July 19, 2019

Bills Signed Regarding Appropriating Retail Marijuana Sales Tax to Schools, Clarifying Standard for Deceptive Trade Practices, and More

On Thursday, March 15, 2018, the governor signed 15 bills into law. To date, he has signed 55 bills this legislative session. Many of Thursday’s bills involved the relocation of statutes from Title 12. Some of the other bills signed include a bill to clarify which entities are eligible to apply for special event beverage licenses, a bill appropriating retail marijuana sales tax to schools, a bill changing the date of special district elections to May every-other year, and more. The bills signed Thursday are summarized here.

  • HB 18-1027 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of the Lottery from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. Daniel Kagan. The bill creates Title 44 and relocates the sections of Title 12 related to the regulation of the lottery to Title 44.
  • HB 18-1028 – “Concerning Clarification of the Standard Required for Applications for a Court Order to Require Compliance with Investigations of Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Lois Court & Jack Tate. The bill would allow a judge to issue a court order if compliance with an investigation is necessary to investigate a deceptive trade practice.
  • HB 18-1039 – “Concerning Changing Regular Special District Elections to May of Each Odd-numbered Year, and, in Connection Therewith, Adjusting the Length of Terms Served by Directors Elected in 2020 and 2022 in Order to Implement the New Election Schedule,” by Rep. Kim Ransom and Sen. Bob Gardner. The bill moves regular special district elections to the Tuesday following the first Monday of May in odd-numbered years, rather than the Tuesday immediately succeeding the first Monday of May in every even-numbered year, starting in 2023.
  • HB 18-1087 – “Concerning Department of Public Safety Authority to Repeal Rules Relating to Defunct Boards,” by Rep. Dan Thurlow and Sens. Don Coram & Daniel Kagan. The victims compensation and assistance coordinating committee and the victims assistance and law enforcement advisory board in the department of public safety were repealed in 2009. The bill gives the executive director of the department of public safety the authority to repeal rules relating to those repealed boards.
  • HB 18-1096 – “Concerning the Eligibility of Certain Entities to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Rep. Matt Gray and Sen. Kevin Priola. The bill adds to the list of organizations authorized to obtain a special event permit to sell alcohol beverages for a limited period an organization that is incorporated under Colorado law for educational purposes.
  • HB 18-1100 – “Concerning the Continuous Appropriation of Money in the Educator Licensure Cash Fund,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill extends the continuous appropriation of money to the State Board of Education and the Department of Education (Department) for its expenses incurred in the administration of the “Colorado Educator Licensing Act of 1991” for three more years.
  • HB 18-1101 – “Concerning Modification of the Manner in which Gross Retail Marijuana Tax Revenue that is Transferred from the General Fund to the State Public School Fund as Required by Current Law is Appropriated from the State Public School Fund,” by Rep. Millie Hamner and Sen. Kent Lambert. Beginning in the 2018-19 fiscal year, the bill requires 12.59% of the gross retail marijuana sales tax revenue remaining in the general fund after a required allocation of 10% of the revenue to local governments to be transferred to the state public school fund, and continuously appropriates that revenue for the same state fiscal year in which it is transferred from the state public school fund to the department of education to help meet the state share of total program funding for school districts and institute charter schools.
  • HB 18-1140 – “Concerning Public Official Personal Surety Bonds, and, in Connection Therewith, Repealing Obsolete Provisions and Authorizing the Purchase of Insurance in Lieu of Public Official Personal Surety Bonds,” by Rep. Hugh McKean and Sen. Dominick Moreno. The bill repeals obsolete provisions related to personal surety bonds and authorizes a public entity to purchase insurance in lieu of a public official personal surety bond and states the requirements for the insurance.
  • SB 18-036 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Tobacco Sales to Minors from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12, and, in Connection Therewith, Making an Appropriation,” by Sen. Daniel Kagan and Rep. Cole Wist. The bill creates Title 44, then relocates the sections of Title 24 regarding the regulation of tobacco sales to minors to Title 44.
  • SB 18-091 – “Concerning Modernizing Terminology in the Colorado Revised Statutes Related to Behavioral Health,” by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The bill is a follow-up and clean-up to Senate Bill 17-242, which updated and modernized terminology in the Colorado Revised Statutes related to behavioral health, including mental health disorders, alcohol use disorders, and substance use disorders.
  • SB 18-092 – “Concerning Updating Statutory References to ‘County Departments of Social Services,'” by Sen. Beth Martinez Humenik and Rep. Edie Hooten. The bill modernizes outdated references in statute to “County Department(s) of Social Services,” or similar terms, to “County Department(s) of Human or Social Services.” Counties throughout the state have different ways of referring to the department in the county that does human or social services work, so it is necessary for statute to reflect that not all county departments go by one label.
  • SB 18-094 – “Concerning the Repeal of a Duplicate Definitions Section in Article 60 of Title 27, Colorado Revised Statutes,” by Sen. Beth Martinez Humenik and Rep. Edie Hooten. The bill repeals section 27-60-102.5, Colorado Revised Statutes, which is a duplicate definitions section for general provisions related to behavioral health found in article 60 of title 27, Colorado Revised Statutes. The bill leaves in place section 27-60-100.3, Colorado Revised Statutes, enacted by Senate Bill 17-242.
  • SB 18-100 – “Concerning Disclosure of Additional Mandatory Charges by Motor Vehicle Rental Companies,” by Sen. Tim Neville and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill requires a motor vehicle rental company to disclose to a potential customer, in any vehicle rental cost quote and in the rental agreement, additional mandatory charges applicable to the motor vehicle rental.
  • SB 18-103 – “Concerning the Issuance of Performance-based Incentives for Film Production Activities in the State,” by Sens. Nancy Todd & Jim Smallwood and Reps. Tracy Kraft-Tharp & Timothy Leonard. The bill strengthens the requirements necessary to earn performance-based incentives for film production activities in the state in various ways.
  • SB 18-164 – “Concerning the Repeal of Reporting Requirements for Certain Unfunded Programs in the Department of Human Services Until Such Time as Funding is Received,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill directs that reporting requirements for programs established in the department of human services that have not received funding in several years be placed on hold until such time as the program receives funding.

