Let’s Talk Criminal Law – July 17, 2020

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By: Bill Henry
PublishedJul 20, 2020
13 minute read
Let’s Talk Criminal Law is dedicated to answering your questions. See what Coloradans asked on July 17, 2020. (A transcript of the event is available below.)

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It’s 10:00 a.m. on Friday, which means I am answering questions that people have sent into our firm, mostly about criminal law. One of my areas is criminal defense. I also do civil litigation as well, and I have some questions that I’m already looking at. So let’s go ahead and get started and hope everyone is having a fantastic day. All things considered, I know, I know things are tough.

If I leave the scene of an accident to get help, is that viable defense if I get charged?

So the first question I’m looking at, is somebody is asking about leaving the scene of an accident, just to give that context, if you’re involved in a crash where there’s property damage or an injury, you have a duty to remain at that accident site and a duty to report the accident, failure to do those can result in a 12 point citation. And if convicted of the 12 points, your license could be suspended because you only get 12 points against your license in a 12 month period. And after 12 points enter in that 12 month period a suspension could be triggered. And the question is, do I have a defense if I get charged with leaving the scene, if I went to get help, and the scenario they’re painting is for example, my phone wasn’t working. So I’ve had that come up up in the more rural areas where there was issues with cell phone service. So yeah, obviously if you have no cell phone service or your cell phone isn’t charged, there’s no way for you to report an accident. Particularly if you’re in an area that’s a low trafficked and you would have to, especially if you needed help, if somebody needed medical assistance, you got no choice, but to if your vehicle is drivable, leave the scene. If there’s two car accident in here, you’re gonna have to figure that out with the other driver, see if they have the ability to make contact with someone, to call for emergency services. But otherwise in that scenario, I’ve actually seen that scenario come up where I had someone charged with that exact type of scenario. They were way up in the hills, up around the Glenwood Springs Carpendale area, they had no cell phone reception. We confirmed that there were cellphone tower issues up there, and we were able to avoid the conviction for that, that was viewed as a justifiable reason.

What rights can a non-violent felon get back in Colorado?

The next question is what rights can a non-violent felon have restored in Colorado? We’re seeing a few questions about this. Basically there are certain felonies that can be sealed. So if you can get your case sealed, your rights get restored, basically. It’s not that the conviction completely goes away, it’s that it’s sealed and now when somebody runs background checks on you, it doesn’t show up. The violent felonies typically cannot be sealed. And I’m gonna talk more about that later.

What does a good criminal law attorney look like?

Well, this is an interesting question. I’m gonna try to stick a toe into this one, kind of a dangerous question to answer. What should someone expect out of a good criminal defense attorney? I think you should expect someone that’s gonna be frank with you about their analysis of your case. So accessibility and frankness, and there’s a difference. And I’ve talked about this a lot between advocacy and counsel. Advocacy is how we present you to everybody else, you being imaginary client, okay. We represent our client to everyone else, that’s advocacy. Counsel is what we talk about between attorney and client. And that’s where it’s my job to be honest with you and not just tell someone what they wanna hear and not just say, hey, everything’s gonna be okay. You know, it may be more look, you know, you’re on video doing a lot of the things that you’re accused of doing, you know, there’s an issue here you’re exposed to a conviction. It would be irresponsible for me not to give a client that case analysis. So I think being frank with the client is the biggest thing you should expect out of a good criminal defense attorney. And then one that’s able to engage in the negotiation process with the prosecutor. And that’s a careful process because prosecutors you’re dealing with people, feelings, egos, and you wanna be careful with your initial approach with a district attorney when you’re trying to advocate for your client.

Can you help someone get a conviction vacated?

