Colorado DUI Laws - DUI Attorney Motion to Dismiss DUI Case
There's a reason that Top Colorado DUI Attorney Lawyer Christopher Cessna is a Member of America's Top DUI & DWI Defense Attorneys TM :
Chris Cessna Wins Colorado DUI Cases
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
Here's a sample Motion to Dismiss a Colorado DUI that Colorado DUI Attorney Chris Cessna Uses to defend Colorado Drunk Driving Cases:
MOTION TO DISMISS DUE TO OUTRAGEOUS CONDUCT OF STATE PARK RANGERS
COMES NOW, the Defendant, Client P. J.M., by and through the Law Office of Christopher Hunter Cessna, LLC., and through his attorney, Christopher Hunter Cessna, and moves this Honorable Court for an Order dismissing this case with prejudice due to the outrageous conduct of state park rangers. In the alternative, and as a lesser remedy, all statements, observations and evidence obtained must be suppressed as tainted by the illegal action of state park rangers due to violations of Article II, Section 25 of the Colorado Constitution and the Due Process Clause contained in the Fifth and Fourteenth Amendments to the Constitution of the United States. As grounds therefore, the Defendant states as follows:
FACTUAL BACKGROUND
Cherry Creek State Park
1. On July 10, 2004 at approximately 22:15 hours, an anonymous informant called 911 and reported that a "white boat with a maroon stripe across the middle" had come near the dam at a high rate of speed, right near where this informant was fishing. This anonymous informant told dispatch that as a result, he engaged the occupants of this boat in a verbal altercation. He further advised 911 that he believed that the boat's prop had hit a submerged rock during this interlude and that the occupants might be intoxicated.
2. State Park Ranger, Mike Schnelle subsequently met with this anonymous informant. The informant admitted to Ranger Schnelle that he could not identify who was operating the boat (who was at the "helm"), nor could he identify the boat's other occupants.
3. During this interview, Ranger Schnelle failed to obtain any identification, or re-contact information from this anonymous informant.
4. At 22:45, Rangers Schnelle and Knopp arrived at the west boat ramp with two Arapahoe County Sheriff's Deputies to try and contact the occupants of this white and maroon boat. All four law enforcement officers were wearing fully identifiable law enforcement uniforms, defensive equipment and service weapons. Each officer arrived in fully equipped and marked law enforcement vehicle.
5. Upon arriving, both rangers observed an individual, later identified as Brett Gaulke backing a red pick-up truck and its trailer into the water in order to trailer a waiting white and maroon boat.
6. Rangers then contacted the occupants of the boat. Rangers approached P.J.M. and began to question him and others about their earlier activities. Ranger Knopp began using a confrontational tone of voice with both Mr. Gaulke and P.J.M.. Rangers then began issuing orders to P.J.M. about how to get the boat trailered and secured.
7. In an attempt to fully and completely secure the boat, P.J.M. went to the driver's side door of the truck to access the cab portion of the truck where the boat straps where stored.
8. What the police reports and affidavits fail to document is at this time, both rangers began to privately discuss charging P.J.M. with a DUI as soon as he opened the door to the truck.
9. As P.J.M. attempted to obtain these straps from the cab of the truck, and knowing that P.J.M. may have been under the influence, Ranger Knopp then ordered P.J.M. to drive the truck approximately 100 feet up the boat ramp.
10. Credible evidence exists to show that P.J.M. had not approached the truck with the "predisposition" or the intent to drive the vehicle or even to be in actual physical control of the vehicle. This would be absurd - especially with four uniformed officer present and standing next to four fully marked and equipped police vehicles. Instead, the evidence will show that the only reason P.J.M. opened the door to the truck was to obtain the tie-down/transom straps which are required to completely secure the boat to the trailer.
11. P.J.M. obeyed the order of Ranger Knopp and moved the truck approximately 100 feet on a steep grade while trailering a large boat which he did not have an opportunity to fully secure.
