December 13, 2018

Bills Signed Changing Revenge Pornography Crimes, Amending Laws Related to Bicycles Approaching Intersections, and More

On Thurdsay, May 3, 2018, Governor Hickenlooper signed seven bills into law. To date, he has signed 211 bills and sent two to the Secretary of State without a signature. The bills signed Thursday include a bill changing the laws concerning revenge pornography crimes, a bill requiring state agencies to conduct analyses to determine which businesses are not complying with their rules, a bill permitting municipalities to adopt rules concerning bicycles approaching intersections, and more. The bills signed Thursday are summarized here.

  • SB 18-132 – “Concerning a Waiver of Federal Law to Permit Insurance Carriers to Offer Catastrophic Health Plans to Any Individual Residing in Colorado, and, in Connection Therewith, Making an Appropriation,” by Sen. Jim Smallwood and Rep. Chris Kennedy. The bill requires the commissioner of insurance to conduct an actuarial analysis to determine if the sale of catastrophic health plans to Colorado residents 30 years of age and older and not meeting a hardship requirement would result in a reduction in advanced premium tax credits received by Colorado residents or increase the average premiums of individual health plans.
  • SB 18-144 – “Concerning the Regulation of Bicycles Approaching Intersections,” by Sen. Andy Kerr and Reps. Yeulin Willett & Chris Hansen. The bill permits a municipality or county to adopt a local ordinance or resolution regulating the operation of bicycles approaching intersections with stop signs or illuminated red traffic control signals. Under a local regulation, a bicyclist approaching a stop sign must slow to a reasonable speed and, when safe to do so, may proceed through the intersection without stopping. A bicyclist approaching an illuminated red traffic control signal must stop at the intersection and, when safe to do so, may proceed through the intersection.
  • SB 18-177 – “Concerning Procedures when Certain Private Schools Cease Operations,” by Sens. Kevin Priola & Nancy Todd and Reps. Jeff Bridges & Lang Sias. Under existing law, private occupational schools and certain private degree-granting schools are required to provide a bond or other form of surety that is used to facilitate transfer or to provide tuition and fee reimbursement for students in the event that the school closes. When a private occupational school closes, that school’s records must be maintained by the private occupational school board in the Division of Private Occupational Schools. The bill allows the Department of Education to make a claim on a surety bond for reimbursement of actual administrative costs associated with a school closure.
  • HB 18-1193 – “Concerning the Advanced Placement Incentives Pilot Program, and, in Connection Therewith, Making an Appropriation,” by Reps. James Wilson & Barbara McLachlin and Sens. Ray Scott & Rachel Zenzinger. The bill extends the pilot program three years. It requires the Department of Education to report the number of students in the pilot program who enrolled in advanced placement courses during the prior school year and to collect disaggregated data from the advanced placement exam vendor to capture the performance of students who are participating in the pilot program on the end-of-course advanced placement exams.
  • HB 18-1250 – “Concerning an Analysis to Improve Compliance with Departmental Rules by Regulated Businesses,” by Reps. Tracy Kraft-Tharp & Lang Sias and Sen. Kevin Priola. The bill equires each state agency to conduct an analysis of noncompliance with its rules to identify rules with the greatest frequency of noncompliance, rules that generate the greatest amount of fines, how many first-time offenders were given the opportunity to cure a minor violation, and what factors contribute to noncompliance by regulated businesses. The analysis will guide each department on how to improve its education and outreach to regulated businesses on compliance with the department’s rules.
  • HB 18-1257 – “Concerning a Correction to House Bill 16-1316 by Reinserting the Word ‘Not,'” by Rep. Paul Rosenthal and Sen. John Cooke. House Bill 16-1316 amended the venue statute for transferring child welfare proceedings between counties and inadvertently struck the word ‘not’ in one sentence. Due to this error, courts are not allowed to transfer child welfare proceedings between counties after adjudication even though the intent of House Bill 16-1316 was to allow post-adjudication transfers. The bill reinserts the word ‘not’ to allow such transfers.
  • HB 18-1264 – “Concerning Measures to Clarify the Scope of Revenge Porn Criminal Offenses,” by Reps. Dominique Jackson & Terri Carver and Sens. John Cooke & Rhonda Fields. Currently, Colorado criminalizes posting nude images of another person for harassment purposes or for pecuniary gain. The bill adds images of sex acts that may not include nude images, removes the requirement that the defendant intend to inflict serious emotional distress removes as an exception to the crimes that the image relates to a newsworthy event, and clarifies that the images subject to the crimes may be disclosed by law enforcement personnel, human or social services personnel, prosecutors, and court personnel in the course of their normal business.

