mt:Include module="Global Settings" /> Colorado Criminal Lawyer Blog :: Published by Denver Criminal Defense Attorney :: Arapahoe County DUI Lawyer :: Law Office of H. Michael Steinberg

H. Michael Steinberg has over 26 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.

January 19, 2012

Colorado State Legislature and School Districts Attempt A More Rationale Approach To Colorado Juvenile Criminal Law and School Discipline in a Post Columbine World

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A recent article in the Denver Post finally addresses the most recent attempts by Colorado Schools - hopefully to be followed by the Colorado State legislature - to reverse years of Zero-Tolerance policies in Colorado's Public Schools and in the Courts.

Last year in December - another excellent article in the Denver Post quoted a Magistrate Kent Spangler, a Fort Collins Judge, who had this to say:

"Kids won't gain a respect for the law, for their parents, for teachers, for rules in general if they're told 'You're wrong! You messed up!' and don't take the time to get at the root of the problem,"

As an experiencd former Colorado Front Range Career Prosecutor -DA and now a Colorado Crimiinal Defense Lawyer - I am always impressed by judges who take the time to "teach" individuals before them about the law and the impact of their acts on their families, the victims, or society. Judge McGahey in Denver, Judge Ollada and Benze in Arapahoe County, and the list goes on and on.

Colorado has some of the best and most caring judges in the nation in my opinion.

Zero Tolerance policies - enacted after the so called Summer of Violence in the 1980's and following the Columbine Case - were and continue to be mindless - knee jerk reactions to complex problems. Juveniles have little life experience to fully understand the nature of their actions and the laws need to address those more difficult underlying issues.

The vast majority of crimes committed by juveniles ultimatley involve alcohol and low level drug offenses- - both of which are typically minor offenses in the criminal justice system.

The exposure of these kids in the juvenile justice system will have the kind of impact that is difficult to measure.

"These kids aren't monsters. They're kids! Sure they've gotten a little off track but you can't write them off. You have to show them what they're worth- appeal to their intellect- and when they start to believe they can do better, they will," said Spangle

In an article by Kevin Simpson - Kevin highlights the debate - "that the well-intentioned pendulum swing toward zero tolerance (after Columbine) resulted in a loss of perspective -- something he saw illustrated in his jurisdiction by the 2009 suspension of a Cherry Creek School District student for bringing non-functioning, drill-team rifles to school in her car."

H. Michael's Take

The task force addressing a revamping of Colorado's Juvenile Code - needs our support - to take a more rational view of the Colorado Juvenile Justice System - New statewide legislation - taking a reasoned approach to the complex issues behind juvenile crime - is what we need today.

Hurrah for the pendulum swing - let's hope it continues it's swing away from the Post-Columbine zero tolerance approach. Sen. Linda Newell, D-Littleton, who has introduced Senate Bill 46, regarding the revamp of school dicipline laws - is on the right track.

Posted by H. Michael Steinberg | | Email This Post

January 11, 2012

Florida Supreme Court Closes the Door on Dog Sniff Search

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In an important case decided recently by the Florida Supreme Court -- the Court held that a dog sniff at the front door of a private residence was an illegal search... thus shutting the door to an expansion of the use of the "dog sniff" tool to invade the privacy of the home of the average citizen.

In Jardines v Florida, the police conducted a warrantless "sniff test" by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed.

An important point of law from the decision - says it all -

At the very core‟ of the Fourth Amendment „stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.‟ "

Here is the heart of the decision:

On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity--i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home--lasted for hours.

The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident

The court reasoned that this sniff went too far -- that the dog sniff at the scene of a traffic stop is one thing -- but to conduct a search under these conditions - was a violation of the fourth amendment.

Again - and most importantly - we can see the court's reasoning:

Further, if government agents can conduct a dog "sniff test" at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.

Posted by H. Michael Steinberg | | Email This Post

January 7, 2012

Congress Eyes Abuse of Informants - May Pass Law To Stem Abuse

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The use of informants has always been a bane to the enforcement of the War on Drugs in the United States. Informants seeking to help themselves often serve up questionable unvetted "intel" that results in major injustice to those later investigated and arrested on less than accurate information. Lives are destroyed.

