June 18, 2019

Colorado Court of Appeals: Specific Victim or Victims Must Be Named to Support Assault and Manslaughter Charges

The Colorado Court of Appeals issued its opinion in People v. Griego on Thursday, March 26, 2015.

Driving Under the Influence—Attempted Reckless Manslaughter—Attempted Second-Degree Assault—Evidence—Victim.

On December 26, 2005 and October 7, 2006, defendant was observed operating a motor vehicle while intoxicated. On both of these occasions, he was issued a summons for driving while under the influence of alcohol (DUI). Although the investigating officer provided a detailed report to the District Attorney’s Office indicating that it would not be appropriate to file any additional charges in these cases, it nevertheless charged defendant with attempted reckless manslaughter and attempted second-degree assault, both felonies. Over defendant’s objections, the trial court permitted the prosecution to present evidence under CRE 404(b) that defendant had previously been arrested for DUI six times between June 20, 1992 and September 30, 2001, which was the sole basis for the additional charges. He was convicted on both counts.

On appeal, defendant contended that the prosecution failed to present sufficient evidence to show that “another person” was put in danger by his behavior in either incident. The manslaughter and second-degree assault statutes both require a substantial risk to “another person” and the likelihood that “another person” will die or receive serious bodily injury. To secure a conviction under CRS §§ 18-3-104 and -203, therefore, the prosecution must establish that the defendant’s behavior placed a discernible person at substantial risk for likely death or serious bodily injury. It is insufficient merely to establish that the defendant placed any and all members of the public in his or her vicinity at risk. Here, there is no evidence in the record from which a reasonable jury could find that defendant’s driving on either date jeopardized or threatened any oncoming traffic or individuals. Accordingly, the trial court erred in denying defendant’s motion for a judgment of acquittal as to both counts.

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

Tenth Circuit: Substantial Upward Variance from Sentencing Guidelines Justified by Several Factors

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lente on Friday, July 18, 2014.

Camille Lente consumed between 13 and 19 beers and decided to drive. She veered into oncoming traffic and caused a serious accident in which three people died and both drivers were seriously injured. Her advisory Guidelines range was from 46 to 57 months, but the trial judge sentenced her to 216 months. She appealed, and a divided panel of the Tenth Circuit remanded for more evidentiary findings regarding the variance. On remand, the district court heard testimony and victim impact statements, and concluded a sentence of 192 months’ imprisonment was appropriate. She again appealed, and the Tenth Circuit reversed and remanded a second time. The Tenth Circuit concluded the district court had procedurally erred by failing to address Lente’s argument that the sentence created unwarranted disparities.

On remand for the second time, the parties again supplemented the record with extensive additional evidence, including competing expert testimony. After discussing its sentencing discretion, identifying the sentencing factors listed in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57 months, the court held that a within-Guidelines sentence would be “woefully inadequate.” The court again imposed a 192-month sentence. Lente once again appealed.

Lente contended on appeal that the district court committed both procedural and substantive errors. She argued that the court committed procedural error by failing to consider the role her passenger played in the crash, and by failing to address her argument that multiple-fatality crashes should not be punished more harshly than single-fatality crashes. The Tenth Circuit, however, determined that the district court carefully considered and rejected those arguments, and instead of speaking to procedural errors, Lente’s real contention is with the substantive reasonableness of those considerations.

Addressing the substantial upward variance based on the multiple-fatality crash, the Tenth Circuit examined the legislative history of the Sentencing Guidelines and discussed that the Sentencing Commission has repeatedly expressed concern that the Guidelines do not adequately address involuntary manslaughter or multiple fatality situations. Although the Tenth Circuit agreed somewhat with Lente that the multiple deaths are more the result of chance than additional culpability, it agreed with the district court that multiple-fatality drunk driving crashes are not adequately addressed by the Guidelines. The Tenth Circuit determined that the district court acted within its discretion in imposing a significant upward variance in this instance.

