H. Michael Steinberg has over years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.

July 21, 2015

Colorado Criminal Law - Immigration Consequences - Deportation Risk Because Of Deferred Judgement and Sentence - Withdrawal Of Plea

Colorado Criminal Law - Immigration Consequences - Deportation Risk Because Of Deferred Judgement and Sentence - Withdrawal Of Plea.pngBy H. Michael Steinberg Colorado Criminal Defense Lawyer - Attorney

Colorado Criminal Law - Immigration Consequences - Deportation Risk Because Of Deferred Judgement and Sentence - Withdrawal Of Plea - In Colorado a deferred judgement and sentence is often considered a "good offer" in cases where the State's case is strong.

A deferred judgement - known as an "adjournment" in some states or "diversion" type offer in some states - "stipulated orders of continuance" or "dispositional continuance" in others, the agreement ultimately results in the withdrawal of a guilty plea and dismissal of the case after certain agreed upon conditions are met.

One exception in this area is the impact of a deferred judgement on one's immigration status for those who are at risk of deportation. In a recent Colorado case (2015), a Defendant plead guilty to the felony crime of criminal impersonation by way of a typical felony two-year deferred judgment and sentence. She successfully completed her deferred judgement and - in the standard course - her plea of guilty was withdrawn and her case dismissed with prejudice.

If a "noncitizen" accepts and participates in a deferred judgement agreement the non-citizen may be unknowingly pleading to a "deportable conviction" under immigration law.

Your Colorado Criminal Defense Lawyer Must Advise You Of ANY Immigration Consequences

This Defendant, in this recent case, was never informed of the possible federal immigration consequences of pleading guilty in the context of the deferred judgment agreement.

A criminal defense lawyer MUST inform a non-citizen Defendant of the immigration consequences of ANY plea - even to a deferred judgement.

Under the Immigration and Nationality Act (INA) definition of "a conviction" means, with respect to an non citizen:,

"a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where--

(i) a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's
liberty to be imposed.

Under FEDERAL LAW "overt admissions of guilt,"that occur in deferred prosecution or deferred sentencing agreements, satisfy the immigration statute's "conviction definition," EVEN IF the plea is later withdrawn and the case dismissed with prejudice (charges can never be re-filed)

The immigration definition of a "conviction" is so broad it applies to ANY finding or admission of guilt in a criminal proceeding. Any such finding or plea is considered a "conviction" in perpetuity for immigration purposes. Even expungements of the criminal case are not given effect under immigration law and do not remove the "conviction" for immigration purposes.

For some strategies as regards rules for accepting plea agreements in colorado criminal cases if you are a non citizen follow this link to the defensenet organization

One Remedy For Uninformed Pleas - Colorado Rule 32 (d) Ineffective Assistance Of Counsel

In the case discussed - the non-citizen filed a Rule 32(d), alleging ineffective assistance of counsel because her defense counsel did not inform her of the possible federal immigration consequences, despite her successful completion of the deferred judgment.

The district court denied the motion, holding that it lacked jurisdiction because the guiltily plea had already been withdrawn and her case dismissed with prejudice.

The lower court held that since the Defendant did not file the motion within the time limits normally imposed for such a motion (it was filed after the plea was withdrawn and the case dismissed with prejudice), the lower court had no jurisdiction to even hear the case.

Rule 32 (d) reads:

(d) Withdrawal of Plea of Guilty or Nolo Contendere. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.

Under the case of People v. Corrales-Castro, 2015 COA 34M, the rule is now:

"[W]e hold that, when, as here, a defendant shows that his or her guilty plea may have serious legal consequences under federal immigration law notwithstanding its withdrawal pursuant to section 18-1.3-102(2), the defendant may challenge the constitutionality of the plea under Crim. P. 32(d)."

Under Colorado law a non citizen has a right to challenge the "uniformed" entry of a plea under Rule 32(d) - to have that Motion heard and determined by a trial court because:

The "plea" - under federal immigration - remains a conviction and a Defendant has a right to seek withdrawal of or to try to "void" their plea to a deferred judgment and sentence.

Furthermore, even if the Defendant successfully completes the deferred judgment and sentence and the case is dismissed with prejudice - the lower court retains jurisdiction to hear a Defendant's Motion to Withdraw their plea.

A plea to a deferred judgment and sentence remains a conviction with serious immigration consequences, and therefore it is Rule 32(d) that provides the proper "mechanism" to seek legal "relief" for this "cognizable injury" that is recognized under Colorado law.

If you found any information I have provided on this web page article helpful please click my Plus+1 or the Share button below so that others may also find it.

Never stop fighting - never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg - Email The Author at hmsteinberg@hotmail.com - A Denver Colorado Criminal Defense Lawyer - or call his office at 303-627-7777 during business hours - or call his cell if you cannot wait and need his immediate assistance - 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer - we encourage you to look at our firm. Over the last 30 plus years - H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article - - helps you in some small way.

June 28, 2015

The Colorado Bail Bond System - Unfair, Unjust, Shameful - Punish First Then The Right To Trial - A Tool To Fight Back


By H. Michael Steinberg - Colorado Criminal Defense Lawyer

The Colorado Bail Bond System - Unfair, Unjust, Shameful - Punish First Then The Right To Trial - A Tool To Fight Back
- Colorado's Bail Bond System is broken. The purpose of bail is solely to insure the appearance of the Defendant in court. The reality is the wealthy "get out" and the not so fortunate - paycheck to paycheck families - often lose everything.

The meaning of a "presumption of innocence" is ironic to these individuals and their families. The system was never intended to keep in custody those who do not have the ability to post bond. In it's simplest terms - the definition of bail is the total amount of money required to be released from jail while awaiting trial. If you have the amount of bail set by the judge, or have the ability to retain the services of a bailbondsperson - you gain your freedom while fighting the charges.

If you don't "post" bail - you stay in custody until you can raise the bail or the case is resolved. You never regain your freedom until you either plea bargain, or the case is resolved in some other way.

The United States leads the entire world in the number of "pre-trial" detainees waiting for the cases to resolve. On any given day there are more than 500,000 people in jail who do not have the resources to post bond or are being held on "no -bond" holds.

Those Who Cannot Post Bail - The Unfair Impact On The Innocent

Colorado's Bail Bond System Destroys Lives

Putting aside the constitutionality of the bail bond system for a moment, the reality of not posting bond is too real to many in the Colorado criminal justice system. For those who cannot post bond the following impacts are common:

- They lose their employment.
- They lose their home - or are evicted from their apartment.
- They lose custody of their children.
- They "do more time" waiting to resolve the case than the actual sentence to jail as a result of a conviction by plea or by trial.
- They are less able to assist in their defense and more vulnerable to a harsh "plea bargain."

Or Alternatively Pleading Guilty to "Get Out"

- Pleading guilty to crimes they did not commit to salvage something of their lives.
- The creation of a permanent criminal history that leads to a life of underachieving and loss of income.

The Purpose Of The Colorado Bail Bond System Is NOT To Incarcerate

The idea of bail is not punishment. It is an unstated and entrenched belief by many prosecutors and Judges in the Colorado criminal justice system that the person in custody is guilty. Bonds are set on that premise.

But - there is a new tool in the war against unfairness in the Colorado Bail Bond System. In 2013 the Colorado state legislature enacted new legislation (see below) that was intended to alter the bail bond system to use - rather than cash or surety bonds - a range of nonfinancial conditions such as GPS monitors, pretrial supervision, or unsecured "personal recognizance" bonds.

Many judges are either unaware of the new law and therefore don't pay any attention to it, or they are so entrenched in bail bond system that the ignore the intent and language in the law.

First - Understanding Colorado Bail Bond "Schedules" - Unfair, Unjust and Probably Unconstitutional

Colorado still uses so called "scheduled" bond amounts that turn solely on the crime charged. For example - the "scheduled" bond in Boulder Colorado on a charge of Distribution of a Controlled Substance Schedule I or II is (18-18-405(1)(a)) is $50,000.00. While the United States Justice Department has filed a civil rights lawsuit attacking this practice as unconstitutional and a violation of a citizen's civil rights, it is also entrenched in the system.

