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

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

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

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

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

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

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

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

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

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

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

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file000613238520-768x1024New legislation now permits a respondent driver in a Division of Motor Vehicles Express Consent Revocation Hearing to challenge and litigate the initial contact by the policeman.

Formerly the DMV hung their hat on prior cases which determined that the initial contact could not be litigated at DMV. The tables have now turned and the initial police contact is fair game at DMV.

Under Colorado law, there are three (3) types of police-citizen interactions. Consensual encounters are the first interaction. This is where the voluntary cooperation of a citizen is requested through non-coercive questioning.

The second type of police versus citizen encounter is an arrest. An arrest occurs when a person would consider himself deprived of freedom in a significant way. People v. Milhollin. This is an objective test based upon the facts of each particular case.

If the police-citizen contact was not consensual, the court must then determine the validity of an investigatory stop.

The third type of police versus citizen encounter occurs in the context of an “investigatory stop”. This is most commonly found in the context of a DUI investigation. A three-part test is utilized to determine the validity of an investigatory stop. The first prong is whether the officer had reasonable suspicion for suspecting that criminal activity had occurred or was about to take place. The second prong is whether the purpose of the stop was reasonable in light of the circumstances. The third prong is whether the scope and character of the intrusion was reasonably related to its purpose.

An investigatory stop sits somewhere between a consensual encounter and an arrest. In other words it’s an intermediate form of police involvement or intrusion. It doesn’t rise to the level of an arrest, but it is something more than a consensual encounter.

Investigatory stops were first recognized in the well-known case of Terry v. Ohio. This Terry analysis was adopted by Colorado in Stone v. People. These stops are sometimes referred to as Stone stops in Colorado police/court jargon.

Thus under this new law, the respondent driver (or his attorney) may challenge the validity of the police officer’s initial contact with the respondent driver and the subsequent arrest of the respondent driver. If the initial contact is found to be illegal, a hearing officer should dismiss the Express Consent Revocation proceeding and the respondent driver should not lose his driver’s license.

It’s important to remember that the DMV Hearing in a DUI case is completely separate from the DUI criminal court proceeding in county court. The DMV proceeding is civil in nature and the standard of review is by a preponderance of the evidence. Whereas in the county court criminal DUI case, the standard of proof is beyond a reasonable doubt. Thus, it’s possible to have very different outcomes in the two courts. For example, a driver might lose his driver’s license at the DMV only to be later acquitted of the charges in the DUI criminal court. Or vice versa. Sometimes a respondent driver will keep his driver’s license at the DMV hearing, but be convicted of DUI or DWAI in the criminal court. It all depends upon the facts and circumstances of each case.

Nevertheless, this move (new law) which restores a respondent driver’s right to address an illegal stop or coercive consensual encounter is a huge victory for drivers in Colorado.
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