Another factor considered by the district court in sentencing was Lente’s extreme recklessness. The Tenth Circuit agreed with the district court that Lente acted with extreme recklessness, citing as support Lente’s BAC of .21 two hours after the accident, the high traffic volume on the road, her excessive alcohol consumption, and a comparison of her conduct with similar offenses. The Tenth Circuit found no error in the district court’s conclusion.

The district court also concluded that Lente’s criminal history was significantly underrepresented in the Guidelines, since many of her previous convictions were for violations of tribal law and she was not assessed criminal history points for these. The district court noted that four of Lente’s prior convictions were for disorderly conduct after becoming intoxicated, which indicated a repeated willingness to abuse alcohol and engage in violent and destructive behavior. The Tenth Circuit found no error in the district court’s evaluation of Lente’s criminal history.

Further, Lente’s substance abuse and criminal behavior continued post-conviction. Recorded prison calls showed Lente repeatedly abused narcotics while incarcerated. She also indicated she planned to become intoxicated upon her release and had used alcohol at least once while in prison. She had two prison disciplinary sanctions for use of drugs or alcohol, as well as a number of other offenses. She was expelled from a drug education class and failed to apply to prison drug treatment programs. Her post-conviction conduct supports a conclusion that she was likely to reoffend. The district court’s conclusion that an upward variance was necessary to protect the public and deter criminal conduct was reasonable.

Finally, Lente argues that her sentence was disparate from other similar offenders. Although Lente cited several cases in support of her argument, the Tenth Circuit distinguished her case, noting that the cases she cited generally involved fewer BACs and fewer fatalities, and the cases with more fatalities involved different circumstances.

The Tenth Circuit affirmed the district court’s sentence.

HB 13-1325: Establishing THC Blood Levels for Purposes of DUI Law

On May 2, 2013, Rep. Rhonda Fields introduced HB 13-1325 – Concerning Penalties for Persons who Drive While Under the Influence of Alcohol or Drugs, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In any DUI prosecution, if at the time of driving or within a reasonable time thereafter, the driver’s blood contains five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant’s blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.

Under current law, in any prosecution for vehicular homicide or vehicular assault, if at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant’s blood or breath, there was 0.08 or more grams of alcohol per 100 milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per 210 liters of breath, it is presumed that the defendant was under the influence of alcohol. The bill removes this presumption and states instead that such fact gives rise to a permissible inference that the defendant was under the influence of alcohol.

The bill removes instances of the term “habitual user” from the traffic code.

The bill was introduced on May 2 and approved, with amendments, by the Judiciary Committee on that same day. On May 3, the Appropriations Committee approved the bill and sent it to the full House for consideration on 2nd Reading. 2nd Reading is scheduled for Monday, May 6.

Since this summary, the bill made it through Second Reading unamended and passed Third Reading in the Senate.

HB 13-1240: Imposing Strict Penalties for “Persistent Drunk Drivers”

On February 25, 2013, Rep. Dave Young introduced HB 13-1240 – Concerning Penalties for Persistent Drunk Drivers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In current law, the definition of “persistent drunk driver” includes a person who drives a motor vehicle with a BAC of 0.17 or more. The bill lowers this threshold to 0.15 or more. The bill also amends the definition of “persistent drunk driver” to include a person who refuses to take or complete, or to cooperate in the completing of, a test of his or her blood, breath, saliva, or urine as required by law.

In current law, if a person is designated a persistent drunk driver, the state department of revenue (department) requires the person to complete a level II alcohol and drug education and treatment program.

Under the bill, the department shall also require the person to hold a restricted license requiring the use of an ignition interlock device upon the restoration of his or her driving privileges.

