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.