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Colorado Criminal Law – Supreme Court Ends Unlawful Drug Dog Sniff Searches

January 19th, 2016 — 4:09am

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Criminal Law - Supreme Court Ends Unlawful Drug Dog Sniff Searches

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Colorado Criminal Law – Supreme Court Ends Unlawful Drug Dog Sniff Searches

 

Colorado Criminal Law – Supreme Court Ends Unlawful Drug Dog Sniff Searches – It was common practice in Colorado for the police to walk drug sniffing dogs to places where the police had a right to be – such as your front door. In Florida v. Jardines the United States Supreme Court put an end to that practice.

In the Jardines case – The police received a tip that Jardines was growing marijuana in his home. The police walked a drug sniffing dog right up to the Jardine’s front door, the dog alerted to the presence of drugs (marijuana), and using the alert as probable cause to obtain a search warrant, the police located the grow.

Mr. Jardines filed a motion to suppress the evidence arguing that the dog sniff was a search of the most private of property, one’s home, and the United States Supreme Court, after several appeals, agreed with him.

If a search is conducted illegally, as a general rule, the evidence located and seized during that search is called the “fruit of the poisonous tree” and that fruit, that evidence, cannot later be admitted against the accused at a trial to prove criminal charges related to that evidence. Here the drug dog’s sniff was an impermissible search under the Fourth Amendment and therefore all subsequent evidence was fruit of the poisonous tree.

Therefore the Jardines case created a new and important rule in “dog sniff” cases. A dog sniff at the front door of a citizen or, by analogy, at any point of a person’s home, by a trained narcotics detection dog, is a Fourth Amendment search requiring probable cause…

Understanding The Fourth Amendment and The Special Nature of the Home As Private Property

Historically, the home is considered sacrosanct. People have a “heightened expectation of privacy” in and around their homes. Law enforcement cannot violate that expectation of privacy except under very limited circumstances.

As regards the Fourth Amendment’s protection against illegal searches and seizures, the home is “first among equals”. The Amendment’s “very core” protects a person’s “right…to retreat into his own home and there be free from unreasonable governmental intrusion.”

The Fourth Amendment provides:

…the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The Jardines Court said this:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” property rights “are not the sole measure of Fourth Amendment violations,”

The Front Porch of a Home Is a Part of the “Curtilage” of That Home

The history behind many of our laws helps us understand the meaning of certain of our historic rights. These rights often emerge from somewhat ancient concepts of English common law. Under these critically important principles, the area immediately surrounding and associated with a home is called the “curtilage of the house” … which area is considered as private and as exclusive to the privacy of the occupants as the interior of the home itself.

This area, the curtilage, of a home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”

If the police physically enter and occupy the area to gather information without the explicitly or implicitly permissions of the homeowner or occupant, the United States Supreme Court has now said, in the absence of a search warrant, such gathering of evidence is an illegal search.

“This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.”

[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

The Ruling – The Dog Sniff Is A SEARCH Within The Meaning Of The Fourth Amendment

The police have the same right as any other citizen to approach and knock on a person’s front door. That is, there is an implicit “license” that allows Girl Scouts and Trick Or Treaters and the police to enter that space.

However, after Jardines, the police cannot approach that front door with a trained police dog to explore the area around the home attempting to gather incriminating evidence. That “license” that belongs to us all by virtue of the right to “knock and talk” does not include an invitation to a canine forensic investigation.

The “scope” of the invitation that applies to the area around our homes, such as the front porch, limits the right of the police to conduct, without a much greater license such as the use of a search warrant, to exceed the “common” license given all persons approaching that home. Thus, after the ruling in the Jardines case, police officers, without a search warrant justifying their forensic investigations, (or in the absence of another exception to the mandates of the Fourth Amendment), will be conducting an unlawful search in violation of the Fourth Amendment.

Summary and Conclusion – Other Fact Patterns

A traditional tool used to canvas homes in an attempt to locate a suspect or to gather incriminating evidence is called the “Knock and Talk.” After Jardines, police conducting such investigative procedures will now be more aware of the limitations of that technique.

