Legal Connection Blog Updates http://cbaclelegalconnection.com/?p=37419 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/hEoBwjWZhks/ Updates 7th Judicial District court appointments Delta County Gunnison County Hinsdale County judge appointments Montrose County Ouray County San Miguel County Hon. David Westfall to Retire from Seventh Judicial District Court On Thursday, July 20, 2017, the Colorado State Judicial Branch announced the retirement of Hon. David Westfall from the Seventh Judicial District Court, effective August 31, 2017. Judge Westfall was appointed to the Ouray County Court in November 1999, and was appointed to the district court in 2015. Fri, 21 Jul 2017 14:01:49 Z http://cbaclelegalconnection.com/2017/07/hon-david-westfall-retire-seventh-judicial-district-court/#respond Susan Hoyt <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/07/hon-david-westfall-retire-seventh-judicial-district-court/staff_judge_dwestfall_2016/" rel="attachment wp-att-37420"><img class="alignleft size-full wp-image-37420" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/staff_Judge_DWestfall_2016.jpg" alt="" width="180" height="243" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/staff_Judge_DWestfall_2016.jpg 180w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/staff_Judge_DWestfall_2016-111x150.jpg 111w" sizes="(max-width: 180px) 100vw, 180px" /></a>On Thursday, July 20, 2017, the Colorado State Judicial Branch announced the retirement of Hon. David Westfall from the Seventh Judicial District Court, effective August 31, 2017. Judge Westfall was appointed to the Ouray County Court in November 1999, and was appointed to the district court in 2015. Judge Westfall handles a varied docket, including criminal, juvenile delinquency, civil cases over $15,000, probate, juvenile, mental health, and domestic relations cases. He received his undergraduate degree from Colorado State University and his law degree from Oklahoma City University School of Law.</p> <p>Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the Seventh Judicial District at the time of investiture, and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website and from the <em>ex officio</em> chair of the Seventh Judicial District Nominating Commission, Justice Brian Boatright. Applications must be received no later than 4 p.m. on August 10, 2017; anyone wishing to nominate another must do so by August 3, 2017.</p> <p>For more information about the vacancy, <a href="https://www.courts.state.co.us/Careers/Judge_Opportunities/Announcements/JD07%20-%20JWestfall%20vacancy%20FINAL.pdf" target="_blank" rel="noopener">click here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/hEoBwjWZhks" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/hon-david-westfall-retire-seventh-judicial-district-court/feed/ 0 http://cbaclelegalconnection.com/2017/07/hon-david-westfall-retire-seventh-judicial-district-court/ 2017-07-21 14:01 +00:00 2017-07-21 08:01 -06:00 http://cbaclelegalconnection.com/?p=37417 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/AmBG1Y9smtc/ Case Law Colorado Court of Appeals Colorado Court of Appeals: Announcement Sheet, 7/19/2017 On Thursday, July 19, 2017, the Colorado Court of Appeals issued no published opinion and 45 unpublished opinions. Fri, 21 Jul 2017 13:43:04 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-announcement-sheet-7192017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, July 19, 2017, the Colorado Court of Appeals issued no published opinion and 45 unpublished opinions.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2017/6620F5July%203,%202017.pdf" target="_blank" rel="noopener noreferrer">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/AmBG1Y9smtc" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-announcement-sheet-7192017/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-announcement-sheet-7192017/ 2017-07-21 13:43 +00:00 2017-07-21 07:43 -06:00 http://cbaclelegalconnection.com/?p=37415 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/BRBISU9LT-k/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 7/20/2017 On Thursday, July 20, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions. Fri, 21 Jul 2017 13:36:44 Z http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7202017/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, July 20, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-3101.pdf" target="_blank" rel="noopener"><em>United States v. Henderson</em></a></p> <p><em><a href="http://www.ca10.uscourts.gov/opinions/16/16-4128.pdf" target="_blank" rel="noopener">United States v. Kundo</a></em></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-7046.pdf" target="_blank" rel="noopener"><em>United States