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FATAL FALL 2004

Given the acute alcohol related deaths of 1 high school student and 3 college students during the fall semester 2004, it is a fair assumption that Colorado law will soon become much more strict - both for underage possession or consumption and for adults who make alcohol available to underage persons.

Well meaning as our state legislature may be, the relevant question remains - 
Will the legislature's efforts be productive, or will this have a similar effect to prohibition in the 1920's?

THINKING ABOUT DRIVING AFTER CONSUMING ALCOHOL?
VEHICLE FORFEITURE
Legislative Debate - Refer to Link for Information

HOUR OF POWER

The "Hour of Power" is that period of time on a person's 21st birthday between 12:00 a.m. and 1:00 a.m. when drinks are no longer served - closing time.  Twenty one shots are lined up on the bar or table to be consumed by the gala birthday boy or birthday girl within that hour.  Across the country, college kids are dying from acute alcohol poisoning.  Parents - travel if necessary, but take your child out the previous night and celebrate his or her 21st birthday until 1:30 a.m.  Help your child live to enjoy life.

enough with preventative - on to defense

        When a criminal suspect voluntarily gives permission for police or law enforcement to search, items found in that search will likely be admissible as evidence.  Conversely, searches without a warrant are presumed unlawful with some exceptions.  Evidence found as a result of an unlawful search may be suppressed (excluded from admission) as a fruit of the poisonous tree.

        Every citizen has the constitutional right to be free from unreasonable search and seizure.  Never consent to a search or seizure without advice of legal counsel.  Let law enforcement procure a warrant or face possible constitutional challenge to the evidence.  Roadside sobriety testing is a search in the constitutional sense which can and should be refused whether intoxicated or stone cold sober.  Law enforcement officers have no obligation to advise you of your right to refuse, but it exists - exercise your rights and politely decline with a simple no.  This also applies to a PBT - preliminary breath test equipment which may be produced by an officer on scene, intoxilyzer breath test at the police station or blood draw.  If you have not been drinking, upon release immediately proceed to a hospital or laboratory and have blood drawn with a legal chain of custody.

        Similarly, no other rights should be waived by any criminal suspect or defendant without advice from counsel.  If you aren't certain what your rights are at the time of the police request, simply say no - I need to speak to an attorney.

        Defense attorneys frequently see the police report phrase: "suspect was cooperative."  Law enforcement officers will do what they will do regardless of your cooperation - it won't help and may likely hurt your court case defense.  This attorney advises clients to remain silent and be courteous, calm and in control of your emotions.  Politely decline any police requests, making the statement you need to consult with legal counsel before giving a response, and request presence of an attorney.  You have the right to presence of and advice of defense counsel.  Exercise your rights.

        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

CRS 19-2-511. Statements
        (1) No statements or admissions of a juvenile shall be admissible in evidence against such juvenile unless a parent, guardian, or legal or physical custodian of the juvenile was present at such interrogation and the juvenile and his or her parent, guardian, or legal or physical custodian were advised of the juvenile's right to remain silent and that any statements made may be used against him or her in a court of law, of his or her right to the presence of an attorney during such interrogation, and of his or her right to have counsel appointed if he or she so requests at the time of the interrogation; except that, if a public defender or counsel representing the juvenile is present at such interrogation, such statements or admissions may be admissible in evidence even though the juvenile's parent, guardian, or legal or physical custodian was not present.
        (2) (a) Notwithstanding the above subsection statements or admissions of a juvenile may be admissible in evidence, notwithstanding the absence of a parent, guardian, or legal or physical custodian, if the court finds that, under the totality of the circumstances, the juvenile made a knowing, intelligent, and voluntary waiver of rights and:
                (I) The juvenile is eighteen years of age or older at the time of the interrogation or the juvenile misrepresents his or her age as being eighteen years of age or older and the law enforcement official acts in good faith reliance on such misrepresentation in conducting the interrogation;
                (II) The juvenile is emancipated from the parent, guardian, or legal or physical custodian; or
                (III) The juvenile is a runaway from a state other than Colorado and is of sufficient age and understanding.
            (b) "Emancipated juvenile" is defined in CRS 19-1-103 (45). 
        (3) Notwithstanding the above subsection, statements or admissions of a juvenile shall not be inadmissible in evidence by reason of the absence of a parent, guardian, or legal custodian if the juvenile was accompanied by a responsible adult who was a custodian of the juvenile or assuming the role of a parent at the time.
        (4) "Physical custodian" is defined in CRS 19-1-103 (84).
        (5) The juvenile and his or her parent, guardian, or legal or physical custodian may expressly waive the requirement that the parent, guardian, or legal or physical custodian be present during interrogation of the juvenile. This express waiver shall be in writing and shall be obtained only after full advisement of the juvenile and his or her parent, guardian, or legal or physical custodian of the juvenile's rights prior to the taking of the custodial statement by a law enforcement official. If said requirement is expressly waived, statements or admissions of the juvenile shall not be inadmissible in evidence by reason of the absence of the juvenile's parent, guardian, or legal or physical custodian during interrogation. A county social services department and the department of human services, as legal or physical custodian, may not waive said requirement.
        (6) Notwithstanding the above subsection, statements or admissions of a juvenile shall not be inadmissible into evidence by reason of the absence of a parent, guardian, or legal or physical custodian, if the juvenile makes any deliberate misrepresentations affecting the applicability or requirements of this section and a law enforcement official, acting in good faith and in reasonable reliance on such deliberate misrepresentation, conducts a custodial interrogation of the juvenile that does not comply with the requirements of subsection (1).

