Let’s Talk Criminal Law – July 10, 2020

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By: Bill Henry
PublishedJul 13, 2020
15 minute read
Let’s Talk Criminal Law is dedicated to answering your questions. See what Coloradans asked on July 10, 2020. (A transcript of the event is available below.)

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Can an attorney contact the protected party in a restraining order?

One of the questions I have gotten, I’ve gotten a lot actually, involves protection orders. The question is somebody is asking if I’m the restrained party on a protection order, can I have an attorney contact the protected party? And the answer is yes. So an attorney can reach out, represent the restrained party in a protection order, whether it’s vil or if it’s a protection order coming out of a criminal case, for purposes of investigation, to see the protected party’s position, to ask if they’re willing to modify the protection order. That’s all fine, that’s all an exception to those protections. It wouldn’t be considered you having a third party reaching out, which would violate the protection order. Your attorney can’t contact someone and say, you know, my client really misses you. They want me to tell you this, that, and the other, that would probably be a violation of the protection order, but as far as reaching out to see their position on the matter, to see if they want to drop it, proceed with it, have it modified, and then also ask them what happened in the other underlying events, that’s all perfectly legal. In fact, there’s no way, those cases could get handled without an attorney being able to speak to that person unless they had their own attorney representing them.

What is the statue of limitations on a charge?

I had a question come up today. Somebody who said I have a case in a specific county from 2012, never appeared on it, has the statute of limitations run? The answer is no. What the statute of limitations is, is it both in civil and criminal is there’s a specific amount of time in which either a civil action or since we’re talking criminal today in which charges can be brought but once the charges have been brought, once there’s been a warrant issued and a case open, even if someone hasn’t been arrested and served with that warrant, there’s still a case open. The charges have been filed, once charges are filed, statute of limitations is not an issue anymore. As long as those charges were filed within the statute of limitations, the idea being that someone can just hide for 10 years or whatever and come back and say, well, I know I had a case filed or I’m aware now that there was a case filed, but, you know, it’s been past the statute of limitations. It just doesn’t work that way. That’s not how the statute of limitations works.

Is a DUI checkpoint ever illegal?

Interesting question and I think I talked about this last week for those of you that were lucky enough to hear me talking about DUI checkpoints last week. And the question is, is there ever a time when a DUI checkpoint is not legal? I think I’m gonna answer this backwards and tell you what makes DUI checkpoint legal. And if people are asking what’s a DUI checkpoint, law enforcement can set up a situation where people drive through this DUI checkpoint and you roll your windows down and they ask you a few questions. And if they notice some signs of impairment, odor of alcohol, something else, then they can start a DUI investigation without having to have a reason to have pulled you over in the first place or contact you in the first place. So, Fourth Amendment provides protection against unreasonable intrusion from the government, which means they can’t just arbitrarily pull people over. They have to come up with some sort of a pretext or reason for stopping you, typically. I observed the car speeding. I noticed the car couldn’t maintain a lane. They didn’t signal to change lanes, some sort of a traffic infraction usually. But a DUI checkpoint gets rid of that component and the reason is, is that it’s set up so that basically it’s voluntary. So here’s what makes a DUI checkpoint legal. There are certain things they have to do as far as publication, some back page of the newspaper they have to put notice that they will be running a checkpoint at a certain date and time. And at least describe the general area. You’re probably not going to see that, but it is something, it is a box that has to be checked. The big thing for you, the driver, somebody driving a car is a DUI checkpoint has to be marked. There has to be signage before you drive into the checkpoint and for it to be legal under the constitution. So it’s not considered a Fourth Amendment search, but rather considered you voluntarily went into the checkpoint. When you see that signage, there has to be a way around the checkpoint after the sign. So you’ll see one of those say electronic road sign saying, DUI Checkpoint Ahead. When you drive past it, there’s a checkpoint in front of you. There has to be either a way to make a left turn or a right turn, or to turn around and not go into the checkpoint. If you don’t drive into the checkpoint, it’s not legal for the police to just pull you over solely based on they saw a car that decided not to go into the checkpoint. They can follow you. If they’re handling it that way and look for another reason to stop you, but that typically doesn’t happen. So that’s really what makes a checkpoint legal. There’s a bunch of other factors. It has to be a reasonable amount of time for the stop. So if there’s no reason for them to investigate any further, there’s no odor of alcohol. It really was supposed to be a brief, Hey, how you doing? We’re doing a DUI checkpoint. Have you been drinking tonight? You’re sent on your way, but the real key piece here is there has to be signage, indicating that there’s a checkpoint ahead and there has to be a way for a motorist to avoid that checkpoint. So, the signage has to come before you’re stuck driving straight into the checkpoint.

