Denver DUI Attorney – Blood Tests vs. Breath Tests

Denver DUI Attorney, Thomas Nellessen, presents the latest Supreme Court ruling on alcohol testing.

There have been numerous issues to question when dealing with alcohol testing issues:

1. Which test more reliable,

2. Do I have to take a test,

3. What if I refuse the officer’s request,

4.  What will DMV do if I refuse a test, etc.

Well, the United States Supreme Court just ruled on a very important issue that will probably cause extra confusion for a while.  The case is BIRCHFIELD v. NORTH DAKOTA.   This case was argued on April 20, 2016, but the final decision just came down today, June 23, 2016.  (Please note that there were 3 cases involved here.  Together with the Birchfield case were the cases of Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and Beylund v. Levi, Director, North Dakota Department of Transportation, another North Dakota case.  Each of these cases involved a person being arrested for DUI and then being asked to comply with the “Expressed Consent” laws of the particular states.  In both North Carolina and Minnesota, it is a separate crime to refuse an alcohol test related to a DUI charge.

The United States Supreme Court held that in part that  the “taking a blood sample or administering a breath test is a search governed by the Fourth Amendment.”   Clearly, Blood and breath testing are quite different.  Breath tests are fairly non-intrusive and merely involve blowing into a tube to get a breath result.  However, a blood test is much more intrusive as there is a piercing of the skin to extract a blood sample.  This is much more intrusive to a person; and thus, the Supreme Court held that the “Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”  Because of the intrusiveness of the blood test, a warrant is required.

This new ruling will apply throughout the country, including here in Colorado.  Soon you will see procedures created for law enforcement officers to obtain warrants on the fly.  It may take some time before these new procedures are developed, but look for them in the very near future.

TJN 

 

Denver Criminal Defense Attorney: Developing a Defense Strategy

Legal Books and Gavel

As a Denver criminal defense attorney I am often asked the following question: “How does a criminal defense attorney develop a defense strategy in a case?’ Clearly, each case is different; however, most all cases have similar basic starting foundations.

Developing a defense strategy is like putting together a jigsaw puzzle at times. The defense attorney, with input from the client, strives to create the strongest scenario to produce a satisfactory outcome for the client. The defense strategy is developed to make the strongest case for a verdict of not guilty, a verdict of guilty of a lesser charge, or an acceptable plea bargain. Here, it is important to thoroughly review all “versions of the truth.” In every case, different witnesses see different things; thus, their “versions of the truth” will all differ in some way, shape or form. Clearly, it is important for the client to be open and honest with the defense attorney. Clients will usually benefit from fully advising the defense attorney the truth as the he or she perceive it. Since multiple versions of truth can coexist in the defense of any criminal case, the client’s version of the truth may be differ substantially from the versions supplied by the victim and/or witnesses in the case.

Generally, , a defense strategy will begin to emerge after the defense attorney receives and reviews the “discovery” in a specific case. Discovery may include police reports, witness statements, video and audio recordings, etc. Clients need copies of this information if they are to tell an accurate version of the events in question that does not leave out information potentially helpful to the defense. The defense strategy emerges as the defense attorney finds out about the prosecution’s evidence against the client, and couples that with the client’s version of events… the “client’s truth”

Once the general information is gathered by the defense attorney, the defense attorney must help the client develop the strongest theory of defense. Typically, a client is requested to draft a narrative of his or her version of the events. This will help stimulate the client’s memory and will assist in fully developing a fact pattern for the defense theory. Defense attorneys will also coach a client by fully explaining the charges against them and by detailing where the Client’s fact pattern differs from the information received from the prosecutor’s office. Comparing the information received from the prosecutor’s office with the defendant’s fact pattern and with the fact pattern of other witnesses gives the defense attorney an idea of where to focus when viewing the issue of reasonable doubt.

