Client Tips, DUI, Misdemeanor criminal procedure, Traffic issues

DUI Breath Test, Blood test, or Refusal?

DUI Breath Test, Blood test, or Refusal?

DUI Breath Test, Blood Test, or Refuse all tests?
DUI Breath Test, Blood Test, or Refuse all tests?

An officer begins a DUI investigation on you. He asks you how much have you had to drink. He asks you to perform roadside sobriety tests. Then he arrests you for DUI. He is required to give you a “express consent” advisory where you must choose a dui breath test or a blood test. You have a very short time to decide.

DUI Blood Test

The officer will take you to detox or the jail where a medical professional, usually a nurse or EMT, will draw two vials of blood from your arm. Either the police crime lab or a private lab will conduct a test on the blood they receive and give the police the results.

If the result is 0.08 or above, the police will forward that result to the Department of Revenue (DMV) which will send you a suspension letter that will be effective one week later. You have a right to a suspension hearing and SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. See the Department of Revenue site for more information.

Unlike a DUI breath test, a second sample exists for independent testing. We will be sending the second vial to another lab for verification that the two vials of blood came from the same person, and that the result is similar to the vial tested by the crime lab. Some of the ways we attempt to get your case dismissed or reduced include blood draw problems, lab errors, blood storage problems, chain of evidence problems, etc.

If the suspension is sustained, and you have a Colorado drivers license, you will be eligible for a restricted license with interlock after 30 days of no driving.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

DUI Breath Test

The officer will take you to jail or detox and have you wait for 20 minutes while he completes paperwork. This 20 minute observation period is required in a DUI breath test to ensure you did not burp, vomit, belch, drink more alcohol, etc. The officer will have you blow into a mouthpiece two times and the machine will record the lower of the two results.

Currently in Colorado, no facility exists to make an independent test of your DUI breath test. What the machine says will be the only test result in your case. Some of the ways we attempt to get your case dismissed or reduced include problems with the machine, problems with the certification process of the facility to conduct breath tests, etc. We are able to aggressively attack the ability of Colorado to use the Intoxilyer-9000 results of the DUI breath test in your case.

If the result of you DUI breath test is 0.08 or above, the police officer will immediately issue you an “express consent” notice of revocation, and forward it to the Department of Revenue (DMV). This notice of suspension is effective within 7 days. You have a right to a suspension hearing and SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. See the Department of Revenue site for more information.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges involving a DUI breath test and can help you decide what is best for you in your case.

Refusal

If you refuse any chemical testing of your blood or breath, this will be used against you at trial. The officer will be able to testify to the things he saw, smelled, and heard you say. However, the state’s case is usually weaker without a level of your blood or breath alcohol.

The police officer will issue you an “express consent” notice of revocation for the refusal. He will forward it to the Department of Revenue (DMV). This notice of suspension is effective within 7 days. You have a right to a refusal suspension hearing. You SHOULD REQUEST A HEARING IN WRITING WITHIN 7 days. If the suspension is sustained, and you have a Colorado drivers license, you will be eligible for a restricted license with interlock after 60 days of no driving.

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

Advice

Call a lawyer for help with what to do next. Solomon Law represents many, many DUI charges and can help you decide what is best for you in your case.

 

Client Tips, Felony criminal procedure

Remain silent: Do not talk to the detective

Remain silent: Should I talk to the detective?

Remain silent and get the best chance to keep your ability to defend your case. People think that by talking to the police officer or the detective, you are keeping the investigator from thinking you have something to hide. Sadly, giving the investigator any information limits your lawyer’s ability to defend you. Remain silent and talk to a lawyer.

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Remain silent and call your lawyer. Silence is golden!

Admitting to any facts will be called a “confession” to the jury if your case goes to trial. Confessing that you were “there,” but did not do anything limits your defense. Confessing that you had “permission” to do what you are accused of admits that you did what they said they did, and makes their potentially weak case stronger. Almost no reason exists to talk to an investigator.

Remain silent or anything you say can only be used to hurt you

When you talk to the investigator, you every fact you give him is a gift. Investigators love gifts you give them, they go towards being able to charge you with a crime. Gifts you give the investigator give the district attorney facts they will use to convict you. You cannot talk your way out of being arrested or charged, but you can talk away your defenses. Don’t do it. Remain silent and call an attorney.

The officer never gave me my Miranda rights

Police do not need to tell people their Miranda rights unless they are truly “in custody.” Under the law, a suspect can be in handcuffs in the back of a police car and not “in custody.” Being detained is not “in custody,” even if it feels like it. A police doesn’t need to give Miranda rights when someone is only detained. DON’T TRY TO FIGURE OUT WHEN YOU ARE “IN CUSTODY!” REMAIN SILENT. If a police investigator is asking you questions about you, what you have done, or where things are, you are being investigated for a possible crime. Before you answer any questions, remember that what you say can almost never be used to help you.

