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file00059914429Picture yourself enjoying Colorado’s blue sky and sunshine and reaching into your mailbox to find this little “gem”:

Colorado Department of Revenue records indicate that your ignition interlock device has prevented the operation of a motor vehicle in three of twelve consecutive reporting periods due to excessive blood alcohol content.  In accordance with CRS 42-2-132.5 the period of your driver license interlock restriction is hereby extended for an additional one (1) year from the current expiration of your restriction.  If we do not receive a new lease agreement by the Order of Suspension effective (date indicated in letter) through the extended restricted licensing period, your privilege to operate a motor vehicle in Colorado will be suspended.  If suspended, you must immediately surrender any driver licenses and/or permits in your possession to any driver license office.”  [Credit to: Colorado Department of Revenue, Driver Control Section, Colorado Division of Motor Vehicles, Standard Letter to Respondent, Letter# dL408 (2017)]

What should you do? Panic?  Ask you neighbor for advice?  Sign-up for another year with that damn interlock machine?  The answer is no, no, and no.  You should immediately request a hearing.  As of the date of this blog post, DMV ignition interlock violation hearings are backlogged  6-8 weeks just to receive a Notice of Hearing letter and you must first secure a spot on a waiting list.  As soon as your name appears at the top of the waiting list, the Hearings Division will mail you a Notice of Hearing letter setting the hearing.  Most of the hearings anymore are held via telephone.  If at all possible an in-person hearing is typically better than a telephone hearing.  However more and more hearings are being scheduled telephonically and a Respondent may not have a choice.  If a hearing is requested, the Hearings Division may postpone the effective date of the extension until after the hearing.  It is vitally important for a Respondent to clarify this information with the Hearings Division and determine the status of the driver’s license until the hearing.

What does 3 out of 12 reporting periods mean?  This can be confusing.  A “reporting period” is a month, and is defined the Code of Colorado Regulations as the first and last days of a calendar month.  The violations must occur in 3 out of 12 consecutive months.  The 12 months must be consecutive, the 3 months reporting violations do not need to be consecutive.

What is “excessive blood alcohol content”?  Excessive alcohol content for purposes of the ignition interlock machine means a BAC of .025 or greater.

How does DMV monitor the ignition interlock device?  At least every 60 days, a driver must have the interlock device inspected by the interlock company.  There are 4 ignition interlock companies approved in Colorado at the current time:  Guardian, Intoxalock, #1 A LifeSafer of CO, and 1A Smart Start, Inc.  At this inspection, the interlock company will download the data records and forward them to DMV.  An interlock provider is supposed to notify a driver at the time of inspection if there are any violations.  However, a failure of the interlock company to advise a driver of any violations will not win an ignition interlock violation hearing for a Respondent.

What if a driver gets their regular unrestricted license back before violations are reported to Colorado DMV- can Colorado DMV still cause an ignition interlock extension?  The short answer is yes.  Even if a driver gets their unrestricted full privileges back, they can still be subjected to an ignition interlock extension for violations that occurred before the driver got their license back.

According to the Code of Colorado Regulations, if there is evidence of circumvention of an interlock device, an ignition interlock company will file a report of circumvention to the Colorado Department of Revenue.  If a police officer detects circumvention of the interlock device, he/she may file a report with the Colorado Department of Revenue and may file criminal charges in the appropriate county court.

The sole issue at a hearing for an extension of an ignition interlock period is whether “lockouts” occurred in 3 of any 12 consecutive reporting periods, and if proven, to then determine the length of the extension.

A Hearing Officer may determine the following as “aggravating factors” in determining an extension period: 2 or more lockouts in 1 month, a prior extension for lockouts, a pattern of readings consistent with attempted drinking and driving, any BAC readings of .05 or higher, lockouts in more than 3 of the 12 consecutive months at issue, and any lockouts in the last 6 months of an ignition interlock lease agreement.

A Hearing Officer may determine the following as “mitigating factors” in determining an extension period: any factors the driver may submit in mitigation (obviously this is very subjective), attendance at alcohol treatment after the last lockout, only 1 lockout in each of the 3 months and no lockouts in any other months at issue, more than 1 year remaining of the interlock requirement, and alcohol readings subsequent to the last lockout indicating that the driver walked away from the vehicle and did not re-attempt to start it after consuming alcohol.

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various-abusive-drugs-1194938Before Colorado law enforcement searches a person’s premises, auto, or person, law enforcement may question the person as to whether or not the he/she has a needle or syringe that may prick/puncture/poke/stick the officer.  Law enforcement may also inquire as to whether the person has a needle or syringe on their premises or in their automobile.  If the person responds affirmatively or voluntarily tells law enforcement that he or she has a needle or syringe on their person, on their premises, or in their vehicle, prior to an officer’s search, assessment, or treatment, then the police officer shall not arrest or charge the person for the needle or syringe.

Similarly, the police officer shall not arrest or charge a person for unlawful possession of a controlled substance for any small/minuscule/residual amount of drugs that may be present in the used needle or syringe.  Further, the district attorney for the Colorado county where the incident occurred shall not charge the person for the needle or syringe or any small amount of drugs that may be contained within the needle or syringe.

