Let’s Talk Criminal Law- July 24, 2020

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By: Bill Henry
PublishedJul 28, 2020
11 minute read
Let’s Talk Criminal Law is dedicated to answering your questions. See what Coloradans asked on July 24, 2020. (A transcript of the event is available below.)

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Good morning everyone, it’s Friday 10:00 a.m. We are live talking about matters relating to criminal defense, criminal law. Today we’re focused on that criminal side of things. I’d just like to start by talking about if people have upcoming court dates and you’re concerned about having to make an in-person appearance, in a physical courtroom environment, courts are offering alternatives to that, virtual appearances, phoning in. You just need to either look it up online, contact the clerk of the court, where your case is, or you can have, if you have an attorney, your attorney obviously can facilitate that for you. So most court appearances are still not required to be in person, even if you’re on a bond, as long as you’re making that virtual or phone in appearance that satisfies the bond conditions. That’s an important thing to know if you’re concerned about social distancing, your health. If you have symptoms, certainly the court would not want you to make an in person appearance as well. So today’s July 24th, 2020. I have received some questions from folks. I will try to answer them the best I can.

Can recorded conversations be used as evidence in court in Colorado?

First question is what are Colorado’s rules about using recorded conversations as evidence in court for a criminal case? That isn’t a simple answer. It depends on who recorded the conversation and can that conversation be properly authenticated? So if a government actor, somebody’s acting on behalf of the government, like law enforcement or you know, a confidential informant, someone like that, it doesn’t have to be a police officer to be a government actor. A CI would also be a government actor. They would need a warrant or some sort of court order to allow them to record that conversation for it to be admissible in court. If it’s a friend or some other member of the public, as long as the district attorney is able to get someone to authenticate that recording and authentication just means, yeah, I recorded that conversation and it was with this individual. That means that we’ll come into a criminal case, particularly because statements offered against the defendant are not considered hearsay. They are exception to the hearsay rule. That is a statement offered against the party opponent, the defendant being the party opponent. So yeah, recorded conversations can be evidence in a criminal case.

Drugs were found in my roommates bedroom but I was charged with drug possession too, is this a false charge?

Next question, here’s the scenario. Let’s say cops find illegal drugs in my roommate’s bedroom. And I’m charged with drug possession too. Is this possibly a false charge? What next steps do you recommend? Well, the next steps are easy. You have a complicated situation and you’re probably going to need representation to figure this out. I’d need to know more information about the scenario. Most importantly is how did the police officers come to be in that roommate’s bedroom? Were they there illegally? Did somebody consent to let them in? And then first, well, first of all, I actually had a case like this once where I had a client who lived with a landlord, it was a DUI case, it was a little different. They had found his car abandoned, tracked him down to where he lived. The landlord consented to let them in the house, which was legal because she has power to do that. But then they just entered into client’s bedroom, which is not legal. They would have needed the client’s consent as the renter and the occupant of that room to walk into the bedroom. So they actually had a problem. Every other thing that their whole conversation with the client was suppressed and thrown out of the case. So did they get there? Were the police executing a warrant in the roommate’s bedroom? Did they have consent to be there? Then as far as charging this individual, not the roommate but the person, I guess the other person living in the apartment or house with drug possession, is that a false charge? That depends, and it’s not really the false charge isn’t exactly the terminology. I think what you’re asking is that, is that illegal charge, a legal arrest? It depends on the facts and circumstances. If they have some sort of suspicion that this person’s involved with the roommate, they can certainly bring charges as far as proving it. That’s a much trickier situation. That’s why you need legal representation. It really just depends on what’s known to law enforcement, what their evidence is? If it’s simply just, they suspect your roommate is possessing drugs and they find out the roommate’s possessing drugs. That doesn’t mean that they can just make a leap to charging you with possession, just because you’re also in the house. There would have to be some sort of evidence that you were involved, at least in my opinion. And if they do bring the charges, you’re gonna need to sort that out and you’d want an attorney, public defender, private attorney, whatever, helping you with that.

If accused of civil theft and a lawsuit has been filed, should I hire a criminal defense attorney?

Next question is would you suggest hiring a criminal defense attorney if someone accuses you of civil theft and files a lawsuit against you? I’d suggest hiring an attorney that handles civil cases and maybe particularly one that does both criminal defense and civil litigation. Civil theft is a theory of recovery in lawsuits. And it’s not really criminal, it’s not carrying jail time. It’s the same type of facts could lead to a jurisdiction, lead to referral to a district attorney’s office. And they may bring criminal charges. But civil theft is a civil matter and it just it’s used because it comes with statutory damages. The damages don’t have to be proven up. So you don’t need a criminal defense attorney for that, unless that criminal defense attorney also does lawsuits, does civil.

What happens to a first time DUI offender in Colorado?

