November 22, 2017

Archives for June 7, 2011

Colorado Supreme Court: Colorado Express Consent Statute Does Not Require Officers to Request a Driver’s Consent to Conduct a Constitutional Involuntary Blood Draw

The Colorado Supreme Court issued its opinion in People v. Smith on June 6, 2011.

Criminal Law—Express Consent—Interlocutory and Original Jurisdiction.

The Supreme Court reversed the order of the trial court suppressing the results of tests performed on blood drawn from defendant by police officers without requesting his consent following a car accident. The Court held that interlocutory review of the order was inappropriate, but nevertheless exercised original jurisdiction and held that Colorado’s express consent statute does not require officers to request a driver’s consent to conduct a constitutional involuntary blood draw.

Summary and full case available here.

Colorado Supreme Court: In Suit Against Bank Placed in Receivership, Claimant Must Exhaust Administrative Remedies to Establish State Court Jurisdiction Under FIRREA

The Colorado Supreme Court issued its opinion in In re Thomas v. Federal Deposit Insurance Corp. on June 6, 2011.

Statutory Interpretation—Financial Institutions Reform, Recovery, and Enforcement Act—Receivership—Administrative Exhaustion.

In this original proceeding pursuant to C.A.R. 21, the Supreme Court held that a claimant who has filed an action in state court against a bank that is later placed in receivership must exhaust the administrative remedies established by Congress in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) before continuing the action in state court. Where, as here, a claimant receives proper notice of the required administrative procedures yet fails to comply with them, FIRREA withdraws jurisdiction over a pre-receivership claim. Accordingly, the Court made the rule absolute and remanded the case to the trial court with directions to dismiss the claims against the receiver for lack of subject matter jurisdiction.

Summary and full case available here.

Colorado Supreme Court: Trial Courts Erred in Suppressing Defendants’ Statements by Conflating Standard for 4th Amendment Seizures with Standard Governing Custody under Miranda

The Colorado Supreme Court issued its opinion in People v. Hughes; People v. Meza-Reyes on June 6, 2011.

Suppression of Evidence—Custody Under Miranda—Fourth Amendment Seizure.

The Supreme Court determined that two trial courts suppressing defendants’ statements because of police noncompliance with Miranda did so by applying an incorrect standard, conflating the standard for Fourth Amendment seizures with the standard governing custody under Miranda. Accordingly, the Court reversed the trial court orders suppressing the evidence.

Summary and full case available here.

Shred Your Sensitive Client Information, Compliments of the DBA

This Friday, June 10, 2011, the Denver Bar Association will be providing complimentary and secure document shredding and electronics recycling. Dispose of your sensitive client and case information at this free event from 4 to 6 pm in the parking lot east of the DBA offices, located at 1900 Grant Street in Denver.

A donation of $2 per box of documents or electronic item is requested, with a limit of ten boxes and five electronic devices. All donations will benefit Metro Volunteer Lawyers.

Click here for a list of accepted electronic devices. Make sure all hard drives are wiped clean before you recycle them. Check out Hard Disk Scrubber for a free program to that end.

Please contact Heather Clark for more information about the event.

Governor Hickenlooper Signs Four More Bills into Law

On Monday, four more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills were the twenty-sixth group to emerge from the 2011 General Assembly.

  • SB 11-045
    • Sponsored by Sen. Johnston and Rep. Levy. Concerning a Streamlined Process for Securing Governmental Approval for the Siting of Electric Transmission Facilities, and, in Connection Therewith, Creating a Task Force.
  • SB 11-176
    • Sponsored by Sen. Carroll and Rep. Levy. Concerning Appropriate Use of Restrictive Confinement.
  • SB 11-184
    • Sponsored by Sen. Steadman and Rep. Ferrandino. Concerning Tax Reporting.
  • SB 11-197
    • Sponsored by Sen. Boyd and Rep. Acree. Concerning the Creation of a Girl Scouts Centennial Special License Plate.

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.

Colorado Supreme Court: Limitations Period for Multiple Misappropriations of Single Trade Secret Accrued at Time Petitioner Acquired Knowledge of First Act of Misappropriation

The Colorado Supreme Court issued its opinion in Gognat v. Ellsworth on June 6, 2011.

Uniform Trade Secrets Act—Statute of Limitations—Definition of Trade Secret.

