Colorado Springs Criminal Attorney Blog

Is the dog to the left high?!? There will be an answer at the end of this post.

A law school classmate who is now a professor at our alma mater--Creighton--just posted (on Facebook, no less) that the Supreme Court has decided that a drug dog sniff is a search that requires a warrant.

The first important consideration that jumps out--what kind of lawyer gets his Supreme Court decision announcements via Facebook?!? Probably more important, though, is the ramification to law enforcement. In Florida v. Jardines (11-564), the police get an anonymous tip that a dude has got a bunch of pot in his house. The coppers investigate by noting that there is an air conditioner running for FIFTEEN WHOLE minutes (which, apparently, is indicative of trying to dissipate heat from grow lamps. I would have thought it indicates that Florida is hot, but I live in Colorado and it was 6 degrees yesterday morning, so "hot" might be relative. But I digress . . .). Anyway, the Man then takes a drug dog to the front door and allows him the sniff at the threshold. The dog "hits", essentially going crazy and then falling over on his back like my dog Junior in the picture above. Ok, I made that last part up--but you get the idea. Also, the part about the air conditioner didn't make it into the opinion, but it was in the briefs. Again, I digress. Sorry.

Armed with the dog sniff information (along with the air conditioner and the anonymous tip info), the Narcos go and get a warrant. Once they get in the house, they find 25 pounds of the evil weed and charge Mr. Jardines with various offenses. The evidence was then suppressed and un-suppressed in a number of different court proceedings until the Supreme Court got involved.

"Not so fast!" said the Supremes. "A dog sniff is a search!" they pronounced. (You can tell I'm excited by my use of exclamation points!!!!). Thus, law enforcement needs a warrant prior to having the dog sniff. The insightful analysis of this attorney?: drug dogs are now somewhat irrelevant. If the cops can get a warrant for a sniff, they can get a warrant to get into the house anyway. So why have the dogs in the first place? Sorry Fido! ****EDIT**** Fido gets a reprieve! My professor buddy just pointed out that Fido may still have utility in airports, sniffing cars, and that this holding applies only to homes which have a higher expectation of privacy. That's why he's a professor and I'm just a practitioner. Although, if the police have a drug dog sniffing your car, they probably can get into it some other way. Just sayin'!

Oh, yeah. Junior above actually is on drugs--for seizures. He slept like that long before he went on meds, though. Not sure what that means in terms of probable cause for warrants or searches, but I thought it was a funny picture. As always, if you are charged with a crime, it's a good idea to call a qualified attorney to discuss your case before making any important decisions about your rights.

So, as announced in all major media outlets and our local paper, the Gazette, our law makers have brought back "per se" blood limits for driver's suspected of being under the influence of marijuana.

I've written about this before a couple of times before here and here.

I'm not sure that I have a lot to add to those articles. The same arguments have been made--what's changed in the past year is that our citizenry has decided that recreational marijuana should no longer be prohibited. So now Rep. Waller is able to say, and acutally did yesterday according to a story I heard on KRCC this morning, that public safety dictates that if a person's blood contains a certain level of THC that level is the equivalent to being under the influence, whether the person exhibits signs of impairment or not. If the person doesn't show signs, well, then, she can present evidence to prove she's not guilty. Leaving the obvious shifting of the burden of proof to the suspect aside, this type of legislation concerns me.

First, Rep. Waller and his boss for his "other" job, D.A. Dan May, have long been on record as opposing any marijuana use, whether medical or recreational. Mr. Waller fought medical marijuana and Amendment 64. Now he is the primary sponsor of the per se marijuana DUI bill. It doesn't take a rocket scientist to figure out that the motivation is not just the safety of our motoring public--it's marijuana in the first place.

Second, if a driver is stopped for a technical reason (lamp out, expired tags, speeding--a non-"impaired" type of reason) and has a marijuana card, does that mean a cop gets to ask for a blood test? What if the person has allergies and her eyes are red? Do the police get to take blood? What if it's 10:30 at night and the person has a pint of Ben and Jerry's in the passenger seat? Is that a blood test, too?

Kidding aside, I do get concerned that our public servants start manufacturing reasons to get into our lives. I once had a client in an alcohol case who went through the system herself, before she came to me to help "fix" her situation. She was asked to take a blood test because her "breath smelled like breath mints" and, the officer reasoned, people who drink use breath mints to cover the scent of alcohol. Based on that "indicia of alcohol" alone, he asked the client to take a blood test. She complied (because if she refused, the state would take her driver's license for one year). She went to court and the DA asked her to plead guilty to a drinking and driving offense (DWAI). The judge took her plea. She went to alcohol classes. At alcohol class, they asked what her blood test result was--she didn't know. They went back to the court file to find the BAC and, lo and behold, it was .027--under the legal limit for even DWAI. It took tens of hours of work, thousands of dollars, and months of scheduling to undo the damage done. That's because she smelled like breath mints. Heaven forbid an officer stops you and you smell like cigarettes, have red-eyes and a marijuana card. Even if you weren't all over the road, and even if you don't do roadsides, the police officer is still going to ask for your blood. If you refuse, you'll lose your license for a year. If you take a test and there is ANY THC in there, you'll be trying to put on evidence you weren't impaired. And from the anecdote above, how do you think that's going to over with people on record as deploring the evil weed.

Just some food for thought. As always, call a good criminal defense attorney if you find yourself charged with a crime.

One of the things I deal with every day in my job as a Colorado Springs criminal defense attorney is the toll addiction takes on our communities. It has a real sociological and financial impact. There was a time when our communities banded together and took care of those who had addictions and mental health issues--for example, Sheriff Andy and Deputy Barney looking after Otis when he fell off the wagon. That time seems to be slipping away.

In real life, it seems that while the new system is well meaning, it really "piles on" and can make it harder for those charged with DUI, Possession of Drugs, or an alcohol offense. Financially, for the average Colorado Springs DUI or DWAI case, a client is conservatively looking at $1200 in fines and court costs, $1200 in ignition interlock fees, $600 in alcohol class fees, $600 to $1200 in probation supervision fees, $75 in community service fees PLUS jail fees PLUS insurance increases PLUS lawyer fees PLUS lost income if the client goes to jail. And that's just on a first offense.

More important than the money, though, is the loss of self esteem, the shame, the family stress, and the work stress an El Paso County DUI or Colorado Springs Drug Possession case can cause. People lose their jobs for these type of offenses. There's a stigma to them as well. My most important responsibility, especially early on in a case, is to let my client know to take a deep breath, slow down, and educate him or herself about the process--because the uncertainty about the process is one of the main causes for my client's stress (and can be a trigger for further substance abuse problems). Once a client knows what he or she is facing, it's much easier to come up with a plan on how to make the best out of a bad situation. And, it's really important to assess whether there is an actual substance abuse issue or just some bad choices that have been made. That education and assessment process needs occur in every case.

With those societal and financial costs in mind, I found this article really interesting. It seems that in 1971, Massachusetts was cognizant of the need to treat those were struggling with substance abuse and dependence with a little more compassion than now. I understand that it might cost Foxborourgh a little more to control the rowdies after a big sporting event, but I'd think that is a million times offset by the tax revenue and lease fees having the stadium brings in the first place. It seems that reverting back to Mayberry wouldn't always be a bad thing.