When the police conduct “knock and talks,” Courts after this decision, will look much more closely at the conduct of law enforcement when they occupy the space of the “curtilage.” One thing is for sure, the decision to stay on a person’s property without the express permission of the occupant of that home and to utilize “investigative tools” such as drug dogs,will mean any evidence gathered using that procedure – in the absence of a search warrant – should bel suppressed by the Trial Court after the Jardines case.

Colorado Criminal Law – Supreme Court Ends Unlawful Drug Dog Sniff Searches

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

Colorado Criminal Lawyer - 30 years of ExperienceYou should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Supreme Court Ends Unlawful Drug Dog Sniff Searches.

 

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Colorado Criminal Law – Understanding Colorado’s Gambling and Casino Crimes

March 1st, 2015 — 4:14pm
Colorado Criminal Law - Understanding Colorado’s Gambling and Casino Crimes


Colorado Criminal Law – Understanding Colorado’s Gambling and Casino Crimes

Colorado Criminal Law – Understanding Colorado’s Gambling and Casino Crimes 

By H. Michael Steinberg – Colorado Criminal Defense Lawyer for Gambling Crimes

Colorado Criminal Law – Understanding Colorado’s Gambling and Casino Crimes –  While Colorado provides some of the finest venues for Gambling in the Southwest – the casinos in the gambling towns of Blackhawk, Central City, and Cripple Creek file many criminal cases in Gilpin County court against unwary gamblers unfamiliar with Colorado’s gambling laws.

What Are The Crimes Typically Charged In Colorado’s Gambling Venues?

Unfortunately young people – those under 21 – are drawn to Colorado’s mountain gambling towns. Underage gambling in Colorado is charged under Colorado Statutes 12- 47.1-809

Here is the law that applies:

12-47.1-809. Age of participants – violation as misdemeanor – applicability. (The Colorado Limited Gaming Act)

(1) (a) It is unlawful for any person under twenty-one years of age to:

(I) Linger in the gaming area of a casino;

(II) Sit on a chair or be present at a gaming table, slot machine, or other area in which gaming is conducted; or

(III) Participate, play, be allowed to play, place wagers, or collect winnings, whether personally or through an agent, in or from any limited gaming game or slot machines.

(b) Subparagraphs (I) and (II) of paragraph (a) of this subsection (1) shall not apply to a person employed by the casino in which the person is present.

[HMS – Passing through the casino to a non-gaming area IS allowed]

(c) Nothing in paragraph (a) of this subsection (1) shall prevent any person under twenty-one years of age from passing through a casino to non-gaming areas.

(2) It is unlawful for any person to engage in limited gaming with, or to share proceeds from
limited gaming with, any person under twenty-one years of age.

(3) (a) It is unlawful for any licensee to permit any person who is less than twenty-one years of age to:

(I) Linger in the gaming area of a casino;

(II) Sit on a chair or be present at a gaming table, slot machine, or other area in which gaming is conducted; or

(III) Participate, play, place wagers, or collect winnings, whether personally or through an agent, in or from any limited gaming game or slot machine.

(b) Subparagraphs (I) and (II) of paragraph (a) of this subsection (3) shall not apply to a person employed by the casino in which the person is present.

(c) Nothing in paragraph (a) of this subsection (3) shall prevent any person under twenty-one years of age from passing through a casino to non-gaming areas.

(4) Any person violating any of the provisions of this section commits a class 2 misdemeanor
and shall be punished as provided in section 18-1.3-501 , C.R.S.

(5) Any person violating any of the provisions of this section with a person under eighteen
years of age may also be proceeded against pursuant to section 18-6-701 , C.R.S., for
contributing to the delinquency of a minor.

