October 18, 2017

Archives for April 2016

Colorado Court of Appeals: Denver District Court Never Acquired Jurisdiction Over Juvenile Defendant

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, April 21, 2016.

Juvenile—Direct Filing—Subject Matter Jurisdiction—Crime of Violence.

Defendant was 16 years old when, at a party, he brought the victim a drink mixed with a crushed pill, which she drank. Afterward, the victim appeared to be dizzy, stumbled, and had difficulty talking. Then defendant, along with two other male teenagers, sexually assaulted the victim. The prosecution directly filed two charges against defendant: (1) sexual assault by causing submission of the victim through the application of physical force and (2) sexual assault of the victim while he knew she was incapable of appraising the nature of her conduct. The prosecution later dismissed the first charge, and a jury found defendant guilty of the second charge. The district court sentenced defendant to eight years of sex offender specific intensive probation and 90 days in jail.

On appeal, defendant contended that the district court lacked subject matter jurisdiction to sentence him because neither offense charged in the complaint was a crime of violence under C.R.S. § 18-1.3-406 and thus did not qualify for direct filing in the district court. Because neither count was a crime of violence under C.R.S. § 18-1.3-406, the charges were not eligible for direct filing in the district court. The court of appeals held that (1) the juvenile court had exclusive jurisdiction over the charge on which defendant was tried, convicted, and sentenced in the district court; (2) the district court lacked subject matter jurisdiction; and (3) therefore, the judgment was a nullity and required dismissal.

The judgment and sentence were vacated and the case was remanded to the district court for dismissal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Applicable When Defendant’s Conduct Caused Damage Regardless of Conviction

The Colorado Court of Appeals issued its opinion in People v. Ortiz on Thursday, April 27, 2016.

Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Videos Properly Admitted as Animations, Not Simulations

The Colorado Court of Appeals issued its opinion in People v. Douglas on Thursday, April 21, 2016.

Collision—Injuries—Animation—Simulation—Evidence—Restitution.

While driving his car, defendant looked down for a moment and struck a bicyclist with his vehicle, causing her injuries. Defendant drove away, claiming he had not seen the bicyclist. A jury convicted defendant of leaving the scene of an accident, failure to report an accident, and careless driving.

Defendant appealed the judgment and restitution order, contending that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile-bicycle collision. He asserted that the videos were simulations — which are scientific evidence offered as substantive proof and must meet more rigorous foundational requirements for admission than animations, which are demonstrative evidence — and that the prosecution did not lay an adequate foundation to support the court’s decision to admit them. Defendant asserted alternatively that if the videos were animations, they were inadmissible because they were an unfair and inaccurate depiction. The Colorado Court of Appeals decided the videos were animations. The videos were prepared by a state trooper, who was an accident reconstruction specialist, to represent the trooper’s opinion about how the collision had occurred. The videos were substantially similar to the collision they depicted. The trial court did not abuse its discretion when it decided the videos were animations and admitted them into evidence as demonstrative exhibits.

Defendant also contended that the trial court abused its discretion when it ordered him to pay restitution to the insurer. The restitution amount only included the bicyclist’s lost wages, the replacement cost of her bicycle and some equipment that was damaged by the collision, and her medical expenses. The amount did not include reimbursement for pain and suffering. Therefore, the court did not abuse its discretion.

The judgment and order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1438: Requiring Reasonable Employment Accommodations for Pregnancy-Related Conditions

On April 12, 2016, Rep. Faith Winter and Sen. Beth Martinez Humenik introduced HB 16-1438Concerning the Provision of Reasonable Accommodations by an Employer for Persons who have a Condition Related to Pregnancy. The bill was assigned to the House Health, Insurance, & Environment Committee.

