H. Michael Steinberg has over 29 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.

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.'"

August 12, 2013

The Limits Of Parenting - Frustrated California Mom Charged With Child Abuse -Chains Son To Stop Him From Gang Activity

Colorado Parental Rights And Child Abuse Lawyer.jpg
By H. Michael Steinberg Email - hmsteinberg@hotmail.com

Parents - so frustrated with the lure of sex, drugs and violence, have taken extreme measures to "save" their children from the dangers of the street. Here in Colorado - as a criminal defense lawyer, I have had parents plead with me to force the judge to "place" their children in locked facilities and "treat" them so they will not commit additional crimes.

The limits on the rights of parents and the obvious pain parents sustain in trying their best to control their children in what is often a terrible world - are illustrated in the story of Irma Navarro - a young mother in California who recenlty found it necessary to chain her 10 year old son in Santa Ana to prevent him from leaving the house to join in gang activity.

The Facts - What Is Child Abuse In California?

Chaining your son to a tree by the ankles and forcing his legs into one side of a pair of shorts is the easy case of child abuse. The irony here is that even that extreme measure was not enough to prevent the boy from getting free and running away.

Irma Navarro was a single mother who had to leave her son to work - often coming back very late at night. Her act in chaining up her son was the sad result of ignorance and frustration - as it was obvious to all that she loved her son desperately.

Working hard as a house cleaner - she saw this extreme act as her only alternative because she could not afford a babysitter for two of her three children. As a result of her crime - as is most often the case - all of her children were taken by child protective services and she was charged with "willful cruelty to a child" under California law.

What Is Child Abuse Here in Colorado? - Child abuse (18-6-401)

Colorado's child abuse law is complex. I have written on the subject many times. It may surprise parents to know that the law is broken into multiple punishments that are basically dependent on two things:

First - what was in the mind of the accused at the time of the act?

Second - what was the resulting injury?

The issue here - are the limits placed on caregivers, such as parents, teachers and babysitters.

All parents, child guardians, and other caretakers are required by law to protect the children in their charge. Negligence - even well intentioned is punishable by jail and or prison. Even acts that do not result in injuries but place children at risk are punishable as in the DUI context

In Colorado - even having children exposed to a caregivers use of drugs - can be charged as child abuse.

The legal demarcation between legally permitted parenting based discipline and child abuse is blurry at best. The physical punishment as discipline that I experienced as a child would be child abuse today and certain cultural methods of discipline are no longer tolerated in our hyper-protective world.

While Not All Acts Of Parental Discipline Are Abuse - If You Are Charged Or Under Investigation - Call A Colorado Criminal Lawyer

What you may consider as normal discipline can result in an arrest, charges, and the seizure and removal of your children. You need to contact an experienced lawyer in this field to protect your rights. Waiting - assuming your "truth" will at some point become obvious to all - is naive.

Teachers and other professionals - more than ever - must be sensitive to the overreaction and the "moral outrage" that all members of law enforcement - the police, the DA, the judges, the system itself - experience and then visit on those charged with child abuse. Juries react viscerally at trial after merely hearing the charges read to them.
The consequences are serious and may impact the rest of your life.

If you need to understand the law in this area: Here is a LINK to an article about Child Abuse In Colorado

August 3, 2013

Colorado Courts Reassert Awesome Power Of Parole Board In Sex Offender Parole Revocation Matters

Colorado Parole Reocations.jpg
by Colorado Sex Crimes Criminal Defense Lawyer - H. Michael Steinberg


In the case directly addressing Parole Revocations for Colorado Sex Offenders - the Colorado Court of Appeals distinguished once again sex offender cases from all other parole revocation cases.

On August 1, 2013 - in the case of People v. Back - Jason Back appealed the denial of his Colorado Criminal Rule of Procedure 35 C motion which he filed to challenge the Colorado parole board's decision to revoke his parole and send him back to prison for the rest of his life.

The two laws that are addressed in the Back decision are sections 17-2-103(11)(b) and 17-22.5-403(8)(b), of the Colorado Revised Statutes (C.R.S.)

