






 | |
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Robert D.
Gustafson, Attorney At Law
COLORADO SPRINGS TRIAL LAWYER
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6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719) 260-1002
Toll Free (800) 410-1002
E-MAIL
ATTORNEY
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Attorney
Business Hours
Attorney
Availability Status
FREE
INITIAL CONSULTATION
Fax (719) 260-1003
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COLORADO
SPRINGS MIP
DEFENSE
MINOR IN POSSESSION
UNDERAGE POSSESSION - CONSUMPTION OF ALCOHOL
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WELCOME
I appreciate your interest
perhaps I will become your attorney |
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Minor in Possession MIP Colorado Springs -
Underage Alcohol Possession or Consumption of Alcohol - Colorado Springs. breath
test, Intoxilyzer 5000, preliminary breath test, PBT, breathalyzer, blood
alcohol test, blood test, BAC, sobriety test, alcohol education class, deferred
sentence, probation, driver's license suspension, driver license suspension,
license hearing, driver license, suspension, revocation, hearing, Colorado DMV,
Colorado DOR, Colorado state courts. Colorado Springs Attorney.
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Given the acute
alcohol related deaths of 1 high school student and 3 college students during the fall
semester 2004, it is a fair assumption that Colorado law will become much
more strict - both for underage possession or consumption and for adults who make
alcohol available to underage persons. |
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Well meaning as our state
legislature may be, the relevant question remains -
Will the legislature's efforts be productive, or will this have a similar effect to prohibition in the 1920's? |
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THINKING
ABOUT DRIVING AFTER CONSUMING ALCOHOL?
VEHICLE
FORFEITURE
legislative debate
refer to link for information |
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| HOUR OF POWER |
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The "Hour of Power" is
that period of time on a person's 21st birthday between 12:00 a.m. and 1:00 a.m.
when drinks are no longer served - closing time. Twenty one shots are
lined up on the bar or table to be consumed by the gala birthday boy or birthday
girl within that hour. Across the country, college kids are dying from
acute alcohol poisoning. Parents - travel if necessary, but take your
child out the previous night and celebrate his or her 21st birthday until 1:30
a.m. Help your child live to enjoy life. |
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| enough with preventative - on to defense |
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BAIL
BOND
refer to the above link for information |
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RIGHT
AGAINST UNREASONABLE SEARCH & SEIZURE
NO CONSENT - NO VOLUNTARY SEARCH
NO WAIVER OF OTHER RIGHTS |
When a criminal suspect voluntarily gives permission for police or law
enforcement to search, items found in that search will likely be admissible as
evidence. Conversely, searches without a warrant are presumed unlawful
with some exceptions. Evidence found as a result of an unlawful search may
be suppressed (excluded from admission) as a fruit of the poisonous tree.
Every citizen has the constitutional right to be free from unreasonable search
and seizure. Never consent to a search or seizure without advice of legal
counsel. Let law enforcement procure a warrant or face possible
constitutional challenge to the evidence. Roadside sobriety testing is a
search in the constitutional sense which can and should be refused whether
intoxicated or stone cold sober. Law enforcement officers have no
obligation to advise you of your right to refuse, but it exists - exercise your
rights and politely decline with a simple no. This also applies to a PBT -
preliminary breath test equipment which may be produced by an officer on scene,
intoxilyzer breath test at the police station or blood draw. If you have
not been drinking, upon release immediately proceed to a hospital or
laboratory
and have blood drawn with a legal chain of custody.
Similarly, no other rights should be waived by any criminal suspect or defendant
without advice from counsel. If you aren't certain what your rights are at
the time of the police request, simply say no - I need to speak to an attorney.
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CRIMINAL DEFENDANT DEMEANOR
refer to above link for information |
Defense attorneys frequently see the police report phrase:
"suspect was cooperative." Law
enforcement officers will do what they will do regardless of your cooperation -
it won't help and may likely hurt your court case defense.
This attorney advises clients to remain silent and be courteous, calm and in
control of your emotions. Politely decline any police requests,
making the statement you need to consult with legal counsel before giving
a response, and request presence of an attorney. You have the right to
presence of and advice of defense counsel. Exercise your
rights.
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RIGHT
TO REMAIN SILENT
NO STATEMENTS
LAW ENFORCEMENT
* PROSECUTORS
* THIRD PERSONS |
Admissions made by a criminal defendant may be admissible in the prosecutor's
case in chief. At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make
any statements whatsoever to any law enforcement officer, prosecutor, witness,
the alleged victim, an insurance adjuster or any other third person.
Prosecutors
will not hesitate to file intimidation of witness felony charges, and your
statements are admissible in a trial or motions hearing. You have the
absolute right to remain silent even if police don't tell you. Exercise
that right. In some circumstances, no statutory
privilege exists with respect to medical providers (doctor, nurse, etc),
counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse
(husband, wife) - only the attorney-client privilege exists. Consult with your attorney before
talking.
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STATEMENTS
OR CONFESSIONS OF A MINOR
ADMISSIBILITY
attorney notation: multiple sections have been omitted or summarized for brevity |
CRS 19-2-511. Statements
(1) No
statements or admissions of a juvenile shall be admissible in evidence against
such juvenile unless a parent, guardian, or legal or physical custodian of the
juvenile was present at such interrogation and the juvenile and his or her
parent, guardian, or legal or physical custodian were advised of the juvenile's
right to remain silent and that any statements made may be used against him or
her in a court of law, of his or her right to the presence of an attorney during
such interrogation, and of his or her right to have counsel appointed if he or
she so requests at the time of the interrogation; except that, if a public
defender or counsel representing the juvenile is present at such interrogation,
such statements or admissions may be admissible in evidence even though the
juvenile's parent, guardian, or legal or physical custodian was not present.
