Denver DUI Attorney Blog

Fido not welcome on porch of suspected drug house. Supreme Court says get a warrant.

Published on: April 19, 2013 | by Monte J. Robbins, Esq.

The U.S. Supreme Court recently ruled that a police drug-sniffing dog could not be used without a warrant to search near a suspected drug dealer’s home. In Florida v. Jardines, the Supreme Court upheld a suppression ruling in a marijuana case where the police used a drug sniffing dog outside the home of a suspected drug dealer and then got a warrant to search the home based upon the alerts of the dog.

In a 5-4 ruling, the Court found that using a dog to investigate a home and its surroundings required a warrant, as it was a “search” within the meaning of the 4th Amendment. As Justice Scalia indicated, the Fourth Amendment extends no both a house and its surroundings.

The Court reasoned that there is an implicit license for visitors (whether police or private citizens) to approach the front door of a house and knock, and then wait to be greeted and promptly leave. However, the Court reasoned that there was no implicit license for a trained police dog to explore around the home to look for incriminating evidence.

One of the important things to note from this decision is that it pertains to using drug-sniffing dogs to investigate the immediate surroundings of a home. Different rules apply to the use of drug-sniffing dogs in relation to vehicle stops or at the airport.

This Jardines decision reinforces the rights of homeowners to be free from unreasonable searches and seizures in not only their home, but also the area surrounding their home.
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What is the benefit of a deferred sentence in a DUI case if you can’t seal it?

Published on: April 10, 2013 | by Monte J. Robbins, Esq.

The Colorado Court of Appeals recently announced that you can’t seal a successfully completed deferred judgment and sentence for a DUI offense. In the Matter of the Petition of Paige Harte, the Court found that Ms. Harte successfully completed a deferred judgment for her alcohol-related driving offense, but was not eligible to seal her record. The record sealing statute excludes convictions for alcohol-related driving offenses from eligibility. Therefore, the Court reasoned that the term “conviction” in the record sealing statute also applied to a successfully completed deferred sentence, even though Ms. Harte’s case was dismissed and she ultimately was not convicted. If you’re confused about this reasoning, you’re not alone.

Due to this recent ruling, the benefits of a deferred judgment in the DUI context are minimal.

One of the “selling points” of a deferred judgment and sentence in any criminal case is the ability of a defendant to get the case off their record at the end of the deferred period by sealing all the records. It’s another chance at a “clean slate”.

The way a deferred works is that a defendant pleads guilty to a criminal charge, but the judgment of conviction is deferred for a set time period. During the set time period, the defendant complies with probation and stays out of trouble. If the defendant completes all the terms and conditions of the deferred judgment, his case will be dismissed with prejudice at the end of the deferred period. A defendant will typically want to seal all of the records associated with his case at the end of the deferred period. It essentially gives a defendant a “fresh start” or a second chance at life with a clean and clear criminal history. Once the records are sealed, Colorado law provides that a defendant can also deny the record and indicate that no such record exists.

A dismissal is a great result in any criminal case because the percentage of cases that result in a dismissal are low. However, a dismissal should also come with the benefit of a defendant being able to seal his or her record.

In today’s competitive job market, the majority of companies run some sort of a criminal background check on prospective applicants. According to the National Consumer Law Center, 93% of employers run criminal background checks on some applicants and 73% of employers run criminal background checks on all applicants.If an applicant has a record that has been properly sealed, the company should not be able to find the record and the applicant can lawfully state, under Colorado law, that he/she has not been arrested and no such record exists. Essentially, the applicant can answer “no” to a criminal background question (assuming that he/she has no other criminal history records).

On the other hand, if an applicant has a record that has been dismissed, all of the records will likely still appear in a person’s background. And often times, even though no conviction enters on a dismissed case, many potential employers are reluctant to hire an applicant with a “criminal history”. It seems that often times employers do not distinguish between an arrest, charge, and a conviction. Thus any record of criminal activity, regardless of the actual outcome, may negatively impact a job applicant. Thus it is unfortunate to see that the Colorado Court of Appeals has determined that the benefits of a record seal do not apply to those who have successfully completed a deferred sentence in a DUI case.
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Should “Drunk Driving. Over the Limit. Under Arrest.” be changed to “Drunk Driving. Under the Limit…still Under Arrest”!?

Published on: September 12, 2012 | by Monte J. Robbins, Esq.