However, the findings of the search may be used by the police to establish probable cause or reasonable suspicion for a criminal offense assuming that the original stop or search was legal.

A person shall not be charged with possession of drug paraphernalia or small amounts of drugs contained within a needle or syringe when asked by emergency medical personnel, or other first responder, if the person possesses a needle or syringe that may poke/stick/puncture/prick the medical personnel or first responder in advance of treating or assessing a person.  If the person discloses the needle or syringe in answer to the first responder or medical personnel’s inquiry, or voluntarily discloses prior to any inquiry, then the person qualifies for the “no charges provision” of this statute.  Identically to the law enforcement searches referenced above, the district attorney shall not charge a person with possession of drug paraphernalia, or a small amount of drugs within a needle or syringe, who discloses the existence of a needle or syringe prior to assessment or treatment by medical personnel or first responders.

Clearly the aim of the statute is law enforcement/medical personnel/first responder safety.  This is a good law that doesn’t punish a person who discloses the existence of a needle or syringe and protects law enforcement/medical personnel/first responders from potentially dangerous drug paraphernalia.

If a person is found guilty of possession of drug paraphernalia in Colorado, he or she will have a record of conviction for a drug petty offense and be punished by a fine of not more than $100.

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lucas-county-courthouse-1525150Starting August 9, 2017 some people charged with domestic violence offenses or stalking will not be eligible for bail/bond under a new Colorado law.  As noted in the title of this post, the law only applies to some specific domestic violence and stalking cases.

Colorado House Bill 17-1150 modifies CRS 16-4-201.5, which pertains to a person’s right to post a bail after a conviction enters.  In other words, a person’s right to be free on bond, after entering a plea or after a finding of guilt at trial, while awaiting sentencing or appeal.  The new law carves out exceptions to a person’s right to be free on bond.

The first exception applies to a person who has entered a plea of guilty or who has been found guilty at trial of a Class 5 Felony act of domestic violence in violation of CRS 18-6-801(7).  This particular Colorado statute relates to a person who has 3 or more prior domestic violence offenses (a/k/a “habitual domestic violence offender”) arising out of separate criminal episodes that were independently brought and tried.  In other words, 3 separate cases.  The 3 prior convictions must be set forth in the Felony information or indictment in the current case.  The “3 priors” threshold includes state, federal, and municipal court cases.  Felony, misdemeanor, and municipal court convictions all qualify as a “prior convictions”.

The second exception to bail under the new Colorado law applies to a 2nd or subsequent offense for stalking within 7 years of a prior conviction for stalking.

The third exception to bail applies to a stalking case when a protection order (temporary or permanent), bond condition, injunction, probation condition/requirement, parole condition/requirement or other court order was in place at the time of the offense that protected a victim.

These 3 new exceptions to bail in Colorado were added to a list of other offenses that similarly don’t qualify for bail awaiting sentencing or appeal such as murder, a crime of violence in violation of CRS 18-1.3.406, certain sexual assault offenses, a felony offense wherein a firearm was used, and other offenses enumerated under CRS 16-4-201.5.

This new law regarding exceptions to bail in Colorado for certain offenses starts on August 9, 2017.

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booze-1481628-1024x768New, enhanced, tougher DUI penalties for 4th, 5th, 6th or more DUI offenses in Colorado start on August 9, 2017 pursuant to House Bill 17-1288.  The new law requires a person convicted of a Felony DUI, DUI per se, or DWAI who is sentenced to probation to serve a minimum period of straight time jail or work release/education release.  The minimum period of straight time jail is 90 days up to a maximum of 180 days as a condition of any probation sentence granted.

In the alternative, if the Court grants probation for a person convicted of a 4th or subsequent Felony DUI, DUI per se, or DWAI, he/she must serve a minimum of 120 days up to a maximum of 2 years of jail with work release or education release authorized.  This provision applies only to counties that have jails that support work release and education release.  The statute further indicates that work release may only be authorized for people who have established employment at the time of sentencing.  Education release may only be authorized for those who are enrolled in an education program at the time of sentencing.  No other sentencing alternatives are authorized (i.e. in home detention, weekends, or mid-weeks), however release for medical treatment may be authorized.

Prior to this new enhanced law, there was no minimum mandatory period of jail to be served as a condition of probation.

Further, 48 hours of community service up to 120 hours are required.

If a person is not granted probation and is instead sentenced to prison (the Department of Corrections) for a Felony DUI, DWAI, or DUI per se, the Court must determine that incarceration is the most suitable option given the facts and circumstances of the case.  The Court shall consider the person’s willingness to participate in treatment and whether all other reasonable and appropriate sanctions and responses to the violation have been exhausted.  The Court must further determine that all other reasonable and appropriate sanctions and responses either present an unacceptable risk to public safety or do not appear likely to be successful if tried.

Probation, rather than prison time, may be authorized when it appears that the ends of justice and the best interests of the defendant and public will be served.  The length of the probation term is left at the discretion of the court.  By statute, the length of the probation may exceed the maximum period of incarceration authorized by statute.

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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.

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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.

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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.

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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.

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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.

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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).

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