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.

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

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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?

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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?

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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

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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

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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 Judgements - 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 judgements to terminate even if the full amount of restitution has not been paid. The law converts the remaining restitution into a civil and collectable judgement 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.

January 14, 2014

How Do Colorado Police Officers "Clear" A Criminal Investigation?


By H. Michael Steinberg - Colorado Criminal Defense Lawyer - Attorney - Email

How Do Colorado Police Officers "Clear" A Criminal Investigation? - Many alleged victims of crime file charges with the various Colorado police departments - then they wait.

The following information explains how the police terminate or "complete" those investigations.

What Does "Cleared By Arrest" Mean In Colorado?

A Colorado criminal investigation is officially "cleared by arrest" or solved for crime reporting purposes when a minimum of one person is:

  • arrested,
  • charged with the commission of the offense, and
  • turned over to the court for prosecution (whether following arrest, court summons, or police notice-to-appear).

Even if no physical arrest is made, a "clearance by arrest" designation is permitted when the suspect is a juvenile - that is - under 18 years of age and is cited to appear in Colorado juvenile court or before other juvenile authorities.

FBI statistics put approximately half of the nation's violent crimes and 16-18 percent
of nonviolent crimes as cleared by arrest.

What Then Does The Term "Cleared By Exceptional Means" Mean In Colorado?

Under certain facts, there are times when certain elements - beyond law enforcement's
control - prevent the agency from arresting and formally charging the offender. If and when this occurs, the police are allowed to "clear the offense exceptionally."
Four conditions must be met in order to clear a criminal investigation by "exceptional means."

They are:

1. The identification of the offender.

2. Enough evidence has been gathered to support an arrest, make a charge, and turn over the offender to the court for prosecution.

3. The offender's exact location has been identified so that the suspect can be taken into custody immediately.

and

4. Law Enforcement has encountered a circumstance outside their control that prohibits the agency from arresting, charging, and prosecuting the offender.

Some Examples Of Exceptionally Cleared Cases

The death of the offender (e.g., suicide or justifiably killed by police or citizen);

A victim's refusal to cooperate with the prosecution after the offender has been identified;

A refusal of an extradition request because the offender committed a crime in another jurisdiction and is being prosecuted for that offense.

If you are the target of a criminal investigation - what follows are some of the laws that will govern how you "enter" the system.

How You "Enter" The Colorado Criminal Justice System

The Colorado criminal justice system is a very complex process that is controlled and governed by specific laws - what follows are some of those controlling laws. Here is a link to a website that can serve as a source to read and study these laws - the Colorado Revised Statutes.

The Arrest: C.R.S. 16-3-101 through 16-3-102

A peace officer may arrest a person when there is a warrant commanding that the person be arrested, any crime has been or is being committed by such person in the peace officer's presence, or the peace officer has probable cause to believe that the offense was committed by the person to be arrested.

The Summons: C.R.S. 16-5-206 through 16-5-207

This is a notice requiring a person to appear in court on a specific day at a specific time. The summons is returned to the court to document that the person was served with it.

Pre-trial alternatives - Pre-trial investigation C.R.S. 16-4-105(3)

Pre-trial service programs in the District Attorney's office establish procedures for screening arrested persons. The programs provide information to the judge to assist in making an appropriate bond decision. The programs may also include different methods and levels of community based supervision as a condition of pretrial release. It is at this stage that the judge decides what, if any, pretrial release is appropriate.

Jail C.R.S. 17-26-101

Lawfully committed persons and prisoners are housed in a county jail for detention, safekeeping, and confinement.

Bond or Bail C.R.S. 16-4-101 through 16-4-112

All persons are eligible for bond except in the following situations:

(a) for capital offenses when proof is evident or presumption is great;
or (b) when, after a hearing held within 96 hours of arrest, the court finds reasonable proof that a crime was committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:

(I) a crime of violence while on probation or parole resulting from the conviction of a crime
of violence;

(II) a crime of violence while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;

(III) a crime of violence after two previous felony convictions, or one previous felony conviction if the conviction was for a crime of violence in Colorado or any other state when the crime would have been a felony if committed in Colorado which, if committed in this state, would be a felony;

(IV) a crime of possession of a weapon by a previous offender;

(c) when a person has been convicted of a crime of violence at the trial court level and such person is appealing the conviction or awaiting sentencing for the conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail.