Simply put - for technical violations of Colorado Parole ( that is - no new crimes have been committed while on parole) under section 17-2-103(11)(b)(IV), C.R.S. (which applies to parole revocations),Back argued that the parole board was only authorized send him back to prison for a maximum of 180 days... not life in prison.

The Court decided that - section 17-22.5-403(8)(b) "trumps" the general statute in cases that fall within the Colorado Sex Offender Lifetime Supervision Act (SOLSA).

The Facts Of Back

Back had been on lifetime probation after pleading guilty to sexual assault on a child, a class four felony. He violated his probation and was sentenced to prison for 10 years to life which had a so called "tail" of parole that added - should he ever parole - of 10 years to life.

Eventually - after working very hard - Back was one of the very few Colorado Sex Offender inmates to make parole early and he was released on parole. While on parole - the sex offender treatment program he was asigned to - terminated him for "noncompliance." Thereafter the Colorado Parole Board decided that they would return Back to prison for life for the technical violation of failure in a sex offender treatment program.

How To Get There

He appealed that decision - after the Colorado Parole Board a person's parole, that decision can be appealed under the Colorado Parole Board's own appellate body under § 17-2-103(2)(b), C.R.S. 2012. If you lose there - THEN that order can be appealed again to the district court and then the Colorado Court's of Appeal.

The Issue

The Defendant filed a Crim. P. 35(c) motion and in his appeal he asserted that the parole board had to treat him like all other parolees in this situation - and return him to prison for only 6 months - 180 days.

The Decision

Finding - after much analysis that the two laws directly CONFLICT - decision came down to this - the "general" parole revocation law - section 17-2- 103(11)(b)(IV) does not apply to Colorado Sex Offender Parole (the parole board to revoke his parole for a maximum of 180 days), while the more "specific" law 17-22.5-403(8)(b) does.

Here is the relevant law:

Upon a determination in a parole revocation proceeding that the sex offender has violated the conditions of parole, the state board of parole shall continue the parole in effect, modify the conditions of parole . . ., or revoke the parole and order the return of the sex offender to a place of confinement designated by the executive director for any period of time up to the remainder of the sex offender's natural life.

H. Michael's Take

No surprise here - the Colorado Court of Appeals decision to treat Colorado Sex Offenders differently under SOLSA is consistent with the harsh tone of the whole statutory scheme. The irony in the Back case - is that Back did such a great job in prison after he was returned... the "back" story (forgive me) was that - while the appeal was pending - he was re- granted discretionary parole under the provisions just discussed.

The good news in this scenario is - in my opinion - there has been a palpable "loosening" of the hysteria surrounding these cases that has given some hope to the hundreds of Colorado sex offenders serving life sentences and trying to make parole - as did Mr. Back - TWICE.

July 6, 2013

Colorado Child Abuse TRAILS System - Convicted Without A Trial By A Secret System

Colorado Child Abuse TRAILS System.jpg
The Colorado Department of Human Services' letterhead contains the ironic phrase "people who help people"... In a little known back room of the Employment & Regulatory Affairs of the Colorado Boards & Commissions Division, sits the Colorado Background Investigation Unit.

The address is 1575 Sherman Street Denver, Colorado 80203-1714

Their Phone Numbers are: Phone 303-866-4614 - FAX 303-866-5340


This division - the Background Investigative Unit - is a subdivision of the Colorado Department of Human Services. It's initials are the CDHS-BIU.

This lone agency reports information contained in the Statewide Automated Child Welfare Database, also known as the "TRAILS" system. The information contained in the TRAILS system is given to them by "local investigation agencies."

The Background Investigative Unit searches - at the request of other state agencies and private employers, for" confirmed cases of child abuse or neglect." A report of child abuse is "confirmed" when -after an investigation by law enforcement or child protective services - the report is "founded."

This background check is required by many agencies and licensed child care facilities on individuals wishing to foster or adopt a child or work in a child care related field and a negtive finding has far reaching consequences.

When Your Name Is Added To The Secret "List"

Even if a criminal case is never filed against you for child abuse in Colorado, or you are
charged and later plea bargain for a dismissal - or go to trial and win a verdict of not guilty - your name may still appear on the TRAILS database as 'founded" or as having committed an act or acts of child abuse!