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

Colorado Supreme Court: Colorado Speeding Statute Creates Mandatory Rebuttable Presumption

The Colorado Supreme Court issued its opinion in People v. Hoskin on Monday, September 26, 2016.

Statutory Interpretation—Due Process—Traffic Infraction—Sufficiency of the Evidence.

A county court judge found that Hoskin committed a traffic infraction in violation of Colorado’s speeding statute, C.R.S. § 42-2-1101. The district court reversed and held that the county court judge had impermissibly shifted the burden of proof to Hoskin by requiring him to prove that his speed was reasonable and prudent under the circumstances after the People presented evidence that Hoskin was driving in excess of the posted speed limit. The supreme court reversed the district court’s judgment, holding that the plain language of Colorado’s speeding statute creates a mandatory rebuttable presumption. Specifically, if the People prove that Hoskin was driving in excess of the posted speed limit, the burden of proof going forward shifts to Hoskin to prove that his speed was reasonable and prudent under the circumstances. The court further held that the speeding statute’s mandatory rebuttable presumption does not violate due process. Finally, the court concluded that there was sufficient evidence in the record to support the county court’s judgment against Hoskin for speeding.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Need to Suppress Contents of Consensual Search After Legal Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Salas on Tuesday, July 1, 2014.

Defendant Salas was driving through Oklahoma on his way from Arkansas to Texas when he was pulled over by Deputy Gragg for erratic driving. Salas had crossed the fog line on the right side of the lane twice, forming the basis for the traffic stop. Gragg issued Salas a warning for the traffic violations and told him he was good to go, but when Salas shook Gragg’s hand, the deputy asked him if he would mind answering more questions. Gragg asked Salas if he could search the vehicle and Salas consented. The dash cam in the patrol car recorded this interaction. Gragg’s search revealed nine one-gallon ziploc baggies of methamphetamine, weighing nearly 20 pounds. Salas was arrested and charged with one count of possession with intent to distribute methamphetamine. Salas moved to suppress the contents of the search, arguing that Gragg lacked reasonable suspicion to stop Salas and that he did not validly consent to the search.

The district court denied suppression, finding that Gragg had reasonable suspicion to stop Salas based on just one of the two fog line violations. After his motion to suppress was denied, Salas entered a guilty plea. The district court accepted the presentence report’s base offense level and sentenced Salas to 151 months’ imprisonment with three years’ supervised release. Salas challenged both the search and the imposed sentence.

The Tenth Circuit determined that the initial traffic stop was lawful based on the fog line violations, one of which would have been enough to raise reasonable suspicion in the officer. Although Salas’ initial fog line violation occurred near a curve in the road, it would not have been enough to cause a driver to veer halfway over the fog line, and the vehicle he was driving was a four-door sedan that would not have been susceptible to light winds. Because the initial stop was lawful, the Tenth Circuit did not need to apply a heightened standard to the legality of Gragg’s search. Salas had consented to the search after the traffic stop had ended and the encounter became a consensual one, and his consent was recorded on the officer’s dash cam. Therefore, the Tenth Circuit determined that there had been no Fourth Amendment violation.

Salas also argued that his sentence should be reduced because of his acceptance of responsibility. However, the purpose of the sentence reduction is to mitigate trial preparation costs, and Salas did not enter the guilty plea until the day the government filed its trial brief. The government was not required to offer the sentence reduction and did not do so in this case, since it had already begun trial preparation and there was no cost mitigation. The Tenth Circuit determined no error in the government’s failure to offer the sentence reduction.

The district court’s order denying suppression and the sentence were affirmed.

SB 14-181: Prohibiting the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement

On April 4, 2014, Sen. Scott Renfroe introduced SB 14-181 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the authorization for the state, a county, a city and county, or a municipality to use automated vehicle identification systems to identify violators of traffic regulations and issue citations based on photographic evidence, and creates a prohibition on such activity.

