Colorado Springs Criminal Law Blog

THC Driving Bill Passes Colorado Senate, Awaits Governor’s Signature

Thu, 16 May 2013 12:29:48 -0700

Colorado drivers now need to learn new limits for Driving Under the Influence of Drugs (DUID). House Bill 1325, which sets limits on blood levels for driving after smoking marijuana, has been passed by the Colorado Senate and now awaits Governor John Hickenlooper’s signature. If signed by the governor, drivers whose blood exceeds five nanograms per millileter (ng/mL) of THC per milliliter will be presumed to be driving while stoned.

The bill allows drivers who have been charged with DUID to argue whether they were impaired at the five ng/mL level. This is unlike impairment of alcohol charges because the driver cannot argue whether the 0.08 blood alcohol level (B.A.C.) truly impairs the driver.

The legislature drafted the bill to allow the driver to refute the five ng/mL level because THC can linger in users for longer periods of time. Typically the ng/mL level of THC is extremely high upon initial use and drops off after two to six hours. Some studies have indicated that habitual users would not be affected by this law because habitual users can sustain a level of THC below five ng/mL days after use.

On the other hand, other studies have shown that users may still have ng/mL levels more than five days after use. Dr. Lantz, the head toxicologist from Rocky Mountain Labs, claims to have test results from an individual showing a 20 ng/mL level at 24 hours after last use. At this level, the legislature feels someone is too high to drive, but the legislature has recognized that it’s next to impossible to determine actual impairment via a blood test under currently available testing technology. Therefore, the legislature has written the bill in a manner that allows users to argue whether their ng/mL level amounted to actual impairment.

House Bill 1077 Proposes Changes to DUI Laws

Wed, 15 May 2013 16:41:14 -0700

The General Assembly is currently debating whether they should sign in House Bill 1077. House Bill 1077 would be instrumental in changing current laws regarding DUI, DUI per se, and DWAI arrests. The bill would allow drivers to challenge the validity of the law enforcement officer’s initial contact with the driver at Department of Revenue (DOR) driver’s license revocation hearings. The hearing officer will consider these issues when a driver raises them as defenses.

The bill was proposed after the Colorado Court of Appeals decision in Francen v. Colorado Department of Revenue, Division of Motor Vehicles, __P.3d __ , (Colo. App. no. 12CA110). The court of appeals ruled that the lawfulness of the initial stop of a motorist is irrelevant for purposes of Colorado’s express consent law. This ruling overturned many years of case law, which allowed the law enforcement officer’s initial contact to be challenged.

Getting Your License Reinstated With Ignition Interlock After a Colorado DUI

Mon, 13 May 2013 12:33:55 -0700

In Colorado, a person convicted of driving under the influence (DUI) may be able to get his or her driver’s license reinstated if the driver agrees to use an ignition interlock device. The device is installed on the driver’s vehicle, usually at the driver’s expense. It requires a breath test free from alcohol in order to start the vehicle and may also require breath tests at random times while the vehicle is in motion.

The Colorado Division of Motor Vehicles keeps a list of approved ignition interlock device vendors. If you are eligible, you choose a vendor, have the device installed, and then submit several pieces of information to the DMV, including an affidavit, installation certificate, application form and fee, an SR-22 certificate from your auto insurer, and evidence you’ve completed an approved drug or alcohol treatment program. Your reinstated license is typically sent to you by mail; according to the DMV, the process can take up to 20 days. After reinstatement, you may need to take a driving test in your interlock-equipped vehicle, which can be scheduled at a Colorado driver’s license office.

Police Invest in Laser Technology to Catch Speeding Drivers

Mon, 06 May 2013 11:52:07 -0700

In Colorado and other states, police units have begun relying on laser technology to monitor the speed of drivers and to ticket those who are exceeding the speed limit. While many law enforcement agencies hail the developing technology as a benefit, many drivers aren’t so sure that the benefits outweigh the costs.

For many years, police have used “radar guns” to monitor and calculate the speeds of vehicles. Rather than shooting a projectile, these “guns” use radar signals to identify where a vehicle is and approximately how fast it is going. Radar guns have their limitations, however. One major limitation of radar technology is that radar signals form a cone shape as they travel away from the detector - meaning that the farther away a vehicle is, the less likely the radar gun’s measurement of its speed will be accurate.

Understanding Evidence Used at a DUI

Thu, 25 Apr 2013 08:00:06 -0700

If you’re facing a drunk-driving charge in Colorado - either a charge for driving under the influence (DUI) or driving with ability impaired (DWAI) - you have the right to go to trial. If you do go to trial, the prosecutor may use several types of evidence to try and prove that you are guilty of DUI or DWAI.