(2) (a) Notwithstanding the above
subsection statements or admissions of a juvenile may be admissible in evidence,
notwithstanding the absence of a parent, guardian, or legal or physical
custodian, if the court finds that, under the totality of the circumstances, the
juvenile made a knowing, intelligent, and voluntary waiver of rights and:
(I) The juvenile is eighteen years of age or older at the time of the
interrogation or the juvenile misrepresents his or her age as being eighteen
years of age or older and the law enforcement official acts in good faith
reliance on such misrepresentation in conducting the interrogation;
(II) The juvenile is emancipated from the parent, guardian, or legal or physical
custodian; or
(III) The juvenile is a runaway from a state other than Colorado and is of
sufficient age and understanding.
(b)
"Emancipated juvenile" is defined in CRS 19-1-103 (45).
(3) Notwithstanding the above
subsection, statements or admissions of a juvenile shall not be inadmissible in
evidence by reason of the absence of a parent, guardian, or legal custodian if
the juvenile was accompanied by a responsible adult who was a custodian of the
juvenile or assuming the role of a parent at the time.
(4) "Physical custodian" is
defined in CRS 19-1-103 (84).
(5) The juvenile and his or her
parent, guardian, or legal or physical custodian may expressly waive the
requirement that the parent, guardian, or legal or physical custodian be present
during interrogation of the juvenile. This express waiver shall be in writing
and shall be obtained only after full advisement of the juvenile and his or her
parent, guardian, or legal or physical custodian of the juvenile's rights prior
to the taking of the custodial statement by a law enforcement official. If said
requirement is expressly waived, statements or admissions of the juvenile shall
not be inadmissible in evidence by reason of the absence of the juvenile's
parent, guardian, or legal or physical custodian during interrogation. A county
social services department and the department of human services, as legal or
physical custodian, may not waive said requirement.
(6) Notwithstanding the above
subsection, statements or admissions of a juvenile shall not be inadmissible
into evidence by reason of the absence of a parent, guardian, or legal or
physical custodian, if the juvenile makes any deliberate misrepresentations
affecting the applicability or requirements of this section and a law
enforcement official, acting in good faith and in reasonable reliance on such
deliberate misrepresentation, conducts a custodial interrogation of the juvenile
that does not comply with the requirements of subsection (1).
Delinquency Adjudication Triggers
Rights. The requirements of the
statute do not apply to interrogation of a child by a law enforcement official
concerning traffic offenses which could not result in the child's being
adjudicated a delinquent. People v. Maynes, 39 Colo. 158, 562 P.2d 756
(1977). Although these proceedings are commenced in county court, not
juvenile court and do not alleged delinquency, it would be this attorney's
argument that the rights apply to these offenses as conviction could be the
basis of a petition in delinquency and CRS
12-47-901(5) specifically provides for charging contributing to the delinquency
of a minor.
Statements - Protection.
The clear purpose in enacting CRS 19-2-511 is to
afford a special protection to a juvenile who is in police custody because of
alleged criminal acts. People v. Maes, 194 Colo. 235, 571 P.2d 305
(1977); People in Interest of R.L.N., 43 Colo. App. 542, 605 P.2d 491
(1980). The statute provides an additional and necessary assurance that the
juvenile's fifth amendment right against self-incrimination and his sixth
amendment right to counsel will be fully afforded to him. People v. Maes,
supra; People v. Lee, 630 P.2d 583 (Colo. 1981), cert. denied, 454
U.S. 1162, 102 S. Ct. 1036, 71 L.Ed.2d 318 (1982). It was enacted to safeguard
the privilege against self-incrimination, the same privilege protected by Miranda,
and the "fruit of the poisonous tree" doctrine on the inadmissibility
of evidence obtained by unconstitutional police action applies to its violation.
People v. Saiz, 620 P.2d 15 (Colo. 1980). The warnings incorporated in a Miranda
advisement have been codified in the juvenile context by CRS 19-2-511 together
with the requirement that the juvenile be accompanied by a parent, guardian, or
custodian during the advisement and interrogation. People v. T.C., 898
P.2d 20 (Colo. 1995). The statute does not require that a juvenile be warned
that his statements will be used against him, or that a juvenile be advised that
he has the right to terminate the questioning at any time. People in Interest
of M.R.J., 633 P.2d 474 (Colo. 1981). Juveniles are entitled to the
right of written notice, the right to counsel, the privilege against
self-incrimination, and the right of confrontation and cross-examination of
witnesses in delinquency adjudications. In re Gault, 387 U.S. 1, 14
(1967)
Custodial Interrogation Required.
Interrogation conducted via telephone
not custodial since police officer could not exercise immediate control over
juvenile. Juvenile not entitled to protection statute. People in Interest of
J.C., 844 P.2d 1185 (Colo. 1993). The statutory limitations apply only when
a child is in temporary custody or under detention, as those terms are used in
the children's code. People v. Maynes, 39 Colo. 158, 562 P.2d 756 (1977);
People v. L.A., 199 Colo. 390, 609 P.2d 116 (Colo. 1980); People in
Interest of G.L., 631 P.2d 1118 (Colo. 1981). Although not expressly so
limited, it is clear that the statute concerns questioning of a child while in
temporary custody or under detention. People v. Maynes, 39 Colo. 158, 562
P.2d 756 (1977). Under Miranda and the statute, the decisive stage for
the warnings is custodial interrogation, i.e., questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. People v. Lee,
630 P.2d 583 (Colo. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1036, 71
L.Ed.2d 318 (1982).
Blurb Rule.