After a country wide scandal involving crimes committed by so called FBI informants, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228,

If passed - and it should be - The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized.

"Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

Posted by H. Michael Steinberg | | Email This Post

December 26, 2011

Dismissed DUIs in Colorado Underscore Need to Investigate Lead Police Officer's Credibility

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Recently in Mesa County Colorado on the Western slope of Colorado, the District Attorney's office was forced to dismiss eight criminal cases in light of credibility questions surrounding a former Colorado State Trooper.

Because of the impact of the lead officer's testimony in a DUI caae, the District Attorney's officer is reviewing hundreds more cases that are expected to be dropped in the coming weeks.

The tropper - Donald Moseman, stepped down from the State Troopers Office in December after a departmental investigation.

The cases that have been dismissed are all drunk driving misdemeanor cases that had Moseman as the sole witness for the prosecution but additional cases in additional areas are also subject to the same scrutin .

The result of this action has led to a demand by Colorado Defense Lawyers in the area to turn over the contents of Moseman's internal affairs investigation, and it is expected that a judge will compel the department to turn over those records so that the judge could perform a private review to determine if there was material in that file that is relevant to these cases

This kind of material is called Brady Material and is considered directly exculpatory or potentially exculpatory evidence therefore the District Attorney is required by Colorado Law to turn over material bearing on the credibility of their primary witness.

The Grand Junction Sentinel reproted that:

"A letter dated Dec. 5 that was sent to Hautzinger by State Patrol Major Barry Bratt said an internal investigation found Moseman "displayed bias" in cases involving drivers suspected of being impaired by drugs or alcohol. The letter said Moseman submitted reports that "were a combination of reports from prior arrests and the current arrest, resulting in reports which contained wrong or conflicting information." "

Posted by H. Michael Steinberg | | Email This Post

December 25, 2011

Colorado Supreme Court Cases Enhances Penalty for "Pattern Type" Sexual Assault Cases C.R.S. 18-3-405.3.

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A new Colorado case issued by the Supreme Court of Colorado clarifies the law in Colorado in Sexual Assault on a Child Cases where there are multiple instances of conduct constituting a pattern. The decision allows for consecutive sentences for each act notwithstanding the fact that there has been a single victim.

Colorado's sexual assault statutes authorize the possibility of greater punishments for sexual crimes against children that are committed "as a part of a pattern of sexual abuse."

Two cases, "Colorado v. Simon" and "Colorado v. Tillery" were consolidated for the Supreme Court's review in that they both involve interpretation of Section C.R.S. 18-3-405.3. The common issue presented by these cases was whether the statutory provisions and principles of double jeopardy permit only one class 3 felony conviction and sentence for a single "pattern" of abuse that comprises two or more incidents of sexual assault, or whether each separate act of sexual assault that composes a single "pattern" of abuse which may be elevated to a class 3 felony.

In "Simon," one division of the court of appeals held that section 18-3-405.3(2)(b) and double jeopardy principles prohibit the trial court from entering multiple class 3 convictions and sentences for Simon's ten counts of sexual assault on a child by one in a position of trust, where those acts composed a single pattern of abuse against one victim.

In "Tillery," a different division of the appellate court disagreed with the reasoning in "Simon." Finding no double jeopardy violation, the court upheld Tillery's class 3 convictions under 18-3-405(2)(d).

Upon review, the Supreme Court held that these statutes unambiguously allow each separately charged incident of sexual assault to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. Furthermore, the Court held that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution

Court Summary of the Case

December 19, 2011

No. 09SC665 - People v. Simon & No. 09SC1043 - Tillery v. People - Criminal Law - Sexual Assault on a Child, and Sexual Assault on a Child by One in a Position of Trust, as a Part of a Pattern

The supreme court holds that sections 18-3-405(2)(d) and 18-3-405.3(2)(b) unambiguously allow each separately charged incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. The supreme court further holds that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

The supreme court therefore reverses the court of appeals' decision in People v. Simon, Case No. 09SC665, reinstates Simon's ten class 3 felony pattern convictions and sentences, and remands to the court of appeals for consideration of the remaining issue raised by Simon on appeal. The supreme court affirms the court of appeals' decision in Tillery v. People, Case No. 09SC1043, and remands with directions to return the case to the trial court for resentencing in accordance with the court of appeals' decision.