        Delinquency Adjudication Triggers Rights.  The requirements of the statute do not apply to interrogation of a child by a law enforcement official concerning traffic offenses which could not result in the child's being adjudicated a delinquent. People v. Maynes, 39 Colo. 158, 562 P.2d 756 (1977).  Although these proceedings are commenced in county court, not juvenile court and do not alleged delinquency, it would be this attorney's argument that the rights apply to these offenses as conviction could be the basis of a petition in delinquency and CRS 12-47-901(5) specifically provides for charging contributing to the delinquency of a minor.

        Statements - Protection.  The clear purpose in enacting CRS 19-2-511 is to afford a special protection to a juvenile who is in police custody because of alleged criminal acts.  People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977); People in Interest of R.L.N., 43 Colo. App. 542, 605 P.2d 491 (1980).  The statute provides an additional and necessary assurance that the juvenile's fifth amendment right against self-incrimination and his sixth amendment right to counsel will be fully afforded to him.  People v. Maes, supra; People v. Lee, 630 P.2d 583 (Colo. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1036, 71 L.Ed.2d 318 (1982). It was enacted to safeguard the privilege against self-incrimination, the same privilege protected by Miranda, and the "fruit of the poisonous tree" doctrine on the inadmissibility of evidence obtained by unconstitutional police action applies to its violation.  People v. Saiz, 620 P.2d 15 (Colo. 1980).  The warnings incorporated in a Miranda advisement have been codified in the juvenile context by CRS 19-2-511 together with the requirement that the juvenile be accompanied by a parent, guardian, or custodian during the advisement and interrogation.  People v. T.C., 898 P.2d 20 (Colo. 1995).  The statute does not require that a juvenile be warned that his statements will be used against him, or that a juvenile be advised that he has the right to terminate the questioning at any time. People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981).  Juveniles are entitled to the right of written notice, the right to counsel, the privilege against self-incrimination, and the right of confrontation and cross-examination of witnesses in delinquency adjudications. In re Gault, 387 U.S. 1, 14 (1967)

        Custodial Interrogation Required.  Interrogation conducted via telephone not custodial since police officer could not exercise immediate control over juvenile.  Juvenile not entitled to protection statute. People in Interest of J.C., 844 P.2d 1185 (Colo. 1993). The statutory limitations apply only when a child is in temporary custody or under detention, as those terms are used in the children's code.  People v. Maynes, 39 Colo. 158, 562 P.2d 756 (1977); People v. L.A., 199 Colo. 390, 609 P.2d 116 (Colo. 1980); People in Interest of G.L., 631 P.2d 1118 (Colo. 1981). Although not expressly so limited, it is clear that the statute concerns questioning of a child while in temporary custody or under detention.  People v. Maynes, 39 Colo. 158, 562 P.2d 756 (1977).  Under Miranda and the statute, the decisive stage for the warnings is custodial interrogation, i.e., questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  People v. Lee, 630 P.2d 583 (Colo. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1036, 71 L.Ed.2d 318 (1982).

        Blurb Rule.  Parent not required to be present when juvenile makes voluntary statements to police after police ended interrogation with parent because of request for counsel.  People v. Rivas, 13 P.3d 315 (Colo. 2000).