Parent not required to be present when juvenile makes
voluntary statements to police after police ended interrogation with parent
because of request for counsel. People v. Rivas, 13 P.3d 315 (Colo.
2000).
Color
of Authority - Statements to or Search by Third Persons. The exclusionary
rule of the statute does not apply to a child's statement made to a treating
physician when that statement is not the result of an interrogation by a law
enforcement official. People in Interest of R.G., 630 P.2d 89 (Colo. App.
1981). Whether or not an individual conducting a search is an agent of the
police and thus "a law enforcement official" under subsection (1) is
determined by the totality of the circumstances. The fact that the police
officer supplied information to the school principal with the intent of
initiating a search and that he was present on school premises during the
investigation do not support a finding that the principal and security officer
acted as agent of "a law enforcement official". People in Interest
of P.E.A., 754 P.2d 382 (Colo. 1988); People in Interest of F.M., 754
P.2d 390 (Colo. 1988).
Voluntariness of Waiver.
Factors in determining voluntariness of
confession. In determining whether a juvenile's confession is voluntary, the
primary factors to be considered are the juvenile's age, experience, background,
and intelligence, his capacity to understand the warnings given him, the nature
of his fifth amendment rights, and the consequences of waiving those rights.
People
in Interest of M.R.J., 633 P.2d 474 (Colo. 1981). Once the issue of
voluntariness has been raised, the prosecution has the burden of establishing by
a preponderance of the evidence that the statements were made voluntarily.
People
in Interest of M.R.J., 633 P.2d 474 (Colo. 1981).
Voluntary Confession - Custodial Interrogation.
The juvenile and his
parents waived their right to consult with an attorney and orally waived their
right to parental attendance at the interrogation, and the interviewing
detective's "soft technique", if any, did not constitute improper
coercion despite noncompliance with requirement that waiver of parental
attendance be in writing. People v. Grant, 30 P.3d 667 (Colo. App. 2000).
Juvenile Lies About Age - Majority.
A former case held there was no
exception for juveniles who lie about their age to the police, claim to be
adults, and the police act in good faith. That loophole was cured by amendment -
see CRS 19-2-511(2)(a)(I). Nicholas v. People, 973 P.2d 1213 (Colo. 1999)
is now moot.
Admissibility Factors - Totality of Circumstances.
Whether statements
obtained during custodial interrogation are admissible depends upon the totality
of the circumstances surrounding the interrogation. People in Interest of
M.R.J., 633 P.2d 474 (Colo. 1981). Simply reciting the warnings required by
CRS 19-2-511 does not sever the connection between illegal questioning and
subsequently incriminating statements. People v. Saiz, 620 P.2d 15 (Colo.
1980). Although the lack of a Miranda warning creates a presumption of
compulsion, the presumption can be rebutted and the initial statement shown to
be voluntary in light of the totality of the circumstances. People v. T.C.,
898 P.2d 20 (Colo. 1995).
"Stop" Statement.
Where a minor defendant responded to one of
the officer's questions by stating, "I ain't going to say nothing no
more", but the officers continued to urge defendant to tell the truth, a
statement gained by those urgings was suppressed. People v. Saiz, 42
Colo. App. 469, 600 P.2d 97 (1979).
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Meaningful Adult Assistance.
The statutory requirement of the presence of
a parent or guardian at the interrogation of a child by law enforcement officers
is designed to provide parental guidance and assistance to the child and thereby
to provide at least some minimal assurance that a child's waiver of his right
against self-incrimination is knowingly and intelligently made. People in
Interest of L.B., 33 Colo. App. 1, 513 P.2d 1069 (1973).
Who Qualifies as a Custodian?
Physical custodians under the statute must
be limited to the adult or adults with whom the child resided immediately prior
to the arrest and custodial interrogation. If an adult is functioning as a
current physical custodian for the child at the time of the interrogation, a
protective relationship sufficient to satisfy the legislative purposes
presumptively exists. People v. Legler, 969 P.2d 691 (Colo. 1998).
Hostile or Adverse Interests.
If the adult appearing with the juvenile
has interests that are objectively hostile to those of the juvenile and cannot
aid the juvenile in making a knowing, intelligent, and voluntary waiver of his
or her constitutional rights, the juvenile is deprived of the protections of CRS
19-2-511. People v. Legler, 969 P.2d 691 (Colo. 1998). Where interest of
parents is obviously adverse to interests of minor, they are disqualified to act
under the provisions of CRS 19-2-511. People in Interest of P.L.V., 176
Colo. 342, 490 P.2d 685 (1971); People v. Hayhurst, 194 Colo. 292, 571
P.2d 721 (1977). It is implicit that a child involved in the commission of an
offense should be afforded protective counseling concerning his legal rights
from one whose interests are not adverse to those of the child, to the end that
any statements made by the child be given voluntarily, knowingly, and
intelligently. People v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976); People
v. Legler, 969 P.2d 691 (Colo. 1998). Counselors of a school for boys cannot
be considered the neutral counselors contemplated the statute. People v.
McAnally, 192 Colo. 12, 554 P.2d 1100 (1976). The fact that the father was
upset with his son's possible involvement in a crime does not mean that their
interests were necessarily adverse. People v. Hayhurst, 194 Colo. 292,
571 P.2d 721 (1977).
Parental Incarceration. Where parent is himself incarcerated, his ability
to guide and advise the child is hobbled and restrained by his own circumstances
to such an extent that his mere physical presence does not satisfy the
requirements of CRS 19-2-511 concerning confessions of a child because the
parent must be in a position to give advice freely, and a parent who is himself
incarcerated is in no such position. People in Interest of L.B., 33 Colo.
