Colorado Springs Criminal Lawyer Blog

By Sharalee Burr
Sr. Paralegal
The Gasper Law Group

If you were to walk into a jail ward today, you would not only hear, but see a number of televisions mounted to the walls of the ward, giving the inmates a bit of entertainment and something to do during those long days of incarceration. Whether or not entertainment should be provided in jail wards is up for grabs, but since televisions are allowed, maybe they could be used for a better cause, say for exercise, not just for entertainment.

We all know the importance and benefits of daily exercise, especially during stressful situations. The jail setting can be very stressful and exercise can provide an effective means of dealing with inmate stress and avoiding increased inmate unrest. How does the television fit into the daily exercise of an inmate you ask?

Continue reading "Exercise Bikes in the Jail?" »

by Allen Gasper , the Senior Partner in the Gasper Law Group, Colorado Springs.

Step One:

A complaint is levied against the individual and the – now defendant – is either arrested or receives a Summons to appear in Court

Step Two:

The individual is charged with a crime which now constitutes the “arrest charge” prior to the individual’s appearance in Court.

Step Three:

After the initial advisement of the “arrest charges,” the defendant will appear in Court for the Filing of Charges – at which time the defendant is advised of the actual charges filed in the case. This may also be a “bond return date” – meaning the defendant has bonded out of jail and MUST appear in Court at the date and time specified. Failure to appear while on bond may cause the Court to issue a warrant for the defendant’s arrest and a Show Cause Order to the bondsman for forfeiture of the bond.

Continue reading "Colorado Court Criminal System Or - Gee, I Was Just Arrested on a Felony Charge, What Happens Next?" »

Bill Edie
Attorney with the Gasper Law Group

The Basics: In the courtroom

We’ll start with the most classic examples, and work our way into some things you may not have thought about. For now, we’ll assume a criminal case has actually been filed by the DA, negotiations have not been fruitful, all pretrial issues have been determined, and now, your trial before a jury has begun. Do you testify in your own defense, or do you invoke your 5th amendment right to remain silent? Each case is different, and your attorney will advise you at every step of the way, but ultimately, you must make that choice. And during your trial, the judge will ask you personally which choice you have made. No one can make you testify if you’d prefer not to. Likewise, no one, not even your own attorney, the judge, or the DA, can prevent you from telling your side of the story to the jury if you really want to (but often, it could wind up being a very bad idea). Critical, tactical and personal issues will influence your decision (a topic for another day), but we’ll decide for this example that you don’t want to testify.

What happens? Remember, since the DA has the burden of proving you guilty, they must present sufficient evidence during the first ‘half’ of the trial to prove you guilty of the charge before your team (you, your attorney(s), and investigator or paralegal, if needed) has to present anything. Once the DA rests their portion of the case (likely consisting of eye witnesses, police officers, exhibits, and possibly expert witnesses), there will be a break in the trial for at least a few minutes. The jury will be excused from the room. Without you having to say a word, your attorney will be given the opportunity to argue before the judge that the DA’s case is legally insufficient to convict on one or more of the charges. Although it rarely occurs, if the judge does agree, you could then be acquitted by the judge on the spot, and the jury would not even get the case. Game over. This might occur if the DA was unable (or forgot, if you get really lucky) to present any credible evidence of an essential element of the charge; for example perhaps the DA showed that you were drunk at the time you were operating a motor vehicle (see CJA’s article), but failed to show it was in a public place. If it occurred on purely private property (and the DA must show that it did not), then you don’t even have to decide whether to testify or not. You go home. (Be careful celebrating your win afterwards!)

Continue reading "Pleading the 5th - Part II" »

Caryn J. Adams
Managing Attorney
The Gasper Law Group

To every rule, there is an exception. To the rule that no conviction may be sealed, the exception is criminal conviction records for some offenses involving controlled substances. Pursuant to C.R.S. 24-72-308.5, as of July 1, 2008, a person may petition the court to seal the conviction records for drug offenses at the petty, misdemeanor, or class 5 or 6 felony level. There are, as you might expect, several conditions to be met:

1) The petition has to be filed no sooner than ten years after the final disposition or end of probation, whichever is later; and
2) The petitioner cannot have been charged or convicted for any criminal offense in the intervening ten years; and
3) For convictions entered before July 1, 2008, the district attorney must consent to the sealing of the records.

There are also limitations concerning the types of drug offenses that are subject to sealing. A conviction for a class 5 or 6 felony for the sale, manufacturing, or dispensing of a controlled substance (or conspiracy, attempt, or possession with intent to do any of the above) cannot be sealed. What does that leave at the felony level? Pretty much, it leaves simple possession or attempted possession.