For example - If you are charged with child abuse in a Colorado DUI Case and theat charge is laeter dismissed -- it may still be "founded" and your name is added to the TRAILS child abuser list.

If you disagree with the information alleging you have committed child abuse - the agency instructs you to "contact the local agency (county) that conducted the investigation."
When you are added to the "LIST" you receive a letter with these words:

The Background Investigation Unit has received a request for a child abuse/neglect background screen for:

Name of Applicant: XXXX XXXXX Social Security #: XXX-XX-XXXX
Based upon the information received, the above name DOES appear on the TRAILS database as an individual confirmed for an incident of child abuse/neglect with the following information:

Reporting County: Arapahoe
Type of Incident: Neglect
Date of Incident: June 1, 2013
Degree of Severity: Severe
County of Investigation: Arapahoe

Please retain a copy of this correspondence for your records.

Any person who willfully permits or who encourages the release of data or information related to child abuse or neglect contained in TRAILS to persons not permitted access to search information commits a class 1 misdemeanor pursuant to §18-1.3-501, C.R.S.

Sincerely,

BIU, Records & Reports Section
Boards & Commissions Division

Our Mission is to Design and Deliver Quality Human Services that Improve the Safety and Independence of the People of Colorado

H. Michaels' Take - What You Can DO

The TRAILS system was allegedly developed to provide a way to release confidential information to be used by all departments working with children and their family. In practice - it has been a disaster. There is a way to appeal a TRAILS finding that you are a child abuser - please see the LINK above.

Another way is to file a COMPLAINT using this FORM (LINK) with the Office of Colorado's Child Protection Ombudsman ...

The idea of the Ombudsman was created by law in Colorado in 2010

Here is arguably the most relevant part of the law - it was intended to:

"(e) to engender this high level of confidence in the child protection system, it is important that children and families who come involved in the system, mandatory reporters, and the general public have a well-publicized, easily accessible, and transparent grievance process for voicing concerns regarding the child protection system along with the expectation that those concerns, once voiced, will be heard and addressed in a timely and appropriate manner;


and

(f) to improve child protection outcomes and to foster best practices, there must be effective accountability mechanisms, including the review and evaluation of concerns voiced by children and families, mandatory reporters, persons involved in the child protection system, and members of the general public, that provide policymakers with the information necessary to formulate systemic changes, where appropriate."

The use - and abuse of information is - every day - becoming more and more of a major issue in our country. Allegations of child abuse can destroy lives and end the prospect of employment in many fields .. Use the information contained in this article to fight back.

June 28, 2013

2013 Colorado State Legislature Takes An Arrow Out Of DA Quiver In Colorado Bail Bond Violation Cases - HB 13-1242

Colorado Violation Of Bail Bond Conditions 18-8-212
On May 28, 2013 - the governor of the state of Colorado John Hickenlooper signed HB 13-1242 which impacted Colorado Revised Statute 18-8-212. The latter law governs so called "technical" Bail Bond violations.


The change was called "Concerning a Repeal of the Mandatory Sentencing Requirement for Violation of Bail Bond Conditions for Certain Offenders."

What does the law do?

HB 13-1242 took away power from the prosecutors of this state by repealing (removing) the mandatory sentencing provisions of the old law for other than those who fail to appear with the "intent to avoid prosecution or sentence" and for sex offenders. For all others - a conviction under the new law for a bail bond violation permits a sentence to probation.

Stated another way - the new law permits individuals who have been charged with only TECHNICAL VIOLATIONS of their bond ( technical violations consist of things such as missing a urinalysis - being late for an appointment with a pretrial counselor and the like) to apply for probation .

Why Is This Important?

Because the new law allows these "technical bail bond violators" the right to apply for probation - they can avoid the threat of harsh mandatory jail sentences for misdemeanor offenses and mandatory prison for felony offenses.. this is a big deal at many levels.

NOTE HOWEVER - if the bail bond violation is for the commission of a NEW CRIME - the law remains unchanged - including the mandatory jail or prison sentences provided for in the old law.

Here is the law: (The changes are in CAPITAL LETTERS )

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

SECTION 1. In Colorado Revised Statutes, 18-8-212, amend (3); and add (3.5) as follows:

18-8-212. Violation of bail bond conditions.