The Colorado Bail Bond System - The District Attorney's Use of Fear

The use of the Colorado Bail Bond has ben a way to lock people up without an adjudication of guilt. When the bail bond hearing is held - the District Attorney is heard to wail about how heinous the crime was, how dangerous the accused is, and how - if released, the accused will harm others. Without the possibility of cross examination, the alleged victims of these alleged crimes are also allowed to be heard on issues related to guilt and innocence. After listening to this verbal assault on the Defendant - Judge's find themselves reacting to the tirade and setting high bail even on seemingly insignificant cases.

The Colorado Bail Bond System - Pleading Guilty To Get Out Of Jail

I have watched over and over as many responsible fathers and mothers actually agree to plead guilty to crimes they did not commit to gain their freedom and save their families. The deal is presented to them - often in domestic violence cases - plead guilty and get out, or be stubborn - maintain your innocence and wait for your trial... and stay behind bars.

If you're fortunate enough to use a bail bondsman to post your bail - you will pay between 10 to 15% of the "face amount" of the bail to gain your freedom. That "premium" goes into the pockets of the bondsperson who then posts the entire bond on your behalf. This premium is never returned whatever the result of the prosecution. Even if charges are never filed or, if filed, they are later dropped, that premium is lost.

The New Weapon - Colorado's New Bail Law - Use It To Force Colorado Judges To Set Just Bail Bond Conditions - Giving The Accused A Chance

In 2013, the Colorado State Legislature amended the existing law that is the tool used by Judge's setting bond. The Section is 16-4-103

16-4-103 - Setting and Selection of Bond/Criteria

The Trial Judge uses this law to:

  1. Determine the type of bond and conditions of release;
  2. Review of bond and conditions fixed upon return of an indictment or filing of an information or complaints which includes arrest warrants issued after the filing of charging documents.
  3. Apply a new presumption of release under least-restrictive conditions (unless the defendant is unbailable such as in the event of a charge of First Degree Murder (pursuant to the constitutional preventive detention provisions);
  4. Apply new individualized conditions of release which requires a mandatory consideration of a defendant's unique financial condition or situation;
  5. Find "reasonable" financial conditions, and non-statutory conditions that are "tailored to address a specific concern;" and
  6. Consider ways (including new bond types in statute) to avoid unnecessary pretrial detention.
What follows is a reprint of the actual law as of the writing of this article - July 2015:


§ 16-4-103. Setting and selection type of bond - criteria.

(1) At the first appearance of a person in custody before any court or any person designated
by the court to set bond, the court or person shall determine the type of bond and
conditions of release unless the person is subject to the provisions of section 16-4-101.

(2) If an indictment, information, or complaint has been filed and the type of bond and
conditions of release have been fixed upon return of the indictment or filing of the
information or complaint, the court shall review the propriety of the type of bond and
conditions of release upon first appearance of a person in custody.

(3) (a) The type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the person as required and to protect the safety of any person or the community, taking into consideration the individual characteristics of each person in custody, including the person's financial condition.

(b) In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.

(4) When the type of bond and conditions of release are determined by the court, the court
shall:

(a) Presume that all persons in custody are eligible for release on bond with the appropriate and least-restrictive conditions consistent with provisions in paragraph (a) of subsection (3) of this section unless a person is otherwise ineligible for release pursuant to the provisions of section 16-4-101 and section 19 of article II of the Colorado constitution. A monetary condition of release must be reasonable, and any other condition of conduct not mandated by statute must be tailored to address a specific concern.

(b) To the extent a court uses a bond schedule, the court shall incorporate into the bond schedule conditions of release and factors that consider the individualized risk and circumstances of a person in custody and all other relevant criteria and not solely the level of offense; and

(c) Consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration and levels of community-based supervision as conditions of pretrial release.

(5) The court may also consider the following criteria as appropriate and relevant in making a
determination of the type of bond and conditions of release:

(a) The employment status and history of the person in custody;
(b) The nature and extent of family relationships of the person in custody;
(c) Past and present residences of the person in custody;
(d) The character and reputation of the person in custody;
(e) Identity of persons who agree to assist the person in custody in attending court at
the proper time;
(f) The likely sentence, considering the nature and the offense presently charged;
(g) The prior criminal record, if any, of the person in custody and any prior failures to
appear for court;
(h) Any facts indicating the possibility of violations of the law if the person in custody is
released without certain conditions of release;
(i) Any facts indicating that the defendant is likely to intimidate or harass possible
witnesses; and
(j) Any other facts tending to indicate that the person in custody has strong ties to the
community and is not likely to flee the jurisdiction.

(6) When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.

The Colorado Bail Bond System - Unfair, Unjust, Shameful - Punish First Then The Right To Trial - A Tool To Fight Back

If you found any information I have provided on this web page article helpful please click my Plus+1 or the Share button below so that others may also find it.

Never stop fighting - never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg - Email The Author at hmsteinberg@hotmail.com - A Denver Colorado Criminal Defense Lawyer - or call his office at 303-627-7777 during business hours - or call his cell if you cannot wait and need his immediate assistance - 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.


You must make a responsible choice for a Colorado Criminal Defense Lawyer - we encourage you to look at our firm. Over the last 30 plus years - H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article - - helps you in some small way. H. Michael hopes you found this page helpful

March 28, 2015

Surviving The Colorado Juvenile Court System - Some Tips For Parents By A Juvenile Court Lawyer

Surviving The Colorado Juvenile Court System - Some Tips For Parents By A Juvenile Court Lawyer.jpgBy H. Michael Steinberg - Colorado Juvenile Crimes Criminal Defense Lawyer

Understanding And Surviving The Colorado Juvenile Court System - Some Tips For Parents - The most critical component of success in the Colorado Juvenile Court System is the involvement of parents and family. What families find when they arrive in juvenile court is often chaos and what results in a very negative experience. That experience can be changed by understanding a few important concepts.

Every family knows that the success or failure of a member of that family can turn on the emotional, social, cultural, and financial support of the family. No one knows their children better than a parent. A parent is in the best position to give insight into the juvenile's behaviors, past experiences and personal needs.

Here's the problem in a nutshell - the juvenile justice system can create very real barriers which have the result of actually preventing the effective contribution of parents to a successful outcome. Court appointed lawyers, Guardians Ad Litem (GALs), Probation Officers, and Pretrial Services persons either ignore parents or "marginalize" them as the case proceeds through the stages of prosecution.

Sometimes "a law enforcement mentality" takes over for common sense, compassion and understanding.

A Lack Of Trust In Colorado Juvenile Court Proceedings

The frustration felt by many parents in juvenile court is often a matter of perception. Juvenile court is different than adult court - it is intended to be less adversarial less "combative."

But often parents are confused by the very rigid proceedings and an instinctive lack of trust takes over which combines with feelings of alienation and victimization.

The people who work in the Colorado juvenile justice system at times have attitudes that stem from uncaring and distant parents and that can sometimes result in their treating all parents with disrespect. When a family has had repeated frustration in juvenile court it can lead to a lack of cooperation even for well meaning District Attorneys, Probation Officers and Juvenile Court Judges.

This can, and often does, result in poor outcomes for the juvenile fighting the charges in juvenile court. When a son or daughter is looking to his or her parent or parents for guidance and the parent is confused, angry, or frustrated by the process - the impact on the relationship between the juvenile and his family can be even more alienation. Exhaustion impacts the ability of the parent to "deal" with the expectations of juvenile court.

The Best Interest Of The Child In Colorado Juvenile Court

It is a mistake to ever assume that parents are not acting in the best interests of their child. What changes the perception of others in the juvenile criminal justice system to the parents' intent as regards their children is when parents, acting without the knowledge, skills and experience they need, are expected to make good decisions in an environment that can be hostile and antagonistic to them.

A healthy respect for the parents ongoing role as a caretaker and the knowledge and information parents can share with the authorities in that role - as a parent - can make certain that - at each stage of the process - the parents input is used effectively and respectfully.

The Goals Of the Colorado Juvenile Justice System

If you begin with an understanding of just how different the Colorado Juvenile Justice System is when compared to the more punitive Adult Criminal Justice System - it can help a parent lower their natural defense systems. The goals of the system are:

Community protection - as balanced against the juvenile's needs and rehabilitation.

Personal accountability of the juvenile.

The development of adult competencies (learning life skills that usher children into the adult world)

The Answer - Again It Is All About Respect - The Colorado Juvenile Justice System

The collaboration of parents and juvenile court staff requires mutual respect and mutual valued communication. Some tips on how to get there:


  • Engage ONE PERSON to be your"point of contact" - someone you can connect with on a consistent basis to check on the status of the case and your child.

