign situations where a simple revving of the motor and quick acceleration grabs anyone’s attention.  Colorado law on the issue in both county and municipal courts is very broad and covers many activities that one would not typically equate with racing.

This blog post focuses on municipal court.  Most municipal courts follow the model traffic code.  The model traffic code indicates that it’s illegal to engage in a “speed contest”.  A “speed contest” is defined very broadly to include rapid acceleration, exceeding reasonable and prudent speeds for highways and existing traffic conditions, changing lanes to gain an advantage over other “race participants”, and vying for position.  More than one vehicle is not required to be charged with a speed contest under the model traffic code.  In other words a single driver may be charged (no other vehicles are required to be involved) if the police believe that the driver is involved in a race or a time trial.

Speed exhibitions under the model traffic code are defined as operating a motor vehicle to present a display of speed or power.  Simply squealing the tires from a stop or while in motion is defined as “speed exhibition”.  Speed exhibition also includes “burning rubber” (leaving tire marks on the highway or ground), accelerating rapidly, swerving or weaving in and out of traffic, and creating smoke from burning tires.

Placing a barricade on a highway, placing an “obstruction” on a highway, assisting in placing a barricade or obstruction, and participating in placing a barricade or obstruction are all considered to be “aiding and facilitating” in a speed contest or speed exhibition.  These persons are deemed to have committed the actual offense that they are accused of aiding or facilitating.  Thus if “Joe” parks his car down the street to block off one lane of a roadway for a friendly run of “Challenger vs. Tesla”, Joe too can be charged with engaging in a speed contest (as well as the Challenger and Tesla drivers- assuming the cops could catch them).

Interestingly enough, for a 2nd violation of a speed contest or speed exhibition, the court may order the police to place an “immobilizer” on the vehicle involved for up to 14 days (typically a yellow wheel lock/boot).  The 14 days increases to up to 30 days for a 3rd or subsequent violation.  This added immobilizer penalty is in addition to any period during which the vehicle may have been seized during the pendency of the case.  Under the model traffic code, the owner of the immobilized vehicle has to pay $35 per day for the “privilege” of having his vehicle immobilized.  If the owner doesn’t pay for the removal of the boot within 14 days after the end of the “immobilization period”, then the vehicle may be deemed an “abandoned motor vehicle” and could be sold to pay for the past-due boot charges (harsh penalty!).

Further, if the owner grabs a hack saw and cuts the boot off his car (during or after the immobilization period), he could be criminally charged with a Class 2 Misdemeanor Traffic Offense.  If an immobilization device/boot is not available to the law enforcement agency because they simply aren’t equipped with the device or because they currently don’t have enough of them, the Court may order that the vehicle is impounded during the length of the immobilization period.

Speed contest and speed exhibition charges in municipal court have far reaching consequences and should not be taken lightly.  Careful investigation and preparation of these cases is critical to achieving optimal results.

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Revoked out-of-state? Even a lifetime/permanent revocation? Welcome to Colorado!  Colorado has some of the most generous laws in the country in terms of issuing driver’s licenses.  You may be eligible for a Colorado driver’s license even though you have been denied elsewhere.  Perhaps you live in New York and have received 5 or more convictions on your driving record for alcohol/drug driving offenses.  Or perhaps you caught a 10 year revocation in Florida on a 3rd DUI.  Whatever the case may be, if you are a legal Colorado resident, you might be able to get a license here regardless of the revocation imposed out-of-state.

Accordingly, even though a person is under restraint in another state, Colorado might issue that person a driver’s license under Colorado law.  In other words, a Hearing Officer may apply Colorado law to the person’s out-of-state driving record to determine when the person would be eligible for a license in Colorado had the driving violations occurred in Colorado.  If the driver would currently be eligible in Colorado had the violations occurred here, the driver may be issued a license.