For all of the governor’s 2018 legislative decisions, click here.

Bills Signed Regarding Continuation of Family Medical Benefits After Death of State Worker, Creating a Crime of Cruelty to Police Horse, and More

On Wednesday, March 7, 2018, the governor signed 10 bills into law. To date, he has signed 40 bills this legislative session. The bills signed Wednesday included a bill to continue family medical benefits after the death of a state employee, a bill adding free-standing emergency rooms to Colorado’s safe haven laws, a bill creating the crime of cruelty to a working police horse, a bill removing the 30-day waiting period for importation of alcoholic beverages, and more. The bills signed Wednesday are summarized here.

  • HB 18-1010 – “Concerning Youth Committed to the Department of Human Services, and, in Connection Therewith, Requiring the Department to Report Certain Data and Adding Members to the Youth Restraint and Seclusion Working Group,” by Reps. Pete Lee & James Wilson and Sen. Don Coram. The bill requires the Department of Human Services to annually collect recidivism data and calculate the recidivism rates and educational outcomes for juveniles committed to the custody of the department who complete their parole sentences and discharge from department supervision.
  • HB 18-1024 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Racing from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill creates Title 44 and moves statutes related to the regulation of racing from title 12 to the new title.
  • HB 18-1026 – “Concerning the Nonsubstantive Relocation of the Law Creating the Liquor Enforcement Division and State Licensing Authority Cash Fund from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sens. John Cooke & Bob Gardner. The bill creates Title 44 and moves statutes creating the liquor enforcement division and state licensing authority cash fund from title 24 to the new title.
  • HB 18-1041– “Concerning Adding Certified Police Working Horses to the Crime of Cruelty to a Service Animal or a Certified Police Working Dog,” by Rep. Marc Catlin and Sen. Don Coram. The bill adds a definition for “certified police working horse” to statute and adds certified police working horses to the crime of cruelty to a service animal or a certified police working dog.
  • HB 18-1048 – “Concerning the Expenditure of Money from the Hesperus Account by the Board of Trustees of Fort Lewis College,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill eliminates the requirement that spending from the Fort Lewis College Hesperus account is subject to an appropriation by the general assembly.
  • HB 18-1105 – “Concerning the Unlicensed Sale of Vehicles,” by Reps. Larry Liston & Jovan Melton and Sen. Jack Tate. The bill clarifies that money received as fines for certain violations may be deposited in the auto dealers license fund.
  • SB 18-025 – “Concerning Modernization of Election Procedures for the Urban Drainage and Flood Control District to Conform with the Current Requirements of State Law,” by Sen. Kevin Priola and Rep. James Coleman. The bill makes several changes to statutory provisions related to flood control district elections.
  • SB 18-050 – “Concerning Including Staff of Free-standing Emergency Facilities as Part of Colorado’s Safe Haven Laws,” by Sen. Jim Smallwood and Reps. James Coleman & Marc Catlin. The bill expands Colorado’s safe haven laws to include staff members of community clinic emergency centers as persons allowed to take temporary physical custody of infants 72 hours old or younger when the infant is voluntarily surrendered by its parent or parents.
  • SB 18-124 – “Concerning the Removal of the Thirty-day Waiting Period Related to the Sale of Imported Alcohol Beverages,” by Sen. Owen Hill and Rep. Dan Pabon. Current law requires a manufacturer or importer of imported alcohol beverages to file a statement and notice of intent to import with the state licensing authority at least 30 days before the import or sale of the imported alcohol beverages. The bill removes the 30-day waiting period requirement.
  • SB 18-148 – “Concerning the Continuation of Certain Benefits Through the ‘State Employee Group Benefits Act’ for Dependents of a State Employee who Dies in a Work-related Death,” by Sens. Beth Martinez Humenik & Dominick Moreno and Reps. Polly Lawrence & Tony Exum. The bill specifies that dependents of an employee who dies in a work-related death are automatically qualified for the continuation of dental or medical benefits through the act for 12 months from the end of the month in which the work-related death occurred, so long as the dependents had dental or medical benefits pursuant to the act at the time of the employee’s work-related death.