The bill repeals the authorization for the department of safety to use an automated vehicle identification system to detect speeding violations within a highway maintenance, repair, or construction zone.

The bill is assigned to the State, Veterans, & Military Affairs Committee; the bill is scheduled for committee review on Monday, April 14 at 1:30 p.m.

Since this summary, the State, Veterans, & Military Affairs Committee referred the bill, amended, to the Senate Committee of the Whole.

SB 14-146: Allowing Municipalities to Conduct Traffic Studies for CDOT Review

On February 13, 2014, Sen. Gail Schwartz and Rep. James Wilson introduced SB 14-146 – Concerning Information that the Department of Transportation may Consider when Conducting a Traffic Investigation for the Purpose of Determining the Appropriate Speed Limit for a Portion of a State Highway for which a Municipality has Proposed a Speed Limit Alteration. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires that the department of transportation (CDOT) approve any change to a speed limit on a portion of a state highway that is within a municipality and requires CDOT to conduct any traffic investigation needed for the determination of a safe and reasonable speed limit if a municipality with a population of 5,000 or fewer people requests that it do so. The bill allows CDOT to receive traffic and engineering data from the city or county engineer of the affected municipality when conducting such a traffic investigation.

The bill is assigned to the Transportation Committee.

Since this summary, the bill was amended in the Transportation Committee and referred to the consent calendar for the Senate Committee of the Whole.

Colorado Supreme Court: Evidence Produced by Dog’s Sniff for Drugs Rightly Suppressed by Trial Court Since No Suspicion Supported Dog Sniff

The Colorado Supreme Court issued its opinion in People v. Mason on Monday, June 3, 2013.

Interlocutory Appeal—Reasonable Articulable Suspicion—Suppression of Evidence.

The People filed an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1, challenging the trial court’s suppression of drugs discovered in defendant’s pickup truck. Grounds for the search came from the alert of a narcotics detection canine led around the vehicle. Although the district court upheld the initial traffic stop, it found that defendant was illegally detained at the time of the dog sniff, because the purpose for the initial stop of his vehicle had already been accomplished and no other reasonable suspicion existed to support further investigation. The court therefore suppressed the results of the subsequent search as the product of an illegal detention.

The Supreme Court affirmed, holding that because the prosecution failed to present any evidence supporting police suspicions that defendant had committed, was committing, or was about to commit a crime other than traffic offenses, they lacked reasonable articulable suspicion to detain him for further questioning or investigation after issuing him a summons and completing the traffic stop. The contraband seized from defendant’s vehicle therefore was properly suppressed as the product of an illegal detention.

Summary and full case available here.

Colorado Court of Appeals: Statute Unclear About Sealing Records When Traffic and Non-Traffic Offenses Charged Together

The Colorado Court of Appeals issued its opinion in In re Petition of R.C. on Thursday, May 30, 2013.

Petition to Seal Records—Traffic Offenses—Non-Traffic Offenses.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The Court of Appeals reversed the order and remanded the case with directions.

Petitioner was charged with possession of marijuana (a class 2 petty offense), possession of drug paraphernalia (a class 2 petty offense), and unsafe lane change. After successful completion of a juvenile diversion program, all of the charges were dismissed with prejudice.

Petitioner argued that the court erred when it denied his petition to seal his records after all of the charges against him were dismissed with prejudice. Although CRS § 24-72-308 specifically prohibits the sealing of traffic infractions, the statute does not appear to contemplate petitions to seal records for cases that include both traffic offenses and non-traffic offenses. Therefore, if the district court “finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” as to the drug offenses, it should seal the criminal records as to those charges. Therefore, the order was reversed and the case was remanded for further proceedings consistent with this opinion.

Summary and full case available here.

Colorado Court of Appeals: Remand to Trial Court to Determine Whether Drug Charges Harm Defendant More than they Protect the Public

The Colorado Court of Appeals issued its opinion in Cox v. People on Thursday, May 9, 2013.

Seal Records of Non-Traffic Offense Charges—CRS § 24-72-308.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The judgment was reversed and the case was remanded with directions.

Petitioner was charged in the Douglas County Court with possession of marijuana (a class 2 petty offense); possession of drug paraphernalia (a class 2 petty offense); and unsafe lane change (a class A traffic offense). He successfully completed a juvenile diversion program and all charges were dismissed with prejudice.

