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?

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.

The matter will be set for either a Disposition Hearing or a Preliminary Hearing. A defendant is entitled to a Preliminary Hearing only under the following conditions: (1) the highest charge in the Complaint and Information is a Felony 1, 2 or 3, or the individual defendant is in custody at the time of the Preliminary Hearing. A Preliminary Hearing may be waived by the defendant. At a Preliminary Hearing, the District Attorney is required to present sufficient evidence for the Judge to determine the existence of Probable Cause supporting the belief that a crime was committed and that the defendant committed the crime. Contrary to public belief, the Court must determine only that there is evidence sufficient to proceed to trial and whether such evidence might support a conviction of the defendant. Because the evidence in this Hearing is viewed in the “light most favorable to the prosecution,” the court does not place a great amount of weight on the credibility of the witnesses. Hearsay, an out of court statement which is offered for the truth of the statement, while usually not allowed in trial is acceptable in a Preliminary Hearing. If the prosecution meets its burden in the Preliminary Hearing, the case will proceed in District Court.

Step Five:

The next step in the process is the “Arraignment,” at which time the defendant will enter a plea – either “guilty or not guilty.” If a plea disposition is reached, the agreement will be taken by the Court and a new date for Sentencing will be set. If no agreement is reached, the Court will set the matter for trial, which includes dates for Motions Hearings, Pre-trial conferences and other dates in order to deal with legal issues and other “procedural” matters prior to trial.

Step Six:

More often than not, issues are presented in the District Attorney Discovery (the DA file which contains police reports, witness statements, laboratory reports, expert reports, official state records, etc) which require the defendant to argue the “validity” of the information to be presented to the jury. For instance, a defendant was questioned by the police, after being taken into custody but prior to the officer reading the defendant his legal rights (Miranda Warning). This type of problem would be fertile ground for the filing of a Suppression Motion, asking the Court to exclude the defendant’s statements based upon the police not following the proper procedure to protect the defendant’s rights. A Motions Hearing is a hearing in which the defendant can present evidence to support his Motion and to request the Judge determine the validity of the legal issues presented.

Step Seven:

The defendant has the right to trial, either by Court or Jury. In District Felony cases, the jury consists of twelve (12) persons with the addition of alternates (may be one or more). It is important to note that a verdict must be unanimous, all twelve must agree. Additionally, due to the Right to Speedy Trial, the defendant must be tried with six (6) months from the date of the entry of a plea of not guilty. This Right to Speedy Trial can be waived at any time during the process for good cause shown. In the criminal justice system, the burden of proof is on the Prosecution and that proof must be beyond a reasonable doubt.

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!)

What factors go into deciding whether to testify at your trial? Stay tuned.

*Many important concepts in the law are named after landmark cases involving defendants who are otherwise undistinguished individuals. One example is Mr. Miranda, an otherwise insignificant person who ran afoul of the law in Arizona, but wound up having Miranda rights named after him because the Supreme Court agreed to hear his case. Similarly, Mr. Curtis had his case heard which clarified exactly what a judge must advise an accused during his trial about his 5th amendment rights. Important cases are not named after the attorneys who won them, but rather their clients. However, unless your name is Lou Gehrig, diseases are not named after the patients; rather, they are named after the doctors who first ‘discovered’ them. Go figure.

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.

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.

So what do you do? There are a number of ways to make it less likely you’ll be arrested for driving in your sleep. Don’t get in the driver’s seat. In fact, don’t get in the passenger’s seat either. Sleep in the backseat. Don’t put the keys in the ignition, even if you’re just turning on the radio or the heater (hopefully, you have a blanket in the trunk). Don’t put the keys in your pocket. You want to be as far from your car keys as possible in this situation. Of course, none of this guarantees you won’t be arrested or charged with “Driving” Under the Influence, and defense attorneys like to trade stories about this man or that woman arrested while sleeping in the backseat with the engine off and the keys in the glove box. (Yes, it does happen).

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.

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.”

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.

And “against” yourself? The easy one is that you could not be forced by the judge at your own murder trial to take the stand and admit the crime. But what if telling the truth, perhaps at someone else’s trial, might make you look bad? What if it could affect your ability to get a job, or maintain custody of your kids? What if it could result in you being placed under investigation for a criminal act for which you were not even a suspect prior to getting the subpoena? Again, we can help. Stay tuned for Part II.

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.

No more than 100 offenders may be assigned to the program at any given time and no more than 400 offenders shall be assigned to the program in any one calendar year. However, the executive director may replace those offenders who fail to complete the program with other offenders who are deemed eligible.

If the original charge against the defendant does not preclude his participation, Boot Camp provides a viable avenue to successful reconsideration by the Court and should be examined closely for its inclusion in a felony plea agreement. It should be noted that acceptance in the Boot Camp Program is not guaranteed, even if recommended by the sentencing judge and supported by the plea agreement.

By Allen C. Gasper, J.D.
Senior Partner
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.

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.

