Denver DUI Attorney Blog

Driving Under Restraint, Suspension, or Revocation in Colorado in 2018

Published on: March 14, 2018 | by Monte J. Robbins, Esq.

In 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.

The Complicated Law of Sealing Drug Convictions in Colorado that Occurred On or After July 1, 2011

Published on: March 6, 2018 | by Monte J. Robbins, Esq.

Although it’s now possible under Colorado law to seal certain drug convictions that entered on or after July 1, 2011, determining eligibility and navigating the process can very complex. Different rules apply depending upon when the conviction entered. There are three (3) “main groups” of rules for sealing drug convictions which are separated by the year of conviction. The first group applies to convictions which entered before July 1, 2008. The second group applies to convictions entered between July 1, 20018 and June 30, 2011. The third and final group applies to convictions that occurred on or after July 1, 2011.

The following types of drug convictions are eligible for a record seal if the conviction occurred on or after July 1, 2011. The petition should be filed in the district court of the district where the conviction occurred. If the drug conviction is a “petty offense” or a “class 2 or 3 misdemeanor” in article 18 of title 18, CRS, a petition to seal may be filed 3 years after the release of the person from supervision (i.e. supervised or unsupervised probation, etc.) or the final disposition of all criminal proceedings against the person, whichever is later.

“Class 1 misdemeanor” convictions pursuant to article 18 of title 18, CRS may be filed 5 years after the date of final disposition of all criminal proceedings or the release of the person from supervision, whichever is later.

“Class 5 and Class 6 felony offenses” are eligible to be filed 7 years after the person’s release from supervision or 7 years after the date of the final disposition of all criminal proceedings against the person, whichever is later. These provisions thus far seem pretty straightforward, but here’s where it gets tricky. Class 5 and 6 felony offenses are eligible if they are described in 18-18-403.5, CRS as they existed prior to October 1, 2013. Class 5 and 6 felony offenses not listed in 18-18-403.5, CRS are eligible if listed in 18-18-404, CRS or 18-18-405, CRS as they exited prior to August 11, 2010.

A petition may be filed 10 years after the release of the person from supervision or the date of the final disposition of all criminal proceedings against the person, whichever occurs first for “all other offenses listed in article 18 of title 18, CRS”.

Now things get even more complicated. The categories of eligible offense do not stop with petty offenses, class 2 or 3 misdemeanor offenses, class 5 or 6 felony offenses, and “all other offenses in article 18 of title 18, CRS”. A separate subset of rules applies to offenses which are categorized under the law as “drug offenses” as follows.

Petitions to seal “petty drug offenses” in article 18 of title 18, CRS may be filed one (1) year after the release of the person from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 2 drug misdemeanors” in article 18 of title 18, CRS may be filed 5 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 1 drug misdemeanors” in article 18 of title 18, CRS may be filed 5 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 4 drug felonies” may be filed 7 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “all other felony drug offenses” in article 18 of title 18, CRS may be filed 10 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

A petitioner who files a petition to seal a “petty offense” is ineligible for a record seal if she has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later. The possibility of the district attorney’s office objecting and weighing the factors in 24-72-704(1)(c) is not indicated in the provision of the statute relating to a “petty offense”.

A petitioner who files a petition to seal a “class 1, class 2, or class 3 misdemeanor in article 18 of title 18, CRS” is similarly ineligible under current law if she has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later. Additionally, the district attorney’s office must determine whether or not it will object to the petition in light of the factors in 24-72-704(1)(c), CRS. These factors include whether the petitioner’s interest in sealing the records outweighs the public’s interest in retaining the records in the public domain, the severity of the offense to be sealed, the criminal history of the petitioner, the number of convictions and the dates of the convictions to be sealed, and the government’s interest in retaining the records.

If a petition is filed to seal class 5 or class 6 felony possessions offenses as indicated in 18-18-403.5, CRS (as existed before October 11, 2013) and as indicated in 18-18-404, CRS and 18-18-405, CRS (as existed prior to August 11, 2010), the district attorney’s office must determine whether or not it will object to the petition after considering the factors in 24-72-704(1)(c). A petitioner is ineligible if he has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.