The National Highway Transportation Administration (NHTSA) sponsors various national campaigns throughout the year to promote safety on the roadways. One of the campaigns indicates that if you are driving “over the limit”, that you will be placed “under arrest”. The message is seemingly simple and clear. And in many cases this message holds true. If a driver is driving with an alcohol content (BAC) which exceeds “the limit” and is stopped, he will be placed under arrest. On the other hand, in many cases, this message does not hold true and does not reflect what is happening in our court system.

Specifically, the message infers that the converse is true: that if you are driving “under the limit”, that you will not be placed “under arrest”. As a Colorado DUI lawyer, I’ve seen many cases where this does not happen. Drivers are routinely arrested when their BAC is below “the limit”.

In Colorado, and all 50 states, the commonly referred to “limit” is .08 grams of ethyl alcohol per one hundred (100) milliliters of blood or .08 grams of alcohol per two hundred ten (210) liters of breath. The public knows “the limit” is .08. All states have passed legislation making .08 the per se limit.

But what about the other limits in Colorado? In Colorado, it is assumed (“permissible inference”) that you are driving while ability impaired (DWAI) if you have a BAC (blood or breath) of .05 to .079. As a Colorado DWAI defense lawyer, I regularly see people who have been charged with DWAI who have a BAC under the limit of .08.

DWAI is a serious offense with serious consequences. It is an alcohol-related (also can be drug-related) traffic offense that carries the majority of the same penalties as the greater offense of DUI. It also carries most, if not all, of the collateral consequences associated with a DUI offense.

And as shocking as it may seem, I’ve seen cases where law enforcement have charged drivers with DWAI or DUI even if their BAC is below .05! In Colorado, the law reads that you are presumed to not be under the influence and not impaired by alcohol if your BAC is below .05, but some officers ignore that law and charge the offense anyway.

In other cases, if a driver refuses a blood or breath test, he will be arrested anyway. Thus, even though no chemical test has shown that he is “over the limit”, he is still “under arrest”.

Although the intent of the message “over the limit, under arrest” is to curb drunk driving, Colorado drivers need to be aware that they can be charged with DUI or DWAI even if they haven’t reached any statutory numerical “limit”. If an officer has probable cause to believe that a driver is impaired to the slightest degree (DWAI) or substantially incapable of safely operating a motor vehicle (DUI), the driver will likely be charged regardless if she is “over” or “under” “the limit”.
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Can you be arrested for a DUI in Colorado even if you’re not driving?

Published on: October 24, 2011 | by Monte J. Robbins, Esq.

The short answer is yes. You can be charged, and you might be convicted. However, just because you may have been arrested for a DUI in Colorado, doesn’t mean that the prosecution will get a conviction. The conviction is what matters. You’re innocent of the DUI until they prove it.

If you go to trial on a DUI in Colorado, the jury will get an instruction as to the elements of the charge, to include that: 1) the defendant; 2) in the State of Colorado, at or about the date and place charged; 3) drove (or was in actual physical control of) any vehicle; 4) while under the influence of [alcohol] [drugs] [a combination of alcohol and drugs].

Driving a vehicle is self-explanatory. Actual physical control is a little more subjective. This is where the “fun” starts.

The Colorado Supreme Court opinion in People v. Swain, 959 P.2d 426, 430 (Colo. 1998) is the most up-to-date case on the meaning of “actual physical control”. According to the case, actual physical control is to be determined by the “totality of the circumstances”. The Swain court looked to the following factors to determine if a person was in actual physical control: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor vehicle’s ignition; 4) whether or not the motor vehicle was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based upon your every day experience. No one factor definitively decides whether or not a person was in actual physical control of a motor vehicle.

Thus according to Swain, a car doesn’t have to actually be moving down the road for an occupant to be determined to be in actual physical control, and thereafter be convicted of DUI. On the other hand, DUI cases can be won on these factors as well. Thus, although the common sense meaning of driving has been expanded, the above-referenced factors can be very helpful at beating a case where there is no movement of the vehicle.

It is important to note that the list of factors in Swain is not exclusive. Additional factors may be considered under the blanket language of factor number 5 (“any other factor”) listed above.

Whether or not the defendant allegedly drove on a public road, private road, or private property is not a factor. The Colorado Supreme Court held in Motor Vehicle Division v. Warman, 763 P.2d 558 (Colo. 1988) that Colorado’s Express Consent Statute applied to private parking lots.

There have been many cases previous to Swain that have pondered unique fact patterns to determine the boundaries of actual physical control. These cases are sometimes helpful in fighting a DUI allegation where driving is not witnessed.
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How many points is too many? Knowing this answer might save your Colorado driver’s license from a points suspension.

