Let’s Talk Criminal Law – June 17, 2020

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By: Bill Henry
PublishedJun 19, 2020
14 minute read

Here is the Q&A from June 17, 2020.

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The first thing, I’ve got some questions that were sent by some people ahead of this hearing, ahead of this meeting that I’ll get to, just wanna say a couple things.

First is this is general legal information. This isn’t specific legal advice to your case. We’re not creating an attorney-client relationship here. If you’re gonna create an attorney-client relationship with someone, with our firm, you’re gonna wanna contact us directly to set up a consult so that somebody could talk more specifically to your issues, to your case.

With that said, there’s some general questions and certainly we can talk about that.

Courts During COVID

One thing I wanted to get into first is I’ve had a lot of clients and friends ask me how this COVID-19 situation is affecting jails, the courts, jail sentences.

So quickly, the courts are starting to move things along a little bit again. Most of them aren’t doing actual in-court type of appearances for people unless there’s an emergency matter, but they have relaxed their expectation that people in criminal cases or civil cases show up in person to court, and we’ve been able to get some cases resolved via virtual appearances or telephonic appearances.

We’ve been able to resolve some cases with plain sentencings in favorable manners, and they’re also accepting not guilty pleas now via virtual type of appearance.

So the courts are moving along a little bit again and then as far as jail sentences, the COVID virus has really had an adverse effect on work release programs. I don’t know any county that’s running one now. Most of them have shut it down and I’m starting to hear rumors and suggestions that maybe the work release programs are gonna be shut down on a more permanent type of basis.

They have a real issue with people coming and going, and how do they try to keep everything safe, try to do all the steps they can to prevent the spread of viruses like COVID-19, and obviously anything else under those circumstances.

Jail Sentences During COVID

In a lot of cases that works out in an individual was looking at a jail sentence, it works out in their favor in that since there’s no work release program, the other option is to put ’em in jail or to authorize like a home detention type of scenario, and the courts have been receptive for the most part to that jail alternative type of scenario as opposed to actually having to put someone in jail under the circumstances.

The idea is to keep the jails not crowded, and from the court’s perspective, make sure that the people that are in jail are the ones that need to go. Somebody can serve their 45 day jail sentence with home detention, especially if they’re not a public safety risk.

So anyway that’s something that I thought would be interesting to discuss. You know, with the incident, obviously everyone would know what I’m talking about when I talk about George Floyd, it has brought up concerns about what to do when you’re being arrested by the police and how do you address excessive use of force by the police, and that’s a fairly lengthy topic and I’m actually planning on putting together a video specifically on that topic that’ll be made available.

You know, it’s something I’ve seen for years where this sort of excessive force, I’ve never had a case that rose to that kind of level as to what happened in Minneapolis, but where what the police did to a client of mine was unreasonable and unnecessary, and then they would turn around and charge that client with resisting arrest. So it is an interesting issue to discuss, and I plan to kinda get into that in some detail down the line. It might be interesting for you. But I do have a few questions here.

Can a DUI be expunged?

I’ve got a question out of Denver which asks if a DUI can be expunged. Expungement and sealing, you know, Colorado has changed the statutes for expunging and sealing criminal cases, so really expunged and sealing for the most part just means the same thing, okay.

You CANNOT Expunge a DUI

Can you seal a case so the public can never see it? With a DUI the answer is no. Even if that DUI was completely dismissed, once it’s actually charged and filed in a court you can never seal that, which is a bit bizarre really.

You know, it’s possible under certain circumstances to seal for example a sex offense conviction, but it’s impossible to seal even a DUI arrest, even if the case was completely dismissed, and obviously that does seem a little unfair, but the answer is no.

What should I expect at my 1st court appearance?

I have another question from an anonymous person from Colorado that’s pretty broad, and the question is very very broad. What should I expect at my first court appearance?

It depends on what you’re charged with. For the most part, if you’ve already been arrested and posted bond, if bond’s already set and the bond conditions are already set, what you can expect at your first court appearance is you have an opportunity to speak, and I’m assuming we’re talking about criminal law, to speak with a deputy district attorney who’s handling that docket.

To Talk to the DA or Not

So you know, back in the days when you showed up physically to court, what that meant was that you’d show up, you check in, clerk would say, “Do you wanna talk to the DA?” or I’ve been in some court rooms where you actually sign like a legal pad and then the city attorney or the DA calls your name and they say, “Are you getting an attorney?” Okay, do you wanna talk to me? Don’t have to talk to the DA. If you choose to, if you think you got a real simple matter, maybe you say, “Okay, yeah,” and you just let them tell you if they have an offer for you.