Timothy Gognat sought review of the court of appeals’ decision affirming the district court’s summary judgment in favor of defendant Stephen Smith. The district court ruled that Gognat’s trade secret misappropriation claim was barred by the statute of limitations. The court of appeals affirmed, holding that the various acts of misappropriation alleged in the complaint constituted multiple misappropriations of either a single trade secret or related trade secrets, the limitations period for which accrued at the time Gognat acquired knowledge of defendant’s first act of misappropriation.

The Supreme Court affirmed the judgment of the court of appeals, finding both that the term “trade secret” as used in the Colorado’s Uniform Trade Secrets Act is a matter of law, to be determined by the court, and that undisputed facts demonstrate that all of the proprietary information alleged to have been misappropriated constituted a single trade secret, the misappropriation of which was known to the Gognat more than three years before filing his complaint.

Summary and full case available here.

Colorado Supreme Court: Defendant May Be in a Position of Trust, Even if Not Performing Supervisory Task at Time of Unlawful Contact

The Colorado Supreme Court issued its opinion in Pellman II v. People on June 6, 2011.

Sexual Assault on a Child by One in a Position of Trust—Supervisory Relationship.

The Supreme Court affirmed the court of appeals’ holding that there was sufficient evidence that defendant was in a position of trust when he had unlawful sexual contact with the child victim. According to CRS § 18-3-410(3.5), a person in a position of trust is “any person who is a parent or acting in the place of a parent and charged with any of the parent’s rights, duties, or responsibilities concerning the child . . . or a person who is charged with any duty or responsibility . . . no matter how brief, at the time of the unlawful act.” A defendant may be in a position of trust through an ongoing and continuous supervisory relationship with the victim, regardless of whether the defendant was performing a specific supervisory task at the time of the unlawful contact. Here, there is sufficient evidence that defendant had a supervisory relationship with the child at the time of the unlawful sexual contact.

Summary and full case available here.

Colorado Supreme Court: Liability Under Colorado Dram-Shop Statute Does Not Require that Injury Be Foreseeable Consequence of Sale or Service of Alcohol

The Colorado Supreme Court issued its opinion in Build It and They Will Drink, Inc. v. Strauch on June 6, 2011.

Dram-Shop Liability.

In this case involving an unprovoked stabbing by an intoxicated nightclub patron, the Supreme Court granted certiorari to determine whether the court of appeals erred in holding that reasonable foreseeability, an element derived from a traditional common law negligence action, may not be considered in determining whether a vendor of alcohol is liable for injuries caused by intoxicated patrons under Colorado’s dram-shop statute, CRS § 12-47-801. The statute expressly abolishes any common law action against a vendor of alcoholic beverages, adopting a general rule that the consumption of alcohol, rather than the sale, service, or provision of alcohol, is the proximate cause of injuries inflicted on another by an intoxicated person. Nevertheless, the statute also creates liability for liquor licensees by describing the limited circumstances under which there are exceptions to the rule that consumption is the proximate cause of injuries inflicted by an intoxicated person.

CRS § 12-47-801 replaces the common law proximate cause determination with specific statutory elements, eliminating civil liability for liquor licensees except when there is a willful and knowing sale of alcohol to a visibly intoxicated person and injury resulting from the intoxication. Under these circumstances, the sale or service of alcohol is the proximate cause of a plaintiff’s injuries, and a vendor of alcohol is liable for limited damages.

Because the plain language of the statute defines the criteria for proximate cause and liability without mention of foreseeability, the Court held that liability under § 12-47-801 does not require that plaintiff’s injury be a foreseeable consequence of the sale or service of alcohol. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here.

Comments Sought Regarding Reappointment of United States District Court Magistrate Judge

The United States District Court for the District of Colorado is establishing a panel of citizens to consider the reappointment of United States Magistrate Judge David L. West, whose term is due to expire on January 7, 2012. If reappointed, West will serve a new four-year term.

The duties of a magistrate judge in United States District Court include:

  1. conducting preliminary proceedings in criminal cases;
  2. trial and disposition of misdemeanor and petty offense cases; and
  3. conducting various pretrial matters and evidentiary proceedings on delegation from a district judge.

Written comments from members of the bar and the public are invited as to whether Magistrate Judge West should be recommended by the panel for reappointment by the court.

Comments may be submitted by mail to:

U.S. Courts – Human Resources Division, Attn: R Duncan, 1929 Stout Street, Suite C102, Denver, CO 80294

Comments may also be submitted via fax at (303) 335-2495 Attn: R Duncan.

Comments must be received by July 15, 2011.