For all of the governor’s 2018 legislative actions, click here.

Governor Signs Bill to Correct Typographical Error

On Monday, March 5, 2018, the governor signed one bill into law. To date, he has signed 30 bills this legislative session. The bill signed Monday, SB 18-105, made a correction to last session’s bill, HB 17-1367. The summary is as follows:

  • SB 18-105 – “Concerning Clarifying Changes to Provisions that were Contained in House Bill 17-1367,” by Sen. Randy Baumgardner and Rep. Dan Pabon. House Bill 17-1367 required that a state, local, or municipal agency only employ or use the results of marijuana tests if the tests were conducted by an analytical laboratory that was both certified by the state marijuana enforcement division (MED) and accredited pursuant to the International Organization for Standardization/International Electrotechnical Commission standard (international standard). The requirement that an analytical laboratory be both certified by the MED and accredited pursuant to the international standard was an inadvertent error. The intent was that an analytical laboratory could either be certified by the MED or accredited pursuant to the international standard. The bill changes the ‘and’ to an ‘or’ in order to effectuate the original intent.

For all of the governor’s 2018 legislative decisions, click here.

Bills Signed Allowing Alcohol to be Auctioned at Special Events, Amending Employer Ability to Access FPPA Plans, and More

On Thursday, March 1, 2018, Governor Hickenlooper signed 26 bills into law. To date, he has signed 29 bills this legislative session. Many of the bills signed Thursday were supplemental appropriations bills or bills moving statutes from Title 12, C.R.S., but among the rest were bills allowing the auctioning of alcohol in sealed containers at special events, amending an employer’s ability to access Fire and Police Pension Association plans, and adopting the Enhanced Nurse Licensure Compact. Summaries of the bills signed Thursday are available here.