Your Conversation with the DA

Ask them to explain what that offer means. They’re not supposed to give you legal advice but they can give you procedural guidance as to, well I’m offering you say a deferred judgment that results in a dismissal, and what that would mean is if you do this, that, this, we can dismiss the case, something like that, and then you can decide if you wanna consider it.

Asking for a Continuance

You can always on a first appearance successfully ask the court for a continuance to consider your options or to hire an attorney. You’re not expected to come in at that first court appearance in general knowing what you’re doing.

I’ve been in a few municipal courts, municipal courts or cities, and some of them act a little different. So you gotta be prepared for that. Some of them are very pushy and they say, “Well you have to say not guilty then,” which always caught me off guard.

They’re doing that to get their 90 day speedy trial rolling, and that, when you enter that not guilty plea it doesn’t mean that you have to go to trial. You can still try to resolve the case for negotiations.

So long answer to that is there’s a lot of different ways that first court appearance can go, but as long as you’re already bonded out and on bond conditions, or if you’re just showing up on a summons, typically that first court appearance is gonna be I need to figure out what’s going on with my case. I need to get discovery and see the evidence and possibly consult an attorney, and you may want to consult an attorney before you even head to that first court appearance.

Do my charges get dismissed if no one read me my rights?

I have a question from Angie in Denver, and it’s a question I’ve gotten a lot, and it’s, it implicates Miranda, your Miranda rights and the applicable version of that under the federal and Colorado Constitution. Do my charges get dismissed if nobody reads me my rights? And the answer is no.

About Miranda Rights

First of all Miranda is a little complicated, but there’s no requirement, there’s no legal requirement that the police have to give you the Miranda advisement, and if anyone is wondering what I’m talking about, what Miranda is, is a United States Supreme Court case that outlines general rights that a client, that someone should be advised on if they’re gonna be questioned.

So it’s applicable to if the officer starts asking you questions, not, it’s not the Fourth Amendment issue with whether they have probable cause to arrest you or whether they have a basis for stopping you, and the tricky part of it is it only applies when there’s a custodial interrogation. Custody is basically you’re under arrest and there’s kind of a constitutional understanding of what arrest means.

So for example in the DUI context, typically arrest is you’ve been handcuffed and put in the back of the police car, but there are arguments, clever arguments to be made that arrest occurred earlier, then interrogation.

Miranda Rights & Questioning You

Officer has to be asking you questions. If they pull you over on a traffic stop, that’s not arrest, that’s what’s called a Terry type of detention. It’s a temporary detention, where they’re allowed to hold you for a reasonable amount of time to investigate. It’s not considered arrest yet, even though you’re not exactly free to leave obviously. Anything they ask you before that doesn’t trigger a Miranda issue ’cause you’re not under arrest yet.

Once you’re handcuffed in the backseat of the car, and this is just general, again, there can be other situations where a court may find that there was a constitutional arrest. Then if they want to start asking you questions they should do that Miranda advisement which is, you know, you have your right to an attorney, right to remain silent, all those things. It’s basically just what you see on TV. What officers will often do is once they’ve put someone under arrest rather than ask ’em questions, they’ll just let someone go ahead and talk, and everything that someone says, if it’s not in response to a question, it’s considered voluntary.

Miranda Rights Violations

What the remedy is, if there is a Miranda violation. So you’re under arrest and the officer starts to interrogate you, is you file the Miranda motion in the court and you’re asking what the remedy is, is that any statements made in violation of Miranda are suppressed, okay, which means that anything that you said in that custodial interrogation would not be able to come into your trial, wouldn’t be able to be entered as evidence because their statement’s elicited coercively in violation of Miranda.

Anything you said before the arrest, anything you said voluntarily would not be suppressed, and then the other point here is it’s not dismissal. Court’s not gonna dismiss that.

What may happen is if all those statements get suppressed, it leaves the prosecution with trying to figure out do they have enough evidence left to precede, and it could potentially lead to, if you successfully suppress all those statements, having a prosecution in a position where they can’t win the case anymore, but it won’t be dismissed by the court.

Do people need to get an attorney for a misdemeanor?

Next question is from Caitlin in Jefferson County. Do people need to get an attorney for a misdemeanor?

Misdemeanor Offenses Are Serious

Yes, I mean misdemeanor offenses, depending on the level, they can carry up to two years in jail, and a lot of whether you get jail, if you’re convicted of a misdemeanor, it depends on a lot of factors, but you’re gonna want an attorney to, you’re gonna at least wanna consult with an attorney to figure out exactly what you’re looking at. What kinda criminal history do you have? What are the facts of this case? Are they aggravated? Are they the kinda thing, the kinda facts that might, you know, inflame a judge, where in most cases where that judge might be saying, you know, it’s probation, maybe you’re in a position where we need to do some sort of mitigation to convince the court that they don’t need to put you in jail for six months.