Being Released On Your Own Recognizance (PR - OR Bonds) C.R.S. 16-4-104 through 16-4-105

A defendant may be released from custody upon execution of a personal recognizance bond which is secured only by the personal obligation of the defendant.

November 19, 2013

Impersonating A Police Officer or Firefighter Will Get You Jail In Colorado - Impersonating a Peace Officer - Fire Fighter Under C.R.S. 18-8-112

Impersonating a Peace p Police Officer In Colorado -18-8-112.jpg
By H. Michael Steinberg Colorado Criminal Defense Lawyer - Attorney

Michael Maher was a trained firefighter with an associates degree in the sane field. He had a degree from a fire academy and was certified in wild land fire fighting. What he didn't have was permission to fight the two fires he has now been prosecuted for in Colorado.

Impersonation of a firefighter or police officer is a crime in Colorado. The law is found Impersonating a Peace Officer under C.R.S. 18-8-112:

18-8-112. Impersonating a Peace Officer

(1) A person who falsely pretends to be a peace officer and performs an act in that pretended capacity commits impersonating a peace officer.

(2) Impersonating a peace officer is a class 6 felony. (LINK)

Mr. Maher was convicted twice for impesonating a firefighter. The most recent sentence for Mr Maher was 42 days in jail and probation with terms and conditions including public service for fighting the High Park Fire in Larimer County. But this was not Maher's first rodeo - several months earlier he received a 60 day sentence for impersonating a firefight Lower North Fork Fire in Jefferson County.

H. Michael's Take on The Crime of Impersonating a Peace Officer 18-8-112

It has been my experience that men like Mr. Maher intend only good from their actions. They do not have the kind of criminal intent one sees in most criminal acts. To defend these cases properly, it is particularly important to determine the motivations of the person charged vis a vis the commission of the crime.

If the crime of Impersonating a peace/police officer occurs in a different context - that is the commission of other crimes - such as theft, sexual assault, or burglary of a home or business - the crime is considered much more serous and needs to approached from that perspective.

H. Michael Steinberg has handled several of these cases (Impersonating a Peace Officer under C.R.S. 18-8-112) over his thirtyyears specializing in Colorado criminal law. =

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 ...Impersonating a Peace Officer under C.R.S. 18-8-112.

October 30, 2013

Colorado Teenager Learns About The Limits Of The First Amendment - Cyber-bullying and Facebook And The Colorado Crime of Harassment

Colorado Crime of Harassment 18-9-111.jpgThe Colorado Crime of Harassment 18-9-111 - Takes A Modern Twist

By H. Michael Steinberg - Colorado Criminal Defense Lawyer

In October 2013, two Colorado teenagers pled guilty to cyberbullying using social media.

The lawyers involved did not take the case to trial so it is unclear, at least in this case, how far is too far under Colorado's anti-cyberbulling / harassment laws. Understanding when the line is crossed the defines the difference between the Colorado crime of harassment and what should be protected speech under the First Amendment is one of the more confusing areas of law in out country...as the line seems to be constantly moving.

The two young men involved in this case pled guilty to harassment for filling a Facebook page with photos, insults and threats directed at another young person from their high school. The actual words used or photos publised are not publicly available. When Facebook was contacted by the authorities they immediately removed the offending page.

The impact of real "cyber-bullying" is serious of course as it is believed that this electronic form of harassment can easily escalate into violence or result in repeated events of other kinds of victimization.

However, young people hurting each other is not a new story. What is new is using electronic media to accomplish this result and having criminal charges filed as punishment for the act. But bullying - even cyber-bullying - while condemnable on a moral basis - is not necessarily a crime unless the speech involved crosses the line..begging the question of course - where is that "line" drawn?