        Color of Authority - Statements to or Search by Third Persons.  The exclusionary rule of the statute does not apply to a child's statement made to a treating physician when that statement is not the result of an interrogation by a law enforcement official. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). Whether or not an individual conducting a search is an agent of the police and thus "a law enforcement official" under subsection (1) is determined by the totality of the circumstances. The fact that the police officer supplied information to the school principal with the intent of initiating a search and that he was present on school premises during the investigation do not support a finding that the principal and security officer acted as agent of "a law enforcement official". People in Interest of P.E.A., 754 P.2d 382 (Colo. 1988); People in Interest of F.M., 754 P.2d 390 (Colo. 1988).

       Voluntariness of Waiver.  Factors in determining voluntariness of confession. In determining whether a juvenile's confession is voluntary, the primary factors to be considered are the juvenile's age, experience, background, and intelligence, his capacity to understand the warnings given him, the nature of his fifth amendment rights, and the consequences of waiving those rights.  People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981).  Once the issue of voluntariness has been raised, the prosecution has the burden of establishing by a preponderance of the evidence that the statements were made voluntarily.  People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981).

        Voluntary Confession - Custodial Interrogation.  The juvenile and his parents waived their right to consult with an attorney and orally waived their right to parental attendance at the interrogation, and the interviewing detective's "soft technique", if any, did not constitute improper coercion despite noncompliance with requirement that waiver of parental attendance be in writing.  People v. Grant, 30 P.3d 667 (Colo. App. 2000).

        Juvenile Lies About Age - Majority.  A former case held there was no exception for juveniles who lie about their age to the police, claim to be adults, and the police act in good faith.  That loophole was cured by amendment - see CRS 19-2-511(2)(a)(I).  Nicholas v. People, 973 P.2d 1213 (Colo. 1999) is now moot.

        Admissibility Factors - Totality of Circumstances.  Whether statements obtained during custodial interrogation are admissible depends upon the totality of the circumstances surrounding the interrogation.  People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981).  Simply reciting the warnings required by CRS 19-2-511 does not sever the connection between illegal questioning and subsequently incriminating statements.  People v. Saiz, 620 P.2d 15 (Colo. 1980).  Although the lack of a Miranda warning creates a presumption of compulsion, the presumption can be rebutted and the initial statement shown to be voluntary in light of the totality of the circumstances.  People v. T.C., 898 P.2d 20 (Colo. 1995).

        "Stop" Statement.  Where a minor defendant responded to one of the officer's questions by stating, "I ain't going to say nothing no more", but the officers continued to urge defendant to tell the truth, a statement gained by those urgings was suppressed.  People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979).

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        Meaningful Adult Assistance.  The statutory requirement of the presence of a parent or guardian at the interrogation of a child by law enforcement officers is designed to provide parental guidance and assistance to the child and thereby to provide at least some minimal assurance that a child's waiver of his right against self-incrimination is knowingly and intelligently made.  People in Interest of L.B., 33 Colo. App. 1, 513 P.2d 1069 (1973).

        Who Qualifies as a Custodian?  Physical custodians under the statute must be limited to the adult or adults with whom the child resided immediately prior to the arrest and custodial interrogation. If an adult is functioning as a current physical custodian for the child at the time of the interrogation, a protective relationship sufficient to satisfy the legislative purposes presumptively exists.  People v. Legler, 969 P.2d 691 (Colo. 1998).

        Hostile or Adverse Interests.  If the adult appearing with the juvenile has interests that are objectively hostile to those of the juvenile and cannot aid the juvenile in making a knowing, intelligent, and voluntary waiver of his or her constitutional rights, the juvenile is deprived of the protections of CRS 19-2-511.  People v. Legler, 969 P.2d 691 (Colo. 1998).  Where interest of parents is obviously adverse to interests of minor, they are disqualified to act under the provisions of CRS 19-2-511.  People in Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971); People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977).  It is implicit that a child involved in the commission of an offense should be afforded protective counseling concerning his legal rights from one whose interests are not adverse to those of the child, to the end that any statements made by the child be given voluntarily, knowingly, and intelligently.  People v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976); People v. Legler, 969 P.2d 691 (Colo. 1998).  Counselors of a school for boys cannot be considered the neutral counselors contemplated the statute.  People v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976).  The fact that the father was upset with his son's possible involvement in a crime does not mean that their interests were necessarily adverse.  People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977).

