Let’s Talk Criminal Law – June 26, 2020

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By: Bill Henry
PublishedJun 30, 2020
14 minute read
Let’s Talk Criminal Law Q&A is dedicated to answering your questions. See what Coloradans asked on June 26, 2020. (A transcript of the event is available below.)

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We are live on Vimeo and Facebook and other platforms. This is looking like it’ll be the typical time slot for me, 10 a.m. on Fridays. If that changes, we’ll certainly get the word out. I’m joining you from my front porch today ’cause it is such a lovely day out. Feels great, feels like Friday ’cause it is Friday. I’ve got some questions I’ve received from folks ahead of this live event. Let’s get right into it. One of the questions I’m receiving is, “What are courts doing as far as jail sentences “given the safety risks involved with COVID?” In my experience, courts are moving again. They’re taking plea agreements, sentencings, and not guilty pleas virtually or over the phone, which usually they would not wanna do that except with someone in person. And my experience so far with jail sentences is the courts are very receptive to either suspending a jail sentence or exploring home detention or alternatives to actually going to jail. Most counties as far as I know, I don’t know any counties that are running work release right now. I could be mistaken on that. Most of the counties I’ve been dealing with have shut down their work release programs. So actually, if somebody has a case pending where there looks like a pretty strong possibility of a jail sentence due to criminal history or aggravating circumstances, it might be a good time in the next several months here to get that case resolved in front of a judge for sentencing.

I don’t know many people who have an attorney on speed dial. Who should you call if you get arrested and don’t have an attorney?

I have a question from an individual out of Denver. What he’s asking is, “I don’t know many people “who have an attorney on speed dial. “Who should you call if you get arrested “and don’t have an attorney?” Usually when you’re arrested, and just so you guys understand, what you see on TV and what you hear about is that you have the right to consult with an attorney. Basically, how that works is if you’re arrested, if you’re in custody and you say you want an attorney, you say the word lawyer, the police stop talking to you. Any information they get from you after you’ve said lawyer, that you want an attorney, would be suppressible as not exactly illegal police conduct, but for lack of a better term coercive police conduct, wouldn’t come in at a trial if it got that far and it couldn’t be used against you in court. As far as what to do if you get arrested, what you’re really looking to do at that point is contact someone to post bond for you or reach out and contact somebody to find you an attorney to potentially appear at court for you the next day to argue bond. But you don’t necessarily get to talk to an attorney when you’ve been arrested. You get to assert your right to an attorney. And then you’re able to reach out and try to contact someone. But an attorney cannot post bond for you ’cause that would give us a financial interest potentially in your case which would be against the rules of professional conduct in pretty much every state I’ve ever heard of and definitely in Colorado. So what you’re looking to do is bond out and have someone else contact your attorney in case you have trouble making bond to get you in front of judge to argue for a reduced bond.

Can you get arrested for smoking weed on your front porch?

Next question is an interesting one out of Denver. “Can you get arrested for smoking weed on your front porch?” Now first of all, you can’t get arrested for smoking weed in public unless there’s a warrant outstanding or something worse happens. It’s a ticket. You should not be getting handcuffed anyway. But as far as your front porch, your front porch is not public. It’s curtilage; it’s your home, so no. The only thing I can think of is if neighbors are complaining for some reason that it’s a nuisance, I suppose a creative officer could write some sort of a public nuisance type of ticket. But that’s a reach. That would be the only theory I can think of where you could even get a ticket for smoking weed on your own property, marijuana.

Can I see my kids if my ex somehow gets a restraining order on me?

Next question really looks more like a family law question. So I’ll try to address it. The individual’s asking, “If my ex gets a restraining order “on me, can I see my kids? “We went through a bitter divorce “and now she’s threatening this.” Apparently, she’s threatening to get a restraining order. “Is there anything legally I can do to prevent her “from carrying out these threats? “I don’t know if what she’s doing is a crime or not.” Well if there was a divorce, that means that there’s an open domestic relations case. There’s a family law case. So if she was going to request a restraining order, that would most likely be the area that she would look to do that in, to do that through the family law case. Now in order to keep you from seeing the kids, she’d have to show that somehow the kids are put in danger by being around you. So even if a court agrees that there’s reasons for her to be protected, for you to be restrained from seeing her, that doesn’t mean you can’t see the kids. And then typically, there would be some sort of arrangements made to communicate strictly for exchange of the children and that sort of thing. The other situation, hold on a second. Sorry, the household cat was meowing at me through the door. The other way she could try to get a restraining order actually would be civil. As far as trying to get a criminal restraining order, she would have to make some allegations of domestic violence, an active domestic violence, and convince an officer to request a warrant. So if she were to do something along the lines of getting a restraining order, that would likely be through your family law case, it’s really a family law matter, or through some sort of a civil restraining order. It’s not illegal unless she perjures herself or does something along those lines.