Continue reading "Drug Cases: Different Rules for Sealing" »

Caryn J. Adams
Managing Attorney
The Gasper Law Group

There are few movies more quotable than The Princess Bride (Hmm, maybe The Godfather, but that’s a different blog). Mandy Patinkin as the master swordsman Inigo Montoya gets one of my favorites when he responds to his employer, “You keep using that word. I do not think it means what you think it means.” In the movie, the word in question is “inconceivable.” In Colorado, that word is “driving.”

“Driving,” as in “Driving” Under the Influence or “Driving” While Ability Impaired, does not mean what you think it means. Consider the following situation. You’re out on the town and have had too much to drink. You know you can’t drive home and want to do the right thing. You decide to walk a block to the parking lot and sleep it off in your car. You get in the driver’s side, recline the seat, and put your car keys in your pocket. An hour later you’re woken up by a patrol officer rapping on your window. “Bad news,” he says, “You’re under arrest for Driving Under the Influence.” In fact, even though you didn’t know it and common sense would say otherwise, and even though the car was never turned on and never moved an inch, you’ve been “driving” for the past hour.

In Colorado, the courts have determined that the terms “drive” and “drove” include “actual physical control” of a vehicle, even if the vehicle is not actually moving. Factors a judge or jury may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:

A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle's ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your every day experience.

Continue reading "“Driving” Under the Influence: It doesn’t mean what you think it means." »

By Tonya Holliday
Sr. Paralegal
The Gasper Law Group

If you’ve ever been involved in a criminal case, whether as a Defendant, victim or family/friend, you know it’s stressful. I am a criminal defense paralegal so I talk to hundreds of defendants, victims and family and friends every day. My advice is always the same: Take a hot bath (or soak in the hot tub); drink hot tea, not alcohol – it will get you in trouble; and to yoga breathe.

Studies show that by yoga breathing you release the pent-up toxins that build up in the body. Criminal proceedings produce high levels of stress because of many factors: interviews with police officers, court appearances, polygraph tests, fear of the unknown or even the known if you’ve been through the system before. These cases impact a person in all aspects of their lives.

Continue reading "YOGA BREATHING YOUR WAY THROUGH A CRIMINAL PROCEEDING" »

Caryn J. Adams
Managing Attorney
The Gasper Law Group

Driving Under the Influence (DUI) and Driving While Ability Impaired (DWAI) are what are called “strict liability” offenses. This means that the district attorney does not have to prove that you acted with a culpable (or bad) mental state. Most crimes require two components before a jury can return a verdict of guilty. These components are a voluntary act (i.e. actus reus) and a culpable mental state (i.e. mens rea) to go along with the act. “Mens rea” is often translated as “intent.” The intent to commit a crime is not, however, required in a DUI or DWAI case.

According to C.R.S. 18-1-502, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act.” The statute goes on to say, “If that conduct is all that is required for the commission of a particular offense… the offense is one of ‘strict liability.’” In DUI or DWAI cases, briefly put, that act or conduct would be getting behind the wheel of a car with too much alcohol in your system.

What does this mean in practical terms? Well, I often hear clients say things like, “I didn’t intend to drink too much,” or “I didn’t realize I’d had that much. I guess I just lost track.” I also hear, “But I was being really careful. My friends will say that I seemed fine to drive at the bar.” None of these are defenses to the crime of DUI or DWAI. There are, of course, defenses that can be raised in such cases: defenses relating to not driving, to not being over the limit, those relating to emergency situations and having to choose between two “evils,” etc. Setting aside situations in which other defenses apply for a moment, the truth is that if your BAC was tested and was over .08, your good intentions do not matter much. Only if your act was NOT voluntary (e.g. your fraternity brothers forced alcohol down your throat and then carried you to the driver’s seat and handcuffed you to the steering wheel) do you have an answer to the concept of “strict liability.”

Bill Edie
Attorney with the Gasper Law Group

Client: “ I was never read my rights”

Attorney: “And…………?”

“..nor shall (any person)be compelled, in any criminal case, to be a witness against himself;…” Amendment V of the United States Constitution.

You might think that this simple phrase would have long been settled in its interpretation and application in the criminal courts, Colorado and otherwise. Far from it. Its precise meaning has been a continuing source of scholarly and practical interpretation since its adoption by the original 13 colonies. As statutes change, as technology advances, as societal norms evolve, as police methods change, so must the Courts. All courts must ensure that this vital constitutional right is honored by any arm of government with the power to deprive a person of life, liberty or property. While the procedural interplay between the federal and state systems can become complicated, suffice it to say that the federal courts will impose this right in state court (i.e. Colorado) criminal proceedings.