Summary: There are essentially two classes of crimes in this area. For persons under 21 – a violation of this law is only a class 2 misdemeanor

Colorado Misdemeanor Sentencing Chart

Colorado Misdemeanor Sentencing Chart

BUT if you assist someone who is under 21 to commit this crime – you may be charged with a felony – Section 18-6-701 , C.R.S., Contributing to the Delinquency of a Minor

Using A Fake ID As An Illegal Work Around The 21 Year Age Requirement

Using Fake ID’s to purchase alcohol or to get into nightclub venues is nothing new.

But when the use of these Ids includes gambling and drinking in Colorado’s mountain casinos – forgive the phrase – the “stakes” go up.

Forgery along with the use of a phony – or fake ID – Felony Forgery charges – 18-5-102  – can be added just for the possession of a fake or false ID.  Casinos often have close relationships with the local police in which these casinos operate and for political reasons – often unrelated to the seriousness of the acts of the targeted young people – the charges are often “upped” to send a message to other teenagers thinking about crashing the casinos.

But the possible charges do not end there. There is are at least two entire sections of Colorado statutes full of possible crimes that could fit the acts of young people who love to be in the casinos and actually engage in inappropriate gambling. 

One is the Fraudulent Acts Law 12-47.1-823 law – which reads:

§ 12-47.1-823. Fraudulent acts

(1) It is unlawful for a person:

(a) To alter or misrepresent the outcome of a game or other event on which wagers
have been made after the outcome is made sure but before it is revealed to the
players;
(b) To place, increase, or decrease a bet or to determine the course of play after
acquiring knowledge, not available to all players, of the outcome of the game or
any event that affects the outcome of the game or which is the subject of the bet or
to aid anyone in acquiring such knowledge for the purpose of placing, increasing,
or decreasing a bet or determining the course of play contingent upon that event or
outcome;
(c) To claim, collect, or take, or attempt to claim, collect, or take, money or anything of
value in or from a limited gaming activity with intent to defraud and without having
made a wager contingent thereon, or to claim, collect, or take an amount greater
than the amount won;
(d) Knowingly to entice or induce another to go to any place where limited gaming is
being conducted or operated in violation of the provisions of this article, with the
intent that the other person play or participate in that limited gaming activity;
(e) To place or increase a bet after acquiring knowledge of the outcome of the game
or other event which is the subject of the bet, including past-posting and pressing
bets;
(f) To reduce the amount wagered or to cancel a bet after acquiring knowledge of the
outcome of the game or other event which is the subject of the bet, including
pinching bets;
(g) To manipulate, with the intent to cheat, any component of a gaming device in a
manner contrary to the designed and normal operational purpose for the
component, with knowledge that the manipulation affects the outcome of the game
or with knowledge of an event that affects the outcome of the game;
(h) To, by any trick or sleight of hand performance, or by fraud or fraudulent scheme,
cards, or device, for himself or another, win or attempt to win money or property or
a representative of either or reduce a losing wager or attempt to reduce a losing
wager in connection with limited gaming;
(i) To conduct any limited gaming operation without a valid license;
(j) To conduct any limited gaming operation on an unlicensed premises;
(k) To permit any limited gaming game or slot machine to be conducted, operated,
dealt, or carried on in any limited gaming premises by a person other than a
person licensed for such premises pursuant to this article;
(l) To place any limited gaming games or slot machines into play or display such
games or slot machines without the authorization of the commission;
(m) To employ or continue to employ any person in a limited gaming operation who is
not duly licensed or registered in a position whose duties require a license or
registration pursuant to this article; or
(n) To, without first obtaining the requisite license or registration pursuant to this
article, be employed, work, or otherwise act in a position whose duties would
require licensing or registration pursuant to this article.

(2) Any person issued a license pursuant to this article violating any provision of this section
commits a class 6 felony and shall be punished as provided in section 18-1.3-401 , C.R.S.,
and any other person violating any provision of this section commits a class 1
misdemeanor and shall be punished as provided in section 18-1.3-501 , C.R.S. If the
person is a repeating gambling offender, the person commits a class 5 felony and shall be
punished as provided in section 18-1.3-401 , C.R.S.

