CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

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Being charged with a DUI in Colorado can be one of the most stressful times a person can go through in life.  Unfortunately, sometimes the stress of a DUI can be greatly compounded by also being charged with possessing a gun while intoxicated.

If you were stopped for DUI, DUI per se, DWAI, or DUI drugs in Colorado and had a gun in your vehicle, you most likely were also charged with “drunk with a gun” or “possessing a weapon while intoxicated”.  The statutory charge is identified as “prohibited use of weapons”, however it’s all the same charge- it’s simply characterized differently in some charging documents.  This charge is a Class 2 Misdemeanor offense and is punishable by 3 months up to to 364 days in the county jail and a fine of $250.00 up to $1000.00.  Whether or not the gun was loaded makes no difference under the statute- a loaded gun is treated the same was as an unloaded gun.  However, the fact that the gun was loaded or unloaded and the proximity of the gun to the driver are certainly factors that may be taken into consideration by a prosecutor in assessing aggravation/mitigation and strength/weaknesses in the case.

If a person is charged with prohibited use of weapons in addition to a DUI charge, the prosecutor must prove certain “elements” of the crime.  The first element is that the prosecutor must show that the person “possessed” a firearm.  This first element can be aggressively challenged by the defense.  Often times possession issues arise from the location where the firearm was found.  Examples include: a firearm locked in a toolbox in the bed of a pickup truck, a firearm located in the center console of the vehicle, a firearm located in the backseat of a vehicle, a firearm located in the glovebox, a firearm in the side map pocket of the door, etc.  Simply having a gun in the vehicle when stopped for DUI does not automatically establish the element of “possession”.  That burden falls on the prosecutor.

“Possession” in People v. Garcia, 595 P.2d 228 (1979) was interpreted to mean the actual or physical control of a firearm.  The  Court further indicated that “interpreting ‘possession’ to mean anything other that actual physical control would thus constitute an inconsistent construction of the statute”.

Secondly, the prosecutor must establish that the person is under the influence of intoxicating liquor or of a controlled substance.  There is no specific blood or breath level indicated in the prohibited use of weapons statute in establishing the requisite element of intoxication.

Possible defenses to this charge may include:

1) The driver of the vehicle was not intoxicated, therefore the prosecutor has not established the intoxication element of the charge;

2) The stop of the driver was illegal;

3) The weapon was found through an illegal search and seizure;

4) The driver did not possess the weapon through actual or physical control.

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pexels-photo-843563-683x1024The walk and turn test is popular among Colorado DUI police officers as a tool they utilize in an attempt to prove intoxication.  The walk and turn test is a divided attention test which divides a person’s attention between balance, memory, and muscle control.  There are two stages to the test: “the instructional stage” and the “walking stage”.  The test consists of a driver listening to a specific set of complex instructions and then walking down a straight line which could be an imaginary line or a real line.  The police officer will then score a driver’s performance on the test based upon 8 “clues” which may be observed.  Scoring on this test is similar to how golf is scored (the more strokes you have in golf, the worse your score is).  In the walk and turn test, the more clues you have the worse score is as well.  The “clues” are as follows: 1) the driver must keep her balance in the starting position during the instruction stage.  If the driver cannot maintain balance in the starting position the driver will be scored as having 1 clue.  2) If the driver starts walking too soon before instructed to start the test, the DUI police officer will assign a second clue for starting too soon.  Thus simply being anxious and starting the test will earn a driver a negative score.

Once the driver starts walking the line, if she stops while walking she will receive another clue/negative score.  The driver must touch each step heel to toe.  If each step is not perfectly heel to toe, the driver will receive a fourth negative mark/clue.  If the driver steps off of the line (even if an imaginary line) she will be scored with her 5th negative marking for stepping off the line.  Don’t use your arms for support like you’re walking a tight rope in the circus during any part of the maneuver.  If you do, you just scored your 6th clue/negative mark.