  • HB 18-1022 – “Concerning a Requirement that the Department of Revenue Issue a Request for Information for an Electronic Sales and Use Tax Simplification System,” by Reps. Lang Sias & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the department of revenue to issue a request for information for an electronic sales and use tax simplification system that the state or any local government that levies a sales or use tax, including a home rule municipality and county, could choose to use that would provide administrative simplification to the state and local sales and use tax system.
  • HB 18-1031 – “Concerning Employer Entry into the Fire and Police Pension Association Defined Benefit System,” by Reps. Jovan Melton & Kim Ransom and Sens. John Cooke & Matt Jones. The bill allows an employer that provides a money purchase plan to apply to the board, with a single application, to cover some or all of the existing members of its money purchase plan in the defined benefit system. Current law requires the employer to apply to the board separately for each plan.
  • HB 18-1075 – “Concerning the Enactment of Colorado Revised Statutes 2017 as the Positive and Statutory Law of the State of Colorado,” by Reps. Pete Lee & Leslie Herod and Sens. Daniel Kagan & John Cooke. This bill enacts the softbound volumes of Colorado Revised Statutes 2017, including the corrected replacement volume consisting of titles 42 and 43, as the positive and statutory law of the state of Colorado and establishes the effective date of said publication.
  • HB 18-1079 – “Concerning a Requirement that the Works Allocation Committee Prepare Annual Recommendations for the Use of the Colorado Long-term Works Reserve,” by Rep. Susan Beckman and Sen. Larry Crowder. The bill requires the works allocation committee to annually submit to the executive director of the Department of Human Services, the governor, and the joint budget committee recommendations for the use of the money in the Colorado long-term works reserve for the upcoming state fiscal year.
  • HB 18-1144 – “Concerning Certain Publishing Requirements for the Department of Revenue’s ‘Disclosure of Average Taxes Paid’ Table,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill updates language regarding mailing of tax tables, and refers in general to the department’s website and also requires the department to provide the table on the software platform that the department makes available to taxpayers to file individual income taxes rather than refer to the “NetFile” link.
  • HB 18-1159 – “Concerning a Supplemental Appropriation to the Department of Education,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Education.
  • HB 18-1160 – “Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the offices of the governor, lieutenant governor, and state planning and budgeting.
  • HB 18-1161 – “Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Health Care Policy and Financing.
  • HB 18-1162 – “Concerning a Supplemental Appropriation to the Department of Human Services,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Human Services.
  • HB 18-1163 – “Concerning a Supplemental Appropriation to the Judicial Department,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Judicial Department.
  • HB 18-1164 – “Concerning a Supplemental Appropriation to the Department of Personnel,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Personnel.
  • HB 18-1165 – “Concerning a Supplemental Appropriation to the Department of Public Safety,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Public Safety.
  • HB 18-1166 – “Concerning a Supplemental Appropriation to the Department of Regulatory Agencies,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Regulatory Agencies.
  • HB 18-1167 – “Concerning a Supplemental Appropriation to the Department of Revenue,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Revenue.
  • HB 18-1168 – “Concerning a Supplemental Appropriation to the Department of State,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of State.
  • HB 18-1169 – “Concerning a Supplemental Appropriation to the Department of the Treasury,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of the Treasury.
  • HB 18-1170 – “Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes supplemental appropriations for capital construction projects.
  • HB 18-1173 – “Concerning a Supplemental Transfer of Money from the General Fund to the Information Technology Capital Account of the Capital Construction Fund for the 2017-18 State Fiscal Year,” by Rep. Bob Rankin and Sen. Kent Lambert. For the 2017-18 fiscal year, the bill transfers $2,888,529 from the general fund to the information technology capital account of the capital construction fund.
  • SB 18-019 – “Concerning an Expansion of the Duration for which the Colorado Water Resources and Power Development Authority may Make a Loan Under the Authority’s Revolving Loan Programs,” by Sens. Kerry Donovan & Don Coram and Reps. Chris Hansen & Jeni James Arndt. Current law limits the duration of any water pollution control loan to 20 years; this bill removes the 20-year limitation.
  • SB 18-027 – “Concerning the Enactment of the ‘Enhanced Nurse Licensure Compact’, and, in Connection Therewith, Making an Appropriation,” by Sens. Jim Smallwood & Nancy Todd and Reps. Tracy Kraft-Tharp & Hugh McKean. The bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.
  • SB 18-030 – “Concerning the Nonsubstantive Relocation of Laws Related to Self-Propelled Vehicles from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Chris Holbert & Daniel Kagan and Reps. Mike Foote & Yeulin Willett. The bill creates Title 44 in the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-032 – “Concerning the Nonsubstantive Relocation of Laws from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Reps. Mike Foote & Leslie Herod. The bill relocates articles 26 and 26.1 from Title 12 to a new part in Title 18, and relocates the Uniform Unsworn Declarations Act to a new article in Title 13.
  • SB 18-034 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Gaming from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. John Cooke & Lucia Guzman and Reps. Cole Wist & Pete Lee. The bill creates a new Title 44 and relocates certain statutory sections to Title 44.
  • SB 18-035 – “Concerning the Nonsubstantive Relocation of Laws Related to Gambling Payment Intercept from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Rep. Cole Wist. The bill creates Title 44 of the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-041 – “Concerning the Ability of Operators of Sand and Gravel Mines to Use Water Incidental to Sand and Gravel Mining Operations to Mitigate the Impacts of Mining,” by Sens. Don Coram & Randy Baumgartner and Reps. Lori Saine & Jeni James Arndt. The bill specifies that the groundwater replacement plan or the plan of substitute supply and the permit may authorize uses of water incidental to open mining for sand and gravel, including specifically the mitigation of impacts from mining and dewatering.
  • SB 18-054 – “Concerning a Limitation on the Amount of an Increase in Fees Assessed Against Assisted Living Residences by the Department of Public Health and Environment,” by Sen. Larry Crowder and Rep. Larry Liston. Current law requires the State Board of Health to establish a schedule of fees for health facilities, including assisted living facilities. The bill applies an inflation rate limitation to the fees for assisted living facilities.
  • SB 18-067 – “Concerning the Ability of Certain Organizations Conducting a Special Event to Auction Alcohol Beverages in Sealed Containers for Fundraising Purposes under Specified Circumstances,” by Sens. Rachel Zenzinger & Kevin Priola and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill specifically allows certain organizations to bring onto and remove from the premises where an event will be held, whether licensed or unlicensed, alcohol beverages in sealed containers that were donated to or otherwise lawfully obtained by the organization and will be used for an auction for fundraising purposes as long as the alcohol beverages remain in sealed containers at all times and the licensee does not realize any financial gain related to the alcohol beverage auction.