Under this bill, an employer shall: (1) provide reasonable accommodations to perform the essential functions of the job to an applicant or employee for health conditions related to pregnancy; (2) not take adverse action against an employee who requests or uses a reasonable accommodation; (3) not deny employment opportunities based on the need to make reasonable accommodations; (4) not require an applicant or employee affected by pregnancy to accept an accommodation that the applicant or employee chooses not to accept; (5) not require an employee to take leave if the employer can provide another reasonable accommodation for the employee’s pregnancy; (6) engage in an interactive process with the employee to determine effective reasonable accommodations; and (7) post written notice in a conspicuous place accessible to employees of the right to be free from said discriminatory or unfair employment practices. It is a discriminatory or unfair employment practice if an employer fails to comply with the provisions of this bill.

The bill defines “reasonable accommodations” by providing a non-exhaustive list of possible changes to an employee’s daily activity, but then states that an employer is not required to do any of the following: (1) hire new employees; (2) discharge an employee, transfer a senior employee, or promote an unqualified employee; (3) create a new position; or (4) provide paid leave beyond that which is provided to similarly situated employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1430: Implementing Recommendations of Governor’s Oil and Gas Task Force

On April 1, 2016, Rep. Steve Lebsock and Sen. Mary Hodge introduced HB 16-1430Concerning the Implementation of a Recommendation of the Oil and Gas Task Force Regarding the Sharing of Oil and Gas Operators’ Development Plans with Affected Local Governments. The bill was assigned to the House Transportation & Energy Committee, where it was amended and referred for Second Reading with the House Committee of the Whole. The bill was again amended on Second Reading but passed Third Reading with no further amendments. It was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee.

The Colorado Oil and Gas Conservation Commission recently promulgated several rules to implement two of the recommendations of the governor’s oil and gas task force. The bill codifies some of the essential elements of one of the recommendations.

First, the bill states a local government must register with the Commission a statement of its intent to be covered by the bill in order to be qualified to receive from oil and gas operators the information specified in the bill.

Second, each operator shall register with the Commission and with each registered local government in whose jurisdiction it has an approved drilling unit, a pending or approved permit to drill, or an application for a new or amended oil and gas location.

Third, an operator registers with a local government by: (1) complying with the registration process established by the local government; or (2) if no local registration process exists, delivering a current copy of its Commission registration to the local government.

Fourth, a registered local government may request a registered operator to provide the following information: (1) an estimate of the number of wells the operator intends to drill in the next five years; and (2) a map showing the location of the operator’s existing well sits, sites for which the operator has approved or has submitted applications for drilling, and potentially developable sites for which no application has been submitted.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1393: Requiring Warrants for Testing Assault Suspects for Communicable Diseases

On March 17, 2016, Reps. Daneya Esgar & Mike Foote and Sen. John Cooke introduced HB 16-1393Concerning Procedures for Ordered Testing for Communicable Diseases. The bill was assigned to the House Judiciary Committee.

Current law provides that a person may be required to submit to a medical test for communicable diseases if the person’s or another person’s bodily fluid came into contact with another person related to a conviction or finding of probable cause related to an assault in the first, second, or third degree. This bill repeals these provisions and substitutes a provision authorizing a court to issue a search warrant for a person’s bodily fluid, thereby requiring a person to submit blood, urine, saliva, or other bodily fluid for a test for communicable disease, if probable cause is established that: (1) a person committed the crime of assault in the first, second, or third degree; and (2) the person’s or another person’s bodily fluid came into contact with any victim of the assault, peace officer, firefighter, or emergency medical care/service provider.