Is it self defense if someone provokes you to the point of you acting out in response to their barrage of insults?

Next question, “Is it self-defense if someone provokes you “to the point of acting in response “to their barrage of insults?” No, it’s not. Unless there’s something verbally that puts you in imminent threat of harm, a reasonable imminent threat of harm, acting out physically at someone based on insults, there’s no affirmative defense for that. And what an affirmative defense means is say you’re charged with assault, and you did hit someone. So your defense isn’t no, I didn’t hit someone. Your defense would be an affirmative defense of self-defense saying I hit someone because I was in danger; I was protecting myself. In this scenario of being provoked by verbal insults, while it may be mitigating, it may be understandable, a judge or a prosecutor may think that the person that took a beating from you kind of had it coming socially, it’s still not legal. It’s still not self-defense, and you still could be charged with assault or harassment contact.

Can only minors have records sealed? If not, when can someone have a record sealed?

Next question is about record sealing. “Can only minors have records sealed?” No, no, adults can have their records sealed. And the follow-up question is, “When can someone have a record sealed?” It depends, and there’s about seven different statutes that you have to navigate to figure out what is eligible for sealing. Certain cases are specifically excluded. For example, a felony menacing conviction is specifically excluded from being eligible to be sealed. You would have to consult with someone to figure out exactly what the situation is for you. If you have a case that was completely dismissed, or a successfully completed deferred judgment and sentence, which is where someone enters a plea of guilty, a period of time passes, they do counseling, they stay out of trouble, and then that plea gets withdrawn and the case is dismissed, those cases can be sealed. In fact, the language in the statute is that the court shall seal those. If there’s convictions, so Class 2 or 3 misdemeanor conviction. Well first of all, misdemeanor convictions and certain felony convictions can be sealed. The court is not told by statute that they shall seal it, so it’s up to the judge. And there’s a period of time that has to pass first. And that time starts to run after probation terminates typically. So either the case closes or probation terminates, whatever happens last. On a Class 2 or 3 misdemeanor if I remember correctly, it’s two years from that probation terminating before you can file a motion to seal. And you file the motion right into that criminal case. And then there are factors the court considers. So basically we do a balancing test. And we could talk about that all day long. It’s probably a different subject matter. Class 1 misdemeanors are three years. Class 4, 5, and 6 felonies can be sealed after three years after termination of probation. And then drug felony 3 and 4, I believe are eligible to be sealed. Again, there are specific things that are excluded: a crime of violence, extraordinary risk crimes if I remember right. It does take analysis of the statutes to figure out if a case is eligible to be sealed or not. But a lot of cases can be sealed. And in fact, about a year, year and a half ago, the defense bar was able to push through legislation making it much simpler to seal convictions and also broadening the scope of what can be sealed as well.

If you refuse to take a breathalyzer test at a sobriety check point, will police automatically arrest you? What would the charge be?

