August 2011 Archives: Colorado Criminal Lawyer Blog

Colorado Sex Offender"Indeteminate" Sentencing System Releases Few Inmates Once Sentenced to Prison

Every year, the Colorado Sex Offender Management Board (SOMB) is tasked with the responsibility of reporting on the success or failure of the draconian sentencing structure the Colorado State Legislature Created in 1998.

According to the Colorado Sex Offender Management Board's latest report, 1,651 people had been handed indeterminate "life sentences" sentences since the change in state law in 1999.

Of the 1,651, only 66 - or 4 percent - have been paroled. That's correct, 4%.court ordered discharge.

More specifically - the brakdown is -

...of the 1,651 offenders sentenced to prison under the lifetime supervision provisions for sex offenses, 117 have discharged their sentence through June 30, 2010:

• 49 offenders released by court order;
• 36 offenders released to probation;
• 24 offenders died;
• 4 offenders released on an appeal bond;
• 3 offenders had their sentence amended then released per Martin Cooper law; and
• 1 offender released from the Youthful Offender System (YOS).

The reason for the refusal to parole is that it is just not popular for the Colorado Parole Board - the decisionmakers in granting parole to these offenders,- to release into society someone who has been sentenced to the Colorado Department of Corrections for life.

Even Judge's - if asked privaitely - will tell you that the system is flawed and destructive as was the case in the recent sentencing of a Colorado Wrestling Coach convicted by a jury of having relations with a student.

Clearly punishment was expected in such a case, but a life sentence, with only a 4% chance of parole - is not contemplated in a just society.

Even Inmates Who Have Paroled Have Not Coe Close To DIscharhging Their Parole

According to CRS 18-1.3-1006, the period of parole for any sex offender convicted of a class 4 felony shall be an indeterminate term of at least ten years and a maximum of the remainder of the sex offender's natural life. The period of parole for any sex offender convicted of a class 2 or 3 felony shall be an indeterminate term of at least twenty years and a maximum of the remainder of the sex offender's natural life.

Therefore, no discharge hearings have been held to date and are not expected for several more years.

Taking Stock of the Hysteria

It is unclear whether the Colorado State Legislature will take a more reasoned look at this incredibly harsh and non-rational approach to this area -- the No-Cure Model is flawed and follows the well known Colorado knee jerk reaction to the hysteria that follows these cases in the media, - but I have hope that a more rational system is not too far off - I have already seen the Courts pay more attention to the ongoing research which gives me hope for the future. A future that leaves a life sentence for those individuals who committ captial crimes. H. Michael Steinberg

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Congress Fails Opportunity to Correct Criminal Background Check Errors - Bill Dies

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I receive, sometimes on a weekly basis, calls from individuals whose criminal cases have been dismissed as a result of either plea bargaining, tactical courtroom work, pre-filing negotiation or other representation, or acquittals after trial, ... but whose criminal histories - on the national data base know as the NCIC System, ... fail to reflect the dismissal.

These individuals are often denied employment, housing, financial assistance and many other opportunities to succeed in their lives and find themselves in the untenable situation of trying to explain why the entry on their "rap sheet" is incorrect.

In 2010, in a move to correct for these kinds of errors, Congress introduced a Bill that would have required the FBI to fill in gaps in criminal records database.

The Bill, entitled the 2010 Fairness and Accuracy in Employment Background Checks Act would require the attorney general to find out from court offices, including those in state and local jurisdictions, the outcome of arrests whenever an employer requests a background check, and update that record in the National Crime Information Center database.

In cases where the attorney general discovers an arrest was dismissed in court, he would have 10 days to update the record before responding to the employer's request.

Employers often consult the NCIC database to conduct background checks on individuals applying for jobs in law enforcement, homeland security or organizations where they'd be working with vulnerable populations, such as children and the elderly. Typically only public sector entities can request FBI background checks, though certain private sector companies -- such as those supporting federal homeland security efforts -- can as well.