        Parental Incarceration. Where parent is himself incarcerated, his ability to guide and advise the child is hobbled and restrained by his own circumstances to such an extent that his mere physical presence does not satisfy the requirements of CRS 19-2-511 concerning confessions of a child because  the parent must be in a position to give advice freely, and a parent who is himself incarcerated is in no such position. People in Interest of L.B., 33 Colo. App. 1, 513 P.2d 1069 (1973). A child's confession is inadmissible where the child receives inadequate guidance because the parent is present but also incarcerated, or where a counselor or caseworker is substituted for the parent. People in Interest of M.M., 43 Colo. App. 65, 599 P.2d 968 (1979).

        Parental Error does not Excuse Police Wrongdoing. Where the police were actively involved in the continued urging of minor defendant "to tell the truth", the fact that the defendant's parents made similar requests did not absolve the police of any wrongdoing, or allow them to disregard defendant's exercise of his right to cut off questioning. People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979)

        Waiver of Parental Attendance. The statute requires that a waiver of the right to parental attendance must be express, in writing, and obtained after a Miranda advisement; however, it does not require that the writing be signed. People v. Grant, 30 P.3d 667 (Colo. App. 2000). Although the statute does not require a signature on the written waiver of parental attendance, the written waiver must in some manner be attributable to the person against whom it is to be enforced. A signature on the document obviously is the most direct means to demonstrate this, but it is not the only way for one to acknowledge or ratify the document. Id.

        Parental Testimony - Permissive. The statute does not require that parents, irrespective of the rules of evidence, be permitted to testify concerning all statements made by their child during an interrogation at which they were present. People v. Raibon, 843 P.2d 46 (Colo. App. 1992).

        Appointment of Attorney. The only effective means of implementing the purposes of this statute in situations where person appearing with juvenile is neutral or hostile to the juvenile's interests is to appoint counsel. People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977). The statute provides for the presence of an attorney, or the public defender, at the interrogation. People v. McAnally, 192 Colo. 12, 554 P.2d 1100 (1976). Appointment of counsel does not alleviate the necessity for compliance with CRS 19-2-511 where counsel was not present at the time of the confession. People in Interest of M.M., 43 Colo. App. 65, 599 P.2d 968 (1979). Attorney guardian ad litem who was familiar with the juvenile and his familial and criminal background was qualified to appropriately serve the interests of the juvenile. Fact that the guardian was originally appointed to represent juvenile in custodial proceeding was not dispositive of whether guardian could also adequately represent juvenile defendant during custodial interrogation. People v. S.M.D., 864 P.2d 1103 (Colo. 1994).

        Request for Counsel - Must be Unambiguous. Child's execution of financial eligibility form and interview by member of public defender's office did not constitute an unambiguous invocation of the right to counsel. Under totality of the circumstances, statement by juvenile's mother to police concerning public defender representation simply indicated mother's concern over legal representation in light of financial circumstances, and was not a clear assertion of right to counsel. People v. Grant, 30 P.3d 667 (Colo. App. 2000).

        Emancipation. The trial court appropriately found that the juvenile was emancipated where the juvenile had been on his own for three months and had not been receiving financial support from his mother, therefore absence of the juvenile's parent at custodial interrogation did not require the court to suppress the juvenile's statement. People v. Lucas, 992 P.2d 619 (Colo. App. 1999). Trial court properly held that juvenile was emancipated even though legal and physical custody of the juvenile had been placed with the department of human services. The language of CRS 19-2-511 implicitly recognizes that a juvenile may be emancipated from the custody of someone other than the parent, including the state. Id.

        Violation - Remedy. The remedy for a violation of CRS 19-2-511 is suppression of the statements obtained. However, that remedy applies only to statements made as a result of custodial interrogation. People v. T.C., 898 P.2d 20 (Colo. 1995). Statements and admissions made to the police by a juvenile in the course of a criminal investigation are not admissible in evidence against a juvenile unless the special protection contemplated by the statute is provided. People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977). Child's confession, obtained without compliance with CRS 19-2-511 was inadmissible, and the court should have granted the child's motion to suppress the confession. People in Interest of L.B., 33 Colo. App. 1, 513 P.2d 1069 (1973).

