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What’s On Laurie’s Mind: Answering ‘How Do You Defend Someone You Know is Guilty?’

Aug. 31st 2016
Criminal Defense Is about What Can be Proven, Explains Denver Criminal Defense Lawyer Laurie Schmidt

Criminal Defense Is about What Can be Proven, Explains Denver Attorney Laurie Schmidt

One question I get asked a lot is: How do you defend a person if you know that he/she is guilty?

It’s my humble opinion that this is asking the wrong question. Criminal law is different than any other area of the law because it has the focus always on the prosecutor or government. This dates back to the formation of our country. Back in the time of the tea party days, the British Government would accuse a person of a crime, right or wrong, this person then had the enormous task of proving himself/herself innocent. This led to abuse in prosecuting people to serve the crown and/or political interests. To avoid this, our founding fathers set our criminal law system up to require the government to prove a person’s guilt.

A criminal defense attorney’s job is to ensure that this standard is protected and that the government is not allowed to prosecute without checks and balances. A criminal defense attorney is the check on the government, to make sure the evidence is sufficient for a conviction, to ensure fairness in our system, and to ensure our rights are respected. So, to me, the question is not did he/she do it, but can it be proven.

If you or a loved one has been accused of a crime, let’s talk about your defense options. Call me at (303) 747-4686 or email me – Denver Criminal Defense Lawyer Laurie Schmidt – for effective, aggressive defense representation.

Posted by Laurie Schmidt | in arrest, DUI Post, Felony, Theft, traffic ticket; | Comments Off on What’s On Laurie’s Mind: Answering ‘How Do You Defend Someone You Know is Guilty?’

DUI REFUSAL Should You Take the Test

Jul. 30th 2014

Should you Refuse a Blood or Breath Test and Be Considered a DUI Refusal?

Arguably the most important piece of information in a Colorado DUI case for the prosecution is the blood alcohol content (BAC) or the drug levels. If you are arrested for Driving Under the Influence of Alcohol or Drugs you have three options:

Option 1:       You can consent to test of your blood for alcohol content

Option 2:       You can consent to a test of your breath for alcohol content

**If drug DUI you an consent to the test of the officers choice

Option 3:       You can refuse all tests (this will be called a DUI refusal)

 ** Unlike with alcohol, if you are suspected of DUI of drugs the officer will ask you to take a test of your blood, urine, or saliva. You do not get to choose the test, the officer does.

EFFECT OF A DUI REFUSAL ON DMV

 The Colorado DMV revokes licenses for one year, if the DMV finds by a preponderance of the evidence that the officer had probable cause to request the test and that you refused such a test (often times this is called a DUI refusal). The preponderance of the evidence standard is considerable less that beyond a reasonable doubt. It means more likely or at least 51%.

The DMV has the ability to revoke your licenses because it is an administrative action, not a criminal court action. This means that the DMV action is separate and apart from any potential court case that you may have from a DUI refusal of a blood or breath test.

EFFECT OF A DUI REFUSAL ON YOUR COURT CASE

 A DUI charge is more difficult for the government to prosecute without a BAC or drug level. This is not to say that the case would not go forward with prosecution, it is just a harder case.   According to our laws, if you refused a test then the jury can consider the fact that you refused the test as evidence that you were driving under the influence of alcohol or drugs. Typically, in these cases the manner of driving and reason for the stop become very important.

I AGREED TO TAKE THE TEST, WHY AM I STILL A DUI REFUSAL

Colorado’s Express Consent Law makes you do two things, if you agree to take the test. First, submit to the test and second corporate in the administration of the test. The following situations can result in the officer accusing you of a DUI refusal:

  1. For alcohol DUI only, you have a right to choose either a blood or breath test. You may not change the test that you selected. If you choose blood you may not switch to a breath test and vice versa.
  2. You must cooperate in the performance of the test.
  3. You do not have a right to talk to an attorney before deciding what, if any, test to take.
  4. For a blood test, you must agree to release of blood to the police officer, if it is drawn at a hospital.

If you, a friend, or family member is accused of DUI or a DUI refusal contact us today for a free case evaluation at (303) 747-4686 or by clicking here.  Don’t assume that you have no defense, don’t pled guilty or listen to the prosecution before you call us.  We will take the time to explain the process an any potential defenses that you may have.

 

 

Posted by Laurie Schmidt | in arrest, DUI arrest, DUI laws, DUI Post | Comments Off on DUI REFUSAL Should You Take the Test

DUI breath test blood test

Jul. 3rd 2014

Driving Under the Influence

DUI breath test blood test

If you are arrested for suspected DUI or DWAI, you should be read Colorado’s Express Consent Law. This means that if an officer has probable cause to arrest you, you must submit to a chemical test.  For alcohol DUI breath test blood test are the options. If you don’t choose a test, it would be deemed a refusal. Refusals can result in your licenses being revoked for one year by the DMV; however you may qualify for a restricted license after 60 days.