Here is the law in Colorado that addresses cyber-bullying:

Harassment (18-9-111)

1. A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
....
(e) Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene

;
Middle and high school provides multiple opportunities for young people to hurt each other verbally. While criticism on Facebook may hurt the feelings of another, the attack, under Colorado law must be performed in a manner intended to harass or threaten bodily injury or property damage. What is confusing is the use of the term "harass" in subsection 18-9-111(1)(e) - a subsection intended to define the crime of cyberbullying which uses the very term it is trying to define.

The Requirement Of Specific Intent

The Colorado Supreme Court has said that the requirement that a person act with specific intent to committ the crime of harassment "overcomes" the what may at first glance appear to be a vague or indefinite statute.

In 1985, the Colorado Supreme Court struck down subsection 1(d) of 18-9-111 because it found that section to be unconstitutionally vague providing "no limiting standards to assist citizens, courts, judges or police personnel to define what conduct is prohibited and, conversely, what conduct is permitted." It no longer appears in the law.

Using The First Amendment To Defend Against Charges Of Harassment In Colorado - 18-9-111

Applying this analysis in the defense of Colorado cyber-bullying cases, the Colorado criminal defense lawyer might properly focus on whether a prosecution of the speech in question - whether it be on Facebook, Twitter, or Instagram - is unconstitutional - in violation of the First and Fourteenth Amendments to the United States Constitution and article II, section 10, of the Colorado Constitution.

The question the lawyer should ask is whether application of the law in question 18-9-111 (1)(e) is so overbroad that it seeks to prohibit speech that is "beyond the pale of government regulation."

In the watershed and famous case taught in first year law school classes - Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, the Supreme Court set forth the kind of speech and speech-related activity that a state could--consistent with the First Amendment--make criminal.

The Court said:

"These include the lewd and obscene, the profane, the libelous and the insulting or `fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

If the speech in question is intended to punish "unprotected activity" such as threats of bodily injury or against property it cannot also punish activity protected under the First Amendment.

Colorado's Harassment Law 18-9-11 - H. Michael's Take

The protection of the First Amendment entitles all of us to a "robust debate in a free marketplace of ideas. "The function of free speech under our system of government is to invite dispute."

The kinds of criticism that young people place upon each other may create tears in the intended victim - it may make for sleepless nights - and broken friendships - but ANY prosecution for cyber-bullying must be aggressively defended even the words used by the antagonizer "stir people to anger."

Speech may often be provocative and challenging, and it may be laced with epithets and prejudice and immoral to its core, but it should NOT BE criminalized unless it crosses a line that is clearly drawn under the law. Otherwise, the idea of the First Amendment would be nothing more than a sham.

October 12, 2013

Colorado Criminal Juvenile Criminal Case Defense - Tips On How To Be Your Child's Advocate - Helping Your Child When There Is No Colorado Juvenile Criminal Defense Lawyer Present

After Your Child Is Arrested in Colorado - Juvenile Criminal Screening And The Detention Hearing - 1.jpg

By H. Michael Steinberg Colorado Juvenile Criminal Defense Lawyer

This article addresses Colorado Criminal Juvenile Criminal Case Defense - Tips On How To Be Your Child's Advocate

Because Colorado juvenile criminal cases are different than adult cases, there are far fewer criminal defense lawyers involved especially at the investigative and filing of charges stages.

What follows are some tips for Colorado parents who find themselves in court where their child is charged with a Colorado juvenile crime and they do NOT have a Colorado Juvenile Criminal Defense Lawyer

First - Stay Organized

When a family retains me - I give them one master file in which to place every scrap of paper they receive from the court or the District Attorney's office. The papers will include the charging document, character letters, mental health and alcohol - drug evaluations, lab results, billing or payment records, and other ALL reports from ALL sources - such as the police, probation officers, court, lawyers, doctors, and mental health workers.

Second - Always Ask For Copies Of Every Report About Your Child Or Your Child's Case

Always ask to at least read and then for a copy of all of the reports about your child and your child's case. If there is a refusal to provide you with a copy and you have a lawyer - your lawyer can subpoena the document. If you are unrepresented -as the judge to order a copy be made and provided to you.

Third - Take Copious Notes - and Always Write Everything Down!

