October 22, 2017

Colorado Court of Appeals: Restitution Statute Does Not Require Prosecution’s Requested Specificity for Setoff

The Colorado Court of Appeals issued its opinion in People v. Stanley on Thursday, September 7, 2017.

Traffic Accident—Unapportioned Settlement—Crime Victim Compensation Program—Restitution—Setoff—Burden of Proof.

Stanley’s automobile insurer, Geico Indemnity Co. (Geico), entered into a “Release in Full of All Claims” (release) with the victim and her husband. Under the settlement, Geico paid the victim $25,000 for all claims related to and stemming from the accident in exchange for a full and final release of all claims against Stanley and Geico. Thereafter, Stanley pleaded guilty to felony vehicular assault, driving under the influence, and careless driving. The prosecution filed a motion to impose restitution and attached a report from the Crime Victim Compensation Program (CVCP). It showed that the CVCP had paid the victim $30,000, the maximum amount allowable by statute, for pecuniary losses proximately caused by Stanley’s criminal conduct. The Court awarded Stanley a $25,000 setoff against restitution for the amount paid by Geico, and ordered him to pay the $5,000 net amount.

On appeal, the prosecution argued that Stanley should not receive a setoff for the settlement funds because the release was an unapportioned settlement that did not “earmark” the proceeds for the same expenses compensated by the CVCP, leaving open the possibility that the victim used the proceeds for losses not compensated by the CVCP. When a victim receives compensation from a civil settlement against a defendant, the defendant may request a setoff against restitution “to the extent of any money actually paid to the victim for the same damages.” For purposes of a setoff, however, the court cannot allocate proceeds from an unapportioned civil settlement agreement without “specific evidence that the settlement included particular categories of loss,” because in civil cases victims may recover both pecuniary losses covered by the restitution statute and other damages specifically excluded under the restitution statute. Because the information needed to determine whether a victim has been fully compensated or has received a double recovery is known only by the victim, once a defendant has shown that a civil settlement includes the same categories of losses or expenses as compensated by the CVCP and awarded as restitution, the defendant has met his burden of going forward, and the prosecution may then rebut the inference that a double recovery has occurred. Here, Stanley met his burden of proving a setoff, but the victim may have used some or all of the settlement proceeds for losses not compensated by the CVCP.

The order was affirmed, and the case was remanded to permit the prosecution to show that the victim did not receive a double recovery from the settlement proceeds and the CVCP payment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Findings of Inventory Search of Vehicle Need Not Be Suppressed Because Search Was Lawful

The Colorado Court of Appeals issued its opinion in People v. Camarigg on Thursday, September 7, 2017.

Driving Under the Influence of Alcohol—Impound—Vehicle—Inventory Search—Warrant—Prosecutorial Misconduct—Burden of Proof—Beyond a Reasonable Doubt—Evidence—Intent to Manufacture Methamphetamine.

After defendant was arrested for driving under the influence of alcohol (DUI), officers impounded his vehicle because it was parked in front of a gas pump at a gas station. The officers conducted an inventory search of the vehicle and discovered a sealed box containing items commonly used in the manufacture of methamphetamine. Based on those items, they obtained a warrant to search the vehicle and found additional items used to manufacture methamphetamine. Defendant moved to suppress the evidence obtained from the search and warrant. The trial court denied the motion. A jury convicted defendant of DUI, careless driving, and possession of chemicals, supplies, or equipment with intent to manufacture methamphetamine.

On appeal, defendant argued that the trial court should have excluded evidence discovered in the inventory search of his vehicle and under the subsequently issued warrant. A vehicle is lawfully taken into custody if the seizure is authorized by law and department regulations and is reasonable. Inventory searches are an exception to the warrant requirement and are reasonable if (1) the vehicle was lawfully taken into custody; (2) the search was conducted according to “an established, standardized policy”; and (3) there is no showing that police acted in bad faith or for the sole purpose of investigation. Here, the decision to impound the vehicle was reasonable, and the inventory search was conducted according to standard policy and was constitutional. Because the inventory search was constitutional, evidence obtained under the subsequently issued warrant could not have been tainted.

Defendant next argued that the prosecutor improperly quantified the concept of reasonable doubt and lowered the burden of proof by using a puzzle analogy during closing argument. The prosecutor used a puzzle analogy to convey the difference between proof beyond a reasonable doubt and proof beyond all doubt, which other courts have found permissible. Further, the prosecutor used the analogy to rebut the defense argument that evidence of defendant’s guilt was speculative. The Court of Appeals concluded there was no reasonable possibility that the prosecutor’s analogy contributed to defendant’s conviction. Additionally, the jury was properly instructed on the reasonable doubt standard. Therefore, any impropriety in the prosecutor’s analogy was harmless beyond a reasonable doubt.