Bobby Scott, D-Va., chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, introduced the bill on May 13 in response to a June 2006 report from the attorney general that showed nearly 50 percent of criminal records maintained in the NCIC database failed to note court decisions to dismiss arrests.

The legislation would have given job applicants the opportunity to obtain a copy of records provided to a potential employer and challenge their accuracy and completeness. If the records were challenged, the attorney general would have 30 days to complete an investigation, make changes or deletions, and report those changes to the applicant and the employer.

The bill...

The Fairness and Accuracy in Employment Background Checks Act of 2010 - which would have required the Attorney General to:

(1) establish and enforce procedures to ensure the prompt release of accurate federal criminal background records and information exchanged for employment-related purposes;

and

(2) report to Congress on the exchange of records or information for employment-related purposes under this Act and on all federal statutes, regulations, and policies providing employment restrictions and disqualifications based on criminal records.

.... was introduced during the 111th Congress. (2009 -2010) This bill never became law.

Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. However, members can and often do reintroduce bills that did not come up for debate under a new number in the next session.

Contact your Congress man or woman and press for the reintroduction of this bill - many lives will be helped if this bill can make its way to the President's desk. H. Michael

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New Law In Colorado Compels Police to Advise You of Right to Refuse Search of You or Your Vehicle

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Just a quick FYI and a reminder. A new law passed in Colorado requires the police - in the absence of a legal right to search your vehicle - prior to conducting a consensual search of your effects or your vehicle of a person - to inform the person that they are being asked to voluntarily consent to a search and that they have the right to refuse.

The targeted "searchee" must provide oral or written consent.

Again this requirement does not apply to searches conducted under other valid exceptions to the wsearch arrant requirement.

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado Criminal Law - Domestic Violence in the Teen Years - Teen on Teen - Explodes

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A new study by the Center for Disease Control has found that nearly 10 percent of U.S. high school students report being hit, slapped or physically hurt by their boyfriend or girlfriend in the past year.

That means that one in four teenagers is suffering at the hands of an abuser. If these crimes are reported - and prosecuted outside of dedicated juvenile court systems ( many cities do not have separate family courts - set up tp protect teenagers from their own immaturity) - it can mean a permanent criminal history that can follow the individual throughout their lives.

The victimization is not just physical - sometimes teens can be victimized through technology or through other forms of emotional abuse.

"People I've talked to think teen dating violence is all about bruises. It's not just about bruises. You can't see emotional abuse," says one teen at BeSmartBeWell.com/Domestic-Violence. "Teen dating abuse is just like domestic violence," says Chicago Police Department's Domestic Violence Liaison Officer Claretha Cross featured on the website. "It's abuse designed to maintain and gain power and control over another person.

H. Michael's Take

I strongly suggest that parents visit the site referenced above and do some reading to educate themselves as to the warning signs in this area and to prevent the abuse and potential for a criminal case filing of charges.
____________________________

H. Michael Steinberg Esq.
Attorney and Counselor at Law

The Colorado Criminal Defense Law Firm of
H. Michael Steinberg

A Denver, Colorado Lawyer Focused Exclusively
On Colorado Criminal Law For Over 26 Years.

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6400 South Fiddlers Green Circle - Suite 2025
Greenwood Village, Colorado 80111

E-Mail: hmsteinberg@hotmail.com

Primary Web Site: www.HMichaelSteinberg.com

Colorado Criminal Law Blog: www.Colorado-Criminal-Lawyer-Online.com

Main: 303.627.7777
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before making a decision to retain that lawyer or, for that matter,
any professional ... in any field.

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Colorado State Jefferson County District Attorney Scott Storey Takes A Reasoned Approach to the Crime of Sexting

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In a recent press release on the 1st Judicial District Website in Colorado - Scott Storey - the elected DA - approaches the increasing problem of Sexting with a reasoned eye - recognizing that which most experts in the field understand - it is a matter of "growing up" and "coming of age" .. that leads to an understanding of the proper boundaries between the genders. It is not a sex offender crime in most cases.

In the following reprinted web page - DA Storey explains his reasoning.