App. 1, 513 P.2d 1069 (1973). A child's confession is inadmissible where the
child receives inadequate guidance because the parent is present but also
incarcerated, or where a counselor or caseworker is substituted for the parent. People
in Interest of M.M., 43 Colo. App. 65, 599 P.2d 968 (1979).
Parental Error does not Excuse Police Wrongdoing. Where the police were
actively involved in the continued urging of minor defendant "to tell the
truth", the fact that the defendant's parents made similar requests did not
absolve the police of any wrongdoing, or allow them to disregard defendant's
exercise of his right to cut off questioning. People v. Saiz, 42 Colo.
App. 469, 600 P.2d 97 (1979)
Waiver of Parental Attendance. The statute requires that a waiver of the
right to parental attendance must be express, in writing, and obtained after a Miranda
advisement; however, it does not require that the writing be signed. People
v. Grant, 30 P.3d 667 (Colo. App. 2000). Although the statute does not
require a signature on the written waiver of parental attendance, the written
waiver must in some manner be attributable to the person against whom it is to
be enforced. A signature on the document obviously is the most direct means to
demonstrate this, but it is not the only way for one to acknowledge or ratify
the document. Id.
Parental Testimony - Permissive. The statute does not require that parents,
irrespective of the rules of evidence, be permitted to testify concerning all
statements made by their child during an interrogation at which they were
present. People v. Raibon, 843 P.2d 46 (Colo. App. 1992).
Appointment of Attorney. The only effective means of implementing the
purposes of this statute in situations where person appearing with juvenile is
neutral or hostile to the juvenile's interests is to appoint counsel. People
v. Maes, 194 Colo. 235, 571 P.2d 305 (1977). The statute provides for the
presence of an attorney, or the public defender, at the interrogation. People
v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976). Appointment of counsel does
not alleviate the necessity for compliance with CRS 19-2-511 where counsel was
not present at the time of the confession. People in Interest of M.M., 43
Colo. App. 65, 599 P.2d 968 (1979). Attorney guardian ad litem who was familiar
with the juvenile and his familial and criminal background was qualified to
appropriately serve the interests of the juvenile. Fact that the guardian was
originally appointed to represent juvenile in custodial proceeding was not
dispositive of whether guardian could also adequately represent juvenile
defendant during custodial interrogation. People v. S.M.D., 864 P.2d 1103
(Colo. 1994).
Request for Counsel - Must be Unambiguous. Child's execution of financial
eligibility form and interview by member of public defender's office did not
constitute an unambiguous invocation of the right to counsel. Under totality of
the circumstances, statement by juvenile's mother to police concerning public
defender representation simply indicated mother's concern over legal
representation in light of financial circumstances, and was not a clear
assertion of right to counsel. People v. Grant, 30 P.3d 667 (Colo. App.
2000).
Emancipation. The trial court appropriately found that the juvenile was
emancipated where the juvenile had been on his own for three months and had not
been receiving financial support from his mother, therefore absence of the
juvenile's parent at custodial interrogation did not require the court to
suppress the juvenile's statement. People v. Lucas, 992 P.2d 619 (Colo.
App. 1999). Trial court properly held that juvenile was emancipated even though
legal and physical custody of the juvenile had been placed with the department
of human services. The language of CRS 19-2-511 implicitly recognizes that a
juvenile may be emancipated from the custody of someone other than the parent,
including the state. Id.
Violation - Remedy. The remedy for a violation of CRS 19-2-511 is
suppression of the statements obtained. However, that remedy applies only to
statements made as a result of custodial interrogation. People v. T.C.,
898 P.2d 20 (Colo. 1995). Statements and admissions made to the police by a
juvenile in the course of a criminal investigation are not admissible in
evidence against a juvenile unless the special protection contemplated by the
statute is provided. People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977).
Child's confession, obtained without compliance with CRS 19-2-511 was
inadmissible, and the court should have granted the child's motion to suppress
the confession. People in Interest of L.B., 33 Colo. App. 1, 513 P.2d
1069 (1973).
Runaways from Out of State. Statements from a juvenile who is a runaway
from another state are admissible if the juvenile is of sufficient age and
understanding. Sufficient age and understanding refers to the juvenile's ability
to understand his or her constitutional rights and to make a knowing,
intelligent, and voluntary waiver. People v. Blankenship, 30 P.3d 698
(Colo. App. 2000). Runaway is defined as an unmarried person under the age of 18
and who ran away from home or is otherwise beyond parental control. Id.
Fruits of the Poisonous Tree. Physical evidence which is fruit of
statement improperly obtained from juvenile is inadmissible. People v. Saiz,
42 Colo. App. 469, 600 P.2d 97 (1979).
Search and Seizure. The same test is applicable to the validity of the
search whether the consenting party is an adult or a juvenile with the one
exception noted in CRS 19-2-511(1)). That is, a parent, guardian, or legal
custodian of the child must be present and freely and intelligently give his
consent. Although this statute refers specifically to "statements and
admissions", and requires that the interrogating officer afford both the
juvenile and his parent, guardian, or legal custodian full fifth amendment
protection, the juvenile is entitled to comparable protection in connection with
the waiver of his fourth amendment rights. People v. Reyes, 174 Colo.
377, 483 P.2d 1342 (1971). The statute applies only to consent searches and not
to searches incident to a lawful arrest. People in Interest of S.J.F.,
736 P.2d 29 (Colo. 1987). The statute is not applicable to a search consented to
by a minor in a non-custodial setting. People in Interest of S.J., 778
P.2d 1384 (Colo. 1989).