12. After P.J.M. exited the truck, Rangers Schnelle and Knopp began a more detailed investigation of P.J.M. in order to obtain additional evidence for a subsequent DUI and BUI conviction. They interrogated P.J.M. about how much he'd had to drink and then administered roadside sobriety tests.
13. At the conclusion of their investigation, Ranger Schnelle placed P.J.M. under arrest for both DUI and BUI. Ranger Schnelle handcuffed and placed P.J.M. in the backseat of a locked patrol vehicle.
14. After being handcuffed and placed in a patrol vehicle, P.J.M. was interrogated about the altercation with the fisherman. P.J.M. made statements to officers about this altercation. P.J.M. was never advised of his Miranda rights at any time that evening.
15. P.J.M. was then transported to the Arapahoe County Jail, where he agreed to take a breath test. This test was completed at 00:34 hours with a BAC of .097. P.J.M. was then charged with DUI, BUI and DUI per se.
CASELAW
16. The U.S. Supreme and Colorado courts have left open the remedy of dismissal for forms of entrapment, dereliction, or condonation of an offense that amount to outrageous conduct by the police. United States v. Russell, 411 U.S. 423, 431-32 (1973); Bailey v. People, 630 P.2d 1062 (Colo.1982). Furthermore, "application of a court's supervisory powers in dismissing a criminal case may be proper if the government's conduct has violated fundamental fairness and is shocking to the universal sense of justice." People v. Auld, 815 P.2d 956, 957 (Colo.App.1991).
17. Citing Russell, the 10th Circuit has announced, "The outrageous conduct defense looks to the government's behavior rather than the state of mind of the defendant. United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992). 'When the government's conduct . . . is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct.' Id. at 908." United States v. Harris, 997 F.2d 812, 815 (10th Cir. 1992). In footnotes 3 and 4 at pages 816, the 10th Circuit sets out the federal cases that have actually reversed convictions under the outrageous government conduct theory.
18. Misconduct by law enforcement personnel in collecting incriminating evidence may rise to the level of a due process violation when the misconduct is outrageous enough to shock the conscience of the court. United States v. Kennedy, 225 F.3d 1187 (10th Cir. 2000).
19. In People In the Interest of M.N., 761 P.2d 1124, (Colo. 1988), Chief Justice Quinn reasoned in a dissenting opinion:
In contrast to entrapment, which in Colorado is a statutory affirmative defense, § 18-1-709, 8B C.R.S. (1986), the defense of outrageous governmental conduct is constitutional in scope and originates in the principle that the constitutional guarantee of due process of law places limits on the exercise of governmental power in investigating possible criminal activity. If the gov ernmental misconduct reaches a level of outrageousness, then due process of law serves to bar the prosecution of the accused independently of whether the affirmative defense of entrapment might also be applicable if the case were to proceed to trial. This distinction between outrageous governmental conduct and entrapment has been widely recognized by both the federal and state courts, [citations omitted] . . . Thus, while some of the factors appropriate to the entrapment defense might well be relevant in resolving a claim of outrageous governmental conduct, the two defenses are legally distinct.
It bears emphasis that no single factor is determinative of the validity
of a due process claim based on outrageous governmental conduct. Each factor must be viewed in combination with others and in light of the total circumstances of the case. As long as the evidence shows that the government's conduct reached a demonstrable level of outrageousness, and as long as the trial court fairly considered the totality of circumstances in so concluding, the sanction of dismissal should not be overturned on appeal merely because an appellate court might have decided the historical facts of the case differently. See, e.g., Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451, 91 L.Ed.2d 110 (1986).
20. It is no answer to contend that this and similar matters might be remedied administratively through the Colorado Division of Parks or other channels. Law enforcement agencies, including the Colorado State Parks have an incentive due to the Law Enforcement Assistance Fund (LEAF) and other grants to maximize DUI arrests.
