C
OLORADO
DUI B
ENCHBOOK
2013–2014 E
DITION
H. P
ATRICK
F
URMAN
Managing Editor
C
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C
OUNTY
J
UDGES
A
SSOCIATION
C
OLORADO
DUI B
ENCHBOOK
2013–2014 E
DITION
Published by:
CONTINUINGLEGALEDUCATION INCOLORADO, INC.
1900 Grant Street, Suite 300 Denver, Colorado 80203
Phone: (303) 860-0608 Toll-free: (888) 860-2531 Fax: (303) 860-0624 E-mail: [email protected] Website: www.cobarcle.org
Dawn M. McKnight, Esq.
Assistant Executive Director/ Publications Director
Colorado Bar Association CLE
Lisa C. Travis Fischer, J.D.
Acquisitions Editor/Manager Colorado Bar Association CLE
Darlene Johnson
Legal Editor
Colorado Bar Association CLE
John and Lynn Cleveland
Subject Index Lindex
Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors’ law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook or other secondary authority, attorneys dealing with specific legal matters should also fully research current, primary authorities.
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SSOCIATIONCLE
CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association
Copyright © 2013 by Continuing Legal Education in Colorado, Inc. All Rights Reserved. No part of this publication may be reproduced in any form or by any process without permission in writing from Colorado Bar Association CLE.
PUBLISHER’S NOTE
This book, a joint project of Colorado Bar Association CLE and the Colorado County Judges Association, is the only one of its kind in Colorado. It is written by county court judges throughout the state, as well as two DUI practitioners, and is an essential re-source both on the bench and in private practice.
We are extremely grateful for the excellent work of the judges who updated chap-ters for this 2013–2014 Edition: Judge Carl McGuire, Washington County; Judge Peter Schoon, Jr., Larimer County; Judge Noel Blum, Boulder County; Judge Steven Fieldman, Pueblo County; Judge Dana Nichols, Weld County; Judge JenniLynn Lawrence, Mon-tezuma County; and Judge Martha Minot, La Plata County. We also appreciate the fine work of Denver attorneys Abe Hutt and Suzanne Iantorno on Chapter 9.
Finally, we could not have produced this book over the years without the outstand-ing efforts of Professor H. Patrick Furman of the University of Colorado School of Law. Pat has been the moving force behind the Benchbook for more than a decade. We at CBA-CLE, as well as DUI judges and practitioners throughout the state, owe him a debt of grat-itude for his excellent work on this publication.
Darlene M. Johnson Dawn M. McKnight, Esq.
Legal Editor Assistant Executive Director/
Colorado Bar Association CLE Publications Director
Colorado Bar Association CLE
ACKNOWLEDGEMENT
Production of the Colorado DUI Benchbook, 2013–2014 Edition, required the ed-itors to Shephardize®the citations used in the book. This research was made possible by a generous contribution from the Colorado Bar Association CLE’s technology partner, LEXIS-NEXIS®.
HOW TO CITE THIS BOOK
As the first full citation, you may cite this book as:
Colorado DUI Benchbook, 2013–2014 Ed. (H. Patrick Furman ed., CLE in Colo., Inc.).
After the first full citation, you may cite this book as:
COLORADO BAR ASSOCIATION CLE
Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also financially independent from the bar associations and self-supporting. We receive no mem-bership duesor other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio and video homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this gen-erous contribution of talent, CBA-CLE could not fulfill its mission.
CBA-CLE Board of Directors — July 2013 to June 2014
Denver Bar Association Appointments Colorado Bar Association Appointments
Richard I. Zuber Barbara Blumenthal Robert A. Holmes Baird B. Brown Michael T. Mihm E. David Griffith J. Marcus Painter Deanna L. Westfall Kristin Rozansky Eugene Zuspann, II Gregory James Smith Charles C. Turner
CBA-CLE Staff
B. Gary Abrams . . . Executive Director Evan Brown . . . Manager of Media and Web Development Ellen Buckley, Esq. . . . Legal Editor Lisa M. Cordova . . . Program Coordinator Lisa C. Travis Fischer, J.D. . . . Acquisitions Editor/Manager Terri L. Fonseca . . . Customer Service Barbara Hollingsworth, J.D. . . . Program Attorney/Sponsors Susan Hoyt . . . Legal Editor/Social Media Sheyanne Hurtado . . . Customer Service Darlene M. Johnson . . . Legal Editor Lori L. Krupske . . . Finance Manager Melissa J. Lucas . . . Publications Assistant Deb Marnocha . . . Desktop Publisher Dawn M. McKnight, Esq. . . . Assistant Executive Director/Publications Director Jo McWilliams . . . Order Fulfillment/Shipping Kathryn Noble, Esq. . . . Legal Editor Heidi A. Ray, Esq. . . . Program Attorney Julie Lynn Revers . . . Program Administrator Adrian Romero-Sosa . . . Technical Producer Nena Saucerman . . . Media Specialist Kenneth Sudduth . . . Customer Service
ABOUT THE MANAGING EDITOR
Professor H. Patrick Furman
University of Colorado School of Law
404 UCB
Boulder, CO 80309-0404 (303) 492-8126
Chapter 3 — Motions to Dismiss
(2013 Update)
Pat Furman spent nearly seven years in the Office of Public Defender, representing indigent defendants in every type of criminal case in various jurisdictions in Colorado. After a year in private practice, which included a short stint as a district court magistrate, he joined the faculty of the Law School at the University of Colorado in 1988. Part served as the Director of Clinical Programs from 1994 to 2004. As a clinician, Pat taught Criminal Practice and Trial Advocacy to students handling misdemeanor and traffic cases in Boulder courts, and also taught Criminal Law and Evidence and ran the Wrongful Convictions Clinic. Since 2009, Pat has been semi-retired, but continues to teach Evidence, Criminal Procedure, and Trial Advocacy at the Law School, and helps administer the Colorado In-nocence Project.