He is to be commended for his common sense and not knee jerk response - as is often the case in this area.

Sexting Balancing the Law, Teens and Technology

The District Attorney's Office has developed a new approach to "Sexting." This precarious pastime, a growing phenomenon with young people, is sending sexually explicit photos and video of themselves over the Internet. The combination of teenagers' age-old sexual curiosity, bad judgment and their love of modern electronic data sharing can have devastating consequences.

In March 2009, a Cincinnati teen committed suicide after sexually explicit photos she sent to her boyfriend were emailed to others after they broke up. The teen was humiliated and harassed at school. She was miserable and became afraid to even go to school. In desperation, she took her own life.

"It is critical for parents to know what "Sexting" is and just how pervasive it is," says District Attorney Scott Storey. "We all have to work together as a community to stop this dangerous behavior."

One in five teens admits to taking nude or semi-nude photos of themselves and sending them to someone or posting them online. None of these teens ever consider the possible repercussions. Those photos are not retrievable from cyberspace. They never think that the trusted friend or boyfriend to whom the explicit photos were sent or their "friends" on their social networking site would ever pass them on.

Teens also never consider the fact that Sexting is illegal if the photographed person is under 18 years of age. It is illegal to possess the naked pictures, and an even more serious offense, to send them or post them online.

The District Attorney's Office has tools and tips for parents on their website hoping to prevent Sexting.

The DA in Jefferson and Gilpin Counties has developed a protocol to use in some of these cases as they are presented by law enforcement. "Often the conduct is more of a boundary problem than a sex offense, but we have to be the ones to make that determination," says Storey.

"We developed a special curriculum to address teenage boundary issues without charging the teen with a sex offense. But make no mistake, having naked pictures of any teen under 18 on your cell phone or MySpace page is a crime which can result in serious consequences including sex offender registration."

We strongly encourage parents to interact with their kids and their online activities. Supervising your kids in cyberspace is not snooping or invading their privacy, its just good parenting.

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado Juvenile Sex Crimes - The Newest Wrinkle in the Area of "Sexting" - "Sextortion"

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Colorado Juvenile Sex Crimes - The Newest Wrinkle in the Area of "Sexting" - "Sextortion"

Colorado District Attorney for the 18th Judicial District (Jefferson County) addresses the new crime of Sextortion.

Sextortion is an Enhancement of a raging phenomenon in Colorado known as Sexting - Sexting is sending sexually explicit photos and video of themselves over the Internet.

Here is the Jefferson County ( Scott Storey's) District Attorney's read on Sextortion

"The latest in Internet and Cell Phone danger for teens.

Many teenagers take sexually explicit or even nude pictures of themselves and send them to others either online or through text messaging. This is called "Sexting". Sexting occurs more frequently than parents can imagine. These photos become "Sextortion" when they are used as a tool of exploitation or extortion.

Recently, a Colorado teenage girl made the mistake of sending her naked picture to a 20-year-old man in California. This teenage girl thought this young man liked her and she had feelings for him. She accepted him as a friend on Facebook site. After receiving the teenage girl's naked picture, the man threatened her, telling her that if she didn't send him $1,500 dollars or send him more naked pictures of herself, he would send her naked picture to all her friends on Facebook.

The teenage girl was faced with the possibility of her naked picture being distributed to all her friends and felt pressured to comply. The teenager finally told her mother, who then alerted law enforcement. This 20-year-old man was identified and prosecuted. He was sentenced to prison.

These "Sextortion" cases are very concerning to law enforcement as frightened victims might give in to demands such as posing for explicit photos, having sex with the perpetrator or sending them money."

H. Michael's Take

These cases will be prosecuted by the DA's in Colorado because of the immense impact on a teenager's life if these photographs are used to stalk and or extort teenagers. - The rub - let your kids know these kind of crimes - Sexting or - especially Sextortion - will be prosecuted.

