We love to keep our clients and future clients up-to-date with information about news, court opinions, reviews and suggestions in the areas of Family Law, Divorce, Criminal Law and DUI. From time to time we also post war stories and humor. Check back often to see what’s new in the legal world.
The topic of police encounters has overtaken the media recently. Readers, I asked a retired police officer the following question: “What do I do if I am stopped by the police?” Here’s his practical advice and perspective:
First of all remain calm. If you have any concerns about your safety or the legality of the stop, obey all traffic laws and drive to a well-lit public place then stop for the police. When they ask why you didn’t stop immediately then tell them. You can also call the local police dispatch and tell them the situation to insure that the person pulling you over is legitimate.
You will be approached by the officer on your driver’s side or the passenger side of your vehicle and asked for your driver’s license, vehicle registration, and proof of vehicle insurance so think about where those items are. Keep your hands where the officer can see them and don’t make any sudden moves. Be aware that the officer will be justifiably cautious and doesn’t know you or what you have in your vehicle. He or she will tell you the reason for the stop at some point during the encounter but maybe not during the initial contact. If you are courteous and respectful to the officer then he or she will likely be to you as well.
Things to keep in mind about your encounter with law enforcement:
1. There are many traffic laws on the books that when violated give an officer legal probable cause to stop your vehicle and check your license, registration, and insurance. They range from very minor infractions such as missing license plates, faulty vehicle lights, or a cracked windshield, to moving violations and more serious offenses. Don’t escalate things by being uncooperative and disruptive. There have been many cases where a minor traffic stop, which would have likely resulted in a warning or meager fine, turned into an avoidable felony or even fatal encounter.
2. Being cooperative doesn’t mean admitting guilt.
3. Know that you do not have to consent to a search of your vehicle but in some situations an officer can legally make the search without your consent.
4. If you disagree with the legality of the stop or the officer’s actions the place to challenge the issue is not on the street with an armed police officer but in court in front of a judge or through other legal means. Additional options are that you can complain to the officer’s chain of command or the internal affairs unit of the police department. You can contact your local government official such as the city council or county commissioners. You can contact the news media about your issue.
5. Make sure you write down what happened as soon as possible and if there are witnesses then make sure you have their names and statements as well. Be as detailed as possible about what the officer did or didn’t do and their demeanor. Note where the stop took place as there may be video cameras in the area which could support your claim. Take photographs of any injuries or damage and consider seeking medical attention if needed. You can request a copy of the police report after the incident.
6. Finally you can contact an attorney for more advice on all the above.
Keep in mind that being a police officer is a dangerous occupation and that over 100 officers are killed in the line of duty each year. The officer you are dealing with knows this and receives ongoing officer training in officer safety.
When people hear about wills or planning for a will it immediately brings them to the thought of death. No one wants to think about death or dying but not having a will can create difficulties for loved ones. A will permits a person to make decisions on how their estate will be managed after death. It allows the person to decide how their personal property and and other assets will be handled instead of the state managing their estate.
If a person dies without a will they are said to have died “intestate” and essentially the law will make decisions about dissemination of the deceased person’s estate and assets based on tenants of Colorado law. Many people find this prospect as scary as thinking about death itself.
In Colorado in order to make a will the person must be 18, be of sound mind, know their assets and immediate family members, and know who they want to give their assets to. A will may be handwritten or typed but must be signed by the maker and dated. A properly executed will should also be witnessed by two uninterested parties and, ideally, notarized. A person can also appoint someone else to sign a will on his/her behalf. Colorado courts will generally accept a holographic (handwritten) or typed will but these wills are frequently found defective which may cause delay. People are normally surprised to hear that a will can be handwritten but there are many cases trial courts have heard that involved wills written on scraps of paper or napkins. And some of those will have been held to be legally valid.
It is best to speak with an attorney when writing a will as writing a will does require special skills. Most attorneys who handle wills will be able to write a will for you which will include all relevant language that will prevent unnecessary complications when it comes time to execute the will. In most cases, it is good advice to avoid pre-printed will forms you could otherwise purchase from a big box office supply store.