Another question from Robin in Colorado, “If you refuse to take a breathalyzer test “at a sobriety checkpoint, “will police automatically arrest you? “What would the charge be? “Can you explain what happens if you don’t do a test “at a checkpoint?” That’s a great question. I had a DUI checkpoint case it must have been four years ago up in the mountains up in Garfield County. And we went to motions and won because the DA failed to present evidence that the DUI checkpoint had been set up properly. Even though it had, he just didn’t ask the officer any questions. And there’s basically a checklist of things that have to have been done for that checkpoint to be constitutional. A publication, so they have to publish somewhere that they’re gonna be doing it and where and when. There also has to be signage posted. And there’s other factors. One of the critical factors is if you’re driving into a DUI checkpoint and you see a sign saying “Checkpoint Ahead,” there has to be a way after that sign for you to be able to make a turn and not drive into the checkpoint. And the police can’t just pull someone over because they made a turn, and I’m not talking like a U-turn. There has to be a way for you to not drive into the checkpoint. So you drive past a sign, the checkpoint’s in front of ya, there has to be a left or a right turn that you can legally make in order for them to have set this checkpoint up in a way that is constitutional in Colorado. If you make that turn, the police I suppose they can follow you, but they can follow you for any reason. They can follow anybody anytime, but they can’t just pull you over based on not going into that checkpoint. Now as far as the rest of the question, if you refuse to take a breathalyzer test, a lot of other things have happened before you get to that breathalyzer test. What’s going to happen is the police will approach you and begin talking to you. And if they don’t smell an odor of alcohol or notice anything, they’re not likely to even go any further with that. They’re gonna send you on your way. By the time you’ve gotten to a breathalyzer test, there’s been some sort of reasonable suspicion on an officer’s part that there are signs of impairment. And now you’re just in a regular kind of DUI scenario. The fact that it was a checkpoint is more relevant for did they set the checkpoint up right. You drove into it in theory because now here you are being asked to take a breath test. It’s not so much an issue of the sobriety checkpoint anymore. It’s did you voluntarily drive into the checkpoint? Yes. So then, did they have a basis to get to probable cause to invoke Colorado’s expressed consent law which is a hey, take a breath test. The other thing too is the portable breath test. The handheld breath test is not a chemical test under Colorado law that is used at trial to prove a blood alcohol content. It’s a tool officers can use in the field to help them form their probable cause. But it’s not admissible if you get to trial. So basically, the police aren’t gonna automatically arrest you for refusing to take a breath test. Most likely, they’ve already arrested you because they have to form their probable cause to ask for that breath test if we’re talking about the handheld breath test and I know it’s confusing. Now they’re forming probable cause. If you say, “No, I’m not gonna blow into that “handheld breath test thing; I don’t believe it’s accurate,” they won’t arrest you for that. They will rely on the totality of what they’ve observed. And likely at this point, they’re going to believe that they’ve observed enough to arrest you. But it’s not automatically for that breath test. And the charge would be driving under the influence or driving while ability impaired.

What should you do if you’re stopped for something like a taillight, but the cop asks you if you’ve been drinking. Do you have to answer that? And will that give them more suspicious?

Next question is from Jamie, not sure where from. “What should you do if you’re stopped for something “like a taillight, but the cop “quote acts as if you’ve been drinking? “Do you have to answer that? “And what will make them suspicious?” So to break that down, being stopped for a broken taillight is a perfectly legal stop under Colorado law under constitutional analysis. You have Fourth Amendment protection against unreasonable intrusion into your life. And this broken taillight gives law enforcement a basis to get into your life because that’s a violation of code. If they ask you questions, you don’t have to answer anything. Will that make them suspicious? Yeah, probably. But still, you don’t have to do anything as far as responding to their questions. It’s a tricky scenario. When somebody says, “I haven’t had anything to drink,” but then there’s an odor of alcohol coming from their breath and multiple officers smell it, it gives them a credibility problem moving forward. It’s best probably not to say anything. And the other catch 22 on that is if you’re like, “Yeah, I had a drink a while ago,” well now, they get to use the fact that he admitted to having had an alcoholic beverage, or she admitted to having had an alcoholic beverage. They can use that. You’re kind of damned if you do, damned if you don’t. Pardon that analogy there. You don’t have to say anything. You don’t have to do the roadsides. They’ll formulate their basis for whether or not they have evidence of impaired driving. And it’s obviously not an easy scenario to be in. They will be suspicious if you don’t answer their questions, but you don’t have to. You don’t have to voluntarily participate in the roadsides. The one issue is the chemical test if it gets that far, if you refuse to provide a blood or breath test, and we’re talking about the chemical test. There is a nasty DMV consequence for refusing to take the chemical test. But there’s also DMV consequences for being over a .08 or being over a .15. So not an easy scenario to be in. But you don’t have to answer, “Yes, I’ve been drinking.”

What exactly does driving while ability impaired mean? Are the consequences the same as a DUI?