Posted by H. Michael Steinberg | | Email This Post

December 15, 2011

New Case Impacts Juvenile Guardian Ad Litem (GAL) Confidentiality in Colorado - Attorney Client Relationship in 2011

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In a new case in 2011 - the Colorado Supreme Court totally changed the attorney client relationship between a juvenile and the attorney appointed by the Judge to represent the juvenile's interests to the court - known as the Guardian Ad Litem or GAL.

What this new decision means is that - any communications between the accused juvenile and the Guardian are NOT privileged and therefore not confidential.

The case is - The People of the State of Colorado, v. Gabriesheski. the case held that ...because a child subject to a dependency and neglect proceeding is not a "client" of the guardian ad litem, the attorney-client privilege does not apply.

Here is the law in Colorado:

Attorney Client Confidentiality....the evidentiary privilege protecting communications between attorney and client relating to legal advice is a matter of law in Colorado § 13-90-107(1)(b), C.R.S. (2010).... but the law does not define the attorney-client relationship itself.

The courts have held that "a client" is a person who employs or retains an attorney for advice or assistance on a matter relating to legal business,

....an attorney-client relationship is established when it is shown that the client seeks and receives the advice of the lawyer on the legal consequences of the client's past or contemplated actions.

All guardians ad litem appointed to serve in dependency and neglect proceedings must be credentialed as attorneys licensed to practice in the jurisdiction, § 19-1-103(59), and are statutorily assigned obligations usually associated with legal representation, like the examination of witnesses, they are ultimately tasked with acting on behalf of the child's health, safety, and welfare. See§ 19-3-203.

GAL's are Different than Other Lawyers Appointed by the Court

Rather than representing the interests of either the petitioner or respondents in the litigation, or even the demands or wishes of the child, the legal responsibility..the guardian ad litem is tasked with assessing and making recommendations to the court concerning the best interests of the child.

The Court writes: "Nothing in the term "guardian ad litem," which on its face indicates merely a guardian for purposes of specific proceedings or litigation, suggests an advocate to serve as counsel for the child as distinguished from a guardian, charged with representing the child's best interests. ..... In the absence of some clearer expression of legislative intent to do so, we are unwilling to impute to the statutory guardian ad litem-child relationship the legislatively-imposed, evidentiary consequences of an attorney-client relationship.


The dissent in this case attacked the decision:

JUSTICE MARTINEZ, dissenting.

I respectfully dissent.
...

The Role of the Guardian Ad Litem

The majority's decision deprives children of the right to legal representation. In addition, the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child's best interests to do so.

This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child's fundamental right to be represented in court, and fails to protect the legal rights of children.

The majority's opinion ignores both our statutory language and the growing trend recognizing that children should be represented by lawyers acting in full accordance with legal ethical rules.

The better outcome, and the one intended by our statutory scheme, recognizes the attorney-client privilege, but permits the guardian ad litem to decide whether to assert the privilege on behalf of the child.

The statutory definition is not the only place in our law that acknowledges the unique role of the guardian ad litem. The duties of the guardian ad litem are further described in section 19-3-203(3), C.R.S. (2011), which states that the guardian ad litem "shall be charged in general with the representation of the child's interests."

The statute then enumerates the guardian ad litem's duties to investigate the facts, talk with the child, examine witnesses, make recommendations to the court concerning the child's welfare, and participate in proceedings to the degree necessary "to adequately represent the child." Once again, within the same statute, the language suggests that a guardian ad litem represents both the child and the child's interests. Moreover, while many of these responsibilities are typical duties of an attorney, because of the emphasis on representing and acting in the child's best interests, it is clear that a guardian ad litem is a special kind of attorney.

Posted by H. Michael Steinberg | | Email This Post

December 14, 2011

2010 Changes to Colorado Criminal Law - Police Must Now Advise You of Your Right To Refuse a Search NOT Based on Probable Cause

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A little known law that was quietly signed by the Governor of Colorado in 2010 requires some attention. Here is how it applies. In the past, if a police officer who has NO evidence that you have committed a crime, asks for your permission to conduct a search of your person or your car, he or she did NOT have to advise you that you have the right to refuse said search.

