Colorado Criminal Lawyer Blog

By Colorado Criminal Defense Lawyer - Attorney - Colorado Miranda Rights Law - H. Michael Steinberg

Colorado Miranda Rights Law is sometimes not only internally complex but is ever evolving for law enforcement since the original Miranda decision so many years ago.

Understanding the application of the Miranda decision - the imposition of the advisement and issues surrounding the waiver of your Miranda rights requires a close look at the law and what constitutes a valid waiver of those rights.

In 2009 - the Colorado Supreme Court issues its ruling in People v. Clayton. The rule was stated in that decision - clearly - if a waiver of Miranda is knowing, intelligent, and voluntary, then it is then valid.

The Facts Of Clayton

The relevant facts are that Clayton was advised on the way to the station of his Miranda rights after he had been arrested. He waived those rights - blurted out a statement not in response to a questions and was asked to wait until they all arrived at the police station before making his statement.

At the station, Clayton met Detective Losasso, who again advised him again of his rights, reading them from the standard Miranda warnings form used by most police officers.

After Clayton reiterated that he understood his rights, Losasso presented a written copy of the Miranda rights for Clayton to sign as a waiver. Clayton moved to sign the waiver but then hesitated, asking, "what do you mean talk to us?" and further stated, "I mean, I have no problem, it's just, you said this could be used against me in court." The Detective responded that this was his opportunity to "tell his side of the story."

Clayton then asked to call his mother to ask her if he should sign yes or no. The Detective said there was no telephone and that the decision of whether to waive his rights and give a statement was "up to you but, you know, if you don't want to sign it, that's your right."

Clayton then chose to sign the waiver and told his side of the story - essentially incriminating himself in the felony charge. While he claimed self defense - his version was not believed by the jury and he was convicted.

Colorado Miranda Rights Law - What Is An Adequate Advisement of Your Miranda Rights?

and:

When Is A Waiver Of Your Miranda Rights Involuntary and the Product of Police or Other Government Coercion?

Colorado Miranda Rights Law - The Restatement of the Law

Analysis of the validity of a Miranda waiver must begin with "a two-part step analysis."

First, the judge must determine whether the defendant was adequately warned of his privilege against self- incrimination and his right to counsel;

and

Second, the judge must determine whether the defendant knowingly, validly, and voluntarily waived these rights.

Important Point - The police who are doing the questioning have no obligation to inform a suspect of the possible subjects of an interrogation or the facts and circumstances which may be pertinent to his or her decision to talk to police.

The Waiver - A waiver of your Miranda rights is involuntary only if the police induce the waiver through actual coercive conduct

A waiver of Miranda rights resulting in a confession or inculpatory statement is considered to be involuntary only if coercive governmental conduct, whether physical or psychological, played a significant role in inducing the defendant to make the confession or statement.

What Does Involuntary Mean?

A suspects decision is not involuntary because it is unwise, or may prove unwise in hindsight.

Miranda was never intended to help a suspect make a good decision - it only protects defendants against government coercion leading them to surrender rights that are protected by the Fifth Amendment; it goes no further than that."

What About The Phone Call?

While Colorado law CRS §16-3-402 creates a statutory right to call one's family at the earliest possible time after an arrest, that rule is NOT constitutional. A violation of that rule does not create the right to have evidence suppressed as would certain constitutional violations - such as a Miranda violation.

A waiver need only be knowing, intelligent, and voluntary, - if it is - it is valid. Even if Clayton was denied his right to a phone call - that is not the kind of police conduct that would render his waiver involuntary. The "social pressure to cooperate with police" is not the kind of coercion that violates the Miranda rule.

Finally - the extreme nature of the suppression of evidence is not within the judge's power to punish the one phone call rule.

Colorado Miranda Rights Law

The question of whether someone illegally bugged Senator Mitch McConnell's office raises serious questions that arise from a recording that recently was obtained by the news organization Mother Jones.

The nature of the recording is not at issue in this blog entry - that would be the political side of the matter. What is at issue here - is the legality of an individual - NOT a direct participant in a meeting - and not present at the meeting - surreptitiously recording the meeting.

While it is unclear as to who made the recording - or why - or how Mother Jones obtained the recording - what is clear is that the FBI has been tasked with determining - if they can -the mode and method behind the making of the audio message... and hopefully identifying the who behind the recording.

Of course McConnell sees the creation of the recording as a "left-wing, Nixon-esque plot" against the GOP leader... as usual - trying hard to play the victim in the matter. McConnell denies even the possibility that anyone from his organization could have planted the recording device.

Mother Jones - in turn - also denies any role in making the tape - but has not provided the origin of the source of the tape they placed on their website

Under What Circumstances Would This Be A Violation of the Wiretapping Laws?

Two distinct laws are implicated in the investigation.

The federal wiretapping law reads as follows:

"It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."

The Kentucky law - applies because of the location of the meeting:

526.030 Installing eavesdropping device.

(1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.

(2) Installing an eavesdropping device is a Class D felony

Colorado's Wiretapping - Bugging Laws

While this case is under investigation - it might be helpful to republish here - the last word on wiretapping in my home state of Colorado - (and here is another link to another article that discusses the law in this area).

The question that will arise in the FBI inquiry is whether any party to the conversation consented to its recording. Kentucky - like Colorado - is a "one-party consent" state: if any party consents to the recording, it's not illegal.

Federal law is nearly identical to Kentucky law. If the person who made the recording was one of the participants at the political meeting - the recording is also not illegal under federal law. Even if a bug was planted in the meeting space - if even ONE PERSON in the room knew that it was planted and was recording the conversation it passes federal muster... because at least that person "consented" to the recording...

Three Colorado Laws apply to this situation - Here they are:

Colorado Criminal Code: Crimes Involving Communications, Eavesdropping, Wiretapping

The Colorado Crime of Wiretapping and eavesdropping devices prohibited 18-9-302

The first offense of buying, selling, or knowingly having in one's possession any device used for wiretapping or eavesdropping, when committed with the intent to unlawfully use such device, or knowingly aiding another person in unlawfully manufacturing, buying, selling, or possessing such a device, is a class 2 misdemeanor. 18-9-302

A second or subsequent offense of possessing devices used for wiretapping or eavesdropping is a class 5 felony. 18-9-302

Here is the more relevant law as regards this case.

