Articles Posted in Criminal Law

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automobile-automotive-autumn-228094-1024x683Driving after revocation prohibited in Colorado is a Class 1 Misdemeanor punishable by a minimum of 6 months in jail up to 18 months jail and a fine of $500 up to $5000.  Clearly, driving after revocation prohibited in Colorado is a serious offense.

A driving after revocation prohibited charge occurs when a person who has been found to be a habitual traffic offender at DMV drives a motor vehicle in Colorado.  A separate provision of the statue provides that there is a mandatory minimum 30 days jail to be imposed for a conviction for driving after revocation prohibited (DARP), however the court may suspend the mandatory 30 days jail (or a portion of it) if the person completes at least 40 hours of community service up to a maximum of 300 hours of community service.  A lot of courts and district attorneys seem to not like this provision of the statute.  Many courts and district attorneys believe that jail should be served in all DARP cases and won’t consider community service as a substitute.

A mandatory minimum fine of $3000 shall be imposed in lieu of jail or in addition to jail.   The mandatory minimum fine may be suspended entirely or partially if the person completes 40 to 300 hours of community service.  The court does not have the discretion to place someone on probation for a DARP offense.  If the court agrees to community service instead of jail, the court may vacate a suspended jail sentence upon the person’s successful completion of the community service hours.  If the person does not complete the community service hours (if ordered) the court has to impose the mandatory jail and/or mandatory fine.

In prosecuting the charge, the district attorney’s office has to prove that the driver had “knowledge” of the revocation.  Knowledge it is an essential element of the charge.  The mailing of the notice of the order of revocation from DMV is only prima facie proof of receipt, and it is not conclusive proof.  The district attorney’s office also has to show that the person operated a motor vehicle in Colorado while the order of revocation of the person’s driver’s license as a habitual traffic offender (HTO) was in effect.

Aggravated driving with a revoked license occurs when an HTO driver commits any of the following offenses while driving a motor vehicle: reckless driving, vehicular eluding, hit-and-run/failure to report an accident, and eluding or attempted eluding of a police officer.  Aggravated driving with a revoked license is punishable as a Class 1 Misdemeanor with a minimum sentence of 60 days jail.  It’s important to note that there is no provision in the statute for a person to complete community service in lieu of jail under an aggravated driving with a revoked license charge.  Probation may also be imposed for aggravated driving with a revoked license.

If a person is found to be driving under the influence (DUI), driving under the influence per se (DUI per se), or driving while ability impaired (DWAI) and at the same time driving after revocation prohibited, she will be subject to a separate sentence for each offense.  Probation for the aggravated DARP charge may run concurrent with the DUI/DWAI charge.  Both convictions, if applicable, will be reported on the person’s driving history.

By statute, district attorneys are required to screen all cases where a person is charged with driving under revocation or driving without a driver’s license to determine if the person should actually be charged with the greater offense of driving after revocation prohibited (DARP).  Essentially, the district attorney is required to screen all cases to determine if the person charged has been found to be a habitual traffic offender (HTO) at DMV.  If so, the district attorney’s office is required by law to charge the person under the DARP law.

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code-coding-computer-34676-1024x683In Colorado, it may be possible to be removed from the Colorado sex offender registry even if the out-of-state case resulted in a “lifetime” registration requirement.  Colorado laws regarding registration may be less stringent than some other states.  Sometimes Colorado residents who are required to register (in Colorado) for an out-of-state case simply continue to register even if they are eligible for removal because the are unaware of the laws in Colorado and/or are unsure about the often times intimidating process of petitioning the court for removal.

The Colorado Bureau of Investigation (CBI) maintains a public open access database to search for persons that are required to register as sex offenders in Colorado.  The CBI database provides photographs of the person, information about the offense, the person’s address (including a map), and date of conviction.  Not all persons who are required to register are included in the CBI database.  Specifically, the CBI open access database excludes information regarding persons who are required to register for misdemeanor cases and juvenile cases.

Many local police departments and sheriff’s departments also maintain their own public open access databases regarding persons required to register in their jurisdiction.  Some examples of these online databases include the Denver Police Department, the Larimer County Sheriff’s Office, the Boulder County Sheriff’s Office, and the El Paso County Sheriff’s Office– just to name a few.

The first step in commencing the removal process is to determine if the person qualifies under Colorado law for relief from the registration requirement.  The person must simply qualify under one of the following five eligibility criteria.  1) If the person successfully completed a deferred sentence or deferred adjudication for a case involving unlawful sexual behavior, or the case was dismissed, he/she may qualify if he/she has not been subsequently convicted or adjudicated for another case involving unlawful sexual behavior.

2) If the person required to register was younger than 18 at the time of the offense related to unlawful sexual behavior and has successfully completed a juvenile sentence from the court, he/she may be eligible for removal/discontinuation from the sex offender registration requirement.  Further, he/she must not have been convicted of (or currently have pending) a subsequent case involving unlawful sexual behavior.