Colorado Felony Sentencing Laws

Colorado Felony Sentencing Laws

Other Crimes Target Adult Colorado Casino and Gambling Crimes

To read the actual text of any one or more crimes – follow this LINK and enter the statute number into the website. The law is then available to study.

[HMS – There is no room here to publish and analyze the myriad of crimes that can be charged in a Colorado Gambling related case.]

C.R.S. 18-20-104 – False Statement on Application for Gaming License / Records
C.R.S. 18-20-105 – Slot Machines
C.R.S. 18-20-106 – Cheating (means altering the result of winning or amount)
C.R.S. 18-20-107 – Fraudulent Acts Related to Gaming
C.R.S. 18-20-108 – Use of Device of Calculating Probabilities
C.R.S. 18-20-109 – Use of Counterfeit or Unapproved Chips, Tokens, Coins, Devices
C.R.S. 18-20-110 – Cheating Games and Devices
C.R.S. 18-20-111 – Unlawful Manufacture, Sale, Distribution of Equipment or Devices
C.R.S. 18-20-112 – Unlawful Entry by Blacklisted, Excluded and Ejected Persons (Trespass)
C.R.S. 18-20-113 – Personal Pecuniary Gain or Conflict of Interest
C.R.S. 18-20-114 – False or Misleading Information

LINK to Colorado Statutes

C.R.S. 18-10-103 – Professional Gambling Offenses
C.R.S. 18-10-104 – Gambling Devices, Records and Proceeds
C.R.S. 18-10-105 – Possession of a Gambling Device or Record
C.R.S. 18-10-106 – Gambling Information
C.R.S. 18-10-107 – Gambling Premises

Sometimes Gambling Occurs In Non-Licensed – More Informal Settings

What follows are laws that could trap you with a charge of Illegal Gambling in Colorado and which includes simply helping another to run a game in their living room (see immediately below – the law of Complicity)

18-1-603. Complicity.

A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.

Gambling Crimes In Colorado

18-10-101. Legislative declaration – construction.

(1) It is declared to be the policy of the general assembly, recognizing the close relationship between professional gambling and other organized crime, to restrain all persons from seeking profit from gambling activities in this state; to restrain all persons from patronizing such activities when conducted for the profit of any person; to safeguard the public against the evils induced by common gamblers and common gambling houses; and at the same time to preserve the freedom of the press and to avoid restricting participation by individuals in sport and social pastimes which are not for profit, do not affect the public, and do not breach the peace.

(2) All the provisions of this article shall be liberally construed to achieve these ends and administered and enforced with a view to carrying out the declaration of policy stated in subsection (1) of this section.

18-10-102. Definitions.

As used in this article, unless the context otherwise requires:

(1) “Gain” means the direct realization of winnings; “profit” means any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management, or unequal advantage in a series of transactions.

(2) “Gambling” means risking any money, credit, deposit, or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device, or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include:

 (a) Bona fide contests of skill, speed, strength, or endurance in which awards are made only to entrants or the owners of entries;
 (b) Bona fide business transactions which are valid under the law of contracts;
 (c) Other acts or transactions now or hereafter expressly authorized by law;
 (d) Any game, wager, or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only, and in which no person is participating, directly or indirectly, in professional gambling; or

 (f) Any use of or transaction involving a crane game, as defined in section 12-47.1-103 (5.5), C.R.S.

(3) “Gambling device” means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine; except that the term does not include a crane game, as defined in section 12-47.1-103 (5.5), C.R.S.

(4) “Gambling information” means a communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling. In the application of this definition the following shall be presumed to be intended for use in professional gambling: Information as to wagers, betting odds, or changes in betting odds. Legitimate news reporting of an event for public dissemination is not gambling information within the meaning of this article.

(5) “Gambling premises” means any building, room, enclosure, vehicle, vessel, or other place, whether open or enclosed, used or intended to be used for professional gambling. In the application of this definition, any place where a gambling device is found is presumed to be intended to be used for professional gambling.