You also do not have a right to counsel before deciding what to do: blood, breath, or refusal the test altogether. Demanding to talk to a DUI attorney before deciding if you will take a test will be considered a refusal by the cops.

You may have been asked to take a preliminary breath test while you were in the field or with the officer. This test result is not admissible in court and would not count as the required test. You have a right to refuse to take this test and it would not affect your license.

Which is better in a DUI breath test blood tests, before the differences in the tests there are different laws for alcohol DUI / DWAI and Drug DUI/DWAI.

Alcohol Test

An arrest for suspected alcohol DUI or DWAI in Colorado means that you must submit to either a test of your blood or breath (DUI breath test blood test). This is your choice; the officer cannot make it for you or change your choice, unless there is an emergency.   You also cannot change your choice, meaning if you say breath, you must cooperate and take the breath test, you cannot later change your test to blood. This will be deemed a refusal.

Drug DUI or Drug and Alcohol DUI

There are different laws for driving under the influence of drugs or drugs and alcohol.  Then you must consent to either a blood, urine, or saliva test. The choice is the officers and not yours. The difference is how the legislatures has written the statutes; it has nothing to do with your rights.

Blood Test

If you chose a blood test, you can expect to receive results several weeks or even months after the arrest date. This could mean that the DMV would take no action on your license until the results are submitted.  Blood results are not 100% reliable.  There could be issues with the sample itself, the machine used to analyze the blood, or the technician could have acted in a way that would contaminate the sample.

Breath Test

If you submit to a breath test, you will have immediate results. If the result is over a .08, then the DMV will immediately be notified and you would have only 7 days to ask a hearing to challenge any licenses suspension.  Breath testing devises, like any machine, can be wrong or broken and there could be defenses available to you.  Potential issues with a breath test could be from operator user to a failure in the device itself.

Colorado uses the Intoxilyzer I-9000.  This is a relatively new machine currently used in only two states, Colorado and Georgia.

We appreciate you taking the time to read this post on a DUI breath test blood test.  We invite you to contact us for more information or a free case review by call ing (303) 747-4686 or click FREE INFORMATION.

Posted by Laurie Schmidt | in Drug DUI, DUI arrest, DUI laws, DUI Post | Comments Off on DUI breath test blood test

Will a Red Card Get You Out of a Marijuana DUI in Colorado?

Jun. 20th 2014

Marijuana DUI’s in Colorado

As things are rapidly changing with the use, possession, and enforcement of marijuana laws in Colorado there tends to be a lot of misinformation about Marijuana DUI’s.  The first misconception is in regards to red cards or a medical marijuana recommendations.  Have a valid medicinal marijuana card is not a get out of a DUI free card. Showing or telling the officer you have a red card would most likely get you arrested, charged with a Marijuana DUI and you could go straight to jail.  This is because if you tell the officer you have a red card, the next logical question would be if you recently smoke or ingested any marijuana.  Admitting to using marijuana hours before the stop could give the officer enough probable cause to arrest you for suspicion of driving under the influence of Marijuana.  Click the following line for more information on Drug DUI in Colorado.

Even if you have a valid Red Card that is not a defense to a Marijuana DUI.  The law is clear, if you are too impaired to drive due to drugs, alcohol, or marijuana, you should not be operating a vehicle.   Most cops tend to treat marijuana just like alcohol, any amount in your system would impair your ability to drive.  The problem with this type of thinking is that unlike alcohol; just having some TCH in your blood does not correlate to impairment as it relates to a Marijuana DUI.  TCH can stay in your blood or body tissues for months after use.  There have been documented studies that have shown TCH in someone’s body for as long  as six months. This is not true for everyone and one of the difficulties with Marijuana DUI prosecution is that each person will metabolize and eliminate marijuana at a different rate, there is no consistent.

You Must Submit to a Blood, Urine, or Saliva Test if You Are Arrested for Marijuana DUI; or You May Loose Your License

If you are arrested for suspected Marijuana DUI,  you must submit to either a test of your blood, urine, or saliva and it is not your choice; but the officer’s choice. If you refuse such a test, your license may be revoked by the DMV. After the test and immediately upon release, contact a DUI attorney in your area to start them working on your defense.  Marijuana DUI’s are very specific type of cases that need a skilled and knowable attorney.