A will can be updated or changed at any time provided the person is still mentally competent. Upon a divorce, Colorado law states once a divorce is final the ex-spouse no longer has a claim. Upon a marriage, the new spouse will be entitled to the same shares they would receive if there was no will set up. Colorado law also provides protection for children born after the will was executed as long as there were no provisions in the will to specifically exclude them. Worried about someone claiming your estate against your wishes? A clause can be added to the will to disinherit a person who contests the will but it will only be valid if the heir does not have a good faith reason to contest the will.
by Brittney Jones
July 20, 2012 just 18 minutes into the new movie “The Dark Knight Rises” gunfire was opened on the audience. The gunman was dressed in head-to-toe protective gear and many movie goers thought it was part of the movie until the gunman released two tear gas canisters up the aisles of the movie theater. After the canisters exploded, the gunman started firing at the audience. Police recovered an AR-15 rifle, a 12-gauge shotgun and two .40-caliber handguns. 12 people were killed and dozens more injured by the gunman who was taken into police custody minutes later known as James Holmes who was 24 years old at the time.
It is very rare to have a mass shooter in court as most either commit suicide or are killed by the police but James Holmes’s was taken into custody, charged and his trial has started. On January 20, 2015 jury selection began from 9,000 prospective jurors. It is the largest jury pool in U.S history. Of the prospective 9,000 jurors 1 of 50 registered voters in Arapahoe County had a chance of being selected. The prospective jurors will arrive in groups of 250 twice a day and will be asked to complete an 18 page questionnaire. Potential jurors will be called back for individual questioning which is a process that can take up to 4 months to complete. 100 potential jurors will be left after this process and will be questioned in a group session. The jury will consist of the final 12 jurors and 12 alternates which may not be complete until May or June with the trial lasting until October.
James Holmes has been charged with multiple counts of murder and attempted murder and has pleaded not guilty by reason of insanity. If found guilty, jurors will have to decide whether to recommend the death penalty. If found not guilty Holmes would be committed to a mental hospital indefinitely. The case has gone on for so long as the prosecution and the defense are trying to determine if Holmes was insane at the time of the shooting as defined under the Colorado law. Insanity as defined by Colorado law (C.R.S. § 16.8.-101.5) is The person must be “diseased or defective in mind.” This is typically translated as having a mental illness (almost always a psychotic thought disorder like Schizophrenia or Schizoaffective Disorder). To be considered mentally diseased or defective, a condition must “grossly and demonstrably impair a person’s perception or understanding of reality.”
Check back for updates as the trial gets underway. Jury selection is expected to take several months.
by Brittney Jones, Paralegal
Colorado recently rejected a proposal to let terminally ill patients choose to end their lives. Dying patients would have been required to have two physicians sign off on written and verbal requests to end their lives. The patients would need to be able to administer the medication themselves and be found mentally competent.
Only five states have passed a similar legislation- Washington, Montana, Vermont, New Mexico and Oregon. Colorado’s bill would have been based on Oregon’s right-to-die law where 29 year old Brittany Maynard chose that option. More states have started to consider a death with dignity law after hearing Maynard’s story. Maynard was diagnosed with brain cancer in January 2014. In April, 2014 her diagnosis elevated to glioblastoma with six months to live. After months of research, Maynard came to conclusion she would end her life in Oregon with the help of the death with dignity law. Maynard and her family uprooted from California to Oregon where Maynard passed away November 1, 2014. Since Maynard’s death four other states have had pending proposals for the right-to-die law; Colorado (which was recently rejected), Pennsylvania, Wyoming, and California (where Maynard is originally from).
There were mixed feelings about the bill as some people thought the bill would facilitate suicide and take away the patient’s hope for a possible recovery. Others were supporters of the bill saying it is a very personal choice for the patients and terminally patients should be able to choose when and how they die.