  • Learn the unstated assumptions about your child - the mission and goals of the Colorado juvenile justice system as to YOUR CHILD and learn the "ropes" of the system by reading as much as you can about the procedures that control the system.

  • Obtain as much information from the juvenile pretrial services and pobation department or ANY OTHER agency impacting your child.

  • Understand the weaknesses of a system that is overly burdened - learn how the weaknesses of that system can harm your child because of - say - a lack of expected resources to help solve the child's problems - then find a way around that lack of resources by pressing for alternative solutions, (e.g. if one drug treatment program is full - find another - or an alternative program ina neighboring jurisdiction that has space.)

Parents Feel Alienated By The Colorado Juvenile Court System

A partnership is based on trust. Parents in the juvenile justice system are often treated as extraneous even burdensome obstacles to the process. Parents are unfairly blamed for the acts of their children. Parents can be scapegoated or otherwise blamed for the crimes of their kids.

What parents want is the feeling that the system cares about them. They want to be kept in the loop, to feel treated as a respected partner with honesty and with clarity. What they receive is alienation and the feeling they are to blame for everything. They feel "talked down to" and made to feel worthless.

Blaming The Parents Does Not Help The Child Caught Up In The "System" - It Makes The Outcomes Worse

The research in this area has found that blaming the parents is not only unsupported by the facts of each case but established that when parents are treated with respect and dignity by juvenile justice system professionals the outcomes are much more likely to be successful.

The insights and views of the parents are valuable experiences are valued
and utilized.

Information is regularly provided to families from the time of initial contact - arrest, detention, intake, hearings, disposition and placement, and is provided in a variety of means which respect families' cultures, experiences, and needs.

Family members have a single point of contact within the local juvenile justice system that they can rely on to provide open, honest and up-to-date information regarding their child.

Information is made available to family members through brochures, resources, or other materials that describe the mission, goals and expectations of the juvenile justice system.

Families are referred to self-help resources including local and state level family peer advocacy projects.

Families are included in planning activities associated with the care and treatment of their
child, and the plans address the needs of the family to support their child, as identified by the family.

Family members are routinely included in all decisions regarding their child, all planning
meetings, and ongoing monitoring. Their input is valued and reflected in the plan, and they come to the table with sufficient knowledge and skills to support their effective involvement.

When a youth is in out-of-home placement, regular communication, visitation, and transportation is provided or arranged for family members.

Aftercare planning for a youth in placement includes a "family plan" that is developed in
partnership with the family.

Family centered resources and programs, such as Functional Family Therapy, Multi-Systemic Therapy, or Family Group Decision Making are currently available, or plans are underway to make them available in a jurisdiction.

if Your Child Is Arrested and Enters The Colorado Juvenile Court System - An Action Plan

When you receive the call that your child has been arrested:

Immediately make it clear that your child is not to be questioned without you present. NEVER allow your child to speak to any person in authority Never fall for the suggestion that your child might be "more comfortable" speaking to the police without your presence.

NEVER allow the authorities to delay your seeing your child. Press and press hard to see himn or ger immediately. If the police try to prevent you from seeing your child go up the chain of authority until you get your way.. Document every one's names along the way to be used in court later in court when your lawyer seeks to suppress any incriminating statements your child may have made.

Instruct your child to NEVER speak to the police unless it is to give them their name, address. And date of birth. "Lawyer Up" on behalf of your child - instruct your chld to always ask for a lawyer at the earliest possible moment.

If there appears to be a reason to call 911- consider it carefully. Once 911 is called - it cannot be taken back. While an altercation with your child may seem out of control - calling 911 may provide an invitation into your family life that yoy may regret. While you may certain frustrations with your child - involvement of the Colorado Juvenile Justice System may be more than you can anticipated and it can create a criminal record long after the 911 call is made.

More Tips For Parents Whose Children May Have Contact With The Colorado Juvenile Justice System

Prepare your child now for police contacts in the future. Teach your child his or her rights under the Constitution. Prepare your child to have the fortitude to withstand questioning by the police and asserting the child's inalienable rights to end that questioning by asking for a lawyer and or exercising their right to remain silent.

You should actually PRACTICE the phrases your child should use to exercise their rights making sure they understand the precise phrases and what they mean. Always make certain they understand they can exercise those rights and still remain polite.

While it has always been true that police are your child's protectors that role changes when the child is the target of an investigation the rules change and the police become the child's adversary as it is now the intention of the police to build a case against them.

If questioned - your child should - in addition to the exercise of their rights above - immediately ask to talk to you and a lawyer. The adage "if you have nothing to hide" demonstrates a naive view of the criminal justice system. You may not believe you have anything to hide- but it is all too common for the innocent to be swept up in a poorly investigated case and implicated in a crime in which they were not involved.

A child may make a mistake in a police interview and could actually admit to doing something they never did. There is never a need to run from a police officer - or to lie when the child is in control of the situation through a clear understanding of their Constitutional rights.

The Role Of The Colorado Juvenile Criminal Defense Lawyer

Bottom line - an experienced Colorado Criminal Defense Lawyer can and will protect your child's rights. The lawyer knows how to protects those rights and how to prevent mistakes from happening once your child enters the justice system.

No one person is more your child's protector and champion that the criminal defense lawyer.

Unlike others in the system - the lawyer works only on behalf of your child. Juvenile criminal cases can be very serious with possible sanctions such as jail (juvenile detention) or the removal of the child from the child's home. Certain kinds of juvenile criminal record may close doors on your child's future as regards their education, employment, financial aid or a future in the military.

The Colorado Juvenile Criminal Lawyer is there to protect your child from consequences that may follow your child for the rest of his or her life.

February 16, 2015

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof.jpgBy H. Michael Steinberg - Colorado Criminal Defense Lawyer Online Blog

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof - For over 30 years the burden of going forward in a Colorado criminal Motion to Suppress Evidence hearing was on the prosecution. With the announcement of a new case People vs Cunningham - that burden - in many Colorado criminal courtrooms - now sits with the Defendant and his or her lawyer.

The Case of People v. Cunningham 314 P.3d 1289 (Colo. 2013), 13SA179,

Decided in later 2013 - People v. Cunningham - changed everything in Colorado's Motion to Suppress. Here is an excerpt from the case:

As the moving party seeking suppression of the evidence, the defendant has the burden of alleging and showing that a search or seizure violated the defendant's right to privacy under the Fourth Amendment. We hold that the trial court erred in assigning the initial burden of going forward to the prosecution and reverse the suppression order.

A Shift In The Burden Of Proof

After Cunningham, Colorado judges have begun to require defense lawyers to "carry" the initial burden on their motions to suppress evidence.

Motions to suppress maybe based on the execution of a search warrant, an attack on the affidavit in support of a search warrant (a veracity hearing) LINK or a warrantless search and seizure of evidence.

In the future - Colorado criminal defense lawyers will find themselves going first in support of their motions by calling the police witnesses and attacking their investigation as in violation of the defendant's constitutional rights.

Meeting the initial burden of going forward - at least where the search and seizure involved a warrantless search - should be minimally difficult and after an initial showing of a the failure to seek a warrant - the burden should then be argued to shift to the prosecutor to establish that warrantless conduct on the part of the officers falls within one of the narrowly defined exceptions to the warrant requirement.

Most Colorado judge's should permit the shift to consist of an offer of proof - or a stipulation with the prosecutor that the search and or seizure was - in fact - without a warrant. There is precedent in Colorado for the proposition that a trial court can properly permit the defendant to proceed with an offer of proof to meet the initial burden by establishing the lack of a lawfully obtained arrest or search warrant.

A Motion To Suppress Under The Fourth Amendment and Colorado Crim. P. 41 (e)

A motion to suppress under Colorado Rule of Criminal Procedure 41(e) - states the claim that the defendant's Fourth
Amendment rights have been violated. The motion must state with reasonable specificity the factual and legal basis for the violation of the Fourth Amendment's right to privacy). T

Cunningham stands for the proposition that whether a Fourth Amendment violation is made out - warrantless or with a warrant, under Crim. P. 41 - the party filing the motion bears the burden of "going forward" by showing that:

(1) the property was illegally seized without a warrant; (2) the warrant is insufficient on its face; (3) the property seized is not that described in the warrant; (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued; or (5) the warrant was illegally executed. Crim. P. 41(e)(1)-(5);

After the Cunningham case - if the defendant satisfies the burden of going forward - the prosecutor must then show that the defendant's Fourth Amendment rights were not violated. The prosecution does not have an initial burden of going forward at a suppression hearing.

