Posted On: December 26, 2009

YOGA BREATHING YOUR WAY THROUGH A CRIMINAL PROCEEDING

By Tonya Holliday
Sr. Paralegal
The Gasper Law Group

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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.

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Posted On: December 26, 2009

DUIs and Strict Liability: Why Your Good Intentions Do Not Matter

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.”

Posted On: December 26, 2009

Pleading the 5th-What You Thought You Knew

Staff Attorney
Gasper Law Group, PLLC

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.

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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.

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