So, back to the questioned check and the samples. The examiner will look for certain characteristics in the writings, such as shapes of the letters (does he always open or close his lower case “a”, for example) spacing, height of capital letters, loops, dots in the letter “i”, tails on the ends of words, etc. How hard the pen is pressed to the paper can be compared, which will naturally vary within a signature, but with some consistency across the samples. Document examiners always prefer the ink originals, but can also work with photocopies. Much of this is done under a microscope, or through strong back lighting. Transparent copies are often prepared for direct overlay comparison.

The examiner will then render an opinion, with varying degrees of certainty, about whether the samples and the questioned check were written by the same person. Rarely will he declare it a perfect match with 100% certainty, but it could be something like “highly likely”, which will be good enough for the DA to run with. A finding that the signatures are “consistent with one another” would be admissible in court, but far less damaging. (Having a red Chevy might be “consistent with” what the bank robber drove, but that’s not enough to convict anyone.) A finding that the signatures are “inconsistent with one another” will generally be good news.
At the risk of stating the obvious, the better and more consistent a person’s writing, the easier the comparisons are to make. Terrible penmanship (such as mine) will make it tougher on the prosecution. Yes, you can try to fake your exemplars, but do a poor job of it, and your faked exemplars will be blown up on a big screen for the jury to see, along with the examiner’s expert opinion on what to look for when someone’s trying to mask their true signature. That could look worse for you than a merely “consistent” finding, so don’t do anything silly without getting expert legal advice.

If the stakes are high enough, and the evidence in the case could go either way, a defendant can always consult (and pay for) his own document expert to perform an examination. Assuming procedures are followed to check out and properly preserve the prosecution’s evidence, this right cannot be denied. A defense expert might come to a different conclusion than the DA’s, or might simply testify that the methodology used by the prosecution expert was flawed in some fashion. Choosing the right expert for this purpose is critical, as they will need to have the professional experience and credentials to challenge the findings of a very capable prosecution witness. If they reach the same conclusion as the DA’s expert, then we’ll have to take a hard look at “Plan B”-whatever that is.

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.

5. have an Interlock installed in every vehicle you either own or may drive (call a provider on the list below for an appointment)

• include the notarized Restricted License Ignition Interlock Agreement Affidavit, (DR2058) and
• include a signed copy of each interlock lease agreement and each installation certificate

HIGH B.A.C.OFFENDER: In addition to Items 1, 3, & 4 ( and 5 – if you reinstate early), if your B.A.C. was 0.17 or higher, regardless of whether you reinstate early, you MUST

6. enroll in and complete Level II Alcohol Education and Therapy

• include the Affidavit of Enrollment, DR 2643. (Omit Item 2 above)

7. have an Interlock restricted license for at least 2 years following reinstatement.

You should expect at least 3 weeks for processing once you mail in your Application with all required documents. Once your Application is process, you will receive a Letter of Clearance. You MUST then apply for a License at any Colorado Driver License Office. For further assistance, contact Driver Services – 303-205-5613

COLORADO’S ONLY AUTHORIZED INTERLOCK PROVIDERS

Smart Start 800-880-3394

While your privilege to drive is Interlock restricted:

• Your Interlock restriction may be extended if – on 3 or more occasions – you drink ANY alcohol before you attempt to drive, even if you drink the night before you attempt to drive.

• Your privilege to drive will be revoked for at least 1 year if, even once, you drive a non-equipped vehicle or try to circumvent or by-pass the Interlock under any circumstance.

FOR MORE INFORMATION OR TO DOWNLOAD ANY FORM LISTED ABOVE, VISIT www.colorado.gov/revenue/dmv

Question: “If I take a polygraph, is it admissible in Court?”

Long Answer: “It depends on the definition of ‘it’…….Really, I’m serious”

To correctly answer your question, I’ll make a few clarifications up front. First, we’re only discussing Colorado here, not other states, or the federal system. Secondly, unless noted, we’re discussing its use in criminal cases, not civil or divorce cases. Thirdly, this is not a dissertation on whether an employer, or the military, can require you to take one as a condition of getting or keeping a particular job or security clearance.

In a pending criminal case, or an open investigation, you cannot be required to take a polygraph. It is strictly voluntary. Most importantly, it is critical to distinguish the results of the exam (i.e. did the person pass or fail) from what was actually said to the operator during the exam. So here goes.

Polygraphs have been around in one form or another for a long time. Essentially, the test measures various physiological responses to certain key questions. Generally, this would include blood pressure, pulse rate, respiration rate, and skin conductivity, all of which can show slight deviations from “normal” if a person is under stress from lying directly to the operator. In theory, these indicators are distinguishable from the obvious overall stress the subject is already under as a result of being hooked up to the instrument in the first place.

The entire process will take at least a couple of hours. You’ll first give a narrative of your side of the story and then be given instructions on how to respond. You’ll be given certain control questions (“Have you ever told a lie?”--the correct answer is ‘yes’ to that one, unless you’re perfect) to compare your responses to the two or three ultimate, key questions you’ll be asked and tested on. It’s likely to be videotaped. While the instrumentation and techniques have changed with the times, ultimately there will be a conclusion by the operator that the person was deceptive to one or more of the key questions, or was truthful. Sometimes, the results come back as inconclusive, which means even the operator does not have an opinion.