3) Misdemeanor unlawful sexual behavior offenses qualify for registration removal after a period of 5 years from the person’s release from the court’s jurisdiction.  He/she must not have any subsequent cases involving unlawful sexual behavior since the termination of the court’s jurisdiction in the case which triggered the registration requirement.  Third degree sexual assault and unlawful sexual contact are excluded from the 5 year waiting period and are subject to the 10 year waiting period indicated below.

4) Class 4, 5, and 6 Felony offenses as well as Misdemeanor third degree sexual assault and unlawful sexual contact offenses are subject to a 10 year waiting period.  In other words, 10 years from the termination of the court’s jurisdiction over the person, or release from the D.O.C. (Department of Corrections) , or release from the Department of Human Services.  Further, the person must not have any subsequent convictions or adjudications for unlawful sexual behavior offenses.

5) Class 1, 2, and 3 Felony offenses are eligible after a 20 year waiting period.  In other words, 20 years from the termination of the court’s jurisdiction over the person, or release from the Department of Corrections or the Department of Human Services.  Further, the person must not have any subsequent convictions or adjudications for unlawful sexual behavior offenses.

Cases which are not currently eligible for sex offender registration removal/discontinuation in Colorado include the following: a) adults with more than 1 conviction or adjudication for unlawful sexual behavior offenses in Colorado or another state; b) sexually violent predators; c) adult convictions for sexual assault, 1st degree sexual assault, 2nd degree sexual assault; d) sexual assault on a child; e) sexual assault on a child by a person in a position of trust; f) aggravated incest; g) incest; h) sexual assault by a psychotherapist against a client victim.

Petitions to be removed from the sex offender registration requirement for an out-of-state case shall be filed in the district court for the county where the person required to register resides.

Notice of the petition to discontinue sex offender registration must be served upon all police agencies with whom the person is required to register (including the out-of-state police agency/agencies, the prosecuting attorney’s office in all jurisdictions where the police agency/agencies is/are located, and the prosecuting attorney’s office who obtained the conviction or adjudication which initiated the registration requirement (i.e. the out-of-state prosecutor’s office that prosecuted the case).

Once all of the procedural requirement have been met, a hearing will be held by the district court to determine whether the person should be permitted to discontinue sex offender registration in Colorado.  Proper preparation for that hearing is critical.

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pexels-photo-236452In Colorado it’s illegal for a driver to drive a motor vehicle when the person knows that their license is “under restraint”.  “Knowledge” of the restraint is an element that the district attorney’s office would have to prove in order to obtain a conviction if the matter were to proceed to trial.  Sometimes the “knowledge” element may be difficult for a district attorney to prove due to various factors such as a driver not receiving a notice of suspension letter in the mail from DMV.  “Knowledge” under this law pertains to actual knowledge of any restraint from whatever source.  “Knowledge” does not mean that the person had to have knowledge of a specific restraint or the length of the restraint.

Colorado’s driving under restraint law applies to persons who are driving under suspension, restraint, denial, and revocation.  Further, this law applies to both residents and non-residents of Colorado.  The violation of this law is a misdemeanor with a maximum possible jail sentence of 6 months and a maximum possible fine of $500 for offenses committed when the person’s license is under restraint, suspension, or revocation for reasons not related to alcohol traffic violations such as driving while ability impaired, driving under the influence, driving under the influence per se, or underage drinking and driving.  This statute specifically notes that this penalty applies to offenses that occurred on or after July 1, 1974.

Under Colorado law, if there is a second or subsequent conviction for driving under restraint whereby the restraint is not due to an alcohol traffic violation and the conviction occurs within 5 years of the previous conviction, the division of motor vehicles (DMV) will not issue a driver’s license to an adult or minor for 3 years after the second or subsequent conviction.  This DMV penalty is in addition to any penalty imposed by the court for the driving under restraint charge.

The penalty is enhanced for those drivers who are convicted of driving under restraint when their license is suspended, revoke, or under restraint for alcohol-related traffic violations.  Colorado considers a restraint due to an alcohol-related traffic offense to be more serious or more aggravated than driving under suspension due to accumulating too many points or not having having insurance, for instance.  The restraint in these types of cases can be entirely or partially due to an alcohol-related traffic offense.  This statute applies to both residents and nonresidents of Colorado and to restraints due to convictions in Colorado for DUI, DUI per se, underage drinking and driving (UDD), and DWAI as well as restraints due to Express Consent Revocations pursuant to CRS 42-2-126, as well as out-of-state alcohol-related traffic offenses.  The mandatory penalty is a minimum 30 days jail up to a maximum of 1 year and a fine of $500 dollars up to $1000 dollars.

A second or subsequent conviction carries an even more enhanced penalty of a minimum of 90 days in jail up to a maximum of 2 years and a fine of $500 dollars up to $3000 dollars.  The minimum 90 day jail sentence is mandatory and the Court does not have discretion to grant probation or a suspended sentence.  In cases where a driver is convicted of driving a motor vehicle under restraint (and the restraint due to an alcohol offense) a driver may avoid the mandatory jail provision if she can show that she had to drive due to an emergency.  This, however does not mean that the driver will absolutely avoid any jail, but rather it simply means that the driver is not subject to mandatory jail.  The possible maximum penalty under this factual situation for a first offense is 1 year with a maximum fine of $1000.  For a second or subsequent offense where it is shown that an emergency necessitated the driving under restraint, there is no mandatory jail, however the court may impose in its discretion jail of up to 2 years and a fine not to exceed $3000.  If the second or subsequent driving under restraint due to an alcohol offense occurs within 5 years after the first conviction, then DMV will further sanction the driver in that she will not be eligible for a driver’s license for 4 years after the second or subsequent conviction.