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado State Legislature Creates Opening for Convicted Drug Crimes Felons Attempting to Parole Early

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In Mid 2011 - the Colorado State Legislature enacted a law - House Bill 11-1064, which created a presumption, subject to the State Board of Parole, in favor of granting parole to an inmate who has reached his or her parole eligibility date and who is serving a sentence for certain drug-related crimes, provided that the offender meets other requirements specified in the bill.

If the inmate is granted parole, the parole board is required to order the parolee to participate in substance abuse treatment consistent with his or her needs.

Here is the New Law:

HOUSE BILL 11-1064

Concerning a Parole Presumption Pilot Program for Certain Drug Offenders

17-22.5-404.5. Presumption of parole - drug offenders.

(1) there shall be a presumption, subject to the final discretion of the parole board, in favor of granting parole to an inmate who has reached his or her parole eligibility date and who:

(a) is serving a sentence for which the controlling term of incarceration is based on a felony possession or use offense

(b) has not incurred a class I code of penal discipline violation within the last twelve months or a class ii code of penal discipline violation within the last three months;

(c) is program-compliant;

(d) was not convicted of, and has not previously been convicted of, a felony crime described in:

Section 18-3-303 -Kidnaping, 18-3-305 Enticement of a Child, 18-3-306 Internet Luring of a Child, or 18-6-701 (Contributing to the Delinquency of a Minor; Sections 18-7-402 to 18-7-407 (Soliciting for Child Prostitution 18-7-402 - Soliciting for child prostitution; 18-7-403 - Pandering of a child. 18-7-403.5. Procurement of a child. 18-7-404. Keeping a place of child prostitution. 18-7-405. Pimping of a child. 18-7-405.5. Inducement of child prostitution. 18-7-406. Patronizing a prostituted child. 18-7-407. Criminality of conduct). Or 18-12-102, 18-12-109, C.RS Firearms and Weapons Offenses or a felony crime listed in section 24-4.1-302 (1), CRS;

(a) Murder in the first degree, in violation of section 18-3-102, C.R.S.; (b) Murder in the second degree, in violation of section 18-3-103, C.R.S.; (c) Manslaughter, in violation of section 18-3-104, C.R.S.; (d) Criminally negligent homicide, in violation of section 18-3-105, C.R.S.;

(e) Vehicular homicide, in violation of section 18-3-106, C.R.S.; (f) Assault in the first degree, in violation of section 18-3-202, C.R.S.; (g) Assault in the second degree, in violation of section 18-3-203, C.R.S.; (h) Assault in the third degree, in violation of section 18-3-204, C.R.S.;

(i) Vehicular assault, in violation of section 18-3-205, C.R.S.; (j) Menacing, in violation of section 18-3-206, C.R.S.; (k)....(l) First degree kidnapping, in violation of section 18-3-301, C.R.S.; (m) Second degree kidnapping, in violation of section 18-3-302, C.R.S.; (n) (I) Sexual assault, in violation of section 18-3-402, C.R.S.; or (II) Sexual assault in the first degree, in violation of section 18-3-402, C.R.S., as it existed prior to July 1, 2000; (o) Sexual assault in the second degree, in violation of section 18-3-403, C.R.S., as it existed prior to July 1, 2000; (p) (I) Unlawful sexual contact, in violation of section 18-3-404, C.R.S.; or (II) Sexual assault in the third degree, in violation of section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(q) Sexual assault on a child, in violation of section 18-3-405, C.R.S.; (r) Sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3, C.R.S.; (s) Sexual assault on a client by a psychotherapist, in violation of section 18-3-405.5, C.R.S.; (t) Robbery, in violation of section 18-4-301, C.R.S.; (u) Aggravated robbery, in violation of section 18-4-302, C.R.S.; (v) Aggravated robbery of controlled substances, in violation of section 18-4-303, C.R.S.; (x) Incest, in violation of section 18-6-301, C.R.S.; (y) Aggravated incest, in violation of section 18-6-302, C.R.S.; (z) Child abuse, in violation of section 18-6-401, C.R.S.; (aa) Sexual exploitation of children, in violation of section 18-6-403, C.R.S.; (bb) Crimes against at-risk adults or at-risk juveniles, in violation of section 18-6.5-103, C.R.S.; (cc) Any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., pursuant to section 18-6-801 (1), C.R.S.;

and

(e) does not have an active felony or immigration detainer.