This next question is from a gentleman named Eric in Aurora. And it looks like he is trying to figure out the distinction between driving while ability impaired and driving under the influence: so DWAI, DUI. He’s asking what does driving while ability impaired means. So driving while ability impaired is that there’s an assumption of it if there is a blood alcohol content, breath or blood test, between a .05 or a .08. And DUI is presumed if there’s a BAC over a .08. So we’re talking about 8%, right. There’s a different jury instruction and a different definition of driving under the influence, or driving while intoxicated, versus driving while ability impaired. DUI, the definition and jury instruction is substantially incapable of operating a vehicle safely. That’s a simple definition of it. DWAI, the definition is impaired to the slightest degree such that their ability to operate a vehicle may not be as good as it should be. And I’m not gonna go through all the legal words on that second part, but it’s impaired to the slightest degree. And it’s a very very friendly jury instruction for the prosecution. It lets them argue, “Here she was just impaired “to the slightest degree; and you know that “because there was the odor of alcohol “and there was a little bit of weaving “and they stepped off the line once “on the walk-and-turn roadside test.” It’s a much easier burden for the prosecution to prove, and the prosecution doesn’t have to pick one theory over the other. They can prosecute on a DUI while also reserving the driving while ability impaired by, what’s it called, a lesser included offense so that the jury can make a determination, “Well we don’t think “he was substantially, or she was substantially incapable “of driving, but we do think that person “was impaired to the slightest degree.” The consequences are the same as a DUI for the most part. It really only matters if it’s a first offense. If there’s priors, the DWAI versus the DUI on a second, third, fourth offense not really any difference whatsoever. On the first offense basically, the consequences for driving while ability impaired are half of everything for DUI. And also the DWAI doesn’t necessarily trigger a revocation of your drivers license under certain circumstances where the DUI does. But basically on the first offense, a DUI conviction, for example, would be a minimum of 48 hours of useful public service; and on the driving while ability impaired conviction, it’s 24. Also, the fines are cut in half.

What’s the test to determine if you’re high while driving? Also, what’s the .08 BAC version with marijuana?

Great question, “What’s the test to determine “if you’re high while driving? “Also, what’s the .08 BAC version with marijuana? “I’m curious how police determine whether “you’re a little stoned versus too high to drive.” So first of all, the marijuana type of DUI cases are harder to prosecute than the alcohol related driving cases. Juries get signs of someone being impaired by alcohol. And a lot of times on the body camera footage or the dash camera footage, there’s a lot of things that may obviously look like somebody’s been drinking. Marijuana’s a lot different. Also, juries are receptive to the .08 BAC explanation whereas the marijuana explanation is five nanograms of this byproduct that’s in your system of THC that is supposed to indicate recent marijuana use. So when somebody gets the drug screen for a marijuana or a drug-based DUI, on the marijuana thing there’s actually three different chemicals, THC-based chemicals, that come back. One of ’em is just the standard that somebody that smokes, like kind of a pre-employment drug test. Doesn’t tell you they’ve been smoking that day. And then these other ones are supposed to be indicative of recent marijuana use contemporaneous to the driving. But it doesn’t work. It gives them a presumption. It doesn’t give them this five nanograms means that they were per se impaired. Whereas with the .08 alcohol, they get to, they being the prosecution, they get to charge you with DUI per se which means all they have to prove on that is that you drove a car; you had the test; the test was over a .08 within two hours of driving. There’s nothing like that on the marijuana or the drug side of this. And what police rely on are tests. There are certain certifications: drug recognition expert or evaluator. They rely on tests that are based on crash studies; and they are very possible to pick apart from the defense perspective. The marijuana DUI cases are much, they’re defensible. And we’ve had success at those at trial. Took one to trial about three years ago. And it was a little more complicated because there was a combination of alcohol and marijuana, very low level of alcohol. They brought in, they being the state, brought in their main expert at the time. And she was basically testifying that even a small amount of alcohol with any marijuana means you’re very incapable of driving. And the jury didn’t buy it; we got an acquittal. But we can’t promise an acquittal on every marijuana case. I’m just saying that they are more difficult to prove for the prosecution.

How easy it is to beat a receiving stolen property charge when you didn’t know the stuff was stolen?

Question from Anonymous. “How easy is it to beat a receiving stolen property charge “when you didn’t know that the property was stolen?” Well if you don’t know the property’s stolen, you’re not guilty of anything. However, the problem is that you could run into is it’s not a subjective analysis which means the prosecutor’s looking at this case. They don’t have to prove exactly what’s going on in your head because that’s impossible subjectively. Objectively, which means what would a reasonable person under these facts of circumstances believe, that’s what they have to prove is that objectively you knew or should have known that this material was stolen. And that just depends on the surrounding circumstances. Who’d you receive the property from? What was your understanding of why they were giving you the property? What was your understanding of where the property came from? It really just depends on those surrounding facts. And again, it’s an objective analysis.

And that’s all we seem to have for today. Those were some great questions, everybody. It’s Friday. Everyone be safe. If you go out tonight, keep yourself safe. Keep some distance from folks. Make sure you make good decisions. Police are looking for DUIs again, so don’t drink and drive. Stay safe and we’ll see you back here next week.

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