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OFFENSES
UNDERAGE POSSESSION OR CONSUMPTION OF ALCOHOL
also known as MIP - MINOR IN POSSESSION
attorney notation: multiple sections have been omitted or summarized for brevity
refer to
statutes
for full text |
CRS 18-13-122. Illegal possession or consumption of
ethyl alcohol by an underage person
(1) As used in this section, unless the context otherwise requires:
(b) "Ethyl alcohol" means any substance which is or contains ethyl alcohol.
(c) "Possession of ethyl alcohol" means that a person has or holds any amount of ethyl alcohol anywhere on his person, or that a person owns or has custody of ethyl alcohol, or has ethyl alcohol within his immediate presence and control.
(d) "Private property" means any dwelling and its curtilage which is being used by a natural person or natural persons for habitation and which is not open to the public and privately owned real property which is not open to the public. "Private property" shall not include:
(I) Any establishment which has or is required to have a liquor license
(II) Any establishment which sells ethyl alcohol or upon which ethyl alcohol is sold; or
(III) Any establishment which leases, rents, or provides accommodations to members of the public generally.
(2) (a) Any person under twenty-one years of age who possesses or consumes ethyl alcohol anywhere in the state of Colorado commits illegal possession or consumption of ethyl alcohol by an underage person. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense.
(b) Illegal possession or consumption of ethyl alcohol by an underage person shall be punished by a fine of not more than one hundred dollars. The court, upon sentencing a defendant pursuant to this paragraph (b), may, in addition to any fine, order that the defendant perform up to twenty-four hours of
useful public
service, subject to the conditions and restrictions of
CRS 18-1.3-507, and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense.
(3) Affirmative defenses:
(a) Private
property with consent of owner and parents
(b) Lawful confectionery
(candy) or medicinal or hygienic purposes which contained less than one-half of one percent of ethyl alcohol by
weight
(4) The possession or consumption of ethyl alcohol shall not constitute a violation of this section if such possession or consumption takes place for religious purposes protected by the first amendment to the United States constitution.
(5) Prima facie evidence:
(a) Evidence that the defendant was under the age of twenty-one years and possessed or consumed ethyl alcohol anywhere in this state; or
(b) Evidence that the defendant was under the age of twenty-one years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere in this state.
(6) During any trial for a violation of subsection (2) of this section, any bottle, can, or any other container with labeling indicating the contents of such bottle, can, or container shall be admissible into evidence, and the information contained on any label on such bottle, can, or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol. A label which identifies the contents of any bottle, can, or other container as "beer", "ale", "malt beverage", "fermented malt beverage", "malt liquor", "wine", "champagne", "whiskey" or "whisky", "gin", "vodka", "tequila", "schnapps", "brandy", "cognac", "liqueur", "cordial", "alcohol", or "liquor" shall constitute prima facie evidence that the contents of the bottle, can, or other container was composed in whole or in part of ethyl alcohol.
(7) A parent or legal guardian of a person under twenty-one years of age or any natural person who has the permission of such parent or legal guardian may give or permit the possession and consumption of ethyl alcohol to or by a person under the age of twenty-one years under the conditions described in paragraph (a) of subsection (3) of this section.
(11) If testing is conducted on
state certified equipment, BAC test results are admissible at trial.
(12) Official records of the department of public health and environment relating to the certification of breath test instruments, certification of operators and operator instructors of breath test instruments, certification of standard solutions, and certification of laboratories shall be official records of the state.
(13) The court shall take judicial notice of methods of testing a person's blood, breath, saliva, or urine for the presence of alcohol and of the design and operation of devices certified by the department of public health.
The prosecution must establish that the testing devices were working properly and that such testing devices were properly operated.
Defendant may challenge the accuracy of testing devices.
(14) No law enforcement officer shall enter upon any private property to investigate any violation of this section without probable cause.
The
MIP statute is primarily used
when law enforcement officers bust a party at a private residence.
QUICK
SENTENCING GRID
CRS 18-13-122 -
MIP
Underage Possession or Consumption of Ethyl Alcohol
Unclassified Petty Offense
CRS
18-13-122 - MIP
|
Maximum
Jail |
Maximum
Fines |
Driver
License Loss |
Alcohol
Education |
Public
Service |
| First
Offense |
0 days |
$100 |
3
Months |
Alcohol
Class |
24
hours |
| Second
Offense |
0 days |
$100 |
6
Months |
Alcohol
Class |
24
hours |
| Third
and Subsequent Offense |
0 days |
$100 |
1
Year |
Alcohol
Class |
24
hours |
|
OTHER OFFENSES -
ALCOHOL
attorney notation: multiple sections have been omitted or summarized for brevity
refer to
statutes
for full text |
CRS 12-47-901. Unlawful acts -
exceptions
(1)
Except as provided in CRS 18-13-122, it is unlawful for any person:
(a) To sell,
serve, give away, dispose of, exchange, or deliver or permit the sale, serving,
giving, or procuring of any alcohol beverage to or for any person under the age
of twenty-one years, to a visibly intoxicated person, or to a known habitual
drunkard; (Classification: M-2)
QUICK
SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties
| MISDEMEANOR
CRIMINAL OFFENSES |
Presumptive
Jail |
Presumptive
Fines |
| CRS 18-1.3-501 |
Minimum |
Maximum |
Minimum |
Maximum |
| Class 2 Misdemeanor
Classification (M-2)
|
3 months |
12 months |
$250 |
$1,000 |
For more information, I have included an abbreviated
summary of
statutes
regarding criminal sentencing. It is not intended to be all inclusive, however
does contain a summary of basic information pertaining to a range of relevant
sentencing penalties. For a summary - refer to