21. Only the court, in its role as an independent, but coordinate branch of government, can bring reason and balance to this area of law enforcement. It is imperative that this Honorable Court correct the Colorado State Parks in this instance, and send a message to deter similar police misconduct in the future. Not even the Mothers Against Drunk Driving would condone the conduct of the park rangers in this case.
Park Rangers are Criminally and Legally Accountable as Principals and Parties to a Crime
22. Both Park Rangers are criminally and legally accountable as principals for P.J.M.'s DUI and DUI per se charges due to the fact that they intentionally promoted and facilitated the commission of the DUI and DUI per se by aiding, abetting, and encouraging P.J.M. to drive while intoxicated. C.R.S. 18-1-603.
23. Furthermore, under C.R.S. 42-4-1703, both park rangers are "parties to the crime" of DUI and DUI per se, for aiding and abetting in the commission of P.J.M.'s alleged DUI and DUI per se.
Entrapment
24. The affirmative defense of entrapment is a question of fact. Therefore, the question as to whether there has been entrapment must be resolved by the trier of fact at trial. People In the Interest of M.N., 761 P.2d 1124 (Colo. 1988).
25. However, it is an affirmative defense (to the crime of DUI and DUI per se), that the defendant engaged in the prohibited conduct:
a) because he was induced to do so by a law enforcement officer who was seeking to obtain evidence for the purpose of prosecution, and
b) the methods used to obtain that evidence created a substantial risk that the prohibited acts would be committed by a person who would not have conceived of, or engaged in that conduct without such inducement.
c) Merely providing a person an opportunity to commit an offense is not entrapment, even though representations or inducements calculated to overcome the defendant's fear of detection are used.
COLJI-CRIM. No. 7:10 (1983); C.R.S. 18-1-709.
26. Other such defenses which may be endorsed by P.J.M. at trial, include:
a) Execution of a Public Duty, C.R.S. 18-1-701;
b) Duress, C.R.S. 18-1-708;
c) Effect of Ignorance or Mistake Upon Culpability, C.R.S. 18-1-504; and
d) Privileged conduct, Nebraska v. Lechti, 367 N.W.2d 138 (Neb.1985)(Nebraska Supreme Court held that defendant could not be convicted where police knew he was intoxicated and yet ordered him to drive, only to arrest him for DUI afterwards. Due to actions of police, the defendant's conduct was "privileged.").
27. Although the affirmative defense of entrapment and other such defenses are only available to P.J.M. at trial, P.J.M. should not have to endure the prolonged stress, or the jeopardy of criminal, financial, DMV, and job loss consequences in order to defend himself against the serious and unjust charges which would not have been filed against him but for the outrageous conduct of park rangers.
ARGUMENT
28. Any and all charges against P.J.M. should be dismissed with prejudice due to the outrageous conduct of state park rangers. Because park rangers strongly suspected P.J.M. of being intoxicated, they should have prevented him from even opening the driver-side door to the truck. Instead, rangers waited and watched in order to collect additional evidence. Intentional misconduct by park rangers in attempting to collect additional evidence against P.J.M. (solidifying evidence of P.J.M. as being in "actual physical control") rises to the level of a due process violation because the misconduct is outrageous enough to shock the universal sense of justice. In fact,the actions of the park rangers is so shocking to the universal sense of justice that not even Mothers Against Drunk Driving would condone the conduct of the park rangers in this case
29. Second, both Park Rangers are criminally and legally accountable as principals for P.J.M.'s DUI and DUI per se, due to the fact that they intentionally promoted and facilitated the commission of the DUI and DUI per se by aiding, abetting, and encouraging P.J.M. to drive while intoxicated. Furthermore, under C.R.S. 42-4-1703, both park rangers are "parties to the crime" of DUI and DUI per se, for aiding and abetting in the commission of P.J.M.'s alleged DUI and DUI per se.