Is self defense hard to prove in domestic violence cases?

Another question, is self defense hard to prove in a domestic violence situation? It depends, self-defense is an affirmative defense to some sort of an assault or harassment charge typically, or, you know, in more serious situations, homicide. And self-defense, the elements of it are basically that someone had to protect themselves. If they were threatened to the point where a reasonable person would feel that they were in danger, that would apply the same to a domestic violence situation as it would to any other situation. I think there’s factors that depend on how easy it is to prove. For example, if the party claiming self-defense is a 240 pound bodybuilder and the other party, the person who is the alleged victim in the case is about 110 pounds, it’s gonna be tricky maybe to get a jury to buy that, or get a DA sold on it. Now, if there’s weapons involved and things like that, yeah, self-defense can be a defense to domestic violence situation as far as how easy it is to prove, probably not super easy and really fact dependent. We have to add something more specific as far as the hypothetical. You certainly need an attorney to analyze that case, to see if there’s a legit self-defense claim.

If I’m a passenger and the driver gets pulled over, do I need to give my ID to the cop?

Another question, and this is a good one. If the car you’re riding in is pulled over, so you’re not the driver. You’re a passenger. What are your legal rights as a passenger? Do you have to give your ID to the police officer? In my opinion, the answer’s no, no you don’t. And I see a lot of law enforcement that ask people for IDs all the time. Even if somebody is assisting them in like there’s a fight that breaks out at a party they just ask everybody for their ID, And then they’ll run it just to see if there’s any warrants out. That’s what they’re looking for a lot of the time, if you’re just the passenger in a car, you can just say, no, I’m not giving you my ID. They’d have to find another reason to demand that identification. They’d have to, they being the police of course, would have to come up with some sort of a reasonable suspicion, some sort of a, something they can sell the judge on later that they thought you might be involved in some sort of criminal activity. So if you’re driving in a car, for example, and your friend’s pulled over on suspicion of DUI and they start asking you for your ID and you say no. And that’s perfectly legal, they don’t have any basis really to try to figure out who you are or what you’re doing.

I’m pleading guilty to an assault, do I need an attorney?

Another question here is, how could a lawyer benefit me if I plan to plead guilty anyway to assault charges? So I think the question is somebody saying, I’ve already made up my mind, I’m charged with assault, I’m going to plead guilty. I think there’s two answers to that question is one, before you enter that plea, you should still consult with an attorney if you haven’t, to see if there’s a good argument for a reduction in the charge, to something lesser than an assault, like a harassment charge. If based on someone’s criminal history, the prosecutor might be willing to do some sort of a plea guilty, but avoid a conviction type of situation, what we call the forejudgment, to do a case analysis, to make sure you should be pleading guilty to these charges and to make sure that it’s not impossible to convince the prosecution to make a better offer than plead guilty to assault. Even if it’s still gonna be a matter of, yeah, you’re pleading guilty to assault. An attorney is really helpful to advocate for you at sentencing. It’s hard for an individual to sell the court on who they are? Why this isn’t them? I mean, these charges aren’t indicative of who this person is, what kind of work they’ve done, why the court can trust that they’re not a public safety risk. Having an attorney selling that to the judge and the DA can be very helpful in making sure that the sentence is as minimal as possible. That you’re exposed to less jail time, that you’re exposed to a shorter term of probation potentially, and attorneys are very useful to help walk you through what should you do before you go to sentencing to help sell the judge on being lenient. What kind of things does the court want to hear so that the court can be lenient. So I would suggest, I think a lawyer can benefit you in pretty much, very many situations, including if you’re gonna plead guilty, you still want help with mitigation of the possible penalties for what you’re pleading guilty to.

