Private Defense Attorney or Public Defender?

By diegocriminaldefense | Published: June 21, 2011

You may not qualify for the public defender, but if you do, you may be wondering whether you should keep your public defender or choose to hire a privately retained criminal attorney.

Public defenders are attorneys paid by the state, who do not choose their clients.  Similarly, you don’t get to choose which public defender you get.  In the case of private attorneys, individuals faced with a crime have available to them a wide array of attorneys with varying skill sets and fee structures to choose from.

Public defenders may be excellent lawyers, and many of them are; in fact, many excellent private criminal lawyers were once public defenders.  However, public defenders are incredibly busy and often handle a caseload that is simply unimaginable to a private attorney.  Because a private attorney chooses what cases he or she will take on, he can control his caseload and ensure that each client receives a high level of attention to detail.  If you are looking for an attorney to be available almost instantaneously on a 24/7 basis, a public defender may be too busy to provide you with that level of service.

That being said, not all private defense lawyers are created equal – perhaps an obvious point, but an important one nonetheless.  Use your better judgment; you can glean a lot about the way an attorney will treat you once he has your money from the initial phone consultation and the initial in-office consultation.

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Medical Marijuana Rule Changes

By diegocriminaldefense | Published: June 16, 2011

Today, the Colorado Board of Health approved a series of rule changes impacting the use and also distribution of medical marijuana.  Some have criticized these changes are pro-law enforcement.  Supporters of the changes argue the changes merely “clarify” the language of Amendment 20, while opponents argue that the changes seek to undermine Amendment 20.

Amendment 20, which legalized medical marijuana in Colorado, was passed in 2000.  That amendment defined a primary caregiver as an individual over the age of 18 who “has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.”

The portion of that definition which has been “clarified”  is the word “significant”.  Prior to the changes approved today, that word was interpreted to mean that the caregiver had only to provide the medical marijuana and consult on the benefits of its use.  Following the newly approved changes, to be implemented starting at the end of July, caregivers will need to do a lot more than that – perhaps even providing housekeeping, meal preparation, and transportation services.  No guidance, however, is provided as to how these rules will be enforced.

For more information about the author, visit Denver Criminal and Drug Crimes Defense Attorney Kimberly Diego’s website today.

 

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Driving on Pot Bill Killed in Colorado Senate

By diegocriminaldefense | Published: May 11, 2011

A bill that would have placed a “per se” limit on those driving under the influence of marijuana was killed this week in the Colorado Senate.  The bill would have placed a limit on the amount of THC one could have in their blood while driving, similar to the 0.08 limit constituting DUI Per Se in drunk driving cases.  Pro – medical marijuana lobbyists had vehemently opposed the bill, since frequent marijuana users may not be impaired by a level of THC that could constitute impairment for more infrequent users.  The Attorney General has come out and made a statement expressing his frustration with the bill’s demise.

This is certainly a victory from the criminal defense attorney’s perspective.  As it stands now, for a prosecutor to prove a case of driving under the influence of drugs, he or she must establish substantial impairment; having a firm number to establish, and not needing to show substantial impairment (which is not always very easy), would have made their task a lot easier.

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No Contact Orders May be Expanded

By diegocriminaldefense | Published: April 25, 2011

In Colorado, the law authorizes and in fact requires the issuance of protection orders in all domestic violence cases.  Current law allows not only a no-contact order, but also restrictions as to the possession of firearms, possession of alcohol, and any other restrictions the court deems appropriate to protect the safety of the alleged victim.

However, the law does not currently authorize the issuance of protection orders in non-domestic violence scenarios.  A change is currently being contemplated that would change that, instead allowing judges in all Victim Rights Act cases to impose protection orders.  Some crimes covered by the Victim Rights Act are: murder, manslaughter, criminally negligent homicide, vehicular homicide, assault, vehicular assault, menacing, kidnapping, sexual assault, unlawful sexual contact, robbery, incest, child abuse, sexual exploitation of children, crimes against at-risk adults or at-risk juveniles, domestic violence cases, stalking, careless driving that results in the death of another person, failure to stop at the scene of an accident, where the accident results in the death of another person, retaliation against a witness or victim, indecent exposure, violation of a protection order.

The judge would be empowered to impose such a protection order on the district attorney’s motion, or the court’s own motion where the court deemed such action necessary to protect the victim.

This move has been and continues to be opposed by the Colorado Criminal Defense Bar, and unsurprisingly, has received support from District Attorneys’ offices.

 

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Changes to Community Corrections Contemplated by Colorado Senate

By diegocriminaldefense | Published: April 23, 2011
SB 110-254 contemplates changes to non-residential community corrections programs, insofar as it would permit time credit for these programs.  Additionally, the bill creates criteria for when someone serving a sentence to community corrections may be considered for early termination of his or her sentence.  Specifically,a defendant who has successfully completed the residential phase of a community corrections sentence, has paid the costs of the residential program in full, and is being supervised on nonresidential status at either a law or administrative level is eligible for consideration for early termination of his or her community corrections sentence by the court.
When an individual fits that criteria, their probation officer must submit a petition for early termination to the court, also notifying the district attorney and defendant of the petition’s filing.  Also, the probation officer will provide victim notification where it is required to do so.  Then, the court will decide whether to grant the petition based on factors enumerated in the proposed law: the defendant’s assessed risk of reoffense, victim input, the defendant’s compliance with the terms and conditions of the sentence or community corrections program, completion of any treatment required by the court or community corrections program, and other factors deemed relevant by the court.
If in fact termination is granted, any outstanding court-ordered restitution, costs, and fees may be converted to a civil judgment.
The bill additionally would remove the existing 25% cap on the amount of time credit deductions that can be awarded, and would give community corrections discretion in the forfeiting of time credits for those who abscond.
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New Bill Introduced in Senate Seeks to Impose Changes to Colorado Parole Board

By diegocriminaldefense | Published: April 22, 2011

Senate Bill 11-241, recently introduced in the Colorado Senate, seeks to implement several different changes to the operation of the Colorado Parole Board.