What is the punishment for, this is the fourth question folks, what is the punishment for a first time DUI offender in Colorado? So there’s the first time DUI does carry jail time and I believe it can be up to six months, but that doesn’t happen. Typically for a sort of vanilla first time DUI offense. And what I mean by vanilla is there’s nothing aggravating about it. Aggravating factors would include there was an accident, really high blood alcohol content, those sort of things. Without the aggravating factors. Typically first time DUI offender, you’re not going to jail. There’ll be a short jail sentence suspended. You will be required to submit to, you’ll be on probation and you’ll submit to, what’s called an alcohol evaluation that probation will do. And then they’ll recommend the level of treatment. And based on that recommendation, you end up having basically classes. And there’s a lot of factors that go into what the level of treatment is recommended. One of the factors is, are their priors? So as a first time DUI offender without aggravating factors, you’re probably looking at the less arduous course. And then depending on whether you’re convicted of Driving While Ability Impaired or Driving Under the Influence, there is a minimum of either 24 hours or 48 hours of what’s called useful public service, which is basically volunteering at a nonprofit. Of course, it’s not called volunteering because it’s not voluntary. Instead we call it public service. You’re being court ordered to do the public service. And usually you have an amount of time anywhere from 90 to 180 days or so to get that done.

What is the the difference between being detained and getting arrested?

Here’s an interesting question. Can you talk about what it means to be detained and how that’s different from being arrested? Also, can you leave whenever you want, if you’re only being detained? So this is Fourth Amendment law for the most part. The Fourth Amendment of the United States Constitution, and then the relevant articles corresponding in the Colorado Constitution or whatever state you’re in. The whole point of the Fourth Amendment is to protect, one of the points sorry, of the Fourth Amendment is to keep the government out of your life, to protect people from unreasonable government intrusion. And when you think about what was going on in the world, when the constitution was framed, it makes sense, right? So that was the idea was that the government just can’t walk into your life, start looking around, start asking you questions without you consenting to it, or some other exception to it, or without a warrant. I’m gonna talk about this, I guess, in the context of a DUI stop. Coz that’s probably easiest to understand. A typical bread and butter DUI stop is gonna begin usually with some sort of a traffic infraction involved, observed by law enforcement. So they’ll observe someone make a right hand turn without signaling or somebody is having trouble maintaining their lane of traffic. And the tires are crossing over the marked lane, either in oncoming traffic, or if it’s a four lane road into the other lane of traffic or they’re speeding. Now, they’re going to initiate a traffic stop. And that is a detention. You’re not under arrest, but it’s not like you can just drive off either. I think maybe that makes sense, right? So they have what’s called an articulable reasonable suspicion that you or that the driver has committed traffic offense and they are on their legal rights to initiate a traffic stop and detain you for a reasonable amount of time to investigate. So then what happens? How does it turn into something more? Is if during that detention, they observe evidence that takes this reasonable suspicion that an offense has been committed to probable cause that a crime has been committed and that’s when they can place when law enforcement can police you under arrest, probable cause, so what happens usually in the DUI stop is they notice odor of alcohol, ma’am have you been drinking? Oh, okay, how long ago? Would you step out of the car, please? Would you submit to voluntary roadside tests? You know, based on my training experience, based on what I’m observing, I’m talking as the officer obviously, I’ve got reason to suspect that you are impaired tonight Miss. I’m going to be placing you under arrest. Now you’re under arrest, Okay? The detention typically has to, can only last for a reasonable amount of time. So they can’t detain you for an hour, waiting for a sniff dog to show up, for example. Typically that would be unreasonable, but you still can’t just drive off. You can’t walk away from a detention. Now, the legal description in constitutional law and criminal law is it’s not a detention anymore. It’s now considered under arrest when your freedom of movement has been restricted to the degree associated with formal arrest. And what does that mean? That pretty much means you’ve been handcuffed and told you’re under arrest or put in the back of a police car. It is an objective standard, not a subjective standard. So I had a case that we won a suppression motion on maybe eight months ago, where the officer told the client I’m handcuffing you and putting you in the back of my car, but you’re not under arrest. Didn’t matter whether my client believed he was under arrest or not subjectively, objectively. If someone’s handcuffed in the back of a car, your freedom of movement’s restricted to the degree associated with a formal arrest. And the court obviously agreed with that because it was pretty easy for the judge to be able to see that.

How can one find out if they have a bench warrant?

