Let’s Talk Criminal Law- July 31, 2020

Let’s Talk Criminal Law is dedicated to answering your questions. See what Coloradans asked on July 31, 2020. (A transcript of the event is available below.)

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I’m an attorney with Robinson and Henry, a law firm. I do criminal law and civil litigation, and I have been doing these live events on Fridays where we’ve received questions from either clients or prospective clients who are asking general questions about criminal law. Just wanna remind everyone, this is not specific legal advice. There’s no way I could give specific legal advice to someone without talking to them about their situation. This is just general information.

What kind of criminal cases do you take?

The first question is somebody asking me what kind of criminal cases do I take? And a variety of them, there’s a few that I don’t take based on it needing a kind of specific expertise. But generally speaking, I take DUIs, assaultive type cases, including harassment or disorderly conduct and that can include a case that have had a domestic violence sentencing enhancer tacked on to it with DV, with domestic violence cases it’s not that domestic violence is a crime specifically. There has to be some other violation of a criminal statute underlying it. And then the prosecution proves the domestic violence, attempts to prove the domestic violence part of that charge. It would be like, for example, a charge of harassment-strike, shove, kick, or harassment insults taunts, and then the domestic violence enhancer tacked onto that. We do drug felonies, drug misdemeanors, theft cases, burglaries, et cetera. I tend to stay away from sex offense type of cases. That’s a difficult area to navigate in. And typically I’ll refer someone to a colleague of mine that specializes in that area. So it’s a complex area of law and it’s difficult to advise a client on exactly what may happen unless it’s somebody that sort of specializes in that type of practice.

Can police search your car during a basic traffic stop?

The next question is what kind of a quote reasonable suspicion does a police officer need to search your car during a basic traffic stop? Well, it’s not reasonable suspicion. This is a tricky area of law and it’s constitutional law being applied to criminal law obviously. Reasonable suspicion would be the basis for the officer contacting you in the first place. If they are going to then conduct a search that reasonable suspicion has to rise to a slightly higher standard, which is known as probable cause. So reasonable suspicion for example, is an officer observes somebody that they believe to be speeding. That gives them a reasonable suspicion that the traffic offensive speeding may be committed, and that allows them to pull someone over and detain them to investigate that potential crime, probable cause is now we’re getting to there’s facts and circumstances known to law enforcement that would justify an arrest and it’s not a very high standard. It’s a reasonably prudent law enforcement officer could believe based on what they are, what they know or think they know and think they know is critical here that a crime has been committed. To search your car, the probable cause has to be an understanding that there could be contraband, something illegal or some sort of evidence that would be, that would potentially be destroyed if they don’t procure it immediately in the vehicle. Usually what officers do during a traffic stop actually is just ask you, hey do you mind if I search your car? And if you say sure, if somebody consents to that, they don’t need to form, be able to articulate a probable cause at that point. But in order to articulate a probable cause if you refuse to allow the officer to search their car, if they think that there are drugs involved, typically they may bring one of the K-9 dogs out and see if the dog alerts on a sniff, that’ll give them probable cause. Or if they have some sort of somewhat credible information that there could be illegal drugs or weapons or something within the vehicle that would give them probable cause to search the vehicle.

What should someone do if they miss a court date?

What do you recommend someone do if they miss a court date? Well, what happens if you miss a court date is the court issues what’s called a bench warrant. And bench warrants aren’t any big secret because the idea, it’s not like an arrest warrant, where they may not tell an individual that that warrant exists. The difference being an arrest warrant they’re concerned that somebody may leave the state. With the bench warrant it means you’d already missed a court date and the idea is to get you to appear at the court date. So you’ll be able to know that there’s a bench warrant out for failure to appear, the best step is to either have you, either you if you’re handling this on your own or your attorney contact the court and ask to have it set on another court date to ask the judge to quash the warrant, rather than having to turn yourself in and bond out on that failure to appear warrant, many courts will entertain that and grant a motion like that. Some will say no, turn yourself in but a lot of judges will allow you to have that appearance reset. You contact the clerk of the court or you have an attorney file a motion. And then the basic principle is then you’re, the person who has missed that court date is in front of the judge saying, I’m really sorry, I missed that court date. No excuse, but maybe here’s the reason why. And it allows your attorney say, look if they were gonna play catch me if you can, they would not have shown up in front of you to ask you to quash the warrant. If you want, if the judge wants to post, to create a bond amount or something, they’ll typically give you till the end of the day to post that bond. If they’re not willing to do a personal or a cognizance bond based on that failure to appear. But the worst thing you can do if you miss a court date is nothing coz eventually it’s gonna bite you. That warrant will be hanging over your head. Courts are much more receptive to people that are proactive. So they don’t feel like they had to catch you.