The new law requires the police officer to advise you that you have the right to refuse the search and he - she must obtain your oral or written consent to the search. Furthermore, this new law is critically important as it counters what I would term "the natural intimidation factor" when a police officer requests - based on no evidence - to search you or your car.

Here is a summary of the new law:

HB 1201: Concerning Duties Related to Peace Officer Contacts

Status: Passed the House (37-28) and Senate (35-0) and signed into law on April 29, 2010. It was made effective April 29, 2010

Description: This new law requires that prior to conducting a consensual search of a person, personal effects, or vehicle a peace officer must get either oral or written consent for the search after advising the person that they may refuse.

This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision.

Posted by H. Michael Steinberg | | Email This Post

December 12, 2011

First Amendment Protects Us From Rudeness to Police Being Treated As A Crime

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prose 1.jpgWhile it may not make good common sense to flip off a police officer or use profanity when he or she is deciding whether to cite you with a traffic offense or to arrest you for a crime that is - well "arrestable" or not depending on the officer's discretion -- it is clear in Colorado that the US and Colorado versions of the First Amendement's protection for free speech are alive and well.

Two recent Colorado cases have resulted in dismissals and large monetary awards after police officers made arrests in response to being fliped off or being sworn at by Colorado citizens.

Swearing at or flipping off a police officer is probably rude, but it's speech that's protected by the First Amendment.

Flipping off a police officer or shouting vulgarities at a cop may not the smartest thing to do, but they are technically legal in Colorado.

Two cases in the metro area demonstrate the extent of the First Amendment in this context.

Bob McIntosh, a Colorado citizen, received a $20,000 settlement from Boulder County over his arrest on Oct. 1. He was pulled over for going 41 mph in a 20 mph school zone and used profanity at Deputy Sheriff Tim Lynch because of the speeding ticket.

McIntosh repeatedly swore at the deputy and called him a vulgar name and the deputy told him if he didn't control his language he would be arrested. McIntosh was arrested and charged with disobeying a police officer. The charge was later dropped.

The settlement reflected a decision by Boulder County government to pay the large fee because he had indicated that he would sue undera decision by the U.S. Supreme Court that hs held that verbal criticism of a police officer is protected speech and McIntosh's arrest on that charge was a violation of the First Amendment.

Similarly, severla months ago prosecutors dismissed a case against Shane Boor, a man who flipped off a state trooper on C-470 near West Bowles Avenue in Jefferson County because his actions are protected under the Constitution.

H. Michael's Take

I advise this -- the police are people too. They deserve our respect and good manners unless they give a reason for us to act otherwise. They have difficult jobs and - if that is not reason enough to be polite - they have, on the street at least - tremendous power and discretion. All cases do not resolve as the above cases would make it seem. If you are wronged bu the police -- physically cooperate during the arrest -- do NOT make any statements other than identifying yourself -- and don't - contrary to the two individuals above - exercise your right to flip them off or wear at them -- it just makes common sense in the long run to take this course of action...as a matter of survival!

Posted by H. Michael Steinberg | | Email This Post

December 12, 2011

Little Known 2010 Colorado Law Reduces Long Sentences for Technical Parole Revocation Violations - HB 1360: Reducing Revocations for Technical Violations

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The 2010 Bill - HB 1360 Passed the Colorado House (54-9) and the Colorado Senate (24-11) and was signed into law on May 25, 2010.

Here is a summary and description of the law:

In lieu of revocation for a technical violation, the parole board may modify the conditions of parole and require the parolee to participate in a residential or outpatient treatment program. If parole is revoked for a technical violation, the maximum time of re-incarceration in prison is 90 days if the parolee was assessed as lower than high risk and the parolee's underlying conviction was not for a crime of violence, menacing, or stalking.

A parolee can be re-incarcerated in prison for up to 180 days if s/he is assessed as high risk or is revoked to a community return to custody facility or community corrections facility and the underlying conviction was not for a crime of violence, menacing, or stalking.

Placement in a community return to custody facility for a technical parole violation was expanded to include people convicted of a class 4 felony, excluding crimes of violence and stalking.