“Is this legal?” The simple answer is yes.  “How can Colorado do this, doesn’t Colorado belong to the Driver License Compact?”  Yes, Colorado belongs to the Driver License Compact a/k/a “Interstate Compact” which essentially indicates that Colorado will check “the national list” (National Driver Registry) to determine if a Colorado driver’s license applicant has any outstanding holds from other states.  Colorado motor vehicle will typically advise an applicant to go clear the holds before they may be issued a Colorado driver’s license.  However, Colorado is one of the only states that has an exception to the general rule that out of state holds must be cleared first.  Colorado may issue an applicant a driver’s license after a hearing before the Hearings Division of the Colorado Department of Revenue.  Not all applicants will qualify for this type of driver’s license depending upon the nature of the hold(s) and other criteria the Hearings Division will utilize.

Not all states belong to the Driver License Compact.  Michigan, Tennessee, Massachusetts, Wisconsin, and Georgia are not members.  Some US states will even take action based upon violations that a driver receives in Canada.  These states are New York, Florida, Maine, and Michigan.

The National Driver Registry is what I refer to as the “black list”.  It is a computerized database of drivers who have been convicted of major traffic violations, have been revoked, or have been suspended.  This is the list that may prevent a driver from obtaining a driver’s license.

In Colorado, a driver’s license “revocation” refers to an action where a person’s license is cancelled for a set period of time based upon a conviction for any of the following enumerated offenses: manslaughter or negligent homicide when a motor vehicle was involved, DUI alcohol or DUI drugs, a Felony offense when a motor vehicle was used, leaving the scene of an accident involving death or injury, and other convictions.

If a person applies for a driver’s license in Colorado and thereafter is denied due to an out-of-state hold, the person may contact the state where the hold originated in an attempt to obtain a letter of clearance.  If a letter of clearance is not attainable, then the applicant may request a hearing in Colorado under the Interstate Driver License Compact Rule before the Hearings Division.  Once the Hearings Division receives the request, DMV will obtain the applicant’s out-of-state driver record which will be utilized at the hearing.

In order to qualify for a license in Colorado an applicant with an out-of-state hold/revocation must be able to show that she has not driven for at least one year.  Further, an applicant must be safe to drive in Colorado and it must be determined that the applicant would not endanger others (or property).  The applicant must be a Colorado resident (established by employment, phone bill/utility bill, voter registration, or other documentation that proves that the applicant resides in Colorado).

A reinstatement eligibility date will be determined at the hearing and an applicant should receive credit for any amount of time already served without driving privileges in the home state which issued the revocation.

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element5-digital-645671-unsplash-684x1024If a police officer in Colorado has probable cause to believe that a person’s ability to drive is impaired even to the slightest degree due to alcohol consumption, he will require the person (driver) to submit to a chemical test of either blood or breath.  According to Colorado law, the driver has already consented to this test simply by driving on the roads in Colorado.  An adult driver at least 21 years of age or older has a right to a blood test.

If extraordinary circumstances are present, then a police officer may request that a driver submit to a different test than the one chosen.  Extraordinary circumstances are those which are out of the control of law enforcement.  Examples include, but are not limited to: high call volume affecting medical personnel, power outages, malfunctioning breath test equipment and weather-related delays.  Extraordinary circumstances do not include: a busy workload, inconvenience, a minor delay that does not impact the 2-hour window to complete the test, and routine circumstances within law enforcement’s control.

Absent extraordinary circumstances, a driver may not change his election of chemical test.  In other words, a driver may not select blood and then change his mind to breath or vice versa.  The police officer is required by law to accommodate the driver’s initial selection.  Although the law does not specify sanctions when the police don’t honor the driver’s initial selection, case law has shown that dismissal is appropriate in certain cases.

The purpose of the Express Consent Statute is to facilitate cooperation between law enforcement and drivers in promoting highway safety.  In order to further this cooperation, the law creates mutual rights and responsibilities for the driver and the police.  If a police department has no reasonable protocol in place for completing the driver’s selection of test, then dismissal of the charges has been held in some cases to be an appropriate remedy.  Further, the courts have held that when an officer denies a driver his right to choose between a blood and a breath test that the officer denies the driver the right to establish non-intoxication.  The state may not disregard the statutory rights of drivers with impunity.

Although dismissal of DUI charges against a person has been held to be a drastic remedy, courts appear to be serious about ensuring that the police honor a driver’s selection.  Dismissal has been held to be an appropriate remedy when the police don’t have a reasonable protocol in place to obtain and complete the test under routine circumstances or when the test that the driver selected is not given and there is no good faith effort by the police to follow that protocol.

