Uncertainty in the Offices of the DA for the 5th and 9th JD

A lot of pomp and circumstance accompanied the presidential election, but local politics matter. They matter a great deal. Peoples’ current employment and future career are at stake. Two cases in point are the DA’s offices for the 5th and 9th judicial district.

In my old stomping grounds, the 5th Judicial District, Bruce Brown won and will become the DA. There are rumblings of massive upheaval in the Eagle, Breckenridge, Leadville and Georgetown offices that make up the 5th. Brown ran on a platform of “change” so it come as no surprise that there’ll be a number of new faces representing the Office of the DA for the 5th JD. We’ll see how large that number grows to when the smoke clears here shortly. I agree with Brown’s policy of focusing on mentoring younger, inexperienced attorneys. I myself was one of those greenhorns. The biggest issue is who he finds to do the mentoring. Time will tell.

Over in the Office of the DA for the 9th JD, things are far from clear. Sherry Caloia is set to unseat the incumbent, Martin Beeson. If a recount is necessary, we likely won’t know the results for at least a couple weeks. Who takes the reins will determine, at a minimum, what happens in the Aspen office. Again, time will tell.

The takeaway is that local politics matter. Approximately $4.2 billion was spent on this past election. The lion’s share of that was directed towards the race for the White House. While federal income tax rates and declarations of war impact us all as Americans, we often gloss over the effect of local elections. People’s careers can turn on a dime – for better or for worse. It’s a story that often goes untold. I sympathize with those facing the likely consequences of the 2012 election.

Expressed Consent Law in Colorado

Continuing our discussion about DMV procedures, a condition of a Colorado driver’s license is that a person must submit to a chemical test if there is probable cause to believe the driver is violating the DUI/DWAI statute. (Probable cause and the standards for a DUI are worthy of separate posts.)

Many people will rightfully ask, “How can this be a condition when there’s nothing on the back of my driver’s license?” The easy answer is that there is a Colorado law directly on point: the Expressed Consent Statute. The legal citation is C.R.S. 42-4-1301.1. The first section of the Expressed Consent Statute states, “Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section.” In other words, when you get behind the wheel, you have already agreed that you will provide a chemical test of your blood, breath or, in the case of drugs, saliva, blood or urine, if the police officer has probable cause to believe you are under the influence of alcohol and/or drugs.

Assuming the officer rightfully has probable cause, they will place the driver under arrest and read the following:

“You are required to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath (C.R.S. 42-4-1301.1 (2) (a) (I). The chemical test you choose is the test you will be taking. You cannot choose a different test later (C.R.S. 42-4-1301.1(2) (A) (II). If you choose a blood test, two (2) tubes of blood will be drawn. One tube belongs to you and you may have it tested at a Health Department Certified Independent Laboratory of your choice. If you choose a breath test, two (2) breath samples will be analyzed by a certified evidential breath alcohol testing device following an approved standard operating procedure. You will not receive a sample to have independently tested by a certified laboratory. If you refuse to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath your driving privilege may be revoked (C.R.S. 42-2-126(2)(a)(II)).”

At this point, the person has a choice: blood or breath. If the person refuses, their driver’s license will be revoked for at least a year. The underlying policy is to encourage suspects to submit to a chemical test. Once a decision is made – blood or breath – the Expressed Consent Statute explicitly states that a person cannot change their mind. Unless there are extraordinary circumstances, the test must occur within 2 hours from when the person was driving. This is often an issue when a collision is involved.

If the test occurs outside of the 2 hours and there are no extraordinary reasons for the delay, the person will likely keep their license. Nevertheless, the chemical test may still be used by the prosecution in the criminal case. There is a jury instruction that requires the jury to take into consideration how long between the driving and the test. Thus, if a person’s BAC is .005, but it was taken 5 hours after an accident, the jury will reasonably deduce that the defendant’s BAC was much higher at the time they were driving. The difference between how a test taken outside of the 2 hours is used in the DMV (administrative proceeding) versus the criminal case (legal system) highlights the independent nature of each. People are frequently confused by this fact.