Clearly there are several more complex strategy techniques that may be used in a specific case; but, discussing the basics starting points gives an idea of how defense strategies emerge. More in depth defense strategy techniques would include scientific theories, independent and expert witnesses development, etc. What is important to understand is that the goal of any defense strategy is to show that the prosecution’s case against your client is weak and cannot be proven beyond a reasonable doubt. If this can be accomplished, one may be able to persuade the prosecutor to agree to the defense’s desired plea agreement or to have the case dismissed.

Until next time,

Thomas Nellessen

Nellessen Law Office

The Nellessen Law Office is a DUI and criminal defense law firm in Denver, Colorado. If you are seeking high quality criminal defense representation at a reasonable cost, contact us at the Nellessen Law Office. Our initial consultations are ALWAYS FREE of charge, and our attorneys are experienced, knowledgeable and highly qualified to handle your legal matters.

 

Denver DUI and Criminal Defense Attorneys| The Nellessen Law Office

Arrested at Roadside

If you get arrested, call the Nellessen Law Office TODAY!The Nellessen Law Office is a Denver DUI defense and Denver criminal defense law firm. We are located in the LoDo area of Denver, Colorado,  and we are here to help you through the most difficult times in your life. With are experience in handling DUI and other criminal matters, the Nellessen Law Office is a ready to fight for you. We have been providing skilled legal representation for over 20 years to individuals facing DUI and criminal charges.  Whether it is a DUI or DWAI offense, a drug related charge, cases involving weapons, domestic violence, prostitution, or all other felony, misdemeanor and traffic matters, we will work for you./ Contact us through our website or through this blog, or call us at 303-284-5781.Remember, no offense is minor when you are the one charged, so it is very important that you speak with an experienced DUI or criminal attorney. Experience is crucial for an attorney representing individuals in criminal cases.  Incompetence in a criminal case may be particularly devastating to the client’s freedom and liberties.  Perhaps more than any other area of law, retaining an attorney early on in a criminal defense case is of utmost importance.  The longer your attorney has to handle and prepare your defense.  So, contact the Nellessen Law Office TODAY!

Denver Criminal Attorney discusses 2nd Amendment

AR-15 Semi-automatic High Powered Weapons were not meant to be in the public hands.
As a Denver criminal defense attorney, I am often asked questions about weapons and weapons charges. These questions all come down to one’s belief and interpretation of the Second Amendment of the United States Constitution.

Let me preface this post by saying that I believe everyone should have the right to possess weapons, but this possession should be regulated and should be reasonable.  I do not believe that any citizen should be able to possess automatic, or even semi-automatic, weapons.  These types of weapons are not needed for “personal protection.”  Clearly, weapons like the AR-15 that was used in the Aurora, Colorado theatre killings.

First, when looking at the Second Amendment, we must first look at the underlying constitutional provisions that created the militia (or military) and the legislative Acts that further clarified the intent of the “Founding Fathers.”  These provisions always seem to be left out of the discussions about the Second Amendment.

Article 1; section 8, clauses 15 and 16 of the United States Constitution gives Congress the power to “provide for organizing, arming, and disciplining the Militia.” Further, Congress was given the power to create an army and a navy to protect the people of the United States.   These provisions were developed to ensure that the federal government was able to use the militia to “execute the laws” of the United States, to “suppress insurrection” and to “repel invasions.” So, the United States Constitution allows for the creation of the United States military.  Then, it had to be determined who would be a part of the military.

In 1792, the Congress enacted a law that stated, in part, that “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” This was the essence of the Militia Act of 1792.  People seem to forget that these provisions of the United States Constitution and the Militia Act of 1792 must be included when arguing the Second Amendment’s right to bear arms provision. Yes, the “founding Fathers” were involved in all of these creations.