We hope that this post on Red Cards and Marijuana DUI’s was helpful to you. Should you have any questions or like a free consultation with Ms. Schmidt, please contact us directly at (303) 747-4686 or by clicking here.

Posted by Laurie Schmidt | in Drug DUI, DUI arrest, DUI laws, DUI Post, Marijuana DUI | Comments Off on Will a Red Card Get You Out of a Marijuana DUI in Colorado?

Myths About DUI Charges

Jan. 26th 2014

There are a lot of thoughts on how to beat or get out of a DUI – best way that I know as a DUI defense attorney, is to not drink and drive.  Over the years, I have received a lot of questions about misinformation and DUI charges in Colorado.  This post seeks to show why some of the more common myths are untrue.  To discuss your case – contact us at (303) 747-4686 or click here.

Myths about DUI charges

MYTH 1:  If the keys are not in the ignition, I can not be charged with a DUI

FALSE:  The cops could still arrest you for DUI, even if the keys were not in the ignition.  The cops will ask you if you drove, will look at the position of the driver’s seat, and place of the car keys (aka, if they are in your possession –that will be used to show that you drove

MYTH 2:  If I’m arrested for DUI and I refuse to take a blood or breath test, that cannot be used against me.

FALSE:  If the cops have probable cause (which is a very low standard) to arrest you for DUI in Colorado you must consent to either a blood or breath test.  If you refuse a test, your licenses will be suspended for one year by the DMV. In addition, the government will use the fact that you refused a test to show that you were trying to hide the alcohol in your system.

MYTH 3:  I MUST take the roadside tests if requested by the officers.

FALSE:  You do not have to answer any questions or complete any FST or Roadside tests.  These tests are designed for you to fail.  You will never perform them satisfactorily and this is more ammunition for the government to use against you.  For more information on roadsides, check out our FST posting.

MYTH 4:  I should admit that I have one or two drinks

FALSE:  You have a constitutional right not to self incriminate.  This means that you do not have a duty to tell the officers that you had drunk any alcohol or that you only had 1 or 2 beers.   In fact, you don’t need to answer any of the officers questions.  FYI – one or two beers is the top response that officers generally get and rarely does a blood or breath test confirm just one or two.

MYTH 5:  If I’m not seen driving, I cannot be charged with DUI

FALSE:  As stated above, there are many ways the government will try to show you and not someone else was driving.  The government will use circumstantial evidence to show that you were driving.  The cops will testify to such things as:  no one else was around, car was warm to the touch, keys were in you pocket/hands, and possible that the seat position matched your approximate height.

If you have more questions or what to ask a question, simply contact us here.  For more information about DUI penalties in Colorado, check out our DUI page.

Posted by Laurie Schmidt | in DUI arrest, DUI laws, DUI Post | Comments Off on Myths About DUI Charges

Denver DUI Attorney tells you how to avoid a DUI during Halloween

Oct. 29th 2013

Happy Halloween!

Number one way to avoid a DUI – don’t drink and drive, especially over a holiday!   There will be more cops on the street the next few days, especially at night.  Don’t let your mug shot be of you as a bumblebee!  Denver DUI enforcement and surrounding police agency’s are likely to step up DUI patrols; this could include sobriety DUI checkpoints.  If you are stopped after your Halloween festivities, here are some brief DUI reminders from Denver’s DUI attorney:

  1. Provide the officer with your license, insurance, and registration
  2. Do not drive if you do not have a properly licensed car and/or license –  an expired tag is a valid reason to be pulled over.  This can easily turn from a simple ticket to a Denver DUI.
  3. You do not have to admit that you drank any alcohol – don’t lie, but you do not have to tattle on yourself
  4. You do not have to take or complete any of the field sobriety tests or road tests
  5. You do not have to get out of your car, unless you are being arrested and the cop orders you out.
  6. You do not have to roll your window down-the officer is trying to determine if he can smell alcohol on you
  7. You do not have to look at the officer, he/she is conducting a test to determine if you may have drank alcohol to build a case to arrest you for DUI
  8. The officer does not have to read you your Miranda rights until you are arrested (they will not read you your rights until you in the car or at the station)
  9. You must submit to a blood or breath test IF you are arrested for Denver DUI.  Failure to do so may result in your license being revoked for one year.
  10. You do not have a right to talk to an attorney before you take a blood or breath test after an arrest

If you or a friend are arrested for Denver DUI – contact us immediately.  We offer free consultations and will take the time to break down your case and evaluate the evidence against you.  Contact us today:  (303) 747-4686 or simply click here.