(2) notwithstanding any provision of law to the contrary, an inmate who is eligible for the presumption in subsection (1) of this section shall have a parole release hearing within ninety days after becoming eligible for the presumption in subsection (1) of this section.
(3) if the parole board grants parole to an inmate pursuant to subsection (1) of this section, the parole board shall require as a condition of parole that the parolee participate in substance abuse treatment consistent with the assessed treatment need of the parolee.

Posted by H. Michael Steinberg | Permalink | Email This Post

State of Colorado Encourages Early Parole for Imprisoned Drug Crimes Felons

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In Mid 2011 - the Colorado State Legislature enacted a law - House Bill 11-1064, which created a presumption, subject to the State Board of Parole, in favor of granting parole to an inmate who has reached his or her parole eligibility date and who is serving a sentence for certain drug-related crimes, provided that the offender meets other requirements specified in the bill.

If the inmate is granted parole, the parole board is required to order the parolee to participate in substance abuse treatment consistent with his or her needs.

Here is the New Law:

HOUSE BILL 11-1064

Concerning a Parole Presumption Pilot Program for Certain Drug Offenders

17-22.5-404.5. Presumption of parole - drug offenders.

(1) there shall be a presumption, subject to the final discretion of the parole board, in favor of granting parole to an inmate who has reached his or her parole eligibility date and who:
(a) is serving a sentence for which the controlling term of incarceration is based on a felony possession or use offense

(b) has not incurred a class I code of penal discipline violation within the last twelve months or a class ii code of penal discipline violation within the last three months;

(c) is program-compliant;

(d) was not convicted of, and has not previously been convicted of, a felony crime described in:

Section 18-3-303 -Kidnaping, 18-3-305 Enticement of a Child, 18-3-306 Internet Luring of a Child, or 18-6-701 (Contributing to the Delinquency of a Minor; Sections 18-7-402 to 18-7-407 (Soliciting for Child Prostitution 18-7-402 - Soliciting for child prostitution; 18-7-403 - Pandering of a child. 18-7-403.5. Procurement of a child. 18-7-404. Keeping a place of child prostitution. 18-7-405. Pimping of a child. 18-7-405.5. Inducement of child prostitution. 18-7-406. Patronizing a prostituted child. 18-7-407. Criminality of conduct). Or 18-12-102, 18-12-109, C.RS Firearms and Weapons Offenses or a felony crime listed in section 24-4.1-302 (1), CRS;

(a) Murder in the first degree, in violation of section 18-3-102, C.R.S.; (b) Murder in the second degree, in violation of section 18-3-103, C.R.S.; (c) Manslaughter, in violation of section 18-3-104, C.R.S.; (d) Criminally negligent homicide, in violation of section 18-3-105, C.R.S.;

(e) Vehicular homicide, in violation of section 18-3-106, C.R.S.; (f) Assault in the first degree, in violation of section 18-3-202, C.R.S.; (g) Assault in the second degree, in violation of section 18-3-203, C.R.S.; (h) Assault in the third degree, in violation of section 18-3-204, C.R.S.;