For a list of the governor’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment, and Court Has Jurisdiction to Review District Court’s Denial

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, January 25, 2018.

Crim. P. 32(d)—Withdrawal of Plea—Deferred Judgment —Immigration—Deportation—Ineffective Assistance of Counsel.

Defendant pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea to the possession count, arguing that his defense and immigration counsel were ineffective for failing to advise him of the clear immigration consequences of the plea. After an evidentiary hearing, the district court denied the motion.

The People filed a motion to dismiss the appeal, arguing that there was no jurisdiction to review the order denying the Crim. P. 32(d) motion. They contended that the order was not final and appealable because defendant’s motion challenged a deferred judgment (a non-final judgment) that had not been revoked when the court entered the order or when defendant filed the notice of appeal. Under Crim. P. 32(d), a defendant may challenge a guilty plea involving a deferred judgment that is still in effect. The court of appeals concluded it could review the district court’s order denying the Crim. P. 32(d) motion.

Defendant argued on appeal that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. The record supports the district court’s finding that defendant’s counsel advised him on multiple occasions that a guilty plea to a drug felony would result in deportation. The court also rejected defendant’s argument that counsel should have advised him that he would be held in custody during the removal proceeding, because counsel was not required to give this advice. Therefore, counsel’s performance was not deficient, and the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Actual Person Needs to be At Risk to Satisfy Reckless Manslaughter and Assault Elements

The Colorado Supreme Court issued its opinion in People v. Griego on Monday, January 22, 2018.

Attempted Recklessness—Attempted Reckless Manslaughter—Equal Protection.

In this case, the supreme court considered whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place “another person” at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or whether “another person” can refer to the public at large. The court concluded that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Here, because the People presented no evidence that defendant’s actions put any particular person at risk, the court affirmed the court of appeals’ judgment reversing his convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Non-Law Enforcement Evidence Need Not Be Admitted in Affidavit Form in Revocation Hearing

The Colorado Supreme Court issued its opinion in Department of Revenue v. Rowland on Monday, January 8, 2018.

Evidence—Revocation of License—Evidence of Sobriety Tests.

In this case, the Colorado Supreme Court considered whether C.R.S. § 42-2-126(8)(c) requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings. C.R.S. § 42-2-126(8)(c) provides that, in driver’s license revocation proceedings, a hearing officer “may consider evidence contained in affidavits from persons other than the respondent,” so long as those affidavits meet certain requirements, including the requirement that the affidavits be sworn to under penalty of perjury. The supreme court held that C.R.S. § 42-2-126(8)(c) does not require all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings.

Specifically, the court held that the blood alcohol content test report in this case did not have to meet the affidavit requirements of C.R.S. § 42-2-126(8)(c) for the hearing officer to consider its contents. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

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.