        Runaways from Out of State. Statements from a juvenile who is a runaway from another state are admissible if the juvenile is of sufficient age and understanding. Sufficient age and understanding refers to the juvenile's ability to understand his or her constitutional rights and to make a knowing, intelligent, and voluntary waiver. People v. Blankenship, 30 P.3d 698 (Colo. App. 2000). Runaway is defined as an unmarried person under the age of 18 and who ran away from home or is otherwise beyond parental control. Id.

        Fruits of the Poisonous Tree. Physical evidence which is fruit of statement improperly obtained from juvenile is inadmissible. People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979).

        Search and Seizure. The same test is applicable to the validity of the search whether the consenting party is an adult or a juvenile with the one exception noted in CRS 19-2-511(1)). That is, a parent, guardian, or legal custodian of the child must be present and freely and intelligently give his consent. Although this statute refers specifically to "statements and admissions", and requires that the interrogating officer afford both the juvenile and his parent, guardian, or legal custodian full fifth amendment protection, the juvenile is entitled to comparable protection in connection with the waiver of his fourth amendment rights. People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971). The statute applies only to consent searches and not to searches incident to a lawful arrest. People in Interest of S.J.F., 736 P.2d 29 (Colo. 1987). The statute is not applicable to a search consented to by a minor in a non-custodial setting. People in Interest of S.J., 778 P.2d 1384 (Colo. 1989).

CRS 18-13-122. Illegal possession or consumption of ethyl alcohol
by an underage person. 
        (1) As used in this section, unless the context otherwise requires:
            (b) "Ethyl alcohol" means any substance which is or contains ethyl alcohol.
            (c) "Possession of ethyl alcohol" means that a person has or holds any amount of ethyl alcohol anywhere on his person, or that a person owns or has custody of ethyl alcohol, or has ethyl alcohol within his immediate presence and control.
            (d) "Private property" means any dwelling and its curtilage which is being used by a natural person or natural persons for habitation and which is not open to the public and privately owned real property which is not open to the public. "Private property" shall not include:
                (I) Any establishment which has or is required to have a liquor license 
                (II) Any establishment which sells ethyl alcohol or upon which ethyl alcohol is sold; or
                (III) Any establishment which leases, rents, or provides accommodations to members of the public generally.
        (2) (a) Any person under twenty-one years of age who possesses or consumes ethyl alcohol anywhere in the state of Colorado commits illegal possession or consumption of ethyl alcohol by an underage person. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense.
            (b) Illegal possession or consumption of ethyl alcohol by an underage person shall be punished by a fine of not more than one hundred dollars. The court, upon sentencing a defendant pursuant to this paragraph (b), may, in addition to any fine, order that the defendant perform up to twenty-four hours of useful public service, subject to the conditions and restrictions of CRS 18-1.3-507, and may further order that the defendant submit to and complete an alcohol evaluation or assessment, an alcohol education program, or an alcohol treatment program at such defendant's own expense.
        (3) Affirmative defenses:
            (a) Private property with consent of owner and parents
            (b) Lawful confectionery (candy) or medicinal or hygienic purposes which contained less than one-half of one percent of ethyl alcohol by weight
        (4) The possession or consumption of ethyl alcohol shall not constitute a violation of this section if such possession or consumption takes place for religious purposes protected by the first amendment to the United States constitution.
        (5) Prima facie evidence:
            (a) Evidence that the defendant was under the age of twenty-one years and possessed or consumed ethyl alcohol anywhere in this state; or
            (b) Evidence that the defendant was under the age of twenty-one years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere in this state.
        (6) During any trial for a violation of subsection (2) of this section, any bottle, can, or any other container with labeling indicating the contents of such bottle, can, or container shall be admissible into evidence, and the information contained on any label on such bottle, can, or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can, or other container were composed in whole or in part of ethyl alcohol. A label which identifies the contents of any bottle, can, or other container as "beer", "ale", "malt beverage", "fermented malt beverage", "malt liquor", "wine", "champagne", "whiskey" or "whisky", "gin", "vodka", "tequila", "schnapps", "brandy", "cognac", "liqueur", "cordial", "alcohol", or "liquor" shall constitute prima facie evidence that the contents of the bottle, can, or other container was composed in whole or in part of ethyl alcohol.
        (7) A parent or legal guardian of a person under twenty-one years of age or any natural person who has the permission of such parent or legal guardian may give or permit the possession and consumption of ethyl alcohol to or by a person under the age of twenty-one years under the conditions described in paragraph (a) of subsection (3) of this section. 
        (11) If testing is conducted on state certified equipment, BAC test results are admissible at trial.
        (12) Official records of the department of public health and environment relating to the certification of breath test instruments, certification of operators and operator instructors of breath test instruments, certification of standard solutions, and certification of laboratories shall be official records of the state. 
        (13) The court shall take judicial notice of methods of testing a person's blood, breath, saliva, or urine for the presence of alcohol and of the design and operation of devices certified by the department of public health.  The prosecution must establish that the testing devices were working properly and that such testing devices were properly operated.  Defendant may challenge the accuracy of testing devices.
        (14) No law enforcement officer shall enter upon any private property to investigate any violation of this section without probable cause.