(i) Vehicular assault, in violation of section 18-3-205, C.R.S.; (j) Menacing, in violation of section 18-3-206, C.R.S.; (k)....(l) First degree kidnapping, in violation of section 18-3-301, C.R.S.; (m) Second degree kidnapping, in violation of section 18-3-302, C.R.S.; (n) (I) Sexual assault, in violation of section 18-3-402, C.R.S.; or (II) Sexual assault in the first degree, in violation of section 18-3-402, C.R.S., as it existed prior to July 1, 2000; (o) Sexual assault in the second degree, in violation of section 18-3-403, C.R.S., as it existed prior to July 1, 2000; (p) (I) Unlawful sexual contact, in violation of section 18-3-404, C.R.S.; or (II) Sexual assault in the third degree, in violation of section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(q) Sexual assault on a child, in violation of section 18-3-405, C.R.S.; (r) Sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3, C.R.S.; (s) Sexual assault on a client by a psychotherapist, in violation of section 18-3-405.5, C.R.S.; (t) Robbery, in violation of section 18-4-301, C.R.S.; (u) Aggravated robbery, in violation of section 18-4-302, C.R.S.; (v) Aggravated robbery of controlled substances, in violation of section 18-4-303, C.R.S.; (x) Incest, in violation of section 18-6-301, C.R.S.; (y) Aggravated incest, in violation of section 18-6-302, C.R.S.; (z) Child abuse, in violation of section 18-6-401, C.R.S.; (aa) Sexual exploitation of children, in violation of section 18-6-403, C.R.S.; (bb) Crimes against at-risk adults or at-risk juveniles, in violation of section 18-6.5-103, C.R.S.; (cc) Any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., pursuant to section 18-6-801 (1), C.R.S.;

and

(e) does not have an active felony or immigration detainer.

(2) notwithstanding any provision of law to the contrary, an inmate who is eligible for the presumption in subsection (1) of this section shall have a parole release hearing within ninety days after becoming eligible for the presumption in subsection (1) of this section.
(3) if the parole board grants parole to an inmate pursuant to subsection (1) of this section, the parole board shall require as a condition of parole that the parolee participate in substance abuse treatment consistent with the assessed treatment need of the parolee.

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado Toughens Pre-Trial Conditions on DUI Cases - Compels Alcohol Treatment

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Under the heading -- FYI ..... A New Law in Colorado passed in 2011 - compels - that is - forces a judge - IN THE ABSENCE OF A CONVICTION - as a matter of the judge's pretrial authority - to order - as a condition of release on bond - that the individual accused of a second or seubsequent Colorado Alcohol or Drug related driving offense such as DWAI, DUI or DUID, to obstain from the use of alcohol or illegal drugs and to undergo alcohol and drug monitoring.

The law does provide for an "escape hatch" that would permit such an accused to object to the court's order - and requires the judge to conduct a hearing to make a determination as to whether the person aggrieved by the law - be excepted from the requirements of the new DUI law.

Here is the (the law) statute:

HOUSE BILL 11-1189

CONCERNING BAIL BOND CONDITIONS FOR THOSE ARRESTED FOR
SUBSEQUENT SUBSTANCE ABUSE DRIVING OFFENSES.

SECTION 1. 16-4-103 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

16-4-103. Fixing of bail and conditions of bail bond.

(1) (e) (i) if a person is arrested for driving under the influence or driving while ability impaired, pursuant to section 42-4-1301, CRS and The person has one or more previous convictions for an offense in Section 42-4-1301, CRS., or one or more convictions in any other Jurisdiction that would constitute a violation of section 42-4-1301, CRS., as a condition of any bail bond, ...

... the court Shall Order that the defendant abstain from the use of alcohol or the Illegal use of drugs and such abstinence shall be monitored.

(Ii) a defendant seeking relief from any of the conditions imposed pursuant to subparagraph (i) of this paragraph (e) shall file a motion with the court and the court shall conduct a hearing upon the motion.

The court shall consider whether the condition from which the defendant is seeking relief is in the Interest of justice and whether public safety would be endangered If the condition were not enforced.

When determining whether to grant relief pursuant to this subparagraph (ii), the court shall
consider whether the defendant has voluntarily enrolled in and Is participating in an appropriate substance abuse treatment program.

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado Court Holds That A District Attorney Cannot Fail to Try to Locate a Local Resident To Pursue a Revocation of a Deferred Judgement

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The Case- People v. Walker was decided March of 2011

In this case the entry of a Defendant's conviction based on the revocation of a Deferred Judgment was reversed because the District Attorney failed to exercise due diligence in locating a Defendant - who lived locally in Colorado - to make that person aware of a pending revocation of a deferred judgement

Facts: Ms. Walker entered a guilty plea to possession of a schedule II controlled substance, a felony. The trial court approved a deferred sentence. Two months prior to end of the deferred period, the prosecution moved to revoke the deferred. According to the person supervising the deferred, Ms. Walker could not be located.