And here’s a followup question on sealing. Are you able to help someone get a conviction vacated? I was reading that if somebody waives their right to a trial, but no one explained what could happen by doing so that the conviction might be able to be vacated. Is this true? Theoretically yes, but the problem is, when you enter a guilty plea, that’s when you waive your right to a trial. And in order to enter that guilty plea, there’s Rule 11 paperwork. So paperwork that covers Rule 11 under the Colorado rules of criminal procedure. And on that paperwork, it lists out that you are knowingly and voluntarily entering into this plea agreement that you’re knowingly and voluntarily waiving rights. And it’s gonna list those rights specifically. One of them is your right to a speedy public trial. The other right is, your right to confront witnesses that the state will bring against you, your right to a presumption of innocence, your right to have each and every element of a charge. And an element is parts of a charge that has to be proven. For example, one element of a charge is that it was the defendant that they had some sort of intent and that they did some sort of act. So you’re waiving having them, having the state have to prove those elements. You’re waiving your right to remain silent or choose to testify, there’s several other rights. It’s your basic constitutional rights. And those are all listed on this Rule 11 paperwork. When you sign it, you’re acknowledging that you know what you’re doing, that you’re doing it voluntarily. And then further, I have never seen a court not make a record where they make sure that the individual entering into a plea agreement isn’t effected by any substances or any sort of mental health condition on that day that they know what they’re doing. That they’ve read the plea paperwork, that they understand the rights that they’re waving. So that scenario, I just have not seen happen. Even if somebody doesn’t really know what they’re doing, they just made a record in front of the court that they do. And that’s why there’ll be interpreters present if people speaking a different language. The court does not want to reopen or re-litigate cases that have already been resolved. It’s doesn’t fit into what we call judicial economy. Very hard to get a conviction vacated. And based on that reason, I’ve actually had people ask me that in consults and I’ve asked them well, you filled out the paperwork and you entered the plea in front of the court. I’m pretty sure, I’m 99% sure if we got the transcript of that the court would have asked you if you knew what you were doing, and if you’re doing it voluntarily. If you’re trying to vacate a conviction that voluntary entry into the plea and waiver of rights is just gonna be thrown right back in your face. And that motion to vacate the conviction is gonna be denied.

If I plead not guilty on a misdemeanor crime, will my case go to trial?

If I plead not guilty on a misdemeanor crime, will my case go to trial? If it does, what should I expect at trial? How long does it last? et cetera. So yeah, if you’re gonna enter a not guilty plea on a misdemeanor crime, if you can’t come to some sort of a settlement or agreement with the district attorney’s office, you reject whatever offer they’re making. Once you say not guilty, it gets set for trial. You have a right to a speedy trial, which means the courts are to get the trial done within six months. However, there are certain exceptions to that right to a speedy trial, such as a global pandemic has been ruled. In fact by COVID-19 has been ruled away for the people in the courts to get around that 180 day, six month requirement and get a continuance on a case. But yes, you will now be going to trial. What you should expect at trial completely depends on what you’re charged with. I don’t mean to punt that question, but you know, if it’s a jury trial, you’re looking at a jury selection process. Misdemeanor trials can take a day or two. Usually they’re set for two. And it depends on how many witnesses? What the issues are? If it’s a DUI trial, are there blood results that are in controversy where there may be experts called that would definitely turn a one day trial into a two day trial. And then it goes to a jury closing arguments. So it’s basically like a felony trial, except in Colorado your misdemeanor jury is only six instead of 12 and obviously the possible penalties are more, can be more serious with felony conviction, but that’s what you would expect. If you say not guilty on a misdemeanor, it gets set for trial. And unless the prosecution decides they don’t wanna pursue it, which sometimes happens. Sometimes they come back with a last minute can’t say no kind of offer. You’re probably looking at going to trial.

Will remaining silent while getting arrested stop the police from questioning me?

If I’m arrested and I’m asserting my right to remain silent, can police continue to question me? And if they do, how do you suggest handling that? So the best thing, what you’re talking about is your Fifth Amendment Miranda Right to remain silent, to not incriminate yourself. And once you tell the police you’re not talking, they should stop, they can come back to you later if you’re saying you don’t waive your Miranda Rights and see if you’ll want to talk to them again. The problem they have, the problem law enforcement will have is if they are you asking questions, you’re in custody and you don’t waive Miranda. This is when you’re in custody, Miranda. And if you don’t know what I’m talking about, Miranda is a Supreme court case Miranda versus Arizona, where the United States Supreme court basically outlined basic rights that have to be given to somebody in custody, if they’re going to be interrogated. So if you’re just detained on a traffic stop, Miranda hasn’t kicked in yet. It’s when you’ve been placed under more formal arrest, handcuffed back of the car, et cetera, that now there’s a Miranda issue. And what happens if the police elicit responses from you in violation of your Miranda rights, they would be suppressed. Those statements cannot be used as evidence against you, if you take your case to trial. And it’s a matter of the defense attorney filing a motion, raising that Miranda issue and getting the court to agree in order that there has been a Miranda violation and that suppression is the appropriate remedy. Courts don’t dismiss. There has to be some really serious Fourth and Fifth Amendment violations for a court to actually exercise the very, it’s a high bar to get to, consequence of dismissing the case. So usually it’s prosecution loses evidence. Now here’s what if you just want law enforcement to stop talking you, just say lawyer. It’s a Sixth Amendment issue, you’ve asserted your right to an attorney. Now asserting your right to an attorney doesn’t mean that the police say, Oh gee, okay. We got to provide you with an attorney. It means that they can’t talk to you except with your attorney present. Once you say, I want an attorney, or you can even just say, you’ve seen some of those movies, like, you know, Denzel Washington going lawyer, lawyer, lawyer, yeah that works. You just said lawyer. It depends on how polite you want to be. But you know, you can say, I’m sorry, I’m asserting my right to an attorney. Or you can just say, I want my lawyer, lawyer. And then the police will stop talking to you. And if they don’t, again, anything that they would elicit from you as far as any responses would be subject to suppression and should not be able to come into any sort of a trial.