I was arrested but never charged with a crime, do I still have a record?

If you’re arrested, but never charged with a crime. Do you still have a record? Possibly, I mean not always but sometimes yes. I’ve had people where, they were arrested and there was a decision made not to charge the crime. So it never even got to court. There was never a court case open, but that arrest still shows up on a background check and yeah, that can be sealed. The problem is there’s no, under the new Colorado and by new, I mean about three years old now, Colorado procedure for sealing cases, criminal cases, it was simplified in that you used to have to file a civil case to try to get a civil court to order the criminal court, to seal the case. They simplified that, the state legislature, so that you just file directly into that criminal case now. It’s much simpler, instead of having one court tell another court, you need to seal this, you get an order right from that original court. And then we get that order to all the law enforcement agencies that have custody of the records, so that they’re sealed, that doesn’t get reported on it, your standard background check. In this scenario arrested, not charged, there’s no criminal case for us to file the motion into. We have to use the old process of filing into District Court under the old civil process, asking for that district court to give us an order to send to that arresting agency, telling them that that arrest has been sealed. So it can be done, just a little bit, not quite as simple.

Can the cops demand to know your immigration status?

Can a police officer, another question here, it’s a good one. Can a police officer demand to know about your immigration status? No. Not in my opinion. I don’t know and I think there is a precedent on the side of that, but I haven’t like dug in and done all the legal research on it, just in my experience in practicing, courts, courts, so this also applies in court. Judges will not ask you your immigration status. And I believe that law enforcement is not supposed to. Sometimes they do things that they’re not supposed to do, so they might ask you, but they shouldn’t be. And the basis for that is the constitution, the wording of the constitution protects people. So whether you’re a citizen or not, you’re entitled to the constitutional protections of the United States as a human being here. So the immigration status isn’t relevant. It could be considered prejudicial if they’re asking you that, so law enforcement, the courts, in my experience, don’t ask that question.

Should I answer if a cop asks me if I’ve been drinking?

Next question is a DUI question. Should you ever answer a corp if he asks you if you’ve been drinking and how many drinks you have had? Well, if you haven’t had anything to drink, then yeah. You can say I haven’t had anything to drink, officer. If you have, it’s tricky because if you say no, I haven’t had anything to drink that officer’s put in his report. Well, he said he had, he or she, sorry. said they had nothing to drink and I noticed the odor of alcohol coming from the car. And later when that individual blew into a portable device or consented to some sort of a test, it came back that there was alcohol in their system. And now you have a credibility problem. You’ve already been dishonest and if we go to trial, you’ve already got a DA saying, well, you know, this defendant lied before. So you have to be careful with it. It’s a very tricky situation because if you say, yeah, I had a beer, then you’re kind of walking into that. Well, everyone says they had one or two beers. So maybe the best approach would be depending on the facts. And again, this isn’t like this isn’t legal advice because it depends on what’s going on and unfortunately you can’t have an attorney. Well, maybe some people can have an attorney riding shotgun in their car to give them advice in that situation, but typically you don’t have your lawyer with you and law enforcement doesn’t have to let you call your attorney while they’re investigating you. If you say, I want a lawyer, it’s not that they hand you a phone and let you call your lawyer. It’s they just stop asking you questions and even further under Colorado express consent law, which is what directs drivers in the state of Colorado, to the requirement of providing any blood or breath sample of their alcohol or drug content in their body. It specifically says you don’t get to consult with a lawyer before making your decision on whether you take the test and which test you take. So one way to handle it would, if you’re being asked, have you had anything to drink tonight? Is just to respond, I’m not even sure why you’re asking me that and why you pulled me over. And they’ll probably say, well, you were speeding. And you say well, I don’t understand why he pulled me over and just kind of don’t answer. If you say you had three, four beers, they’re going to continue. Even if you say you’ve one or two drinks that will let law enforcement continue their investigation, you may want to consider and not giving additional evidence by way of admission of having consumed alcohol. And of course the best way to avoid it, is not to drink and drive but I think that’s obvious. So I’m not sitting here trying to tell you how to get around it but if you end up in that situation, you probably want to avoid answering that question and of course, if you haven’t had anything to drink, you might as well say no.