How and when to request a DMV hearing will be the subject of a subsequent post.

Trial Lawyers: “Speak Softly and Carry A Big Stick”

I litigated a motions hearing yesterday against a former colleague from the DA’s Office in Eagle. The judge granted our motion to suppress because the officer lacked reasonable suspicion for the DUI stop. The DA had to dismiss the case. It was a great result. My client was ecstatic. Developing a strong relationship with a client and coming through for them in a time of need is perhaps the most rewarding aspect of the legal profession.

Everyone hates to lose. Trial lawyers are especially competitive. I knew it burned the prosecuting attorney and arresting officer that the case was dismissed. Nevertheless, we all chatted about things after we walked out of the courtroom. The officer came up, shook my hand, and said, “Good job. That’s the first time I’ve lost in 12 years.” The prosecutor was similarly magnanimous. We hung around after the officer left and talked about the evidence introduced and arguments made. We are professionals. We advocate on behalf of our respective client(s) and then grab a beer or coffee afterwards to rehash what worked and what didn’t.

Unfortunately, not all trial lawyers agree. The problem is worse in civil litigation than criminal law. Some lawyers employ slash-and-burn tactics. They kick, scream and foam at the mouth. There may be some narrow circumstances when those antics work. In my experience, however, the lawyer that pounds his chest and speaks in hyperbole is often the loser. For example, I remember negotiating a plea bargain with a supposed Super Lawyer “rising star” criminal defense attorney. He yelled and swore at me because I was unwilling to budge on my plea offer. He told me how he’d run circles around me in the courtroom. Finally, it came time for the rubber to hit the road: either take the deal or set the case for trial. The swagger disappeared. Sweat broke out on his forehead. His voice became constricted. He appeared to be on the verge of a panic attack. His client accepted my offer a couple minutes later. Case closed. We worked well together afterwards.

As Teddy Roosevelt said, “Speak softly and carry a big stick; you will go far.” The same holds true for trial lawyers.

How can the Colorado DMV revoke my license for a DUI?

When a person is charged with a DUI in Colorado they have to navigate two separate, although parallel, systems. The first is obviously the criminal justice system.The second is the administrative system run by the Department of Motor Vehicles (DMV) in connection with a person’s privilege to drive.

I say “privilege” because many often feel that the ability to drive a vehicle is a right. There is, among others, the right to equal protection under the law, the right against self-incrimination, and, implicitly, the right to privacy. Some think that, like privacy, driving should be a an implicit constitutional right. Unfortunately, Colorado case law is clear that driving is not a fundamental right. See, e.g., Heninger v. Charnes, 613 P.2d 884 (Colo. 1980). This allows the DMV to regulate who can and cannot drive in Colorado.

We frequently toss around the term “driver’s license” without considering what we’re saying. Let’s break this phrase down down. “License” can be used as a verb or a noun. The verb means to give permission; the noun refers to that permission which frequently takes the form of a document. The person granting the license is called a licensor. The person receiving the benefit of the license is deemed a licensee. James Bond had a license to kill. He was a licensee. A Broncos fan is given a ticket for their license to watch a game. Pat Bowlen and the Broncos are the licensors. If you look at the back of a lift ticket to ski, you’ll see on the back that it is a license.

We all know that an unruly person at a movie or game can be escorted out. A skier that ducks a rope may have their lift ticket yanked. This is because a license can be revoked. The licensor essentially says to the licensee, “You no longer have my permission.”

The standards and process employed by the Colorado DMV in revoking a driver’s license for a DUI will be the subject of a subsequent post.

Weed Fracking

L-Town is in the news again with passage of Ballot Question 300, which bans fracking. I get that Longmont is taking a stand, but one wonders how many lawsuits the city can handle. Gov. Hickenlooper said that the state would likely sue the city again.

The same could be said for Amendment 64 (legalization of marijuana), although the risk of the Feds arresting people smoking a joint in a park are near zero. Commercial dispensaries, though, are much more at risk.