Noteworthy: Under Colorado Law The Trial Court Still Controls The "Order of Presentation"

While the initial burden of proof may be on the defendant in a motion to suppress, the Judge can still control the "order of presentation" of the evidence. The judge may change the order of proof in deciding the most expeditious method to proceed. The evidence introduced in Colorado Motions to Suppress varies greatly. It is based on documents, stipulations of the parties, agreed upon or contested issues and other matters unique to the individual case. On an individualized basis the evidence itself may change the order of the admission of the evidence and thereby impact and perhaps lighten the burden of proof placed on the defense by the Cunningham case.


December 27, 2014

Colorado Juvenile Court System - The Defense Of A Child Means Listening

By H. Michael Steinberg Colorado Juvenile Crimes Criminal Defense Lawyer


Colorado Juvenile Court System - The Defense Of A Child Means Listening

After more than 30 years in the Criminal Courts of Colorado I have learned a great deal about my youngest clients - juveniles charged with adult crimes.

Some Lessons about Colorado Juvenile Criminal Defense:

● Never label a kid - never rush to judgment about what type of person they are.

● As a criminal defense lawyer always take the time to sit down and talk with your child client without the parents pr guardian present. Give you client a chance to "open up."

● Do NOT treat your clients as if they are future felons. Treat them as they are - kids in trouble. Don't let your client's think ever think they will be failures as adults because of their case.

● Force the DA, the Judge and the Court personnel to listen to you about your client.

● Don't assume your young clients are lying. Don't assume anything!

● Juveniles are not adults. Pre-judgment and stereotyping is common with kids in trouble with the law - labeling theory is a common theme in juvenile criminological research. It is a self-fulfilling prophecy - treating juveniles as failures actually exacerbates and sometimes accelerates their own personal alienation causing the effect you expected in the first instance.

● Force the courts to see your juvenile client as and court personnel as more than a piece of paper or a criminal charge. The stake holders in the juvenile justice system have their own agenda - which tends to minimize youths' voices and is "rooted in a reality devoid of particular details that do not fit well with decision-makers' own lives and experiences."

● Children need to believe that you believe in them.... that somebody cares about them.

● Set a reasonable standard for your client. Be a role model - a positive influence. Show these children respect and give them hope.

● Look at the influences in their lives. Are they being forced by peer pressure or school bullying to act the way they have acted?

● Don't be afraid to hug them .. I am over 6 foot 1" and almost 285 pounds - believe me - they need a hug.

Good Luck. H. Michael Steinberg

December 2, 2014

2014 Criminal Court Deadlines Under Colorado Criminal Law - When You Have To File - What You Have To Do

2014 Criminal Court Deadlines Under Colorado Criminal Law - When You Have To File - What You Have To Do.jpg
By H. Michael Steinberg Colorado Criminal Lawyer

What follows are questions and answers about one of the most important questions under Colorado criminal law - WHEN do certain things have to happen - what are the deadlines for the government and for the accused Defendant?

This short article is to help the public understand those deadlines and where to find more information about those deadlines.

When Must Search Warrants Be Executed In Colorado?

Execution of search warrant - 2 weeks (14 days) after their issuance [Source - Crim.P. 41(d)(5)(VI) at 24, CMCR 241(d) at 9 and CRS § 16-3-305(6) at 32, § 60

When Must A Summons To Appear In Court Be Mailed?

Summons--service by mail must be sent at least 2 weeks (14 days) before appearance date - Crim.P. 4(c)(2)(III) at 12 Crim.P. 4.1(c)(1) at 13 - CRS § 16-5-206(3) at 40, § 73 - CRS § 16-2-109 at 29, § 57.

When Can I Expect My Bond Return Court Date To Be Set?

An Arrestee's bail bond return date to the jurisdiction issuing arrest warrant at least 2 weeks (14 days) after appearance - Crim.P. 5(a)(3) at 13 - Crim.P. 5(c)(3) at 14.

When Must I File My Demand For A Felony Preliminary Hearing?

Preliminary Hearing--demand in county court - 1 week (7 days) after defendant
brought before court Crim.P. 5(a)(4)(I) and (a)(5) at 13, 14

When Must The Preliminary Hearing Be Held?

Preliminary hearing must be set and heard 5 weeks (35 days) after setting Crim.P. 5(a)(4)(I) at 13 (county court) Crim.P. 7(h)(2) at 15 (district court).


When Must The DA Provide Me With All Of The Discovery (police reports) Before Trial?

Discovery--prosecution tail-end disclosures at least 5 weeks (35 days) before
trial Crim.P. 16(I)(b)(3) at 16

When Must I Comply With My Discovery Disclosures To The Prosecution?

Discovery--defense disclosures (felony cases) - at least 5 weeks (35 days) before
trial Crim.P. 16(II)(c) and (V)(b)(1) at 16, 17 Crim.P. 16(II)(d) at 16 CRS § 16-7-102 at 41, § 75.

Discovery--defense disclosures (non- felony cases) at least 5 weeks (35 days) before trial (alibi disclosures) at least 1 week (7 days) before trial (other disclosures) Crim.P. 16(II)(d) at 16 Crim.P. 16(II)(c) and (V)(b)(1), at 16, 17 CRS § 16-7-102 at 41, § 75

I Lost At Trial - What Deadlines Do I Face To File Post Verdict Motions - Appeals?

Motion for acquittal - 2 weeks (14 days) after jury discharge Crim.P. 29(c), at 18
CMCR 229(c) at 9

Motion for new trial - 2 weeks (14 days) after verdict Crim.P. 33(c), at 21

Motion for sentence reduction - 18 weeks (126 days) Crim.P. 35(b) at 21

Motion to correct sentence imposed in illegal manner - 18 weeks (126 days) Crim.P. 35(b) at 21

35(c) motion compliant with - 7 weeks (49 days) Crim.P. 35(c)(3)(III) at 21

35(c) motion--court review 9 weeks (63 days) Crim.P. 35(c)(3)(IV) at 21-22

County Court Appeals

Docket appeal in district court and file notice of appeal - 5 weeks (35 days) Crim.P. 37(a) at 22 CRS § 16-2-114(1) at 30, § 58

Motion for acquittal - 2 weeks (14 days) after jury discharge Crim.P. 29(c), at 18
CMCR 229(c) at 9

Motion for new trial - 2 weeks (14 days) after verdict Crim.P. 33(c), at 21

Motion for sentence reduction - 18 weeks (126 days) Crim.P. 35(b) at 21

Motion to correct sentence imposed in illegal manner - 18 weeks (126 days) Crim.P. 35(b) at 21

35(c) motion compliant with Form 4 - 7 weeks (49 days) Crim.P. 35(c)(3)(III) at 21

I Am Being Accused Of Violating My Probation - What Deadlines Apply?

Probation revocation hearing - (in-custody) - Must be set within 2 weeks (14 days) after complaint is filed Crim.P. 32(f )(4), at 18 CRS § 16-11-206(4), at 49, § 87

Probation revocation-action upon proof of violation - 1 week (7 days) after hearing Crim.P. 32 (f )(5), at 18 CRS § 16-11-206(5), at 49, § 87

September 30, 2014

Colorado's New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions


By H. Michael Steinberg - Colorado Criminal Defense Lawyer For Bail Bond Issues

Colorado's New Bail Bond Law Means More Fairness In Setting Bail Bonds and Bail Bond Conditions -Quietly last year - Colorado's state legislature tweaked bail bond laws that had been unfair for many, many years. With the passage of the Pretrial Bail Law - H.B. 13-1236 - on May 11, 2013, Colorado started the process to reform bail bond laws that had led to unfair and unintended results for decades (since 1972 - 42 years!).

The Colorado Commission on Criminal and Juvenile Justice (CCJJ) was primarily responsible for the changes.

The goals of the new law are:

TO: "Implement Evidence Based Decision Making Practices and Standardized Bail Release Decision Making Guidelines" - meaning the use of "empirically developed risk assessment instruments" instead of emotional pleas by prosecutors to incarcerate before conviction thousands of individuals presumed innocent and held in custody because they did not have the cash to gain their freedom pending trial or plea bargain.