ABOUT THE AUTHORS
Hon. Noel E. Blum
Boulder County Court
Chapter 4 — Motions to Suppress Evidence
(Original Author, 2006–2010 Updates, 2012–2013 Updates)
The Honorable Noel E. Blum was appointed to the Boulder County Court bench in July 2003 after serving 19 years as deputy district attorney for the First Judicial District (Jefferson and Gilpin counties). He received his J.D. from the University of Colorado in 1984 and a B.A. in anthropology and archaeology from the University of Vermont in 1980. Judge Blum presides over a mixed docket of felony preliminary hearings, civil trials, pro-tection orders, and traffic and misdemeanor trials.
Hon. Christopher Cross
Eighteenth Judicial District Court
Chapter 5 — Trial Procedure
(Original Author, 2006–2008 Updates)
The Honorable Christopher Cross received his law degree from the University of Denver College of Law in 1979 after earning an undergraduate degree in 1974 from Deni-son University in Granville, Ohio. He served as a deputy district attorney in Denver from 1979 through 1983, followed by 13 years in private practice. Judge Cross was appointed as an Arapahoe County Court judge in August 1997, and was appointed as a district court judge in the Eighteenth Judicial District on January 12, 2009. His current assignment is in a criminal/civil division.
Hon. Steven Fieldman
Pueblo County Court
Chapter 5 — Trial Procedure
(2010–2013 Updates)
The Honorable Steven Fieldman was appointed to the Pueblo County Court bench by Governor Ritter in November 2007 and started serving the bench in January 2008. Prior to his appointment, Judge Fieldman served 14 years as a deputy district attorney in the Tenth Judicial District. Judge Fieldman is a past president of the Pueblo County Bar As-sociation and is a graduate of the Colorado Bar AsAs-sociation Leadership Training Program (COBALT 2008). Judge Fieldman is actively involved in various community activities and serves or has served on the boards of directors of Crossroads’ Turning Point, Senior Re-source Development Agency, Pueblo Community Health Center Nurse-Family Partnership Advisory Board, and the Pueblo Nature and Raptor Center. Judge Fieldman graduated from Clark University in 1988 and the University of Denver College of Law in 1992.
Abraham V Hutt, Esq.
The Law Firm of Abraham Hutt, P.C.
1127 Auraria Pkwy., Ste. 201B Denver, CO 80204
(303) 893-0881 [email protected]
Chapter 9 — Driver’s License Considerations and Collateral Consequences
(Original Author, 2006–2013 Updates)
Abraham V Hutt, Esq. has been a trial lawyer in Denver since 1984. He handles criminal, civil, and administrative cases, although his primary emphasis has been on crim-inal defense. He has represented clients in the trial courts of 19 of Colorado’s 22 judicial districts, as well as the Colorado Supreme Court, the Colorado Court of Appeals, and the U.S. District Court for Colorado. He is a frequent CLE lecturer on the subject of trial tactics and has taught that topic at the University of Denver Sturm College of Law, the University of Colorado School of Law, and the National Criminal Defense College. He has given CLE lectures on these and many other topics, particularly on the subject of cross-exami-nation, across the United States. He is a longtime member of the Colorado Supreme Court
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Committee on the Rules of Criminal Procedure and has served on the Board of Directors of the Colorado Criminal Defense Bar and the Colorado Legislature’s DUI Task Force.
Mr. Hutt is probably best known for his work in the area of DUI defense. He has authored numerous articles on the subject and is a frequent speaker at various continuing education seminars, lecturing on such topics as Cross-Examination on Roadside Sobriety Exams, 50 Ways to Win a DMV Hearing, Jury Selection Tactics for DUI Cases, and So-phisticated Techniques in DUI. He has written on DUI and motor vehicle law for Colorado Bar Association CLE since 1991.
Mr. Hutt represented the National Association of Criminal Defense Lawyers, the Colorado Trial Lawyers Association, and the Colorado Criminal Defense Bar before the Colorado Supreme Court as amici curiaein People v. Rister, 803 P.2d 483 (Colo. 1990), concerning the constitutionality of sobriety roadblocks.
R. Suzanne Iantorno, Esq.
The Law Firm of Abraham Hutt, P.C.