Tenth Circuit: Unpublished Opinions, 6/6/11

On Monday, June 6, 2011, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Unpublished

Li Jie v. Holder, Jr.

Aduddell v. Gardner Tanenbaum Group, L.L.C.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Governor Hickenlooper Signs Dozens More Bills into Law

At the end of last week, forty-one more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills were the twenty-fifth group to emerge from the 2011 General Assembly.

  • HB 11-1014
    • Sponsored by Rep. DelGrosso and Sens. Roberts and Hudak. Concerning the Repeal of  Limiting Trigger Associated with the Child Care Contribution Income Tax Credit.
  • HB 11-1093
    • Sponsored by Rep. Bradford and Sen. Cadman. Concerning the Payment of Specific Ownership Tax on Special Mobile Machinery.
  • HB 11-1105
    • Sponsored by Rep. Acree and Sen. White. Concerning Assaults Against Medical Care Providers.
  • HB 11-1166
    • Sponsored by Rep. Murray and Sen. Aguilar. Concerning the Creation of a Type 1 Diabetes Special License Plate.
  • HB 11-1242
    • Sponsored by Rep. Ferrandino and Sen. Nicholson. Concerning the Provision of Integrated Health Care Services Pursuant to the Colorado Medical Assistance Program.
  • HB 11-1267
    • Sponsored by Rep. McCann and Sen. Mitchell. Concerning an Expansion of the Circumstances in which a Court May Order Further Restrictions as Conditions of a Protection Order Against a Defendant.
  • HB 11-1297
    • Sponsored by Rep. Murray and Sen. Cadman. Concerning the Statewide Internet Portal Authority.
  • HB 11-1307
    • Sponsored by Rep. Becker and Sen. Steadman. Concerning Recovery Audits.
  • HB 11-1324
    • Sponsored by Rep. Acree and Sen. Brophy. Concerning the Application of Provisions Governing the Financial Obligations of a Residential Nonprofit Corporation Upon Alteration of the Membership Status of a Member.
  • HB 11-1043
    • Sponsored by Rep. Massey and Sens. Steadman and Spence. Concerning Medical Marijuana, and Making an Appropriation Therefor.
  • HB 11-1268
    • Sponsored by Rep. Levy and Sen. Nicholson. Concerning Penalties for Traffic Offenses Involving Alcohol and Drugs.
  • HB 11-1303
    • Sponsored by Rep. B. Gardner and Sen. Brophy. Concerning Non-Substantive Revisions of Statutes in the Colorado Revised Statutes, and Amending or Repealing Obsolete, Inconsistent, and Conflicting Provisions of Law.
  • HB 11-1157
    • Sponsored by Rep. Casso and Sen. White. Concerning the Exemption from the Heavy-Duty Diesel Inspection Program of Heavy-Duty Diesel Vehicles Based Outside the Program Area as Part of a Fleet Registered in the Program Area.
  • HB 11-1298
    • Sponsored by Reps. Tyler and Vaad and Sen. Spence. Concerning the Creation of a Special License Plate for Craig Hospital.
  • HB 11-1072
    • Sponsored by Rep. McNulty and Sen. Morse. Concerning the Responsibilities of a Designated Representative of the Proponents of an Initiative Petition.
  • HB 11-1241
    • Sponsored by Rep. DelGrosso and Sen. Lundberg. Concerning the Circumstances in which a Nonprofit Housing Provider that Sells Low-Cost Housing to Low-Income Applicants Who Assist in the Construction of the Housing is Entitled to the Property Tax Exemption for Property Used Strictly for Charitable Purposes.
  • HB 11-1081
    • Sponsored by Rep. Brown and Sen. Schwartz. Concerning the Inclusion of Liquified Petroleum Gas Conversion Vehicles in the List of Qualified Vehicles Available for Efficient Motor Vehicle Incentives.
  • HB 11-1080
    • Sponsored by Rep. Todd and Sen. S. King. Concerning the Address Confidentiality Program.
  • HB 11-1010
    • Sponsored by Rep. Acree and Sen. Brophy. Concerning the Incidental Use of Property Owned by a Fraternal Organization or Veterans’ Organization that is Exempt from Property Tax.
  • HB 11-1250
    • Sponsored by Rep. Acree and Sen. Renfroe. Concerning a Prohibition on Ingestible Medical Marijuana-Infused Products.
  • HB 11-1323
    • Sponsored by Rep. Massey and Sen. Boyd. Concerning an Exemption from State Licensure Requirements for a Community Clinic that is a Rural Health Clinic.
