A proposed legislative bill to make repeat DUIs in Colorado died yesterday in a Senate committee. I wrote about the proposal here at RKV Law. For more information on the political gamesmanship that led to the bill failing to make it out of the Senate committee, read the Denver Post’s blog post on the subject here.
As it stands, the maximum penalty for a DUI conviction in Colorado is 1 year in jail. Despite the setback for proponents of harsher penalties for Colorado DUIs, a person facing DUI charges should nevertheless seek legal assistance from a skilled DUI defense attorney. This point is especially important for those accused of drunk driving in Aspen, Glenwood Springs or Vail because of the reliance on vehicles for transportation in the mountains.
Aspen truck drivers of extended tractor-trailers will likely be facing major fines for driving up Indy Pass after the Colorado State Senate votes on a proposed bill in a few days. If a vehicle is over 35 feet long, the fine would be $1,000. The amount increases to $1,500 if the vehicle blocks traffic.
As Pitkin County Sheriff Joe DiSalvo is reported to have said before the Senate Transportation Committee yesterday, truck drivers often disregard restrictions over mountain passes because the fines are less than the savings in gas and time. When I worked in the Eagle County DA’s Office, we frequently saw truckers from companies like Fed-Ex unsuccessfully running the gauntlet up Vail Pass. There were so many closures of Vail Pass from jackknifed semis during the winter that they raised the fines and employed other restrictions to make sure truckers could safely make it over. While I-70 and Vail Pass are not without their problems, the issue of stalled semi-trucks has been reduced significantly.
More information about the proposed Indy Pass bill can be found here.
The NYT has an article on Colorado sheriffs who are refusing to enforce Colorado’s recent gun-control laws. Garfield County Sheriff Lou Vallario is part of that group.
Vallario has posted his position online at the Garfield County Sheriff’s website in something he calls “Just the Facts.” He writes that he took an oath to defend the Constitutions of the U.S. and Colorado, “not to be a part of destroying them.” And he concludes that he is “fairly certain” that the Constitution is all about personal safety and reducing gun crimes.
Vallario overlooks the fact that the Constitution is based on a concept of checks and balances. Law enforcement officials cannot decide whether a law is constitutional — that authority is reserved for the judicial branch. Arapahoe County Sheriff Grayson Robinson understands the separation of powers espoused by Montesquieu and the Founding Fathers. On the topic of enforcing gun-control laws, he wrote:
“Public safety professionals serving in the executive branch, do not have the constitutional authority, responsibility, and in most cases, the credentials to determine the constitutionality of any issue.”
Vallario’s refusal to enforce laws he personally disagrees with is simply wrong. There is a reason for the title “law enforcement.” Boulder County Sheriff Joe Pelle sums up the argument against Vallario and his cohorts nicely:
“A lot of sheriffs are claiming the Constitution, saying that they’re not going to enforce this because they personally believe it violates the Second Amendment. But that stance in and of itself violates the Constitution.”
People can disagree about the efficacy or difficulty of enforcing a particular law. That debate must be encouraged and be part of the public discourse. It is a key part to our political process. But the issue of whether a law is unconstitutional cannot be unilaterally decided by a member of the executive branch, e.g. the Garfield County Sheriff. Vallario’s stance calls into question the idea of checks and balances and the Constitution.
I’ve recently spent some time with Pitkin County Sheriff Joe DiSalvo. We have mutual friends in Aspen. This article reinforces why I like him.
Instead of spending his time writing in ALL CAPS about background checks that already occur for law enforcement officers, Garfield County Sheriff Lou Vallario should spend his time improving TRIDENT.
Good article in the NY Times about the occupational hazards for prosecutors.
The NY Times has a comprehensive article on the confluence of the laws on domestic violence, restraining orders and gun restrictions. It is a worthy read.