(6) “Gambling proceeds” means all money or other things of value at stake or displayed in or in connection with professional gambling.

(7) “Gambling record” means any record, receipt, ticket, certificate, token, slip, or notation given, made, used, or intended to be used in connection with professional gambling.

(8) “Professional gambling” means:

 (a) Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or
 (b) Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one or more of the other participants.

(9) “Repeating gambling offender” means any person who is convicted of an offense under section 18-10-103 (2) or sections 18-10-105 to 18-10-107 or sections 12-47.1-809 to 12-47.1-811 or 12-47.1-818 to 12-47.1-832 or 12-47.1-839, C.R.S., or sections 18-20-103 to 18-20-114 within five years after a previous misdemeanor conviction under these sections or a former statute prohibiting gambling activities, or at any time after a previous felony conviction under any of the mentioned sections. A conviction in any jurisdiction of the United States of an offense which, if committed in this state, would be professional gambling shall warrant a prosecution in this state as a repeating gambling offender.

(10) “Vintage slot machine” means any model slot machine, as defined in section 12-47.1-103 (26), C.R.S., that was introduced on the market prior to January 1, 1984.

18-10-103. Gambling – professional gambling – offenses.

(1) A person who engages in gambling commits a class 1 petty offense.

(2) A person who engages in professional gambling commits a class 1 misdemeanor. If he is a repeating gambling offender, it is a class 5 felony.

18-10-104. Gambling devices – gambling records – gambling proceeds.

(1) Except as provided in subsection (2) of this section, all gambling devices, gambling records, and gambling proceeds are subject to seizure by any peace officer and may be confiscated and destroyed by order of a court acquiring jurisdiction. Gambling proceeds shall be forfeited to the state and shall be transmitted by court order to the general fund of the state.

(2) If a gambling device is a vintage slot machine and is not operated for gambling purposes for profit or for business purposes, it shall not be confiscated or destroyed pursuant to subsection (1) of this section. If a gambling device is confiscated and the owner shows that such gambling device is a vintage slot machine and is not used for gambling purposes, the court acquiring jurisdiction shall order such vintage slot machine returned to the person from whom it was confiscated.

18-10-105. Possession of a gambling device or record.

(1) Except as provided in subsection (1.5) of this section, a person who owns, manufactures, sells, transports, possesses, or engages in any transaction designed to affect the ownership, custody, or use of a gambling device or gambling record, knowing that it is to be used in professional gambling, commits possession of a gambling device or record.

(1.5) The sale, transportation, manufacture, and remanufacture of gambling devices, including the acquisition of essential parts therefor and the assembly of such parts, is permitted if such devices are sold, transported, manufactured, and remanufactured only for transportation in interstate or foreign commerce when such transportation is not prohibited by any applicable foreign, state, or federal law. Storage of gambling devices is also permitted but only for purposes of manufacturing, remanufacturing, and transporting such devices in interstate or foreign commerce when their transportation is not prohibited.

Such activities may be conducted only by persons who have registered with the United States government pursuant to the provisions of chapter 24 of Title XV of the United States Code, as amended. Such gambling devices shall not be openly displayed, except to legal buyers, or sold for use in Colorado regardless of where purchased, nor manufactured, re-manufactured, or stored for purposes of manufacture, re-manufacture, and transportation in violation of any applicable state or federal law. For purposes of this subsection (1.5), “legal buyer” means a buyer who resides in another state or country which does not restrict the possession of the specific gambling device in question.

(2) Possession of a gambling device or record or violation of subsection (1.5) of this section is a class 2 misdemeanor. If the offender is a repeating gambling offender, it is a class 6 felony.

18-10-106. Gambling information.

(1) Whoever knowingly transmits or receives gambling information by telephone, telegraph, radio, semaphore, or other means or knowingly installs or maintains equipment for the transmission or receipt of gambling information commits a class 3 misdemeanor. If the offender is a repeating gambling offender, it is a class 6 felony.

