Hebets McCallin

Feeling the breeze in your hair, burning some extra calories, saving gas money, seeing your community from a different perspective, and keeping fossil fuel emissions out of the atmosphere are only a few of the benefits of cycling.  Boulder and Denver consistently make the list for top bike-friendly cities in the country.  Given that biking is encouraged in Colorado at both the state and local level, does that encouragement extend to a night out on the down?  If you’ve had a few drinks, you would think that state law would encourage you to ride a bicycle rather than drive, right?  The answer isn’t as simple as you might think.

Colorado law explicitly includes bicycles as a “vehicle” under the vehicle and traffic code.  This isn’t a case of a bike being lumped in with cars, motorcycles, mopeds and scooters by accident.  The legislature made a specific reference to include bicycles as vehicles (for those of you wondering, wheelchairs were specifically excluded from this definition).  Let’s take it one step further and look at Colorado’s DUI statute.  Under Colorado law it is illegal, while under the influence, to drive a motor vehicle or vehicle.  That’s right folks, in Colorado you can get charged with a DUI for making the seemingly responsible decision to pedal home from the bar rather than drive, and you will face the same potential repercussions as if you were behind the wheel.

OK, so the law is on the books, but is it enforced?  There is good news and bad news here.  First the good news:  I’ve been practicing criminal law for over 12 years and I can count the number of times that I’ve seen a Biking Under the Influence case on one hand.  Now the bad news: All the cases of Biking Under the Influence that I’ve seen were filed within the last 3 years.  It sure seems like District Attorneys are pursuing these cases more and more aggressively.    Biking is a much, much safer option than driving but beware, the police may be pulling over a Schwinn near you!

For many people, attending a Colorado Rockies game is the definition of summer time.  The Colorado Rockies have huge home field attendance numbers and have had some of the longest sell out streaks in major league baseball.  However, for some people misunderstandings or run-ins with other fans can lead to ejection or arrest when attending a Colorado Rockies game at Coors Field.

What to do if you get arrested at a Colorado Rockies Game

Whether you get arrested while at a Colorado Rockies game, or anywhere else, there a few things that you should always do.  First, you should tactfully decline to make any statements to the police.  Despite popular belief, there are many reasons to minimize your statements to the police.  The police often get their best evidence in a case from admissions that defendants make.  A lot of people feel that the pay a lot of money to watch a Colorado Rockies game and they should be given the benefit of the doubt.  Typically the first contact involving an incident at a game is made by stadium security rather than police.  If you are able to cooperate with security and put the issue to rest you should.  Remember, however, that once the police at Coors field get involved they will usually treat a Colorado Rockies fan like any other arrest suspect.  Once you have been contacted by the police if you do not comply with their instructions you may end up with more serious charges.

Hiring an attorney when you have been charged with a crime at a Colorado Rockies Game

If you have been charged with a crime at a Colorado Rockies game these charges are just as serious as any criminal charge.    Hebets & McCallin regularly handles both arrests arising from games and similar cases arising elsewhere.  If you want experienced criminal attorneys who understand the very particular nature of being arrested at a Colorado Rockies game, contact us for a free consultation.

Felony menacing is a criminal charge that sounds pretty intimidating, but a lot of people facing this charge are unclear about what this charge entails.  In Colorado the crime of menacing means that a person knowingly makes the victim fear imminent serious bodily injury.  Essentially, you might liken the crime of menacing to being charged with seriously threatening another person.  Felony menacing is a threat that also involves making the other person believe that you might have a deadly weapon.   Felony menacing would include saying you had a gun, or showing someone a weapon even if it was fake such as a water gun.  Felony menacing occurs anytime a defendant makes a person believe they are being threatened with a deadly weapon.

Because of the broad construction   of the felony menacing statute in the state of Colorado a defense attorney must understand these charges to be able to assist a defendant.  For instances courts have ruled in People v. Hines that even holding a deadly weapon in the presence of another person without pointing it at them might constitute felony menacing.  Intoxication is not a defense to this crime.  However, self-defense can be asserted to defend against this charge.  The prosecution must also prove that the defendant had the general intent to cause fear or threaten the victim.  There are many elements of this crime that also must be considered.  Felony menacing is often included when there are additional charges that a defendant is facing.  A defense to some charges like second degree assault does not necessarily mean that a person will be acquitted of felony menacing.   Every defendant should be properly advised on the risk they face of being convicted of felony menacing since it is still a serious crime.

