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Anonymous Tips in DUI Investigations

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In a decision announced in April of this year, the United States Supreme Court considered whether an anonymous tip of reckless driving, without any corroboration by law enforcement of the alleged reckless driving, could furnish reasonable suspicion of drunken driving thereby making an investigatory of the driver constitutionally permissible.  Under the facts of that case, the Court held that, under the totality of the circumstances, the officer had the requisite reasonable suspicion that the driver was intoxicated, and thus that the traffic stop was constitutional.

On August 23, 2008 in Humboldt County, California an anonymous tipster called 911 and reported that she had been run off the road.  The caller relayed the make and model of the car (a Ford F-150 pickup truck) as well as the vehicle’s license plate.  The caller also relayed on which roadway the vehicle was traveling and the direction in which it was traveling.  A California Highway Patrol officer traveling in the opposite direction passed the vehicle approximately thirteen minute after the 911 dispatch team aired the call, made a u-turn, and stopped the driver after following him for approximately five minutes.  During the time the police officer followed the vehicle the driver committed no traffic infractions.

Ultimately the police officer stopped the driver.  As the officer approached the vehicle he smelled marijuana.  The driver was not intoxicated.  However, a search of the truck bed revealed thirty pounds of marijuana.  The driver and his passenger were arrested and were later convicted of transporting marijuana, for which they sentenced to ninety days in jail plus three years of probation.  On appeal the California Courts held the stop constitutional, concluding that the officer had reasonable suspicion to conduct an investigative stop because the content of the tip indicated that it came from an eyewitness victim of reckless driving, and that the officer’s corroboration of the vehicle’s description, location, and direction established that the tip was reliable enough to justify a traffic stop.

In its majority opinion (authored by Justice Clarence Thomas), the Court began with an examination of the law concerning investigative stops.  The Fourth Amendment permits brief investigative stops, such as a traffic stop, when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  That principle applies to investigative stops based on information from anonymous tips.  The majority then considered the initial question in the case – “whether the 911 call was sufficiently reliable to credit the allegation that petitioners’ truck ran the [caller] off the roadway.”  In concluding that it did, the Court noted that the caller had reported that she had been run off the road by a specific vehicle, thus the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving.  The Court also noted that the timeline of the events suggested that the caller reported the incident soon after she was run off the road.

The Court then turned to the question of whether the tip created reasonable suspicion that “criminal activity may be afoot,” i.e. whether the report of being run off the road created reasonable suspicion of an ongoing crime such as drunk driving.  The Court found that the driving behavior alleged by the 911 caller “viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion” of drunk driving.  The Court reasoned as follows:

The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. Running another vehicle off the road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. See Visual Detection of DWI Motorists 4-5. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object — the exact scenario that ordinarily causes “running [another vehicle] off the roadway” — is likely intoxicated.  As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.

Thus, although conceding it was a “close call,” the majority held that it was reasonable under the circumstances for the police officer to stop the driver.

James Holmes’ Attorneys Motion for New Judge Denied

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The attorneys for accused theater shooter James Holmes filed a motion last week seeking to have the judge assigned to the case, Arapahoe County District Court Judge Carlos Samour, remove himself.  Citing Colorado statutory law and Colorado Rules of Criminal Procedure, the attorney argued that the judge is “prejudiced with respect to the case, the parties, or counsel.”  Specifically, the attorneys argued that “[T]hroughout the course of this litigation, the Court has frequently ruled against the defense.  While it is not unusual for a court to disagree with motions filed by the defense in a criminal case, it is neither common nor necessary for a court to take a tone in its orders that is as hostile and demeaning to defense counsel as the tone this Court has increasingly taken in this case.  Because the language in the Court’s recent orders reflects a heightened level of disdain that demonstrates the Court’s ‘bent of mind’ against the defense, Mr. Holmes believes that good cause exists for filing this motion, and that a change od judge is warranted.”

As examples of what the attorneys believe are evidence of the trial judge’s bias against them, the attorneys cited as examples the judge’s labeling a number of their motions as “frivolous,” the judge accusing the attorneys of “ridiculing the court” and being “satirical,” and referring to their proposed instructions to witnesses offering victim impact evidence as “insensitive, if not downright offensive.”

Not surprisingly Judge Samour denied the motion, finding it “meritless,” stating “[T]hat the undersigned is is straightforward and does not mince words in his ruling is not evidence of bias.”

The motion can be viewed in its entirety here, and Judge Samour’s Order can be viewed here.