Lastly, defendant contended there was insufficient evidence that he intended to manufacture methamphetamine. There was sufficient circumstantial evidence from which a rational jury could conclude beyond a reasonable doubt that defendant intended to manufacture methamphetamine.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Use of Refusal to Consent as Evidence of Guilt Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Sewick on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: DUI Suspect’s Refusal to Consent to Blood Test May Be Used as Evidence of Guilt

The Colorado Supreme Court issued its opinion in People v. Maxwell on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Blood Test Refusal in DUI Case Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. King on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Warrantless Blood Draw on Unconscious Driver Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Hyde on Monday, April 17, 2017.

Searches and Seizures—Warrantless Blood Draw— Consent to Search.

In this interlocutory appeal, the Colorado Supreme Court considered whether a warrantless blood draw conducted on an unconscious driver pursuant to Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, violates the Fourth Amendment’s prohibition on unreasonable searches. The court explained that by driving in Colorado, the driver consented to the terms of the statute, including its requirement that “[a]ny person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person’s blood.” The court concluded that the driver’s prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment; therefore, the blood draw conducted in this case was constitutional. Consequently, the court reversed the trial court’s order suppressing the blood-draw evidence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: All Motorists in Colorado Consent to Colorado’s Expressed Consent Statute by Driving

The Colorado Supreme Court issued its opinion in People v. Simpson on Monday, April 17, 2017.

Searches and Seizures—Warrantless Blood Draw—Consent to Search.

Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, provides that any motorist who drives on the roads of the state has consented to take a blood or breath test when requested to do so by a law enforcement officer with probable cause to suspect the motorist of driving under the influence. In this interlocutory appeal, the court reviewed the trial court’s ruling that an advisement accurately informing defendant of the statute amounted to coercion that rendered his consent to a blood test involuntary and required suppression of the test result. The court explained that by driving in Colorado, defendant consented to the terms of the statute, including its requirement that he submit to a blood draw under the circumstances present in this case. The court concluded that defendant’s prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment; therefore, the blood test conducted in this case was constitutional. Consequently, the court reversed the trial court’s suppression of the test result.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Refusal to Consent to Blood Test as Evidence Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in Fitzgerald v. People on Monday, April 17, 2017.

Searches and Seizures—Refusal to Submit to 12 Blood-Alcohol Testing—Admission of Refusal Evidence.

The Colorado Supreme Court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with the terms of Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, violates the Fourth Amendment. Because the use of such refusal evidence does not impermissibly burden a defendant’s right to be free from unreasonable searches, the court concluded that the use of such refusal evidence does not violate the Fourth Amendment. The court therefore affirmed the judgment of the district court.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Double Jeopardy Claims May Be Raised for the First Time on Appeal

The Colorado Supreme Court issued its opinion in Reyna-Abarca v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, the Colorado Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.

The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents.

The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the court concluded that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required.

Accordingly, the court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Correctly Evaluated Unpreserved Double Jeopardy Claim for Plain Error

The Colorado Supreme Court issued its opinion in Zubiate v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Colorado Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.

Applying those rulings here, the court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the court’s analysis differs somewhat from that of the division. Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Criminal Law

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection we are featuring the Top Ten Criminal Law Programs and Homestudies. In addition to today’s featured programs and homestudies, CBA-CLE offers several books for criminal law practitioners and many other programs. Find out more here – cle.cobar.org/Practice-Area/Criminal. And now, for the Top Ten Criminal Law Programs and Homestudies…

10. Cell Phone Privacy in the Age of Surveillance: Location Tracking, Searches, and Smart Phone Privacy
This CLE covers the basics of cell phone tracking technology, limitations on its accuracy, and strategies for cross-examining cell phone experts. It also includes a section on the legality of law enforcement searches of cell phones and strategies to keep information private. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

9. Legal Writing in Criminal Law
This program contains presentations from Robert Mark Russel of the Office of the United States Attorney on Efficient Writing, Honorable Raymond P. Moore of the United States District Court for the District of Colorado on Legal Writing and Motions Practice in Criminal Cases at the Trial Court Level, Honorable Steven L. Bernard of the Colorado Court of Appeals on “Top Ten” Observations About Legal Writing in Criminal Law Cases, Norman R. Mueller of Haddon, Morgan and Foreman, P.C., on Ethics and Legal Writing in Criminal Law Cases, Exploring Efficiency from the Perspective of Both the Reader and the Writer, Motions Practice at the Trial Court Level, and “Top Ten” Observations About Legal Writing in Criminal Law Cases. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 5 general credits, including 1 ethics credit.