 

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clarisse-meyer-162874-unsplash-1024x683Probation revocations hearing in county courts in Colorado for DUI and DWAI offenses are typically based upon an alleged new law violation or a “technical violation”.  A new law violation means that the person on probation has been charged (or convicted) of a new offense while on probation.  Standard terms and conditions of probation typically include not receiving any new criminal offenses while on probation.  A new law violation must be proved beyond a reasonable doubt.  Often times probation will file a probation revocation complaint simply based upon a person being charged with a new law violation.  In this case, the Court should “trail” (continue) the probation revocation complaint until after the new law violation case has been resolved.  A probationer should not “admit” to a probation revocation complaint based upon a new law violation while the new law violation case is still pending.

A technical violation, on the other hand, includes violations such as not complying with monitored sobriety (hot UA’s, missed UA’s, dillute UA’s).  Other technical violations may include missing appointments or check-ins with probation, missing Level II alcohol classes (or not enrolling), being discharged from Level II classes, traveling outside of Colorado without permission, not completing community service hours, not paying fines and costs, not completing the MADD victim impact panel, as well as other possible technical violations.

Technical violations must be proven by a preponderance of the evidence (a civil standard).  Technical violations are not required to be proven beyond a reasonable doubt.  Probationers have the right to be released on bond during DUI and DWAI probation revocations.  Other rights of probationers include the right to an attorney, the right to remain silent, the right to know the alleged violations (i.e. to receive a copy of the complaint), and that any admission must be voluntary and not the result of undue influence or coercion.   Probation violation proceedings in DUI cases tend to move very quickly, especially if a probationer has been arrested and released on bond for a probation revocation complaint.  Often times, the Court will request an admission or denial immediately at the bond return date, which does not permit much time for the probationer or defense counsel to investigate and prepare the matter.  If an admission is entered, often times the probationer will be immediately sentenced that same day, however it is possible in some cases for the matter to be continued for sentencing at the discretion of the Court.  Depending upon which county court division the case is assigned to, if a denial is entered the matter might be set as quickly as 7 days.

If a denial is entered, the matter will proceed to hearing where the probationer has the right to confront and cross-examine witnesses against her, testify if she chooses to, receive a copy of the alleged violations and evidence against her, and have a judge determine whether or not probation was violated by a preponderance of the evidence.  A probationer is not entitled to a jury trial on the complaint.

If the probationer remains in custody on the complaint, the hearing must be held within 14 days.  This 14 day limitation also applies in situations where a probationer is arrested by her probation officer.  In that event, the hearing must take place within 14 days of the filing of the complaint.  A probation revocation complaint must be filed before the expiration of probation, otherwise the Court loses jurisdiction in the matter.

If the violation is proven (or violations), the probationer will be resentenced either to probation (typically with a punitive sanction if granted) or to a jail sentence.  If probation is granted, the old probation sentence is revoked and a new probation sentence is granted.  If the probation is not regranted, then probation is revoked and the matter is closed with a jail sentence.  The Court may sentence the person to any sentence available at the time of the original sentencing.

If a complaint contains both technical violations and a new law violation, the Court may not wish to trail the matter until resolution of the new law violation.  In this case, the Court may request an admission or denial simply on the technical violations in the complaint and then proceed accordingly.

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IMG_0524-e1554410181191-768x1024 There were 892 DUI/DWAI cases filed in Larimer County Colorado in 2018.  The average BAC amongst those cases was .154.  DUI and DWAI cases in Larimer County Court typically start in the magistrate arraignment division in Courtroom 1A.  Thereafter they typically proceed to one of the county judge trial divisions in courtroom 3D, 4D, or 5D.  Depending upon the location of the alleged DUI, some of the cases are assigned to county judge trial divisions in courtrooms L1 or L2 of the Loveland court.