Lawmakers had concerns about whether abuse can be prevented by approving a right-to-die law. Family members of the terminally ill patient may try to speak with physicians on behalf of the dying relative even if it’s not what the terminally ill patient wants. If a terminally ill person acquires the medications through proper channels but decided not to take the medication, are there ways to discard the medication so another family member can’t take the prescribed medication?
by Brittney Jones, Paralegal
The most important detail to know about any DUI or DWAI charge is that we are talking about two different paths: the criminal case prosecuted by the district attorney and the administrative case reviewed by the Colorado Department of Revenue. Both sides have the ability to revoke or suspend your driving privilege in different ways. A case dismissal on the part of the district attorney does not mean a dismissal by an administrative law judge, and vice versa. Don’t even bother bringing up what happened at your Department of Revenue DMV hearing to the district attorney when you’re in plea negotiations. Each agency does what they want with your case.
Are you a Persistent Drunk Driver (PDD)? This is a label the Department of Revenue will give you if you picked up a DUI charged after January 1, 2014 and your blood alcohol level was a .15 or higher. If you picked up a DUI charge after 1/1/2014 and you refused to take a chemical test (blood test or Intoxilyzer breath test), you will also be slapped with a PDD label. If you are designated a Persistent Drunk Driver after 1/1/2014, you will be required to have an interlock device installed on your car for a minimum of two years if you want to drive at all. This is after you’ve served the period of suspension which is typically 30-60 days and you have purchased SR-22 insurance. The interlock device (aka “blow and go”) attaches to your car’s ignition and requires you to blow into a tube for several seconds to test your breath for alcohol. Once the device determines you are clear to drive it will beep at you and you’re free to start driving. Every 10-15 minutes of driving the device will beep for a follow up test. You can blow into the device while driving, but use caution because it can be a distraction. If you fail the test or it results in error from incorrectly blowing or not using enough breath, your call will stop running.
The interlock device requires regular calibration at a designated service center every 30 to 60 days which costs between $70 and $90. A printout is mailed to the Department of Revenue indicating all testing results. You can usually remove the device after the 2 year period with clean driving and no positive test results. You’ll get notification from the Department of Revenue saying you’re free to drive normally again. If the device detects alcohol on the driver in three of any twelve consecutive months, the interlock restricted driver must keep the interlock device and be under the interlock restriction for an additional year.
There are hundreds of websites written for people who want to represent themselves. Everyone in the United States has access to Google and Bing. Most people with at least some computer savvy can locate major case decisions for DUIs, divorce and criminal offenses with a few swipes on their smartphones. Here’s the cold fact: while you may effectively represent yourself in some limited cases, if you have been charged with anything other than a petty offense or traffic ticket, or if you’re embarking on a divorce or family law case and don’t want to give everything away to the opposing side, you should strongly consider speaking to an attorney first. And after speaking to that attorney (and maybe a few others), you should probably hire one of them. Here are 6 reasons why you should not (I repeat: NO NO NO) represent yourself in court, regardless of everything else you may have read online.
1. So you want to go pro se, but you don’t know what the words “pro se” mean?
I can’t count how many times I’ve heard lousy attorneys or unrepresented defendants tell the court they’d like to “squash” a warrant. Do you know the right word to use in that last sentence? It’s “quash” and if you didn’t know this, you probably should not be representing yourself in court. Courtrooms have a certain vocab, a Latin-heavy lingo, that you may not be used to hearing in everyday life. Every document served in court has its own legal title: petition, citation, motion, answer, response. Every hearing has a different name: first appearance, arraignment, setting, pretrial conference, disposition etc. Stop your head from spinning on all of the legal jargon and hire an attorney so you don’t have to think so hard. P.S. Pro se translates to “for oneself,” as in going to court for yourself. Remember this.