Published on: September 20, 2011 | by Monte J. Robbins, Esq.

In Colorado, if you get too many points on your driver’s license, the Colorado Department of Revenue will send you a letter and politely let you know that they are taking away your driver’s license (and quite possibly your livelihood if you heavily rely upon your license).

If you get one of these letters, you must immediately contact the Department of Revenue, Division of Motor Vehicles and request a hearing. If the Department of Revenue prevails at the hearing, you can request that the Hearing Officer consider you for a probationary driver’s license “PDL” (a/k/a “red license” or “restricted license”).

If you are twenty-one (21) years of age or older, twelve (12) points accumulated in a twelve (12) month period will “earn” you a suspension, or eighteen (18) points accumulated in a twenty-four (24) month period. The point totals are calculated based upon date of violation, not date of conviction.

A minor driver between the ages of eighteen (18) and twenty-one (21) will lose her license at nine (9) points in a twelve (12) month period, or twelve (12) points in a twenty-four (24) month period.

Whereas a minor driver under eighteen (18) years of age will lose his license upon the accumulation of six (6) points in a twelve (12) month period or seven (7) points in a twenty-four (24) month period.

Special consideration is given to chauffeurs who accumulate points in the course of their employment. A chauffeur will lose her license if she accumulates sixteen (16) points in a twelve (12) month period or twenty-four (24) points in a twenty-four (24) month period.

The rules and regulations regarding driver’s license hearings are codified in 1 C.C.R. 211-2. The rules regarding the length of restraint and the issuance of a probationary driver’s license are codified at 1 C.C.R. 211-3.

A Hearing Officer will consider a “base period” of suspension before factoring-in aggravating or mitigating factors. The aggravating factors will be balanced with the mitigating factors to determine if the base period will be upheld, reduced, or lengthened.

If you find yourself facing a points suspension in Colorado it’s a good idea to get help with the underlying ticket which will trigger the suspension if the case is not resolved favorably. In other words, the best way to avoid a suspension is to not get one in the first place.

However, sometimes this may be unavoidable, or the underlying ticket may have already been pled/resolved. If that’s the case, it’s advisable to seek help with the points suspension hearing and potential probationary license hearing. Sometimes the suspension hearing can be won on technical grounds (i.e. DMV errors), a short suspension can be negotiated, or a probationary driver’s license can be obtained. It seems that probationary driver’s licenses are tougher to obtain if extensive preparation has not been done in advance of the hearing. More-favorable restrictions can also be negotiated.
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Driver Beware: If you’re pulled-over alongside the road in Colorado “sleeping it off”, you might be fair game for the cops.

Published on: June 7, 2011 | by Monte J. Robbins, Esq.

The best decision that you can make if you are impaired (even to the slightest degree) or intoxicated is to never get behind the wheel of a vehicle. Period. Because alcohol impairs judgment, sometimes a person will start to drive and later realize that he/she is not safe to drive; and pull over alongside of the road and “sleep it off” or call a sober driver for a ride. From a moral standpoint, this is the absolute best action to take. Who in their right mind would argue that an impaired or intoxicated driver should continue driving? Not me.

Unfortunately, it’s not a good idea from a DUI defense standpoint to stop along side the road if you’re intoxicated or impaired. A couple of cases always seem to rear their ugly heads in this situation. Firstly, in Colorado, you don’t have to be “driving” a vehicle (in motion) to be convicted of a DUI. You simply need to be in “actual physical control”. Actual physical control is determined by the totality of the circumstances to include: 1) where the vehicle was found; 2) where in the vehicle the person was found; 3) whether or not the keys were in the motor’s ignition; 4) whether or not the motor was running; 5) any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle, or not, based upon your everyday experience. The jury will get this instruction if it is relevant to the case and the Court lets it in. These factors come from the Colorado Supreme Court’s decision in People v. Swain, 959 P.2d 426 (Colo. 1998).

Secondly, you don’t actually have to commit a major traffic offense or minor traffic infraction to be contacted by the police in your car. If you’re already stopped, the Court says that the police can “request your voluntary cooperation”. Make no mistake about it, an experienced police officer is well-versed in how to shake you down a/k/a “initiate a consensual encounter” when you are already stopped. I find this phrase rather amusing. When a citizen is contacted by the police, it doesn’t seem like there is ever anything “consensual” about it. However, the Colorado Supreme Court indicates that there are situations when a citizen is voluntarily cooperating with the police when the police questions start to fly.