Here are two categories of evidence used in many DUI and DWAI trials:.

Witness testimony. Witness testimony may be used in two ways in a DUI case. First, the prosecution may call a witness to testify to his or her actual observations - for instance, by asking the police officer who arrested you what he or she saw, heard, or smelled.

Second, witness testimony may be used to establish that another piece of evidence actually is what the prosecutor claims it is. For instance, a lab technician may be called to explain the process of testing a blood sample that created a blood alcohol concentration (BAC) reading.

What Happens at a DUI Trial?

Tue, 23 Apr 2013 11:20:47 -0700

Every person charged with driving under the influence (DUI) or driving while ability impaired (DWAI) in Colorado has the right to go to trial, although not everyone chooses to go to trial.

Here’s an overview of the process used in most DUI trials, starting on the day of trial:

The parties meet in the courtroom and discuss preliminary issues, like last-minute plea agreements or the ability to use or to keep out certain pieces of evidence.

If you have a jury trial, the process of “voir dire” is used to pick the jurors. The chosen jury is sworn in, and the judge reads pre-trial instructions to them.

The prosecutor makes an opening statement describing what he or she intends to prove. Your attorney may make an opening statement, or he may wait until the second half of the trial.

The prosecutor presents evidence to try to build the case he or she described in the opening statement. Evidence may include witnesses, lab reports, and other items. Your attorney may challenge the evidence, cross-examine witnesses, and raise objections to protect your legal rights.

The prosecutor “rests,” or finishes, and your attorney takes the floor. Your attorney may call witnesses or present other evidence, and the prosecutor may challenge it, cross-examine witnesses, or raise objections.

Supreme Court Decides Warrants Are Needed Before Most DUI Blood Tests

Wed, 17 Apr 2013 13:01:55 -0700

The U.S. Supreme Court ruled this week that police must, in most cases, first seek a warrant from a judge before ordering a blood test of a person arrested for driving under the influence of alcohol (DUI).

The case before the Court involved a driver from Missouri, who was pulled over on suspicion of drunk driving. After administering several field sobriety tests, the police officer asked the driver to submit to a breath test. He refused and was taken to a hospital, where blood was drawn despite the driver’s objections. The driver was later convicted of a DUI in Missouri. The Missouri Supreme Court, however, threw out the blood test results, stating that the officer’s failure to get a warrant made the blood draw an “unreasonable” search and seizure prohibited by the Fourth Amendment.

In both the state Supreme Court and the U.S. Supreme Court, the state argued that because the body metabolizes alcohol in the bloodstream, there is no time for police officers to get warrants before taking a blood sample, and therefore an exception to the Fourth Amendment should apply. The U.S. Supreme Court disagreed with this reasoning, however.

After a DUI Arrest in Colorado: Booking and Arraignment

Tue, 16 Apr 2013 18:05:47 -0700

If you are arrested in Colorado on suspicion of drunk driving, the next two steps you’ll face in the criminal process are booking and arraignment. You should contact an experienced Colorado DUI defense attorney as soon as you can during or after this process. In the meantime, it is wise to exercise your Miranda rights by saying nothing to the police unless an attorney is present to help you.

The “booking” process is used to place a person in jail. Typically, during booking, your fingerprints will be taken. A DNA sample may also be taken; in many cases, DNA samples are taken by using a cotton swab that is rubbed inside the cheek. Any personal items you have with you at your arrest, like your clothing, wallet, or jewelry, will be inventoried. You may also be photographed and your identifying information, like name or address, written down.

What is Colorado’s Express Consent Law?

Tue, 09 Apr 2013 09:45:43 -0700

Like several other states, Colorado has a law that requires drivers to submit to chemical testing for alcohol if a police officer requests one on the basis of probable cause to believe the driver is driving under the influence of alcohol (DUI) or driving while ability impaired (DWAI) in Colorado. Colorado refers to this rule as the “express consent” law.

Blood alcohol concentration (BAC) is usually determined by testing either a blood or a breath sample taken from the driver. A BAC of 0.08 percent or higher is considered a “per se” violation of Colorado’s DUI prohibition, while a BAC between 0.05 and 0.08 percent is considered evidence that the driver was DWAI. Both BAC readings, however, can be challenged in court.

April is Alcohol Awareness Month

Tue, 02 Apr 2013 11:49:14 -0700

April is Alcohol Awareness Month, and this year it kicks off with Alcohol-Free Weekend from April 5-7, 2013. Alcohol-Free Weekend is a nationwide event sponsored by the National Council on Alcoholism and Drug Dependence (NCADD), and its purpose is to encourage participants to spend three days seeking out clean and sober fun - no drinks.