(2) Facilities and equipment furnished by a public utility in the regular course of business, and which remain the property of the utility while so furnished, shall not be seized except in connection with an alleged violation of this article by the public utility and shall be forfeited only upon conviction of the public utility therefor.

Colorado Criminal Law – Understanding Colorado’s Gambling and Casino Crimes

If you have questions about Colorado Criminal Law- Tactics, Defense and Criminal Justice Issues in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters.

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US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – 18 U.S.C. § 922(g)(9)

June 28th, 2014 — 11:13am

 

By H. Michael Steinberg – Colorado Domestic Violence and Gun Rights Criminal Defense Lawyer – Email the author at hmsteinberg@hotmail.com

US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – In the US Supreme Court decision of United States v. Castleman, (2014), federal gun restrictions law and state domestic violence law clash once again and the result is even greater restrictions on the Second Amendment Right To Bear Arms.

The Relevant Federal Gun Rights Restrictions – 18 U.S.C. § 922[g][1-9]

Firearm Possession of Weapons Prohibitions are found for the most part under Federal Law 18 U.S.C. § 922[g][1-9]. This law prohibits certain individuals from possessing firearms, ammunition, or explosives. Under federal law 18 USC Sec. 922(g)(9)) an individual convicted of a misdemeanor domestic violation charge may not legally own or possess a firearm.

It is a very serious felony with a statutory penalty for violating this law is ten years imprisonment and/or a $250,000 fine.

Specifically, Section 922(g)(1-9) prohibits the following individuals from possessing, shipping/ transporting, or receiving any firearm or ammunition:

(1) a person convicted of a crime punishable by imprisonment exceeding one year;

(2) a person who is a fugitive from justice;

(3) a person who is an unlawful user of or who is addicted to a controlled substance;

(4) a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;

(5) an alien who is unlawfully in the United States or who has been admitted to the United States under a non-immigrant visa;

(6) a person who has been discharged from the Armed Forces under dishonorable conditions;

(7) a person who, having been a citizen of the United States, renounces his citizenship;

(8) a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child;

(9) a person who has been convicted of a misdemeanor crime of domestic violence.

The Definition of ‘Convicted’

The definition of “convicted” is found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The Definition of “Possession of a Firearm” (Very Broad)

Possession exists when a person knowingly has the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is locate….”

Therefore if you know that a firearm is present in your residence, vehicle, etc., and you have access to it and can exercise control over that firearm personally or through another individual, – you are “in possession” of a firearm.

Section 922(g)(9) – What Is The Definition of “Violent” Misdemeanor Domestic Violence?

The kinds of domestic violence crimes that are applicable crimes are limited to those that have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” and that are committed by persons with a specified relationship to the victim, such as a current or former spouse or a parent.

In the Castleman case – the Supreme Court interpreted another state’s domestic violence laws – but Colorado’s domestic violence laws of Harassment 18-9-111 and Assault in the third degree 18-3-204 – the most typically charged Colorado domestic violence charges – are similar to the states laws in question.

So if the application of the Lautenberg Amendment – 18 U.S.C 922 (g)(9) turns on the requirement of “physical force” in the context of a domestic violence charge, what degree of physical force is enough? In the past – (pre-Castleman) – physical force has been interpreted to require the degree of force that supports a common-law battery conviction—known generally as “offensive touching.” [Lautenberg bans the acquisition or possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.]

Federal Jurisdictions Did Not Agree On What Amount Of Force Was Needed

Effective criminal defense lawyers have successfully taken advantage in the fact that courts interpreted the degree of “physical force” that was necessary to “trigger the disability”. If the act of misdemeanor domestic violence did not actually involve “violence” – there was a way around the law.

After Castleman, one of these questions has now been resolved in a way that gives the federal prohibition its broadest possible reading.

Castleman Expands The Definition Of Offensive Touching

Castleman has greatly expanded the definition of offensive touching. After Castleman – if you are convicted of a misdemeanor crime of domestic violence, the kind of violent touching which previously was believed to be a “substantial degree of force,” now includes ..