Posted by Laurie Schmidt | in DUI arrest, DUI Post | Comments Off on Denver DUI Attorney tells you how to avoid a DUI during Halloween

Have a safe and Happy Forth of July- expect more DUI officers, avoid a DUI arrest

Jul. 3rd 2013

The Law Office of Laurie A. Schmidt wishes everyone a safe and Happy Forth of July.  We do not encourage drinking and driving, please keep in mind that there is typically more enforcement for catching DUI drivers around a holiday weekend.  This can include additional DUI officers on the street, DUI checkpoints and increased DUI arrests.

For additional information on what to do if stopped for DUI, check out our post, avoid DUI arrest.  Remember, with increased enforcement over the holiday weekend the reason that you were stopped may not raise to the level of reasonable suspicion, which is required by the United States of America and Colorado constitutions.

If you or a loved one are arrested for DUI over the holiday weekend, don’t wait contact us immediately by calling (303) 747-4686 or complete our on-line form.

 

 

Posted by Laurie Schmidt | in DUI Post | Comments Off on Have a safe and Happy Forth of July- expect more DUI officers, avoid a DUI arrest

DUI Evidence in Colorado used for DUI arrest and DUI charges

May. 23rd 2013

DUI Evidence used to convict you of a Colorado DUI or DWAI

DUI EVIDENCE  – prior to police contact

Even before an officer approaches your car – the DUI  investigation begins and DUI evidence is being collected.  Officers are known to frequent areas around popular bars and establishments and just wait for someone to drive away.  There must be a reason for the stop – officers CANNOT just pull you over.   Many times, the officers will allege a violation of a Colorado Vehicle Code. This can be speeding, unsafe turn, or expired license plate.  Any violation will be a valid reason for stopping the car.  If there is no valid reason – then most reports will list weaving within a lane.

A DUI investigation can also arise from an investigation of a traffic accident.   There is no requirement that the officer see you drive for the investigation to commence.  The government can prove elements of DUI based on circumstantial evidence, such as possession of the keys and position of the driver’s seat and ANY admissions made by you.  See our posts on Miranda and DUI Stops for more information on why you should not talk to the cops.

DUI Evidence – after police stop you

After the cops pull you over – DUI evidence is gathered within the first contact with you.  Officers will ask you to look at them – they are looking for red, watery eyes and may even ask you to follow a pin.  You do not have to do this because you have a Fifth Amendment Right not to incriminate yourself.  The cop will use these observations as DUI evidence in a jury trial to convict you.  Other observations used as evidence of DUI include:  odor of alcohol, unsteady gait, slurred speech, and dexterity issues.

The next DUI evidence gathering phase are the field sobriety tests. The officer will start by asking you a series of questions and then ask you to perform several tests.  NOTE, the officer is asking you to do something – you do not have to do it.  For more information vista our post on Standardized Field Sobriety Test.

DUI Evidence – after arrest

At the conclusion of the investigation after subjective DUI evidence is collected and upon arrest, the officer provides an Express Consent Test of either your blood or breath.  This can be the most powerful DUI evidence that a prosecutor will use in a DUI prosecution

The government will use all negative aspects of the DUI evidence and completely ignore any evidence that shows you are not guilty.  An experienced Colorado DUI attorney will obtain all relevant discovery – not just what the government initially provides.  The discovery and investigation phase that a Colorado DUI attorney should conduct is to determine the ability to obtain defense evidence to present to defend the charges.  Once the additional DUI evidence is received, your Colorado DUI attorney must be able to competently present the evidence to court and the DMV.

Thank you for visiting our post on DUI evidence.  For a free consolation or additional information, contact us today at (303) 747-4686 or by clicking here.

 

 

Posted by Laurie Schmidt | in arrest, DUI Post | Comments Off on DUI Evidence in Colorado used for DUI arrest and DUI charges

FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

May. 2nd 2013

FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

The U.S. Supreme Court recently held that the police could not conduct a warrantless blood draw in a routine DUI investigation.  In Missouri v. McNeely, the court held that “ in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

The government was arguing for a “per se” rule that would allow the cops to draw blood without your consent and without a warrant in all DUI cases and DUI investigations.  The U.S. Supreme Court rejected this argument and found that there was no exigency that would justify such a per se rule.  Allowing the cops to force a blood draw without your consent and without a warrant in DUI cases could result in the police- simply drawing blood based on a hunch and NOT probable cause.  For more information about your rights during contact with law enforcement, visit our MIRANDA  and DUI STOPS WHAT YOU NEED TO KNOW posts.

Our Fourth Amendment of our United States Constitution guarantees your right to be free from unreasonable search and seizure.  A warrant is issued by an independent magistrate and must be based on probable cause.  Generally, a search or seizure based on a properly issued warrant is reasonable and is not a violation of the Fourth Amendment.

