COLORADO DUI BENCHBOOK

Transcription

1 COLORADO DUI BENCHBOOK EDITION H. PATRICK FURMAN Managing Editor COLORADO COUNTY JUDGES ASSOCIATION CONTINUING LEGAL EDUCATION IN COLORADO, INC. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION

2 COLORADO DUI BENCHBOOK EDITION Published by: CONTINUING LEGAL EDUCATION IN COLORADO, INC Grant Street, Suite 300 Denver, Colorado Phone: (303) Toll-free: (888) Fax: (303) Website: Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE Lisa C. Travis Fischer, J.D. Acquisitions Editor/Manager Colorado Bar Association CLE Darlene Johnson Legal Editor Colorado Bar Association CLE John and Lynn Cleveland Subject Index Lindex COLORADO BAR ASSOCIATION CLE CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook or other secondary authority, attorneys dealing with specific legal matters should also fully research current, primary authorities. Copyright 2013 by Continuing Legal Education in Colorado, Inc. All Rights Reserved. No part of this publication may be reproduced in any form or by any process without permission in writing from Colorado Bar Association CLE.

3 PUBLISHER S NOTE This book, a joint project of Colorado Bar Association CLE and the Colorado County Judges Association, is the only one of its kind in Colorado. It is written by county court judges throughout the state, as well as two DUI practitioners, and is an essential resource both on the bench and in private practice. We are extremely grateful for the excellent work of the judges who updated chapters for this Edition: Judge Carl McGuire, Washington County; Judge Peter Schoon, Jr., Larimer County; Judge Noel Blum, Boulder County; Judge Steven Fieldman, Pueblo County; Judge Dana Nichols, Weld County; Judge JenniLynn Lawrence, Montezuma County; and Judge Martha Minot, La Plata County. We also appreciate the fine work of Denver attorneys Abe Hutt and Suzanne Iantorno on Chapter 9. Finally, we could not have produced this book over the years without the outstanding efforts of Professor H. Patrick Furman of the University of Colorado School of Law. Pat has been the moving force behind the Benchbook for more than a decade. We at CBA- CLE, as well as DUI judges and practitioners throughout the state, owe him a debt of gratitude for his excellent work on this publication. Darlene M. Johnson Legal Editor Colorado Bar Association CLE Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE ACKNOWLEDGEMENT Production of the Colorado DUI Benchbook, Edition, required the editors to Shephardize the citations used in the book. This research was made possible by a generous contribution from the Colorado Bar Association CLE s technology partner, LEXIS-NEXIS. HOW TO CITE THIS BOOK As the first full citation, you may cite this book as: Colorado DUI Benchbook, Ed. (H. Patrick Furman ed., CLE in Colo., Inc.). After the first full citation, you may cite this book as: Colorado DUI Benchbook, supra n., at. iii

4 COLORADO BAR ASSOCIATION CLE Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also financially independent from the bar associations and self-supporting. We receive no membership dues or other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio and video homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this generous contribution of talent, CBA-CLE could not fulfill its mission. CBA-CLE Board of Directors July 2013 to June 2014 Denver Bar Association Appointments Colorado Bar Association Appointments Richard I. Zuber Barbara Blumenthal Robert A. Holmes Baird B. Brown Michael T. Mihm E. David Griffith J. Marcus Painter Deanna L. Westfall Kristin Rozansky Eugene Zuspann, II Gregory James Smith Charles C. Turner CBA-CLE Staff B. Gary Abrams Executive Director Evan Brown Manager of Media and Web Development Ellen Buckley, Esq Legal Editor Lisa M. Cordova Program Coordinator Lisa C. Travis Fischer, J.D Acquisitions Editor/Manager Terri L. Fonseca Customer Service Barbara Hollingsworth, J.D Program Attorney/Sponsors Susan Hoyt Legal Editor/Social Media Sheyanne Hurtado Customer Service Darlene M. Johnson Legal Editor Lori L. Krupske Finance Manager Melissa J. Lucas Publications Assistant Deb Marnocha Desktop Publisher Dawn M. McKnight, Esq Assistant Executive Director/Publications Director Jo McWilliams Order Fulfillment/Shipping Kathryn Noble, Esq Legal Editor Heidi A. Ray, Esq Program Attorney Julie Lynn Revers Program Administrator Adrian Romero-Sosa Technical Producer Nena Saucerman Media Specialist Kenneth Sudduth Customer Service iv