The MIP statute is primarily used when law enforcement officers bust a party at a private residence.

QUICK SENTENCING GRID   CRS 18-13-122 - MIP
Underage Possession or Consumption of Ethyl Alcohol
Unclassified Petty Offense

CRS 12-47-901. Unlawful acts - exceptions

QUICK SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties

        For more information, I have included an abbreviated summary of statutes regarding criminal sentencing.  It is not intended to be all inclusive, however does contain a summary of basic information pertaining to a range of relevant sentencing penalties. For a summary - refer to

            (b) To obtain or attempt to obtain any alcohol beverage by misrepresentation of age or by any other method in any place where alcohol beverages are sold when such person is under twenty-one years of age; (Classification: M-2)

QUICK SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Second and Subsequent Offenses - Mandatory Minimum Fine
court's discretion to impose order fine paid by useful public service compensated at reasonable hourly rate

QUICK SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Second and Subsequent Offenses - Mandatory Minimum Fine
court's discretion to impose order fine paid by useful public service compensated at reasonable hourly rate

QUICK SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties

QUICK SENTENCING GRID
CRS 18-1.3-501 Class 2 Misdemeanor Offenses
Classification - Presumptive Sentencing Penalties

WARNING

IT IS ILLEGAL TO SELL WHISKEY, WINE, OR BEER TO ANY PERSON UNDER TWENTY-ONE YEARS OF AGE AND IT IS ILLEGAL FOR ANY PERSON UNDER TWENTY-ONE YEARS OF AGE TO POSSESS OR TO ATTEMPT TO PURCHASE THE SAME.

IDENTIFICATION CARDS WHICH APPEAR TO BE FRAUDULENT WHEN PRESENTED BY PURCHASERS MAY BE CONFISCATED BY THE ESTABLISHMENT AND TURNED OVER TO A LAW ENFORCEMENT AGENCY.

IT IS ILLEGAL IF YOU ARE TWENTY-ONE YEARS OF AGE OR OLDER FOR YOU TO PURCHASE WHISKEY, WINE, OR BEER FOR A PERSON UNDER TWENTY-ONE YEARS OF AGE.

FINES AND IMPRISONMENT MAY BE IMPOSED BY THE COURTS FOR VIOLATION OF THESE PROVISIONS.

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CRS 12-47-903. Violations - penalties
        (1) (a) Any person violating any of the provisions of this article or article 46 or 48 of this title or any of the rules and regulations authorized and adopted pursuant to such articles is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than two hundred fifty dollars for each offense.
             (b) The penalties provided in this section shall not be affected by the penalties provided in any other section of this article or article 46 or 48 of this title but shall be construed to be in addition to any other penalties.
        (2) Any person violating any of the provisions of CRS 12-47-901 (1) (a), (1) (f), (1) (g), (1) (i), (1) (k), (1) (l), (5) (a) (I), or (5) (b) commits a class 2 misdemeanor and shall be punished as provided in CRS 18-1.3-501.
        (3) Any person violating any of the provisions of CRS 12-47-901 (1) (b) or (1) (c) commits a class 2 misdemeanor and shall be punished as provided in CRS 18-1.3-501.  For the second conviction and for all subsequent convictions of violating the provisions of section 12-47-901 (1) (b) or (1) (c), the court shall impose at least the minimum fine and shall have no discretion to suspend any fine so imposed; except that the court may provide for the payment of such fine as provided in subsection (4) of this section.
        (4) At the discretion of the court, the fines provided for violations of section 12-47-901 (1) (b) and (1) (c) may be ordered to be paid by public work only at a reasonable hourly rate to be established by the court who shall designate the time within which such public work is to be completed.
        (5) Any person who knowingly violates the provisions of section 12-47-901 (1) (a), (1) (d), or (1) (k), or any person who knowingly induces, aids, or encourages a person under the age of eighteen years to violate the provisions of section 12-47-901 (1) (a), (1) (b), or (1) (c) may be proceeded against pursuant to CRS 18-6-701 for contributing to the delinquency of a minor.