The Colorado Crime of Wiretapping prohibited 18-9-303 (2)

(1) Any person not a sender or intended receiver of a telephone or telegraph communication commits wiretapping if he:

(a) Knowingly overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication without the consent of either a sender or a receiver thereof or attempts to do so; or

(b) Intentionally overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication for the purpose of committing or aiding or abetting the commission of an unlawful act; or

(c) Knowingly uses for any purpose or discloses to any person the contents of any such communication, or attempts to do so, while knowing or having reason to know the information was obtained in violation of this section; or

(d) Knowingly taps or makes any connection with any telephone or telegraph line, wire, cable, or instrument belonging to another or with any electronic, mechanical, or other device belonging to another or installs any device whether connected or not which permits the interception of messages; or

(f) Knowingly uses any apparatus to unlawfully do, or cause to be done, any act prohibited by this section or aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.

Wiretapping involving a cordless telephone is a class 1 misdemeanor.18-9-303 (2)

Wiretapping that does not involve a cordless telephone is a class 6 felony. 18-9-303 (2)

The Colorado Crime of Eavesdropping prohibited 18-9-304 (2)

Any person not visibly present during a conversation or discussion commits the class 1 misdemeanor offense of eavesdropping if he or she:

• knowingly overhears or records (or attempts to do so) the conversation without the consent of at least one of the principal parties;

• intentionally overhears or records the conversation for the purpose of committing, aiding, or abetting the commission of an unlawful act;

• knowingly uses or discloses (or attempts to do so) the contents of the conversation while knowing or having reason to know that the information was obtained through eavesdropping; or

• knowingly aiding, authorizing, agreeing with, employing, permitting, or intentionally conspiring with any person to violate the provisions of the eavesdropping statute. 18-9-304 (2)

Of course time will tell all... more to come ... H

The Charge of Vehicular Homicide - Manslaughter

The most devastating charge facing an individual who has made the unfortunate decision to drink and drive - is the charge of vehicular homicide. Colorado courts punish this crime much more harshly than several decades ago when I first starting prosecuting these cases. Back then - in the 1980's and 1990's - probation - possibly some jail and alcohol treatment of course was the "standard sentence."

Today the sentence is much more harsh. It may be a sentence to probation with jail - usually the maximum of 2 years with work release authorized. Or more typically - in the more aggravated cases - it is a sentence to prison.

Each case presents with unique facts - therefore the sentence will depend on the facts, the lawyers involved- the impact of the victim or victim's family and friends on the DA and the judge both before sentencing occurs and at the sentencing hearing as well as the other unique circumstances in the individual case.

Today Dallas Cowboys Football player Josh Brent had his vehicular homicide case set for trial on Sept. 23.

As a result of a car wreck on December 8, 2012 that killed his teammate he may ultimately face a jury and hen a judge for sentencing for the charges. The evidence against the player is purported to show that his blood level was more than twice the presumptive legal limit for the crime in the state of Texas... 0.189.

Notably - Brent refused the breath - blood test - but under Texas (and also Colorado law) a blood draw was forcibly taken. Because the single-car crash had the indicia of alcohol intoxication and that crash resulted in a death, Texas authorities were permitted the right to draw his blood against his will. His blood alcohol level was 0.189, the report said. The legal limit in Texas is 0.08.

Presently - Brent has his freedom on a $100,000.00 but must wear an electronic ankle bracelet.

Texas - like most states - has very serious penalties for the crime of vehicular homicide - if convicted he is looking at a sentence up to 20 years in prison.

Aggravating Factors

Furthermore, driving on a suspended license (LINK) and having been convicted of DUI (LINK) in the recent past are considered aggravating factors which will, unfortunately motivate the prosecutor and the media to hype the importance of "sending a message" to the public in this high profile situation.

A Different Kind Of Criminal Mental State

In Texas, as in Colorado, Vehicular Homicide - Manslaughter is not the same as a premeditated murder charge which requires premeditation and an intent to kill. The crime of vehicular homicide is based either on a voluntary but reckless act of driving that leads to another person's death or it can be based on the voluntarily drinking of alcohol or the taking of drugs which terminates in a fatal accident.

Also in Texas prosecutors may charge Brent with the more severe crime of second degree murder... a crime that is charged in Texas when the unintended killing is the result of gross recklessness.

Blood Alcohol Content (BAC) - .189

As in all 50 states - a blood alcohol test was administered after the crash - the result was .180 - more than double the DUI presumptive limit of .08.

H. Michael's Take

Colorado Vehicular Assault - Vehicular Homicide Charges and Prosecutions

In Colorado - Vehicular Homicide is a class 3 felony bringing with it a possible sentence of up to 12 years in the Colorado Department of Corrections.

Vehicular homicide can be charged in one of two distinct ways:

1) where a person operates or drives a motor vehicle in a reckless manner, and such conduct causes the death of another person,

or

2) where a person operates or drives a motor vehicle while under the influence of alcohol or drugs, and such conduct causes the death of another person.

With strict liability as the mental state underlying the crime - unless there is an intervening cause of the accident which caused the accident, it is unlikely that Brent will have a defense that would lead to an acquittal. The sentence will most likely result in probation with a term of jail or he may be sentenced to prison.

By Colorado Sex Crimes Defense Lawyer - Attorney - H. Michael Steinberg

A recent case in New York City - clearly points out what can go wrong in a felony sex crime prosecution.

Darrell Dula - 26 - was one of four men - charged in a NY sexual assault case. His case was dismissed after an over zealous prosecutor was found to have violated New York's criminal procedural laws involving basic fairness.

The man filed suit against New York City and the Brooklyn district attorney's office for:

1. Malicious prosecution

2. Defamation

and

3. False imprisonment.

Recanting Alleged Victim - Evidence Was Withheld - Hidden From The Defense

Darrell Dula, unable to post bond, - was continuously jailed for 10 months on a rape charge that never went to trial and was dropped, is now suing prosecutors.

Why? - because the alleged victim said she lied about Dula's involvement and that information was withheld from the criminal defense attorney in violation of the defendant's rights... among those rights - the right to disclosure of ALL of the evidence - not just evidence the DA decided to release.

The victim told the investigating officer, "Can't a ho change her ways?" - Dula's lawyer, said, that "We believe that the victim's account against our client was incredible from Day 1. The whole thing just stinks."

Huge Headlines At Indictment - But A Quiet Dismissal

The case was highly publicized in June of 2011 at a news conference which announced the indictments of Dula and three co-defendants on charges of rape, sex trafficking and compelling prostitution over the course of a decade.

The case was dismissed when the assistant district attorney, Abbie Greenberger, quit her job rebelling against the kind of pressure every prosecutor is under every day... the pressure to prosecute - especially high profile cases.

In this case the defendants were initially indicted with much fanfare by grand jury. Later - the testimony before the grand jury was contradicted by the an ongoing DA based "re-investigation." -

It is alleged that the Brooklyn DA's office sat on a "rape recantation" for nearly a year.