If arrested for DUI can you choose between a blood or breath test?

And a good followup question here. If you are arrested for a DUI, can you choose between a blood or breath test? And the second part of that is if so, is one better than the other? That’s a trickier question, we’ll put that aside for now. Can you choose between a blood or breath test? Answer is yes. And express consent law is unclear on exactly what the officer has to say to you as far as the advisement. So the law says, a driver in the state of Colorado, if an officer has probable cause that their driving is affected by alcohol and or drugs, that individual has already consented to providing a blood or breath sample. You can choose, okay. If it’s drugs involved, however, if the officer believes drugs are involved, then they can say, sorry, you can only take a blood test, I’m only offering a blood test because the breath test doesn’t have any way to measure whether any sort of substances present in somebody’s system except for alcohol. So if it’s a situation where the officer’s seeing signs of marijuana use, you would only be able to choose the blood test, okay. There’s other situations where you can choose, say, you choose a blood test, if there’s something going on that law enforcement can’t control, there’s no phlebotomist, because of some sort of weather condition, you know, there’s some act of God going on where one of the tests is impossible. I had a case once where the machine, the breath test machine, it was city of Glenwood Springs, both of them were broken. Okay, so the officer said, you can only take a blood test. Now that worked out in our favor because the Intoxilyzer machine, the breath machine, 10 minutes down the road in Carbondale was working just fine. But, you know, that was fact dependent, but typically speaking, you get to choose between a blood or breath test, unless there’s drugs an allegation of drugs being involved, then you only get a blood test. You can refuse it as well, but there is a consequence for refusing through the DMV, as far as the revocation being two years, and also the prosecution, if you take your case to trial can basically argue that you refused to take that test because you knew the results were going to be bad. There’s a defense argument to counteract that saying, you’re just assuming the prosecution’s just wanting you, you being the jury to assume that this test works. And we don’t know that the test works. We don’t know how the test works. You know, the driver didn’t trust the results of this would be accurate and that they might be providing evidence of guilt when they’re really not guilty. So that’s kinda how that’s handled, but they can use the refusal against you. If so, is one better than the other? I don’t know. I’ve heard people say the blood tests are more accurate. The nice thing about a blood test is that there’s an independent second sample held that the defense can send to different lab to have them run the blood test and see if there’s a big difference between the two results. There’s no sample saved in the Intoxilyzer 9,000 breath machine. It does take two measurements. And there’s also some fun that defense attorneys can have with the Intoxilyzer 9,000, if it goes to trial, which is basically nobody knows how that machine works and why we’re supposed to know what’s accurate. Law enforcement can explain how they operate the machine, but if you ask them, okay, but how do we know the machine works properly? They really don’t know the answer to that. The diagnostics, the information on that machine are not public. The company that manufactures it has, my understanding is they’re saying it’s a trade secret. It’s our work, you know, it’s our invention. We’re not gonna disclose how it works because it’s protected under Federal Law. It’s a trade secret. So basically the way we’re supposed to just, believe that the Intoxilyzer 9,000 works is because the state of Colorado tells us it does. And the way we’re supposed to believe that it’s working properly is because if it’s not working properly, the machine tells you that it’s not. So, I mean, you can see there’s a little bit of fun to be had from a defense perspective with the Intoxilyzer. With the blood, it’s more a matter of getting into the literature that the phlebotomist will be relying on when they’re testifying at trial to form their opinion. And just trying to convince a jury to look that this blood result, there’s nothing here that definitively says it’s connected to impairment in, particularly in a case where you don’t have a sign of impaired driving. You know, that can be a decent defense, particularly with the marijuana and the drug cases, there’s much more research that connects certain levels of alcohol in your system to a greater likelihood of being involved in accidents and things like that. And there’s not as much of that scientific literature when marijuana or other drugs were involved. So again, I don’t know if one’s better than the other. It’s long story short there’s some benefits on both sides.