Specifically, the bill requires that Parole Board members have a minimum of a bachelor’s degree, at least five years experience in a relevant field, and knowledge of issues related to parole.  Also, the bill requires each Parole Board member to complete a minimum of twenty hours of training annually.

The bill also makes modifications to the special needs parole program, insofar as it redefines what constitutes a special needs offender.  It allows inmates convicted of violent offenses (except for those who are not eligible for parole) to be considered for special need parole if they meet the other criteria. However, it does require that people convicted of a class 1 felony committed prior to 1990 (who have a parole eligibility date) serve a minimum of 20 years before eligibility for consideration for special needs parole.  The bill does allow DOC to refer an inmate to the Parole Board for special needs parole at any point and specifies what must be included in the referral, including a review of the inmate’s medical condition, likelihood of re-offense, a recommendation, any victim input received, and details of the parole plan.

Additionally, the bill creates a presumption of parole for inmates that meet eligibility criteria and have an ICE detainer.  In order to be eligible for this presumption of parole an inmate must: (1) be parole eligible; (2) have been convicted of a nonviolent offense; (3) be assessed to be medium or low risk of re-offense; and (4) have an active ICE detainer that ICE will execute if the inmate is granted parole.  If an inmate meets these criteria, only a majority vote of the Board can deny parole. A condition of parole must be that ICE take custody of the inmate. If ICE withdraws its detainer or indicates that it will not take the inmate into custody, the Parole Board must conduct a recission hearing to reconsider granting of parole.

 

 

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Impact of Immigration Holds in Colorado Criminal Cases

By diegocriminaldefense | Published: April 14, 2011

A criminal case involving a U.S. citizen and a criminal case involving a non-citizen are radically different.  A U.S. citizen need only worry about jail time, fines, and other court imposed conditions.  Also, a U.S. citizen can pay a bond and remain at liberty while his case is pending.

Things can go very differently for a non-citizen.  Once a non-citizen is arrested and taken into custody, immigration authorities are notified and have the power to place an “immigration hold” on the case.  That means that even if the non-citizen pays his bond, he will be released to immigration custody rather than remaining at liberty.

If immigration charges are filed, an immigration bond will be set.  At that point, the non-citizen can pay the immigration bond and remain out of custody during the pendency of his criminal and immigration cases.

Recently, the Colorado Senate considered, but ultimately rejected, a bill that would have penalized bail-bond firms in cases where their clients are ultimately deported as undocumented immigrants.

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Colorado Senate Bill Targets Meth Manufacture

By diegocriminaldefense | Published: April 11, 2011

The Colorado Senate is now considering a bill that would make all drugs containing pseudo ephedrine unavailable over the counter. Currently, some restrictions on the sale and purchase of this drug already exist – including a minimum age for purchase, and a limit on the amount of the drug an individual can purchase.

Drugs containing pseudo ephedrine are sought after as precursors for the manufacture of methamphetamine.  While this drug is typically available in drugs aiming to address cold and flu symptoms, it can be used to create the highly addictive drug.

The Bill aims to restrict the ability of methamphetamine “cooks” to manufacture the drug.  However, it could also have the effect of making it more difficult for some in need of pseudo ephedrine for legal purposes to obtain the drug – given that they would need a prescription.

Opponents to the bill have argued that a more effective means of targeting the cooks would be to create a statewide database tracking pseudo ephedrine purchases.

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House Committee Kills Juvenile Parole Bill

By diegocriminaldefense | Published: April 11, 2011

Recently, the State House Committee voted down a bill that would reverse the life sentences of 48 murders in Colorado.  Each of these individuals was a juvenile at the time they committed the offense for which they are incarcerated.  Between 1992 and 2006, Colorado applied life without parole to certain juvenile offenders.  This was changed in 2006.  However, for those juveniles sentenced between 1992 and 2006, parole is not possible despite this change in the law.

What HB 1287 would have done is granted people convicted as juveniles parole eligibility after 40 calendar years in prison.  Even if paroled, they would have remained under the supervision of the Colorado Department of Corrections as parolees for a lifetime.  Parole would not have been automatic, and instead would only have given these individuals a potential second chance.

 Several victims’ families vehemently opposed the Bill.

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Proposed Changes to Identity Theft Statute in Colorado

By diegocriminaldefense | Published: April 8, 2011

The Colorado House of Representatives is considering changes to the identity theft statute, in reaction to a case decided by the Supreme Court in 2010 (Flores-Figueroa v. United States).

The changes proposed would add falsely claiming the personal identifying information of another person with intent to obtain or maintain employment to the list of actions considered to be identity theft.  Furthermore, to commit identity theft it would not be necessary that the person be aware that the personal identifying

The bill clarifies certain statutory language describing the offense of identity theft. Falsely claiming the personal identifying information of another person with intent to obtain or maintain employment is added to the list of actions considered as identity theft. To commit identity theft, it is not necessary that a person be aware that the personal identifying information involved in the commission of the offense actually belongs to another person.  The Flores-Figueroa case held that the government could not establish aggravated identity theft without also establishing the defendant had such knowledge.

The bill further amends certain language describing the elements of the offense of criminal impersonation to require the assumption of a false or fictitious identity or legal capacity under some circumstances and the assumption of a false or fictitious identity or capacity, legal or otherwise, in other circumstances. Using false or fictitious personal identifying information shall constitute the assumption of a false or fictitious identity or capacity for the purposes of charging a person with criminal impersonation.

 

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