2. The judge will not like you if you represent yourself.
Yes, you have the right to represent yourself in court. However, nobody likes it. Should you decide to represent yourself, it’s likely you’ll hear the judge advise you once or more about that decision. Sometimes judges will even slickly try to talk you out of going pro se (I know you now know what pro se means). Representing yourself means the clerks and judges will have to take more time to explain things to you. This will effect court efficiency and most judges love efficiency. Also, some defendants/respondents/petitioners come as cocky or arrogant as they huff and puff and address the Court. Have you heard Judge Judy react to arrogant people on her show? I’ve seen judges come down similarly on parties. I’ve heard a judge actually tell the parties, “This is not Judge Judy!” when courtroom decorum wasn’t followed.
3. You’ll get out of court faster.
In most jurisdictions, attorneys are heard before everyone else. That means if you have an attorney, he or she can jump up and have your case called toward the beginning of the docket. That means you get to skip being bored and restless listening to all of the other cases drone on before the judge gets to your name, Zachary Zagat, printed last on her alphabetically listed docket. 4. Every courthouse and courtroom is different. You can’t research that online. I’ve practiced in Colorado for almost a decade now and I’ve appeared in eight different counties/jurisdictions so far. Every jurisdiction runs a little differently from the next. While a pro se or sovereign focused website will give you a general overview of what you might expect of the court process, that website might not be specific to your jurisdiction and I’m certain there will be no details about how the courtroom operates in your assigned division in your particular jurisdiction. I suppose you could sit in on dockets for hours beforehand and get a feel for your judge–and I’ve seen pro se defendants do that sort of thing–but who has that kind of time? You’re better off spending that time shopping around for an attorney who you feel is on your side and competent to take your case. And speaking of online research, printing out Wikipedia pages and webmd.com articles to present to the Court at a hearing will have little to no impact on the outcome of your case. There’s this big book of things called The Rules of Evidence, which dictates what kind of evidence gets action in a case. You’ll be held to a standard pretty close to a regular attorney and that means you’ll have to play by the same Rules.
5. An experienced attorney knows the court’s quirks and preferences.
Remember the classic comedy, My Cousin Vinny? Vinny may have (spoiler alert) won the trial, but he sure looked ridiculous along the way. And he was an actual law school graduate. I suggest you find an attorney who has experience practicing in the courthouse where your case is scheduled. When I say “practicing,” I mean standing in front of the bar in the courtroom on a regular basis, reciting his bar registration number from memory for the record without hesitation, and addressing the judge from the lectern. A cousin of a friend of a friend who does real estate law probably won’t be of help to you on your felony burglary case that’s postured for a jury trial, even if his retainer is bargain basement. Why not choose the attorney who can name a couple of the judges in the courthouse and knows that, for instance, Judge Matthews is a woman?
6. Have you met Miranda?
Don’t trust what you see on TV. I’ve had dozens of potential clients tell me that their cases should be thrown out since the police officer never read them their rights. Because, they say, on Law & Order, or CSI or Brooklyn 99, the cops always read the Miranda rights, right? Not so fast; there is no automatic rule saying a cop has to read you anything upon first contact. You’re really only supposed to get those famous Miranda advisements read to you if you’re facing custodial interrogation, a term which can be complicated and is outside the scope of this blog post. And even if you happen to be in a situation of custodial interrogation and you weren’t read your Miranda rights, it doesn’t necessarily mean that the entire case gets tossed. There are nuances that need to be considered. If you’re going to remember anything about Miranda upon reading this post, remember the second of the rights: You have the right to an attorney. If you can’t afford an attorney, one may be appointed for you. Take advantage of this right and don’t go it alone on your legal matter.
In marriages we all have our ups downs, and sadly sometimes those downs can’t be fixed. Divorce is very possible especially when younger people get married quickly. Sometimes divorces are mutual, sometimes they are one sided. Either way there are a lot of emotional decisions that need to be made and considered when filing for divorce. There are many ways to cope with these hard decisions and the overall fact that your marriage is over. For example, give yourself permission to cry, this is a hard enough time without you having to hide your feelings. Secondly, remind yourself why you’re getting divorced, your exes worst qualities will give you the confidence boost to keep moving forward with the divorce process.