Does everyone with a DUI in CO have an interlock?

Last question that I have for this week is, does everyone convicted of a DUI in Colorado get an Interlock device on their car? Can you get one of these instead of having your license suspended? So the Interlock is a restricted license. So if you have an Interlock installed in your car, what you’ve done is you’ve gotten a restricted license that only allows you to drive a car with the Interlock in it. So that basically, that is not suspension. It’s the same thing though, it’s revocation, you’ve had your license revoked for DUI. And there’s two ways you can get revoked by the DMV. One is for having a blood alcohol content over a 0.08, and that triggers the revocation. And depending on how many priors there are, it’s either 30 or 60 days, and then you’re allowed to get that restricted license with the Interlock in the car. And also depending on how many priors there are, it could be for, you know, four months, nine months, two years. It kind of depends on if there’s been a prior offense or not. And also if the BAC is over a 0.15, so 0.08, which is basically 8% blood alcohol content, at the time of the test, 0.15 is more, if you’re over that 0.15, the amount of time with Interlock in your car is longer. Everyone convicted of a DUI in Colorado get an Interlock, but you don’t have to get the Interlock. Although in some situations, in some situations you can just do your suspension, get your driver’s license back. If you want your license early, so you can be legal to drive, Interlock is an option. In some cases like a refusal, or if you fall into other categories that the DMV considers what’s called persistent drunk driving, which even if you have never been arrested for DUI before, if you refuse to take a chemical test, you fall into that category. Or if you have priors, you’re a persistent drunk driver, or if there’s a BAC over that 0.15 I talked about even with no priors, you fall into that persistent drunk driver category with the Department of Motor Vehicles. We’re not talking about the criminal courts, we’re talking about the DMV. Then you probably will have to have that Interlock in your car at some point. There’s really not a reason not to, because it’s better to be legal to drive than not. And that Interlock is a nice option. It wasn’t always, it didn’t always exist under Colorado law. So it’s a great way to get people legal to drive again. So you can go to work and do all those things. So you can have an Interlock. There’s one scenario and unless the rules of the DMV have changed recently, is if you’re convicted of a DWAI, not a DUI, the lesser offensive Driving While Ability Impaired, and you didn’t have a blood alcohol content over 0.08. So you escaped a revocation through the DMV, or somehow, you won your DMV hearing, the officer failed to appear. you know, I was able to convince the hearing officer that there was no basis for the stop or that the test wasn’t done within two hours. You’d avoid that initial revocation. The DMV gets another shot to revoke you based on the criminal conviction. A criminal conviction for a DUI on a first offense will revoke you. A criminal conviction for anything that DWAI, DUI, if there’s a prior, so second, third, fourth offense will revoke you. But with no prior, if you plead to a DWAI and you haven’t been revoked Per Se for the over 0.08, my experience has been that you avoid that revocation because the DWAI is an eight point traffic offense doesn’t trigger the automatic revocation and doesn’t trigger the 12 point suspension. Now, if that’s changed, I’m not aware of it. It’s been like that for as long as I’ve been practicing DUIs where we’d have a client in that scenario, first offense DWAI and they hadn’t been revoked, for the original Per Se revocation with the DMV. They did avoid that driver’s license consequence.

Anyway, everyone it’s Friday be safe out there. Have a great weekend. Will see you here next week. Loved the questions, keep them coming.

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