(b) To obtain or attempt to obtain any alcohol beverage by misrepresentation of
age or by any other method in any place where alcohol beverages are sold when
such person is under twenty-one years of age; (Classification: M-2)
QUICK
SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Second and Subsequent Offenses - Mandatory Minimum Fine
court's discretion to impose order fine paid by
useful public
service compensated at
reasonable hourly rate
(c) To possess alcohol beverages in any store, in any public place, including
public streets, alleys, roads, or highways, or upon property owned by the state
of Colorado or any subdivision thereof, or inside vehicles while upon the public
streets, alleys, roads, or highways when such person is under twenty-one years
of age; (Classification: M-2)
QUICK
SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Second and Subsequent Offenses - Mandatory Minimum Fine
court's discretion to impose order fine paid by
useful public
service compensated at
reasonable hourly rate
(d) To knowingly, or under conditions that an average parent or guardian should
have knowledge of, suffer or permit any person under twenty-one years of age, of
whom such person may be a parent or guardian, to violate the provisions of
paragraph (b) or (c) of this subsection (1);
(e) To buy any vinous or spirituous liquor from any person not licensed to sell
at retail
(f) To sell at retail any malt, vinous, or spirituous liquors in sealed
containers without holding a retail liquor store or liquor-licensed drugstore
license; (Classification: M-2)
QUICK
SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties
(h) (I)
OPEN CONTAINER LAW. Unlawful to drink in any public place except in a
licensed premises (bar or restaurant)
(II) Age 21+ drinking permitted in a luxury limousine or a charter or scenic
bus,
(k) With knowledge, to permit or fail to prevent the use of his or her
identification, including a driver's license, by a person who is under
twenty-one years of age, for the unlawful purchase of any alcohol beverage;
(Classification: M-2)
QUICK
SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties
(5) It
is unlawful for any person licensed to sell at retail pursuant to this article:
(a) (I) To
sell an alcohol beverage to any person under the age of twenty-one years, to a
habitual drunkard, or to a visibly intoxicated person,
(II) (A) If a licensee or a licensee's employee has reasonable cause to believe
that a person is under twenty-one years of age and is exhibiting fraudulent
proof of age in an attempt to obtain any alcohol beverage, the licensee or
employee shall be authorized to confiscate such fraudulent proof of age, if
possible, and shall, within seventy-two hours after the confiscation, turn it
over to a state or local law enforcement agency. The failure to confiscate such
fraudulent proof of age or to turn it over to a state or local law enforcement
agency within seventy-two hours after the confiscation shall not constitute a
criminal offense, notwithstanding section CRS 12-47-903 (1) (a).
(B) If a licensee or a licensee's employee believes that a person is under
twenty-one years of age and is exhibiting fraudulent proof of age in an attempt
to obtain any alcohol beverage, the licensee or the licensee's employee or any
peace or police officer, acting in good faith and upon probable cause based upon
reasonable grounds therefor, may detain and question such person in a reasonable
manner for the purpose of ascertaining whether the person is guilty of any
unlawful act under this section. Such questioning of a person by a licensee or a
licensee's employee or a peace or police officer does not render the licensee,
the licensee's employee, or a peace or police officer civilly or criminally
liable for slander, false arrest, false imprisonment, malicious prosecution, or
unlawful detention.
(III) Each licensee shall display a printed card that contains notice of the
provisions of this paragraph (a).
(IV) Any licensee or licensee's employee acting in good faith in accordance with
the provisions of subparagraph (II) of this paragraph (a) shall be immune from
any liability, civil or criminal; except that a licensee or employee acting
willfully or wantonly shall not be immune from liability pursuant to
subparagraph (II) of this paragraph (a).
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WARNING |
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IT IS ILLEGAL TO SELL WHISKEY, WINE, OR BEER TO
ANY PERSON UNDER TWENTY-ONE YEARS OF AGE AND IT IS ILLEGAL FOR ANY PERSON
UNDER TWENTY-ONE YEARS OF AGE TO POSSESS OR TO ATTEMPT TO PURCHASE THE SAME. |
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IDENTIFICATION CARDS WHICH APPEAR TO BE
FRAUDULENT WHEN PRESENTED BY PURCHASERS MAY BE CONFISCATED BY THE
ESTABLISHMENT AND TURNED OVER TO A LAW ENFORCEMENT AGENCY. |
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IT IS ILLEGAL IF YOU ARE TWENTY-ONE YEARS OF
AGE OR OLDER FOR YOU TO PURCHASE WHISKEY, WINE, OR BEER FOR A PERSON UNDER
TWENTY-ONE YEARS OF AGE. |
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FINES AND IMPRISONMENT MAY BE IMPOSED BY THE
COURTS FOR VIOLATION OF THESE PROVISIONS. |
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*
CRS 12-47-903. Violations -
penalties
(1) (a) Any person violating any of
the provisions of this article or article 46 or 48 of this title or any of the
rules and regulations authorized and adopted pursuant to such articles is guilty
of a class 2 petty offense and, upon conviction thereof, shall be punished by a
fine of not more than two hundred fifty dollars for each offense.
(b) The
penalties provided in this section shall not be affected by the penalties
provided in any other section of this article or article 46 or 48 of this title
but shall be construed to be in addition to any other penalties.
(2) Any person violating any of the
provisions of CRS 12-47-901 (1) (a), (1) (f), (1) (g), (1) (i), (1) (k), (1)
(l), (5) (a) (I), or (5) (b) commits a class 2 misdemeanor and shall be punished
as provided in CRS 18-1.3-501.
(3) Any person violating any of the
provisions of CRS 12-47-901 (1) (b) or (1) (c) commits a class 2 misdemeanor
and shall be punished as provided in CRS 18-1.3-501. For the second
conviction and for all subsequent convictions of violating the provisions of
section 12-47-901 (1) (b) or (1) (c), the court shall impose at least the
minimum fine and shall have no discretion to suspend any fine so imposed; except
that the court may provide for the payment of such fine as provided in
subsection (4) of this section.