v. Magnan</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/BRBISU9LT-k" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7202017/feed/ 0 http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7202017/ 2017-07-21 13:36 +00:00 2017-07-21 07:36 -06:00 http://cbaclelegalconnection.com/?p=37409 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/85UCATh8loY/ Job Search happiness inspiration job satisfaction job search mental health Can Money Buy Lawyer Happiness? I thought the answer might be yes. Why? Because a few years back I blogged about the 2013 Colorado Supreme Court Lawyer Satisfaction and Salary Survey, which showed that, although 2/3’s of Colorado lawyers didn’t like their jobs enough to recommend them to someone else, at least they liked the money. And because a widely-cited study published the following year found that people in wealthier countries are happier than people in poorer countries. Put those two together, and maybe lawyers might say they’re happy overall, despite their job dissatisfaction. Thu, 20 Jul 2017 14:22:35 Z http://cbaclelegalconnection.com/2017/07/can-money-buy-lawyer-happiness/#respond Kevin Rhodes <div class="pf-content"><p>I thought the answer might be yes. Why? Because a few years back I blogged about the 2013 Colorado Supreme Court Lawyer Satisfaction and Salary Survey, which showed that, although 2/3’s of Colorado lawyers didn’t like their jobs enough to recommend them to someone else, at least they liked the money. And because <a href="https://www.sciencedaily.com/releases/2013/12/131218100139.htm">a widely-cited study</a> published the following year found that people in wealthier countries are happier than people in poorer countries. Put those two together, and maybe lawyers might say they’re happy overall, despite their job dissatisfaction.</p> <p>I was wrong. I went several pages into the results of several Google searches and found nothing about happy lawyers or what makes them so. Happiness isn’t bad news, so maybe it doesn’t get reported, but still… why the long faces? More Google searches turned up a <a href="https://www.legalcheek.com/2017/03/poll-70-of-lawyers-are-unhappy-article-50-has-been-triggered-compared-to-36-of-the-population/">LegalCheek.com</a> poll conducted in Great Britain the day after Theresa May gave the required notice of Great Britain’s withdrawal from the European Union. It reported that 70% of British lawyers weren’t happy about Brexit. But that doesn’t really count, does it?</p> <p><em><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-lawyer-happiness/thehappylawyer/" rel="attachment wp-att-37410"><img class="alignleft size-full wp-image-37410" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Happy20Lawyer.jpg" alt="" width="150" height="225" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Happy20Lawyer.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Happy20Lawyer-100x150.jpg 100w" sizes="(max-width: 150px) 100vw, 150px" /></a><a href="https://www.amazon.com/Happy-Lawyer-Making-Good-Life/dp/0195392329">The Happy Lawyer: Making a Good Life in the Law</a></em> (2010) by law professors Nancy Levit and Douglas O. Linder had a promising title, but then, after an extensive review of the literature on lawyer happiness, the authors concluded that “[M]oney is the root of virtually everything that lawyers don’t like about their profession: the long hours, the commercialization, the tremendous pressure to attract and retain clients the fiercely competitive marketplace, the lack of collegiality and loyalty among partners, the poor public image of the profession, and even the lack of civility.”</p> <p>So… money doesn’t just fail to make lawyers happy, it actually makes them <em>un</em>happy. Hmmm.</p> <p>Money certainly doesn’t make associates happy, even though 2016 saw associate salaries leap to new heights – <a href="https://www.nytimes.com/2016/06/07/business/dealbook/law-firm-salaries-jump-for-the-first-time-in-nearly-a-decade.html">at least in the world of BigLaw</a>. In fact, the position of associate attorney came in rock bottom in a 2013 <a href="http://www.careerbliss.com/">CareerBliss survey</a> of not just lawyers, but <em>65,000 employees of all kinds</em>. Forbes, <a href="https://www.forbes.com/sites/jacquelynsmith/2013/03/22/the-happiest-and-unhappiest-jobs-in-america/#6e46d2912edd">&#8220;The Happiest And Unhappiest Jobs In America,&#8221;</a> March 22, 2013. (Here’s <a href="http:/abovethelaw.com/2013/03/unhappiest-job-in-america-take-a-guess"><em>Above the Law</em>’s take</a> on that story.)</p> <p>A couple years after the CareerBliss poll, the Dean of Pepperdine Law School countered that well, there at least <em>some</em> happy associates. Go ahead — guess who they were — answer below.