Sealing Municipal and Petty Offense Conviction Records in Colorado

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The record sealing statute in Colorado generally bars the sealing of arrest and criminal records when the defendant was ultimately convicted of the charge, or if there were multiple charges the record cannot be sealed unless all charges were dismissed or the defendant was acquitted of all charges at trial.  However, one exception to the general rule precluding the sealing of records of convictions relates to convictions for petty and municipal offenses.

A defendant may petition the district court of the district in which any conviction records pertaining to a petty or municipal offense exist of the petition is filed three or more years after the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision, whichever is later, if:

  1. The defendant has not been charged or convicted for a felony, misdemeanor, or misdemeanor traffic offense in the three or more years since the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision, whichever is later; and
  2. The conviction records to be sealed are not for a misdemeanor traffic offense committed by the holder of a commercial learner’s permit or a commercial driver’s license.

Upon filing the petition the defendant is required to pay the required filing fee and an additional filing fee of two hundred dollars to cover the actual costs related to the filing of the petition to seal the records.  If the court determines that the petition is sufficient on its face and that no other grounds exist for the court to deny the petition, the court is required to set a hearing and the defendant is required to notify the prosecuting attorney and the arresting agency of the hearing.  If the hearing is held and the court finds that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining the conviction records, the court may order the conviction records (other than basic identification information) to be sealed.

Sealing Drug Convictions in Colorado

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The record sealing statute in Colorado generally bars the sealing of arrest and criminal records when the defendant was ultimately convicted of the charge, or if there were multiple charges the record cannot be sealed unless all charges were dismissed or the defendant was acquitted of all charges at trial.  However, one exception to the general rule precluding the sealing of records pertaining to a conviction exists relative to convictions involving controlled substances.

Whether one convicted of a controlled substance offense can have those records sealed depends on the charge to which they plead or were found guilty.  Additionally, the date of conviction determines when the petition to seal can be filed.

If a defendant was convicted of a controlled substance offense after July 1, 2008 and prior to July 1, 2011, a petition to seal those records can be filed ten years after the date of the final disposition of all criminal proceedings or the defendant’s release from supervision, whichever is later.  To be eligible to file a petition to seal the records the defendant must not have not been charged with or convicted of a criminal offense during that time period.  The convictions which may be sealed are any conviction for a petty offense relating to a controlled substance, any conviction for a misdemeanor relating to a controlled substance, or any class 5 or class 6 felony conviction related to a controlled substance.  However, a class 5 or class 6 felony conviction for the sale, manufacturing, or dispensing of a controlled substance, attempt or conspiracy to commit the sale, manufacturing, or dispensing of a controlled substance, or possession with the intent to manufacture, dispense, or sell a controlled substance, cannot be sealed.

Different timelines apply to a defendant who was convicted of a controlled substance offense on or after July 1, 2011.  If the conviction was for a petty offense or a class 2 or class 3 misdemeanor, the petition may be filed three years after the later date of the final disposition of all criminal proceeding against the defendant or the release of the defendant from supervision.  If the conviction was for a class 1 misdemeanor, the petition may be filed five years after the later date of the final disposition of all criminal proceeding against the defendant or the release of the defendant from supervision.  If the conviction was for a class 5 or class 6 felony drug possession offense, the petition may be filed seven years after the later date of the final disposition of all criminal proceeding against the defendant or the release of the defendant from supervision.  For all other drug offense convictions the petition may be filed ten years after the later date of the final disposition of all criminal proceeding against the defendant or the release of the defendant from supervision.

If a petition to seal a felony drug conviction other than a class 5 or class 6 felony is filed and the district attorney objects to the petition the court is required to dismiss the petition.

For any conviction entered prior to July 1, 2008, for which a defendant would otherwise qualify to have the records sealed if they had been convicted between July 1, 2008 and July 1, 2011, the defendant may obtain an order sealing the records  if the prosecuting attorney does not object to the sealing, the defendant pays the prosecutor’s office their reasonable attorney’s fees and costs relating to the petition to seal, the defendant pays the filing fee required by law, and the defendant pays an additional filing fee of two hundred dollars to cover the actual costs related to the filing of the petition to seal the records.

Can Criminal Records on the Successful Completion of a Deferred Judgment on a DUI be Sealed?

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One of the primary benefits for a defendant in entering into an agreement with the prosecutor for a deferred judgment and sentence is the opportunity for the defendant, upon successful completion of the terms and conditions of the deferred judgment and sentence and the withdrawal of the guilty plea, to have the records relative to the case sealed.  However, pursuant to a 2012 decision of the Colorado Court of Appeals, that opportunity is not available to a defendant who has successfully completed a deferred judgment and sentence on an impaired driving offense.