8. Felony DUI: The Law and Penalties
Learn the ins and outs of Colorado’s new felony DUI law, which creates a class four felony for a forth offense and also creates new sentencing schemes and alternatives for multiple offenders. Colorado recently became the 47th state to have a felony DUI charge for multiple offenders. Not only does the new law create a felony offense for fourth offenses, but it redefines the sentencing criteria for multiple offenders and gives courts more options for punishment and rehabilitation. Learn about the intricacies of the new law as well as a general DUI law update from one of Colorado’s top criminal and DUI defense attorneys, Jay Tiftickjian. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

7. The NEW Criminal Jury Instructions AND Criminal Law Motions Practice: Criminal Law Spring Update 2015
On September 3, 2014, the Colorado Supreme Court announced the release of new Model Criminal Jury Instructions. The Colorado Supreme Court Model Criminal Jury Instructions Committee developed the new model instructions since its official creation in October 2011, and intends to keep the instructions up to date by issuing periodic supplements or new editions. The entire first half of the Spring Update is devoted to the new instructions. Not only will you hear from the Reporter of Model Criminal Jury Instructions Committee, but you’ll also hear a panel presentation on how the new instructions are working. Knowing how to craft a persuasive pretrial motion is essential to your criminal law practice, whether you sit on the prosecution or defense side of the aisle. The second half is be devoted to persuasive motions practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

6. Search & Seizure Law in Colorado: Update and Overview
Not one word of the Fourth Amendment has changed in over 200 years, but search and seizure law is constantly evolving, as new cases are added to the Fourth Amendment mosaic. Staying current on the latest developments in this area of the law can be difficult and overwhelming. This half-day seminar will give practitioners an overview of search and seizure law, while highlighting the latest decisions from the U.S. Supreme Court and Colorado appellate courts. It is designed to be useful for both experienced criminal law experts, as well as new practitioners. Each homestudy order receives a PDF copy of the CBA-CLE book, Search & Seizure Law in Colorado, as part of the course materials for this program. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

5. DUI Basics: A Nuts-and-Bolts Approach
This program is geared for anyone who practices DUI defense. It is a “nuts-and-bolts” approach with a strong emphasis on defending drug-related DUI cases. The information provided will assist attorneys who have never litigated a DUI case before, as well as the most seasoned DUI defenders. With faculty members who are considered some of the best litigators in the DUI criminal bar, as well as county court judges who can explain the intricacies of DUI and sobriety court, this seminar is certain to give you the tools to succeed when representing a client facing a driving under the influence of alcohol or drugs charge. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

4. Restorative Justice
Restorative justice laws have been on the books in Colorado for over a decade. Learn what they are, what restorative justice IS and IS NOT, and how restorative justice practices can serve you and your clients. Restorative Justice Council Members Judge Martin Gonzales, Assistant District Attorney Robert Miller (19th JD) and Public Defender Elizabeth Porter-Merrill (Appellate Courts CO) join Colorado’s Restorative Justice Coordinator, Deb Witzel to dispel myths and answer your questions. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

3. Juvenile Jurisprudence: Criminal Law Fall Update 2016
Join Colorado Supreme Court Justice Brian Boatright as he shares United States Supreme Court jurisprudence on juvenile law with you. Then renowned expert Mark Evans will discuss collateral consequences of a conviction in a juvenile case. Next, Dr. Birgit Fisher will lead a fascinating talk on how the risk-need-responsivity model has been used with increasing success to assess and rehabilitate offenders. Get insight on juvenile transfer hearings, as well as sentencing challenges and the unique ethical challenges in juvenile delinquency cases. Your day will end with a panel presentation of young people who will share their experiences about the juvenile detention system in Colorado, including the legal ramifications. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

2. DUI and DUID: Advanced Practice
Do you represent clients facing driving under the influence of alcohol or drugs charges? This program will assist seasoned DUI and DUID defenders to better represent their clients. It will also provide those of you who want to defend, or who have been asked to defend, DUI or DUID cases, with important knowledge as well as an update on major issues impacting those cases. The typical, and not so typical, nuances and skills in defending alcohol and drug-related DUI cases, will also be addressed by your faculty of experts. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

1. The Art and Science of Jury Selection: Criminal Law Spring Update 2016
The right to trial by jury in criminal cases is guaranteed by the Sixth Amendment to the U.S. Constitution, as well as the laws of every state. “Voir dire,” is Latin for “to speak the truth.” In voir dire, the judge and attorneys for both sides ask potential jurors questions to determine if they are competent and suitable to serve in the case. Most attorneys would agree there is both a science and an art to voir dire, and that your case can either be won or lost at this stage. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

Colorado Court of Appeals: Dram Shop Amendments Require Knowledge of Drinker’s Underage Status and Alcohol Consumption

The Colorado Court of Appeals issued its opinion in Przekurat v. Torres on Thursday, December 1, 2016.

Dram Shop Act—Intoxication—Knowledge—Evidence.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that C.R.S. § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party.

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage.

Przekurat next argued that the district court erred in concluding that it did not have jurisdiction to rule on his motion for reconsideration of summary judgment in favor of the hosts. The Colorado Court of Appeals agreed that the district court erroneously denied the C.R.C.P. 59 motion for lack of jurisdiction, but the error does not require reversal or a remand.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.