Similarly, if a petitioner files a petition to seal any other offense listed in article 18 of title 18, CRS, the district attorney’s office may object to the sealing utilizing the factors in 24-72-704(1)(c), CRS and the petitioner must not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later. Unfortunately, for these types of offenses, the district attorney has the absolute power to object to the petition and block the sealing of the record. Accordingly, if the district attorney objects, the court shall dismiss the petition.

When a petitioner files a petition to seal a “drug petty offense” in article 18 of title 18, the petitioner must not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later. The possibility of the district attorney’s office objecting and weighing the factors in 24-72-704(1)(c) is not indicated in the provision of the statute relating to “drug petty offenses”.

The possibility of the district attorney objecting, the balancing test for the court, the factors enumerated under 24-72-704(1)(c), and the requirement that the petitioner not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later, all apply to the following offenses to be sealed. These offenses include: “level 1 or 2 drug misdemeanors in article 18 of title 18, CRS” and “level 4 drug felony possession offense”.

With regard to “any other felony drug offense in article 18 of title 18, CRS”, the district attorney has the absolute power to object to the petition and block the sealing of the record. For these remaining offenses, if the district attorney objects, the court shall dismiss the petition.

Sealing Drug Convictions in Colorado that Occurred Between July 1, 2008 and June 30, 2011

Published on: February 27, 2018 | by Monte J. Robbins, Esq.

Some drug cases where the conviction date occurred between July 1, 2008 and June 30, 2011 in Colorado can be sealed. Specific procedures and criteria pertain to these “magical dates” (July 1, 20018 through June 20, 2011) enacted by the legislature.

Which types of conviction records can be sealed? Petty and Misdemeanor drug convictions are eligible. Also, Felony convictions related to Class 5 or Class 6 Felony offenses may be sealed. However, cases which are ineligible are those related to the following: 1) possession with intent to manufacture, dispense or sell drugs; 2) attempt or conspiracy to sell, dispense, or manufacture drugs; 3) selling, manufacturing, or dispensing drugs.

There is a waiting period for sealing these convictions. The waiting period is 10 years or more after the date of the final disposition of all criminal proceedings or the petitioner’s release from supervision concerning a criminal conviction (whichever is later). Furthermore, the petitioner must not have been charged or convicted of a criminal offense in the 10 or more years since the date of the final disposition of all criminal proceedings against the petitioner, or the petitioner’s release from any forms of supervision, whichever is later.

Thus, yes some drug convictions are eligible, but a petitioner must qualify to the EXACT criteria listed above, otherwise chances are that the petition to seal will be denied.

Court fines, restitution, late fees, and any other fees outstanding in the case must be paid in advance of filing. A petition to seal criminal conviction records pertaining to convictions that occurred in Colorado between July 1, 21008 and June 30, 2011 may be filed once every 12 months. The petition should be filed in the district court in the county where the conviction occurred.

If the court determines that the petition is sufficient on its face then the court will set the case for a hearing on the petition. It is important that the petitioner be prepared for the hearing. The court will use a balancing test to determine if the petitioner’s interest in sealing the records outweighs the public’s interest in retaining the records. Many of the factors the Court will utilize in the balancing test include the following: the government’s interest in retaining the records in public view, the severity of the offense for which the petitioner has requested a record seal, the dates and number of convictions the petitioner is requesting to be sealed, the overall criminal history of the petitioner, and the district attorney’s position on the sealing. It is important that the petitioner be able to articulate at the hearing how her interest in sealing the records outweighs the public’s interest. If the petitioner cannot convince the court of the unwarranted adverse consequences to the petitioner of retaining the records in the public domain, then the petitioner may lose the hearing and not achieve a record seal.

If, however the petitioner is successful, then it is critical that the petitioner request that the civil suit to seal the records is also sealed. Otherwise the underlying criminal records will be sealed however the petition to seal (with all of the criminal information contained in the petition) will remain open to public view.