What kind of case might be eligible for deferred sentencing?

What kinds of cases might be eligible for deferred sentencing? So what a deferred sentencing is, and it’s not deferred sentencing, it’s a deferred judgment. And I’ll explain the difference. Although the sentencing technically gets deferred as well. A deferred judgment is an agreement between a defendant and the district attorney’s office or a city attorney, any sort of prosecutor. Sorry about that folks, I’m outside. It’s a nice day out, but so the deferred judgment can be applied to a variety of cases. I mean, there’s some that the prosecutors would not entertain doing a deferred judgment on, but what a deferred judgment is, is in return for a guilty plea, the prosecution and the defense have agreed that it’s in the best interest of all parties involved and the interest of justice that this defendant be given the benefit of a deferred judgment, which means that the conviction actually does not enter the guilty plea just to kind of get set aside for a period of time, six months, a year, two years, depending on the situation. And once that deferred judgment period is successfully completed, the guilty plea is withdrawn and the case is dismissed and then it’s eligible to be sealed. Since it’s not a conviction, it’s a much simpler expedited process. It can be sealed right then and there when that deferred judgment period is successfully completed. Typically the terms of the deferred judgment are probation or some sort of counseling classes. It really depends on the facts of the case. For example, a deferred judgment to a domestic violence charge will include what we call the domestic violence protocol, which is therapy treatment classes. So DV cases are eligible for deferred sentencing, unless there’s already been some sort of a domestic violence charge in someone’s case history. Then it’s specifically, especially if there was a conviction or if there had already been a deferred judgment, statutorily there cannot be two of those. And oftentimes DA’s aren’t willing to entertain a deferred judgment when there’s some of, even if there’s an arrest. I have been able to get deferred judgements done in that situation but it’s more difficult. You can do a deferred to a theft. You can do a deferred to a DUI. DA’s aren’t willing to offer that deferred unless we’re talking about somebody with no priors and a very low BAC, Blood Alcohol Content. The thing to understand about deferred judgments it’s not up to the court. So we don’t get to ask the judge for a deferred judgment coz we think it’s fair. It’s something that the prosecution has the authority and discretion to offer. So it’s careful negotiations at times with the DA or sometimes it’s just a case that screams that this is appropriate for a deferred judgment and all the parties can agree on it fairly quickly. Oftentimes if it’s not quite that obvious in order to get the benefit of the deferred, I have to present a client who’s taking this very seriously. You know, that they’ve already taken steps to address the underlying issues either by saying that they’re seeking therapy or making restitution things along those lines.

What’s a good defense to a burglary charge?

What are some defenses to a burglary charge? This is actually the law school, former law school nerd me thinks this is kind of an interesting question, the rest of you may not agree. But what burglary is, and I’ll tell you the old Common Law. And as some of you may be aware when the United States gained its independence, it just drafted or it basically just adopted English Common Law, old English Common Law as it’s a system of laws and then applied the constitution to those Common Laws and then have since made statutes that can fill in the gaps or change the application of the Common Law. But the Common Law definition of burglary was entering the dwelling of another, with intent to commit a crime or I think specifically it was a felony therein. The language of burglary in Colorado is making some sort of an entry, it can be a business, it can be a residence and it actually can also include a vehicle, but let’s kind of stick with residents and business. So an unlawful entry, which means you were not, you didn’t have the privilege to enter, okay, with an intent to commit a crime therein. So burglary in and of itself requires that there be a proof or requires a prosecutor to prove not only was there this trespass type of entry, but there was also a mental state and intent on the part of the defendant to commit a crime in there. So even if a crime occurs after the unlawful entry, there can be a defense that there was no intent for it at the time of entry, this is something that happened later, obviously that isn’t super easy to sell, but there are facts scenarios where that can happen, where there was some sort of a confrontation that was not planned or intended. So the defense would be somebody that the entry wasn’t unlawful would be one way to start is that somebody had the right and privilege to come and go from that business or dwelling from the structure. And then the other is that there wasn’t a crime committed after that unlawful entry, if it was unlawful or at least that it wasn’t intended. So that would be the defense to a burglary charge. There kind of is a requirement that some other crime is involved once that entry happens.

What are the long-term affects of having a DUI on your record in Colorado?