The allegations in the civil lawsuit state that "A day after accusing Jawara Brockett and Dula, however, the girl, then 22-years-old, went back to the police, and told detectives she was simply a prostitute for 5 years and made up the allegations against Brockett and Dula."

Failure To Turn Over Police Reports - Exculpatory Statements - Brady Material

Failure to turn over exculpatory evidence - so called Brady evidence - or evidence pointing to innocence is not only an ethical violation - it is a violation that cuts to the foundations of our criminal justice system. Here, the Brooklyn DA's Office from the start, failed to turn over police records - critical medical records - both of which demonstrated a history of "mental illness and amnesia."

It was not until April 2012 - almost a year later - that the alleged victim's recantation was turned over to the criminal defense lawyer.

"The girl indicated the night of the alleged rape that she had made up the story," said Dula's lawyer. "She indicated that she was in a consensual relationship, as opposed to being the victim of sex trafficking."

False Rape Allegations - The Destruction of A Man's Life

Consistent with a prosecutors duty to reinvestigate a serious felony case where credibility questions have been raised - the DA ultimately recognized their duty - determined that the case demands dismissal - and dismissed the case "in the interests of justice," but NOT BEFORE destroying at least one man's life.

A version of this article appeared in print on October 10, 2012, on page A20 of the New York edition with the headline: Ex-Defendant Sues Prosecutor After Rape Charge Is Dropped.

A prominent therapist has an excellent website that includes information on how to process and defend against false allegations of domestic violence in the context of make - female relationships.

Dr Tara J. Palmatier of www.Shrink4men.com helps my clients understand the psychology behind false allegations - what follows is a summary of her recent article on this topic with my Colorado Domestic Violence Criminal Defense Lawyer comments.

The Threat To " Call The Police" And Claim Domestic Violence

Describing certain women as " high-conflict women (HCPs) or abusive personality-disordered women" - Dr. Palmatier terms making false allegations and threatening to call the police or actually calling the police as among the most serious behaviors among women with these personality traits.

I agree with Tara that the legal system actually enables these "behaviors and rarely punishes women who make false claims." It is clear that calling the police and making false allegations leading to a mandatory arrest and criminal charges - can destroy a person's life. The trauma of arrest - often in front of friends and family - including a couple's own children - has long term impacts on reputation, career, and future relationships.

The Advice To Immediatley End The Relationship

Where the doctor and I part ways is her advice that "When a woman makes false allegations or threatens to involve the police, it should be an absolute deal-breaker. If she follows through on her threats; it's a deal-breaker. Even if she doesn't follow through on her threats; it's a deal-breaker."

Her exit strategy is to end the relationship.. Now.

My advice is this - Do NOT end the relationship immediately. Make her believe that you intend to continue the relationship - to work on it - to reconstruct it. Even if that is not the case. - The reason is two fold - if AFTER the case has been dismissed or favorably plea bargained ( if necessary ) or tried to a jury to a successful conclusion - THEN - you end the relationship.... you have not been harmed by the decision.

During the criminal case - the DA in Colorado - must consult with the victim under the Colorado Victim's Rights Amendment. That consultation is critical to how the case is handled by the DA. Staying in her good graces is important - tha much is obvious.

If you later choose to rebuild the relationship - again - you have done no harm.

What Is The Psychology Behind False Allegations of Domestic Violence?

In her excellent article - Dr Tara J. Palmatier gives us these "reasons" for the 911 Call:

1. The girl who cried wolf. She wants your attention and/or attention from others. Calling the cops and making false allegations instantly puts her into the poor victim role and gets her lots of attention, sympathy and support. If she doesn't confess it's all a lie or drop the charges and takes the case to court, she gets even more attention and support. This also helps her immensely in any smear campaign she's conducting against you.

2. Control. Many women make these threats when their tried and true control devices are no longer working for them. For example, if you're setting boundaries and disengaging from her conflict and chaos, this is often when this kind of woman will threaten to call the police--it's a desperate escalation to retain control. Or, if you have begun to stand up for yourself and are holding her accountable, she might call the cops to flex her muscles and rein you back in.

3. Punishment. The police are frequently invoked by this kind of woman when she's angry about something you've done or haven't done as a form of punishment. If he thinks he's going to go out with his friends tonight and ignore me, I'll show him. Break up with me? Try this on for size, mister. Some of these women may even make up allegations that have nothing to do with you harming them. They make up other random accusations, like you're planning to rob a bank, are stealing money from work, have damaged her property or that you're a terrorist. Spin, Random Accusation Wheel, spin.

4. To gain an advantage in divorce and custody proceedings. It's fairly common knowledge that if a woman wants to gain the upper hand in a divorce or custody dispute, all she has to do is make up stories about abuse and/or being afraid. The police will remove a man from his home and the courts will issue an emergency restraining order, most often without any evidence. They simply take a woman at her word.

5. They believe their own lies distortions. Many abusive women, particularly if they're high-conflict and/or personality disordered, believe their own lies as soon as they spring from their mouths. Worse yet, they're often highly persuasive because of the intense emotions that accompany their lies and can usually convince others of their dubious "victim-hood"--at least initially.

Failure Of The Colorado Criminal Justice System

District Attorneys (DA's) often ignore the obvious motivations that alleged domestic violence "victims" have in making false allegations. Some family law lawyers actually suggest this conduct to gain an advantage in a child custody or other divorce related proceeding.

Dr Tara J. Palmatier helps us to understand the mechanisms of the "distortion-lie" mehanism.

"Here's how the distortion-lie mechanism may work in their brains:

• Questioning her about something. This could be a credit card bill, why the kids haven't been fed or bathed, why she's been staying out so late, why she keeps calling and hanging up, asking if she wants you to pick up milk on your way home from work, holding her accountable or breaking up with her. She becomes angered by your questions or being busted and, in her mind, this is a criminally punishable offense. How dare you question or criticize her?

•She interprets any of these stimuli as a life threatening or psychologically threatening event. Therefore, you must be abusing her and she's in danger or she wants to "teach you a lesson." I would argue that if she's trying to "teach you a lesson" for angering or questioning her, she knows she's not really in danger and is just being malicious because the law enables her to be.

The Red Flag Of Potential False Allegations of Domestic Violence

False allegations of abuse and threats to call the police ...indicate that you are involved with a woman who is:

a) an unstable, radioactive isotope
b) malicious and manipulative
c) immoral and unethical
d) all of the above.

As A Colorado Domestic Violence Criminal Defense Lawyer - Pay Attention To The Red Flags BEFORE You Are Arrested

If you can end the relationship before the police are called - end it. After charges are filed - reorganize only after you have spoken to a Colorado Domestic Violence Criminal Defense Lawyer. At that point - after you are under arrest and a domestic violence case is pending against you - only then - should you make a decision on where the relationship should go in the short term.