Some Degree Of Offensive Physical Contact Is Enough

Castleman’s holding is that a domestic violence statute that requires “some degree of offensive physical contact for a violation to occur…triggers Lautenberg

The Court’s Reasoned…

[that]… any injury, no matter how slight, must require the use of at least some “physical force.”

[that] domestic violence” is not violence in the commonly understood sense but in the broader sense of an accumulation of acts over time that established one person’s control over another.

[that] even inor physical acts including hitting, slapping, shoving, pushing, grabbing, pinching, scratching, shaking, twisting, spitting, or restraining contribute to the idea that “most physical assaults committed against women and men by intimates are minor ….”

[A]nd even a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of domestic violence.'”

US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – 18 U.S.C. § 922(g)(9)

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Domestic Violence – Gun Rights Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

If you are charged with A Colorado crime or you have questions about the topic of this article US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – 18 U.S.C. § 922(g)(9), please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving … US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – 18 U.S.C. § 922(g)(9).

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Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases

October 20th, 2013 — 1:23pm

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases

By H. Michael Steinberg – Colorado Probation Violation Lawyer – Attorney

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases – The concern that I have with many of those who are placed on probation – is the head in the sand approach of making the mistake of failing to appear for some court date and then letting so much time pass that they fear they will be arrested and held without bond.

Colorado Probation Violation Attorneys know that the worst strategy there is while on probation – is to fail to appear for a court date – review date – or other in or out of court appointment with a judge or probation officer and then wait for the inevitable bench warrant that issues for that behavior.

If you are charged with a crime – and you receive a summons – (a ticket or citation) write down the court date – time and location and then tell it to your parents – your siblings – maybe even your friends. The go! If there is a very GOOD reason for not appearing – contact the court at the LINK below and see if you can reschedule the date…. If that does not work – then at least try to reach a lawyer to see if the attorney can appear for you and obtain a waiver of your appearance.

What IS A Failure to Appear In Colorado?

Failing to appear – or FTA – as the courts call it – means not reporting to court on your court date. Without an explanation – and sometimes even with an explanation – a judge issues what is called a bench warrant for your arrest. A bench warrant IS an arrest warrant which is then placed on the state database. It is essentially an order for any person in law enforcement (and/or bondsman) to arrest the subject of the warrant and to take that person into custody.

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases – Active Warrants Do NOT Go Away

If an active warrant for failure to appear is issued (a bench warrant)it WILL show up on any background check and will never “go away” there is no “statute of limitations” on how long it remains active. It is always active until it is removed. If you are brought to the attention of the police – say in a routine traffic stop – you WILL be arrested.. a terrifying experience and one to be avoided.

The Forfeiture Of Bail – And Setting Of Bail On The Bench Warrant

Most criminal cases, except those that were initiated though a summons, have some form of bail or bond set LINK. The bail originally set in a criminal case may be a personal recognizance bond or a $5,000.00 cash property or surety bond posted through a bondsman.

If you fail to appear – the original bond is forfeited to the state of Colorado and a new bail bond amount is set. This jeopardizes the security your bondsman “put up ” for your freedom or your own collateral you posted – cash or otherwise for your original bail bond.

Don’t fool yourself into thinking a warrant will not have issued. It did and the new terms and conditions of your bail bond will normally be much more strict and a much higher amount than on the original bail that was set last/

The Denial Of ANY Bail In Colorado Probation Violation Cases

In most probation violation cases – a NO BOND WARRANT – is issued. If you are arrested on a no bond warrant – you may not be released by the judge on bond after you are arrested and brought to court for advisement. However, in a probation violation situation – the judge is mandated to set a hearing on your probation violation within 14 days.

Why Failing To Appear (FTA) And Then Delaying The Surrender Makes Non Sense.

If you fail to appear for ANY court date – or probation review date – it is a violation of your probation. Like all probation violations the longer you ignore the problem – the worse it works out for you . The consequences of a failure to appear in ANY context are greatly lessened by IMMEDIATELY taking care of the problem and not delaying action.