TO: "Discourage the Use of Financial Bond for Pretrial Detainees and Reduce the Use of Bonding Schedules; and

TO "Expand and Improve Pretrial Approaches and Opportunities in Colorado."

For more than four decades what is euphemistically called "pretrial detention" was unfairly used to coerce pleas from individuals unable to post their bond.

While judge's will continue to have unfettered discretion in setting bond - the new law gives judges more options to use other bond conditions and pretrial programs to assure compliance with court orders.

The Changes In The Colorado Bail Bond Laws

The First Significant Change - 16- 1-104 - The Definition of Bail

Prior to enactment of the new law a Bail Bond was defined as only "an amount of money."

After the passage of the new law a bail bond is more broadly defined as "a security, which may include a bond with or without monetary conditions" and the term "security" is used further defined as a pledge.

Money is now not the only "currency" that can secure the defendant's appearance in court. Other conditions have been placed on the playing field as "cash." Non-monetary based conditions of pretrial release are - after the new law - focused on the individual who is in court at that place and at that moment in time.

Language that used to read "setting the amount of bail and type of bond" - now reads "setting the type of bond and conditions of release."

The Second Significant Change - A New "Individualized Approach To Setting Bail

While the criteria for setting bond is a lengthy and complex statute - it is the key to your freedom if you are in custody seeking release. Read it carefully - lawyers do.

Here is the entirety of the new law reprinted for you:

C.R.S. § 16-4-103 Setting and selection type of bond - criteria

(1) At the first appearance of a person in custody before any court or any person designated by the court to set bond, the court or person shall determine the type of bond and conditions of release unless the person is subject to the provisions of section 16-4-101.

(2) If an indictment, information, or complaint has been filed and the type of bond and conditions of release have been fixed upon return of the indictment or filing of the information or complaint, the court shall review the propriety of the type of bond and conditions of release upon first appearance of a person in custody.

(3) (a) The type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the person as required and to protect the safety of any person or the community, taking into consideration the individual characteristics of each person in custody, including the person's financial condition.

(b) In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.

(4) When the type of bond and conditions of release are determined by the court, the court shall:

(a) Presume that all persons in custody are eligible for release on bond with the appropriate and least-restrictive conditions consistent with provisions in paragraph (a) of subsection (3) of this section unless a person is otherwise ineligible for release pursuant to the provisions of section 16-4-101 and section 19 of article II of the Colorado constitution.

A monetary condition of release must be reasonable and any other condition of conduct not mandated by statute must be tailored to address a specific concern.

(b) To the extent a court uses a bond schedule, the court shall incorporate into the bond schedule conditions of release and factors that consider the individualized risk and circumstances of a person in custody and all other relevant criteria and not solely the level of offense; and

(c) Consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration and levels of community-based supervision as conditions of pretrial release.

(5) The court may also consider the following criteria as appropriate and relevant in making a determination of the type of bond and conditions of release:

(a) The employment status and history of the person in custody;

(b) The nature and extent of family relationships of the person in custody;

(c) Past and present residences of the person in custody;

(d) The character and reputation of the person in custody;

(e) Identity of persons who agree to assist the person in custody in attending court at the proper time;

(f) The likely sentence, considering the nature and the offense presently charged;

(g) The prior criminal record, if any, of the person in custody and any prior failures to appear for court;
(h) Any facts indicating the possibility of violations of the law if the person in custody is released without certain conditions of release;

(i) Any facts indicating that the defendant is likely to intimidate or harass possible witnesses; and

(j) Any other facts tending to indicate that the person in custody has strong ties to the community and is not likely to flee the jurisdiction.

(6) When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.

A Summary of The Key Changes To C.R.S. § 16-4-103 - Setting Bond In Colorado

This law - which I have argued for more than 30 years importantly - is substantially different from predecessor.

A summary of the new bail setting law would include the following list of changes.

The new law does these things.

The Court, to determine the type of bond and conditions of release,

(1) Must now review of bond and conditions fixed upon return of an indictment or filing of an information or complaint (including on warrants issued after the filing of charging documents);

(2) Engage in a a presumption of release under least-restrictive conditions unless the defendant is unbailable pursuant to the constitutional preventive detention provisions;

(4) Focus on the individualization of conditions of release (including in "bond schedules") and express mandatory consideration of a defendant's financial condition or situation;

(5) Apply "reasonable" financial conditions, and non-statutory conditions to be "tailored to address a specific concern;" and

(6) Make certain to give consideration of ways (including new bond types in statute) to avoid unnecessary pretrial detention.

The Court must apply - in it's individualized bail determination - he use of an empirically developed risk assessment instrument while it considers the bail-setting criteria previously set out in Sections 16-4-105 (1) (a) - (k).

While the law does not define "least restrictive" conditions, the terms is well understood to mean that cash or surety bonds are clearly "more restrictive" than unsecured bonds such as personal recognizance bonds (PR Bonds).

The Third Significant Change - New Provisions Concerning "Secured Money Conditions" (if they are ordered)

At the time of setting a "more restrictive bond" such as a cash or surety bond - the Court must"

....presume that the defendant is "eligible for release on bond with the appropriate and least restrictive conditions" (§ 16-4-103 (4) (a));

....determine the sufficiency of the financial condition to ensure court appearance and public safety, "taking into consideration the individual characteristics of each person in custody, including the person's financial condition" (§ 16-4-103 (3) (a));

....find that the condition is "reasonable and necessary to ensure the appearance of the person in court or the safety of any person or persons in the community" (§ § 16-4-104 (1) (c), 16-4-105 (7));

..."consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration" (§ 16-4-103 (4) (c)).

The Fourth Significant Change - Section 16-4-104 - Changes To The Types of Bond

While the old law relied on basically TWO bond types - unsecured or unsecured "personal recognizance" bonds - the new law lists FOUR bond types.

Subsection (a) Bonds - are unsecured personal recognizance bonds with only statutorily mandated conditions.

Subsection (b) Bonds - are unsecured personal recognizance bonds with additional non-monetary conditions necessary for public safety or court appearance.

Subsection (c) Bonds - are secured money bonds when the secured financial condition is "reasonable and necessary to ensure" court appearance or public safety.

Subsection (d) Bonds - are secured by real estate to be ordered only when release on personal recognizance without monetary conditions will not assure court appearance or public safety.

The News Colorado Bail Bond Law Finds A Way Around The DA's Objections

While under the old version of the law a DA could object to a PR - personal recognizance bond in certain situations thus compelling judges to set a secured cash bond. The new law allows the DA's objection only to a subsection (a) bond. Judges may set a "Subsection (b)" unsecured personal recognizance bond with additional non-monetary conditions.

The Fifth Significant Change - Section 16 - 4 - 105 - Changes To The Conditions of Release

This new section - 16-4-105 provides a new section that provides that secured monetary conditions need not be "automatic" and that the conditions of pretrial release include the use of pretrial services programs that can substitute for monetary bonds to insure the Defendant's appearance.

The Sixth Significant Change - Section 16 - 4 - 106 - Pretrial Services Programs

This section describes pretrial services programs and supports the notion that judicial districts should "make all reasonable efforts" to implement an empirically developed risk assessment instrument and a structured decision-making design based on risk.

The Seventh Significant Change - Section 16 - 4 -107 - A New Hearing After The Setting of Monetary (Cash) Conditions of Bond

If a secured bond (money bond) is ordered, a defendant has the right to file a "motion for relief." The motion can present evidence "not fully considered" by the judge at the bail hearing. While a judge may deny the motion without a hearing - the judge must do it within 14 days and must use empirically developed risk assessment instruments.

Conclusion - Changes Bring Much Needed Reason To The Setting Of Colorado Bail Bonds

Judge's setting bond today often fall into old habits in setting bail bonds in Colorado criminal cases such as relying on:

- emotional appeals from the vindictive victims.

- so called "scheduled bonds" which bond amounts were set decades ago and routinely used by judges in Colorado without any individualization to the person whose freedom is at stake.

- the level of the felony charged - specifically the visceral reaction of the judge to the nature and number of the charges - and not all of the factors listed in sections 4 (a) - through - (j) above.