DUI, Misdemeanor criminal procedure, Traffic issues

DUI Minimum Jail Sentences

DUI Minimum Jail Sentences

DUI and DWAI cases in Colorado require DUI minimum jail sentences in many cases. When trying to understand when these minimum jail sentences apply, two facts are the main factors to know about your case. First, if the new case is an alcohol based DUI, what was the alleged blood alcohol content? Second, do you have any prior lifetime DUI/DWAI convictions?

DUI Minimum Jail Sentences in Colorado
Let Mark Solomon help with your DUI – don’t go to court without alone

 

Blood Alcohol Content and DUI Minimum Jail Sentences

In Colorado, DUI Minimum Jail Sentences apply when the blood alcohol is “high” according to statute: 0.20 or higher. If the BAC is 0.20 or higher on a first offense, the law requires a person to be sentenced to at least 10 days in jail. However, if the person is working at the time, a good chance exists that those 10 days of jail can be served on in-home-detention with an ankle monitor. In home detention allows a person to go to work and medical appointments, but nowhere else. Courts can also allow a person to spend those days serving a DUI minimum jail sentence on work-release, where the person spends nights at the jail, but is allowed to leave for the day to work. The determination of whether a person is allowed either of these two alternative sentences is up to the judge. Having a good DUI defense attorney may make the difference in spending time in jail or being allowed one of these sentences that allows you to keep your job.

Prior convictions and DUI Minimum Jail Sentences

Any prior lifetime alcohol or drug driving conviction is considered a “prior offense” in Colorado, with no time cutoffs at all. So, a 20 year old DUI conviction would trigger a DUI minimum jail sentence in Colorado if charged with a new DUI/DWAI offense.

SECOND OFFENSE DUI MINIMUM JAIL SENTENCES

A second offense requires a 10 day minimum jail sentence. If the prior offense is more than five years old, the law allows alternative sentencing like in a first offense with a high blood alcohol content. The law requires a person to be sentenced to at least 10 days in jail. However, if the person is working at the time, a good chance exists that those 10 days of jail can be served on in-home-detention with an ankle monitor. In home detention allows a person to go to work and medical appointments, but nowhere else. Courts can also allow a person to spend those days serving a DUI minimum jail sentence on work-release, where the person spends nights at the jail, but is allowed to leave for the day to work. The determination of whether a person is allowed either of these two alternative sentences is up to the judge. Having a good DUI defense attorney may make the difference in spending time in jail or being allowed one of these sentences that allows you to keep your job.

However, if the prior offense is within five years of the new charge, the 10 day minimum jail sentence must be served in jail, as 10 consecutive days without any time off for good behavior.

THIRD OR MORE OFFENSE DUI MINIMUM JAIL SENTENCES

A third offense requires a 60 day minimum jail sentence. However, many judges and prosecutors will want far more jail time under a plea agreement or if you are convicted at trial. Once a person has is facing his fourth conviction, he should expect the judge to sentence him to the full 365 days in jail. Time off for good behavior does not apply to the first 60 days of such a jail sentence and must be served as consecutive days in jail.

This is why many people decide to go to trial when facing a DUI charge with three or more prior DUI convictions. The minimum jail sentence is enough to cause a person to lose their job and possibly their home, so trial becomes the only way to have a chance of keeping the DUI case from starting their life over when they are released from jail.

Client Tips, Traffic issues

Traffic ticket: Should I go to trial or take a plea offer?

Traffic ticket: Should I go to trial or take a plea offer?

“I got a traffic ticket. Help me. The officer says I did something that I did not do. In an accident, the other driver claims that I ran a light, skidded into them, or was on my phone – they are lying. What should I do?”

Traffic tickets can be very emotional triggers for honest people because they come face-to-face with either (1) people who are not being honest or (2) people who honestly believe their facts and are wrong. In either case, when you are given a traffic ticket, you become a defendant. Defendants in traffic tickets have rights to go to trial to force the government to prove them guilty of the charges.

Deciding whether to go to trial in traffic cases can be difficult because the only source of facts in the case are often either police officers or participants in the accident. As such, the defense team has less than perfect certainty as to what facts will arise in the trial. These cases are usually “he said” “she said” disputes where the judge or jury have to decide who to believe.

Often traffic tickets result in fines of less than $500, and attorney fees can be many times that, especially when a jury trial is involved. Rarely does going to trial with a lawyer make good financial sense when dealing with a good driving history and no civil liability.