Your “action plan” for a failure to appear – especially in a serious Colorado criminal case – – should be to contact and possibly retain an experienced Colorado criminal defense lawyer – who can not only advise you on your options and course of action – but can contact your PO and the authorities and make arrangements to have you surrender to the court and have your bail set or lowered substantially. Delaying this process makes it harder to defend you.

The Risks Of Ignoring A Failure To Appear Bench Warrant

Here’s an example scenario. Business has been very busy recently – you have not complellted your therapy or your public service hours on time. You have a court date or a review meeting set with your PO and you either intentionally blow it of or you simply forget.

Later you remember and you know a warrant has issues. What are you risking? You are risking a probation violation – which can result in prison (felony cases), jail (misdemeanor cases), increased months if not years of probation, increased terms of probation, (more therapy- public service hours – fines,) and possibly a new crime – for violation of your bail bond – if you are on bond in another case.

Failing To Appear And The Loss Of Your Driver’s License

When and if you fail to appear for a required court date …or even if you fail to timely pay a for a fine on a ticket, you can assume that the FTA was reported to the Colorado DMV. This will result in the cancellation or denial of your driver’s license and you are not allowed to drive during the cancellation or denial period of time until the warrant is quashed.

There are no driving privileges that can be granted by the Hearings Division while under this type of action.

The Hearings Division has no authority to hold hearings on these types of matters. However, assuming no other restraints are in effect, you may be able to reinstate once these matters are resolved (such as obtaining a “courtesy clearance” from the court).

Violation Of Bail Bond Conditions – A New Crime

Violation of bail bond conditions is a crime in Colorado. If you are found guilty of the new crime – not only is it a violation of probation (if you are on probation) the new conviction brings with it – a whole new set of problems – conditions of probation – possible jail and fines.

What’s more, because failure to appear for a court date is a crime in and of itself, the court may find you guilty of the offense—even if your original charges are dismissed or you are found not guilty. As a result, it is important have legal counsel if you were recently charged with failure to appear in court.

Why Consulting With – and Possibly Retaining A Colorado Probation Violation Lawyer Makes Sense

The goal of any probation violation is returning to the right road to a successful termination of probation. The role of the lawyer is to explain WHY – why you failed to appear, why you turned yourself in so quickly, why you should be given a second or third chance, why it makes sense to not impose jail or additional consequences.

No matter how frightened you may become – and the fear of arrest and jail time is very real – do not wait any longer than necessary to address your situation and to ensure the best possible outcome.

If You Decide To Represent Yourself – Start By Calling The Courts Using These Links

Here are complete links to Colorado county and municipal courts:

Colorado State Courts

Colorado Municipal (City) Court

What Are Your Options For Surrendering On The Warrant – FTA – The Act Of “Turning Yourself In”

You would be surprised to know that the police will not “track you down” if you fail to appear and a bench warrant issues. It is very unlikely they will show up at your place of employment – come to your home – or intentionally stop you on the street.

More likely – your arrest will take place at the most unexpected moment – when you least expect it .. So here’s my suggestion – control the where and when and how of your surrender on the warrant.

First – Contact your bondsman – if you used one – and set up your surrender and the posting of the new amount of bail.

Second – If you don’t have a bondsman – have a family member or friend. ready to post your bond the same day you surrender.

Third – Contact a lawyer to assist you in the case and also argue for an immediate reduction of bond if it is too high an you cannot post the new bond or if there is a “no bond hold” on you as a result of the new warrant.

Challenging The Issuance Of The Arrest Warrant

Whether your warrant issued and was grounded on a solid legal basis you will need to retain a lawyer or qualify for a court appointed lawyer. An experienced Colorado criminal defense attorney will fight for you and advocate to avoid the legal penalties that can and often do result from an outstanding bench warrant.

Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author A Denver Colorado Probation Violation Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Colorado Criminal Defense LawH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

 

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …Why Failing To Appear Is A Failing Strategy In Colorado Probation Violation Cases.

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