  • HB 11-1002
    • Sponsored by Rep. Nikkel and Sen. Kopp. Concerning the Creation of an On-Line Database for the Department of Transportation’s Financial Information.
  • SB 11-180
    • Sponsored by Sen. Tochtrop and Rep. Looper. Concerning Authority for Taxicabs to Pick Up Passengers Outside Their Assigned Geographic Areas.
  • SB 11-085
    • Sponsored by Sen. B. Shaffer and Rep. McCann. Concerning Increasing the Enforcement of Prohibitions Against Certain Prostitution-Related Offenses, and Authorizing the Creation of a Program for Certain First-Time Offenders.
  • SB 11-134
    • Sponsored by Sen. Kopp and Reps. Murray and Vigil. Concerning the Addition of Certain Drugs to the Statutory List of Schedule 1 Controlled Substances.
  • SB 11-240
    • Sponsored by Sen. Hudak and Rep. Murray. Concerning the Implementation of Sunset Review of the Regulation of Private Occupational Schools, and Requiring the Department of Regulatory Agencies to Review the Functions of the Private Occupational School Division and the Private Occupational School Board and Scheduling a Future Repeal of the Laws Related to Regulation of Private Occupational Schools.
  • SB 11-109
    • Sponsored by Sen. B. Shaffer and Rep. Solano. Concerning the Creation of a Voluntary Contribution Designation Benefiting the Public Education Fund to Appear on the State Individual Income Tax Return Forms.
  • SB 11-206
    • Sponsored by Sen. Boyd and Rep. Bradford. Concerning the Exemption of Certain Noncommercial Mortgage-Related Activities from the “Mortgage Loan Originator Licensing and Mortgage Company Registration Act.”
  • SB 11-256
    • Sponsored by Sens. Guzman and S. King and Reps. Ferrandino and J. Kerr. Concerning Graffiti.
  • SB 11-105
    • Sponsored by Sen. Guzman and Rep. Levy. Concerning In-Home Support Services, Extending their Duration.
  • SB 11-263
    • Sponsored by Sen. Tochtrop and Rep. Becker. Concerning Clarification of the State Sales Tax Exemption for Sales of Medical Products.
  • SB 11-051
    • Sponsored by Sen. Giron and Rep. Swerdfeger. Concerning an Interception of a Person’s Winnings for the Purpose of Paying an Unpaid Debt Due to the State.
  • SB 11-088
    • Sponsored by Sens. Carroll and Lundberg and Rep. Acree. Concerning the Regulation of Direct-Entry Midwives, and Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies.
  • SB 11-193
    • Sponsored by Sen. Aguilar and Reps. B. Gardner and J. Kerr. Concerning the Disclosure of Employment Information to an Employer Regarding a Person Employed to Work with a Person with a Developmental Disability.
  • SB 11-243
    • Sponsored by Sen. Guzman and Rep. Pabon. Concerning the Repeal of the Civil Penalty for Document Fraud.
  • SB 11-264
    • Sponsored by Sen. Newell and Reps. B. Gardner and Lee. Concerning a Clarification of State Law Governing the Circumstances under which a Notice of Lis Pendens Must Be Recorded in Connection with the Filing of a Debt Security Instrument as a Substitute for the Filing of Certain Liens.
  • SB 11-272
    • Sponsored by Sens. Hodge and Aguilar and Reps. Summers and Fields. Concerning the Voluntary Contribution Designation Benefiting the Adult Stem Cells Cure Fund that Appears on the State Individual Income Tax Return Forms.
  • SB 11-187
    • Sponsored by Sen. Newell and Rep. Fields. Concerning the Continuation of the Regulation of Mental Health Professionals, and Continuing the State Boards of Psychologist Examiners, Social Work Examiners, Marriage and Family Therapist Examiners, and Licensed Professional Counselor Examiners.
  • SB 11-254
    • Sponsored by Sen. Steadman and Rep. Pace. Statutory Changes to Improve Practices for Persons Under Community Supervision.
  • SB 11-089
    • Sponsored by Sen. Jahn and Rep. Beezley. Concerning the Continuation of the Authority of the Executive Director of the Department of Revenue to Issue Written Responses Upon the Request of a Taxpayer.
  • SB 11-108
    • Sponsored by Sen. Jahn and Rep. Szabo. Concerning the Repeal of the “Identity Theft and Financial Fraud Deterrence Act.”

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.