The DA obtained an arrest warrant for Ms. Walker's arrest and claimed to have mailed a copy of the motion to revoke to defense counsel.

SIX YEARS (6) years after the deferred judgment period ended, the Defendant was arrested on the outstanding warrant.

At the revocation hearing - the Defendant testified that she never moved and that she still lived in the same apartment in which she resided at the time of the plea.

The Colorado Court held that the DA "abandoned" the motion to revoke Ms. Walker's deferred sentence. The Court reasoned that the time involved 6 - years - could not be excluded from the period in which to prosecute the motion to revoke because the Defendant did not absent herself from the jurisdiction.

More importantly, the Colorado Court of Appeals held that the DA did not make reasonable efforts to give notice to either Ms. Walker or her defense counsel and that the prosecution does not make reasonable efforts to procure the defendant or defendant's counsel, then the claim or motion will be deemed abandoned.

Posted by H. Michael Steinberg | Permalink | Email This Post

2011 Changes to Colorado Sealing Law: Sealing Colorado Drug Convictions

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A new Colorado Law will assist people who have been convicted of certain drug crime misdemeanor and drug felonies with expunging / sealing their records

The bill amends the process for sealing the record of a criminal conviction under Colorado's Uniform Controlled Substances Act, reduces the waiting period for certain classes of convictions, and authorizes the process of records sealing for additional classes of convictions. With limited exceptions, the bill applies only to convictions on or after July 1, 2011.

Existing law requires that:

• the sentencing court or probation department advise defendants of their petition rights;

• the State Court Administrator post a list of all petitions for at least 30 days prior to action on the petition by the district court;

• the defendant satisfies all outstanding costs in the underlying case prior to petitioning;

• the defendant provide a list of custodians of conviction records and, if successful,
pay each custodian for costs incurred to seal a record;

• a conviction record is not deemed a public conviction record and its disclosure may not be required for employment applications, rental housing applications, and other purposes, including questions by government agencies other than a criminal justice agency or the Board of Law Examiners;

• the destruction of sealed records is not authorized by virtue of the petition process; and

• conviction records will be unsealed if the defendant is later convicted of a new criminal offense or where, upon petition, the court finds the public interest outweighs the defendant's interest in privacy.

The New Law: Colorado House Bill 11-1167

Sealing criminal records - drug offenses - time periods - district attorney approval - no reporting of sealed convictions - advisement of rights - applicability July 1, 2011.

This new law - which takes effect on July 1. 2011 amends the petition process for sealing certain drug offense criminal conviction records.

It Amends the time period the defendant has to wait to petition the court to seal the record which depends on the severity of the offense.

In order to have the record sealed, the defendant must show the court that he or she has not been convicted of another offense or been charged with another offense since the discharge of the offense for which the defendant is seeking to have sealed.

DA Can Object and Veto the Process

The district attorney has the right to object to the petition or veto the request for all offenses except petty offenses. Also depending on the severity of the offense, the court can:

(1) immediately order the record sealed,

or (2) can consider the petition based on established criteria,

or (3) can hold a hearing to decide the petition.

The court, in making the decision whether to seal conviction records, considers the privacy interests of the defendant against the public interest in retaining the conviction records as open records.

Conviction records cannot be sealed if the defendant still owes court-ordered restitution, fines, or fees.

A defendant who successfully petitions a court for the sealing of conviction records must provide the Colorado bureau of investigation (bureau) and each custodian of the conviction records with a copy of the court's order to seal the conviction records and pay to the bureau any costs related to the sealing of the conviction records in the custody of the bureau.

Employers and certain institutions and agencies are prohibited from requiring an applicant to disclose information in sealed conviction records. Law enforcement will report that there are no public records in response to inquiries about sealed criminal conviction records. The office of the state court administrator must post on its web site a list of all petitions to seal conviction records that are filed with a district court.