Accredidation is made here - I include this reference to Shrink4Men website :

Dr Tara J. Palmatier provides confidential, fee-for-service, consultation/coaching services to help both men and women work through their relationship issues via telephone and/or Skype chat. Her practice combines practical advice, support, reality testing and goal-oriented outcomes. Please visit the Shrink4Men Services page for professional inquiries.

Colorado Sex Crimes Criminal Defense Lawyer - H. Michael Steinberg

In a recent decision providing an opportunity for the Colorado Court of Appeals to mitigate the impact of the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - the Colorado Appellate courts did the opposite.

The Court was faced with a statutory conflict between the Colorado Violent Crime Sentencing Statute and the Colorado Sex Offender Sentencing and Lifetime Supervision Act in sentencing individuals to Lifetime Indeterminate sentences.

The Colorado Violent Crime Sentencing Provision Within The Sex Offender Sentencing and Lifetime Supervisionct

Section 18-3-405(2)(d) provides that sex assault on a child is a class three felony if the offense is committed as part of a pattern of sexual abuse. Another law - Section 18-3-405(3) provides that if a defendant is convicted of such an offense, "the court shall sentence the defendant in accordance with the provisions of section 18-1.3- 406." This law - Section 18-1.3-406 - is entitled "Mandatory sentences for violent crimes" and section (1)(a) provides that a person convicted of a crime of violence shall be sentenced for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range for the offense.

BUT The Colorado Sex Offender Sentencing Provision contains this statute...

Subsection (1)(b) provides:

Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense . . . that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401(1)(a)(V)(A) up to a maximum of the person's natural life, as provided in section 18-1.3-1004(1).

The Defendant unsuccessfully argued that the District Attorney - to sentence in the aggravated range - had to allege "aggravating circumstances" to receive a sentence in that range of years.

He argued that " a bottom end in excess of the presumptive maximum is not authorized by section 18-1.3-406(1)(b) without a finding of aggravating circumstances under section 18- 1.3-401(8), C.R.S. 2012."

The DA argued that subsection (1)(b) authorizes a bottom end under the same standard defined by subsection (1)(a) for non-sex offenses -- between the midpoint in, and twice the maximum of, the presumptive range.

Court Traces The Evolution of Sex Offender Sentencing and Lifetime Supervision
Looking at the Legislative History of the Law

The Court agreed with the DA's position:

" Before November 1998, a sex offense that was also a crime of violence was subject to the same sentencing range as any other crime of violence. At that time, crime of violence sentencing was addressed by former section 16-11-309. Subsection (1)(a) of the former statute was substantially similar to the current section 18- 1.3-406(1)(a). The statute did not differentiate between crimes of violence that involved sex offenses and those that did not.."

The Court further found that..

" the Act's sponsor "emphasized three separate times that the Act was not intended to change the sentencing guidelines already in place under Colorado law" and "would simply change a court's ability to monitor sex offenders by subjecting them to lifetime supervision in the form of probation and parole"

The Court then shut the door on the defendant and decided that the "bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is intended to be imposed in the same manner and within the same strictures as a determinate sentence prescribed for any crime of violence -- specifically, between the midpoint in, and twice the maximum of, the presumptive range for the applicable felony class."

Therefore A DA need NOT establish "aggravating circumstances" to obtain a sentence above the maximum of the presumptive range for a sex offense that is a crime of violence.

H. Michael's Take

Faced with a statutory ambiguity - given another opportunity to temper a Draconian law - the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - Given the chance for a measure of hope - another measure to possibly return discretion back to the place it belongs - - the elected judges of Colorado - the courts again are compelled to remove that possibility of compassion and mercy and once again a measure of hope is destroyed......

In a recent Colorado case - People v Lorenzo Brooks - the defendant's conviction's conviction for failure to register as a sex offender was overturned because his out of state Texas conviction had no Colorado sex crime equivalent. The case addresses when an out of state resident - or a resident with an out of state sex crime conviction - must register in the state of Colorado.

The Colorado court of appeals concluded that Brooks was not required to register as a sex offender in - here is the analysis. The Colorado Supreme Court recently reaffirmed the decision.

The rule in Colorado - in this complex case - which addresses Colorado's Sex Offender registration laws - and discusses whether section 16-22-103(1)(b), C.R.S. 2011, which requires an element-by-element comparison of a defendant's out-of-state conviction with that of an existing unlawful sexual offense in Colorado to make the determination of whether sex offender registration - was properly followed.

The Factual Background of The Case

In 1994, the defendant pleaded guilty in Harris County, Texas, to the crime indecency with a child by exposure, Tex. Penal Code Ann. § 21.11(a)(2) and was sentenced to ten years in the Texas Department of Corrections.

His case was then transferred to El Paso County, Colorado, where he pleaded guilty to the Colorado crime of aggravated robbery and again received a lengthy prison sentence.

After his parole in 2007 the defendant was told that he must register as a sex offender under the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S., based upon the Texas conviction. He did - for 7 quarters - but then moved without updating the sex offender registry.

He was later charged with - and convicted of two felony counts of failing to register as a sex offender.

The Analysis of Colorado's Failure to Register Law - 16-22-103(1)(b)As It Applies To Out of State Sex Crime Convictions

The Duty to Register As A Sex Offender In Colorado

The Court found that Brooks was not required to register as a sex offender, and, therefore, could not be legally convicted of failing to register.

Colorado's Sex Offender Registration Requirements

In Colorado - to be guilty of the criminal offense of failing to register as a sex offender, the defendant must be "[a] person who is required to register pursuant to article 22 of title 16, C.R.S [the sex offender registration statute]." § 18-3-412.5(1), C.R.S. 2011.

The Colorado law reads that

The Colorado Crime of Indecent Exposure 18-3-411

Section 18-3-411(1), C.R.S. 2011, states that an unlawful sexual offense includes "indecent exposure, as described in section 18-7-302. Indecent Exposure was then defined as knowingly expose[d] his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person." § 18-7-302(1)(a)

The Court compared the elements of the defendant's Texas conviction of indecency with a child by exposure. Tex. Penal Code Ann. § 21.11(a)(2) to the nearest equivalent of Indecent Exposure. The court found that the the Texas conviction was not the equivalent of the Colorado sexual offense of indecent exposure because the Colorado crime of indecent exposure contained an element missing from Texas's indecency with a child statute.

Colorado Law Requires An Element by Element Comparison of the Out Of State Criminal Conviction

In this case - when the two offenses were contrasted, it was clear that Colorado required an additional element that the crime be "under circumstances in which such conduct is likely to cause affront or alarm to another person."....and that the Texas statute lacked the additional
element.