(4) At the discretion of the court,
the fines provided for violations of section 12-47-901 (1) (b) and (1) (c) may
be ordered to be paid by public work only at a reasonable hourly rate to be
established by the court who shall designate the time within which such public
work is to be completed.
(5) Any person who knowingly violates
the provisions of section 12-47-901 (1) (a), (1) (d), or (1) (k), or any person
who knowingly induces, aids, or encourages a person under the age of eighteen
years to violate the provisions of section 12-47-901 (1) (a), (1) (b), or (1)
(c) may be proceeded against pursuant to CRS 18-6-701 for
contributing to the delinquency of a minor.
QUICK
SENTENCING GRID
CRS 12-47-901. Unlawful Acts - Unspecified Penalties
Unclassified Petty Offense
CRS
12-47-901
Unlawful Acts - Unspecified Penalties |
Maximum
Jail |
Maximum
Fines |
Driver
License Loss |
Alcohol
Education |
Public
Service |
| First
Offense |
0 days |
$250 |
3
Months |
Alcohol
Class |
none
DMV bad news |
| Second
Offense |
0 days |
$250 |
6
Months |
Alcohol
Class |
none
DMV bad news |
| Third
and Subsequent Offense |
0 days |
$250 |
1
Year |
Alcohol
Class |
none
DMV bad news |
|
"DON'T
TEST ME - I'M
DRINKING"
attorney notation: multiple sections have been omitted or summarized for brevity
refer to
statutes
for full text |
Absent
a court order, it's unlawful for law enforcement to enter a bar and request
patrons to submit to BAC chemical testing. I've thrown in this statute
just as a tidbit of trivia.
CRS 12-47-902. Testing for intoxication
by law
enforcement officers - when prohibited
(1) No person who is patronizing a
licensed premises as defined in sections 12-47-103 (14) and 12-46-103 (3) shall
be required or solicited by any law enforcement officer to submit to any
mechanical test for the purpose of determining the alcohol content of such
person's blood or breath while such person is upon such licensed premises except
to determine if there is a violation of section CRS 42-4-1301 by a driver of a
motor vehicle unless the law enforcement officer is acting pursuant to a court
order obtained in the manner described in subsection (2) of this section. No
such test may be performed upon any licensed premises to obtain evidence of
alleged intoxication, except pursuant to a court order as provided in this
section or in case of a medical emergency, regardless of whether such alleged
intoxication is a violation of any provision of this article.
The balance of the statute pertains
to request for or issuance of an ex parte (without notice) order to permit any
law enforcement officer to solicit any person who is patronizing a licensed
premises to submit to any mechanical test for the purpose of determining the
alcohol content of such person's blood or breath while such person is upon such
licensed premises. Penalty is $250 fine as provided above in CRS
12-47-903.
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CRIMINAL COURT JURISDICTION |
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Minors |
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| CRS 19-2-104(1)(a)(I) |
County
court and district court concurrent jurisdiction with juvenile court |
| CRS 19-2-104(1)(a)(I) |
State traffic violations - minor treated as an adult |
| CRS
42-4-1706 |
Detention to be in a juvenile facility |
|
CRIMINAL COURT
PROCEEDINGS |
1.
Court Appointed
Counsel (Public Defender's
Office).
a.
MIP
offense carries no possibility of jail. The state has no obligation to
appoint an attorney for you even if you are indigent. An
indigent defendant has a constitutional right to appointed counsel "only
when, if he loses, he may be deprived of his physical liberty." Lassiter
v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68
L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed.2d 530 (1972); see also Stern v. County Court, 773 P.2d
1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of
crimes if imprisonment may be imposed). Conversely, when an indigent defendant
is not actually sentenced to a term of imprisonment, due process does not
require the appointment of counsel. See Scott v. Illinois, 440 U.S. 367,
99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
b. Using false ID to purchase
alcohol or possession / consumption on public land, including roadways, are
class 2 misdemeanor offenses which trigger the right to court appointed
counsel for an indigent person.
2.
First Appearance.
a. The ticket is the charging document and advises defendant of the charges filed.
The ticket contains a date and time
defendant must appear in court for
first appearance, where defendant will be advised of the nature of the charges and
possible penalties. At that time defendant will also be asked how he / she wishes to
proceed with his / her case. If defendant fails to appear, a warrant will be issued for
his / her arrest. If this office has been hired, I will take care of the first
appearance for the client, and the client need not appear in Court unless I notify
the client.
b. We are all human -
periodically the law enforcement officer(s) make(s) an error on the summons.
Some errors are sufficient to deprive the court of jurisdiction to hear the
case. If an error exists, it may be worth making a big ta-do because it
may result in
dismissal
or a more favorable plea offer.
3.
Entry of Plea &
Demand for Trial.
a. Under the
speedy
trial rule, trial must be provided within:
1. 6 months in county court
2. 90 days in municipal court
b. If the defendant enters a
plea of not guilty at first appearance, the court may set the case for trial and
deny a request for pre-trial conference - a negotiation date. This is to
avoid speedy trial dismissals. Frequently a defendant will delay entry of
a not guilty plea and simply set the case for pre-trial conference. If not
settled at pre-trial conference, then a not guilty plea is entered, and the case
set for trial.
c. Demand must be made for jury
trial:
1. Misdemeanor offense cases: When a not guilty plea is
entered. Jury trial is free if jail may be imposed in excess of 6
months. The court may charge a $25 jury deposit if jail is limited to 6
months or less. Standard number of jurors is 6, defendant may request 3
jurors.