In current law, a person whose privilege to drive was revoked for one year or more because of a second or subsequent DUI, DUI per se, or DWAI conviction; for excess blood alcohol content (BAC); or for refusal may apply for an early reinstatement with an interlock-restricted license after the person’s privilege to drive has been revoked for one year. The bill reduces this one-year waiting period to one month for persons 21 years of age or older at the time of the offense; except that, for a person 21 years of age or older at the time of the offense whose privilege to drive was revoked because of a refusal, the waiting period is reduced to two months.

The bill amends the purposes of the first time drunk driving offender account in the highway users tax fund to include appropriations to the department to pay:

  • A portion of the costs for an ignition interlock device for a persistent drunk driver who is unable to pay the costs of the device and who installs the ignition interlock device on his or her vehicle on or after Jan. 1, 2014; and
  • The department’s costs associated with the implementation of the bill.

In current law, with certain exceptions, a license revocation must run consecutively and not concurrently with any other revocation. The bill provides that, for an offense committed on or after Jan. 1, 2014, with certain exceptions, a license revocation can run concurrently with any other revocation.

In current law, if a license is revoked for refusal, the revocation may not run concurrently, in whole or in part, with any previous or subsequent suspensions, revocations, or denials that may be provided for by law. The bill provides that, for a refusal committed on or after Jan. 1, 2014, with certain exceptions, a license revocation can run concurrently with any other revocation.

On March 27 the Transportation & Energy Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.

 

HB 13-1214: Reclassifying Certain DUI Offenses as Felonies and Requiring Alcohol Monitoring and Use of Vehicle Interlock Devices

On February 1, 2013, Rep. Mark Waller introduced HB 13-1214 – Concerning the Classification of Certain Drunken Driving Offenses as Felonies, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a conviction for DUI, DUI per se, or DWAI is considered a misdemeanor offense. The bill states that such an offense is a class 5 felony if:

  • The violation occurred not more than seven years after the first of two prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; or vehicular assault; or
  • The violation occurred after three prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; vehicular assault; or any combination thereof.

Under current law, when a person is sentenced to a period of probation as part of a second or subsequent conviction for DUI, DUI per se, or DWAI, the court:

  • May require the person to use an approved ignition interlock device during the period of probation at the person’s own expense; and
  • May require the person to submit to continuous alcohol monitoring using such technology or devices as are available to the court for such purpose.

Under the bill, the court is required to impose these conditions on such offenders.

If a person is sentenced to a period of probation pursuant to a class 5 felony conviction of DUI, DUI per se, or DWAI, the court shall not grant early termination of probation before the person has successfully completed at least two years of probation.

The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. On Feb. 21, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.

HB 13-1114: Establishing Limits for Driving Under the Influence of Marijuana

On January 18, 2013, Rep. Mark Waller introduced HB 13-1114 – Concerning Penalties for Persons who Drive while under the Influence of Alcohol or DrugsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In any DUI prosecution, if at the time of driving or within a reasonable time thereafter, the driver’s blood contains five or more nanograms of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant’s blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.

Under current law, in any prosecution for vehicular homicide or vehicular assault, if at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant’s blood or breath, there was 0.08 or more grams of alcohol per 100 milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per 210 liters of breath, it is presumed that the defendant was under the influence of alcohol. The bill removes this presumption and states instead that such fact gives rise to a permissible inference that the defendant was under the influence of alcohol.

The bill removes instances of the term “habitual user” from the traffic code. The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee amended the bill and sent it to Appropriations.

HB 13-1077: Allowing Drivers to Challenge Initial Contact When Charged with DUI, DUI Per Se, and DWAI

On January 14, 2013, Rep. Joe Salazar introduced HB 13-1077 – Concerning a Driver’s Right to Challenge the Lawfulness of a Law Enforcement Officer’s Initial Contact in an Administrative Proceeding for a Revocation of a Driver’s LicenseThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

An administrative proceeding for a revocation of a driver’s license, a driver may challenge the validity of the law enforcement officer’s initial contact with the driver and the driver’s subsequent arrest for DUI, DUI per se, or DWAI. The hearing officer shall consider such issues when a driver raises them as defenses. On February 5 the Judiciary Committee amended the bill and sent it to the Appropriations Committee to consider the fiscal impact to the state.