Throughout our history the courts have carved out various exceptions to this warrant requirement.  One such exception is the exigency requirement.  Exigency applies when the situation make the needs of the police so compelling that a warrantless search objectively reasonable.  An exigency requirement has been found constitutional based on a theory of destruction of evidence- basically giving the cops no time to seek a warrant because they are confronted with a now or never situation because the sought after evidence would be destroyed.

A blood draw is a physical intrusion beneath the skin and into the veins to remove evidence to be used in a criminal prosecution.  Thus, you have a Fourth Amendment right to be free from an unreasonable seizure of your blood.

This does not mean that a warrantless blood draw would be unreasonable, but the Court refused to hold a per se exception to allow all warrantless blood draws.  If a warrantless blood draw is or is not a violation of your Fourth Amendment rights will be determined by the specific facts of your case.

In the context of DUI investigations, if the officer has probable cause to arrest you for suspension of DUI, Colorado has an Express Consent law. Refusing to consent to blood or breath test would most likely result in the revocation of your Colorado license for at least a year by the Colorado Motor Vehicle Department.

If you feel that your Fourth Amendment Rights have been violated or you were the victim of an unreasonable search or seizure by the cops – contact us for additional information at (303) 747-4686 or click here.

Thank you for visiting our post on the Fourth Amendment- for more information about us- visit our website at:  www.criminaldefenseyouneed.com 

Posted by Laurie Schmidt | in DUI arrest, DUI laws, DUI Post, Fourth Amendment | Comments Off on FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

DUI Field Sobriety Tests Typically Given in Colorado

Apr. 16th 2013

Standard DUI Field Sobriety Tests

YOU can refuse to complete any DUI Field Sobriety Test or Roadside tests.  You are being asked to complete the test to help the officer build enough probable cause to arrest you for driving under the suspension of drugs and/or alcohol.  For more information on DUI charges in Colorado, visit our blog on DUI Laws and DUI Stops.

There are three standardized field sobriety tests that are recognized by NHTSA (National Highway Traffic Safety Administration). These DUI Field Sobriety Tests are suppose to give clues to an officer as to if the proponent is or is not under the influence of alcohol.  The tests are suppose to require the proponent to complete different tasks at the same time.  If the tests are not performed as required, then the validity of the DUI field sobriety test is questionable.

The DUI Field Sobriety test will start at the instructional phase. You would most likely be asked to stand with your feet together with your arms at your side.  This is part of the test as well as following the directions of the officer.  Each test has a certain number of clues that the officers are taught to look for.

  1. Walk and Turn

In this DUI Field Sobriety test, officers will look for 8 “clues” on this test.  You will be asked to walk heel to toe for nine steps on either a real or imaginary line, turn, and take nine steps back.  You will be judged on such things as stepping off the line (even if its imaginary), keeping your hands by your side, and completing the turn correctly.

  1. One Leg Stand

Typically officers will look for four clues in this test.  You will be asked to raise one leg approximately 6 inches off of the ground, while keeping your arms at your side and your eyes focused on the raised leg and count out loud.

  1. Horizontal Gaze Nystagmus 

Nystagmus is the involuntary jerking or bouncing of the eyes.  Officers are trained that one cause of Nystagmus could be alcohol or a Central Nervous System Depressant.  There are hundreds of other causes for Nystagmus.

Non-Standard Field Sobriety Tests

Often time and in addition to the above tests, officers may ask (which you can refuse) to complete other, non-standardized tests when conducting a DUI investigation in Colorado.  An officer would most likely testify that although not the standardized DUI Field Sobriety Tests, these unverified tests allowed him or her to make a determination into your sobriety or likelihood that you are operating a car under the influence of alcohol.  These tests can include:.

  1. Modified Attention Deficit or Romberg:  This test requires you to tilt your head back slightly and estimate 30 seconds in your head.  Officers are measuring your “internal” clock to determine if time is slower or quicker.
  1. Alphabet test:  This unverified DUI field sobriety test requires you to state (not sing) the alphabet starting from a mid-range letter.  This is not a scientifically valid test.
  1. Finger to Nose:  You would be asked to tilt your head backwards and touch your nose with your index finger.  This test has not been scientifically validated.

Thank you for visiting our post on DUI Field Sobriety Tests.  For additional information on DUI or DUI defense, click here or contact us a (303) 747-4686.

Posted by Laurie Schmidt | in DUI arrest, DUI laws, DUI Post | Comments Off on DUI Field Sobriety Tests Typically Given in Colorado