2. Petty offense cases: The demand must be accompanied by a $25 jury
deposit within 10 days from entry of not guilty plea. Standard
number of jurors is 3, defendant may request 6 jurors.
a. There is no constitutional right to a jury trial
for a petty offense. Petty offenses are crimes or offenses punishable not in
excess of imprisonment for six months and a fine of not more than $500, or a
combination of imprisonment and fine within such limits. Robran v. People,
173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170
Colo. 448, 462 P.2d 600 (Colo. 1969)
b. The statutory right to jury trial in a petty offense is established in
CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a
petty offense or defined as an offense which is punishable by imprisonment other
than in a correctional facility for not more than six months, or by a fine of
not more than five hundred dollars, or by both such imprisonment and fine.
MIP
does not fit the statutory definition of petty offense
for purpose of jury trial right, however counsel would argue that right.
An
El Paso County Court
case appealed to the District Court resulted in a ruling
that jury trial is a right in an MIP
prosecution. The right to jury trial is clear in
other offenses classified as class 2 misdemeanors.
d. The right to jury trial is
an important right which should never be waived unless for tactical reasons
after consulting with counsel.
4.
Pre-Trial Conference.
At the time of first appearance, the court sets most cases for pre-trial conference.
At this time, defendant or defense counsel will meet with the prosecutor to
discuss possible alternatives and attempt to reach an agreement to dispose of
the case. This is called plea bargaining. Plea bargaining can also occur
outside pre-trial conference setting. Clients have inquired "What's
a
deferred
sentence?" Refer to the link for information. If a plea bargain is obtained which is
acceptable to the client, the case is dismissed or set for sentencing. If a plea
bargain is not obtained which is acceptable to the client, the case is set for motion
hearings or trial, or both. Locally the courts require a defendant's presence
unless an out of state resident. The goal in
MIP
is to procure a flat dismissal
of all charges or a
deferred
sentence.
5.
Motions Hearings.
Counsel may file any of several motions available.
MIP
most common
motions:
a.
Discovery Motion.
This is a request to discover information in order to prepare an adequate
defense
b.
Motion in Limine.
This is a motion to exclude evidence from trial on the basis of
evidentiary or statutory grounds. An example would be a breath or blood test
which is not defendant's but mislabeled; and which could prejudice the jury
without having any importance on the issue of guilt or innocence.
b.
Motion to Suppress.
This is a motion to exclude evidence from trial on the basis of
violation of constitutional rights. An example would be a warrantless
entry into a home without consent
for the purpose of an evidentiary fishing expedition. Absent probable cause (reason to
believe defendant engaged in a crime) for the search, seizure or arrest and
absent reasons which place the entry outside the general warrant requirement, evidence obtained
subsequent to the entry may not be used against defendant. Similarly, forced
confessions or statements may not be used. There are many other arguments
which may be available in MIP
cases. With limited exceptions,
defendant must be present in court for motion
hearings.
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6.
Trial.
At a trial, guilt or innocence
will be determined, and it must be decided unanimously (all jurors agree). See above for the right to a jury trial and the number of
jurors, or defendant may request trial to the
judge alone without a jury. The right to trial by jury should never be given up without
advice of counsel; it is an important right. At trial, the prosecution must
prove each and every element of the crime(s) charged beyond a reasonable
doubt. Every defendant is presumed innocent unless and until the prosecution proves
guilt beyond a reasonable doubt. Every defendant may remain silent, or may testify if
he / she chooses. Defense may call
witnesses and make them come to court by subpoena. Every defendant may confront and
cross-examine witnesses against him / her. A trial on a
MIP
charge is a criminal
trial with all rights attached. If defendant is found not guilty, the case is
concluded. If defendant is found guilty of any charge, the case is set for sentencing.
Defendant must be present in court for a
trial. Under some circumstances, the court may proceed to trial without
the presence of the defendant, but that's a bad idea from defense
perspective.
7.
Sentencing: I
have provided a quick synopsis for relevant offenses.
Quick
Sentencing Grid - MIP Offense
Quick
Sentencing Grid - Class 2 Misdemeanor
Quick
Sentencing Grid - Unclassified Offenses
8.
Preparation
for Sentencing.
In a criminal case, counsel
looks for facts which may lead to dismissal of charges or not guilty
verdict. Plea negotiations are affected by weaknesses in the DA's case.
"Shoot for the
best - plan for the worst." It is also wise to plan for
other contingencies; conviction of an alcohol offense. Anticipating you may
subsequently face a judge, to prepare for the most favorable sentencing
result:
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Prepare for a fine and court costs.
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At sentencing, the Court has the options of imposing 24 hours
useful public
service Any defendant convicted of
MIP
should hope for a
useful public
service order. In the offenses of attempt to purchase alcohol
with a false ID or possession / consumption on public land (including
roadways), the
statutes
make no provision for
useful public
service. At sentencing, a defendant should attempt to persuade
the court to impose 24 hours
useful public
service. Refer to the link for
DMV
proceedings. The reverse would be true if a
deferred
sentence were negotiated and granted. When retained, I advise my
clients to immediately commence 24 hours
useful public
service for purposes of criminal case negotiation and driver's
license.
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When retained, I advise my clients to immediately commence
non-driving
alcohol education classes for purposes of criminal case
negotiation.
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Educational Classes
DUI * MIP * traffic safety *
petty theft * domestic violence * anger management * conflict resolution
Public Service - Victim Impact Panel
Alcohol or Drug Assistance - Mental Health - Safe House
DMV Forms - Colorado Accident Report - CSPD Accident Cold Report |
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