Wednesday, April 1, 2020

Does a pandemic excuse performance of a lease or other contract?

The short answer is Maybe.

Contract law generally seeks to enforce the parties' intent.  For example, parties to a lease agree that in exchange for paying rent the tenant temporarily is entitled to the premises.  Civil courts are available to enforce the parties' rights and responsibilities in the event of a breach (failure to perform).

"Impossibility of performance" is a defense to a breach of contract claim.  In Colorado for example (and typical of most jurisdictions), the doctrine precludes legal responsibility for breach of contract where (1) the defendant's (say, the tenant's) performance of her promise was made impossible as a result of (among other things) an "Act of God" (natural disaster or similar - like a pandemic?), (2) the tenant could not have reasonably foreseen the event, and (3) the tenant did not cause the event.

What is considered "impossible?"  Impossible here means "the contract cannot be performed physically or without violating the law or without incurring extreme and unreasonable difficulty, expense, or risk of injury or loss to persons or property."  Colorado Civil Jury Instruction 30:24.

If the tenant timely gave notice of (and later as necessary proved) impossibility of performance, it might excuse rent payment but not entitle her to remain on the premises - leaving her with the very practical problem of finding another place to live - or automatically result in the mythical security deposit refund.

A basis "of the doctrine of impossibility is the unconscionability of insisting on strict performance [of the lease or other contract] in the light of radically changed circumstances."  Contracts, by Calamari and Perillo, p. 509 (West 1982).  And in these strange times, Who can say how things will go.

Indeed, every situation is different and consulting an experienced attorney wisely is recommended before proceeding in legal matters.  -Sanderson Law, P.C., 303-444-8846.

Wednesday, February 5, 2020

Clearing up an arrest warrant

An arrest warrant is a court issued document directing law enforcement to take into custody for alleged crimes the person named, pending bail and/or an appearance before a judge.  Custody means the local jail.  

Warrants can issue without the suspect knowing.  Often the warrant remains in effect until for example the person is pulled over and notified (possibly issued a summons) or picked up during a routine traffic stop or showing his/her passport for a flight.  The more serious the crimes listed in the warrant, the more likely police actively will be looking for the suspect and arrest him/her anywhere anytime found.  Arrest warrants can lead to searches of the person and/or property and related property seizure (and even forfeiture proceedings).

Calling the clerk of the court believed to have issued a warrant, the local jail, or the local sheriff's office will reveal whether a warrant is pending, the criminal charges, and what (if any) bail bond has been set.  Assuming there is a warrant, best to have the person turn himself/herself in ASAP, early in the morning, early in the week.  This will eliminate the chance of being picked up at an otherwise especially inconvenient time, and maximize the chance of not having to spend a night or weekend in jail.

The turning-in process typically goes like this:  The person walks into the local jail facility and tells reception he/she is there to clear up a warrant.  An officer/deputy will then escort him/her back into a processing room for identification, fingerprints and photographs.  The person is then held at the facility until the bond is squared away and a court date set.  At best it can take an hour or half a day, depending on how busy they are, how staffed they are, how lazy they are, their paperwork requirements etc.  Worst case scenario could mean remaining in custody until brought before a judge either at the jail or the courthouse, or indefinitely if no bail is allowed.  

Try calling the jail ahead of time to learn more about how long its process takes, the nature and amount of any bail bond, and any other particulars.  Other than identification, do not bring anything else.  Do not discuss the case or try to explain anything!  You are there only to clear up the warrant and get your case going.  If you have a lawyer or are in the process of getting one tell the jail personnel that right away.  Keep your lawyer updated.

Warrants don't just go away.  They need to be cleared up, the sooner the better, including so that the underlying criminal charges can be addressed and to avoid unwanted searches and seizures etc.  

