August 20, 2019

Archives for February 3, 2015

Colorado Court of Appeals: DUI Is Not Lesser Included Offense of DUI Vehicular Homicide

The Colorado Court of Appeals issued its opinion in People v. Barry on Thursday, January 29, 2015.

Motor Vehicle Accident—Intoxication—Warrant—Blood—Hearsay—Cross-Examination—Vehicular Homicide—DUI—Merger.

Defendant was traveling the wrong direction on a divided highwaywhen her vehicle collided with another vehicle. The other driver, L.D., was killed on impact, and two other people, J.M. and M.B., were injured when defendant’s car spun and hit their vehicle. A test of defendant’s blood revealed a blood-alcohol content (BAC) of .219, well over the legal limit. Defendant was convicted of DUI vehicular homicide in the death of L.D., reckless vehicular homicide in L.D.’s death, DUI, driving with excessive alcohol content, and third-degree assault as to J.M.

On appeal, defendant contended that the trial court erred in denying her motion to suppress the BAC results because her blood was obtained without a warrant and the police lacked probable cause. At the time defendant’s blood was drawn, the police knew that defendant had been traveling the wrong direction on the highway and that she had consumed a drink before the accident. Further, defendant’s speech was slow and slurred, her eyes were red and watery, and her statements at the scene were inconsistent with the evidence. Therefore, the police had probable cause to obtain her blood by a forced blood draw. In addition, because alcohol dissipates quickly in the blood and two hours had already elapsed since the accident, exigent circumstances existed. Finally, the officers conducted the blood draw in objectively reasonable reliance on then-binding appellate court precedent. Consequently, the trial court did not err in denying defendant’s motion to suppress the BAC results.

Defendant asserted that the trial court violated her right to cross-examination under the Confrontation Clause when it admitted evidence that her blood was drawn in a medically acceptable manner without requiring the testimony of the EMT who drew her blood. Assuming that the EMT’s report was hearsay and it was error for the EMT not to testify, admission of the certification by the EMT that she drew the blood by venipuncture did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of defendant’s conviction. Therefore, any error was harmless.

Defendant contended that her conviction for reckless driving vehicular homicide must be vacated because it merges with DUI vehicular homicide. Because these charges are alternative ways of committing the single crime of vehicular homicide, the trial court erred in imposing two convictions. Defendant’s conviction for reckless vehicular homicide was vacated.

Defendant further contended that her DUI conviction must merge into her DUI vehicular homicide conviction because DUI constitutes a lesser included offense of DUI vehicular homicide and, thus, imposing both convictions violates double jeopardy principles. Many of the vehicles included under the criminal code’s definition of motor vehicle, such as airplanes or boats, are not included under the traffic code’s definition of motor vehicle because those vehicles are not designed for travel on and are not commonly used for transport over public highways. Thus, an inebriated individual who causes the death of another while operating a vehicle not listed in the DUI statute may be convicted of DUI vehicular homicide, but not convicted of DUI. Therefore, DUI is not a lesser included offense of DUI vehicular homicide and defendant’s argument for merger fails.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Unemployment Taxes Not Required Where Workers not “Employees” for CESA Purposes

The Colorado Court of Appeals issued its opinion in Whitewater Hill, LLC v. Industrial Claim Appeals Office on Thursday, January 29, 2015.

Agricultural Work—Taxes—Exempt—Colorado Employment Security Act—CRS § 8-70-120(1)(a).

Petitioner Whitewater Hill, LLC (Whitewater) operates a small vineyard and winery. Following an audit, the Colorado Department of Labor and Employment (Department) issued a liability determination concluding that agricultural work performed by certain workers for Whitewater amounted to covered employment and that Whitewater must pay taxes on amounts it paid those workers. The hearing officer concluded that the workers’ services were not employment, but rather exempt agricultural labor. Therefore, Whitewater was not required to pay taxes on the amounts it paid the workers. The Industrial Claim Appeals Officeconcluded that the workers’ services constituted covered employment.

On appeal, Whitewater contended that the workers’ services were exempt agricultural labor under the Colorado Employment Security Act(CESA) and that the Panel misinterpreted CRS § 8-70-120(1)(a). CRS § 8-70-120(1)(a) provides that during the current or preceding year, when a putative employer employs ten or more agricultural workers within each of twenty different weeks, the workers’ services constitute employment. Here, because Whitewater had employed ten or more agricultural workers in only four different weeks from 2011 through the first quarter of 2013, the workers’ services were not “employment” under CRS § 8-70-120(1)(a). Consequently, Whitewater was not required to pay unemployment taxes on amounts it paid the workers. The order was set aside and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Interlocutory Review Dismissed Because No Question of Law Involved

The Colorado Court of Appeals issued its opinion in Rich v. Ball Ranch Partnership on Thursday, January 29, 2015.

Contract—Question of Law—Interlocutory Appeal—CRCP 56(h)—CAR 4.2(b).

This case involves a dispute over operation of the Ball Ranch Partnership. Petitioners moved for a determination of a question of law pursuant to CRCP 56(h), asking the court to interpret a section of the partnership agreement.

CRS § 13-4-102.1(1) and CAR 4.2(b) authorize the Court of Appeals to allow “an interlocutory appeal of a certified question of law” in a civil case, if the lower court “certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation” and “[t]he order involves a controlling and unresolved question of law.” Although the lower court certified this case for immediate review, a typical issue of contract interpretation, such as the issue in this case, is not such a question of law within the meaning of CRS § 13-4-102.1 and CAR 4.2. Because this case does not present any abstract or pure question of law underlying the district court’s interpretation of the contract, the petition was dismissed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

Tenth Circuit: Panel Rehearing Granted on Limited Issue

The Tenth Circuit Court of Appeals issued its opinion in Martin K. Eby Construction Co., Inc. v. OneBeacon Insurance Co. on Tuesday, February 3, 2015. The Tenth Circuit reissued the opinion in response to Kellogg Root & Brown’s Petition for Panel Rehearing. The panel granted rehearing as to proposition IV in the rehearing request and amended the opinion accordingly. For the CBA CLE Legal Connection summary of the original opinion, click here.

Tenth Circuit: Unpublished Opinions, 2/3/2015

On Tuesday, February 3, 2015, the Tenth Circuit Court of Appeals issued two published opinions and nine unpublished opinions.

United States v. Chapman

Miller v. Scott

United States v. Castillo-Arellano

Lawrence v. Oliver

Banks v. American Baptist Churches

Fouts v. Express Recovery Services, Inc.

Judy v. Obama

Druley v. Patton

Bejar v. McDonald

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