Never rely on your memory to recall the specifics of what people are telling you. Write down all of the information you receive from whatever source provides it.. If you have meetings with pretrial services, detectives or patrol officers, telephone conversations with the District Attorney or any representative of the court, social services, or the probation officer - WRITE DOWN WHAT YOU HEAR.

No matter who is involved in the juvenile justice system, write down what they have said and how you responded... always include the time and date, who you spoke to (their title), how long the conversations lasted and what are the plans for future meetings or phone calls.

Fourth - Never Miss ANY Meetings - Arrive On Time, If Not Early

The rush of life - jobs - other family obligations and other conflicts in your calendar will make attending every meeting nearly impossible.. Every court appearance, however, must be attended by at least one parent or legal guardian. Missing important court dates or other meetings means you forfeit staying ahead of the kind of changes that can quickly occur in juvenile criminal cases.. Missing these meetings also sends the wrong message to the stakeholders in your child's case.

If you must miss a meeting - call someone who WILL BE attending or send a note or letter explaining in advance why you must miss the meeting.

Fifth - Educate Others About All There Is To Know About Your Child And What It Takes To Understand Your Child.

I often use the term "marketing" my client - as an expression of conveying who he or she is to all involved in the case. If you do not have a lawyer representing your child, make certain to reduce to writing EVERYTHING OF MAJOR IMPORTANCE about him or her.

This "mitigation packet" will assist the "decision makers" in the case to understand exactly who your child is.. his orher successes in school - on and off the field in sports, in church or synagogue, or his or her role in the family dynamic or in the community at large.. In short - flush out "the person" behind the black and white descriptions of what allegedly happened in the police reports.

Any information "humanizing" your son or daughter will help the DA, the probation officer, the judge and all the other adults in the case, to understand your child better.

Sixth - Always Be Polite and Show Respect - Always Be Respectful

This is tougher than it sounds.... As a parent myself - I cannot "see straight" when it comes to my own children especially if they are accused of doing things they have not done. BUT - no matter how strongly you feel about your child's situation or the stakeholders in the courtroom, helping or perhaps, hurting your child's chances - YOU must remain respectful when you speak in court or or to any of the adults involved in the case.

Lastly - If Your Child Is Arrested - Regarding Your Child's Arrest in a Colorado Juvenile Criminal Case

If your child is arrested:

1 - Do not allow the police to talk to your child if you are not present. The law in Colorado is clear, the police NEED your permission to speak to your child without your permission. If the police ask you for permission to talk your child without you being there, the answer is NO. They may even try to suggest that your child would be "more comfortable" to speak about the case investigation without you in the room. The answer is NO.

You may also feel free to call me directly - right from the scene to help you make this important decision.

2. See your child immediately. Don't wait. Don't delay. Let nothing interfere with your right to see your child while they are in custody. Go over the head of the police officer or detective who is trying to interfere with that right. At several levels this is the right thing to do.

When you see your child, tell your child not to talk to the police without you - a lawyer present - or both - present.

If the police try to use the ruse "we just want HIS or HER side of the story"- don't fall for this. If they say that your child is "just a witness" and not "a target" don't believe it.. Even if true - that apporach can change on a dime.

While children are taught that the police are there to protect them and keep them safe, when the child is a target of the investigation or involved in some way with the commission of the crime - that old adage is no longer true. . If your child is arrested and transported for questioning, teach them NEVER talk to the police without you - your lawyer or both being there.

Instruct your son or daughter to IMMEDIATELY ask to talk to you (their parent) or the lawyer, if there is one. EVEN IF your child appears to not be involved in any wrongdoing, their rights must be protected...as they are very likely "cave in" to pressure from the police and end up admitting to acts they did not do.

The Importance of Your Child's Colorado Juvenile Criminal Defense Lawyer - If You Decide To Retain One - Can Never Be Understated. But - If you are left in a situation where you must be your child's only advocate - I am hopeful this article will help you.


ABOUT THE AUTHOR: H. Michael Steinberg - Email The Author - A Denver Colorado Juvenile Case 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 - 720-227-7777.