So yeah, misdemeanors are also serious. I mean felonies are more serious, but misdemeanors can carry jail sentences, and depending on the facts that might be something that you’re exposed to. So definitely at least consult with an attorney if not hiring one.

Can you get special permission to drive if your license gets suspended?

Joe from Highlands Ranch has asked, “Can you get special permission to drive if your license gets suspended?” Yes you can apply for that.

Applying for a Conditional License

You’re applying, what you’re applying for is a conditional driver’s license, and this is, I’m discussing more in suspension here. We’re not talking about if your driver’s license is revoked for a DUI type of situation, that’s different.

With the DUI revocation you’re looking at early reinstatement with an ignition interlock, but if you’re suspended for points what you’re filing, and I’ve done a few of these, is you file the motion with the DMV requesting the restricted license.

So you’re allowed to drive just to like go to work or drop your kids off at school. When you file that request, then in order for the DMV to deny that request, they have to make a finding that you’re unsafe to drive for any purpose. You’ll get a telephonic hearing. So yeah that can be done.

Obviously you’re dealing with the Department of Revenue so it’s not, you know, a simple process, it’s a matter of getting it over there and actually getting it calendared, but that is something that can be done. You can get a special driver’s license.

Do cops have to tell you why they stopped you?

Anonymous from Denver, do the cops have to tell you why they stopped you? You know, they should, but not necessarily.

Suggestions on Responding to an Officer

I think if you’re in that type of scenario if they start wanting to ask you questions I’ve advised people to do this a lot, and again it’s case dependent. So this isn’t specific you know, advise to your situation necessarily, but if you’re pulled over and the officers are saying, “Hey where’d you come from, where you’re going?” I’d say, “Just first of all can “you tell me why you pulled me over?” and if they refused to do that then, you know, it’s sort of understandable why you wouldn’t cooperate in volunteering information.

A Double Standard

You know, it’s sort of a double standard. It’s actually legal for the police to be dishonest with you.

In the type of scenario where you see the police saying, “Hey, your friend told us you did it.” Your friend never told them that you did it but it’s perfectly legal for them to be dishonest. So you should be aware of that.

Here’s What You Can Say

They really don’t have to tell you anything, but it certainly seems bizarre if they don’t tell you why they stopped you.

And I would demand, “Just tell me why you pulled me over.”

To take that a step further also, if you’re walking down the street and the officer, a police officer comes up to you and he starts asking you questions, “Hey can I see,” and then asks you for your ID, obviously given the circumstances in the world right now this is a risky tactic, but you can just walk right around them and keep going.

They can’t just randomly stop you and ask for your ID. They have to come up with some sort of a pretext at least that you match some description or that you did something that is reasonably suspicious, like talking to known drug dealers, but legally speaking, if you’re just walking down the street, minding your own business, hey how you doing? What are you up to today? Can I see your driver’s license? You can just walk right past them, let them come up with the pretext to hold you.

You know, I get why that’s a scary proposition considering that many of you probably feel like, “Well they’re gonna find a way to hold me,” and you know, there is that issue too, but at least force them to come up with that pretext. If you’re just walking down the street and minding your own business, they really don’t need to be hassling you.

Can what you saw before your Miranda rights are read be used against you?

Denise from Boulder, can what you saw before your Miranda rights are read be used against you? I guess I don’t quite understand if by you, if by what you mean is by what you saw before your Miranda rights are read, does that mean that you already told the police what you saw before your Miranda rights were read, and was there a Miranda violation? I’m not quite exactly sure what Denise is asking.

Anything you say can be used against you, and if you’re telling the police things before you’re in custody, Miranda doesn’t apply. We discussed that a little bit earlier. So, and also nobody has, there’s no requirement that police have to read your Miranda rights. So anything you say can be used against you, especially if it’s voluntary, and as far as what you saw, if you tell the officers what you saw they’ll certainly put that in the police report, and if you go to trial it doesn’t create a hearsay issue. If you’re a defendant in a trial, any statements you make are not considered hearsay. They can come into court. They’re not barred by hearsay. They’re called statements offered against a party opponent. So I think hopefully that helped Denise understand what she was asking.

What’s Colorado’s law about drawing blood if you refuse a breathalyzer test? Do they have to get a warrant?

Gage from Denver, what’s Colorado law about drawing blood if you refuse a breathalyzer test. Do they have to get a warrant? Just wondering how that works.