After the divorce is over you need to realize you will have different feelings about what just happened. For some they feel very happy that the divorce is over and they can move on with their lives. For others, they feel very sad and in denial that a piece of their lives is gone forever. Just remember to give yourself time to grieve. Divorce is a big hard decision and it will feel strange for a while. Don’t punish yourself either, you deserve to be happy again and when the time is right for you it will happen.
Some ways to cope with the after divorce feeling are to find a new hobby, something you’ve never done with your ex. Go on vacation or just start exploring new areas of where you live, give yourself new memories. For the days that you just want to stay in bed, curl up with a good book or a sappy movie, it’s ok to cry! Just keep reminding yourself that you made this decision for a reason and in time you’ll feel better and ready to move on completely.
By Daron Allen, Paralegal
A poor judgment choice from when she was a teenager as a citizen of Mexico now prevents a young woman from living with her new groom and family in his hometown of El Paso, Texas. The couple in this story from the Texas Tribune got married in the middle of the Paso del Norte bridge, an international man-made structure that literally bridges the gap between the United States and Mexico. The bride may never be able to step off that bridge and onto US soil to be with her new husband. The scene of the wedding was by all accounts meant to draw attention to their situation, which was brought on by the 1996 immigration bill signed by former president Bill Clinton which said that a person who lies about being a US citizen shall be barred from re-entry into the United States. Now an adult, the couple feel the effects of that bride’s prior misrepresentation of citizenship.
The issue of marriage and immigration can be extremely complicated. From the logistics of bringing a foreign spouse into the United States to family sponsorship, green card expiration dates and which forms to complete and file with the federal government, few areas of law are more complex than immigration. The law on immigration related issues is constantly changing and evolving. Organizations like American Families United have backed an act that would allow judges some discretion when it comes to deportation or re-admission reviews in cases where a subject has an immediate family member who his a United States citizen. Another interesting issue comes with the recent striking of DOMA, the Defense of Marriage Act, via landmark case United States v. Windsor which ruled that same-sex marriages would be recognized by the federal government. The result of that case, in small part, is that immigration laws have new effects on same-sex bi-national couples who marry and seek visas or green cards.
If you or a loved one has ever had to fill out an application for citizenship or green cards, you know that the paperwork and forms can be complex and voluminous. Filing fees for various types of status tend to be expensive. For assistance and to be sure your paperwork is filled out correctly so that you are not faced with mistakes that mean paying a filing fee twice, you should always consider talking to a local immigration attorney.
Children under 18 years old are committing more and more major criminal offenses, and video games like Grand Theft Auto cannot be to blame. On October 11, 2013, an 11 year old boy in Washington state was found guilty of conspiring to commit murder against a 10 year old girl. His reason for planning to stab the 10 year old girl to death? Because he found her to be “really annoying.” The judge in the case called it the most serious case he had ever come across in his career. Defense counsel attempted to present evidence that the boy could not separate fact and reality from fantasy, a theory which was ultimately rejected by the judge. However, they were able to successfully present some evidence that the boy suffered from bipolar disorder. Still, the fifth grader was ultimately found guilty of the crime and acquitted of criminal tampering. He was tried as a juvenile because of his very young age and faces sentencing in early November 2013.
Even closer to home, juvenile Macyo January is accused of committing a string of burglaries throughout Colorado Springs and El Paso County in Colorado, and during one bust he unexpectedly came across homeowners, a young newlywed couple, and allegedly murdered them. Evidence presented in pretrial proceedings revealed that the wife, Whitney Butler was pregnant when she was shot in her head and killed as she kneeled over her dying husband, David Dunlap in a scene and image that will be forever etched into the minds of jurors, should the case go to a jury trial. While January could have been tried in juvenile court because of his age at the time of crime, a judge determined that he would be tried for murder as an adult. Courts may consider several factors in determining whether a Colorado juvenile will be tried in juvenile court or adult felony court, including the severity of the crime, how close a child is to the age of 18 at the time of the offense, and the child’s mental capacity or emotional maturity. In the case of January, he was four month’s short of turning 18 when he committed the offense and documents from the Division of Youth Corrections in Colorado reveal that Macyo January self-reported that he would have no problem committing murder if he “knew he could get away with it.”