A driver must listen carefully to the instructions regarding the complicated turn at the end of the initial 9 steps.  For this turn, the driver must keep her front foot flat on the line and turn taking several small steps with the other foot.  This is not a normal way for a human being to turn around.  It’s a very complex turn that has to be performed exactly the way the police officer describes it.  If the turn is not perfect for the police officer the driver will score her 7th negative mark/clue.  Lastly, the driver must not try to earn extra credit by completing more (or less) than 9 steps.  If a driver does, she will be scored with the 8th clue/negative mark for taking an incorrect amount of steps.

If a driver doesn’t pay extreme attention to the complex set of instructions from the police officer, she will likely fail miserably.  Nervousness, footwear, confusion, the ground surface for the tests, wind and weather, a person’s age and physical abilities, and poor instructions can all be factors that come into play in performance on these tests.  Many people seem to especially have difficulty in staying in the instructional position, not starting the test too soon, and turning around correctly after the 9th step.

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DUI, DUI per se, and DWAI charges in Adams County Colorado are heard in the Adams County Justice Center at 1100 Judicial Center Drive, Brighton, Colorado 80601.  There are several different trial divisions that preside over DUI, DUI per se, and DWAI cases in Adams County.  Accordingly, your case could be assigned to any of the following trial divisions: Division 2, Judge Bowen, Division 3 Judge Cox, Division 4, Judge Roybal, Division 5 Judge Dang, Division 6 Judge Flaum, Division 7 Judge Howell, or Division 8 Judge Kirby.

Adams County DUI Lawyer Monte Robbins aggressively fights DUI charges in Adams County Court and at the DMV license revocation hearing.  If you submitted a breath test or allegedly refused chemical testing in your Adams County case you must request an Express Consent Revocation Hearing at any full service DMV office in Colorado.  This request must be made within 7 days of the stop.  The agent at DMV will ask you whether or not you want the police officer present at your hearing.  Strategy comes into play when making this request thus it is a good idea to speak with an experienced Adams County DUI defense attorney before requesting your hearing.  Any driver who is presented with an Express Consent Affidavit and Notice of Revocation should make the request for hearing regardless of whether the person lives in Colorado, is out of state, or has a valid driver’s license.  The Express Consent Revocation Hearing can be a valuable tool in further investigating the Adams County DUI case.  It’s important to keep in mind that the driver’s license case is a separate civil case from the criminal case in Adams County Court.  Thus, a person charged with DUI in Adams County will have 2 cases proceeding at the time time: civil and criminal.  Adams County Drunk Driving Lawyer Monte Robbins will fight for you in both the criminal and civil case.

If you submitted a blood test, you must monitor your mail for a notice from the Colorado Department of Revenue with the results of the blood test.  If the blood test resulted in an alcohol level of .08 or greater, the driver must request a hearing at any full service DMV office before the deadline indicated in the letter.  Upon requesting the hearing, the driver will surrender his physical driver’s license in exchange for a temporary permit that will be valid up until the date of the hearing but not to exceed 60 days.

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IMG_3374-1024x768The Denver Police Department investigates thousands of hit and run cases annually, with an average of 446 hit and run investigations per month.  Hit and Run charges are serious offenses and should not to be taken lightly.  The police often charge multiple counts of hit and run in a single case and each hit and run charge carries the possibility of jail time and the suspension of a driver’s license.  The Denver Police Department has a specific division dedicated to handling hit and run charges.  This division is the Denver Police Department Traffic Investigations Unit located at 3381 Park Avenue West in Denver.

The Traffic Investigations Unit aggressively investigates hit and run cases and uses varying techniques to identify suspected hit and run drivers.  One of these techniques utilizes information from body shops, whereby certain body shops partner with the Denver Police Department to receive alerts about suspected vehicles involved in hit and run accidents.  The body shop may then contact the Traffic Investigations Unit to report that an alerted vehicle is at the body shop for repairs.  Another technique involves sending a seemingly innocent template letter to an owner of a suspected hit and run vehicle, whereby the owner (or driver of the vehicle at the time of the accident) is invited to the police department for a “vehicle inspection”.  Make no mistake about it, this vehicle inspection is in reality a stage of the process in a criminal investigation.