The courts have concluded that the process is not sufficiently reliable to admit the results in a criminal court proceeding. If you took one and failed, the District Attorney cannot refer to that fact in any fashion in your trial. Nor can he mention that you refused to take one, or even use the word “polygraph” at all. This cuts both ways, however. If you took one and passed, you cannot tell the jury either (unless for some reason the DA and judge agree to let you--good luck with that). Nor can you tell the jury that you were perfectly willing to take one, but the DA and police would not even let you.

So why ever bother? It can still be an invaluable investigative tool for all concerned. In a close case, the DA might be willing to let you take one anyway, and factor in the results when deciding whether to proceed with a prosecution. To have it carry any weight with the DA (who has all the power in this situation), you’ll need to either go with a police operator, or one the DA will trust. If you pass, you might get a dismissal instead of the uncertainty of a trial, and if you fail, the results don’t come in anyway. Right? That’s where it gets tricky.

Question: “I got into some trouble while in Colorado. As much as I enjoy the scenery and skiing here, I just want to go home to Texas (or Kansas, or wherever). When can I?”

Answer: “When Colorado and Texas say you can. Not before.”

Once you indicate a desire to move out of state, you are subject to the terms of the Federal Interstate Compact. In a nutshell, states are required to follow a uniform process when transferring a person’s probation to another state. If you have a felony probation (resulting from a conviction) the process is more formalized, and you cannot leave until you have been cleared to do so.

If you were a bona fide resident of Texas, and just got into trouble while here temporarily (say, on vacation, or a temporary business assignment), you will need to go to the local probation department in Colorado where you were sentenced, and ask for Reporting Instructions back in your home county in Texas. Generally, this process goes quickly- perhaps a few days-and you then are provided, in writing, specific instructions on which probation office in Texas to report to, whom you are to see, and when to show up. When you get these instructions, you are then free to go home, but you must still follow all conditions of your Colorado probation while in Texas. Not so bad, was it?

Let’s now say you got into trouble here as a Colorado resident, got probation, but now want to start a new life and relocate to Texas to serve your probation. Don’t pack your bags just yet. Even if your Colorado judge says it’s OK, that’s just one hurdle. You must put in a Transfer Request, once again to your local probation officer, specifying how and why you should be allowed to relocate to Texas (the state you wish to relocate to is known as the receiving state).

You’ll need a sponsor in Texas of some sort, who will vouch for your ability to find housing, maintain employment, and meet the terms of your probation. For example, if you have lost your driving privileges, you’ll need to show that you can get to work somehow, and legally. If you are required to take drug treatment, those services must exist where you plan to live, and you’ll have to be able to pay what is required.

These are just the basics principles. There are different rules and requirements for deferred sentences, misdemeanors, repeat DUI offenders, domestic violence cases, sex offenders, cases involving firearms, and for members of the military, or their dependents.

Each case is individualized to some degree, and an attorney familiar with local practices and procedures can assist you in getting back home. Good luck, and stay safe.

One of the most seemingly simple, yet underestimated tasks that a law office faces is that of process service. From the recipient of the dreaded Summons and Complaint that transforms the law abiding citizen into a “Defendant”, to the unsuspecting soon to be “ex”, the experienced process server needs to expect the unexpected.

Although a recipient will occasionally respond with a relenting “Thank You”, the server will more likely hear a less endearing phrase as he or she retreats to their car, hopefully before the vicious dogs accidentally escape out of the subject’s house. On the other hand, the server can experience simultaneous confusion and relief when the 6’4", 300 pound biker named Tiny holds out one hand to for the divorce papers, and shakes the server’s hand with a John Wayne grip and says, “Come in for a beer and celebrate with me.”

The successful process server not only needs to become an expert in surveillance techniques, but is also expected to identify and convince an uncooperative subject to open the door and accept service. Incidentally, the word “accept” is subjective in itself, and is often interpreted to mean that the documents were literally thrown at the subject’s feet, followed by the phrase “You got em now.” And let’s not forget that the private server doesn’t possess any type of badge or uniform. In fact, the closest thing to a uniform that a savvy server will wear is a Domino’s ball cap, and their only available weaponry may consist of an empty pizza box, or perhaps a bouquet of flowers for those really desperate assignments.

And here’s a little free advice for those lucky recipients. If you receive a subpoena to appear, you’ll be well served to cooperate with the law office that issued the subpoena. By doing so, the staff can generally work with you regarding scheduling, at least to the best of their ability. You may otherwise be destined to spend countless hours in the hallway of the courthouse. Also remember that failure to appear can result in the court issuing a warrant for your arrest. You also want to be careful to avoid not appearing on the advice of somebody that you are not certain is a legitimate staff member of the issuing attorney. With respect to being served with civil papers such as a Summons and Complaint, your failure to comply as directed will likely result in a default judgment. In short, once you’ve been served, they’ve gotcha!