When there is a verdict or judgement of guilt for an alcohol or non-alcohol related driving under restraint, the Court shall require the driver to immediately surrender his driver’s license issued by Colorado or another state.  Thereafter, the Court shall complete a special form notifying the DMV of the notice of verdict or judgment of guilt and send the driver’s license with this form to DMV.  The law further reads that a person who does not surrender her license to the court commits a separate misdemeanor traffic offense.  Thus it is important for drivers (and the courts) to be aware of this additional surrender requirement.

If a person drives a motor vehicle in Colorado and the restraint is due to an outstanding judgment warrant (OJW), then the penalty is reduced to a non-criminal traffic infraction.

If a person is convicted of driving under restraint whereby the restraint was not initiated by an OJW, the person’s eligibility for a driver’s license at DMV will be extended by one (1) year.  In other words, in addition to the criminal penalties provided by the Court, DMV will also impose a sanction whereby a person will not be eligible to reinstate their driver’s license for a period of 1 year on top of their current eligibility date.  This is a very common issue that surfaces when drivers elect to represent themselves in driving under restraint cases in court.  Sometimes a pro se defendant (a person without a lawyer) will achieve a reduced charge in a driving under restraint case and maybe even avoid jail time.  However, the person soon learns thereafter that because they pleaded guilty to a moving violation during the period of restraint that they will now lose their license for 1 year (and they are not eligible for any kind of “red license” , “work license”, or “probationary license” during this 1 year period).  Thus due to the potential collateral consequences at DMV, driving under restraint cases can be much more complex than simply rushing through the court process to get a plea so that one may return home to catch the last few minutes of Orange is the New Black on Netflix.  Achieving a good resolution in the criminal case is only half the battle.

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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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POLICE-10-763x1024In a recent Colorado Supreme Court case, Davis v. People, Supreme Court Case No. 10SC460, the Court held that:

“[L]aw enforcement officials may testify about their perception of a witness’s credibility during an investigative interview. We hold that such testimony is admissible when it is offered to provide context for the detectives’ interrogation tactics and investigative decisions.”

A witness typically cannot comment on the credibility of another witness. And it is up to the jury to decide which witnesses should or should not be believed. In other words, credibility issues are for the jury.

In Davis v. People, a detective had commented in trial that he didn’t believe a witness he was interviewing and that the “interview” started out conversational and then transitioned into confrontational. The defense attorney objected on the basis that a witness can’t comment on the credibility of another witness. This objection was overruled by the court. The detective witness was essentially given permission to comment on the credibility of another witness to show how and why the “interview” proceeded as it did. The court found this evidence was admissible to show the context for the detectives interrogation tactics and investigative decisions.

Some of the line of questioning objected to by the defense at trial was as follows:

“Q: Now in the early part of that interview when it was less confrontational . . . . was [she] giving you information about the shooting?
A: Not really, no.
Q: All right, and is that one of the reasons why the interview got confrontational?
A: It did.
Q: Can you explain to the jury why it happened that way?
A: Well, I know I didn’t believe and I guess I can–”

The trial court further allowed the following line of questioning:

“Q: Is that one of the techniques you used with [E.W.] as well?
A: It is.
Q: To be candid, in your opinion at the time was it your assessment that she did perhaps have some level of involvement?
A: Yes.
Q: All right, and so after – did you let it be known to [E.W.] that you asked whether she was telling the truth?
A: Yes.
Q: And did you let [E.W] know that you still suspected her of having greater involvement in the crime than she was admitting to?
A: Yes.
Q: All right, and is that sort of at the point where the interview got more confrontational?
A: Yes.
Q: And after the interview got more confrontational, did the information that [E.W.] gave you change?
A: Yes.
Q: And did she give you some information that you were able to subsequently use in the investigation of this case?
A: Yes, she did.”

It’s important to note that under the Colorado Rules of Evidence, CRE404(a), “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” And CRE 608(a) permits evidence of a witness’s character for truthfulness or untruthfulness to be admitted after that character has been attacked. However, the Court clearly found the evidence admissible in this case limited context of an investigative interview.

The Colorado Supreme Court seems to draw a distinction in the Davis v. People case in finding that the detective testifying in the case was not commenting on the veracity of the testimony of the witness at trial. Instead, the detective was commenting on the veracity of the witness during the interviews prior to trial:

“The detectives’ answers referred not to the credibility of the witnesses’ in-court testimony, which determination undoubtedly falls within the jury’s purview, but rather to the detectives’ assessments of the interviewees’ credibility during the interviews conducted prior to trial…[f]or these reasons, we conclude that the detectives’ testimony did not constitute an improper credibility opinion under these circumstances.”
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