A downside to not convincing the court to seal the records or not carefully reading the statute to determine eligibility before filing is that the petitioner will actually create an additional court case referencing the details of the underlying criminal case. In other words, not only will the petitioner still have open records in the criminal case for public view, the public may also now view a civil suit which references the details of the criminal case. Thus, the petitioner has now essentially doubled some of the records in public view that she was trying to seal. Thus creating a “one step forward, two steps back” scenario regarding the petitioner’s attempt to get the case off her record.

Successfully sealing a person’s criminal history records can very powerful. It can have an enormous impact upon a person’s approach/ability to obtain a job, apply for schooling, social status, and countless other areas where not having a criminal record is important. Attention to detail, preparation, and a firm understanding of the law and process are critical to correctly sealing criminal drug conviction records in Colorado.

Sealing Drug Convictions in Colorado that Occurred Before July 1, 2008

Published on: February 26, 2018 | by Monte J. Robbins, Esq.

It is possible to seal drug convictions in Colorado for cases where the conviction occurred before July 1, 2008. Specific rules apply for the process and eligibility for these convictions. Eligible cases are as follows: petty offenses or misdemeanor offenses in violation of Article 18 of Title 18, CRS. Class 5 and Class 6 Felony convictions are also eligible. These felony convictions however cannot relate to the following: 1) possession with intent to manufacture sell or dispense drugs; 2) conspiracy or attempt to dispense, manufacture or sell drugs; and 3) dispensing, manufacturing or selling drugs.

Further criteria requires that the prosecutor not object to the sealing and that the petitioner pay the prosecutor’s office for their legal fees and costs incurred as a result of the petition. The petitioner is also responsible for the court’s filing fees.

All fees and restitution must be paid prior to filing. If a petitioner still owes criminal restitution to a victim, or late fees, court costs, etc. The petition will be denied. Thus, obviously it makes sense to contact the clerk’s office in the district where the petitioner will be filing to determine if all fees have been paid in advance of filing.

A petitioner can file a petition once every 12 months. Petitions to seal drug convictions before July 1, 2008 in Colorado must be filed in the county where the records are located.

At a hearing on the petition, the petitioner must show that her interest in sealing the records outweigh’s the public’s interest in retaining the conviction records. The minimum factors the court will use to decide the petition include the criminal history of the petitioner, the severity of the offense to be sealed, the number of convictions and dates the petitioner is attempting to have sealed, the prosecutor’s position, and the need for the government agency to retain the records. If the petitioner is successful in sealing the records, she may request (and it is obviously advisable to do so) that the court seal the civil case that was filed in order to seal the underlying criminal conviction case.

If the petition is granted, the records will be sealed from public view, however law enforcement will continue to have access to sealed conviction records.

The Letter No One Wants: Colorado DMV is Extending Your Interlock Due to Violations

Published on: August 18, 2017 | by Monte J. Robbins, Esq.

Picture 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.

Possession of Drug Paraphernalia in Colorado: Law and Penalties

Published on: August 8, 2017 | by Monte J. Robbins, Esq.

Before 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.

No Bail for Some Colorado Domestic Violence and Stalking Cases Starts August 9, 2017

Published on: August 7, 2017 | by Monte J. Robbins, Esq.

Starting 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.

Tougher Felony DUI Penalties Start August 9, 2017 in Colorado

Published on: August 4, 2017 | by Monte J. Robbins, Esq.

New, 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.

Colorado’s New Texting While Driving Law

Published on: July 24, 2017 | by Monte J. Robbins, Esq.

Governor 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:

that a person was operating a motor vehicle;
a police officer saw the person use a wireless phone;
for the purpose of texting (or a similar form of manual data entry or transmission);
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.

Drug Sniffing Dog’s Alert Alone Not Enough to Search Car in Colorado

Published on: July 20, 2017 | by Monte J. Robbins, Esq.

A 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.