</p> <p>If money doesn’t make lawyers happy, then what does? Earlier this year, Global Financial (“Financing Justice”) <a href="https://www.glofin.com/wordpress/2017/01/11/lawyers-keep-it-casual-to-relieve-stress-poll-shows/">reported</a> survey results by Robert Half Legal that a business casual dress policy helps lawyers deal with stress. Not quite the same as making lawyers happy.</p> <p>Seriously? Business casual is the best we can do?</p> <p><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-lawyer-happiness/theanxiouslawyer/" rel="attachment wp-att-37411"><img class="alignleft size-full wp-image-37411" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Anxious20Lawyer.jpg" alt="" width="150" height="224" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Anxious20Lawyer.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/the20Anxious20Lawyer-100x150.jpg 100w" sizes="(max-width: 150px) 100vw, 150px" /></a>An August 2016 <em>Above the Law</em> article had a promising title — <a href="http://abovethelaw.com/2016/08/why-are-lawyers-so-happy/">Why Are Lawyers So Happy?</a> — but it turned out to be a tongue-in-cheek response to an <a href="http://abovethelaw.com/2016/08/why-are-lawyers-so-unhappy/">earlier article</a> by Jeena Cho, author of <a href="https://www.amazon.com/Anxious-Lawyer-Satisfying-Mindfulness-Meditation/dp/1627226249/ref=pd_lpo_sbs_14_img_0?_encoding=UTF8&amp;psc=1&amp;refRID=G5BCS3EX0VJV9CFJVTTP"><em>The Anxious Lawyer</em></a>, all-around great person and reigning Goddess of Mindfulness in the Marketplace. (I’ve met Jeena, and she would be horrified at me giving her that title, but I do it with a smile, and besides, I think it’s true.) Both articles were written in response to a survey conducted by the ABA and the Betty Ford Foundation, which Forbes reported in an article whose title tells you everything you need to know:  <a href="https://www.forbes.com/sites/jeenacho/2016/07/30/study-indicates-lawyers-struggling-with-substance-use-and-other-mental-health-issues/#1ac22e84b854">&#8220;Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues,&#8221;</a> July 30, 2016.</p> <p>No, money doesn’t buy lawyer happiness — according to pollsters anyway. Of course some lawyers <em>are</em> happy — with the money, their work, and maybe even life in general. I hope that’s you, and I hope you know lots of people like you. As for the rest, it’s hard to be happy about much of anything when you don’t like your work.</p> <p>We’ll keep following the thread of money and happiness next time, to see what else we can learn from it. In the meantime, here’s your answer: Who are the happiest associates?  <a href="http://taxprof.typepad.com/taxprof_blog/2015/01/who-are-the-happiest-law-firm-associates-.html">Tax lawyers</a>.</p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-happiness/photo-kevin-head-shot-thumbnail/" rel="attachment wp-att-37377"><img class="alignleft size-full wp-image-37377" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg" alt="" width="150" height="187" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail-120x150.jpg 120w" sizes="(max-width: 150px) 100vw, 150px" /></a>Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.<br /> </em></p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/85UCATh8loY" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/can-money-buy-lawyer-happiness/feed/ 0 http://cbaclelegalconnection.com/2017/07/can-money-buy-lawyer-happiness/ 2017-07-20 14:22 +00:00 2017-07-20 08:22 -06:00 http://cbaclelegalconnection.com/?p=37399 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/0zHoFslx7vE/ Case Law Colorado Court of Appeals: Consent Not Available as Affirmative Defense to Violation of Protection Order The Colorado Court of Appeals issued its opinion in <em>Hotsenpiller v. Hon. Bennet A. Morris</em> on Thursday, July 13, 2017. Thu, 20 Jul 2017 14:22:07 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-consent-not-available-affirmative-defense-violation-protection-order/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA1337-PD.pdf" target="_blank" rel="noopener">Hotsenpiller v. Hon. Bennet A. Morris</a></em> on Thursday, July 13, 2017.</p> <blockquote><p><em>C.R.C.P. 106(a)(4)—Affirmative Defense of Consent—C.R.S. § 18-1-505.</em></p> <p>J.C. obtained a temporary civil protection order (CPO), issued on JDF 399, against her ex-boyfriend Hartsuff. The county court made the CPO permanent in 2015. Among other things, the CPO states that it does not expire and only the court can change it. It prohibits contact of any kind and includes a notice to the protected person that she cannot give the restrained person permission to change or ignore the order. The restrained person is similarly notified that if he violates the order because he believes the protected person has given permission, he is wrong and can be arrested and prosecuted.