What test do I take if cops think I’m driving high?

How do police test someone for marijuana intoxication if they suspect they’re high while driving? So if anyone’s familiar with Driving Under the Influence, DUI, DWAI, it’s all stuffed into one big statute. So there’s not a different law for driving while impaired by drugs. It’s all stuffed into driving while under the influence, driving while ability impaired. But there are different tests and police officers have different levels of qualifications based on their training. The more experienced officers will prove, will move through more intensive types of certifications. And the first certification, they have a Standard Field Sobriety Tests, and those are really designed to detect alcohol impairment. But if they suspect marijuana, you’ll get run through those three tests. They’re voluntary, keep that in mind. So you don’t have to do the tests. It doesn’t mean you get arrested if you don’t do them. Although if law enforcement police are requesting the roadside tests, they’re probably already leaning towards finding a reason to arrest you because they’re seeing what they view in their experience as signs of impairment. So they run you through those tests, the standard tests are checking your eyes, for nystagmus. And if you wanna watch something interesting, watch the nystagmus testing on YouTube, when alcohol is present, what they’re looking for is when they get the stimulus, the finger here out to maximum deviation, 45 degrees. So they’re looking for your eyes to twitch and there’s other things that can cause it, but their training says it. And there’s some data that says that that can be related to alcohol content. Then they’re doing what’s called a one-leg stand where they have you stand on one leg for 30 seconds and there’s instructions and I’m not gonna go through all of them but they’re looking to see if you can follow the instructions and if you can do the task and then the walk-and-turn I think nine steps, down an imaginary line, the pivot as instructed. So be careful if you’re ever trying to attempt that maneuver. And then the nine steps back. As far as marijuana impairment, there’s another level of certification called ARIDE certification, which does train them, train law enforcement a little bit on detecting drugs. And then there’s drug recognition and evaluators. And they’re looking for different signs because there are different signs in alcohol. Although oftentimes I’ve seen marijuana related DUIs involve a combination of someone that’s been drinking and smoking marijuana. But strictly marijuana, what they’re looking for is the redness of the eyes, inability to follow instructions. It’s really a lot more difficult for law enforcement to rely on those clues than it is with alcohol. Marijuana DUI is more difficult to prove because it’s more difficult to understand whether or not somebody’s ability to drive the car is effected when they’ve smoked marijuana. There is data that supports there’s more likelihood, but it’s not as obvious as the data on alcohol. So another clue I’ve seen is, I saw green film on his tongue, which is ridiculous. That’s not part and when I’ve asked police on the record. I’m like, so there nothing, there’s no data. There’s nothing that you’ve studied. There’s no scientific manual that talks about green film on the tongue. And they have to say, yes, it’s just something that they’ve learned from other officers, that, Oh, there’s green film on the tongue, I don’t buy that one. Unfortunately, DMV hearing officers, and a lot of judges will say, well, yeah, they say that’s a sign of impairment. So that’s evidence of impairment. It’s not, but whatever, what they’re more looking for is odor of marijuana. They’re looking, they’re checking the eyes. They do some more divided attention tasks such as having you close your eyes and estimate 30 seconds, they’re watching balance. And then they will argue if it goes to a hearing that in their training and experience, the clues they see on that test are indicative of marijuana. A judge will probably let that through if you’re trying to challenge the legality of the arrest, but again a little more difficult convincing a jury that somebody was necessarily impaired.

Can I get rehab instead of jail time?