The Department of Corrections, Division of Adult Parole is required to provide the judiciary committees of the House and Senate with a status report on parole outcomes and an accounting of appropriations made pursuant to HB 1360.

Each year the General Assembly is required to appropriate some of the cost savings from HB 1360 for re-entry support services for parolees related to obtaining employment, housing, transportation, substance abuse treatment, mental health treatment, mental health medication, or offender specific services.

Approximately $4.5 million in avoided prison costs was appropriated in FY 10-11 into treatment and reentry support services for parolees.

Posted by H. Michael Steinberg | | Email This Post

December 12, 2011

Colorado Criminal Sex Crimes Law - 2011 Changes to Sex Offenders Registration Laws - House Bill 11-1278

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A new Colorado Law - helps Sex Offenders Understand the Requirements of Sex Offender Registration.

The 2011 bill makes a number of modifications to the requirements for registering as a sex offender, including the following:

• county sheriffs are required to submit registration information for individuals who are required to register as sex offenders and are held for more than five days or are sentenced to a term of imprisonment in a county jail;

• a defendant who is convicted of an offense in a tribal or territorial jurisdiction that requires registration as a sex offender must register as a sex offender in Colorado;

• the fee that may be charged by law enforcement agencies for registration services is capped at $25 for annual and quarterly registration and may not be charged for updates to registration information;

• if an offender is unable to pay the fee at the time of registration, the fee debt may be sent into collections;

|• an offender who is required to register must do so within five business days of his or her birthday;

• an offender who is required to register and who moves to a new jurisdiction is required to register in the new jurisdiction and cancel registration in the old jurisdiction; and

• the local law enforcement agency in the new jurisdiction is required to notify the local law enforcement agency in the old jurisdiction of the cancellation of the registration.

Juvenile Sex Offender Cases

Under current law an adult offender who successfully completes a deferred sentence or a juvenile who discharges his or her sentence may petition the court to discontinue registration as a sex offender. The bill would require the court to automatically consider whether to discontinue the registration requirement when deciding whether to dismiss the charges in a deferred judgment or when discharging a juvenile's sentence.

For a juvenile on parole, the Division of Youth Corrections (DYC) in the Department of Human Services is required to petition on behalf of the juvenile for a discontinuation of the registration requirement.

Current law requires the use of intensive supervised probation and parole for offenders convicted of failure to register as a sex offender. The bill allows the court and parole board discretion as to the use of intensive supervision programs. The county in which an offender completed his or her last registration is added as a proper venue for prosecuting offenses of failure to register as a sex offender.

The bill creates an affirmative defense for failing to register as a sex offender if uncontrollable circumstances prevented the registration; the circumstances were not caused by the offender; and the offender registered as soon as the circumstances ceased to exist.

The bill also adds second degree kidnapping (when the person kidnapped is the victim of a sexual offense) to the definition of unlawful sexual behavior.

The 2011 Sex Offender Registration bill gives a five day window for registration surrounding an offender's birthday, and law enforcement was given the responsibility for de registration. Efforts will be made in 2012 to correct a drafting oversight that failed to provide the same five day grace period for those required to register quarterly

Posted by H. Michael Steinberg | | Email This Post

December 12, 2011

2011 Colorado Sentencing in Criminal Cases - 2011 Changes to the Colorado Pre-Sentence Report

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In 2011 - the Colorado State Legislature added some important matters to the preparation of the sentencing pre-sentence report.

Here is a summary of the new law:

House Bill 1180: Concerning Using Individualized Assessments to Aid Judges in Imposing Criminal Sentences that Reduce the Likelihood of Criminal Offenders Committing Additional Criminal Acts

Summary: Current law describes four purposes of the Colorado Criminal Code.

The bill adds a fifth purpose: to select for each convicted offender a sentence, sentence length, and level of supervision that addresses the offender's individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence.

The bill requires each presentence report submitted by a probation officer to a court to include:

(1) results of an actuarial risk and needs assessment;

(2) whether the defendant is a suitable candidate for an alternative to a prison sentence;

(3) appropriate conditions of supervision if the defendant is sentenced to probation;

and

(4) projected costs associated with each sentencing option available to the court.

