Articles Posted in Criminal Defense

By Caryn J. Adams
Partner and Managing Attorney
The Gasper Law Group, PLLC

Several times in the past few months, I’ve talked with people, both clients and other acquaintances, with some odd misconceptions of what it’s like to serve a short jail sentence. And here, I’m talking about nothing more severe than a month or two in the county jail. Prison, of course, is a complete different creature. Some of the questions about jail were born of fear. Some were born of idle curiosity.

Now, a little disclaimer: For all that I’ve been inside the local jails in El Paso, Teller, Douglas, and Pueblo Counties many, many times, I’ve never actually served a jail sentence. Sure, I’ve been visiting when an emergency within the jail has kept me locked up an hour or two more than I expected, but I never had any doubt that the deputies would release me, eventually. I’ve never spent a night in a jail bunk, rather than my own bed.

In writing this blog, I called the jail and asked if someone could direct me to a FAQ sheet. Apparently, there wasn’t one of the kind I was seeking. However, Sgt. Gregory White, a Public Information Officer with the El Paso County Sheriff’s Office was kind enough to answer some basic questions about the Criminal Justice Center, our local jail. His answers to the following questions I can confirm through my own second-hand experience:

What does an inmate’s schedule consist of?

In the general population, unless an inmate is on some kind of disciplinary lockdown, he or she does have time during the day to exercise, play cards, read, watch television, or engage in similar activities.

What food does an inmate eat?

The jail serves “institutional food” three times a day: breakfast, lunch, and dinner. Lunch is a sack lunch with a sandwich, fruit or something similar, and a drink, typically juice. Breakfast and dinner are hot meals. Most of the food is pretty bland, and there’s not much choice. Meals need to be easy to prepare for up to 1,500 inmates. Inmates prepare all the food. [And sometimes they squash the sandwiches, although of course that’s me talking and not Sgt. White.]
What supplemental items can be bought through the commissary?

If inmates have money on their books, either because someone puts money on their books or because they come in with money, commissary is available once a week. Food items, such as ramen noodles or candy, can be purchased, as can writing materials, socks, underwear and like items.

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By Caryn J. Adams
Partner and Managing Attorney
The Gasper Law Group

Drug Cases: Different Rules for Sealing

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.

Finally, petitions to seal brought under C.R.S. 24-72-308.5 are more limited in scope than petitions to seal brought under C.R.S. 24-72-308. For one thing, sealing the conviction records does not vacate the conviction. This means that the conviction can be easily unsealed and used as a prior offense in any subsequent prosecution for similar charges. The conviction sealed under this subsection may also be used by a criminal justice agency, law enforcement agency, court, or prosecutor for any lawful purpose. The conviction will also show up on criminal history records checks that are required by law. In fact, the only real benefit to having your drug-related conviction sealed under this subsection is that it allows you to tell private employers, landlords, and some local and state agencies that you have not been criminally convicted and prohibits them from requiring you to disclose and information concerning the sealed conviction records.

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“You are under arrest for assault … you have the right to remain silent … “
So what exactly are they saying you did? I mean, all you really did was defend your honor in the bar when someone else said something to your girl, right?

Well, assault in Colorado comes in different degrees, but always represents some form of threats of physical harm, attempts to cause physical harm, and offenses actually causing bodily harm. If you use a “deadly weapon” during the assault, you’ll be facing felony-level charges, even if that deadly weapon is a bottle, or a piece of wood, or your own hands.
The penalties can be quite harsh.

Third Degree Assault is a Class 1 Misdemeanor, and it is also considered an “Extraordinary Risk Crime”; a defendant can face incarceration of up to two (2) years. If the victim of the misdemeanor assault is pregnant at the time of the assault, and if you know she’s pregnant, then you’re facing a mandatory six (6) month jail sentence.

Second Degree Assault is usually a Class 4 Felony, but it’s also typically a “Crime of Violence.” Crimes of Violence carry mandatory prison sentences. In the case of a defendant convicted of Second Degree Assault, the mandatory prison sentence is usually five (5) to sixteen (16) years in the Department of Corrections and a potential fine of up to $500,000.

First Degree Assault, typically a Class 3 Felony, also carries a mandatory prison sentence upon conviction: ten (10) to thirty-two (32) years in the Department of Corrections with fines not to exceed $750,000.00.

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“You are under arrest for Domestic Violence … you have the right to remain silent … “
By The Gasper Law Group, PLLC, Criminal Division Staff

Domestic violence” in Colorado is defined as “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship”. ‘Domestic violence’ also includes any other crime against a person, or against property, including an animal … when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”
It’s true … you may not even have struck your spouse or girlfriend. All you did was put a hole in your own wall while busting up your hand in the process. Domestic Violence! Oh, and these crimes carry with them some pretty severe punishments. If you are convicted, your conviction may be posted on public databases for the rest of your life. No problem, you can just have your record sealed, right? Ah, not so fast. Currently, Colorado law prohibits the sealing of any domestic violence convictions. That means EVER.