It’ll be interesting to see how these two preemption issues unfold.

Ballot Question 300: Longmont fracking ban storms to victory – Longmont Times-Call.

Founding Fathers on Election Day 2012

Today is election day. People will be up through the night awaiting the results. We’re unlikely to know who will be president until tomorrow, at the earliest. I assume the same was true for elections held at the infancy of this country. The similarities and, especially, differences between the election landscape now compared to 1787 are fascinating if you consider what the Founding Fathers would make of the world today.

Think of how each of us consumes the information that presumably goes into the matrix of how we now decide to vote. We check our Facebook accounts and are inundated with small bits of info from friends across the country (and sometimes world) as well as “sponsored” posts from various interested parties. We are influenced, albeit nominally, when our good friend changes his profile picture to support a particular candidate. We are asked by a candidate to remind our social network to vote. A quick check of the morning news on television is marred by mostly ominous and apocalyptic political ads. Maps colored in blue and red flash before our eyes constantly; a serious news story is now about the latest poll.

These campaigns know where we live, what we search for on Google or music we listen to on Spotify/Pandora, when we watch television or check the news online, and use that information to further their agenda. Some would call that manipulation, others may see that as simple human advancement. Whatever you call it, the Founding Fathers likely wouldn’t recognize many facets of our political discourse. The debate of Big vs Small Government remains intact, but the multitude of ways that discussion is conducted has grown exponentially and morphed into something of its own.

Would Thomas Jefferson have more Twitter followers than George Washington? How would Alexander Hamilton, James Madison and/or John Jay tweet? Would anonymous comments be allowed for Federalist No. 10 online? What filter would Ben Franklin use on a picture of the signing of the Constitution for Instagram? Thoughts on whether John Adams would go negative in TV ads? These questions and others are interesting to think about as we march toward the end of the current election cycle.


Update: Looks like I’m not the only one thinking about what the Founders would think of today’s election.

IRMO Wiggins: Clarifying Procedures for Subpoena Duces Tecums

The Colorado Supreme Court recently clarified the requirements and proper procedure for the issuance of subpoenas under Rule 45 of the Colorado Rules of Civil Procedure in In re Marriage of Wiggins, 2012 CO 44. A party to a lawsuit may invoke the subpoena power of the court to require the attendance of a witness at a deposition, hearing or trial, and to acquire documents from that witness. A subpoena ordering a witness to produce documents is called a subpoena duces tecum, which is a Latin phrase meaning “bring with you under penalty of punishment.”

In Wiggins, the attorney for a husband involved in a divorce obtained sensitive documents from the wife’s former employer via a subpoena duces tecum without advance notice to the wife. Because the wife and her attorney were not provided notice, they could not object to the production of sensitive and potentially confidential documents. The court in Wiggins analyzed whether a witness may produce documents in advance of the time and place specified in a subpoena duces tecum.

Many attorneys erroneously believe that they can serve a subpoena duces tecum on a witness and obtain documents before ever notifying the other party.  This common practice is especially problematic in family law cases where parties can potentially inquire into topics ranging from the adverse party’s mental and physical health or income and assets. As a result, the American Academy of Matrimonial Lawyers (“AAML”) filed an amicus curie brief in Wiggins arguing that Rule 45 prohibited a party from obtaining documents in lieu of a witness appearing at a deposition, hearing or trial except upon agreement of all interested parties. The Colorado Supreme Court agreed with the AAML and unequivocally held that documents are to be produced only at a deposition, hearing or trial specified in a subpoena duces tecum unless the subpoenaed witness and all interested parties agree to alternate arrangement.

529 College Plans

Morningstar recently issued a report for 529 college savings plans, including two in Colorado that earned a “bronze medal.” These plans are great vehicles for parents to save money for their children’s post-secondary education costs. The number “529” is in reference to the applicable IRS tax code provision. For more info on 529 plans, see here.

Morningstar Ratings for College Savings Plans

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