30. Moreover, the affirmative defense of entrapment and other such defenses are only available to P.J.M. at trial. P.J.M. should not have to endure the prolonged stress or the jeopardy of criminal, financial, DMV, and job loss consequences in order to defend himself against the serious and unjust charges which would not have been filed against him but for the outrageous conduct of park rangers.
WHEREFORE, the Defendant respectfully requests this Honorable Court for an Order dismissing all charges with prejudice due to the outrageous conduct of park rangers. In the alternative, and as a lesser remedy, all statements, observations and evidence obtained must be suppressed as tainted by the illegal action of law enforcement officers due to violations of Article II, Section 25 of the Colorado Constitution and the Due Process Clause contained in the Fifth and Fourteenth Amendments to the Constitution of the United States.
Respectfully submitted,
_______________________________
Christopher Hunter Cessna, #31702
Attorney for Defendant
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
Telephone: 800-DIAL-DUI
ORDER: MOTION TO DISMISS DUE TO OUTRAGEOUS CONDUCT OF STATE PARK RANGERS
THIS MATTER having come before the Court on the Attorney's MOTION TO DISMISS DUE TO OUTRAGEOUS CONDUCT OF STATE PARK RANGERS, the Court hereby:
[ ] Grant's Attorney's motion.
[ ] Denies Attorney's motion.
[ ] Sets the Attorney's motion for a hearing on the _______ th day of ______________ , 2005, at ______________ .
DONE this _______ day of ____________________, 2005.
BY THE COURT:
_________________________________
County Court Judge
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
Christopher H. Cessna
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
1-800-DIAL-DUI (area codes 303 and 720)
COLORADO DUI DENVER COURTHOUSE INFORMATION
Jefferson http://www.courts.state.co.us/district/01st/dist01.htm
Adams http://www.courts.state.co.us/district/17th/17dist.htm
Broomfield: http://www.courts.state.co.us/district/17th/17dist.htm
Denver http://www.courts.state.co.us/district/02nd/02dist.htm
Arapahoe http://www.courts.state.co.us/district/18th/18dist.htm
Douglas http://www.courts.state.co.us/district/18th/18dist.htm
Gilpin http://www.courts.state.co.us/district/01st/dist01.htm
Boulder http://www.courts.state.co.us/district/20th/20dist.htm
Weld http://www.courts.state.co.us/district/19th/19dist.htm
Elbert http://www.courts.state.co.us/district/18th/18dist.htm
Counties: Jefferson, Adams, Denver, Arapahoe, Broomfield, Douglas, Gilpin, Boulder, Weld, Elbert
Cities: Denver, Golden, Brighton, Littleton, Aurora, Centennial, Broomfield, Castle Rock, Boulder, Greeley, Black Hawk
The most common acronyms for drunk driving in Colorado are:
DUI or Driving Under the Influence, 42-4-1301
DUI per Se or Driving with Excessive Alcohol Content, 42-4-1301
DWAI or Driving While Ability Impaired 42-4-1301
PLEASE FILL OUT A FREE CASE REVIEW TO REACH AN ATTORNEY!!!
Quickly obtaining a DUI attorney, a DWI attorney, or a Drunk Driving attorney to review your case is extremely important! Please complete a FREE CASE REVIEW and submit it as soon as possible, and we will have an attorney in your area contact you immediately.
Because within as little as 10 days of your arrest you may automatically lose your drivers license and even your entire case by delaying your decision to hire an attorney, we strongly recommend that you complete a FREE CASE REVIEW immediately.
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
ATTENTION DUI & DWI DEFENSE ATTORNEYS!
INTERESTED IN JOINING AMERICAS TOP DUI & DWI DEFENSE ATTORNEYS?
If you are a qualified attorney who is interested in applying to become a member of “America’s Top DUI & DWI Defense Attorneys™” PLEASE CLICK HERE for more information, or contact Donald J. Ramsell at 630-665-8780 for further information.