If you are charged with A Colorado crime or you have questions about Colorado Criminal Juvenile Criminal Case Defense - Tips On How To Be Your Child's Advocate - Helping Your Child When There Is No Colorado Juvenile Criminal Defense Lawyer Present, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

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. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado - including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County - Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,.... and all the other cities and counties of Colorado along the I-25 Corridor... on cases involving ...olorado Criminal Juvenile Criminal Case Defense - Tips On How To Be Your Child's Advocate - Helping Your Child When There Is No Colorado Juvenile Criminal Defense Lawyer Present.

September 25, 2013

Feds Threaten To Punish Adults For Children's Exposure And Use Of Marijuana In Colorado And Washington

Colorado - Exposure of Children To Marijuana As Child Abuse.jpgBy H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer

With one Federal hand offering to not prosecute the sales of marijuana in Colorado and Washington, the other hand is holding a mighty "stick" constituting an implied and if not a direct threat of prosecution if these states do not take action to protect their children from increased exposure to the drug.

The United State's Justice Department's promise to refrain from prosecution of federal marijuana laws comes with the proviso that Colorado must act to prevent what the Feds will not abide - increased use of marijuana by children.

The Storm Is Gathering

The threat of prosecution where the safety of children as an issue is not new in Colorado.

Colorado's prosecutors have charged child abuse for many many years if children are present when adults are doing drugs -even marijuana - driving under the influence with children in the car - or other similar risky behaviors.

The impact on children of a massive increase of marijuana, legal or otherwise, into the states of Colorado and Washington cannot be understated. Adults smoking marijuana with children in their presence is no different than smoking cigarettes under the same conditions except - should the police be called to the scene for whatever reason.. a false report of domestic violence for example - the added element of marijuana on the scene could lead to the stigmatizing charge of child abuse - complete with a Child Protective Services Investigation and a career destroying "founded" entry on Colorado's TRAILS child abuse database.

The Research Is Already Showing Increased Use of Pot By Colorado's Children

According to the Miami Herald in a recent article -

"Teens already are more likely to smoke pot than tobacco, according to a study released in December by the National Institute on Drug Abuse and the University of Michigan.

In 2012, 23 percent of high school seniors reported using marijuana in the past month, while 17 percent of the seniors said they had smoked tobacco. As recently as 2008, high school seniors were more likely to have smoked cigarettes than marijuana.


The figures reflect children's increased use of marijuana well before retail sales in Colorado are set to begin in 2014.

The study reported similar findings in past-month use for students in younger grades. Seventeen percent of the 10th-graders had used marijuana, compared with 11 percent who had smoked cigarettes. Among eighth-graders, 6.5 percent had smoked pot, compared with 5 percent who had smoked tobacco."

The Legalization Of Personal Use Of Marijuana Means A Change In Perception

With parents using the drug freely and legally, the message to Colorado's children has to be it is "cool" because my parents are doing it. The courts, in the form of child custody actions or dependency and neglect cases will no doubt focus on this opportunity to challenge the parenting of the adults who use pot in and around their children.

H. Michael's Take

With the increase in marijuana use by adults especially by the parents of young children - there will be an increase in exposure of these children to second hand marijuana smoke at a minimum. Unlike second hand cigarette smoke - the second hand smoke from pot is illegal to ingest by children. If parents and others are not careful in their use of - the now legal "rexreational use" of marijuana - the result could be, not only new cases of child abuse and child neglect, but an entire generation of children confused, as they are now confused about the safe use of marijauana, as they have been for decades about the safe use of alcohol..

August 18, 2013

United States Supreme Court Asked To Decide How Far Police Can Go In Searching Cell Phone At Time Of Arrest

Colorado Cell Phone Searches.jpg
Cell phones - 91% of us have them. Cell phones are a modern marvel defying most of us to com close to fully understand how they function. They are truly highly complex "mini computers" containing vast amounts of personal information that should remain private and well away from the eyes of law enforcement.

Recently the United States Supreme Court has been asked - in the case of Riley vs California - to set the standard for searches "incident to arrest" involving the seizure - but much more importantly - the search of the contents of cell phones.