The court shall consider the purposes of sentencing in granting probation or imposing any other sentence......signed into law on 4/8/11

Here is a reprint of the new law - as it affects existing law: ( changes to the existing law are in CAPITAL LETTERS).


CONCERNING USING INDIVIDUALIZED ASSESSMENTS TO AID JUDGES IN
IMPOSING CRIMINAL SENTENCES THAT REDUCE THE LIKELIHOOD OF
CRIMINAL OFFENDERS COMMITTING ADDITIONAL CRIMINAL ACTS.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. 18-1-102.5 (1) (c) and (1) (d), Colorado Revised Statutes, are amended, and the said 18-1-102.5 (1) is further amended BY THE ADDITION OF A NEW PARAGRAPH, to read:

18-1-102.5. Purposes of code with respect to sentencing.

(1) The purposes of this code with respect to sentencing are:
...
(c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses; and

(d) To promote rehabilitation by encouraging correctional programs

(e) TO SELECT A SENTENCE, A SENTENCE LENGTH, AND A LEVEL OF SUPERVISION THAT ADDRESSES THE OFFENDER'S INDIVIDUAL CHARACTERISTICS AND REDUCES THE POTENTIAL THAT THE OFFENDER WILL ENGAGE IN CRIMINAL CONDUCT AFTER COMPLETING HIS OR HER SENTENCE
.
SECTION 2. 16-11-102, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

16-11-102. Presentence or probation investigation.

(1.9) EACH PRESENTENCE REPORT SHALL ALSO:

(a) INCLUDE THE RESULTS OF AN ACTUARIAL ASSESSMENT OF THE OFFENDER'S CRIMINOLOGICAL RISKS AND NEEDS;

(b) PROVIDE SUFFICIENT INFORMATION TO ALLOW THE COURT TO CONSIDER:

(I) WHETHER THE OFFENDER IS A SUITABLE CANDIDATE FOR A SENTENCING OPTION THAT DOES NOT INVOLVE INCARCERATION OR A COMBINATION OF SENTENCING OPTIONS THAT DOES NOT INVOLVE INCARCERATION; AND

(II) THE APPROPRIATE CONDITIONS TO IMPOSE IF A DEFENDANT IS SENTENCED TO PROBATION;

(c) DESCRIBE THE PROJECTED COSTS, IF KNOWN, THAT ARE ASSOCIATED WITH EACH SENTENCING OPTION THAT IS AVAILABLE TO THE COURT; AND

(d) SET FORTH THE PURPOSES OF TITLE 18, C.R.S., WITH RESPECT TO SENTENCING, AS SUCH PURPOSES ARE DESCRIBED IN SECTION 18-1-102.5,
C.R.S.

SECTION 3. The introductory portion to 18-1.3-203 (1), Colorado
Revised Statutes, is amended to read:


18-1.3-203. Criteria for granting probation.

(1) The court, subject to the provisions of this title and title 16, C.R.S., AND HAVING
CONSIDERED THE PURPOSES OF SENTENCING DESCRIBED IN SECTION 18-1-102.5, C.R.S., in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:

SECTION 4. Act subject to petition - effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote
thereon by the governor.
____________________________

Posted by H. Michael Steinberg | | Email This Post

December 7, 2011

Colorado New Law Adds Emergency Medical Care Provider to List of Protected Class for Assault

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In 2011 the Colorado State Legislature added emgency Medical Care Providers to the list of protected persons which includes peace officers and firefighters,who, if assaulted, would require a very lengthy and mandatory jail sentence. That sentence is a minimum of 2 years in the county jail and a maximum of 4 years in the county jail.

The Emergency Medical Provders protected under this new law are as follows

Emergency medical care provider" means a doctor, intern, nurse, nurse's aid, physician's assistant, ambulance attendant or operator, air ambulance pilot, paramedic, or any other member of a hospital or health care facility staff or security force who is involved in providing emergency medical care at a hospital or health care facility, or in an air ambulance or ambulance...
The Statute is 13-1.3-501 and reads as follows: (the changes in in capital letters):

18-1.3- 501. Misdemeanors classified - penalties. (1.5) (a) If a defendant is convicted of assault in the third degree pursuant to section 18-3-204 and the victim is a peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter engaged in the performance of his or her duties, notwithstanding the provisions of
subsection

....(1) of this section, the court shall sentence the defendant to a term of imprisonment greater than the maximum sentence but no more than twice the maximum sentence authorized for the same crime when the victim is not a peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter engaged in the performance of his or her duties. In addition to such term of imprisonment, the court may impose a fine on the defendant pursuant to subsection (1) of this section.