The new law also prohibits district court from granting a petition to seal conviction records until at least 30 days following the posting.

Here are THE SPECIFICS OF THE NEW LAW:

24-72-308.6. sealing of criminal conviction records information

For offenses involving controlled substances for convictions entered on or after July 1, 2011.

(1) Definitions. For purposes of this section, "conviction records" means arrest and criminal records information and any records pertaining to a judgment of conviction.

(2) Sealing of conviction records.

(A) (i) subject to the Limitations described in subsection (4) of this section, a defendant
may petition the district court of the district in which any conviction records pertaining to the defendant are located for the sealing of the conviction records, except basic identifying
information, if the petition is filed within the time frame described in subparagraph (ii) of this paragraph (a).

Drug Crimes - Petty Offenses or Class 2 or 3 Misdemeanors (three years)

(II) (A) If the offense is a petty offense or a class 2 or 3 Misdemeanor in article 18 of title 18, CRS the petition may be filed three years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a criminal conviction.

Drug Crimes - Class 1 Misdemeanors (five years)

(B) If the offense is a class 1 misdemeanor in article 18 of Title 18, CRS, the petition may be filed five years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a criminal conviction.

Drug Crimes - Class 5 and Class 6 Felonies (seven years)

(C) if the offense is a class 5 felony or class 6 felony drug possession offense described in section 18-18-403.5 or 18-18-404, CRS., or section 18-18-405, CRS., as it existed prior to August 11, 2010, the petition may be filed seven years after the later of the date of the final disposition of all criminal proceedings against.

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The So Called "Secure Communities" Program Has Unintended Consequences for the Victims of Illegal Domestic Violence Arrests

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A relatively new Department of Homeland Security's (DHS) Program called "Secure Communities" is having an unintended impact and should be stopped.

Several states have sought to withdraw from the program because the program "traps" unintended victims of false domestic violence arrests in its grasp.

The Program compels the recording of the fingerprints of everyone booked into local police custody -- even if they have been the subject of illegal or wrongful arrests such is often the case in Colorado for misdemeanor domestic violence charges.

In many of these cases the police are compelled to dismiss the charges - however the fingerprints are still forwarded to DHS to check the falsely arrested person's immigration status.

Many times the VICTIMS of domestic violence are wrongfully arrested by the police - who cannot decide whom to charge. Often the wrong person is arrested leaving it up to the DA to decide what to do with the case.

"One such person was Isaura Garcia is a 20-year-old mother living in Los Angeles who endured three years of domestic violence before calling 911, seeking protection from her abusive boyfriend. After the police arrived, they questioned her about her immigration status, then arrested her and sent her fingerprints to federal immigration authorities. Stunned, Isaura fainted. At the hospital, a doctor found bruises on her body and identified her as a victim of domestic violence, and no charges were filed against her."

Simply because she had been arrested, Isaura's fingerprints were submitted to immigration officials and she was placed into deportation proceedings. Immigration and Customs Enforcement (ICE) only terminated her proceedings after the ACLU of Southern California drew public attention to her case.

The program had fundamentally good goals when it was started in 2008, Secure Communities was billed as program aimed at deporting "serious criminal offenders."

Now, four years in, ICE's own statistics show this is far from the truth. The majority of people deported under the program since its inception -- 60 percent -- have had only misdemeanor convictions (such as traffic violations or municipal code violations), or have done nothing wrong at all.

There has been widespread opposition to the program from across the political spectrum.

The result has been a built in disincentive to contact the police by a population that needs to build more trust with law enforcement. The program - as one blogger put it "undermines public safety by deterring immigrants from contacting local police when they are victims or witnesses of crime.

In short - this program - like many other Governmental programs meant well - and has - as the most recent television program puts - "Broke Bad."

Posted by H. Michael Steinberg | Permalink | Email This Post

Colorado Criminal Lawyer Blog

Published by Denver Criminal Defense Attorney :: Arapahoe County DUI Lawyer :: Law Office of H. Michael Steinberg