The Lesson Of This Case - Colorado's Failure to Register Law 16-22-103

If an individual moves to Colorado with a conviction for another's state's sex crime - after an analysis of the crime as compared to Colorado sex offender laws - the out of state conviction must satisfy all the elements at least one Colorado sex crime. If it does not - the individual is NOT required to register as a sex offender because the out of state conviction does not fall within the statutory requirements of sections 16-22-103(1)(b), 18-3-411(1), 18-3-412.5(1), and 18-7-302(1)(a).

Please call our law firm if you have questions about ..

Failure To Register As A Sex Offender Conviction

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe - Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

If you have questions about Failure To Register As A Sex Offender Conviction in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

Keywords - Colorado Sex Offender Registration Act, §§16-22-101 to -115, C.R.S. 2011, Failure to Register, 16-22-103(1)(b), C.R.S.,out of state sex crime conviction registration,

A study released last year revealed something new - women - not men - are more likely to find themselves in an incident of road rage.

A company that goes by the name of the Harris Interactive - found that - women - not men - were far more likely to fly off the handle on the morning commute.

More than 3,800 commuters were surveyed - all were full-time workers and of these 83% drove to their workplaces. The study intentionally ignored self-employed and "government job" workers.

Women More Likely To "Attack" In Road Rage Context

The major finding - women are more prone to road rage than men. Here are some the other findings:

61% of women said that they had experienced road rage, compared to 56% of men.

Younger drivers are more prone to road rage than older ones. Roughly 68% of respondents between 25 and 34 years old said they experienced road rage, while just 47% of those 55 and older said the same.

17% of those surveyed said they experienced less road rage during the summer months, while 10% said they experienced more.

Roughly 9% of commuters have actually gotten into a fight with another commuter.
Almost one in four commuters -- 24% to be precise -- has been involved in an accident en route to work.

What Colorado Crimes Are Charged In The Road Rage Context?

The potential array of crimes that can be charged in Road Rage situations is enormous.

Crimes that are the result of intentional damage to physical property - or that reflect aggression and violence - have a wide range - attempted murder, criminal mischief, felony or misdemeanor assaults, disorderly conduct, and many other felonies and misdemeanors.

In Colorado - non-felony road rage cases are more likely to be charged with the traffic crimes of either reckless - or careless driving.

Colorado's Traffic Crime of Reckless Driving - 42-4-140

42-4-1401. Reckless driving - penalty

(1) A person who drives a motor vehicle, bicycle, electrical assisted bicycle, or low-power scooter in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property is guilty of reckless driving.

[HMS - In the author's opinion aggressive driving should be less than reckless driving, but more than one simple act or failing to yield right of way.]

Then There is The Colorado Traffic Crime of Careless Driving

42-4-1402 Careless driving

A person who drives a motor vehicle, ... in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, or use of the streets and highways and all other attendant circumstances, commits careless driving, which is a class 1 misdemeanor traffic offense when the actions are the proximate cause of bodily injury or death to another.

Please call our law firm if you have questions about ..

Colorado Road Rage Cases

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the First 13 years of his career, he was an Arapahoe - Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

If you have questions about Colorado Road Rage Cases in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado adult and juvenile criminal matters... as regards Colorado Road Rage Cases.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

A 2010 study commissioned by the Colorado Division of Behavioral Health of the Colorado Department of Human Services asked the question of whether the Blood Alcohol Level p or BAC of a first DUI- DWAI offender was a predictor of a possible repeat offender.

DA's and judges in Colorado argue for harsher sentences and longer periods of treatment based on a driver's blood alcohol levels. Colorado enhances the sentences - even on first offenders - and I wondered why. This study - which I just happened upon - is used by the lawmakers to justify such a stern and punitive approach.

Here is a link to the study:

Here is a summary of the study:

The question was asked - are there BAC values that are consistently associated with a DUI offender's propensity to re-offend?

The Results of the Study

"Under a BAC of 0.150, first-time DUI offenders are less likely to re-offend and get a
subsequent DUI. As first-time offenders get arrested for DUIs with BACs at or above 0.150, they will begin to produce subsequent DUIs, and this will increase as a function of their BAC at initial arrest."

The Colorado Persistent Drunk Driver Committee

The Persistent Drunk Driver Committee (PDDC) was created in 1998 as a result of the enactment of the Persistent Drunk Driver (PDD) Act of 1998. One task of the committee was to explore the relationship between Blood Alcohol Content (BAC) and repeat DUI offenders.

When measuring DUI "recidivism" (re-offending after the initial arrest), the state has focused on "high BAC offenders." In Colorado in 1998 - the Colorado state legislature increased the penalties for high BAC and for multiple DUI offenders.

• A persistent drunk driver (PDD) was defined a PDD as any person convicted of or whom had their driver's license revoked for two or more alcohol related driving violations,


OR
• a person driving with a BAC of 0.20 or more.

The state of Colorado takes the position that there are certain levels of blood alcohol that are associated with an offender's propensity to re-offend.

The Results Of The Study of the Question - Are there BAC values that consistently predict an offender's propensity to reoffend?

The study showed that BACs of 0.150 and above are more associated with recidivism than for those who don't re-offend; and that BACs of less than 0.150 are more associated with those who don't re-offend than with recidivism.

For all 43,403 study-subjects, an average BAC of 0.166 was observed. 7,720 (17.8%) were re-arrested within 5 years; 35,683 (82.2%) were not re-arrested. Those re-arrested produced a mean BAC of 0.171, whereas those without re-arrest had a mean BAC of 0.166. A highly significant difference was observed between First offender BACs as a predictor of DUI recidivism these two BAC group means.

The average first-offense BAC for those re-arrested (7,720) was 0.171. Of these recidivists, 6,625 (85.8%) subjects had 1 recidivism event, 744 (9.6%) had 2, and the remaining 351 (5.6%) had 3 or more. 50% of these persons re-offended within 1.9 years (700 days); 75% were re-arrested within 3.3 years (1211 days) and 90% were re-arrested within 4.3 years (1561 days).

Some Interesting Statistics On Repeat Offenders

If first-time offenders get re-arrested, they are most likely to get only one rearrest, and that occurring two years after their initial DUI arrest. If they get a second DUI re-offense (their 3rd DUI), they are most likely to get that re-arrest 3 years from their initial DUI arrest.

Higher BAC Levels - Says Colorado Study - Mean Greater Likelihood of Repeat DUI

The Persistent Drunk Driver Committee (PDDC) tasked this study to see what, if any relationship exists between BAC and recidivism in impaired driving offenders. It was observed that indeed, at the 0.150 level, Colorado offenders are more likely to produce recidivism; and that as the initial BAC level of first time offenders increases above 0.150, re-arrests will continue to be more associated with these offenders than for those not re-arrested.