If the court is satisfied that there is probable cause to believe that the grounds for the application exist, the court shall issue a search warrant, which shall: (1) identify the individual who is to give bodily fluid; (2) identify the names of any persons who sought the issuance of the order; (3) identify the related criminal offense and testing procedures; (4) identify the name of the victim of the assault, or other individual who came in contact with the person’s bodily fluid; (5) include a mandate that the person shall be detained only such time as is necessary to obtain the person’s bodily fluid; and (6) include the name and signature of the judge issuing the order. The order must be executed and returned to the court within 35 days of its issuance, and the officer executing the order shall give a copy of the order to the person upon whom it is served.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Announcement Sheet, 4/28/2016

On Thursday, April 28, 2016, the Colorado Court of Appeals issued no published opinion and 34 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 4/28/2016

On Thursday, April 28, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Martinez Garcia v. Lynch

United States v. Lancaster

Morehead v. Douglas County Court

Hutson v. State of Colorado

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Professional Paradigms New and Old (Part 6): Law Beyond Blame

rhodes(At the end of last week’s post, I promised a follow up this week. We’ll get to that next week. In the meantime, the following was just too pertinent to pass up.)

In several posts over the past couple years, we’ve looked at how technology acts as a disruptive innovator, shifting paradigms in the legal profession. I recently came across another disruptor: the biology of the brain. Its implications reach much further than, let’s say, Rocket Lawyer.

David Eagleman is his own weather system. Here’s his website — talk about creds. His short bio is “a neuroscientist at Baylor College of Medicine, where he directs the Laboratory for Perception and Action, and the Initiative on Neuroscience and the Law.” The latter’s website posts news about “neulaw,” and includes CLE offerings. Among other things, neulaw tackles a bastion of legal theory: the notion of culpability.

Incognito_Cover_EaglemanEagleman’s book Incognito: The Secret Lives of the Brain contains a long chapter entitled “Why Blameworthiness Is The Wrong Question.” It begins with the story of Charles Whitman, who climbed a tower at the University of Texas in August 1966 and started shooting, leaving 13 people dead and 38 wounded before being killed himself. He left a suicide note that included the following:

“I do not understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts… If my life insurance policy is valid please pay off my debts… donate the rest to a mental health foundation. Maybe research can prevent further tragedies of this type.”

Whitman’s brain was examined and a tumor was found in the sector that regulates fear and aggression. Psychologists have known since the late 1800s that impairment in this area results in violence and social disturbance. Against this backdrop, Eagleman opens his discussion of blameworthiness with some good questions:

Does this discovery of Whitman’s brain tumor modify your feelings about his senseless murdering? If Whitman had survived that day, would it adjust the sentencing you would consider appropriate for him? Does the tumor change the degree to which you consider it “his fault”?

On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are somehow free of guilt, or that they should be let off the hook for their crimes?

The man on the tower with the mass in his brain gets us right into the heart of the question of blameworthiness. To put it in the legal argot: was he culpable?

The law has accommodated impaired states of mind for a long time, but Eagleman’s analysis takes the issue much further, all the way to the core issue of free will, as currently understood not by moral and ethical theorists but by brain science. Incognito is an extended examination of just how much brain activity occurs beneath the level of conscious detection, in both “normal” and impaired persons. Consider these excerpts:

[T]he legal system rests on the assumption that we do have free will — and we are judged based on this perceived freedom.

As far as the legal system sees it, humans . . . use conscious deliberation when deciding how to act. We make our own decisions.

Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”).

The more we discover about the circuitry of the brain, the more the answers . . . move toward the details of the biology. The shift from blame to science reflects our modern understanding that our perceptions and behaviors are controlled by inaccessible [neurological] subroutines that can be easily perturbed.

[A] slight change in the balance of brain chemicals can cause large changes in behavior. The behavior of the patient cannot be separated from his biology.

Think about that for a moment — as a lawyer, and as a human being. The idea that our biology controls our behavior — not our state of mind or conscious decision-making — is repugnant not only to the law, but to our everyday perceptions of free will and responsibility. Tamper with free will, and a whole lot of paradigms — not just legal notions of culpability — come crashing down.

Eagleman’s discussion of these issues in Incognito is detailed and thoughtful, and far too extensive to convey in this short blog post. If you’re intrigued, I recommend it highly.

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.

Diego Hunt Appointed to 1st Judicial District Court

Hunt_DiegoOn Wednesday, April 27, 2016, the governor’s office announced the appointment of Diego Hunt to the First Judicial District Court. Hunt will fill a vacancy created by the retirement of Hon. Christopher Munch, effective June 1, 2016.