On the other hand, in accident cases, if the accident’s liability is being attributed to you, and either or both parties are uninsured, admitting criminal liability in the case will subject you to paying restitution to the other party, regardless of the civil case’s outcome. As such, consulting with a personal injury lawyer or your insurance will often be the deciding factor in whether to accept a plea offer or go to trial.

Bond, Client Tips

Why Judges require GPS monitoring with bond

Why did my judge require GPS monitoring as condition of bond?

Before arraignment and before seeing a judge, bond is usually set by a predetermined bond schedule. When defendants appear at arraignment, judges usually reconsider bond after scrutinizing pretrial’s required assessment and report along with the defendant’s criminal record.

Remember that Bond’s purpose is twofold. First, Bond ensures a defendants return to court. Factors involved in considering a defendant’s likelihood of returning to court include a defendant’s ties to the area, such as job, family, and the how long the defendant has lived in the area. Second, bond insurers that a person will not commit new offenses before the end of this case. When a person stands to loose thousands of dollars if they commit a new crime, he/she is less likely to do so.

Sometimes, a judge hears evidence that a person has little or no ties to the area, combined with the nature of charge alleged, and deems the defendant a flight risk. Traditionally, this makes the bond amount go up. However, in today’s world of technology, GPS is a real option, while costing around $300/month, gives judges an option other than a bond amount that would otherwise keep a person in jail before trial.

While not a good thing, GPS may be the only other option to a judge has, other than simply increasing bond and remanding a defendant until posted. In such a case, without GPS monitoring, a judge could hold that the schedule bond amount is just not enough to secure a defendant’s return to court.

The next question is: what can I do to get off this ankle monitor (GPS monitor)? If you prove that you are trustworthy and continue to appear at court dates, you will be giving your attorney the leverage and ammunition to have more chance to convince the judge to modify your bond conditions and remove GPS. Also, if you are unemployed, get a job.

Client Tips, Felony criminal procedure, Misdemeanor criminal procedure

Plea bargain or take my case to trial? (Plea offer)

Should I plea bargain or take my case to trial?

In every criminal case, the defendant is faced with the question: Should I plead bargain or go to trial? This question is very broad, so will be my answer. A defendant’s ability to plea bargain is controlled by his knowledge of the government’s case compared to the strength of his own case. A plea bargain is giving up your right to go to trial in exchange for something in return, usually a known sentence to a known charge. Plea bargaining exists in almost every criminal at some point. Some write about pros and cons of plea bargaining.

Should I plead guilty at arraignment? Probably not.

Should a defendant plead guilty at their first appearance or arraignment? Some courts have a prosecutor at arraignment dockets for plea bargaining. However, while sometimes this is the best time to make a deal, most times, arraignment is not the best time to enter a plea agreement.

Defendants rarely get to see their discovery at arraignment, so their ability to plea bargain is weak

A few questions to decide whether you should accept a plea agreement are the following: (1) have you seen the evidence against you? (2) does the evidence against you have weak points? (3) can you counter the evidence against you with your own evidence? (4) and so on.

These and other questions help you determine whether the plea offer is good or bad as compared to your chances of acquittal at trial. At arraignment, because you know so little about these risks for trial, you are best to hire an attorney to help you make the correct choices from the beginning.

At arraignment, especially if you do not have a lawyer, you will not have even reviewed the evidence against you. As such, pleading guilty is “roll of the wheel” and might be a good deal, and might not. Without the assistance of an criminal defense attorney, you will be guessing as to what is your best course of action.

Should I plead guilty or go to trial?

Whether to hire a criminal defense attorney to defend you against a criminal charge is the first, most important decision in your case. Who will be your criminal defense attorney is your second, most important decision in your case. You must hire an attorney with whom you are comfortable communicating and trusting.

Whether to plead guilty or go to trial is one of the next, most important decisions in your case. This is one of your criminal defense attorney’s first main mission: helping to negotiate a plea offer or plea bargain that is at least as attractive as going to trial. When your criminal defense attorney negotiates a plea bargain or plea offer like this, he has given the defendant a true, meaningful choice.

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Client Tips

Afford a criminal defense attorney (How to)

Afford a criminal defense attorney (How to)

A common situation: “I make too much money to get a public defender but not enough to afford an attorney what should I do for my criminal case?” The question is “how can I afford a criminal defense attorney?”

Many attorneys, such as myself, will accept a case with payment plans. credit cards allow for automatic processing, and make securing payment easier for those wh cannot afford to pay large amounts of cash to make an attorney retainer deposit.