(3) A person convicted under this section WHO FAILS TO APPEAR FOR A COURT PROCEEDING WITH THE INTENT TO AVOID PROSECUTION OR SENTENCE OR A PERSON WHO IS CONVICTED OF COMMITTING A MISDEMEANOR OR FELONY CRIMINAL OFFENSE COMMITTED WHILE ON BOND shall not be eligible for probation or a suspended sentence and shall be sentenced to imprisonment of not less than one year for violation of subsection (1) of this section and not less than six months for violation of subsection (2) of this section. Any such sentence shall be served consecutively with any sentence for the offense on which the person is on bail.

(3.5) A PERSON WHO IS ON BOND FOR A SEX OFFENSE AS DEFINED IN SECTION 18-1.3-1003 WHO IS CONVICTED UNDER THIS SECTION FOR A BOND VIOLATION SHALL NOT BE ELIGIBLE FOR PROBATION OR A SUSPENDED SENTENCE AND SHALL BE SENTENCED TO IMPRISONMENT OF NOT LESS THAN ONE YEAR. ANY SUCH SENTENCE SHALL BE SERVED CONSECUTIVELY WITH ANY SENTENCE FOR THE OFFENSE ON WHICH THE PERSON IS ON BAIL.

H. Michael's Take:

Prosecutors with weak Colorado criminal cases - before this law was changed - would use the most minor of technical violations for those on bond to file the new charge of Violation of Bail Bond Conditions under 18-8-212.

Because of the mandatory jail or prison sentence provisions in the law - this gave an unfair advantage to the DA and would force the settlement of a weak case where that case should have been tried to a jury. That now - cannot happen.

June 19, 2013

United States Supreme Court Allows Introduction Of Pre-Arrest - Pre- Custodial Silence - Miranda Does Not Apply

Colorado Miranda Rights.png
On June 17, 2013 the United States Supreme Court - in Salinas v. Texas - took a step back from the protections accorded by the Fifth Amendment's Right To Remain Silent.

The Facts of Salinas:

Salinas - before being placed into custody - answered questions posed by a police officer in a homicide investigation. At the time he answered the questions he was not under arrest. Among the questions was a comment by the officer about the potential ballistics match as regards casings found at the scene.

Salinas
answered the officer's questions to that point but "balked" silently at the ballistics comment. While he did answer almost all of the officers' questions, he refused to answer or even respond to the police officers question - regarding whether the shotgun casings found at the scene would match his gun. Instead - his reaction - one of nervousness - was used to persuade the jury he was guilty.

He was convicted and is serving a 22 year sentence.

The Argument On Appeal

Salinas appealed and argued that his silent reaction was not speech but rather protected silence under the 5th Amendment. Which guarantees that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'"

The Supreme Court Says NO Protection For "Pre-Custodial " Silence

The Court held that the use of Mr. Salinas's silence at the scene as an inference of his guilt at trial did not violate his 5th Amendment rights.

The new rule overturns a case that was almost 50 years old - Griffin v. California. That case was overturned. The old rule was that neither the prosecution nor the trial court may comment upon the silence of an accused a as an inference of guilt.

Today - after Salinas - remaining silent when the police ask damaging questions - is not the same as claiming a right to remain silent. Prosecutors may use a suspects silence against the suspect at the trial. The rule now requires an affirmative claim to the Fifth Amendment's right to remain silent. Simply remaining silent - during an otherwise voluntary exchange with the police is now - not enough.

"A witness's constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,"

In that one statement the Supreme Court rejected Salinas' argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Colorado Criminal Defense Lawyer - H. Michael Steinberg's Take On The Case:

The dissent in the case makes the most sense to me. Justices Breyer, Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined together to argue that the rule should be that courts should examine all of the specific circumstances of an individual's encounter with police to decide whether, in fact, that person's silence was an attempt to claim the Fifth Amendment right.

Miranda Rights Not Implicated

The famous Miranda case involved a man held against his will at the police station. This case involved a man who had voluntarily gone to a police station where he was questioned by the police. The distinction is important. In Salinas - the Court held that since Salinas while in the police station was not under arrest or otherwise in custody, Miranda was not implicated.

