March 23, 2019

Colorado Supreme Court: DUI, Fourth Offense, is Class 4 Felony Therefore Defendant Entitled to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Tafoya on Tuesday, February 19, 2019.

Sentencing and Punishment—Criminal Law—Preliminary Hearings

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s ruling denying petitioner a preliminary hearing when she was charged with Driving Under the Influence (DUI)—fourth or subsequent offense, a class 4 felony under C.R.S. § 42-4-1301(1)(a), and was being held in custody on that charge.

The court issued a rule to show cause and now makes the rule absolute. C.R.S. § 16-5-301(1)(b)(II) provides that a defendant who is accused of a class 4, 5, or 6 felony and is in custody for that offense “may demand and shall receive a preliminary hearing.” The legislature amended the DUI statute to provide that DUI is a class 4 felony if the violation occurred after three or more prior convictions arising out of separate and distinct criminal episodes. Here, the complaint and information accused petitioner of committing a class 4 felony and she was being held in custody on that charge. Accordingly, under the plain language of the statute, petitioner was entitled to a preliminary hearing, and the district court erred in denying her request for such a hearing.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Insurer’s Conduct Must Be Evaluated Based Upon Evidence Before it When Coverage Decision Made

The Colorado Supreme Court issued its opinion in Schultz v. Geico Casualty Co. on Monday, November 5, 2018.

Insurance—Bad Faith—C.R.S. § 10-3-1115—Fair Debatability—C.R.C.P. 35—Independent Medical Exams.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to undergo an independent medical examination (IME), pursuant to C.R.C.P. 35, at defendant’s request. The court issued a rule to show cause.

In this case, plaintiff, who was insured by defendant, alleged that defendant insurance company breached its duty of good faith and fair dealing and violated its statutory obligation to evaluate and pay her insurance claim without unreasonable delay. Defendant denied liability, asserting that because the question of medical causation was “fairly debatable” at the time it made its coverage decision, it did not act unreasonably or in bad faith. To establish these defenses, defendant sought an IME of plaintiff, and over plaintiff’s objection, the district court granted that request.

The court concluded that defendant’s conduct must be evaluated based on the evidence before it when it made its coverage decision. Thus, defendant is not entitled to create new evidence to try to support its earlier coverage decision. The court further concluded that the district court abused its discretion when it ordered plaintiff to undergo an IME over three years after the original accident that precipitated this case and a year and a half after defendant had made the coverage decision at issue. The court therefore made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Charge by Information of Class 4 Felony with Crime of Violence Statutorily Entitles Defendant to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Austin on Monday, June 4, 2018.

Preliminary Hearings.

Austin petitioned for relief pursuant to C.A.R. 21 from a district court order denying his motion for a preliminary hearing. The supreme court issued its rule to show cause why the order should not be disapproved, and the People responded. The court now makes the rule absolute and orders that Austin be given a preliminary hearing because he was charged by information with a class 4 felony committed as a “crime of violence” as defined in C.R.S. § 18-1.3-406(2)(a)(I)(B) and (II)(C), which statutorily entitles him to a preliminary hearing, whether or not he would actually be subject to mandatory sentencing for a crime of violence.

Summary provided courtesy of Colorado Lawyer.