September 13, 2014

2014 Colorado State Legislature Consolidates All Criminal Record Sealing Laws

2014 Colorado State Legislature Consolidate All Criminal Record Sealing Laws.jpg
By H. Michael Steinberg Colorado Sealing - Expungement Criminal Defense Lawyer

In a move that was hailed as very positive by the Colorado criminal defense bar - the Colorado state legislature moved ALL of Colorado's laws pertaining to the sealing of criminal offenses into one place in the Colorado Criminal Code.

The bill that accomplished this act also modified the "basic sealing law" to now allow a person to seal a Colorado arrest record if they have not been charged with a crime, the statute of limitations has not run, and the person is no longer being investigated by law enforcement.

To locate and read the following statutes FOLLOW THIS LINK then plug in the statute that governs your situation.

Colorado's Laws On Sealing And Expunging Records

Except for juvenile records - Colorado only offers the SEALING of criminal records. "Expunging" a criminal record means actually completely destroying those records. On the other hand -"sealing:" a record means making those criminal records inaccessible to private parties.

Again - this is often confused by the public - "expungement" of criminal records involves the removal of the criminal history -while the "sealing" of criminal records involves strictly restricting access to the record.

What follows are the actual Colorado sealing statutes - which can be looked at by anyone using the website link above:

Part 7. CRIMINAL JUSTICE RECORD SEALING

The :"Basic" Colorado Sealing Of Criminal Records Law

§ 24-72-701. Definitions

§ 24-72-702. Sealing of arrest and criminal records other than convictions

§ 24-72-703. Sealing criminal conviction records - advisements - discovery - order applicability - general provisions

Drug Related Convictions

§ 24-72-704. Sealing of criminal conviction records information for offenses involving controlled substances for convictions entered on or after July 1, 2008, and prior to July 1, 2011

§ 24-72-705. Sealing of criminal conviction records information for offenses involving controlled substances for convictions entered on or after July 1, 2011

Victims Of Human Trafficking

§ 24-72-706. Sealing of criminal conviction records information for offenses committed by victims of human trafficking

Theft Of Public Transportation Services

§ 24-72-707. Sealing of criminal conviction records information for offenses involving theft of public transportation services

Sealing Colorado State Petty Offenses and Municipal (City) Offenses

§ 24-72-708. Sealing of criminal conviction records information for petty offenses and municipal offenses for convictions

Posting Revenge Porn - Intimate Pictures of Others

§ 24-72-709. Sealing of criminal conviction records information for posting an intimate photograph of a person on the internet


Here is the CRITICAL NEW LANGUAGE of The "Basic" Sealing Statute - 24-72-602

1) (a) (i) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), any person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to the person in interest is located for the sealing of all of the records, except basic identification information, if the records are a record of official actions involving a criminal offense for which the person in interest:

  • entered into a diversion agreement pursuant to section 18-1.3-101, CRS ,
  • or was not charged and the statute of limitations for the offense for which the person was arrested that has the longest statute of limitations has run,
  • or was not charged and the statute of limitations has not run but the person is no longer being investigated by law enforcement for commission of the offense,
  • or in any case which was completely dismissed,
  • or in any case in which the person in interest was acquitted
.

Good Luck - H. Michael Steinberg

September 1, 2014

Confidentiality Of Lawyer - Colorado Attorney - Client Communications - Is It Safe To Talk To Your Lawyer From Jail?

Confidentiality Of Lawyer -Colorado Attorney Client Communications - Is It Safe To Talk To Your Lawyer From Jail.jpg
By H. Michael Steinberg - Colorado Criminal Defense Lawyer

Confidentiality Of Lawyer - Client Communications - Is It Safe To Talk To Your Lawyer From Jail? - The sanctity of lawyer client communication is one of the most fundamental of all rights accorded under Colorado criminal law.

The confidentiality of your conversations with your lawyer, doctor or spiritual advisor are among the oldest privileges accorded by our legal system.

Among these privileges - the attorney client privilege underlies another of the most sacred buttresses the constitutional rights that exists in American jurisprudence - the privilege against self-incrimination under the 5th Amendment.

Without the right to confidentiality with their clients - Colorado criminal defense lawyers could function - clients could not trust them - and it would be impossible for the client to be completely honest with their criminal defense lawyer since they could never tell their lawyer the full story - the whole truth or fear that it could later be used against the accused.

Phone Calls, Emails, and Other Client - Communications From Jail

Adjacent to nearly every phone in every jail and prison in Colorado - is a sign that warns the inmate that their phone calls are monitored and what they say can be used against them

Whether lawyer- client conferences are recorded and - or monitored or not always clear. While it IS clear under Colorado law - that lawyer client phone conferences cannot be used against the accused in a criminal trial - the "accidental" listening in by jail personnel makes it very possible that the prosecutor's office could be tipped off as to strategy and background information they would not otherwise have been privy to - thus gaining a head start on weaknesses in their own case and learning about the strengths of the defense case.

The Right To Assume That Your Calls To Your Lawyer Are Privileged And Confidential

If an individual is in custody and needs to speak to his or her lawyer - it is sound advice never to assume that the call is not being monitored. While it may seem safe to assume that confidential statements between a client and their lawyer are private, and that attorney-client privilege is respected - it never hurts to check with jail personnel to make certain the assumption is correct.

Furthermore - the experienced Colorado criminal defense lawyer should make certain - even where the prosecutor has reasons to believe the conversations are admissible at trial - that the DA subpoena the relevant jail calls - as is now required by defense lawyers, and motion the Judge to review the calls in private (in camera) before they can be released to the DA.

It is important to note that the only exception to the attorney-client privilege is a situation where a client is conspiring with his lawyer to commit a crime or where the client intends to - and discloses to his or her lawyer - a plan to commit a new crime in the future.

The Impact Of Digital Technology On Jail Phone Calls

Today's digital telephone technology has resulted in the instant access to ALL phone calls made to and from our jails and prisons. Calls can be sorted by inmate - by time and date. While lawyer client communications are essential - more important is the sanctity of the those conversations.

Conclusion - Unless Colorado criminal defense lawyers can be assured that their conversations are completely confidential - they should only communicate with their clients in person - in court or at the jail.

August 12, 2014

Colorado Criminal Lawyer Series - Will I Lose My Right To Vote If I A Convicted?

Colorado Criminal Lawyer Series - Will I Lose My Right To Vote If I Am Convicted.jpg

By H. Michael Steinberg - Colorado Criminal Defense Lawyer - The Right To Vote In Colorado

The question - Colorado Criminal Lawyer Series - Will I Lose My Right To Vote If I A Convicted? is a question I am often asked. It goes to the issue of the "collateral" or indirect - unforseen impacts of a criminal conviction .

To many - the right to vote is as important as their freedom.

Known as "disenfranchisement" - denying a person the right to vote - it may be inconceivable to you that many states actually "disenfranchise" people - who have been convicted of a felony - for life.

Colorado is not one of those states - It is a compassionate states and it returns the right to vote after you have been released from incarceration and parole.

To help you understand this issue - I include the following:

In Colorado The Right To Vote After A Criminal Conviction Arises Out Of Statutes And The Colorado Constitution.

CRS 1-2-103 (4) governs the right to vote when you have been incarcerated. It provides that the right to vote is LOST while you are serving a sentence in detention or confinement in a correctional facility, jail, or other location for a felony conviction, or while serving a sentence of parole.

Furthermore - the Colorado Secretary of State has the right to cancel your voter registration upon if proof of a felony conviction is provided to the office. C.R.S. 1-2-302(3.5)(b), 1-2-606.

BUT - once you have been released from incarceration - under Colorado's Constitution - your right to vote is immediately restored. Colo. Const. art. 7, § 10.. If your right to vote was canceled - you must re-register.

Here is the Section take from the Colorado Constitution:

Section 10. Disfranchisement during imprisonment. No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution
. In Short - In Colorado - Even A Felony Conviction Will Not Prevent You From Voting - UNLESS you are incarcerated or on parole.

Colorado's Laws On This Subject May Differ From Other States

All states are not the same - you must check your own state's laws to see if you are permitted to vote and under what conditions. If you are a resident of Colorado - you benefit from Colorado's laws even if you have a federal conviction or a conviction in another state while living in this state as a resident.

Only Parole - Not Probation - Even Intensive Probation Will Not Impact This Right.

If you are on probation - you may register to vote and you may cast your vote - do not believe otherwise. The law is clear - but many Colorado probation officers mislead their probationers.