1127 Auraria Pkwy., Ste. 201B Denver, CO 80204
(303) 893-0881 [email protected]
Chapter 9 — Driver’s License Considerations and Collateral Consequences
(Original Author, 2006–2013 Updates)
R. Suzanne Iantorno, Esq. is an associate at The Law Firm of Abraham Hutt, P.C. She received her J.D. from the University of Colorado School of Law in 2000 and a B.A. from Colorado State University in Fort Collins. Ms. Iantorno was admitted to practice in Colorado in 2000. She is a member of the Colorado Bar Association, Denver Bar Associ-ation, Colorado Criminal Defense Bar, National Association of Criminal Defense Lawyers, and National College for DUI Defense. She has lectured extensively on of trial tactics, sci-entific issues, and motions practice in DUI cases.
Hon. JenniLynn E. Lawrence
Montezuma County Court
Chapter 7 — Sentencing
(2011–2013 Updates)
The Honorable JenniLynn Everett Lawrence graduated from the University of Wisconsin Law School in 1997 and enjoyed private practice for 13 years before being ap-pointed to serve as a Montezuma County Court judge. She is admitted to practice in Col-orado, New Mexico, Wisconsin, and Florida. As a practicing attorney, she earned the esteemed AV Preeminent rating from Martindale Hubbell. Judge Lawrence is a native of Montezuma County and a graduate of Mancos High School and Fort Lewis College. Prior to becoming an attorney, Judge Lawrence taught English at Cortez Middle School and Montezuma-Cortez High School.
Hon. Carl S. McGuire III
Washington County Court
Chapter 1 — Preliminary Matters(2007–2013 Updates)
Chapter 2 — Guilty Pleas(2006 Update)
The Honorable Carl S. McGuire III took the Washington County Court bench on January 1, 2005. Judge McGuire served on active duty in the U.S. Navy JAG Corps before returning to the eastern plains of Colorado to practice law. Judge McGuire received his B.S. in agricultural economics from Colorado State University and his J.D. from the Uni-versity of Wyoming College of Law. Judge McGuire is a part-time judge. His private prac-tice includes estate planning, probate, and municipal law. Judge McGuire continues to serve as a JAG officer in the U.S. Navy Reserve. In addition to his mixed docket in county court, Judge McGuire assists the district court in both civil and criminal cases.
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Hon. Sandra K. Miller
Delta County Court
Chapter 2 — Guilty Pleas(Original Author, 2007 Update)
Chapter 3 — Motions to Dismiss (2011–2012 Updates)
The Honorable Sandra K. Miller has served as a county court judge in Delta County since 2001. Judge Miller graduated with honors from the University of Texas School of Law in 1987. Prior to her appointment to the bench, she served as an appellate brief attorney, a private practitioner, and chief deputy district attorney for the Seventh Ju-dicial District. In addition to a county court docket, Judge Miller is also the presiding judge for Delta’s adult criminal drug court. Judge Miller has been an instructor at the National Judicial College since 2009, is an active member of the Colorado County Judges Associ-ation, and was the 2011 recipient of Colorado’s Judicial Officer of the Year award.
Hon. Martha T. Minot
La Plata County Court
Chapter 8 — Post-Conviction Issues
(2009–2013 Updates)
The Honorable Martha Tinsley Minot received her law degree from the University of Colorado Law School in 1983 after earning an undergraduate degree with honors in 1979 also from the University of Colorado. Judge Minot was in private practice in Durango, Colorado from 1983 until she was appointed to the La Plata County Court in 1995. Her current case load involves presiding over traffic offenses, misdemeanors, and civil cases. Judge Minot has been the president of the Southwest Colorado Bar Association, the pres-ident of the Colorado County Judges Association, is currently a member of the Judicial Discipline Committee and is involved in numerous civic activities in her jurisdiction, in-cluding being a hospice volunteer and training advocates for a crisis telephone service.
Hon. Dana Nichols
Weld County Court
Chapter 4 — Motions to Suppress Evidence (2011 Update)
Chapter 6 — Evidence (2012–2013 Updates)
The Honorable Dana Nichols was appointed to the Weld County Court bench in August 2007. She served as a state public defender for more than 10 years in Greeley, Pueblo, Colorado Springs, and the appellate division. She also practiced civil litigation for three years in Denver as an associate with Kennedy & Christopher. She received her J.D. from the University of Colorado in 1994 and a B.S. in biology from Colorado State Uni-versity in 1991. Judge Nichols currently handles a mixed docket of traffic, misdemeanors, and civil matters. She also presided over the domestic violence court for two years.
Hon. Peter E. Schoon, Jr.
Larimer County Court
Chapter 2 — Guilty Pleas(2008–2013 Updates)
The Honorable Peter E. Schoon, Jr. took the Larimer County Court bench in Feb-ruary 2003. He received his undergraduate degree from Central College (Pella, Iowa) and in 1975 obtained his J.D. from Washburn University Law School (Topeka, Kansas). Along with his 27 years in private practice, Judge Schoon served as the associate municipal judge for Loveland, Colorado, from 1988 to 2002. His docket includes serious traffic offenses, misdemeanors, and civil cases.
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