Yes, so expressed consent law in Colorado, and what that means is you’re pulled over for a DUI and the officers believe they have probable cause that there’s impaired driving, and you can still always fight the probable cause issue, but this is just assuming they survive the probable cause issue. Expressed consent is when they have that PC, you as a driver, you’ve already consented to providing a chemical test, and you have your choice of blood or breath, unless it’s impossible to accommodate one of them, meaning I ran into that once where for some reason the Intoxilyzer at the police station in the jail wasn’t working so they only offered a blood test.

We actually raised that issue and won that issue at the revocation hearing because the Intoxilyzer 10 miles down the road was working, but anyway, just say that there’s some circumstances where it’s impossible to go to get a blood test, they may say you can only do breath, but for the most part you get your choice, and if you refuse, there is a consequence for the refusal, but that consequence is not typically that they’re gonna hold you down and draw blood from you, or that they’re gonna get a warrant, and I think in theory they could but typically they’re just gonna say it’s a refusal. The DA gets to use, if you go to trial in a DUI, they get to argue that you refused because you knew you weren’t gonna pass it.

The defense argument is more, no, these tests can’t be trusted, and for all they know they’re under the legal limit and this test is gonna come back wrong and help the DA convict them when they shouldn’t be convicted.

As far as a warrant to get blood, I’ve seen that happen in vehicular homicide cases, all right, where there’s a accident and a fatality, or an injury and the DA will, not the DA, I’m sorry, the police will get a warrant pretty quick, and they’ll be able to start drawing blood. The only cases I defended with that, or was involved in with that on the prosecution side too, was the individual, the driver was actually unconscious. So they weren’t holding him down, taking the blood, but they did get a warrant for the blood, but within the DUI context I’ve never seen that happen.

If you get stopped because a policeman thinks you’ve done something wrong, like driving drunk, does that give him the right to search your car? And if it doesn’t, how do you refuse without making yourself look suspicious that you’re doing something wrong?

Jake, if you get stopped because a policeman thinks you’ve done something wrong like driving drunk, does that give them the right to search your car? Not without more, and we’ll get to that, and if it doesn’t, how do you refuse without making yourself look suspicious that you’re doing something wrong?

Well, that’s a good question Jake, and I think any of you have been in that situation may have noticed what the police first do is they say, “Hey, do you mind if we search your car?” The reason they’ll do that is that means they’ve gotten your consent, and if somebody tries to challenge that they didn’t have any reasonable suspicion or probable cause for the contact in the search of the car, they can, the DA can say, “Well the defendant consented to the search, “and consent is an exception to the warrant requirement “in the constitutions, both state and federal.” Does it make you look bad? I mean I would just say you’re asserting your rights. You’re saying, “No I’m not gonna consent “to a search of my car. “Why do you wanna search my car?” That’s how I’d answer that. You know, and again it depends on what’s going on with what’s in the car, but that’s a different issue.

Now as far as just pulling you over for DUI, they don’t have a right to search the car unless they see something. For example, they look in the back seat of the car and there’s guns in plain sight, or there’s something that suggests based on other evidence that there may be illegal drugs in the car and they may bring the dog to sniff and alert, or maybe they see an open container, but just because of the DUI stop there’s really no reason to search the car, especially once you’re outside of the vehicle and the vehicle’s shut, there’s no exigent circumstances, and then, you know, there’s no reason for them to have a reasonable belief that there’s contraband in the car just based on drunk driving alone when they haven’t, when they, and I’m talking about law enforcement, haven’t seen anything in plain sight in your vehicle.

Do you really only get “one phone call,” or do you get to call around until you reach someone?

Anonymous, do you really only get one phone call or do you get to call around until you reach someone? You know typically, I don’t know about that one phone call thing ’cause I’ve just never had it come up. I’ve seen situations where if someone’s cooperative usually the police will let them make a few calls if they’re trying to get someone to come pick them up, a sober driver. If you’re in jail, it’s a matter of getting some money on your account so you can make phone calls.

So you know, the one phone call thing does happen, but typically law enforcement’s gonna let you make a couple phone calls if that’s what it takes to find someone to come pick you up from jail, and that’s typically, I don’t see any other questions for now.

Again, I think some of those were interesting topics. We’re gonna be back here next week. I think we’re moving to Friday. We’ll send out a notice of that. I think it looks like the weekly Vimeo live is probably be Friday afternoons for me. I think that’s a good slot, a good way to start the weekend for everybody. So please tune back in. Feel free to send questions.

These were great questions guys, and it’s good to try to think ’em through and explain ’em to people. I’m gonna be also probably putting out a video addressing that issue with excessive force, and what that means for people on the street, how to best handle it and how it looks in court. Again, thanks for tuning in and see y’all next time.

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