Posted On: April 28, 2010

Pleading the 5th - Part II

Staff Attorney
Gasper Law Group, PLLC

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!)

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Posted On: April 26, 2010

Drug Cases: Different Rules for Sealing

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.

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Posted On: April 26, 2010

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

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.

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