Petitioner then filed a verified petition requesting that the records of the case be sealed. The prosecution objected, relying on Clark v. People, 221 P.3d 447 (Colo.App. 2009). At the hearing, both parties agreed that Clarkwas controlling, but petitioner argued the dissent in that case was a better-reasoned approach to interpreting CRS § 24-72-308. The district court disagreed and petitioner appealed. The Court of Appeals reversed.

Judge Russel’s dissent in Clark agreed with the majority that the court cannot seal “records pertaining to” traffic infractions. However, he did not agree that it foreclosed relief, because (1) he saw no practical impediment to offense-specific sealing; (2) he believed that offense-specific sealing would further legislative policy; and (3) he concluded that the statute does not prohibit offense-specific sealing.

The Court stated that the purpose of the statute is to relieve a very limited number of persons charged with criminal offenses from the stigma that comes with having been charged with an offense but not convicted of it. Here, petitioner requested sealing of the entire criminal record, and the Court found that the statutory purpose could be satisfied by sealing records of non-traffic offenses in a criminal record that contained both. Petitioner lost one job and was denied another based on his criminal record, and the Court did not believe it was because of the routine traffic offense.

Therefore, the Court reversed the judgment. On remand, the district court must determine, as to the drug offenses, whether “the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” and, if so, whether the court should seal the criminal record as to those charges.

Summary and full case available here.

SB 13-049: Exempting Motor Vehicles in a Roundabout from Requirement of Signaling Before Leaving Current Traffic Lane

On Wednesday, January 16, 2013, Sen. Kevin Lundberg introduced SB 13-049 – Concerning an Exemption Within a Roundabout from the Rule Requiring a Vehicle to Signal an Intention to Leave the Current Lane of Travel. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, a person must signal an intention to turn when intending to change lanes or turn while driving a vehicle. The bill exempts motor vehicles that are within a roundabout. The bill is assigned to the Transportation Committee.

Colorado Supreme Court: Home Rule Municipality Cannot Promulgate Laws that Conflict with State Law on Matters of Statewide Concern

The Colorado Supreme Court issued its opinion in Webb v. City of Black Hawk on Monday, February 4, 2013.

Legality of Banning Bicycles on City Streets—Home-Rule Municipality—Local Government Law—Traffic Regulations—CRS § 42-4-109(11)—Matter of State and Local Concern—Preemption.

In this appeal from the Gilpin County District Court, petitioners Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus challenged the legality of the City of Black Hawk’s ordinance banning bicycles on certain city streets. Petitioners, a group of bicyclists, were cited and fined for riding their bikes on Gregory Street in Black Hawk, the only street providing access through town from the state highway to Central City. The bicyclists argued that Black Hawk, as a home-rule municipality, lacked the authority to prohibit bicycles on local streets absent a suitable alternative bicycle route as provided by state statute. Both the trial and district courts ruled in favor of Black Hawk, finding that the city had the authority to ban bicycles through both its home-rule and police powers.

The Supreme Court reversed, holding that Black Hawk’s ordinance banning bicycles is a matter of mixed state and local concern, and conflicts with and is preempted by state law. As a home-rule municipality, Black Hawk may enact traffic regulations that cover the same subject matter as the model traffic code, but it may not promulgate regulations that conflict with state statute. Black Hawk’s ordinance banning bicycles on city streets is in conflict with CRS § 42-4-109(11), which requires any municipal bike prohibition to have an available alternate path within 450 feet. Because Black Hawk’s ordinance conflicts with a specific statutory provision in a matter of mixed state and local concern, it is preempted.

Summary and full case available here.

SB 12-050: Eliminating Automated Vehicle Identification Systems and Prohibiting Traffic Citation Cameras

On January 11, 2012, Sen. Scott Renfroe and Rep. Randy Baumgardner introduced SB 12-050 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the authorization for municipalities to use automated vehicle identification systems to identify violators of traffic regulations and issue citations based on photographic evidence, and creates a prohibition on such activity. The bill is assigned to the Transportation Committee; the bill is scheduled for committee review on Tuesday, February 21 at 2:00 p.m.

Summaries of other featured bills can be found 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.