I was talking to a younger cousin of mine recently about a criminal case he had read about in the paper.  In that case, a man was arrested and charged for having 40 kilos of cocaine in his basement.  However, when the case went to court, a judge suppressed all of the evidence found in the house, including the cocaine, because the police officers entered the home without consent, and without a warrant.  Because this left the state with no evidence, the case was dismissed.  My cousin was exasperated by this.  He said, “The guy is clearly a drug dealer and is going to get off clean because of a technicality!” The case that was dismissed illustrates the “fruit of the poisonous tree” doctrine, which is a long held exclusionary rule of evidence that precludes the admission into evidence anything obtained unlawfully through illegal search or seizure.  The phrase was coined in the famous Supreme Court case  Wong Sun v. United States, 371 U.S. 471 (1963), 488.

This is not the first time I have heard this opinion expressed, and I can understand an average citizen’s frustration when this happens.  When I was a deputy district attorney and saw situations like this first hand (and not infrequently), I felt the same way.  Yet, there is a sound philosophy behind this doctrine.  The basic idea is that we hold our guaranteed Constitutional rights in such high regard that if the government violates those rights (usually through actions of police officers), it should be sanctioned by losing the evidence that is illegally obtained.  The principal goal of this sanction is to make sure that law enforcement officials everywhere are deterred from this type of conduct.

Yes, it is true that the application of the “fruit of the poisonous tree” doctrine will mean that some clearly guilty criminals who were caught red handed will get off the hook.  However, we as a society must make sure that the police are policed.  Think of it this way- in our cocaine case example- what if the courts allowed the evidence to come in despite the Constitutional violation?  The message to police everywhere would be “Go ahead and obtain evidence any way you can, even if it means breaking down someone’s door without a warrant.  The courts will make it right.”  This would give way to an unchecked police force, and a severe undermining of the Constitution where our rights become meaningless.   The reason this won’t happen is because the rights of the individual must always trump the errors of the government- even if it means an otherwise guilty criminal will walk away unscathed.

The next time you hear “that person just got off because of a technicality,” you may experience a knee-jerk reaction that an injustice was done.  But think about it for a moment, and put yourself in the defendant’s shoes.  It might just be that justice prevailed.

I recently heard a great story from an attorney with a client accused of DUI.  The story the client told seemed typical.  He had drank a couple of beers while out at a bar with friends but he still felt in control and couldn’t figure out why the officer had assumed that he was DUI.  It wasn’t until the lawyer reviewed the police reports that he saw exactly why the officer had proceeded with the full Driving Under the Influence investigation and eventually obtained enough probable cause to arrest and charge the client.

As the client was driving home he saw the officer’s lights behind him.  “Uh oh” he thought, “I just had a couple of beers.  I’d better cover up that scent.”  He then grabbed his bottle of air spray car freshener and doused the car.  Here’s the problem: the car freshener that he used was piňa colada scented.  Back to the officer’s report, he describes his initial impressions when he approached the car.  “I smelled an overpowering scent of piňa colada.”  Yup, surprise surprise, the officer had a very strong initial belief that the client was drunk and he eventually charged him with Driving Under the Influence.

The moral of the story?  First impressions matter.  If an officer smells alcohol, or sees that your eyes are bloodshot and watery, or hears slurred speech, or any other indicia of intoxication, it’s pretty likely that you’re headed down the road to a DUI.  It doesn’t matter if you got up at 4 a.m. and that’s why your eyes are red.  It doesn’t matter if you have a speech impediment and you always sound slightly slurred.  If an officer’s initial impression tells him or her that you’ve been drinking, it is nearly impossible to change that impression.  Here’s my advice:  First, if you’ve been drinking, don’t drive.  However, if you’ve only had a beer or two and are behind the wheel, throw a mint or a piece of gum in your mouth before driving. If you have allergies, or if your eyes often tend to be red, use eyedrops before driving. Be smart and put yourself in a position where you don’t even start down the path to a DUI, because once you start down that path chances are you’re going to end up with a Driving Under the Influence charge, and need a DUI lawyer.

What would the world be like if you could drink as much as you want, but then sober up in only a few minutes by taking a pill?  Some intrepid scientists are trying to make this future a reality in their new study and clinical trials in humans.

The study was testing a drug on rats to determine if they could sober them up.  First, the researchers loaded rats so full of alcohol they couldn’t even stand up for an hour.  Then they tested the drug and when under its influence the rats could stand up and begin functioning after only five minutes.  After this test the researchers wanted to see how rats would function when put to a task that requires skill and concentration, which might be the equivalent of driving in humans.  Unfortunately, none of the rats had a valid license, so they had to settle for a good old-fashioned lab rat maze.  In this test the drunken rats became disoriented and cowered in the corner.  The rats given the drug could perform the task of navigating the maze after a short period.