HMS: What follows is the definition of of engaged in the performance of their duties:

(b) As used in this section, "peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter engaged in the performance of his or her duties" means a peace officer as described in section 16-2.5-101, C.R.S., emergency medical technician as defined in part 1 of article 3.5 of title 25, C.R.S., EMERGENCY MEDICAL CARE PROVIDER AS DEFINED BY SECTION 18-3-204 (4), or a firefighter as defined in section 18-3-201 (1), who is engaged or acting in, or who is present for the purpose of engaging or acting in, the performance of any duty, service, or function
imposed, authorized, required, or permitted by law to be performed by a peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter, whether or not the peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter is within the territorial limits of his or her jurisdiction, if the peace officer, emergency medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter is in uniform or the person committing an assault upon or offense
against or otherwise acting toward such peace officer, emergency medical
technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter knows or
reasonably should know that the victim is a peace officer, emergency
medical technician, EMERGENCY MEDICAL CARE PROVIDER, or firefighter or
if the peace officer, emergency medical technician, EMERGENCY MEDICAL
CARE PROVIDER, or firefighter is intentionally assaulted in retaliation for the
performance of his or her official duties.

SECTION 2. 18-3-204 (1) (b), Colorado Revised Statutes, is amended, and the said 18-3-204 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

18-3-204. Assault in the third degree. (1) A person commits assault in the third degree if:

(b) The person, with intent to infect, injure, harm, harass, annoy, threaten, or alarm another person whom the actor knows or reasonably should know to be a peace officer, a firefighter, AN EMERGENCY MEDICAL CARE PROVIDER, or an emergency medical technician, causes such other person to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means,
including but not limited to throwing, tossing, or expelling such fluid or material.

(4) "EMERGENCY MEDICAL CARE PROVIDER" MEANS A DOCTOR, INTERN, NURSE, NURSE'S AID, PHYSICIAN'S ASSISTANT, AMBULANCE ATTENDANT OR OPERATOR, AIR AMBULANCE PILOT, PARAMEDIC, OR ANY OTHER MEMBER OF A HOSPITAL OR HEALTH CARE FACILITY STAFF OR SECURITY FORCE WHO IS INVOLVED IN PROVIDING EMERGENCY MEDICAL CARE AT A HOSPITAL OR HEALTH CARE FACILITY, OR IN AN AIR AMBULANCE OR AMBULANCE AS DEFINED IN SECTION 25-3.5-103 (1) AND (1.5), C.R.S.

Posted by H. Michael Steinberg | | Email This Post

November 29, 2011

Colorado Criminal Law: Even Where the Juvenile - Defendant Wins his Case - Petitions to Seal (Expunge) May Be Denied Under Colorado's Law's Balancing Test

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In the recent juvenile case of F.M. v. The People of the State of Colorado, the COLORADO COURT OF APPEALS upheld a Colorado Adams County District Court Judge's decision to deny F.M.'s Petition to Seal DESPITE A NOT GUILTY VERDICT

These are the Undisputed Facts in the Case

In the underlying criminal case, F.M. was charged with four counts of felony menacing after he mailed an envelope to his supervisor containing flour. When it spilled out, a coworker called the police, who summoned a hazmat team. F.M. was acquitted.

In 2006, F.M. brought the prior action to seal the arrest and criminal records concerning these charges, based on his acquittal. The prosecution objected. Applying the statutory balancing test, the district court held that the public interest outweighed F.M.'s privacy interest, declined to seal the records, and dismissed the action

Statutory Interpretation

Because F.M., a juvenile, was acquitted - that is - found NOT GUILTY - of the underlying charges, he could seek to seal related arrest and criminal records. § 24-72- 308(1)(a)(I), C.R.S. 2011.