Pre-Trial Incarceration - NOT Sentenced Incarceration

Many persons cannot raise enough money to post their bail and are incarcerated for that reason alone. These individuals have not been convicted. It is important to note that if you are in this situation you DO retain your right to vote. The same is true if you have posted your bond and you are awaiting trial or other disposition of your case. Good Luck.

H. Michael

July 13, 2014

2014 New Colorado Law Codifies All Types Of Insurance Fraud SB 14-092 - § 18-5-211

2014 New Colorado Law Codifies All Types Of Insurance Fraud SB 14-092 - § 18-5-211.jpg


By H. Michael Steinberg Colorado Insurance Fraud - Theft Crimes Lawyer - Email the Author at hmsteinberg@hotmail.com

2014 New Colorado Law Codifies All Types Of Insurance Fraud SB 14-092 - § 18-5-211-
The Governor of Colorado - in May of 2014 - signed a new insurance fraud law that was effective for crimes committed on or after July 1, 2014.

Here is a LINK to the law:

Senate Bill 14-092: "Concerning the Crime of Insurance Fraud," SB 092 creates the new Title 18 crime of insurance fraud.

The law is very specific and carefully lists when a Colorado District Attorney can charge any or all players in the insurance system.

How Does One Commit The Crime Of Insurance Fraud In Colorado?

The new law applies across the board to fraud committed by insurance claimants, agents and brokers.

The most common kind of Insurance fraud in Colorado is committed when a person

...knowingly presents or causes to be presented an application for the issuance or renewal of an insurance policy, submits materially false information or fails to disclose such or fails to disclose a material event or condition that affects a person's rights or continued right to any insurance benefit or payment.

But other obvious forms of fraud - per the statute - include multiple methods of committing the crime. What is important here is that the INTENT to commit the crime is required for guilt. Therefore - it an act is merely negligent or even reckless - there is no proof of specific intent - that is - a premeditated crime.

Arguably, the second most important sections are the definitions in the law. These include the definition of what is a "material" fact and what a "claim" is.

Here is the law - the best way to understand it - is to read it carefully:

§ 18-5-211. Insurance fraud - definitions

(1) A person commits insurance fraud if the person does any of the following:

(a) With an intent to defraud presents or causes to be presented an application for the issuance or renewal of an insurance policy, which application, or documentation in support of such application or renewal, contains false material information or withholds material information that is requested by the insurer and results in the issuance of an insurance policy or insurance coverage for the applicant or another;

(b) With an intent to defraud presents or causes to be presented any claim for a loss or injury, which claim contains false material information or withholds material information;

(c) With an intent to defraud causes or participates, or purports to be involved, in a vehicular collision, or any other vehicular accident, for the purpose of presenting any false or fraudulent insurance claim;

(d) With an intent to defraud presents or causes to be presented a claim for the payment of a loss where the loss or damage claimed preexisted the execution of the applicable contract of insurance unless otherwise permitted under the contract of insurance or policy; or

(e) With an intent to defraud presents or causes to be presented any written, oral, or electronic material or statement as part of, in support of or in opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains false material information or withholds material information.

(2) An insurance producer or agent of an insurance producer commits insurance fraud if he or she knowingly moves, diverts, or misappropriates premium funds belonging to an insurer or unearned premium funds belonging to an insured or applicant for insurance from a producer's trust or other account without the authorization of the owner of the funds or other lawful justification.

(3) An insurance producer or agent of an insurance producer commits insurance fraud if he or she with an intent to defraud creates, utters, or presents a certificate or any other evidence of insurance containing false information to any person or entity.

(4) Insurance fraud committed in violation of paragraph (a) of subsection (1) of this section is a class 1 misdemeanor. Insurance fraud committed in violation of paragraphs (b) to (e) of Cite as C.R.S. § 18-5-211 subsection (1) of this section or subsection (2) or (3) of this section is a class 5 felony.

(5) The commissioner of insurance shall revoke the license to conduct business in this state of any licensed insurance producer under article 2 of title 10, C.R.S., who is convicted of any provision under this section.

(6) Nothing in this section precludes a prosecutor from prosecuting any other offense.

(7) As used in this section, unless the context otherwise requires:

(a) "Claim" means a demand for money, property, or services pursuant to a contract of insurance as well as any documentation in support of such claim whether submitted contemporaneously with the claim or at a different time. A claim and any supporting information may be in written, oral, electronic, or digital form.

(b) "Insurance" has the same meaning as defined in section 10-1-102 (12), C.R.S.

(c) "Insurance producer" has the same meaning as defined in section 10-2-103 (6), C.R.S.

(d) "Insurer" has the same meaning as defined in section 10-1-102 (13),C.R.S.

(e) "Material information" is a statement or assertion directly pertaining to an application for insurance or an insurance claim that a reasonable person making such an assertion knows or should know will affect the action, conduct, or decision of the person who receives or is intended to receive the asserted information in a manner that would directly or indirectly benefit the person making the assertion.


The Colorado Attorney General Is Most Likely To File Charges

Typically the branch of law enforcement most likely to investigate and prosecute these cases is the Office of The Attorney General Of Colorado.

The Colorado Division of Insurance in the Department of Regulatory Agencies and the National Insurance Crime Bureau makes the referral of suspected fraud, forgery, theft and other crimes to the AG - who then investigates further and decides to reject or to file charges.. It a Colorado criminal defense lawyer has an opportunity to make a difference - that difference maybe made at this "pre-filing stage."


Don't Forget The Civil Version Of Insurance Fraud In Colorado

Section 10-1-128 (6A)

Requirement -- "It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, denial of insurance, and civil damages. Any insurance company or agent of an insurance company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award payable from insurance proceeds shall be reported to the Colorado division of insurance within the department of regulatory agencies."

ABOUT THE AUTHOR: H. Michael Steinberg - Email The Author at hmsteinberg@hotmail.com - A Denver Colorado Criminal Defense Lawyer - or call his office at 303-627-7777 during business hours - or call his cell if you cannot wait and need his immediate assistance - 720-220-2277.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience - specializing in Colorado Criminal Law along the Front Range. Call him if you have any questions about ...the crime of Insurance Fraud in Colorado.

June 11, 2014

Colorado Law Mandating Employer Leave For Domestic Violation Charges Encourages False Allegations 24-34-402.7

Colorado Law Mandating Employer Leave For Domestic Violation Charges Encourages False Allegations 24-34-402.jpg


by H. Michael Steinberg Author, Colorado Domestic Violence Criminal Defense Lawyer and Litigator - Email the Author at hmsteinberg@hotmail.com

Quietly a few years ago Colorado enacted a "domestic violence leave law" allowing for up to three days of leave from work for persons (almost always women) who are alleged victims of domestic violence, sexual assault, or stalking. Fortunately the law only applies to employers with more than 50 employees.

This quiet new law also encourages the employers of these women to obtain civil restraining orders against the alleged perpetrators.

Only a minority of states have domestic violence leave laws.

Why Colorado's Domestic Violence "Leave Law" Is Wrongheaded

More and more each year - domestic violence and sexual assault laws are treated differently than other kinds of crimes. The rationale is to make up for years of abusive treatment by males in the system who were unwilling to believe the alleged victims of these crimes.

The pendulum for the last several decades has swung so far to the left that alleged sexual assault and DV victims are believed in wholesale fashion.

The Law Also Allows For Employer Based Restraining Orders - CRS § 13-14-102

The law allows employers legal standing to seek a restraining order with - or without the permission of the alleged victim involved. The law also allows employers to obtain a civil restraining order if they can show some form of "imminent danger" of violence from any aggressor.

How Does The Law Define The Kind Of "Domestic Abuse" That Triggers The Law?

The law defines "domestic abuse," as:

ANY ACT OR THREATENED ACT OF VIOLENCE that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. "Domestic abuse" may also include any act or threatened act of violence against the minor children of either of the parties.

Many Options For The Alleged Victim

The alleged victim of an act of domestic abuse can take the leave for 4 reasons:


(1) to obtain a restraining order;

(2) to obtain medical care, including mental health care, for the employee or his or her children;

(3) to make the "home secure" or to seek "new housing"; and

(4) to seek "legal assistance" and to attend or prepare for "court-related proceedings" related to the domestic violence.


What The Law Does NOT Do

CRS § 24-34-402.7 does not allow alleged victims to use leave to go to the police station to file police reports or to prepare or to sign statements for the police.