5 ABOUT THE MANAGING EDITOR Professor H. Patrick Furman University of Colorado School of Law 404 UCB Boulder, CO (303) Chapter 3 Motions to Dismiss (2013 Update) Pat Furman spent nearly seven years in the Office of Public Defender, representing indigent defendants in every type of criminal case in various jurisdictions in Colorado. After a year in private practice, which included a short stint as a district court magistrate, he joined the faculty of the Law School at the University of Colorado in Part served as the Director of Clinical Programs from 1994 to As a clinician, Pat taught Criminal Practice and Trial Advocacy to students handling misdemeanor and traffic cases in Boulder courts, and also taught Criminal Law and Evidence and ran the Wrongful Convictions Clinic. Since 2009, Pat has been semi-retired, but continues to teach Evidence, Criminal Procedure, and Trial Advocacy at the Law School, and helps administer the Colorado Innocence Project. v

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7 ABOUT THE AUTHORS Hon. Noel E. Blum Boulder County Court Chapter 4 Motions to Suppress Evidence (Original Author, Updates, Updates) The Honorable Noel E. Blum was appointed to the Boulder County Court bench in July 2003 after serving 19 years as deputy district attorney for the First Judicial District (Jefferson and Gilpin counties). He received his J.D. from the University of Colorado in 1984 and a B.A. in anthropology and archaeology from the University of Vermont in Judge Blum presides over a mixed docket of felony preliminary hearings, civil trials, protection orders, and traffic and misdemeanor trials. Hon. Christopher Cross Eighteenth Judicial District Court Chapter 5 Trial Procedure (Original Author, Updates) The Honorable Christopher Cross received his law degree from the University of Denver College of Law in 1979 after earning an undergraduate degree in 1974 from Denison University in Granville, Ohio. He served as a deputy district attorney in Denver from 1979 through 1983, followed by 13 years in private practice. Judge Cross was appointed as an Arapahoe County Court judge in August 1997, and was appointed as a district court judge in the Eighteenth Judicial District on January 12, His current assignment is in a criminal/civil division. vii

8 Colorado DUI Benchbook Hon. Steven Fieldman Pueblo County Court Chapter 5 Trial Procedure ( Updates) The Honorable Steven Fieldman was appointed to the Pueblo County Court bench by Governor Ritter in November 2007 and started serving the bench in January Prior to his appointment, Judge Fieldman served 14 years as a deputy district attorney in the Tenth Judicial District. Judge Fieldman is a past president of the Pueblo County Bar Association and is a graduate of the Colorado Bar Association Leadership Training Program (COBALT 2008). Judge Fieldman is actively involved in various community activities and serves or has served on the boards of directors of Crossroads Turning Point, Senior Resource Development Agency, Pueblo Community Health Center Nurse-Family Partnership Advisory Board, and the Pueblo Nature and Raptor Center. Judge Fieldman graduated from Clark University in 1988 and the University of Denver College of Law in Abraham V Hutt, Esq. The Law Firm of Abraham Hutt, P.C Auraria Pkwy., Ste. 201B Denver, CO (303) abe@abehutt.com Chapter 9 Driver s License Considerations and Collateral Consequences (Original Author, Updates) Abraham V Hutt, Esq. has been a trial lawyer in Denver since He handles criminal, civil, and administrative cases, although his primary emphasis has been on criminal defense. He has represented clients in the trial courts of 19 of Colorado s 22 judicial districts, as well as the Colorado Supreme Court, the Colorado Court of Appeals, and the U.S. District Court for Colorado. He is a frequent CLE lecturer on the subject of trial tactics and has taught that topic at the University of Denver Sturm College of Law, the University of Colorado School of Law, and the National Criminal Defense College. He has given CLE lectures on these and many other topics, particularly on the subject of cross-examination, across the United States. He is a longtime member of the Colorado Supreme Court viii

9 About the Authors Committee on the Rules of Criminal Procedure and has served on the Board of Directors of the Colorado Criminal Defense Bar and the Colorado Legislature s DUI Task Force. Mr. Hutt is probably best known for his work in the area of DUI defense. He has authored numerous articles on the subject and is a frequent speaker at various continuing education seminars, lecturing on such topics as Cross-Examination on Roadside Sobriety Exams, 50 Ways to Win a DMV Hearing, Jury Selection Tactics for DUI Cases, and Sophisticated Techniques in DUI. He has written on DUI and motor vehicle law for Colorado Bar Association CLE since Mr. Hutt represented the National Association of Criminal Defense Lawyers, the Colorado Trial Lawyers Association, and the Colorado Criminal Defense Bar before the Colorado Supreme Court as amici curiae in People v. Rister, 803 P.2d 483 (Colo. 1990), concerning the constitutionality of sobriety roadblocks. R. Suzanne Iantorno, Esq. The Law Firm of Abraham Hutt, P.C Auraria Pkwy., Ste. 201B Denver, CO (303) suzanne@abehutt.com Chapter 9 Driver s License Considerations and Collateral Consequences (Original Author, Updates) R. Suzanne Iantorno, Esq. is an associate at The Law Firm of Abraham Hutt, P.C. She received her J.D. from the University of Colorado School of Law in 2000 and a B.A. from Colorado State University in Fort Collins. Ms. Iantorno was admitted to practice in Colorado in She is a member of the Colorado Bar Association, Denver Bar Association, Colorado Criminal Defense Bar, National Association of Criminal Defense Lawyers, and National College for DUI Defense. She has lectured extensively on of trial tactics, scientific issues, and motions practice in DUI cases. ix