Hunt is currently Of Counsel at Holland & Hart, where he focuses his litigation practice on complex domestic and international products liability and torts disputes. He also represents clients involved in governmental compliance audits and investigations and government contract disputes, including litigation and state and federal bid protests. Hunt is a member of the Colorado Hispanic Bar Association, the Hispanic National Bar Association, the Advisory Committee on Language Access for the Office of the Colorado State Court Administrator, and is a board member for the Faculty of Federal Advocates. He received his undergraduate degree from the University of Florida and his law degree from the University of Denver College of Law.

For more information about the appointment, click here.

HB 16-1427: Exempting Multi-Serving Liquid Marijuana Products from Sales Limits

On March 30, 2016, Rep. Dan Pabon and Sen. Owen Hill introduced HB 16-1427Concerning Exempting Multi-Serving Liquid Retail Marijuana Products from the Sales Equivalency Limitation. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House floor for Second Reading. It passed Second Reading with amendments and passed Third Reading with no further amendments. The bill was assigned in the Senate to the Business, Labor, & Technology Committee.

This bill exempts a multi-serving liquid retail marijuana product from the limit on equivalency sales if the product complies with all statutory and rule requirements regarding packaging of multi-serving edibles and the product: (1) is packaged in a structure that uses a single mechanism to achieve both child-resistance and accurate pouring dosing of each liquid serving in increments equal to or less than 10 milligrams per serving with no more than 100 milligrams total per package; and (2) the dosing component is within the child-resistant cap or closure of the bottle and not a separate component.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1426: Criminalizing Intentional Misrepresentation of a Service Animal

On March 30, 2016, Reps. Dianne Primavera & Yeulin Willett introduced HB 16-1426Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading.

Federal law requires that reasonable accommodations be provided under some circumstances to individuals with a disability, and that certain housing providers must allow an individual with a disability to reside with his or her assistance animal without charging any fees or imposing conditions that would otherwise apply if the animal were merely a pet. This bill defines “assistance animal” as an animal, other than a service animal – as defined by the Americans with Disabilities Act – that qualifies for a reasonable accommodation under the federal Fair Housing Act or the Rehabilitation Act of 1973.

The bill requires the following medical professionals, when approached by a patient seeking an assistance animal, to either make a written finding regarding whether the patient has a disability (and if so, whether the need for the animal is related to that disability), or make a written finding that there is insufficient evidence to make a disability determination: (1) physicians, physician assistants, and anesthesiologist assistants (pursuant to section 1 of the bill); (2) nurses (pursuant to section 2 of the bill); and (3) psychologists, social workers, clinical social workers, marriage and family therapists, licensed professional counselors, and addiction counselors (pursuant to section 3 of the bill). A medical professional shall not make a disability determination unless the medical professional: (1) meets with the patient in person or by telephone; (2) is sufficiently familiar with the patient and the disability; and (3) is legally and professionally qualified to make the determination.

The bill creates the class 1 petty offense of intentional misrepresentation of entitlement to an assistance animal, which is committed if (1) a person intentionally misrepresents an animal in his or her possession as an assistance animal for the purpose of obtaining any of the rights or privileges granted by law to persons with disabilities; and (2) the person knows that the animal is question is not a an assistance animal with regard to that person, or the person does not have a disability. A written disability determination made pursuant to the bill is an affirmative defense to the offense established by the bill, while a lack of such a finding is not proof that the offense occurred. If convicted, the defendant must pay: $350-$1,000 for a first offense; $600-$1,000 for a second offense; and $1,000-$5,000 plus community service for a third offense.

A district court may order the conviction record sealed if: (1) the defendant files a petition and pays the filing fee; (2) the defendant’s first offense was at least three years prior to filing the petition; and (3) the defendant has not had a subsequent conviction for the offense.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.