The drug is about to enter its first human trials, but if it is successful it might raise many questions.  It is unclear at this point if a human subject would still record a BAC after using the drug.  It is also unclear how long it would take to make an individual safe to do something such as drive.  The drug might also have a great moral hazard by encouraging people to drink to excess.  Overall it is probably too early to tell if this pill will one day make an experienced DUI attorney obsolete.

Picture this: Oscar Pistorius woke in the middle of the night.  It was pitch black and he did not have his prosthetic legs on.  He heard a noise and realized with horror that his balcony doors were open and workers had left ladders leaning against the house.  Fearing an intruder, feeling exposed without his prosthetic legs attached, fearing for his life, he retrieved his gun, called out for the intruder to leave, and fired 4 shots through a door into his small bathroom.  It was only after firing the shots that he realized that his girlfriend, Reeva Steenkamp, was in the bathroom and had been mortally wounded.

Wow, sounds compelling, right?   Pistorius deserves our condolences and sympathy for this mistake that can only be called a tragic accident.  That’s the narrative that Pistorius’s defense team will advance.  The prosecution will argue that this was a cold-blooded, premeditated murder after a domestic dispute that spiraled out of control.  This case will rely heavily on emotion and on forensics.  Who has the advantage?

Let’s talk emotions.  This case is chalk full of emotions from either the defense or the prosecution point of view.  The advantage here goes to the defense.  They actually have the only living witness to tell their story.  Oscar Pistorius has already publicly released an affidavit recounting his version of events at his bond hearing.  All signs indicate that he will testify at trial and his testimony will follow the blueprint laid out in his affidavit.  We can expect this testimony to be gut-wrenching and apparently sincere.  The prosecution has their own narrative, but they will need to reconstruct the events from the evidence rather than from a first person account.  (Insert a passionate, righteous prosecutor telling the jury that the reason they don’t have witness to the events is because Oscar Pistorius made sure there wouldn’t be a witness).

After hearing the testimony how do we know who to believe?  Forensics.  Forensics is going to be a huge part of the case and will likely determine the outcome.  Right now details are still being released.  There are disagreements about the bullet angles of entry.  Was Pistorius on his stumps or on his prosthetic legs?  Did Pistorius aim straight through the door or did he aim at the toilet where Steenkamp was sitting?  There are significant questions regarding how the forensic investigation was conducted.  Why didn’t police investigators wear foot covers to prevent contamination of the scene?  Why did the police investigators miss a bullet which defense experts found in the toilet?  If they were so careless in these details, what else did they miss?  These questions are likely to dominate any future trial and right now the advantage is unknown and may remain so until the trial.

So does Oscar Pistorius have a leg to stand on?  So far he does, but we’ll leave you to ponder this.  Even if we buy everything the Pistorius has said, even if he thought Reeva Steenkamp was sleeping soundly in bed throughout this, he still fired four shots into a tiny enclosed space without knowing any details about what was behind that door.  It is very difficult to sustain a self defense argument when you can give virtually no details about the threat that you’re facing.

The Colorado Supreme Court issued an interesting decision in People v. LaRosa on January 14, 2013.  This case overturns a 100 year old precedent in Colorado criminal law and could impact the way many crimes are investigated and prosecuted.

So what is the issue in this case? The case involves the “corpus delicti rule” which states the prosecutors must present some evidence other than the defendant’s confession to convict them.  This may be physical evidence, testimony of a victim, or testimony of witness.  In this case a man was convicted using only his confession.  The Colorado Supreme court overturned the “corups delicti rule” and established a new “trustworthiness standard” which requires “the prosecution to present evidence that proves that a confession is trustworthy or reliable.   Basically, the prosecution just has to offer evidence that proves the confession.  Examples include if the confession was made multiple times to different people, if the confession consistent, and if the confession consistent with the defendant’s opportunity to commit the crime and many others.

In practice, the corpus delecti doctrine is not a major criminal law issue, simply because confessions are usually accompanied by at least some corroborating evidence that the criminal defendant committed a crime.  However, this issue does come up in crimes where there is little physical evidence that can be collected other than statements made by the individuals involved, such as child molestation or abuse cases.

So what does this mean for criminal defendants?  In the future this means that any confession made to police or anyone else may become a much bigger portion of the prosecution’s case.  This also means that defense counsel will have to calculate their trial strategy based upon this new trustworthiness standard.  The biggest implication is that this reinforces the advice that a defendant should never speak to the police without an attorney present.    We have said it before and we will say it again: an individual under investigation for a crime should always invoke their Fifth Amendment rights and remain silent.