In the case the petitioner (formerly the defendant) was charged with driving under the influence.  Pursuant to a plea agreement with the state she received a one-year deferred judgment and sentence.  She successfully completed the deferred judgment and sentence and her case was subsequently dismissed.  She then sought to have the arrest and criminal records sealed.  The court denied her petition to deal the records.

Under the sealing statute one is eligible to seek the sealing of arrest and criminal records, other than those relating to convictions, in three situations: (1) When the person was not charged, (2) when the person was acquitted, or (3) when the case was completely dismissed.  There are exceptions to the statute, including that the court may not seal criminal records pertaining to a conviction for alcohol and drug-related driving offenses.

The petitioner argued that because she successfully completed her deferred judgment and sentence, which resulted in the dismissal of her case, she did not have a conviction for an impaired driving offense, and thus that the alcohol-related driving offense exception did not apply to her.  In so arguing the Petitioner relied on the definition of conviction in the penalty section of the DUI statute.  That definition provides that a conviction includes “having received a deferred judgment and sentence or a deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.”  Unfortunately for the petitioner the court of appeals disagreed, finding that if the legislature had intended for the definition of conviction contained within the DUI statute to apply to the sealing statute, it would have amended one or the other statute, or both statutes, accordingly.  Thus, the court held that the legislature intended the definition of conviction in the alcohol-related driving offenses exception to the sealing statute to include a successfully completed deferred judgment and sentence.  Consequently, the court held, the petitioner was statutorily ineligible to seal the records pertaining to the successful completion of her deferred judgment and sentence.

The Supreme Court of Colorado has decided to review the decision of the Court of Appeals.   Hopefully Colorado’s highest court will reach the opposite conclusion and hold that because the DUI penalty statute specifically excludes the successful completion of a deferred judgment and sentence from the definition of conviction, one who has successfully completed a deferred judgment and sentence on an impaired driving offense can subsequently have those records sealed.

Tenants and Domestic Violence

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Colorado law provides several protections to residential tenants who are victims of domestic violence.  At the outset, a landlord is forbidden from including in a residential lease agreement any provision authorizing the landlord to terminate the lease or impose any penalty on a tenant for calls made by the tenant to the police for assistance in response to a domestic violence situation.

If a tenant notifies the landlord in writing that he or she is the victim of domestic violence and provides the landlord evidence of domestic violence in the form of a police report written within the prior 60 days or a valid protection order and the tenant seeks to vacate the leased premises due to fear of imminent danger for them or children, the tenant may terminate the lease and vacate the premises.

If the tenant who is the victim of domestic violence does vacate the unit after giving the landlord written notice and evidence of domestic violence, the tenant is responsible for one month’s rent following the vacation of the premises.  The rent is due and payable is the landlord within 90 days after the unit is vacated.  The landlord is not obligated to return the tenant’s security deposit until after the one month’s rent has been paid.  The landlord or the tenant may use any amounts owed to the other to offset costs for the one month’s rent or the security deposit.

Under Colorado law nothing authorizes the termination of a tenancy and eviction of a tenant solely because the tenant is the victim of domestic violence.

Alford Pleas

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The holding in the 1970 U.S. Supreme Court case of North Carolina v. Alford allows one accused of a crime to plead guilty to that crime and consent to the imposition of a sentence even if they are unwilling to admit his or her participation in the acts constituting the crime, or even if the guilty plea is accompanied by a protestation of innocence, when the individual intelligently concludes that his or her interests require a guilty plea and the record strongly evidences the individual’s guilt.  Such a plea is known as an Alford plea.

The question before the Court in the Alford case was whether a court could accept a guilty plea when accompanied by protestations of evidence.  The Court decided that with adequate advisement and an intelligent waiver of rights on the part of the defendant, a court can accept a guilty plea in such situations when there also exists strong evidence of actual guilt.  The showing of strong evidence of actual guilt is the one additional requirement added to the usual requirements for a valid plea.

One potential problem with an Alford plea in driving under the influence cases is the participation by the defendant in treatment.  A defendant who denies factual guilt and is allowed to enter an Alford plea may have trouble with a treatment provider who requires an admission of wrongdoing as a condition of the treatment.

A court that accepts an Alford plea can still sentence the defendant to the same sentence as if straight guilty plea had been entered.  Thus, an Alford plea is the functional equivalent of a guilty plea.