HOW SOLOMON LAW CHARGE FOR CRIMINAL DEFENSE: When negotiating a flat rate attorney fee to handle the case, Solomon Law’s goal is to help you afford a criminal defense attorney. This firm does not want you to go without a criminal defense lawyer, we want to help you. After hearing the general facts of the case along with the client’s goals and expectations, Solomon Law estimates the time the client’s case will take and the attorney fees does not exceed that flat rate attorney fee. This helps you to afford a criminal defense attorney. Like most firms, Solomon Law requires at least a down payment to cover initial costs and attorney time. Luckily, Solomon Law also accepts credit cards and can arrange for automatic monthly credit card charges, another way to help clients afford a criminal defense attorney. This also saves the client time and effort in mailing payments or bringing payments to the Solomon Law office.

DISCOUNTS FOR PAYMENT IN FULL. My firm will also give you as much as a 5% discount for paying the entire retainer up front. This does three things: (1) saves my firm time in billing and collecting your payments because Solomon Law will only need to send you paid bills for attorney fees; (2) help you to afford a criminal defense attorney by passing that time savings to you in the form of a discount; and (3) allow you and your attorney to focus on the case instead of spending any time discussing payments due or money owed to the firm, which tends to complicate the relationship between attorney and client.

DOES SOLOMON LAW TAKE CASES “PRO BONO?” FOR FREE? Sadly, the answer is no. Most criminal defense cases take time to develop defenses, cost money to buy discovery from the government, and more time to prepare and defend in negotiation and trial. At this time, Solomon Law cannot take on your criminal defense for free.

We want to help you afford a criminal defense attorney in every way. Ask about flexible payment options.

Client Tips, Search and seizure

Search and Seizure: No police search warrant – DNA

Search and Seizure: No police search warrant – DNA

Search and Seizure is a large part of criminal defense law, and your ability to help your lawyer protecting your hair, blood, and DNA is vital, especially when there is no police search warrant. If a person randomly asked for a blood or hair sample, most people would think that this was part of a Search and Seizure scam from the government. Protecting your hair, blood, and DNA is important if you don’t want to be a victim of giving a sample by consent, which is not a search under the 4th Amendment of the constitution.

When being interviewed by police, they offer you a drink or something to eat to be able to get a DNA sample from your saliva. Gum has been used to collect DNA from suspects. If offered a drink, ask to leave and speak to your lawyer. The police need a police search warrant to get your DNA. If the police ask you who your lawyer is, and you do not know a name of a criminal defense lawyer, ask them for a phone book. Better yet, keep a card of a criminal defense attorney just in case, or at least know a lawyer’s name.

Police need a police search warrant to collect samples of your blood or DNA without your consent, but when they ask you for a sample, and you provide them with a sample, you are, in effect, telling the government that they don’t need a warrant to get the sample. To assert your rights, you must say, “NO.” To assert your rights to a lawyer, you must ask for one clearly, “I WANT A LAWYER.”

If you are the suspect of an investigation, DO NOT participate in activities where you leave behind DNA with strangers, such as a “chewing-gum survey” or shampoo demonstration.

Remember, if you do not see a police search warrant, ask to see one and tell them you want a lawyer.

Federal Court, Felony criminal procedure

Grand Jury Indictments Are Rubber Stamps?

Are Grand Jury Indictments Are Rubber Stamps?

Grand jury proceedings are a mystical thing. They are secret. The grand jurors go in, the prosecutor goes in, witnesses go in, then the prosecutor comes out with an indictment and the beginning of his charges against a person, people, or corporation.

Hence the phrase, “a prosecutor could indict a ham sandwich.”

The standard for a grand jury to indict a person is “whether probable cause exists to support the charges,” or whether enough evidence exists to support the charges. This is a very low standard of evidence.

Grand jury indictments are supposed to be the check on an individual’s discretion on when to charge a crime. They were intended to take the place of one or two people controlling the initial steps of the criminal justice process.

 

In Colorado, most indictments never happen, and felonies are charged by police and prosecutors, and a judge determines whether probable cause exists after hearing evidence in a preliminary hearing. This preliminary hearing is an evidentiary hearing where the government must call witnesses to testify to the evidence that can support probable cause for the charges.

In the federal criminal justice system, prosecutors must still indict a defendant to charge them. The U.S. government prosecutors try not to waste time and resources by waiting to file charges until they have amassed so much evidence against a person that the indictment is tantamount to a trial where they try to present near insurmountable evidence against a person to ensure the case does not go to trial – their effort to further judicial economy.

However, what happens when a grand juror does not follow along with what the government wants? In Arizona last year, a “runaway grand jury” turned its sites on the prosecutor’s office. Another runaway grand jury in Texas indicted a Supreme Court justice.

The key towards keeping a grand jury process legitimate is to present facts and ask for the grand jury to return a “true bill” on the indictment without preaching, without arguing for a case. That way, once presented in an argument-neutral way, the later courts and juries to hear indicted cases get their cases pre-screened, the true function of a grand jury.

 

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