Next question, we are cruising right along. And I do apologize by the way, for starting a couple of minutes late, I was stuck on a court appearance. How does one find out if they have a bench warrant? Does the court let you know? Or do you merely find out if you happen to be stopped? Typically with a bench warrant, it means that there’s been a failure to appear at court or a failure to comply with probation. So that is something you can find out about. Now arrest warrants, they may not share that with someone, if someone calls upstate Sheriff’s office and says, hey, is there a warrant out for my arrest? They may not tell you because they don’t want you to flee the jurisdiction. If they’re concerned you are a flight risk. Although oftentimes law enforcement will contact you, contact individual and say, hey, you can come turn yourself in, or we’re issuing an arrest warrant. But with bench warrants typically, yeah, you can see that they’re there because the reason the warrant has been issued is that someone didn’t comply with something, someone didn’t make their court appearance, didn’t check in with probation, didn’t finish their public service, something like that. And really the goal is to correct that problem, to get the person, to show up to court, to get the person to comply with probation, that there may be a consequence, for the failure to appear or for failing to comply with probation. But generally the idea is to get this person who didn’t follow through with what the court was requiring to start to comply. So you can typically see if there’s a bench warrant, the court will let you know the clerk of the court, will let you know, and you can actually usually see it that the court has filed it.

Can police demand to look through your cellphone?

Can police just demand to look through your cell phone? And any advice on what to do if this happens to someone? No, police can’t, I mean they can ask you, they can’t demand. So it’s just the same thing as talking to the police. Them looking through your cell phone, okay. You don’t have to say anything and you don’t have to give them your cell phone. They can’t just look through your cell phone unless you consent to it. Or they have a warrant or there’s some sort of exigent circumstance where they can reasonably articulate later that they needed information off that cell phone to protect somebody from harm. Otherwise they can, if they demand a look for your cell phone, you can say no, just the same way you can say, no, I’m not answering that question. Okay, you can just walk away. If something further happens, the police will have to come up at least legally speaking with a reason to detain you other than the fact that you just didn’t agree to let them look through your cell phone.

Can you offer some tips for someone who is a possible suspect in a case?

And here’s the last one for today. Well, that was quick. Can you offer some tips for people who maybe a quote, I’m reading it directly, a quote “suspect” end of quote, in a criminal case. Just looking for tips about whether a suspect should agree to talk to investigators or even talk about the case over the phone, that type of advice. You know, that’s a tricky question to answer in the sense of it depends. It depends on what this person’s a suspect for. As a general rule, anything that you say when you talk to an investigator, there is a risk that it gets misconstrued that it’s not reported exactly as you said it, and that it’s somehow used against you. Your best bet is to just tell this investigator that you have a lawyer and that your attorney is more than happy to speak with the investigator and what your attorney is then doing is trying to get the investigator to show their cards a little bit. So we have an understanding of exactly what’s going on. Investigator may not do it, but it’s the same thing. As on the flip side, what the investigator is trying to do when they’re talking to you, and quote “suspect” is to get you to show your cards. And oftentimes they may not even tell you exactly what they think you may have done. So I know it’s tempting oftentimes and sometimes it works. I’m sure it does to have a talk with an investigator, law enforcement, explain yourself and law enforcement goes, gee, doesn’t sound like anything happened. You know what, thanks for talking to me, but there’s, I can’t tell you often that happens. It could put you into a difficult position if what you say is misinterpreted, misconstrued, misreported, and it may not even be that the officer’s doing that maliciously, it happens though. Sometimes just by mistake. So there’s a risk of that. If you’re a suspect in a criminal case, and you know you’re a suspect in a criminal case, I’d suggest exercising your right to remain silent until you’re able to have enough information to understand exactly what you’re suspected of doing so that, you know, you don’t say anything that may hurt you in that manner. I’m just looking to see if we’ve received any last second questions.

Can felony convictions be sealed?

Oh, and a question about a sealing. I see a question about the sealing. The question is can felony convictions be sealed? The answer is yes, not all of them, but yes, a lot of them can drug felonies can be, there are certain felonies and there’s actually certain misdemeanors that are specifically excluded from being eligible to be sealed when they’re a conviction. Anything that was dismissed can be sealed. But the thing that you have to understand is that either an entire case can be sealed or not. What I mean by that is if you had a case where there were six charges, five charges were dismissed, right? Those five charges are all eligible to be sealed under Colorado law because they were dismissed. But that one charge that was a conviction. The court has discretion to seal that. And also that conviction may not be eligible to be sealed at all. That means no charges can be sealed. Either you can seal the whole case or you can’t. And to a little bit of a complex statutory scheme, where you start out by looking at the sealing statute 2472, I believe it’s 706 is sealing convictions. And it tells you, you know, class one, two, three felonies can’t be sealed. Everything else can be, but then it takes you down, to except the statute doesn’t apply to these and it lists a whole bunch of things, which means that those categories can’t be sealed. And not only that, but in that statute, it says anything entitled, 18, whatever. So you got to go to that title to try to figure out exactly what they’re talking about. It does take some navigating to figure out whether or not a specific charge, specific conviction actually is eligible for sealing.

So with that, everyone thanks again. Keep safe, keep your questions coming. This is great for me, because it makes me look at certain things freshly that I haven’t thought about for a few months sometimes. And I appreciate that it’s Friday, have a great day, stay safe this weekend and hopefully avoid any law enforcement contact, take care.

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