Warrantless Blood Draws in CO DUI Cases

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The United States Supreme Court in the 1966 case of Schmerber v. California held that it was reasonable for a police officer to require medical staff to conduct a blood draw of an injured and visibly intoxicated driver at a hospital after a one-car accident in which the driver’s passenger had been injured.  The Court reasoned that in such a situation where alcohol was leaving the driver’s body and time had to be taken to transport him to a hospital and to investigate the accident “there was no time to seek out a magistrate and secure a warrant.”  Thus, the warrantless draw of the driver’s blood in that case was reasonable.

In the 1984 case of People v. Sutherland the Colorado Supreme Court approved a warrantless blood draw from a driver suspected to be drunk who was involved in a fatal accident.  In approving the warrantless blood draw the Court ruled that such draws were constitutional when prosecution could satisfy the following four-factor test:

  1. There must be probable cause for the arrest of the defendant relative to an alcohol-related driving offense;
  2. There must be a clear indication that the blood sample will provide evidence of the defendant’s level of intoxication;
  3. Exigent circumstances must exist making it impractical to obtain a search warrant; and
  4. The test must be a reasonable one and must be conducted in a reasonable manner.

The Colorado vehicular assault statute and the express consent law provide that when an officer has probable cause to believe that a person driving under the influence has seriously injured someone, the officer may compel that person to give a blood sample without their consent or cooperation.  The applicable language of the express consent statute states that in such a case an officer “shall physically restrain the person for the purpose of taking a blood specimen” when the person refuses to cooperate and the officer has probable cause that the driver committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault.  In a routine driving under the influence case in Colorado, i.e. one which does not involve death or serious physical injury, the police may not physically force a suspect to submit to a warrantless blood draw.

Under Colorado law a drunk driver who has injured or killed someone does not get the choice of whether to provide a breath or blood sample.

Colorado’s Expressed Consent Law

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Under Colorado’s Expressed Consent (EC) Law any person who drives a motor vehicle upon the streets and highways or elsewhere throughout the state is required to take and complete, and to cooperate in the taking and completing of, a test of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the state’s impaired driving laws.  If a law enforcement officer requests a chemical test the person must cooperate with the request in such a manner that the sample of blood or breath can be obtained within two hours of the person’s driving.

Under the EC law one who is over twenty-one years of age or older is entitled to elect between a blood test or a breath test.  Once that decision is made, however, the person is not allowed to change their mind.

If one elects a breath test and the result is .08 or greater the officer will serve that individual with what is called an Express Consent Affidavit and Notice of Revocation.  If one elects a blood test it can take several months to obtain the test results.  If the results come back at greater than .08, the arresting officer is then required to execute the Notice and Affidavit and submit it to the DMV.  The DMV then mails the Notice and Affidavit to the individual.

Once provided with the Affidavit and Notice the person has seven days to request a DMV hearing.  The request must be made in writing at a DMV office.  Requesting a hearing stays the revocation of the individual’s driver’s license until the date of the hearing, which must be scheduled within 60 days of the request.  If the Affidavit and Notice issued as the result of blood test results, the individual has ten days from the date of the mailing of the document to request the hearing.  For those who submit to a blood test it is very important that they ensure the DMV has their current mailing address so that they receive the Notice and Affidavit if the test results come back at greater than .08 in order that they can request the hearing.

If an EC hearing is not requested within the required time frame the individual forfeits all right to a hearing and the revocation of the driver’s license takes effect at the end of the seven-day period (or ten-day period  if the Notice and Affidavit were mailed following a blood test).

A refusal to submit to a breath or blood test does not result in a criminal charge.  However, such a refusal will result in the revocation of the person’s driver’s license if the officer had probable cause to invoke the expressed consent law.  Additionally, a person’s refusal to provide a breath or blood sample is admissible in court.

Colorado’s “Open Marijuana Container” Law

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Most everyone is familiar with the laws prohibiting having an open alcoholic container in a vehicle.  What many people may not know is that Colorado now prohibits a person while in the passenger area of a motor vehicle from knowingly having in his or her possession an open marijuana container.

“Open marijuana container” is defined under the law as a receptacle or marijuana accessory that contains any amount of marijuana that is open or has a broken seal or the contents of which are partially removed.

“Passenger area” is defined as the area designed to seat the driver and passengers, including seating behind the driver, while a motor vehicle is in operation, as well as the area that is readily accessible to the driver or a passenger while in his or her seating position, including but not limited to the glove compartment.

A person who violates the open container law commits a class A traffic infraction and is to be punished by a fine of fifty dollars and a surcharge of seven dollars and eighty cents.