10 Colorado DUI Benchbook Hon. JenniLynn E. Lawrence Montezuma County Court Chapter 7 Sentencing ( Updates) The Honorable JenniLynn Everett Lawrence graduated from the University of Wisconsin Law School in 1997 and enjoyed private practice for 13 years before being appointed to serve as a Montezuma County Court judge. She is admitted to practice in Colorado, New Mexico, Wisconsin, and Florida. As a practicing attorney, she earned the esteemed AV Preeminent rating from Martindale Hubbell. Judge Lawrence is a native of Montezuma County and a graduate of Mancos High School and Fort Lewis College. Prior to becoming an attorney, Judge Lawrence taught English at Cortez Middle School and Montezuma-Cortez High School. Hon. Carl S. McGuire III Washington County Court Chapter 1 Preliminary Matters ( Updates) Chapter 2 Guilty Pleas (2006 Update) The Honorable Carl S. McGuire III took the Washington County Court bench on January 1, Judge McGuire served on active duty in the U.S. Navy JAG Corps before returning to the eastern plains of Colorado to practice law. Judge McGuire received his B.S. in agricultural economics from Colorado State University and his J.D. from the University of Wyoming College of Law. Judge McGuire is a part-time judge. His private practice includes estate planning, probate, and municipal law. Judge McGuire continues to serve as a JAG officer in the U.S. Navy Reserve. In addition to his mixed docket in county court, Judge McGuire assists the district court in both civil and criminal cases. x

11 About the Authors Hon. Sandra K. Miller Delta County Court Chapter 2 Guilty Pleas (Original Author, 2007 Update) Chapter 3 Motions to Dismiss ( Updates) The Honorable Sandra K. Miller has served as a county court judge in Delta County since Judge Miller graduated with honors from the University of Texas School of Law in Prior to her appointment to the bench, she served as an appellate brief attorney, a private practitioner, and chief deputy district attorney for the Seventh Judicial District. In addition to a county court docket, Judge Miller is also the presiding judge for Delta s adult criminal drug court. Judge Miller has been an instructor at the National Judicial College since 2009, is an active member of the Colorado County Judges Association, and was the 2011 recipient of Colorado s Judicial Officer of the Year award. Hon. Martha T. Minot La Plata County Court Chapter 8 Post-Conviction Issues ( Updates) The Honorable Martha Tinsley Minot received her law degree from the University of Colorado Law School in 1983 after earning an undergraduate degree with honors in 1979 also from the University of Colorado. Judge Minot was in private practice in Durango, Colorado from 1983 until she was appointed to the La Plata County Court in Her current case load involves presiding over traffic offenses, misdemeanors, and civil cases. Judge Minot has been the president of the Southwest Colorado Bar Association, the president of the Colorado County Judges Association, is currently a member of the Judicial Discipline Committee and is involved in numerous civic activities in her jurisdiction, including being a hospice volunteer and training advocates for a crisis telephone service. xi

12 Colorado DUI Benchbook Hon. Dana Nichols Weld County Court Chapter 4 Motions to Suppress Evidence (2011 Update) Chapter 6 Evidence ( Updates) The Honorable Dana Nichols was appointed to the Weld County Court bench in August She served as a state public defender for more than 10 years in Greeley, Pueblo, Colorado Springs, and the appellate division. She also practiced civil litigation for three years in Denver as an associate with Kennedy & Christopher. She received her J.D. from the University of Colorado in 1994 and a B.S. in biology from Colorado State University in Judge Nichols currently handles a mixed docket of traffic, misdemeanors, and civil matters. She also presided over the domestic violence court for two years. Hon. Peter E. Schoon, Jr. Larimer County Court Chapter 2 Guilty Pleas ( Updates) The Honorable Peter E. Schoon, Jr. took the Larimer County Court bench in February He received his undergraduate degree from Central College (Pella, Iowa) and in 1975 obtained his J.D. from Washburn University Law School (Topeka, Kansas). Along with his 27 years in private practice, Judge Schoon served as the associate municipal judge for Loveland, Colorado, from 1988 to His docket includes serious traffic offenses, misdemeanors, and civil cases. xii