Is it ever possible to get rehab instead of jail time? Yes, so in some situations there’s mandatory jail time. You know, a third DUI, 60 days jail, no alternatives available other than work release, education release and release to get treatment for alcohol. But typically with those mandatory minimums there is gonna be that minimum jail time. But if there’s additional jail or in other cases where there’s jail and what is really the root of this act is alleged criminal act is somebody struggling with addiction. We have definitely put together situations where a judge accepted inpatient rehab or something like that instead of a jail sentence. And you can get a DA on board with that. And if the DA, the prosecutor’s not on board with it, the judge may still side with the defense. My experiences, a lot of judges are kind of leaning prosecutorial throughout the beginning of a case bond conditions. They’re not usually happy about ruling on suppression. You know, they’re more interested in seeing a case be resolved on its merits. But then when it comes to sentencing, a lot of judges, all of a sudden, not all of a sudden, but a lot of judges, and it makes sense public policy behind it. A lot of judges lean towards rehabilitation and using the opportunity to help the defendant. Coz that’s in the public interest is everyone wants this individual to be able to make it through this criminal case and come out with a job come out healthy and come out being able to provide for their family. There’s just more public interest behind that, especially when we’re talking about more misdemeanor kind of offenses, where it’s clear that there’s an alcohol problem or a drug problem that’s the root of what’s been going on criminally.

Are certain convictions unsealable in Colorado?

Are certain convictions unsealable? So the question is about sealing criminal convictions in Colorado, the answer is yes. And I’m not gonna list all of them, but there’s things that are defined as crimes of violence; second degree assault, menacing, when there’s a certain menacing in certain circumstances, not misdemeanor but the felony, those are excluded from being sealed under Colorado explicitly listed. You have to do a little work to figure out what constitutes a crime of violence. But one example is that second degree assault, sex offenses, convictions for sex offenses, convictions for domestic violence, cannot be sealed. Drug felonies, they can be sealed. It doesn’t mean the court has to, but those are eligible to be sealed, but there are certain convictions that the court can’t seal it, even if it wanted to, it doesn’t have the discretion.

Explain the plea negotiation process.

Explain the plea negotiation process. Okay, so the process of plea negotiation is after I’m retained by a client, the first thing I do is demand a request discovery. And depending on how fresh the case is, usually we get discovery back pretty quickly. Sometimes it takes a little while to get the video evidence, body camera footage, things like that. But we do a review of the discovery and we look at what does the evidence look like? What are the strengths and weaknesses from a prosecution perspective, as far as you, you know, is there evidence here to support a possible conviction? Then we look at, so we look at how provable the case is and do an analysis of whether or not a deputy DA is gonna think the case is provable. And then politely point out weaknesses in the case. Although you want to be careful with helping the DA prepare to defend or prepare to get around those weaknesses. It’s a bit of a tap dance on that. But you know, if the weaknesses are obvious, there’s no point in hiding the ball on that and also putting together client’s criminal history. Who the client is? What’s the mitigation? What’s the mitigation here? What else was maybe going on that led to that situation. Then you go to the DA, set up a meeting with them and you begin to discuss the case. You talk about the strengths and weaknesses of the case. You tell him who your client is. And you try to come up with something that you think is a reasonable outcome, given the circumstances. Now there has to be some level of credibility. So if there’s definitely some smoke, if there’s definitely facts, obvious facts where that could potentially support a conviction, you’re not gonna start your meeting with the DA demanding a dismissal, because now they’re just not gonna have any good faith negotiations with you. You have to come in and say, look, if there’s facts that support a conviction, you’re not necessarily conceding that, but you’re coming in trying to work from a reasonable place to see if there’s a way to avoid a conviction through some sort of deferred judgment, especially with a client with little criminal history, or definitely trying to minimize the possible penalties. And that’s how you initiate a plea negotiation. And in most cases don’t go to trial.

Are sentencing hearings important?

Are sentencing hearings important? Yes, very important and in those kinds of scenarios, I was just talking about where, maybe it’s for example a DUI where a client is clearly impaired. The basis for the stop is legal. They made a mistake and got behind the wheel, Bac-Si. They had trouble getting out of the car. Now you’re looking at a police settlement and that’s where sentencing hearing is critically important. In fact, in a lot of cases, a sentencing hearing is the most important part because what you’re doing is trying to convince the judge to understand who you are, why you’re not a public safety threat, why you’re somebody that has a strong chance of rehabilitation being more important than punishment. And putting that together for the courts of sentencing hearing are critical. And you definitely, if you have an attorney there representing you through that stage.

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