Avoiding alcohol is the best way to avoid a charge of driving under the influence (DUI) in Colorado, which comes with penalties even if you’re not convicted. At the time an arrest is made, the Bureau of Motor Vehicles may suspend your driver’s license, making it difficult to get to work, run errands, pick up your children, or attend court dates. While you have the right to a hearing to get your license reinstated, the mere fact of the suspension can make life difficult.

People convicted of DUI in Colorado face heavier penalties. These include possible jail time, fines, required alcohol and/or substance abuse counseling, court costs and fees, and other penalties. They also include a continued suspension or revocation of your license.

New Colorado Gun Laws Raise Questions among Dealers, Buyers

Tue, 26 Mar 2013 15:28:29 -0700

Colorado recently passed three new gun-control laws that change how residents can buy and keep guns and related equipment legally. The laws have raised a number of questions among gun buyers, dealers, and others, according to a recent article in the Denver Post.

On March 20, Governor John Hickenlooper signed the three bills into law. One bill limits the size of ammunition magazines to 15 rounds. A second bill requires universal background checks for gun buyers, including background checks at gun shows and in other contexts where they were not previously required. A third bill requires that the prospective gun buyer pay the costs of his or her background check when buying a gun, which is currently $10.

Colorado Legislature Considers Felony DUI Bill

Wed, 20 Mar 2013 10:42:29 -0700

Currently, Colorado treats driving under the influence of alcohol or drugs (DUI) as a misdemeanor, even if the person convicted of a DUI has several previous DUIs on his or her record. A bill currently being considered in the Colorado legislature, however, would allow some suspected DUIs to be charged as felonies.

The bill applies to “simple” DUI cases that don’t involve an accident or an injury, according to a news report from The Denver Channel. It would allow a DUI conviction to be punished as a felony if the conviction was the driver’s third DUI conviction within seven years or the driver’s fourth DUI conviction in a lifetime.

If convicted of a felony DUI, a driver would face up to one year in prison. Other penalties, like fines, a suspended or revoked driver’s license, mandatory counseling, or the use of an ignition interlock device may also apply. The conviction would also appear on the person’s criminal record as a felony, rather than a misdemeanor.

Reauthorized Law Gives Indian Tribes Greater Powers to Prosecute Domestic Violence

Thu, 14 Mar 2013 08:00:07 -0700

In 1978, the U.S. Supreme Court ruled that American Indian tribes could not prosecute non-Indians for crimes committed on Indian reservations. Instead, those prosecutions had to be carried out by a federal U.S. Attorney’s office.

The reauthorized Violence Against Women Act (VAWA) recently passed by the U.S. Congress, however, gives tribal courts new powers to prosecute non-Indians who commit domestic violence or violate personal protection orders on reservations. For the first time in many years, non-Indians may be charged with these crimes by tribal courts.

The update in the VAWA was based on statistics showing that Native American women suffer domestic violence at more than twice the national average rate. Because tribal courts have not been allowed to prosecute suspected incidents of domestic violence and because U.S. Attorney’s offices often lack the resources, over half of domestic violence cases are believed to go un-prosecuted.

Attorney Timothy Bussey Profiled in Colorado Springs Style Magazine

Tue, 12 Mar 2013 17:18:15 -0700

Attorney Timothy Bussey of The Bussey Law Firm, P.C. was recently profiled in Colorado Springs Style magazine, in a section focusing on his long-time focus on criminal defense, DUI defense, and serious auto accidents. His experience includes twenty years in Colorado courts, including representation of those involved in military courts-martial and in both federal and state cases.

Tim Bussey’s focus on innovative trial tactics and creative, well-thought-out legal arguments is not only his trademark, but that of his entire office. He was recently involved in litigation surrounding the methods used to test blood alcohol concentration (BAC) by the Colorado Springs Metro Forensic Laboratory - including the discovery of a number of errors in sample testing.

Congress Passes Bill to Speed Up Analysis of Rape Kits

Thu, 07 Mar 2013 08:00:12 -0700

The U.S. House of Representatives recently passed a bill that would speed up analysis of untested rape kits in Colorado and other states, according to a recent article in the Coloradoan. The bill, which was passed as part of the re-authorization of the Violence Against Women Act (VAWA), was sponsored by Colorado Senator Michael Bennett. It expands grant funds given to state and local law enforcement offices for the processing of rape kits.

The Colorado Bureau of Investigation currently has a backlog of 250 untested rape kits, according to the agency. On average, a rape kit submitted to the Colorado Bureau of investigation waits six months between its arrival and its analysis. Currently, about 400,000 rape kits nationwide are still waiting testing.