The intent of the study was to justify taking a hard line against drunk drivers with higher BAC levels and explains the changes in the laws before and after the study was concluded.

by Colorado DUI - DWAI Criminal Defense Lawyer - H. Michael Steinberg

On December 20, 2012 - the Colorado Supreme Court reaffirmed a rule of law - specific to Colorado and a few other states - that permits the police to charge a citizen with a DUI for sleeping in a parked car in a private parking lot.

Here are the facts of Tate v. People:

In Arapahoe County Court - a trial judge ruled in favor of the defendant Tate and suppressed all of the evidence in a DUI case based on the illegal actions of the investigating police officer.

The trial court found that the defendant was "stopped" without reasonable articulable suspicion the moment the police patrol car pulled in behind the defendant closing him in.

By pulling in behind the defendant - he hemmed in his car making it impossible for the defendant to leave.... The defendant was not driving - he had removed himself from endangering the public by pulling off the public highways and was asleep in the vehicle and unaware of the officer's presence at the time.

The government admitted that the officer had NO reasonable suspicion to trap the defendant in his vehicle. .. On appeal - the Colorado Supreme Court held that at the time the officer hemmed the defendant - the defendant - was not seized.

The reason? Since the defendant was not aware he was illegally "seized" in violation of the Fourth Amendment - he wasn't seized. Later. Notably when the defendant finally realized he was seized (he was conscious) the officer found reasonable suspecion to "justify" the officer's actions - to justify his stop/

H. Michael's Take:

When an intoxicated person has taken appropriate action by removing himself as a danger on th roads of Colorado - the law should show that person the compassion we offer to those who are responsible in our society.

When the defendant was discovered asleep in a parked car - motor running, in the middle of the night... without reasonable suspicion for the contact... the trial judge was correct in suppressing all evidence and statements acquired by the police on a number of grounds... including the primary reason - which is - the initial detention was in violation of the Fourth Amendment.

The trial court's findings of fact and conclusions of law included that the defendant's vehicle was contacted at four-thirty-five in the morning, with the driver's window down and engine running and was parked with cars in front and on either side of it.

The officer then pulled up behind the vehicle, effectively blocking it in, and as he approached, saw the defendant sleeping in the driver's seat. The defendant was in such a deep sleep that it took several attempts of knocking on the window for the officer to waken the defendant.

When Is A Person Seized?

A person is seized by the police within the contemplation of the Fourth Amendment when an officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.

The new rule is this: awareness is required before there can be an illegal "seizure" under the Fourth Amendment. A person who is unconscious clearly cannot perceive that there has been an illegal seizure.

Such a decision which rationalizes the illegal and unconstitutional conduct of the police - turns the Fourth Amendment "on its head.

by Colorado Criminal Defense Lawyer - Attorney - H. Michael Steinberg

Colorado lawyers who threaten to report a crime to the police unless they are paid money MAY BE violating the criminal and ethical laws of the state.

This article addresses the ethical rules governing the conduct of lawyers and the laws governing the Colorado crime of compounding.

The Criminal Side of Threatening Criminal Prosecution

Here is the actual Colorado criminal law on the subject of the crime of compounding

18-8-108. Compounding.

(1) A person commits compounding if he accepts or agrees to accept any pecuniary benefit as consideration for:

(a) Refraining from seeking prosecution of an offender; or

(b) Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime.

(2) It is an affirmative defense to prosecution under this section that the benefit received by the defendant did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime.

(3) Compounding is a class 3 misdemeanor.

The Civil Side of Settling Civil Cases of Theft or Embezzlement Using The Threat of Prosecution

Every state has it's own version of the Rules Of Professional Conduct (RPC). Colorado is no exception.

Regarding Civil Settlements - several Colorado RPC's govern an attorney's permissible conduct in negotiating settlements on a client's behalf.

One is Rule 4.4

"In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Rule 4.4, RPC.
Another is Rule 4.1(a)

"In the course of representing a client a lawyer shall not knowingly: . . . Make a false statement of material fact or law to a third person." Rule 4.1(a), RPC. They also provide that "A lawyer shall not . . . offer an inducement to a witness that is prohibited by law."

Rule 3.4(b), RPC.

... "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, . . ."

Rule 3.1, RPC. States

"It is professional misconduct for a lawyer to: . . . Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as alawyer in other respects" or to "engage in conduct that is prejudicial to the administration of justice."

Lawyers must be honest and fair play in their dealings with people other than their clients.

These rules also ... collectively prohibit threatening criminal prosecution solely for the
purpose of negotiating a favorable settlement in a civil action - something on the order of theft by extortion within the meaning of the criminal code.

The rules overlap in their application and must be read carefully.

But this does NOT mea the mere mention of the possibility of criminal charges being brought is off-limits? The answer is no.

The ABA Ethics Committee has also issued an opinion holding that an attorney may use the possibility of bringing criminal charges against an opposing party in a private civil matter as long as the civil matter and the criminal matter are related and warranted by law and fact, provided that the attorney does not try to influence the criminal process. ABA Op. 92-363 (1992).

For lawyers - any wrongful conduct, including criminal conduct, dishonesty, and deceit are clearly forbidden. The rules allow lawyers to make truthful observations - it's permissible, for example, to point out that the opposing party's actions could be subject to criminal prosecution - but not to participate in extorting money from the other side.

Also making idle or dishonest or frivolous threats is inconsistent with every lawyer's obligations under the RPC. BUT the lawyer CAN - in settlement negotiations - discus the criminal implications of a party's conduct.

One Example - An Employee Steals From A Business

A lawyer representing an employee who has committed a criminal theft attempts to negotiate a resolution with the employer business or its clients, might ask that the employer refrain from reporting the matter for criminal prosecution in exchange for repayment of the money.

What is not permissible is for a lawyer representing the employer to demand huge sums
of money - well beyond the amount stolen - in exchange for not reporting the theft to the police.

In addition - if the lawyer knows that a client would never under any circumstances refer a matter for criminal prosecution, it is wrong to threaten such an action.

DR7-105(A) of the predecessor Model Rules barred lawyers from presenting, participating
in presenting, or threatening to present criminal charges "solely to obtain an advantage in a civil matter."

The latest version of the Model Rules and the Colorado equivalent - eliminated this provision.

Threatening Criminal or Administrative Prosecution in a Civil Case - The Key Factor

A well known and well respected Denver lawyer has written on this subject - and attribution is made to Charles Luce - Of Moye Giles for the following:

...[T]he distinction between advising opposing counsel that her, or her client's, conduct has more than civilly actionable consequences, and threatening that you may do something about it, is that the latter violates the Colorado Rules of Professional Conduct ("Colo. RPC"), while the former usually does not."