In Colorado, there is a proposed bill that would prohibit a defendant from possessing or controlling a firearm when they are charged with a crime where the underlying factual basis contemplates domestic violence. “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. C.R.S. 18-6-800.3(1). DV also includes “any other crime against a person or against property, or any municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” Id. What’s this term “intimate relationship” mean? By legal definition it is “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.” Id. DV is not an independent criminal offense; rather it is a sentence-enhancer. A defendant is most often charged with harassment, assault, trespass or criminal mischief with DV. As part of the sentence, a DV offender will be required to do numerous anger-management classes among other things.
The proposed bill would also apply to those subject to a civil protection order, even when there is no criminal charge. The new bill would require a defendant to either sell or transfer all firearms in their possession while the restraining order is in effect. These restrictions could last as long as several years if a DV offender is sentenced to probation as part of a plea or conviction. For a permanent civil restraining order, it would mean that a person would be unable to possess a gun indefinitely. This would have wide-ranging implications in Colorado because of the likelihood of enforcement by local law enforcement officers.
There has always been a question on the legality of possessing a gun during the pendency of a case where a restraining order is involved. In Colorado, a restraining order is automatically entered against a defendant in a criminal case where DV is involved. Alternatively, people can apply for a civil restraining order from the Court in accordance with C.R.S. 13-14-102. My advice has always been for a defendant charged with DV to have a friend or family member take possession of a firearm because of the Brady Handgun Violence Protection Act. While prosecutions for a violation of the Brady Act are rare, I’d rather not have one of my clients staring down the barrel of a separate case brought by the US Attorney’s office that could easily be prevented. The proposed Colorado bill would go one step further and require documentation of that transfer or sale.
Stay tuned while the politics play out.
UPDATE: This bill was signed by Gov. Hickenlooper yesterday, March 20.
Yesterday, Chief Judge for the Ninth Judicial District, James Boyd, sent out an email to a number of attorneys announcing that Governor Hickenlooper signed the legislative bill adding a judge to the 9th J.D. last Friday, March 8. The same bill adds a judge for the 5th J.D. as well. I wrote about the proposal earlier in January here.
The Colorado House of Representatives voted 60-2 in favor of the bill, and it passed unanimously in the Colorado Senate. The current caseload for judges in these two judicial districts is simply overwhelming. Relief cannot come soon enough. Judge Boyd indicated that the new position would start around July of this summer. A public notice inviting applications will go out this week.
It will be interesting to see who throws their hat in the ring. Martin Beeson is expected to be a candidate in the 9th J.D. In the 5th J.D., it’ll depend on whether Dana Christiansen will apply. He’s in charge of the Public Defender’s Office for the 5th and was a finalist when Karen Romeo was appointed by former-prosecutor and then-Governor Bill Ritter.
There was an article in the Aspen Daily News yesterday on the proposed bill forTHC DUIs in Colorado. Unfortunately, the article was less than clear. One key element to the proposed legislation is that defendants with elevated levels of THC in their bloodstream would be allowed to argue that they were not impaired because they have built up a tolerance to the drug.
The new THC DUI bill, HB 13-1114, sets the level of active THC in the blood at 5 nanograms for every millimeter. The 5-nanogram threshold would not establish DUI per se; it merely gives rise to a “permissible inference” that the person was impaired. The result is that a defendant would be allowed a “permissible defense” that the jury should disregard the chemical test. For example, a person that smokes a lot of marijuana for medicinal or recreational purposes will nearly always have THC in their system. However, that does not necessarily mean they are stoned or unsafe to drive. In short, it would not be a slam dunk for the prosecutor if the defendant has 5 or more nanograms of THC in their bloodstream. This change from previous iterations of a THC DUI bill is a big deal. A copy of the proposed bill can be viewed here.
I emailed the reporter, Doroth Atkins, at the Aspen Daily News and she said that she was aware of the “permissible defense” in the proposed THC DUI bill, but that the editing process stripped out any mention of that aspect. Fair enough. While I understand the attraction to make things simple and easy, I disagree with the decision to simply ignore the “permissible defense” issue in the new THC DUI bill. Lesson here: reporters beware when you tread into writing about proposed legislation and the law.
A bill is being proposed in the Colorado State Senate to add one judge each to the 5th and 9th Judicial Districts that compose the Central Rockies. Fingers crossed.