Cases like this are certainly alarming, and for the most part, prosecutors do not feel overwhelming senses of victory when a very serious case involving a child ends. In cases of conviction victims and their families may feel that some justice was served, but overall there are larger societal and cultural concerns at play. Whether its a serious case or a minor juvenile offense, consider consulting an attorney with experience in Juvenile Court before you commit to any plea agreement. Attorney Marika Frady in Colorado Springs, Colorado, has years of experience handling juvenile court cases, including misdemeanors, felonies and sexual offenses. She also spent two years as the deputy district attorney in charge of determining which charges to file in the approximately 1500 cases submitted by law enforcement agencies annually. While the juvenile court system in Colorado is designed to mimic the penalties and procedures of the adult justice system, there are key differences that you need to know and scheduling a consultation with a knowledgeable lawyer is the fastest way to get those answers.
Fact: In the United States, grandparents do not automatically enjoy legal rights to visit their grandchildren or gain custody of their grandchildren.
This is an interesting fact given that a 2011 study found that grandparents were the primary caregivers for 3 million of the children in the county and a second study determined that 1 out of every 10 U.S. children lives in an extended household that included one or more grandparents. Certainly grandparents play an important role in a child’s upbringing, but what if a parent just does not want grandparent input or does not want the child to have a relationship with his/her grandparent at all?
Each state has its own laws in place regarding the extent to which a grandparent may petition a court for visitation with a grandchild. Some states are very lenient while others barely allow grandparent any standing to bring the issue before a court of law. Colorado is middle-of-the-road on the issue of grandparent rights to visitation and child custody. In Colorado, section 19-1-117 of the Children’s Code in Colorado Revised Statutes covers grandparent visitation and it does not provide a particularly broad remedy to grandparents. The crux of the Colorado Children’s Code is that a court shall determine whether its ruling or decision would be in the “best interest” of the child. This is the standard by which most courts across the country decide. In deciding the “best interest” of a child, a court will consider the totality of the evidence and circumstances surrounding the grandparents’ request.
Prior to a grandparent even considering a motion to the court for visitation in Colorado, there must be an already existing or open legal action in process. From there, there are legally three situations in which a grandparent may raise the issue of visitation of a grandchild with a court:
- Child custody has been granted to someone other than the child’s parents (not including adoptions);
- The parents’ marriage was annulled or the parents are otherwise divorced or legally separated; and,
- The child’s parent (the grandparent’s child) is deceased.
With respect to grandparent rights to custody or “parental rights” of a grandchild, courts in Colorado are somewhat more limiting. The controlling source of law is the Uniform Dissolution of Marriage Act (UMDA), particularly section 14-10-123. Grandparents may petition a court for parental rights if the grandchild is not under the physical care of his/her own parent or where the grandchild has been under the physical care of a grandparent for six months or more. If a grandchild was under a grandparent’s physical care for six months and that arrangement terminated, a grandparent may file for parental rights so long as the petition is filed within six months of the termination. In most cases, the proper motion to file is called a Motion for Allocation of Parental Responsibilities.
From a practical standpoint, in many cases courts tend to rule in favor of grandparent visitation, particularly in cases where the child’s parents are fairly young and dependent financially or emotionally on their own parents (the grandparents). Courts appear to see a benefit in a child being cared for both at a nuclear level and via extended family, and this makes logical sense. Because the laws surrounding grandparent rights are not exactly black and white in Colorado courts, any grandparent may benefit by speaking to a local attorney who can help clarify the issues and determine a strategy in those cases where a grandparent’s situation may fit the statutory parameters for grandparent visitation and custody.