There are several hit and run crimes which may be charged in a single case.  Whenever a driver is involved in an accident, she has a duty under the law to give her name, address, registration of the vehicle driven, and to show her driver’s license upon request to the other person involved.  Further, she has an obligation to give reasonable assistance to any person injured (including carrying or making arrangements for the carrying of the person to a medical facility if requested by the person or if it is apparent that medical treatment is necessary).  In addition to providing the required information and assistance, a driver is required to immediately report the accident to the police.  If a driver violates any of these provisions, she may be charged with failing to comply with the duty to give notice, information, and aid in an accident, a Class 2 Misdemeanor Traffic Offense, and a 12-point driver’s license offense.  Because a driver 21 years of age and older will be suspended if she accumulates 12 points in a 12 month period, a conviction for any hit and run charge will absolutely suspend a driver’s license.

If only property damage occurs and no injuries are involved in the accident, a driver must immediately stop his vehicle at the scene of the accident (or as close to the accident scene as possible and immediately return to) and remain at the scene of the accident.  In addition to remaining at the scene, the driver must comply with providing notice, information, and aid and to report the accident to the police.  If the driver does not do this, he may be charged with failing to comply with his duty in an accident involving damage.  This offense is also a Class 2 Misdemeanor Traffic Offense and 12 points.

Under Colorado law, drivers have a duty to immediately report accidents to the police regardless of how minor the accident may be or if no one is injured.  This duty includes giving notice of the location of the accident, the name of the driver, the driver’s address, the registration number of the vehicle, and driver’s license information.  Upon reporting the accident and providing the necessary information, the driver must remain on scene of the accident when directed to until the police have arrived on scene and completed their investigation.  If a driver violates this law, he will often be charged with failing to comply with the duty to report accidents, a Class 2 Misdemeanor Traffic Offense, and 12 points.  The penalty for a Class 2 Misdemeanor Traffic Offense is 10 days to 90 days in jail and a fine of $150 to $300.

In addition to hit and run charges, the police will often assess fault in the accident by charging either careless driving or reckless driving.  Careless driving in Colorado is a Class 2 Misdemeanor Traffic Offense and 4-points if no injury results.  If injury results, careless driving is a Class 1 Misdemeanor Traffic Offense.  Reckless Driving is a Class 2 Misdemeanor Traffic Offense and 8-points.  In light of the police’s ability to stack numerous hit and run charges into a single case in addition to assessing fault through either reckless driving or careless driving, it’s easy to see how quickly one’s freedom and livelihood can be at stake, even if no injury resulted or if the accident was relatively minor.  The penalty for a Class 1 Misdemeanor traffic offense is 10 days up to 1 year in jail.

If injury or death results in a hit and run accident, the stakes are much greater.  If injury results from the accident, a driver may be charged with a Class 1 Misdemeanor Traffic Offense.  “Injury” is defined as any impairment of physical or mental condition, physical pain, or illness.  If Serious Bodily Injury results, a driver may be charged with a Class 4 Felony.  Serious bodily injury is defined as an injury that occurs at the time of the actual injury (or at a later time) and involves 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 2nd or 3rd degree, a substantial risk of death, or a substantial risk of serious permanent disfigurement.  If death results, a driver may be charged with a Class 3 Felony.  Further, all three of these offenses will result in the mandatory revocation of a driver’s license at DMV.  The penalty for a Class 3 Felony is 4 to 12 years in prison and 5 years parole.  A Class 4 Felony carries a penalty of 2 years up to 6 years in prison and 3 years of parole.

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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.  Sterling, Logan County DUI Attorney Monte Robbins can assist you in evaluating all the evidence in your Logan County DUI case and developing a comprehensive approach to the case.

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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: “if your record is eligible, why wouldn’t you seal it?”

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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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