If a driver submits a blood or breath test for a DUI/DWAI in Larimer County, there are presumptions or inferences that are established through the results of the blood or breath test at the time of the commission of the offense or a within a reasonable period thereafter.  If a driver’s BAC was .05 or less, the law reads that it is presumed that a driver is not under the influence and not impaired by the consumption of alcohol.  This provision of the statute can be very powerful in fighting a DUI/DWAI charge in Colorado because the law is on the driver’s side.  Many times law enforcement officers will still arrest a driver with a lower BAC of .05 or below.  It’s especially critical for a driver to have legal representation in these types of “lower BAC” cases.

There is a permissible inference that a driver’s ability to operate a motor vehicle is impaired by the consumption of alcohol if a blood or breath test yields a result of .051 to .079.  The permissible inference established by this BAC may also be considered with other evidence to determine if the driver was under the influence of alcohol.

If a driver’s blood or breath BAC is .08 or greater, there is a permissible inference that the driver was under the influence of alcohol.

If a driver’s blood test confirms 5 nanograms or more of THC (delta 9-tetrahydrocannabinol), there is a permissible inference that a driver is under the influence of one or more drugs.

Often times police officers in Larimer County will ask a driver to submit to a preliminary breath test (PBT) on the side of the road.  The results of the PBT, or the driver’s refusal to submit to a PBT, are not admissible in court.  A refusal to take a blood or breath test, a refusal to complete a blood or breath test, or a refusal to cooperate in completing a blood or breath test (upon being advised of Colorado’s Express Consent) however can be used against a driver in a prosecution for DUI or DWAI.

If a driver is a Medical Marijuana Card holder, the fact that the driver has been issued a medical marijuana card cannot be used against the driver in a prosecution for a DUI/DWAI offense in Larimer County or anywhere in Colorado.  Further, the fact that a driver possesses a Medical Marijuana Card is not probable cause for a police officer to require a driver to submit to a blood test.

The Colorado State Patrol, Larimer County Sheriff’s Office, Fort Collins Police Department, and the Colorado State University Police Department are very active in DUI enforcement in the Fort Collins area.

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Colorado Express Consent (DUI) Revocation Hearings must be held within 60 days of the request pursuant to CRS 42-2-126.  The Hearings Division loses jurisdiction over the case after 60 days.  There are a few exceptions to the 60 day time limit such as the unavailability of the law enforcement officer or unavailability of the hearing officer.  However, there are no exceptions for the unavailability of the respondent or respondent’s lawyer.  If the hearing is rescheduled beyond the 60 day time period due to the unavailability of the law enforcement officer or hearing officer, the respondent driver’s temporary permit shall continue until the new hearing date.

Colorado case law has held that a hearing must not only be scheduled, but actually held within the 60 day time period.  In the 1989 Colorado Court of Appeals case of Wilson v. Hill, 782 P.2d 874, the Court held that the department’s failure to hold the Express Consent Revocation hearing within 60 days required dismissal of the action.  If the 60th day lands on a Saturday, Sunday, or legal holiday, the Hearings Division can still hold a timely hearing outside 60 days if the hearing is held by the end of the next business day.  The date the respondent requests the hearing is not included in the calculation of the 60 days.  In other words, the Hearings Division gets a full 60 days after the date of the request to hold the hearing.  Bottom line is that it’s important to always check the date of the hearing to make sure that it’s within 60 days of the request.  If it’s not within 60 days, a motion to dismiss is critical.

Although the hearing must be held within 60 days, there is no statutory requirement that the Hearings Division actually render a decision within 60 days.  Sometimes hearing officers “take matters under advisement” for days or even weeks beyond the hearing before rendering a decision in a case.

A respondent driver must request an Express Consent Revocation Hearing within 7 days of the date of notice (indicated on the Express Consent Affidavit and Notice of Revocation).  It’s important to note that this 7 day period includes weekends and holidays.  Thus, it’s critical for a respondent driver to immediately request an Express Consent Revocation Hearing upon receipt of the Affidavit and Notice of Revocation to avoid any possible miscalculations.

There are some exceptions for timely requesting a hearing within the required 7 days.  These exceptions include when a respondent was unable to make timely request due to lack of actual notice of the revocation or factors of physical incapacity such as hospitalization or incarceration.  If a late hearing request is granted, however, the respondent driver will not receive a temporary permit to drive on up until the hearing.

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