Not a good day for the preservation of our constitutional rights....

June 6, 2013

Colorado Rewrites Drug Crime Sentencing Laws In 2013

NEW DRUG LAW CHART.jpgA new Colorado drug crime sentencing bill SB - 13-250 - has resulted in massive and POSITIVE changes to Colorado's Uniform Controlled Substances Act. The new law creates too many changes to include in this short blog.

If you wish a thorough analysis of the law - please follow this LINK to my Colorado Drug Crimes Website - for a more complete look at the law.

In A Nutshell - here is what the law does:

Makes major changes to current drug crime sentencing laws by:

• creating new felony and misdemeanor drug sentencing grids
• assigning each existing drug crime a new drug penalty based on the new sentencing grids;
• adding all drug felonies to the habitual sentencing schemes;
• establishing a sentencing option for offenders convicted of certain drug felonies that allows the court to vacate the felony conviction and enter a misdemeanor conviction in its place if the offender successfully completes a community-based sentence (probation or community corrections);
• requiring a judge to exhaust alternative sentencing options for certain level 4 drug felony offenses prior to sentencing an offender to prison;
• requiring a judge to hold a resentencing hearing or make written findings for any level 4 drug felony offender who is terminated from a community corrections program;
• allowing a judge to impose residential drug treatment as a probation condition for drug
misdemeanors;
• allowing defendants convicted of misdemeanor drug offenses to be sentenced to intensive supervision probation if appropriate;

and

• prohibiting a plea agreement involving a drug offense from requiring a waiver of the defendant's right to petition for sealing of his or her criminal conviction records.

Thousands Now Will Not Go To Prison

Furthermore while under the current law, if a person violated the terms of a deferred judgment and sentence (DJS), a judge was required to enter the guilty plea and impose the original sentence. If the DJS is related to a drug offense, this new law - allows - but does not require the court to continue the DJS and impose new requirements intended to help the person complete it successfully.

The New Grid

By clicking on the chart above - you will be taken to the new sentencing grid which should help you see the massive changes enacted as a result of the new law. good luck!

May 29, 2013

New 2013 Colorado Law - Revamps Longstanding Unfair Bail Bond Laws

2013 Colorado Enacts New - More Just - Bail Bond LawsA New Colorado Law - enacted and signed by the governor on May 11, 2013 - totally revamps Colorado's approach to bail and bonding issues.

The Law Is HB 13-1236 "Best Practices in Bond Setting"

The new Colorado law is a complete change in approach to the setting of bond in the courts of our state.

The law creates new presumptions and revising the criteria and methods for the setting of bail.

In a nutshell - trial judges - through - pre-trial release programs are now compelled to view the purposes of bond well beyond the characteristic and mechanical one from column A use of bond schedules - to not set unreasonably oppressive bonds and:

To Presume most persons in custody are eligible for release on bond with appropriate and least restrictive conditions.

To Consider individualized risk and circumstances of person in custody and relevant criteria and not just level of offense.

To Consider ALL methods of bond and conditions of release to avoid unnecessary incarceration.

The best method to analyze the changes to the new law - is to read the sections struck from the bill and study the sections added - by following this link:

One Example Of The New Law

As summarized in the law itself:

"The bill repeals and reenacts the provisions of the criminal procedure code related to bail bonds. The new provision places a greater emphasis on evidence-based and individualized decision making during the bond-setting process and discourages use of monetary conditions for bond. The bill makes conforming amendments."

Essentially this means the trial judge must look to objective criteria in setting bond -not the alleged anguish of the victim or the emotional pleas of the prosecutor.

The impact of the new law should greatly reduce the number of individuals in custody awaiting trial and incarcerated only because of the existing archaic pre-trial incarceration and present the bail setting process. Holding people - making them plea - just because they are poor is a violation of due process.

Here is the example of new language in the law...

(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..."

Here is another:

(3) to reduce barriers to the pretrial release of persons in custody whose release on bond with appropriate conditions reasonably assures court appearance and public safety, all counties and cities and counties are encouraged to develop a pretrial services program in consultation..."
The message is clear - Colorado criminal defense lawyers should now use this new law to strongly advocate for pre-trial release and not long term incarceration awaiting trial.. H