Thursday, September 19, 2019

DUI Arrest and Charging Process

DUI Arrest and Charging Process

(from a June 2019 Colorado Division of Criminal Justice report per Colorado House Bill 17-1315, pp. 22-24)

“Generally, an individual is stopped by a [police] officer for a traffic infraction and the officer [claims he/she] observes signs of impairment or recent substance use. Examples of initial observations can include the smell of alcohol or cannabis, the sight of open containers, slurred speech, slowed reaction, or failure to follow instructions. 

Once an officer notices an initial sign of impairment and [believes he/she] has probable cause to suspect impairment, then he/she may ask the individual to voluntarily perform a battery of psychophysical tests and, potentially, a preliminary breath alcohol test (PBAT) if alcohol is the suspected substance of impairment. If other drug impairment is suspected, then the arresting officer may call a [so called] Drug Recognition Expert (DRE) to assist or proceed with toxicological exams.

Under Colorado’s Expressed Consent law, “any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state” is required to provide a chemical sample or lose their license upon refusal if the arresting officer has reasonable grounds to suspect impairment.  The arresting officer will provide the person with a choice of a breath or blood test if alcohol is the suspected impairing substance. Once the choice is made, the person cannot renege and choose the other test.

If the individual has a breath alcohol test result at or above 0.08 or refuses the test, the person’s license is surrendered to law enforcement and the individual has seven days to request a hearing by the Division of Motor Vehicles. However, if the driver chooses a blood test or the officer has reasonable grounds to suspect drug-related impairment and requires a blood test, then the license is not automatically surrendered because the results of a blood test are not readily available. Generally, if the PBAT result is above the per se limit [0.08%), the officer may choose not to test for additional drugs as this is costly [and they likely have enough information for a conviction anyway].

Two possible paths exist when a legal case is initiated.

Misdemeanor.  When the case is being charged as a misdemeanor, the arresting officer completes the Uniform Summons and Complaint form that is generated by the law enforcement agency when the defendant is arrested. The original copy is filed with the court, and copies are given to both the defendant and the district attorney’s (DA’s) office.

[As in any prosecution] [t]he DA can add, amend or dismiss charges, either as part of plea agreement or because such actions better reflect the facts of the case. Because the case is a misdemeanor, the defendant is not entitled to a preliminary hearing. Rather, the defendant will be advised of his/her rights by the judge either while in jail or, if he/she is released on bond before seeing a judge, when he/she returns to court. Thereafter, the case will be set for either an appearance of counsel (for the defendant to hire a lawyer or apply for the services of a public defender) or an arraignment (where the defendant will enter a plea of guilty or not guilty).

If the defendant enters a “not guilty” plea, a trial date will be set and, most of the time, a date to litigate constitutional and/or evidentiary motions will be set prior to trial. If the defendant enters a guilty plea (usually as part of a plea agreement), the court may sentence the defendant immediately or, more likely, will set the case for a sentencing hearing and direct the probation department to meet with the defendant and prepare a pre-sentence investigation report [known as a PSI] in time for the sentencing hearing [usually at least 6 weeks later].

Felony. If the case is being charged as a felony, the law enforcement officer will arrest the defendant and submit a Warrantless Arrest affidavit to the court and to the DA’s office. The judge will advise the defendant of his/her rights, set a bond, and set a return date for filing of charges. If the defendant is unable to post bond, this date will be within three working days. If the defendant is able to post bond, a later date may be set.

If the DA determines that misdemeanor charges are appropriate, a misdemeanor complaint will be filed, and the case will thereafter be treated as a misdemeanor. Otherwise, the case will continue to be treated as a felony.