People have varying opinions on the possession of fire arms, and my opinion is just that, an opinion. Does the Constitution allow for gun ownership?  That answer would be “YES;” however, it is a qualified statement.  When addressing the Second Amendment of the Constitution of the United States in its original form, we find the amendment to read:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This amendment was ratified by the States on December 15, 1791, and authenticated by Thomas Jefferson, the Secretary of State at the time.  This ratification was PRIOR to the Militia Act of 1792.  However, this provision of the Second Amendment calls for a “well regulated militia” that the people would support and supply for… NOT for every person, militia related or not, to be allowed to possess weapons.  For those who believe that every person should be allowed to possess automatic weapons, I would ask:  Why would the amendment begin with the phrase “[a] well regulated Militia, being necessary to the security of a free State”? Why would this phrase be included in the Second Amendment, but not given any meaning?

Next, the common definition of the word  militia, according to Webster’s Dictionary is as follows:

1.  (a) a part of the organized armed forces of a country liable to call only in emergency.

(b) a body of citizens organized for military service

2.  The whole body of able-bodied male citizens declared by law as being subject to call to military service.

These definitions are fairly clear.  The fact that the Constitution of the United States, with the afore-mentioned Articles and in the Second Amendment, specifically mentions a “militia” would indicate for military purposes.

Of course there is always the question of “How would the Founding Fathers have interpreted the Second Amendment?”  Well, let’s look at some obvious facts:

1.  The plain reading of the Article 1; section 8, clauses 15 and 16 of the United States Constitution; and

2.  The plain reading of the Second Amendment.

These provisions specifically discuss a militia, not an individual not associated with a militia, to have the right to possess weapons.  Next, there is Alexander Hamilton, one of the “Founding Fathers,”  a soldier and one of the first Constitutional lawyers in American history (among other things.)  Alexander Hamilton said to the people of New York in The Federalist Papers No. 29, :  “a tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.” Emphasis added.

Was Alexander Hamilton saying that every person should have the right to possess a weapon?  Of course not.  Hamilton was specifically talking about those individuals going through military exercises and evaluations.  This “Founding Father” was not talking about the unqualified possession of weapons by every ordinary citizen of the United States.  Hamilton was talking about a military…  a militia.

Clearly, when an individual states that they have a right to own an automatic weapon, or just a weapon in general, I direct them to the thousands of news articles that show where innocent people die every year in the United States from improper weapon use and possession.  I direct people to news reports virtually every day where innocent children get killed playing with guns that they found in a parent’s home, garage, etc.  All weapons that “I have a right to own under the Second Amendment.”

Interestingly enough, if you ask the gun toting public to follow the intent of the Second Amendment and join the military, what would you get?  As you would expect, “I am not joining the military.  It is too dangerous right now,” or, “I am not going into the government-run army.”  This speaks for itself.  People want to read the Second Amendment in an incomplete manner, only taking the one phrase, “right to bear arms,” without looking at the intend of the entire amendment and the other provisions in the constitution that were created to develop the United States military.

The hope is that all people in the United Sates can be protected from the violence that occurred last week in Aurora, Colorado.  It is a tragic situation when family members and friends are lost to senseless violence that could have been prevented by taking access to some of the illogical weapons away from the ordinary citizen who has no real need for such a weapon.  Again, these are only my opinions.  Feel free to have your own and feel free to comment on mine if you would like.  Discussing this issue will only spread the concerns and opinions of both sides of this issue.

Please be safe and use your head when possessing all types of weapons.  Common sense goes a long way.

Until next time,

Thomas Nellessen

Nellessen Law Office

 

DIU Revocation Modifications – Is DMV Easing Up?

As a DUI defense attorney, DUI related driver’s license suspensions are always a point of contention for those charged with drinking and driving related offenses.  With a blood alcohol level (B.A.C.) of OVER a .08, but under a 0.17, the Department of Motor Vehicles in the State of Colorado would revoke a driver’s license for a period of 9 months.  If a revoked driver chose to bypass the 9 month license revocation, the driver, after one month of no driving, could have an “Interlock device” placed in his vehicle and could drive for the remaining 8 months.  If the driver complied with all of the rules and regulations set forth for use of the Interlock device, the Department of motor Vehicles could allow the removal of the device after FOUR months of use.