A petition to the Supreme Court asks the court to clarify whether - and under what conditions - law enforcement may access the massive amounts of personal information on all of our cell phones without a search warrant.

In Riley - the police in the State of California made an legal arrest and "incident to that arrest" seized a cell phone. Officers searched the contents of the cell phone twice. Officers searched the phone at the scene of the arrest, and then again several hours later, at police headquarters.

Why Is This An Issue?

I submit that the better reasoned authority holds that a search of a cell phone violates the Fourth Amendment unless it is performed with a warrant or under an exception to the warrant requirement such as an exigency otherwise justifying the search.

The accepted reasoning for permitting a warrantless search - to this point - has been what has come to be known as the Fourth Amendment's search-incident-to-arrest doctrine. This doctrine permits the police to search a cell phone whenever the phone is "immediately associated with [the arrestee's] person" at the time of the arrest.

The Chimel Test

Until now the legal framework for analysis of the "search-incident-to-arrest exception" to the Fourth Amendment warrant requirement was based on the vase of Chimel v. California, 395 U.S. 752 (1969). In Chimel the United States Supreme Court held that in order to "seize weapons and to prevent the destruction of evidence," the Fourth Amendment permits police officers to search "the arrestee's person" and "the area into which an arrestee might reach" while being arrested.

Since Chimel - many other cases have broadened this holding including the case of United States v. Robinson, 414 U.S. 218 (1973). In Robinson a search of a crumpled cigarette package found on the defendant's person during his arrest - which could not have contained a weapon of course - was lawful and such searches do not depend on "the probability in a particular arrest situation that weapons or evidence would in fact be found" and that "[i]t is the fact of the lawful arrest which establishes the authority to search."

Enter Cell Phones

The Supreme Court's search-incident-to- arrest jurisprudence" was based on a thinking that is now decades old and well before the digital era. Today - the genius of cell phones provide access to a vast amounts of highly personal data, and these devices are far from the physical containers addressed on the post Chimel cases. Today individuals carry exponentially larger quantities of personal information on their person than they ever could before the creation of cell phones.

At the time of the traditional search incident to arrest -eith the push of a button - private and confidential information such as medical records, banking activity, and work-related emails become assessable.

Millions of Arrests And Searches Incident To


In 2010 alone, there were nearly 11.5 million total adult arrests. Most of these arrests were based on the most minor of legal infractions such as a violation of a traffic code offense. Nearly all of these arrests - the arresstee carried a cell phone. An answer to this question - can the police search a cell phone at the time of a routine arrest..is critical.

In Colorado - the answer is ambiguous at best. Our Colorado courts have split the reasoning in a way that satisfies no one. Here is a LINK to a recently written article I drafted on this subject.

The Search of Cell Phones In Colorado At The Time Of Arrest

H. Michael's Take

The Fourth Amendment Prohibits Searching The Digital Contents Of A Cell Phone Incident To Arrest.

The Fourth Amendment establishes that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."

While our forefathers could never have dreamed of the technical advances we have seen in the last two centuries - we are charged with trying to understand how they would have viewed such advances. When a cell phone is securely in police control the Chimel exception should not apply.

The reasoning makes no sense. The privacy issues that arise from the search of a cell phone make makes such a search - absent a warrant unreasonable. The search-incident-to-arrest exception requires a search to be "'reasonably limited' by the 'need to seize weapons' and 'to prevent the destruction of evidence.'"

In the recent decision of Arizona v. Gant the United States Supreme Court said this:

"If there is no possibility" that the arrestee could gain access to a weapon or destroy evidence, "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Arizona v. Gant, (2009).

At the moment police officers separate an arrestee from his phone, there is no longer any risk that he might destroy digital evidence on the phone. The officer - at that moment - has three options to preserve the contents of the phone and apply for a search warrant:

1. He can turn off the phone.
2. He can put it in airplane mode.
3. Or he can place it in an inexpensive bag that prevents any signals from entering or escaping.

The measure of the constitutionality of a governmental search has always been 'reasonableness.'"

The 2001 United States Supreme Court case of United States v Knights ends the issue - at least for me - it said that the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'"