Once the defendant obtains or waives counsel, the case will be set for a preliminary hearing in the county court. Meanwhile, the DA and the defense attorney may negotiate an agreement. If they agree to a misdemeanor, the preliminary hearing will likely be vacated and a date(s) for entering a plea and sentencing will likely be set in the county court. If they agree to a felony, the case will be bound over to the district court for an arraignment where the defendant will enter a plea.”

x x x

Monday, September 16, 2019

10 stats about DUIs

10 stats about DUIs

        In June 2019 Colorado's Division of Criminal Justice reported to the Colorado General Assembly “specific information relating to,” among other things, alcohol driving tickets (generally the report uses "DUI" to mean either driving under the influence or the lesser while ability impaired) in 2017 (the most recent data).  Here are some of the many interesting facts/statistics:

1.  In that year, there were 26,454 court cases filed statewide with at least one DUI charge (down from 27,244 in 2016).

    2.  Nearly 90% resulted in guilty, with 10% "dismissed."  On average, the time elapsed between case filing and disposition was 173 days.  (For reference, according to the National Association of Criminal Defense Lawyers, "more than 97% of [all] criminal cases [resolve] by plea...."  See the NACDL's Champion magazine, August 2019, p. 17.) 

3.  2/3rds of the cases involved a blood or breath test.

4.  There is a slightly lower "guilty" rate for cases with no blood or breath test (85.2% no test vs. 89.7% with test).  11.8% of cases without a test were dismissed compared with 8.6% with a test.  1.6% of all non-test cases ended in not guilty (categorized in the report as "dismissed, not guilty, diversion, and not proven") versus 0.4% with a test.  

5.  Males 18-20 years old had the highest rate of DUIs per population (curious to the extent they are age prohibited from drinking in the first place).  Overall, males made up nearly 75% of DUI defendants.

6.  Over 1/3rd of all cases involved at least one prior DUI or DWAI.  Nearly 7% had three or more priors.

7.  Cases with no priors averaged a blood alcohol content test result of 0.157% (by statute the DWAI threshold is .05% and the DUI threshold is .08%).  Those with three or more priors averaged 0.191%.

8.  The three most common additional charges associated with DUI were careless driving, lane usage violation, and failure to display proof of insurance.  (Colorado's Division of Highway Safety 1989 "DUI Enforcement Manual" states that, at night, turning with a wide radius and straddling the center or lane marker are the "driving mistakes" most indicative of driving under the influence.) 

9.  DUI cases involving prescription drugs had a lower proportion of guilty, at 61.3%.

10. Most DUI cases (nearly 75%) do not involve a crash.

    Cops typically do not screen for other substances once alcohol over 0.08 is detected (suspected) because, according to the report, they “generally have enough evidence to reliably achieve a conviction.”

        See SLPC’s website “Links and Resources” for the link to the complete 84-page report.


Wednesday, April 17, 2019

Circumstantial Evidence and Bigfoot

     As the jury instruction says, "there are two types of evidence from which you may properly find the truth as to the facts of a case.  One is direct evidence.  The other is circumstantial evidence, that is, the proof of facts from which other facts may reasonably be inferred."

     Prosecutors are quick to point out "the law makes no distinction between direct and circumstantial evidence," although prior to 1973 in Colorado (and most jurisdictions) there was a distinction.  That year the Colorado Supreme Court (following then recent federal case law) changed the law, although two justices disapproved dropping the "long established … protection against the conviction of an innocent person upon wholly circumstantial evidence."  People v. Bennett, 515 P.2d 466, 471 (Colo. 1973) (an early drug war case when courts unfortunately began equating justice with convictions).  

     Prosecutors often give the example of footprints in the snow as circumstantial evidence someone has walked by.  Direct evidence of that fact of course would be an eyewitness.

     Defense attorneys try to explain that circumstantial evidence is not as good as direct evidence.  This is especially difficult to do since jurors reasonably think the lack of distinction as instructed makes both types of evidence equally good, when really it is supposed to mean both types are equally good or bad.

     Take the footprint example - they don't necessarily tell you when, or who, or why someone walked by - or if they were going forward or backwards, carrying something or someone, whether someone followed in them, etc., etc.  An eyewitness could tell you more of those things.

     To experienced defense attorneys, the more a prosecutor talks about circumstantial evidence the weaker the prosecution's case.