Colorado Court of Appeals: Successfully Completed Deferred Judgment Constitutes Conviction for Purposes of Sealing Statute

The Colorado Court of Appeals issued its opinion in In the Matter of the Petition of Harte and Concerning Routt County District Court on Thursday, October 25, 2012.

Sealing Records for Alcohol-Related Driving Offense.

Petitioner appealed from the trial court’s order denying her petition to seal her arrest and criminal records. The Court of Appeals addressed whether, under CRS § 24-72-308 (sealing statute), a successfully completed deferred judgment constitutes a conviction. The Court held that it does and, therefore, affirmed the order.

Petitioner was charged with driving under the influence of alcohol. Pursuant to a plea agreement, she pleaded nolo contendere and received a twelve-month deferred judgment and sentence, which she successfully completed. The case was dismissed.

Petitioner petitioned the court to have her arrest and criminal records sealed pursuant to the sealing statute. The court denied the petition without a hearing, concluding that “entry of a guilty plea . . . even pursuant to a stipulation for a deferred judgment, constitutes a conviction and precludes sealing.”

On appeal, petitioner argued that because she successfully completed her deferred judgment and sentence, resulting in the dismissal of her case, she does not have a “conviction” under CRS § 42-4-1301. Therefore, the alcohol-related driving offense exception does not apply to her.

The sealing statute does not define “conviction.” The Colorado Supreme Court recently interpreted “conviction,” as used in the sexual offense exception to the sealing statute, to include a successfully completed and dismissed deferred judgment. In the penalty section of the DUI statute, “conviction” is defined, in part, as including “having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.” The Court disagreed with petitioner’s argument that this definition should be imported into the alcohol-related offenses exception to the sealing statute.

The meaning of the word “conviction” depends on the statutory section in which it is used and can vary. The two statutes have different purposes. Neither statute cross-references the other. The relevant legislative history of the amendments to the DUI penalty statute indicates no intent that the definition apply to another statute. The statutes do not conflict and therefore do not need to be reconciled. Accordingly, the order was affirmed.

Summary and full case available here.

Handling Criminal or Traffic Citations Issued to Commercial Drivers

Criminal charges and traffic citations have collateral consequences that can be detrimental to the holder of a commercial driver’s license (CDL). Most of the consequences to commercial drivers convicted of traffic-related offenses are based on federal law, and the criminal/traffic practitioner must be aware of many such rules and consequences to properly advise his or her client.

Among the many rules governing commercial drivers is the Federal Motor Carrier Safety Regulations, which defines the following nine Major Offenses:

  1. Being under the influence of alcohol as prescribed by State law;
  2. Being under the influence of a controlled substance;
  3. Having a blood alcohol level of 0.04 or greater while operating a commercial vehicle;
  4. Refusing to take an alcohol test as required by a State or jurisdiction under its implied consent laws or regulations;
  5. Leaving the scene of an accident;
  6. Using a commercial motor vehicle to commit a felony;
  7. Driving a commercial motor vehicle when, as a result of prior violations committed operating a commercial motor vehicle, the driver’s CDL is revoked, suspended, or canceled, or the driver is disqualified from operating a commercial vehicle;
  8. Causing a fatality through the negligent operation of a commercial vehicle, including but not limited to the crimes of motor vehicle manslaughter, homicide by motor vehicle, and negligent homicide; and
  9. Using the vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance.

Penalties for the above Major Offenses range from the automatic loss of the CDL for one year to the loss of the license for life and other penalties stemming from felonious activity.

Beyond these Major Offenses, there are many other regulations, rules, and penalties that the criminal or traffic practitioner must understand. Great caution must be exercised in representing a client who maintains a CDL to prevent the loss of the client’s license—a loss that can be devastating to the client’s livelihood and employment.