</p> <p>J.C. called the police and stated Hartsuff was on her front porch threatening her. In addition, J.C. showed the responding officer text messages and logs of phone calls from Hartsuff over the previous two days. Hartsuff was charged with harassment and violation of a protection order, both as acts of domestic violence.</p> <p>Hartsuff raised the affirmative defense of consent, which the trial court allowed. The district attorney sought judicial review pursuant to C.R.C.P. 106(a)(4), contending that the harm sought to be prevented by the CPO statute is broader than simply contact between the protected and restrained persons and includes preserving the integrity of a court order and preventing domestic violence. The district court found no abuse of discretion and remanded to proceed with trial. The district attorney appealed. The sole issue on appeal was whether the affirmative defense of consent as defined in C.R.S. § 18-1-505 is available to a defendant who is criminally charged with violating a CPO.</p> <p>The court of appeals considered the entire statutory scheme relating to the offense of a violation of a protective order to give effect and meaning to all its parts. Under C.R.S. § 18-1-505, the defense of consent of the victim is not available to any crime unless “the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” The court found the “harm or evil” clause ambiguous and unclear. It therefore examined the legislative history, consequences of a given construction, and goals of the relevant statutes. Following an extensive analysis, the court concluded it was error as a matter of law to allow the affirmative defense of consent for the crime of violation of a protection order.</p> <p>The order was reversed and the case was remanded to the county court with instructions to preclude Hartsuff from asserting consent as an affirmative defense to the violation of a protection order charge.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank" rel="noopener">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/0zHoFslx7vE" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-consent-not-available-affirmative-defense-violation-protection-order/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-consent-not-available-affirmative-defense-violation-protection-order/ 2017-07-20 14:22 +00:00 2017-07-20 08:22 -06:00 http://cbaclelegalconnection.com/?p=37401 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/5VEecC3I3tw/ Case Law Colorado Court of Appeals dependency and neglect jurisdiction juvenile law Colorado Court of Appeals: Withdrawal of Charge by DHS Does Not Constitute Final, Appealable Order The Colorado Court of Appeals issued its opinion in <em>People in Interest of C.S.</em> on Thursday, July 13, 2017. Thu, 20 Jul 2017 14:21:40 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-withdrawal-charge-dhs-not-constitute-final-appealable-order/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA1533-PD.pdf" target="_blank" rel="noopener">People in Interest of C.S.</a></em> on Thursday, July 13, 2017.</p> <blockquote><p><em>Dependency and Neglect—Expungement—Lack of Jurisdiction.</em></p> <p>The Weld County Department of Human Services (Department) filed a motion with the juvenile court to dismiss a dependency and neglect petition involving C.S. Father agreed to the dismissal but requested expungement of administrative findings of child abuse made against him by the Department. The court dismissed the case and denied father’s request, finding that father could obtain due process through an administrative hearing.</p> <p>On appeal, father argued that the juvenile court denied him a fundamentally fair proceeding when it dismissed the case without also ensuring the expungement of the administrative child abuse filing that led to the filing of the case. The court of appeals concluded that the juvenile court lacks authority to order expungement of child abuse and neglect records and reports, and the court’s order granting the parties’ voluntary dismissal of the petition is not final and appealable. The court does not have jurisdiction to hear the appeal.