So, you are in the military or you are a hunter? No more. Your domestic violence conviction, whether harassment or assault, and even for misdemeanor level charges, will prevent you from possessing or controlling a firearm. 18 U.S.C. § 922(g)(9). This may be true whether you are given a deferred or adjudicated sentence as those may still be convictions under federal law. Your military career could be over as well as your ability to bag that 15-point buck!

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By Brandon A. Prenger*
Hey welcome back. If you’re reading this you have decided that option number 1 is not going to work out. That leaves you with option 2. Let’s keep in mind, all the standard restrictions apply to option 2 just as option 1, so you still can’t contact the Protected Person in any way. This way is the long way for a reason; statutorily you have to wait 2 years from the issuance of the protection order to petition the court to dismiss it. This has recently changed from a 4 year waiting period to a 2 year waiting period, which highlights the ever changing laws and the need for an attorney to guide you through the process.

Once the 2 year waiting period has passed, the first step is to get fingerprinted. You need to get fingerprinted in order to conduct a fingerprint based background check. This can be done at your local police/sheriff’s office. You’ll need 2 separate fingerprint cards, one for the Colorado Bureau of Investigation and one for the Federal Bureau of Investigations. The FBI requires you to provide a few extra documents, but your attorney can help you with those. Once your cards are submitted to the CBI and the FBI, it’s a waiting game. It often takes several weeks to get these results back.

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By Brandon A. Prenger*
You’re probably wondering what this Protection order thing means. A Protection Order prohibits you from contacting, harassing, injuring, intimidating, molesting, threatening, touching, stalking, sexually assaulting or abusing any Protected Person, or from entering or remaining on premises, or from coming within a specified distance of a Protected Person or premises, or from taking, transferring, concealing, harming, disposing of, or threatening harm to an animal owned, possessed, leased, kept, or held by a Protected Person, or any other provision to protect the Protected Person from imminent danger to life or health. Additionally, being the subject of a Protection Order may prevent you from owning or possessing firearms and ammunition.

Now you’re probably thinking “this is no good” or more likely “what do I do now”. First and foremost, follow the above paragraph. Failing to strictly abide by a Protection Order will result in you being arrested and charged with a criminal offense. Even indirect contact such as text messages or having someone else contact the Protected Person is considered a violation of your Protection Order. So again, just leave them alone completely until the Protection Order matter is resolved.

Once you have a Protection Order against you, there are two ways to handle it, the long way and the short way. Unfortunately, you only have control over the long way, but we’ll talk about that in part 2. So what’s the short way? It’s simple, you ask the Protected Person to drop it, well not you personally, but you know that already. That is where your attorney comes in. Your attorney can contact an opposing party to discuss the facts and possible outcome of a case. This allows your attorney to speak directly to the Protected Party. If the Protected Person agrees to drop the Protection Order, the process is relatively quick and simple. All that needs to be done is your attorney will file a stipulated motion that is signed by both parties and you are done. However, if the Protected Person does not agree to drop the Protection Order, you are forced into the long way. See Part 2.

* Brandon A. Prenger is an attorney with The Gasper Law Group, PLLC. The Gasper Law Group, PLLC serves Colorado Springs and surrounding counties in the areas of Criminal Defense, Divorce and Military Divorce and Personal Injury. You can reach the firm at (719) 227-7779.

www.gasperlawgroup.comFace the music today, or face something worse tomorrow—why you need to make your Court dates.

Question: “ I have a court date coming up. What if I just decide not to show up?”

Answer: “Bad idea. Really bad idea—unless you have a nice cabin deep in the woods.”

Regardless of the severity of the charges you face, from a parking ticket to a homicide case, the system has a response to anyone failing to show for court. In a nutshell, the more serious the initial charges, the harder the system will work to get you back, and the higher price you’ll pay for missing court. Let’s start with the light ones, and work up.

If you are charged with a simple traffic offense; say, speeding, you were likely issued a summons to appear at a certain time to address the charge. If you miss the date, the points will issue against your license by default, and you will still owe the fine and court costs. A warrant could issue by the court, so the next time you are contacted by law enforcement for any reason (maybe another ticket), you could be arrested on the spot, and be required to post a cash bond equal to the amount owed on the ticket to satisfy the debt you owed the court. Not worth it, was it?

In a misdemeanor case, generally a summons is issued. Once again, if you miss court, a warrant would likely issue, but this time an appearance bond would be set. You would then need to post the bond, either paying the full amount in cash, or through a surety, i.e. , a bail bondsman. The bail bondsman is paid a non-refundable fee by you, ranging from 10 to 20 percent of the face of the bond, in exchange for promising the Court that you will appear. If you miss court again, the bondsman has to pay the Court the full amount of the bond, but two things happen to you.

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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.

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by Allen C. Gasper
Senior Partner
The Gasper Law Group

Unlawful Sexual Behavior is found in Colorado Revised Statutes § 18-3-401 and following. It is important to understand several definitions that are included in the Statutes:

1. “Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this Part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this Part 4.

2. “Intimate Parts” means the external genitalia or the pernium or the anus or the buttocks or the pubes or the breast of any person.

3. “Pattern of Sexual Abuse” means the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.

4. “Physically Helpless” means unconscious, asleep or otherwise unable to indicate willingness to act.

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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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