Part I.

Read carefully the middle phrase. “in any criminal case”. Exactly what is meant by “criminal case”? Is it a trial? If so, does it apply to felonies only? Misdemeanors? Petty offenses, for which the only penalty might be a small fine? How about a parking ticket? Must the person have been formally charged for a “case” to exist? Must there be a judge involved? How about pretrial proceedings, such as motions to suppress evidence unlawfully seized? Post conviction matters, where the client is already placed on probation, or is reporting to a parole officer long after his case is concluded ‘in court’? What about administrative hearings (such as an attempt by the State of Colorado to revoke or suspend your driver’s license)? What if you’ve been subpoenaed to someone else’s criminal case, but could have to testify in a manner that could implicate you in criminal wrongdoing ( “yeah, I helped him break into the car”)? Does it matter whether you were subpoenaed by the DA or your friend’s defense attorney? Take it a step further; what if you’ve been subpoenaed to someone else’s civil deposition, but might have to admit you could not recall clearly the events because you had been smoking pot earlier that day—and you are already on parole? What if you are merely just under investigation, but nothing has been charged or filed in court? Not so simple, is it? We’ll take it slow.

Now, what does it mean to be “compelled”? In a pure court setting, what we’ll assume for our purposes is that a judge would otherwise have the power to order you to testify at a trial or hearing. If you refused, you could be fined, imprisoned, or both, merely based upon your refusal. In a police investigation, defining “compelled” is a lot more dicey, and is quite a bit more context specific. Suffice it to say, being hit by the police with a rubber hose in the interrogation room until you “talk” would qualify as being “compelled”. In our current legal environment, the police are actually far too professional to engage in such tactics. That was not always the case in our country’s history. That does also not mean they would not try, perhaps mightily, to encourage a potential suspect to provide a statement surrounding his involvement in a crime. Pushing the envelope is legal; violating someone’s rights is not. What is “compelled” vs. what is voluntary is not always easy to determine. That’s where an experienced practitioner can help.

Continue reading "Pleading the 5th-What You Thought You Knew" »

Allen Gasper is the Senior Partner in the Gasper Law Group, Colorado Springs.

In considering potential plea offers in District Court cases in Colorado, a question arises about the possibility of reconsideration of sentence in the future and the best approach to establishing a “track record” for the court to consider in determining whether the defendant is a good candidate for reconsideration of sentence. Boot Camp provides a vehicle for proving a defendant’s acceptance of responsibility and desire to change in a manner sufficient to establish a positive view toward society reintegration.

As part of a plea agreement, the District Attorney may agree to allow the defendant to file a Colorado Criminal Procedure Rule 35(b) motion upon successful completion of the Colorado Department of Corrections Boot Camp Program. If the defendant qualifies (court recommendation is helpful) for the Boot Camp Program, the Executive Director of the Department of Corrections may assign an inmate to this regimented training program pursuant to C.R.S. §17-40-102(2). After successful completion of the program, the defendant would appear before the original sentencing court for reconsideration of sentence pursuant to the plea agreement. It is important to note that the Colorado Criminal Procedure Rule 35(b) Motion must be filed within one hundred twenty (120) days from the original sentencing date – asking the court to hold the motion in abeyance until the inmate has completed the program. Failure to file the Motion within the time period specified would preclude the defendant from asking for reconsideration of his sentence, regardless of defendant’s status in the Boot Camp Program.

Not every charge is eligible for the Boot Camp Program. Also, the original charge against the defendant is the charge that will control eligibility for acceptance to the program – regardless of the final charge to which the defendant pleads by agreement. This means that if the original charge filed against the defendant falls within the list of ineligible charges below, the defendant will be ineligible for the Boot Camp Program, even if the defendant pleads to an amended charge which would not necessarily preclude the defendant from the program.

Continue reading "Boot Camp - Potential for Sentence Reconsideration" »

By Mark C. Cohrs
Senior Investigator for
The Gasper Law Group

A necessary part of providing legal representation to defendants charged with a criminal offense is the task of evaluating the evidence against the client. The Constitutional concept of “innocent until proven guilty” is not always a reality when a person is accused of committing a crime.

Oftentimes, even well intended officers who are dispatched to investigate alleged offenses tend to react primarily on the basis of probable cause, while giving little or no consideration to mitigating or extenuating circumstances.