The district court may do so if it finds that either harm to the petitioner's privacy or the danger of unwarranted adverse consequences to the petitioner outweighs the public interest in leaving the records unsealed. § 24-72-308(1)(c), C.R.S. 2011.

Section 24-72-308 is comprehensive and the statutory remedies are exclusive for those persons whose records come within its purview.

Colorado's Record Sealing Law 24-72-308(1)(c), Provides:

24-72-308. Sealing of arrest and criminal records other than convictions.

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed. Any order entered pursuant to this paragraph (c) shall be directed to every custodian who may have custody of any part of the arrest and criminal records information which is the subject of the order. Whenever a court enters an order sealing criminal records pursuant to this paragraph (c), the petitioner shall provide the Colorado bureau of investigation and every custodian of such records with a copy of such order. The

What is critical here - is the language:

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed
.

H. Michael's Take

What is to be "taken away" from this case is the important point that petitions to seal and expungements are not guaranteed. If the Court - at the hearing on the Petition to Seal - does not find that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner DO NOT outweigh the public interest in retaining the records, the court may order such records to be retained as PUBLIC.

Thus - be warned - even if the Defendant is found NOT GUILTY at trial - the case may remain on his - her record forever. Lawyers need to take the Court's balancing test seriously - and they need to prepare for the final hearing - and be ready to persuade the Judge to rule in the Petitioner's favor.

Posted by H. Michael Steinberg | | Email This Post

November 29, 2011

Colorado Hate Crimes on The Decline - But Not For the Reasons You May Think

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The Denver Post recently reported that hate crimes in Colorado fell almost 30 percent between 2009 and 2010.

The national report released by the FBI on Monday found that Colorado law-enforcement agencies reported 154 hate crimes last year, down from 218 a year earlier. In 2008, 164 bias-motivated offenses were logged across the state.

H. Michael's Take

Any criminal defense lawyer will tell you that Colorado's hate crime statute is used more and more rarely by prosecutors. As explained on my primary website:

How Often are There Allegations of Bias Motivated Crime?

Hate crimes are classified as those motivated by biases based on race, religion, sexual orientation, ethnicity, national origin or disability.As a practical matter, the hate crime enhancement is used very rarely.

Obviously, even the connotation of a "hate crime" evokes emotion, passion, and politics, and usually both sides of a criminal matter want to avoid these factors if possible. If you get caught up in a prosecution and receive notice of a sentencing enhancement under these laws, make sure your lawyer understands these laws.

Posted by H. Michael Steinberg | | Email This Post

November 23, 2011

Colorado DA Nets Another Sexting Suspect for Internet Luring

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ELLICOTT, COLO.is a very small town in Colorado on the Eastern Plains just east of Colorado Springs.

In that small jurisdiction a School District board member has just been arrested for allegedly sexting a 14-year-old boy.

Thirty-seven-year-old Stefanie Dickinson was arrested Sunday for Internet Luring of a Child, a class four felony.

As the Schools Board's treasurer she had access to the alleged victim in the case a 14-year-old boy, who attends Ellicott High School

The young boy allegedly began receiving text messages from Dickinson sometime in August after returning from a trip with her and her family to Lake Meridith in Ordway

The boy's sister found the texts while he was at football practice. It said many of them are "sexual in nature" and reference "oral sex" among other things.

One reads "I will work on not being scared so something can happen," while another says "You can't tell anyone about this at all because I could lose my family."

H. Michael's Take

While there is no Colorado specific crime titled Sexting - the crimes that can be charged in a case like this are very serious. One possibility is the Colorado Sex Offender Crime of Sexual Exploitation of a Child. Another is Internet Luring - a form of solicitation of a minor to engage in sex. Just the attempt is a very serious felony in Colorado.

The increasing attention to Internet and Electronic Based communication in our modern world - has led to the use of these resources to engage in the more recognizable sex offender crimes that have always existed. Law enforcement's resources to track and to fullly investigate and charge these crimes is on the rise in terms of the gathering of intelligence - organization and pooling of Federal and State funds and and the sharing of technology

Posted by H. Michael Steinberg | | Email This Post