</p> <p>The appeal was dismissed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank" rel="noopener">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/5VEecC3I3tw" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-withdrawal-charge-dhs-not-constitute-final-appealable-order/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-withdrawal-charge-dhs-not-constitute-final-appealable-order/ 2017-07-20 14:21 +00:00 2017-07-20 08:21 -06:00 http://cbaclelegalconnection.com/?p=37403 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/Oa8etydmCho/ Case Law Colorado Court of Appeals criminal law criminal procedure probation revocation Colorado Court of Appeals: Defendant Not Entitled to Bond in Probation Revocation Case The Colorado Court of Appeals issued its opinion in <em>People v. Johnson</em> on Thursday, July 13, 2017. Thu, 20 Jul 2017 14:21:02 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-defendant-not-entitled-bond-probation-revocation-case/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/17CA0749-PD.pdf" target="_blank" rel="noopener">People v. Johnson</a></em> on Thursday, July 13, 2017.</p> <blockquote><p><em>Setting Bond—Persons Charged with Felonies Awaiting Trial—Persons Who Plead Guilty to Felonies and Are Awaiting Trial.</em></p> <p>While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.</p> <p>On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The court of appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.</p> <p>Here, the court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.</p> <p>The appeal was dismissed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank" rel="noopener">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/Oa8etydmCho" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-defendant-not-entitled-bond-probation-revocation-case/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-defendant-not-entitled-bond-probation-revocation-case/ 2017-07-20 14:21 +00:00 2017-07-20 08:21 -06:00 http://cbaclelegalconnection.com/?p=37407 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/17EpxZdN9k4/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 7/19/2017 On Wednesday, July 19, 2017, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions. Thu, 20 Jul 2017 14:05:28 Z http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7192017/#respond Susan Hoyt <div class="pf-content"><p>On Wednesday, July 19, 2017, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.</p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-1385.pdf" target="_blank" rel="noopener"><em>Harris v. Cozza-Rhodes</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-7076.pdf" target="_blank" rel="noopener"><em>Coburn v. Wilkinson</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-3008.pdf" target="_blank" rel="noopener"><em>Pledger v. Russell</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-3042.pdf" target="_blank" rel="noopener"><em>Robles v. United States</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/17/17-6077.pdf" target="_blank" rel="noopener"><em>Jimenez v. Allbaugh</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-2047.pdf" target="_blank" rel="noopener"><em>Northern New Mexicans Protecting Land v. United States</em></a></p> <p><a href="http://www.ca10.uscourts.gov/opinions/16/16-1324.pdf" target="_blank" rel="noopener"><em>United States v. Lopez</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/17EpxZdN9k4" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7192017/feed/ 0 http://cbaclelegalconnection.com/2017/07/tenth-circuit-unpublished-opinions-7192017/ 2017-07-20 14:05 +00:00 2017-07-20 08:05 -06:00 http://cbaclelegalconnection.com/?p=37393 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/7oUV22upgFU/ Case Law affirmative defense Colorado Court of Appeals criminal law jury instructions remand Colorado Court of Appeals: Previously Unresolved Issues Decided Against Defendant’s Position The Colorado Court of Appeals issued its opinion in <em>People v. Jacobson</em> on Thursday, July 13, 2017. Wed, 19 Jul 2017 14:14:10 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-previously-unresolved-issues-decided-defendants-position/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/10CA1476-PD.2.pdf" target="_blank" rel="noopener">People v. Jacobson</a></em> on Thursday, July 13, 2017.</p> <blockquote><p><em>Statutory DUI Affirmative Defense Instruction Not Given </em>Sua Sponte<em>—C.R.S. § 42-4-1301(2)(a)—Jury Instruction—Jury Questions—Invited Error.</em></p> <p>In 2014 COA 149, the Colorado Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Colorado Supreme Court reversed and remanded to the court of appeals. Before the supreme court’s mandate was issued, defendant requested that the court of appeals decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The court of appeals granted the request.</p> <p>Defendant first argued that the trial court erred in failing to <em>sua sponte</em> instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.</p> <p>It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the supreme court stated in <em>Montoya v. People</em>, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the court found no error in the trial court’s failure to instruct the jury <em>sua sponte</em> on the affirmative defense.