July 18, 2019

Archives for March 5, 2019

Colorado Court of Appeals: Express Consent Statute Does Not Require Paramedic Drawing Blood Sample To Be Directly Supervised by Physician at Time of Draw

The Colorado Court of Appeals issued its opinion in Neppl v. Department of Revenue on Thursday, February 21, 2019.

Driver’s License Revocation—Express Consent—Supervision of Blood Draw.

A police officer stopped defendant’s vehicle after he twice failed to use his turn signal. The officer noticed signs of intoxication and defendant admitted to drinking four beers. Defendant failed to satisfactorily perform voluntary roadside maneuvers and the officer advised him of his options under the express consent law. Defendant chose a blood test, which showed a blood alcohol content of .188 grams of alcohol per 100 milliliters of blood. The Colorado Department of Revenue subsequently issued defendant a notice of license revocation. Defendant requested a hearing, and the hearing officer sustained the revocation. The district court affirmed.

On appeal, defendant argued that the statute requires on-the-spot supervision, and the paramedic’s supervisor was not present and supervising him when he conducted the blood draw. Under the plain language of the express consent statute, C.R.S. § 42-4-1301.1(6), a paramedic does not have to be directly supervised by a doctor at the time of the blood draw. Also, the record established that the paramedic was supervised by a doctor. Here, the paramedic was authorized to draw defendant’s blood. Even assuming the statute did require a doctor’s supervision of a paramedic, “under the supervision” is not synonymous with “on-the-spot” supervision. Further, even if the blood draw did not strictly comply with statutory requirements, such deficiency would go to the weight of the test results, not the admissibility.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

The Colorado Court of Appeals issued its opinion in People v. Melnick on Thursday, February 21, 2019.

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Duplicitous Charges Violate Equal Protection Clause Where Underlying Conduct Identical

The Colorado Court of Appeals issued its opinion in People v. Slaughter on Thursday, February 21, 2019.

Equal Protection—Felony Strangulation—Charging Options.

The prosecution charged defendant with second degree assault by strangulation under C.R.S. § 18-3-203(1)(i) for allegedly strangling the victim with his hands. The People later moved to add a new count under the crime of violence sentencing statute, C.R.S. § 18-1.3-406(2)(a)(I)(A), based on their assertion that defendant used his hands as a deadly weapon. The trial court dismissed the charged sentence enhancer as violating defendant’s equal protection rights. The People filed this interlocutory appeal.

Under the Colorado Constitution, if criminal statutes provide different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection unless there are reasonable differences between the proscribed behaviors. A prosecutor charging an accused with felony strangulation has multiple charging options under the Colorado criminal statutes. The crime can be charged under the first degree assault statute, C.R.S. § 18-3-202(1)(g), which requires proof that the accused caused serious bodily injury to the victim.If the prosecution does not want to prove serious bodily injury, it can charge the accused under the second degree assault statute, C.R.S. § 18-3-203. This statute has two charging options, (1)(b) or (1)(i), neither of which would require proof of serious bodily injury. Under (1)(b) proof of use of a deadly weapon is required. Unless charged with a crime of violence sentence enhancer, a strangulation charge under subsection (1)(i) would not require proof of use of a deadly weapon. The penalty available for strangulation charged under (1)(i) if charged as a crime of violence under C.R.S. § 18-1.3-406(2)(a)(I)(A) is substantially more severe than if an accused is charged under (1)(b), even though both would require proof of use of a deadly weapon.

Though prosecutors have discretion in charging decisions, the prosecution is not permitted to charge an accused in a way that would result in an equal protection violation if the defendant were found guilty and sentenced to a harsher penalty than another accused might receive for identical assault conduct.Here, the combination of the prosecution’s charge against defendant under C.R.S. § 18-3-203(1)(i) and the crime of violence sentence enhancer under C.R.S. § 18-1.3-406(2)(a)(I)(A) renders these statutory provisions unconstitutional as applied to defendant. Thus, the prosecution’s motion to charge defendant with a crime of violence sentence enhancer should have been denied, and the trial court did not err.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 3/4/2019

On Monday, March 4, 2019, the Colorado Supreme Court issued one published opinion.

People v. Travis

The summary of this case is forthcoming.

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, 3/4/2019

On Monday, March 4, 2019, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Glaser v. City and County of Denver

Hansen v. Salt Lake City Corporation

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