Commercial drivers are prevalent in the United States. According to the Colorado Department of Revenue, there currently are 227,219 commercial driver’s license (CDL) holders in Colorado and 14,032,524 nationwide. . . . Practitioners must ensure that their commercial driver clients are properly advised of . . . collateral consequences associated with criminal or traffic violations. The failure to do so may render the representation constitutionally ineffective and expose counsel to a potential malpractice suit. 40 The Colorado Lawyer 23 (February 2011).

CBA-CLE will be hosting a  one-hour CLE to discuss the relevant Colorado law and provide an overview of the federal statutes and regulations affecting CDLs, presented by Jonathan M. Abramson, Esq. Whether you just need a refresher of existing and updated CDL laws or you would like to learn more about tapping into this large legal market, join us in the classroom or via live webcast on Monday, January 16, 2012!

CLE Program: Traffic Citations for Commercial Drivers

This CLE presentation will take place on Monday, January 16. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Denver’s New Sobriety Court Opening Today

Today, Denver County Court is launching its new Sobriety Court. The problem-solving court will target repeat drunk drivers with a combination of supervision, treatment, and sanctions in an effort to improve public safety.

Denver’s Sobriety Court is designed to address the ongoing challenge of repeat alcohol offenders for whom traditional sentencing has not worked. It is estimated that there are more than two million impaired drivers with three or more DUI convictions in the United States, and that approximately twenty-percent of Denver’s DUI defendants each year are repeat offenders.

Denver County Court Judge Brian Campbell will preside over the Sobriety Court. Defendants participating in the new program will be tested on a regular basis for alcohol use and are required to appear in court weekly. Throughout the process, they will receive incentives for doing well and be penalized for noncompliance. Participants will also receive long-term, rigorous treatment designed to address core issues with repeat offenders.

A recent study found that repeat offenders who take part in a DUI court program are nineteen times less likely to drink and drive than those in traditional court, and are three times less likely to commit any other offense.  The study also found savings in time and money by getting impaired drivers under supervision and into treatment more quickly and using sanctions, including jail, more strategically.

8th Judicial District Rolls Out Special DUI Court

Colorado’s Eight Judicial District Court on Friday will introduce a new “problem-solving” tribunal specific to DUI cases in Larimer County. The Larimer County DUI Court will be the eighth jurisdiction in Colorado since 2007 to create a specialized DUI court that focuses on rehabilitation, rather than incarceration, as a way to defeat recidivism in repeat DUI offenders.

Larimer County Magistrate Matthew Zehe will hear the first case this Friday morning, July 2. Of the new court, he remarked:

It is an honor and privilege to be a part of this new, specialized court. DUI and its tragic consequences present challenges for communities throughout Colorado and the nation, but it is my steadfast belief that this court will bring solutions to those challenges.

The way the Larimer County DUI Court hopes to bring about those solutions is based on “The Guiding Principles of DWI Courts” (pdf), a rehab-based primer on alternative prosecution for intoxicated drivers that was developed by the National Center for DWI Courts. Once repeat offenders are evaluated and cleared for participation in the DUI Court, they are subject to a specialized treatment plan that marries:

  • The psychological, through assessment and treatment of addiction and mental health issues;
  • The judicial, through compassionate judges who have a significant “buy-in” into the program and who perform community outreach with various stakeholders and agencies;
  • The correctional, through supervision, monitoring, and testing; and
  • The practical, through addressing an offender’s transportation and other related problems.

Offenders chosen to participate in DUI Court undergo assessment and treatment, regular drug testing for compliance, and frequent face-to-face meetings with the court. The rehabilitative program uses a carrot/stick approach to compliance, with incentives to reward positive behaviors and jail time as a disincentive to noncompliance. “The main goal of this court is to enhance our community and ensure safety for our citizens by helping repeat DUI offenders integrate back into the community in a safe, sober and productive way,” remarked Magistrate Zehe.

(image source: State Judicial)