Beyond that, the evolution of governing mandates regarding Domestic Violence response practices have caused police agencies to adopt arrest procedures based on the fact that someone called the police, therefore someone has to go to jail. Right or wrong, defendants charged in criminal cases are typically faced with the burden of either trying to prove their innocence or to minimize their exposure in the criminal justice system.

Competent criminal defense attorneys recognize the necessity to investigate the government’s evidence before advising their clients of their options. One of the most effective means of accomplishing this is to employ the services of a reputable and experienced private investigator, preferably someone with a law enforcement background.

Continue reading "Criminal Defense Investigator - Key to Criminal Defense" »

The Handwriting’s on the Wall…….or Wherever ...

By Bill Edie, Attorney for the Gasper Law Group

Client: “The bank doesn’t have any video of me at the window, so what can they do to me?”

Attorney: “Why don’t we go into my office to discuss this some more?”

Misconceptions abound about the use-and potential misuse-of handwriting analysis in order to prove or demonstrate a particular point in the courtroom. While entertaining, most TV shows, movies, and popular fiction shed little light on what is actually admissible in court, and for what purpose.

While there are a handful of forensic psychologists in the employ of the federal government who might offer fascinating insights into the mind of a serial killer based upon his writings, or how a particular kidnapper might respond to negotiation based upon a ransom note, the realities in a Colorado state courtroom are far more mundane.

The experts in this field work in the area of questioned documents, the purpose of which is generally to draw conclusions about the identity of the person preparing it, or the circumstances of its preparation. In all but a handful of cases, the personality or motivation of the person preparing the document is beyond the purview of the expert’s role in the case.

There are relatively few forensic document examiners in Colorado who work for law enforcement, most being in the employ of the Colorado Bureau of Investigation. These individuals undergo specialized training, serve a lengthy apprenticeship under a more experienced mentor, and likely belong to one or more organizations or societies of individuals in the field. They perform examinations in the lab, prepare reports of their findings, and testify as expert witnesses in court proceedings. So what does this all really mean?

One thing it could mean is that they could be called upon to offer an expert opinion as to whether a particular person signed a document, such as an allegedly forged check. The signature on the questioned check is compared to known samples of a person’s handwriting, and an opinion rendered on if the signatures were written by the same person. The known signatures can be other checks known to have been written on the account of the suspect, for example, or perhaps taken from the signature block of a contract.

If no good known samples exist, a defendant can be compelled by court order to provide exemplars of their handwriting for comparison to the original. These exemplars would simulate the conditions present when the questioned check was written, by offering a signature area the same size as the check, on similar paper, and used with a similar instrument (usually a ball point pen, but it could be a felt tip, fountain pen, or Sharpie, if that’s what the original was prepared with). Usually the writer is instructed to provide 10 or more signatures, and perhaps even a few left-handed ones for a right-handed writer.

Continue reading "Criminal Defense - "That's Not My Handwriting" ... or is it?" »

By Allen C. Gasper
Senior Partner
The Gasper Law Group

Effective January 1, 2009, the revocation period on first offender DUI cases has changed in the State of Colorado. While the period of revocation of license for blood alcohol content in excess of .08 has increased from a three-month period to a nine-month suspension, the reinstatement process appears to have eased considerably. The following information outlines the revocation and reinstatement rules currently in effect.

REVOCATION: The first episode of driving with a B.A.C. of .08 or greater results in a nine-month revocation.

• The revocation remains in effect until you complete the reinstatement process.

• ALL excess B.A.C. reinstatements are processed by mail. You should begin the reinstatement process approximately one (1) month prior to the month you expect to reinstate.

• If you were 21 or older at the time of the violation and have no other unsatisfied license restraints, you may reinstate after only 1 month of revocation – provided you install an Ignition Interlock Device (Interlock) in every vehicle you own or may drive.

• If your B.A.C. was below 0.17, you reinstate early, drive only an Interlock vehicle and do not have any B.A.C. when you drive, you may be eligible for an unrestricted license after four (4) continuous months of successful driving.

REINSTATEMENT: (9-month revocation): You must

1. provide an SR22 from your insurance company and maintain it for 9-months following reinstatement (3-years if you were involved in an accident);

2. complete an Alcohol Certification, Form DR 2598

3. complete an Application for Reinstatement, DR 2870, and

4. mail the SR22, the Alcohol Certification and the Application along with your personal check or money order for $ 95.00 to the address provided on the Application.

Continue reading "New Colorado First DUI Revocation Rules in Colorado. What’s the Scoop?" »