Domestic Violence Leave Can Be Paid Or Unpaid As The Employer Chooses


The employer can decide whether domestic abuse leave will be "with or without pay." The employer can require the alleged victim to first exhaust paid leave such as vacation, sick leave, and or personal days before receiving domestic violence leave.

Conclusion:

The Colorado Domestic Abuse Law means yet another tool for the use of the criminal justice system to promote over blown or exaggerated claims of domestic violence. Large employers are required to give these alleged victims time off from work to further exploit a system that already "bends over backwards" to believe any and all claims of abuse - mental or physical - from the mouths of the complaining alleged victims.

April 18, 2014

2014 Colorado Criminal Case Sets Standards For Continuance Of Trial For New Lawyer

2014 Colorado Criminal Case Sets Standards For Continuance Of Trial For New Lawyer.jpg


By H. Michael Steinberg - Colorado Criminal Defense Lawyer for Criminal Trials

On April 7, 2014, the Colorado State Supreme Court carefully and logically set out the standards - the tests - to be applied by Colorado State Judges in deciding whether or not to grant a continuance of a criminal trial for a Defendant to fire his present lawyer and retain a new lawyer.

In People v. Brown, 2014 CO 25 (April 7, 2014), Justice Brian Boatright held that a trial judge must apply a "balancing test" to a Defendant's Sixth Amendment right to seek and obtain a continuance of a criminal trial.

In the Brown decision - the Colorado Supreme balanced the Sixth Amendment constitutional right to his or her counsel of choice against the public's interest in the fairness and efficiency of the judicial system.

The test itself in determining whether to allow a defendant to change counsel will turn on the application of "a multi-factor balancing test."

Brief Facts Of the Brown Case

Although Brown had received a change in lawyers several times before and this time it was only twelve days before the fourth trial date, the Defendant's newly retained counsel filed an entry of appearance and requested a continuance.

The Court said:

"(This case has been "continued several times; we've got a number of witnesses subpoenaed; [the public defender] is ready to proceed; and, you know, I have no doubt that [the public defender] will do a very competent job representing Mr. Brown."


The defendant proceeded to trial with the PD, was convicted and appealed the denial of his right to choose his lawyer.

At The Colorado Court Of Appeals Level - The Court reversed Brown's conviction finding the trial court failed to adequately consider Brown's right to counsel of choice.

The Court of Appeals laid out these 4 considerations:

(1) whether the defendant has an improper motive such as delaying trial;
(2) whether the defendant's chosen counsel available to take and try the case;
(3) whether granting a continuance impacts the court's docket;
and
(4) whether granting the continuance prejudices the prosecution beyond simply causing an inconvenience.

The Colorado Supreme Court Expands The List of Tests a Trial Judge Must Now Apply To "Balance"A Defendant's Sixth Amendment Right To Seek And Obtain A Continuance Of A Criminal Trial.

The Colorado Supreme Court reversed finding the lower Colorado Court of Appeal and added several more factors to what the higher court considered to be tests that were too restrictive and too mechanical.

The Following Tests Are Now The Law In Colorado Instead a trial court should consider:

1. the defendant's actions surrounding the request and apparent motive for making the request;

2. the availability of chosen counsel;

3. the length of continuance necessary to accommodate chosen counsel;

4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;

5. the inconvenience to witnesses;

6. the age of the case, both in the judicial system and from the date of the offense;

7. the number of continuances already granted in the case;

8. the timing of the request to continue;

9. the impact of the continuance on the court's docket;

10. the victim's position, if the victims' rights act applies; and

11. any other case-specific factors necessitating or weighing against further delay.

No SINGLE FACTOR is enough - (dispositive) and the persuasive weight of any ONE FACTOR will vary depending on the specific facts at issue in the case. Trial judges are now forced to make SPECIFIC FINDINGS that would permit a higher court to review the trial court's decision.

This is now the law in Colorado and will be applied by all Colorado Criminal Defense Lawyers in the cases where they are asked to enter and defend a case already set for trial. - H. Michael Steinberg

March 16, 2014

Colorado Department of Corrections - 2014 Crack Down On Colorado Parole Revocations

2014 Crack Down On Colorado Parole Revocations.jpgBy H, Michael Steinberg - Colorado Criminal Defense Lawyer

In an abrupt turnaround over the past year - the Colorado Department of Corrections (LINK) has begun taking a harder and harder line in parole revocation hearings.

Not only is the number of inmates increasing - the number of parolees returned to prison for technical violations of their parole has also greatly increased.

The Statistics according to the Denver Post:

The Colorado Parole Board granted an average of 24 fewer discretionary paroles per month, an 8 percent decrease.

Authorities are cracking down on technical violations by parolees. The parole board, acting on recommendations of parole officers, increased by 37 parolees a month, or 14 percent, the number it sent back to prison for rule violations such as missing curfews and drinking beer.

The New Fugitive Apprehension Unit has also tracked down and jailed more than 415 parole absconders from across the state and across the nation.

"Altogether, these factors, along with an increase in court commitments to prison, reversed a downward spiral of prison-population numbers that had been seen over the four previous years."

While the new Director for the Colorado Department of Parole denies that he issued any directives to parole officers to be stricter with parolees, the message has been clear to all.

After the murder of the former head of the Department - Tom Clements by a parolee , according to Parole Board Chairman Shaffer - the increase makes sense:

"Clements' murder undoubtedly drove more conservative decision-making. Board members have been more inclined to err on the side of safety."

An Emphasis On The Prevention Of "Making A Mistake" Takes Its Toll

According to the Denver Post -Critics claim that "the spike in prison enrollment was a knee-jerk political response to Clements' death, and they fear many prisoners were denied parole unfairly."

Put more directly by Michael Dell, a Colorado Springs board member of the prisoner-advocacy group Colorado-CURE. "When parole board members see what happened to Tom Clements, they are not going to take a gamble on someone else."

More Than Ever - Having The Advice Of An Experienced Colorado Criminal Defense Lawyer In Your Colorado Parole Revocation Hearing Makes Sense

If you are facing a parole revocation in Colorado - make no mistake - things are changing. Before you go it alone - consult our firm for the cost of representation and to discuss the issues in your case.

ABOUT THE AUTHOR: H. Michael Steinberg - Email The Author - A Denver Colorado Criminal Defense Lawyer - or call his office at 303-627-7777 during business hours - or call his cell if you cannot wait and need his immediate assistance - 720-227-2277.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience - specializing in Colorado Criminal Law along the Front Range. Call him if you have any questions about the topic of this blog article - Colorado Department of Corrections Cracks Down On Colorado Parole Revocations.

March 11, 2014

A New 2014 Colorado Law Eases Restitution Based Revocations Of Deferred Judgments - 16-18.5-111

Colorado resitution and deferred judgments.jpg
By H. Michael Steinberg Colorado Criminal Defense Lawyer

A New 2014 Colorado Law Eases Restitution Based Revocations Of Deferred judgments - 16-18.5-111.

A law just enacted in Colorado will result in fewer revocations of deferred judgments based on the non-payment of restitution.

Why is this law important? The new law clarifies that a court can collect restitution until the restitution is paid in full, even after the deferred judgment is dismissed.

The law allows deferred judgments to terminate even if the full amount of restitution has not been paid. The law converts the remaining restitution into a civil and collectable judgment and must be read with another Colorado law on restitution - 18-1.3-603.

Here are the TWO LAWS that are important to understand:

Colorado House Bill 14-1035 -entitled Concerning Collection of Restitution Ordered Pursuant to a Deferred Judgment - was made law in March of 2014.

The House Bill adds a new statute - 16-18.5-111 which reads as follows:

16-18.5-111. Effect of Termination of Deferred Judgment and Sentence or Deferred Adjudication.

The provisions of this article apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication.

[HMS - Next you turn to the other amended statute which helps clarify the change - you must read the two laws together - the new law and the new amendment to the existing restitution statute 18-1.3-603.]

SECTION 2. In Colorado Revised Statutes, 18-1.3-603, amend (4) (a) as follows:

18-1.3-603. Assessment of Restitution - Corrective Orders.
...

(4) (a) Any order for restitution entered pursuant to this section shall be a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment shall remain in force until the restitution is paid in full.

Summary:

What may seem like a small change under Colorado law - will - in my opinion have a major impact on assisting individuals who have complied with every condition of a deferred judgment - except one - the payment of restitution - to perhaps successfully terminate their case and have the charges dismissed.