If a driver’s B.A.C. was over the 0.17 level, then the driver would have to have the Interlock device on his vehicle for a period of 2 years.  (I find it interesting that a B.A.C. of 0.169 would allow an 8 month interlock suspension while a B.A.C. of .170 or greater would require a 2 year Interlock use.)

Finally, in cases where a driver REFUSED to take a blood or breath test, the Department of Motor Vehicles would revoke a license for a period of ONE YEAR.  This revocation would be WITHOUT any ability to make use of an interlock device. A strict one year, no driving suspension.  Additionally, an additional year of no driving would be added if the driver was convicted of a 12 point DUI offense.

Now we have House Bill 1168 (2012 Colo. HB. 1168), which changes what we have come to expect from the Department of Motor Vehicles, and eases some of the restrictions on Colorado drivers.  In Colorado, House Bill 1168 repealed and reenact, with amendments, Colorado Revised Statute, §42-2-132.5.

Now, C.R.S. §43-2-132.5 reads as follows:

 §42-2-132.5. Mandatory and voluntary restricted licenses following alcohol convictions – rules. (1) Persons required to hold an interlock-restricted license. The following persons shall be required to hold an interlock-restricted license pursuant to this section for at least one year following reinstatement prior to being eligible to obtain any other driver’s license issued under this article:

     (a) A person whose privilege to drive was revoked for multiple convictions for any combination of a dui, dui per se, dwai, or habitual user pursuant to §42-2-125 (1) (g) (i) or (1) (i);

     (b) A person whose license has been revoked for excess b.a.c. pursuant to the provisions of  §42-2-126 when the person’s b.a.c. was 0.17 or more at the time of driving or within two hours after driving or whose driving record otherwise indicates a designation of persistent drunk driver as defined in section 42-1-102 (68.5).

This would lead me to believe that the 2 year interlock device requirement has been reduced to a one year time period for those whose blood alcohol level is over a 0.170.

Next, Paragraph 2 of §43-2-132.5 has been modified as follows:

(4) Persons who may acquire an interlock-restricted license prior to serving a full-term revocation. (a) (I) A person whose privilege to drive has been revoked for one year or more because of a dui, dui per se, or dwai conviction or has been revoked for one year or more for excess b.a.c. or refusal under any provision of section 42-2-126 may apply for an early reinstatement with an interlock-restricted license under the provisions of this section after the person’s privilege to drive has been revoked for one year. Except for first-time offenders as provided in subparagraph (ii) of this paragraph (a) or for persistent drunk drivers as provided in subsection (3) of this section, the restrictions imposed pursuant to this section shall remain in effect for the longer of one year or the total time period remaining on the license restraint prior to early reinstatement.

Paragraph 4 would now indicate that even if there was a refusal by a driver to take the blood or breath test, the driver could take advantage of the use of an interlock device after the person’s privilege to drive has been revoked for one year.  Clearly, an easing of situations involving refusals in the state of Colorado.

If you are faced with a DUI related motor vehicle license revocation or any other DUI related matter, contact Denver DUI attorneys, Thomas Nellessen at the Nellessen Law Office by calling 303-284-5781, or CONTACT US through our website at www.tjnlaw.com.  As always, your initial consultation is always FREE.

Until next time,

Thomas Nellessen

Nellessen Law Office

Denver DUI and Criminal Attorney: Nellessen Law Office

The Nellessen Law Office is a Denver DUI defense and Denver criminal defense law firm.  We are located in the LoDo area of Denver, and we are here to help you through the most difficult times in your life. With over 20 years of experience handling DUI and other criminal matters, the Nellessen Law Office is a ready to fight for you.

If you are seeking a highly experienced and qualified Denver DUI attorney or a Denver criminal attorney to assist you in your legal matter, please contact us at the Nellessen Law Office.  Our rates are very reasonable and every initial consultation is FREE of charge.