"The determination of whether a communication is a friendly "notice" or an anctionable "threat" must still be made on an ad hoc basis. It is foreseeable that one communicating attorney's "notice" will be perceived as another receiving ttorney's "threat." Still, subsection (b) does, for the first time, give express comfort and a safe harbor to attorney good Samaritans. As importantly, counsel need no longer feel compelled to stew silently while opposing counsel systematically violates the Rules of Professional Conduct, for fear that if she calls "a spade a spade" the most likely disciplinary action to result will be against her for threatening disciplinary charges

The line between "threat" and "notification," is found in the Official Comment to Colorado Rule 4.5 offers this guidance:

[F]actors that should be considered to differentiate threats from notifications in difficult cases include (A) an absence of any suggestion by the notifying lawyer that he or she could exert any improper influence over the criminal, administrative or disciplinary process, (B) consideration of whether any monetary recovery or other relief sought by the notifying lawyer is reasonably related to the harm suffered by the lawyer's clients.

Where no such reasonable relation exists, the communication likely will constitute a proscribed threat. For example, a lawyer violates Rule 4.5 if the lawyer threatens to file a charge or complaint of tax fraud against another party where issues of tax fraud have nothing to do with the dispute. It is not a violation of Rule 4.5 for a lawyer to notify another party that the other person's writing of an insufficient funds check may have criminal as well as civil ramifications in a civil action for collection of the bad check.

Continue reading "Colorado Lawyers Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter" »

In March of this year (2012) the United States Supreme Court decided two cases that will change the face of plea bargaining forever.

The First Case - Cooper

In Lafler v. Cooper and Missouri v. Frye: Two U. S. Supreme Court cases involving criminal defendants who claim that their convictions should be overturned because they may have been convicted on lesser charges had their defense attorneys not given them bad advice.

The First Case - Cooper

The Facts:

In 2003 Anthony Cooper was charged with attempted murder for shooting a woman causing serious injury. A police officer witnessed the shooting. Prior to trial, the state offered Cooper a plea bargain carrying a shorter sentence than if he were convicted on all charges. His attorney advised against the deal. Cooper was later convicted by a jury and received the longer sentence.

The Issue:

In a the first case, Anthony Cooper was charged with assault with intent to murder after he shot a woman in the thigh and buttocks. Prosecutors twice offered a plea deal with a recommended prison term of four to seven years, but Cooper's lawyer advised him to reject the offer, because the lawyer said Michigan law did not permit an attempted murder conviction for wounds below the waist. The advice was indisputably wrong and Cooper was tried, convicted and sentenced to three times as much prison time.

The Second Case - Frye

The Facts

In 2007, Galin Frye was charged with driving with a suspended license, a felony because of his multiple prior convictions. Prior to trial, the prosecutor offered to allow Frye to plead guilty to a misdemeanor and serve 90 days in jail. Frye's attorney did not report this offer to his client. Later, Frye pled guilty to the original felony charge and received 3 years in prison.

The Issue:

In Frye's, the prosecutor sent Frye's lawyer a letter offering to reduce the charge to a misdemeanor if Frye would plead guilty and agree to a 90-day sentence. The lawyer, however, never informed his client of the offer, and when it expired, an uninformed Frye pleaded guilty with no conditions and was sentenced to three years in prison, more than 10 times the plea bargain offer.

The Ruling:

For the first time, the U.S. Supreme Court has ruled that...

...defendants charged with criminal acts have a constitutional right to effective assistance of counsel in plea bargains. In a 5-4 decision, the United States Supreme Court went further, declaring that...

... when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea offer.

The government in both cases conceded that the defense lawyers provided ineffective legal assistance to their clients, but the each of the states' attorney general contended that it didn't matter since there is no constitutional right to a plea bargain...the United States Supreme Court rejected that argument by a 5-4 vote.

H. Michael's Take

For the first time in my recent memory - the US Supreme Court took a hard look at the reality of the United States criminal justice System and found that it is "A System Of Pleas/"

Justice Kennedy found that the reality is that the criminal justice today is "a system of pleas." Ninety-five percent of all convictions are the result of plea bargains, not trials, and the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the "central role plea bargaining plays."

In truth plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system," Kennedy said.

The Court's ruling held the following:

....defendants should get a second chance to accept the original offer if they can show they very likely would have done so originally, that the prosecutor would not have withdrawn the offer, and that the judge would have approved it.

Rachel Barkow, director of the New York University Center on the Administration of Criminal Law put it best when she said:

"This is a very practical court, and I think this is a court that says: Look, practically speaking, plea bargaining is where we need to be policing things,"

...Barkow said.

This is for 95 percent of defendants. All those defendants have is their lawyer, and if their lawyer is deficient, then those defendants have nothing."

Put another way by another expert:

Get real -- most of the bad lawyering occurs in cases that involve plea bargaining because most cases involve plea bargaining

In the Colorado Case of PEOPLE v. RICHARDS the Colorado Supreme Court clarified the False Information to a Pawnbroker Law so that the average citizen could understand how it worked

Colorado False Information to a Pawnbroker Defense Lawyer - H. Michael Steinberg

In the Richards case - the Defendant sold forty compact discs to a pawnbroker, falsely telling the pawnbroker that he had purchased them two and one-half years previously.

Here is the law:

12-56-104. Prohibited acts - penalties

(1) No pawnbroker shall enter into a contract for purchase or purchase transaction with any individual under the age of eighteen years.

(2) With respect to a contract for purchase, no pawnbroker may permit any customer to become obligated on the same day in any way under more than one contract for purchase agreement with the pawnbroker which would result in the pawnbroker obtaining a greater amount of money than would be permitted if the pawnbroker and customer had entered into only one contract for purchase covering the same tangible personal property.

(3) (a) No pawnbroker shall violate the terms of the contract for purchase.

(b) A pawnbroker who violates the terms of a contract for purchase involving a fixed price as set forth in section 12-56-101(2) commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

(4) Except as otherwise provided in this section, any pawnbroker who violates any of the provisions of this article commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S., and upon a second or subsequent conviction of a violation of this article within three years after the date of a prior conviction, a pawnbroker commits a class 6 felony and shall be punished as provided in section 18-1.3-401, C.R.S.

(5) Any customer who knowingly gives false information with respect to the information required by section 12-56-103(1) commits a class 6 felony and shall be punished as provided in section 18-1.3-401, C.R.S.

In the Richards case the Defendant argued that the prosecution failed to present sufficient proof with respect to each element set forth in the jury instruction defining the offense. .

