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.

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.

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.

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.

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.

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.

Oftentimes, family clients will come in with not just a divorce proceeding, but with a restraining order and domestic violence charge. It seems one case goes hand in hand with the other. Other times, the divorcing parties are getting along so well that there is no need for the “packaged deal.” But when one partner gets out of hand, all of the issues boil over and the results are three cases rather than one. In order to better illustrate these issues, we will use the example of Brian and Jane.

This boil over usually starts when one partner becomes physically violent, or just refuses to accept the relationship is over. That partner, Brian as we will call him, is then arrested for domestic violence against the other, Jane as we will call her. When Brian, now called a defendant, appears for his arraignment, usually one business day after the occurrence, the Magistrate will issue a “No Contact Order.” This criminal “No Contact Order” prohibits contact between Brian and Jane for a period of 72 hours. The Court will also issue a criminal restraining order, which prohibits Brian from harassing, molesting or intimidating Jane throughout the course of the criminal proceeding. This continues even after a plea has been entered and throughout the period of deferred sentence or probation.

However, Jane may still feel uneasy about having only a criminal restraining order. That is when Jane obtains a civil protective order. This is the type of restraining order most people are familiar. Jane requests a restraining order through the court, and is generally granted a Temporary Protection Order. The Court then sets the matter for a hearing to determine whether the Order will become Permanent.

Brace yourself. I’m going to give you the bad news right upfront: You cannot seal the records of a criminal conviction in Colorado. Can’t do it. Period. Colorado’s rules on sealing are limited to cases where charges were never filed in the first place, where all counts have been dismissed, or where the defendant has been acquitted.

“But my case was over years and years ago,” you say. “I successfully completed probation. I did everything the judge and the District Attorney asked of me. Surely there must be some way I can wipe my record clean?” Sorry, old criminal records never die… and they sure as heck don’t fade away.

On the other hand, there just might be some good news for you if you were granted a deferred sentence. A deferred sentence is a deal where you agree to plead guilty and the District Attorney agrees to put off your sentencing for a period of time, up to two years in misdemeanor cases or four years in felony cases. Then, if you complete certain terms and conditions (substance abuse treatment or domestic violence counseling, for example) and stay out of trouble in the interim, at the end of your period of deferment all charges against you are dismissed. In such cases, the District Attorney may sometimes ask you to waive (or give up) your right to have your case sealed, but if not, congratulations, you’re eligible for sealing.

Although the Gasper Law Group specializes in Criminal Defense and Divorce and Family Law, I have worked in varied fields of law with a multitude of clients. While my past clients may have varied, one thing remained constant, my attitude to that client's case and my approach to opposing counsel. You see, I have one motto in my approach with opposing counsel, whether that be a district attorney or a private attorney, and that motto is, "you catch more bees with honey than you do with vinegar." This motto has served me well, both in private practice and in the government sector and has helped me secure the best deal for my client.

In Colorado Springs, this motto became patently apparent, recently, as I practiced as a district attorney for the El Paso County District Attorney's Office. An example would include when a pro se defendant would approach me regarding a plea bargain in his criminal case. Oftentimes, this pro se defendant, naturally upset about the position he would find himself, which included staring down the barrel of straight jail time for a DUI, Domestic Violence, or some other criminal issue, would let that frustration boil over. When that frustration came to a head, the defendant would take it all out on me. Once that happened, you could guess how I reacted to that frustration. Did I take pity on the defendant? Did I give him the best plea offer I could? No way Jose. I would give that defendant the worst plea bargain I could legally get away with. Why? Because attitude means everything!

The same was true in private practice. If the opposing counsel yelled, cursed and made me feel insignificant or foolish, I would rarely give him what he wanted. The same was true on the other side. If I ever became rude or angry to the opposing counsel I would rarely get what I was seeking. That is why I started, many years ago, with an attitude where I am polite, agreeable and congenial with my opposing counsel, whomever they may be.

Like it or not, people come into the real judicial system with expectations created by popular entertainment. Usually those expectations are way off base. As a deputy district attorney in the past and as a criminal defense attorney more recently, I’ve had to sit across the table from a victim, a witness, or someone accused of a crime and dispel those false expectations. And it ain’t easy to convince someone they don’t know what they “know.” You know?

For example, how many times has someone said to me, “The police officer didn’t read me my rights. Can I get my case dismissed?” Can you get your case dismissed? Well, maybe, but probably not, lots of emphasis on “probably not." It seems like every arrest on TV involves the officer reciting the suspect’s Miranda rights as he slaps the handcuffs on. Real life usually goes a little differently. According to the Supreme Court, the police do not have to read you your rights unless you are in custody and they intend to interrogate you. That means if you talked to the police out of custody – say, standing on the side of the road or at a friend’s house, for example – they don’t have to tell you that you have the right to remain silent. (Incidentally, if you don’t know by now that you have the right to remain silent, I suspect either you’re a recent immigrant or else there’s no hope for you). Also, if the police arrest you and don’t care to hear your side of the story, they don’t have to read you your Miranda rights as they haul you off to jail.

Take a look at any phone book ... there are hundreds of attorneys from which to choose! There are also a number of attorney locator sites on the web such as Attorney Find or Attorney Locate. Once you find a list of criminal defense attorneys in your area, the question becomes "How do I choose a quality defense attorney?"

There are several criteria that one might consider and these are in no particular order:

1. Experience - Some of the more obivous questions to ask are; "How long has the attorney been in practice?" "How long has the attorney been in the particular jurisdiction?" "What kinds of cases has the attorney handled?" Questions like these will give you a basic idea about the attorney and about the firm. However, a question that one might not think of asking is "How often is the attorney in court?" If the answer is less than 20 to 30 times a week, this may speak to the attorney's ultimate experience and his or her ability to understand the people and the procedures involved in the system. Frankly, this one question will speak volumes about the attorney's savoy in the courtroom and around the courthouse.

2. Price - This is always one of the defining issues, yet it may be the one thing that is of the least important. What should really be considered is the "cost" and not the "price". The difference is significant insomuch as not having an attorney may "cost" much more than paying the "price" to have quality representation. Additionally, many firms, like ours, offer payment plans that can ease the burden on defendants and their families.

3. Win-Loss Record - "What is the attorney's winning percentage?" In Criminal Defense this question is one that needs more of an answer then just numbers. On all the TV law shows, the defendant is either guilty or innocent ... and by the way, it all happens within an hour after his or her arrest! The real criminal defense system is much more lethargic, could take several months or even years to finish a case and a "win" could very well be "plea to a lessor charge" or "plea to a deferred sentence". So instead of asking the attorney about his "win-loss" record, it might be better to ask if his or her clients are generally happy with the results and if he or she gets lots of referrals!

4. Consult Fees - Some attorneys charge a "consult fee" for you to see them initially. Personally, this seems a little odd. I don't know what I'd do if I went to a car lot and the salesman approached me and said, "see that car with the tarp over it ... if you give me $150.00 I'll remove the tarp and tell you about it" ... well ... I'm afraid I want to "kick the tires" before I buy. If an attorney charges a consult fee, it may be that they are very good and just don't have time to see potential clients that aren't "serious" about hiring them. On the other hand, it may be that they need to pay their office rent!