</p> <p>Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.</p> <p>Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the court declined to reconsider whether the prosecution disproved the affirmative defense.</p> <p>The court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the court concluded any error was invited.</p> <p>The judgment was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank" rel="noopener">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/7oUV22upgFU" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-previously-unresolved-issues-decided-defendants-position/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-previously-unresolved-issues-decided-defendants-position/ 2017-07-19 14:14 +00:00 2017-07-19 08:14 -06:00 http://cbaclelegalconnection.com/?p=37395 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/DYGM2h-7QKM/ Case Law Amendment 64 Colorado Court of Appeals criminal law drug-sniffing dog marijuana law medical marijuana reasonable suspicion Colorado Court of Appeals: Drug Dog Sniff for Marijuana Requires Reasonable Suspicion of Criminal Activity The Colorado Court of Appeals issued its opinion in <em>People v. McKnight</em> on Thursday, July 13, 2017. Wed, 19 Jul 2017 14:13:52 Z http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-drug-dog-sniff-marijuana-requires-reasonable-suspicion-criminal-activity/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/16CA0050-PD.pdf" target="_blank" rel="noopener">People v. McKnight</a></em> on Thursday, July 13, 2017.</p> <blockquote><p><em>Marijuana—Dog Sniff Search—Probable Cause—Reasonable Suspicion—Suppression of Evidence—Amendment 64.</em></p> <p>At defendant’s suppression hearing, Officer Gonzales testified that he saw a truck parked in an alley that then left the alley and eventually parked outside a house for about 15 minutes. The house had been the subject of a search roughly seven weeks earlier that turned up illegal drugs. When the truck drove off, Officer Gonzales followed it, saw it turn without signaling, and pulled it over. Defendant was driving the truck. The officer recognized defendant’s passenger from previous contacts with her, “including drug contacts” involving the use of methamphetamine. At Officer Gonzales’s request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo alerted, the truck was searched, and the officers found a “glass pipe commonly used to smoke methamphetamine” that contained white residue. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia. Defendant moved to suppress the evidence found in his truck, arguing that the police violated his constitutional rights by conducting a dog sniff search without reasonable suspicion and by otherwise searching his truck without probable cause. The court denied the suppression motion, the case proceeded to trial, and defendant was convicted of both counts.</p> <p>On appeal, defendant contended that under the Colorado Constitution, the deployment of the drug dog was a search requiring reasonable suspicion of criminal activity. The court of appeals first noted that Amendment 64 legalized possession for personal use of marijuana of one ounce or less by persons 21 or older. Therefore, under Colorado law, a drug dog’s alert can reveal, in addition to contraband, the presence of something in which a person has a legitimate expectation of privacy (<em>i.e.</em>, the possession of one ounce or less of marijuana). Consequently, a dog sniff should be considered a “search” for purposed of article II, section 7 of the state constitution where the occupants of the vehicle are 21 years or older.</p> <p>Defendant also argued that the dog’s alert, in combination with other relevant circumstances, did not give police reasonable suspicion to search his truck and thus the district court erred in denying his motion to suppress. A warrantless search effected by a dog sniff of the exterior of a vehicle must be supported by reasonable suspicion. Under the circumstances of this case, the police lacked the requisite reasonable suspicion, the dog sniff was invalid, and the methamphetamine recovered as a result should have been suppressed.</p> <p>The judgment was reversed and the case was remanded.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-The-Colorado-Lawyer-em" target="_blank" rel="noopener">The Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/DYGM2h-7QKM" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-drug-dog-sniff-marijuana-requires-reasonable-suspicion-criminal-activity/feed/ 0 http://cbaclelegalconnection.com/2017/07/colorado-court-appeals-drug-dog-sniff-marijuana-requires-reasonable-suspicion-criminal-activity/ 2017-07-19 14:13 +00:00 2017-07-19 08:13 -06:00