According to the Court, not all police-citizen encounters implicate the Fourth Amendment. It held in People v. Marujo, 192 P.3d 1003 (Colo. 2008) that a “consensual encounter” is not a seizure, but rather a request for cooperation that does not implicate the Fourth Amendment. The Court held that there are three general categories of police-citizen encounters: 1) arrest; 2) investigatory stop; 3) consensual interview. The first two categories implicate the Fourth Amendment, whereas the latter does not.

The Court goes on to enumerate the following factors in an attempt to distinguish an investigatory stop, which requires reasonable suspicion of criminal activity, from a consensual encounter: 1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; 2) the number of officers present; 3) whether the officer approaches in a non-threatening manner; 4) whether the officer displays a weapon; 5) whether the officer requests or demands information; 6) whether the officer’s tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; 7) whether the officer physically touches the person of the citizen; 8) whether an officer’s show of authority or exercise of control over an individual impedes that individual’s ability to terminate the encounter; 9) the duration of the encounter; 10) whether the officer retains the citizen’s identification or travel documents. The Court further held that in order for the police-citizen interaction to rise to the level of seizure with Fourth Amendment protections, the obligation to comply must exceed the obligation an innocent citizen would normally feel to cooperate.

If you were trying to do the right thing and pulled-over to sober-up, but are now charged with a DUI, it’s a good idea to get help from an experienced DUI attorney. How you are initially contacted may be crucial to your defense. Even though the Marujo case makes it easy for police to initiate contact with a parked motorist, they still need to follow a very specific protocol, otherwise, their request for cooperation quickly becomes a seizure within the Fourth Amendment. Thus, the bright side of the Marujo case for a defendant is that it gives a knowledgeable DUI defense attorney a lot of issues to argue to the prosecutor and the Court.
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You can’t seal criminal conviction records in Colorado. Or can you?

Published on: May 26, 2011 | by Monte J. Robbins, Esq.

As more and more people are heading back to work in the recovering economy, I find my office inundated with calls for help in sealing criminal records. Open records of an arrest, criminal court proceeding, police records, sheriff’s department records, and probation records can be devastating to an applicant seeking employment in a competitive marketplace. Many applicants with criminal records report passing through the interview and hiring process, but subsequently being rejected as a result of a “final step” background check. Some employers are now running background checks before an applicant will even be considered for a position.

Over 90 percent of employers now run background checks on applicants. In Colorado, one of the quickest ways to access anyone’s up-to-the-minute court information can be obtained for the small price of six dollars ($6.00) and an internet connection at the Colorado court database. A Colorado Bureau of Investigation (CBI) official arrest record will cost you six dollars and eight-five cents ($6.85). Criminal background information may also be obtained at any of the plethora of third-party background check companies found on the internet. Just Google “criminal background check”.

In Colorado, the record sealing statute applies to adult records, whereas the expungement statute applies to juvenile records. Thus, in determining what can or cannot be sealed or expunged, the inquiry starts here: is it a juvenile or adult record that we’re trying to clean-up. Adult records can be sealed if the case was dismissed or the Defendant was acquitted at trial. Convictions cannot be sealed. However, there is a recent exception to this bright-line test. Certain drug (controlled substance) convictions may now be sealed including petty offenses, misdemeanors, and certain Class 5 and Class 6 felony offenses. Different provisions of this statute apply, depending upon whether or not the conviction was entered on or after July 1, 2008. At a hearing on the petition to seal records, the Court makes a determination as to whether or not the petitioner has essentially shown that her interest in sealing the records outweighs the public’s interest in retaining the records.

Thus, the answer as to whether or not you can seal criminal conviction records in Colorado is both “yes” and “no”. You can now seal criminal conviction records, but only if the records pertain to certain controlled substance offenses. Otherwise, other adult criminal records may be sealed only if the case was dismissed (all charges) or the Defendant was acquitted (all charges) at trial. There are many avenues that may lead to a dismissal. A dismissal sometimes occurs by the Court dismissing a case outright. Other avenues include a dismissal through a successfully completed deferred judgment and sentence, a successfully completed diversion program, or deferred prosecution.

Without a doubt, the record sealing statutes are complex, and many times the issues that arise in sealing the records become extremely complex. Unfortunately, even though a record may be eligible to be sealed, the District Attorney’s Office (or any other entity listed on the petition) may object to a petitioner’s sealing on various grounds. If a petitioner is not properly prepared, she may be denied the benefit of sealing her records.
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