What are some long-term consequences of having a DUI permanently on your record in Colorado? DUIs, at least as far as Colorado goes, any DUI conviction is always gonna be permanently on your record. There was no way to seal the DUI or expunge it which is the same mechanism. It’s always gonna be a conviction. So like the only, my understanding I think of this question is how does it affect you moving forward? So I don’t think the question is what hoops or what do I have to do to deal with a DUI conviction? It’s what does that do to me longterm? It’s gonna be on your record. Having a DUI conviction on your record, if it’s one is not necessarily the kind of thing that’s gonna keep you from getting employment, it shouldn’t keep you from getting into Grad School or College. It’s just something that you’re gonna have to address and explain. When we start getting into multiple convictions on your record, it can create a problem. So somebody with three or four DUI convictions on their record, that’s gonna show up on a pre-employment background check. And it’s gonna give that prospective employer concern that maybe I’m hiring someone with a substance abuse problem. The other thing about DUIs is that the consequences get more severe when there’s prior convictions. So a second offense DUI. First offense DUI doesn’t carry mandatory jail in Colorado. Second offense does 10 days mandatory minimum, third offense, 60 days mandatory minimum. And then a fourth, the fourth being you have three prior convictions. In any state, doesn’t have to be convictions in Colorado, by the way, any state in the country, if there’s a DUI conviction and it shows up on the criminal history report though that will be considered a prior. So a fourth offense if you’ve got three priors in Colorado, that’s a felony for a conviction. So that’s really the consequences of having that DUI. As far as it being permanently on your record collaterally, you know, I’ve had lots of clients with a DUI, DWAI conviction on the record where it hasn’t held them back but obviously it’s something that they have to address.

Can police go through your car if it’s towed?

Can police go through your car if it’s towed? Yes, absolutely it’s not even a search. It’s the same thing as if you’re taken in custody. Now it’s basically they’re allowed to search you to make sure that there’s no contraband entering the jail. Same thing with the car, the car’s towed and impounded, then they law enforcement can look through the car. It’s not even technically called a search. It’s an inventory check to make sure there’s no contraband, nothing that would put the impound company or the tow company at risk, and also in theory to cover themselves so that the inventory, what’s in the car so an individual can’t come back later and accuse law enforcement of stealing something out of the vehicle. So it doesn’t even, it’s an exception to the Fourth Amendment warrant requirement of the search. It’s not considered a search under constitutional law principles. It is considered an inventory check. So yes, if your car is towed, they can look through it.

Is it hard to vacate a conviction in Colorado?

How hard is it to get a conviction vacated in Colorado? I can’t really speak to that. I’ve never gotten a conviction vacated. And I guess what you may be talking about is, and vacate is different than sealed. So what someone’s talking about is either one, a governor’s pardon, which I haven’t attempted to accomplish yet. I believe that after 10 years, for compelling reasons, somebody could request a governor’s pardon, which would then vacate a conviction. Otherwise the only way to vacate a conviction would be to be able to establish that you didn’t know what you were doing when you entered into a plea agreement, if it was a plea agreement, if it was a actual go to trial and get convicted, then the only mechanism for that would be to appeal the conviction. And basically what’s happening if you appeal that conviction, you don’t necessarily get a new trial. You’re raising an issue where we’re saying that the trial court abused their discretion. Appellate law is a very specialized area of practice. As far as getting a conviction vacated, whether it was a guilty plea. The only way to do that, as I mentioned earlier, would be to establish that you did not knowingly, voluntarily enter into that plea agreement that you were coerced into it. The problem is, is that on all Rule 11 plea paperwork, that a defendant would be required to sign, to enter into the plea agreement. It has clear language that you know what you’re doing, that no one’s forcing you to do this, that you understand the elements of the charge. You understand the possible penalties, you understand the rights you’re giving up and that you understand what you’re doing. And then you’ll go in front of the judge and the judge will ask you questions. Do you understand what you’re doing today? Are you doing this knowingly and voluntarily? Do you understand the elements of the charge? If you have an attorney they’ll ask you, I have explained all that to you. So by entering that plea agreement, you’ve already made a record that you’re doing this voluntarily of your own volition, that you understand what you’re doing. So if you were then try to, if an individual will then try to go back and get that conviction vacated that plea paperwork and the record, because when you enter into a plea it’s recorded and it will be transcribed. If you’re trying to get the conviction vacated under Rule 35, that’s just gonna get thrown right back in your face that you knew exactly what you were doing. So getting a conviction vacated is next to impossible through that process.

And it looks like that’s everything for today folks. I really appreciate everyone tuning in. Have a great Friday, see you next week.

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