The jury was instructed that the elements of giving false information to a pawnbroker included that the defendant:

• entered into a contract for purchase with a pawnbroker, and
• knowingly,
• gave false information to the pawnbroker.

The jury was further instructed as follows:

FALSE INFORMATION TO A PAWNBROKER means:

.... false information concerning the pawn customer's name, address, date of birth, ownership of the property, whether the property is totally owned by the customer, how long the customer has owned the property, whether the customer or someone else found the property, and if the property was found, the details of the finding. (emphasis added)

The defendant contended that he could not be found guilty of the offense at issue unless the prosecution proved he gave false information with respect to all of the information required by § 12-56-103(1). He argued that the pawnbroker WAS GIVEN accurate information concerning his name, address, and date of birth. The Court rejected that posittion.

They said:

"Defendant would have us read § 12-56-104(5) as applying only to persons who pawn goods and knowingly provide false information with respect to "each and every" item required by § 12-56-103(1). We reject this interpretation for a number of reasons."

First, a person pawning goods belonging to another could escape prosecution simply by providing one accurate item of information. Such an absurd result is contrary to appropriate considerations of legislative intent.

Second, the statute and the elemental instruction state that criminal liability attaches when a defendant "knowingly gives false information to the pawnbroker." Neither specifies that all of the information must be false.

Third, the word "and" used in the penultimate clause of the definitional instruction and the statute is not used in the conjunctive sense, mandating that all information must be false. Rather, the clause as a whole is phrased in the conditional sense, requiring that the seller provide details in the event that the customer or another person found the property.

H. Michael's Take

The Court's read of the statute makes sense. Here's the rub - when an item is pawned - you must be scrupulously honest about how you obtained the item - how long you owned it - and all of your identifying information - to fail to so so exposes you to a Colorado felony charge.

It is a wonderful policy that lets the innocent children of undocumented immigrants the opportunity to live safe, happy, and open lives in this great country of ours. The Obama administration's decision to permit this opportunity is a little confusing as it relates to the criminal background check required to pass muster under the new policy. This article addresses that issue.

What Is Deferred Action?

Deferred Action is a decision by immigration authorities to not pursue an individual for removal proceedings because the individual does not present a serious threat to the United States.

A grant of Deferred Action does not mean that the person's immigration status is now legal.

The deferred action and work permit period is valid for two years, with the option to renew.

However, if government policy changes or if the applicant commits an act that is contrary to their eligibility for deferred action, they can lose the grant of deferred action.

Who is eligible for Deferred Action?
In order to be eligible for Deferred Action, an individual must prove that he or she:

Is 15 years old or older on the day he/she applies (except for persons applying while under a final order of removal);




Was under 31 years old on June 15, 2012




Came to the United States under the age of 16;




Has continuously resided in the United States since June 15, 2007;




Was physically present in the United States on June 15, 2012 , and at the time of submitting the application;




Did not hold a lawful immigration status on June 15, 2012;




Is currently attending school, has graduated from high school, has obtained a G.E.D. certificate, or is an honorably discharged veteran of the U.S. Armed Forces or Coast Guard;

The applicant must establish that they have not been convicted of a felony offense, a significant misdemeanor offense, three of more other misdemeanor offenses, nor otherwise pose a threat to national security or public safety.

What do the criminal background checks involve?

In order to receive Deferred Action and a work permit, the government requires an applicant's fingerprints for a background check. The USCIS then checks an individual's biographic and biometric information against a variety of databases maintained by the Department of Homeland Security (DHS) and other federal government agencies.

The Deferred Action eligibility requirements state that to apply the applicant cannot have been convicted of a significant misdemeanor offense.

Which begs the question - What offenses qualify as a "significant misdemeanor"?

A significant misdemeanor is a misdemeanor as defined by federal law (maximum term of imprisonment is 1 year or less but greater than 5 days),

and:

1) Regardless of sentenced imposed is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence;

or

2) Not an offense listed above, but the individual was sentenced to time in custody of more than 90 days.

The Deferred Action eligibility requirements also state that to apply the applicant cannot have been convicted of multiple misdemeanors.

How many non-significant misdemeanors are considered "multiple misdemeanors"?

Three or more non-significant misdemeanors that did not occur on the same day and did not arise out of the same act, omission, or scheme of misconduct are considered multiple misdemeanors.

The Deferred Action eligibility requirements also state that to apply the applicant cannot "pose a threat to national security or public safety."

What does this mean?

The statement "pose a threat to national security or public safety" is broad. The USCIS stated that examples of an individual that poses such a threat are: someone who has belonged to a gang or someone who has participated in criminal activities.

..., "if a background check or other information uncovered during the review of an individual's request for deferred action indicates that the individual's presence in the U.S. threatens public safety or national security, he or she will be ineligible for an exercise of prosecutorial discretion of any kind." The evidence that an individual poses such a threat includes, but it not limited to: "gang membership, participation in criminal activities, or participation in other activities that threaten the United States."

It is not necessary for an individual to have been convicted of a crime in order for the government to determine that they have participated in gangs or activities that "threaten the United States."

H. Michael's Take:

The basic felony and misdemeanor aspects of this program are clear. The "threat to public safety or national security" is much more troubling. At this point - little information is available to help flush out this requirement - this criminal defense lawyer will update this entry in the near future with any and all information I can find.

Confidentiality Issues; USCIS has recently clarified that the information shared on DACA application is protected from disclosure to ICE (U. S. Immigration and Customs Enforcement) and CBP (U.S. Customs and Border Protection) for the purpose of immigration enforcement proceedings unless the applicant meets the criteria for initiation of removal proceedings.

In Colorado - if you have an immigration issue that requires a lawyer - I would advise you contact lawyer David Kolko from David Kolko and Associates 303-371-1822

While state legislators in Colorado may change this law sometime in the future - the present state of the law does not permit the expungement of juvenile sex crime record if the juvenile has been adjudicated (convicted) of a Colorado sex crime - even a misdemeanor.

When making the decision to go to trial or accept an alternative plea agreement - juveniles and their parents must be made aware of the inability to hide or to expunge or to otherwise keep this conviction from the possibility of a background check uncovering the conviction.

The impact of a sex crime on a juvenile's future employment cannot be overstated. This adjudication can cause problems in future education, employment - even renting property. With the thoroughness of the comprehensive background checks now being performed - these crimes can be located much more easily.

The requirement of registration as a sex offender must also be considered - however - here this requirement can be removed after probation has been completed - not so if there is an adjudication.

Continue reading "Colorado Expungement Of Juvenile Sex Offender Crime Adjudications - Not Allowed" »