     Remember this:  circumstantial evidence is used to prove the existence of Bigfoot (footprints), the Easter Bunny (chocolate eggs in your backyard) AND Santa Claus (presents under the tree).  It is also used to convict the innocent.

     So, when you hear someone talking about circumstantial evidence proving, or confirming or suggesting something, be wary.

Wednesday, September 5, 2018

7 tips to be a more successful contractor

     We've dealt with many contractors over the years - including defending and prosecuting them in disputes and lawsuits around the country.  Here are 7 tips to help avoid trouble and be more successful:

1.  Put it in writing.  Be it a formal contract, a summarizing letter agreement, or confirming email(s), make sure the essential terms of the relationship between you and your client/customer are memorialized in writing.  At a minimum include start and completion dates (if its a best estimate, call it that), price and payment schedule, who pays costs and when, who to contact and how if there are questions or problems,  and the procedure for making changes to the project.  If it ain't in writing, it ain't.

2.  Provide status reports.  Periodically and routinely let the client know how work is going and things generally are progressing.  Emails and phone calls are best.  Give them the good, bad and ugly so as realistically to manage expectations.  Consider providing in writing a midway "half-time report," summarizing what's been done, paid for, what remains, changes to completion dates, etc.

3.  Lead from the front.  Show up frequently and set a good example.  Nothing beats enabling the client (and your own employees and workers) to see you - the main person, head honcho, owner etc. - on the job site, especially doing some of the physical work.  Leave your phone in the truck.

4.  Keep your promises and follow through.  Everything you say to a client (or an employee) sounds like or will be viewed as a promise, so communicate and act accordingly.  Things can derail fast when someone thinks you are not delivering.  Follow through without having to be nagged about it.

5.  Clean up.  Leaving a mess means leaving the job unfinished.  Clean up as you go and don't wait until the very end (or worse, to be told to clean up).  This is a good step to combine with #3 above.

6.  Accept responsibility.  Fix problems, discussing up front who should pay for it or share in the cost if other than you.  Make things right promptly.  Don't blame your employees or workers.

7.  Communicate.  Keep the client informed, even if its just a quick text message.  For example, if you need to reschedule a work day, an employee is sick, you are out getting materials, you received their installment check, etc.  Silence breeds suspicion and "worst case scenarios."  Frequent, timely communication is the single most important tip for helping ensure smooth relationships, repeat business, and referrals.

                                                                      * * *

    If you need help, call us here at Sanderson Law, P.C.  We've been helping people and businesses for nearly 30 years.  303-444-8846.

Friday, February 23, 2018

More gun control?

     In a perfect world there would be no guns, or violence.  In reality, in the U.S. alone there are more guns than people.  Alcohol prohibition failed.  Drug laws failed.  Countless laws regulate guns already.  "Gun free zones" are the most dangerous places in the nation.  Police can or will only do so much.  So, to see if you really support more so-called "sensible gun control," take this short quiz.

1.  If you and your family were locked in a room with 100 complete strangers, and only one person in the room had a gun, would you want it?

2.  If you were locked in the same room and knew others may have guns, would you want one, and if so, would you want the ability to shoot a lot of bullets or only a few?

3.  If you lived in a "high crime" area and were against having guns in the home, would you agree to keep a sign in your front yard saying your home was gun free?

4.  If your answer to #3 was yes, would you agree to have the police periodically search your home (and computer and cell phone etc.) to make sure you had no guns, at their discretion, or based on a neighbor's tip?

5.  Who do guns help more - the physically strong or the physically weak?

6.  When you were growing up, were any of the guns in your house used to shoot another person?

7.  Do criminals obey the laws they break?

8.  Do rich people and people in power - many of whom have bodyguards who carry guns - deserve more protection than you and your family?

9.  Can you think of any time in recent history - say the last 100 years -  where bad people with guns oppressed good people without them?

10. If you wanted freedom and security for you and your family, how would you change the 2nd Amendment to ensure both?

     There are no right or wrong answers - just sensible ones.  Thank you for participating.