QUICK SENTENCING GRID
CRS 12-47-901. Unlawful Acts - Unspecified Penalties
Unclassified Petty Offense

        Absent a court order, it's unlawful for law enforcement to enter a bar and request patrons to submit to BAC chemical testing.  I've thrown in this statute just as a tidbit of trivia.  

CRS 12-47-902. Testing for intoxication by law enforcement officers - when prohibited.
        (1) No person who is patronizing a licensed premises as defined in sections 12-47-103 (14) and 12-46-103 (3) shall be required or solicited by any law enforcement officer to submit to any mechanical test for the purpose of determining the alcohol content of such person's blood or breath while such person is upon such licensed premises except to determine if there is a violation of section CRS 42-4-1301 by a driver of a motor vehicle unless the law enforcement officer is acting pursuant to a court order obtained in the manner described in subsection (2) of this section. No such test may be performed upon any licensed premises to obtain evidence of alleged intoxication, except pursuant to a court order as provided in this section or in case of a medical emergency, regardless of whether such alleged intoxication is a violation of any provision of this article.
        The balance of the statute pertains to request for or issuance of an ex parte (without notice) order to permit any law enforcement officer to solicit any person who is patronizing a licensed premises to submit to any mechanical test for the purpose of determining the alcohol content of such person's blood or breath while such person is upon such licensed premises.  Penalty is $250 fine as provided above in CRS 12-47-903.

1. Court Appointed Counsel (Public Defender's Office).  
        a.  MIP offense carries no possibility of jail.  The state has no obligation to appoint an attorney for you even if you are indigent.  An indigent defendant has a constitutional right to appointed counsel "only when, if he loses, he may be deprived of his physical liberty."  Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 645 (1981); see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); see also Stern v. County Court, 773 P.2d 1074 (Colo. 1989) (attorney must be provided for indigent defendants accused of crimes if imprisonment may be imposed).  Conversely, when an indigent defendant is not actually sentenced to a term of imprisonment, due process does not require the appointment of counsel.  See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).  
        b.  Using false ID to purchase alcohol or possession / consumption on public land, including roadways, are class 2 misdemeanor offenses which trigger the right to court appointed counsel for an indigent person.

2. First Appearance.  The ticket is the charging document and advises defendant of the charges filed.  The ticket contains a date and time defendant must appear in court for first appearance, where defendant will be advised of the nature of the charges and possible penalties.  At that time defendant will also be asked how he / she wishes to proceed with his / her case.  If defendant fails to appear, a warrant will be issued for his / her arrest.  If this office has been hired, I will take care of the first appearance for the client, and the client need not appear in Court unless I notify the client.

3.  Entry of Plea & Demand for Trial.  
        a.  Under the speedy trial rule, trial must be provided within:
                1.  6 months in county court
                2.  90 days in municipal court
        b.  If the defendant enters a plea of not guilty at first appearance, the court may set the case for trial and deny a request for pre-trial conference - a negotiation date.  This is to avoid speedy trial dismissals.  Frequently a defendant will delay entry of a not guilty plea and simply set the case for pre-trial conference.  If not settled at pre-trial conference, then a not guilty plea is entered, and the case set for trial.
        c.  Demand must be made for jury trial:
                1.  Misdemeanor offense cases:  When a not guilty plea is entered.  Jury trial is free if jail may be imposed in excess of 6 months.  The court may charge a $25 jury deposit if jail is limited to 6 months or less.  Standard number of jurors is 6, defendant may request 3 jurors.
                2.  Petty offense cases:  The demand must be accompanied by a $25 jury deposit within 10 days from entry of not guilty plea.  Standard number of jurors is 3, defendant may request 6 jurors.
                        a.  There is no constitutional right to a jury trial for a petty offense. Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. Robran v. People, 173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170 Colo. 448, 462 P.2d 600 (Colo. 1969)
                        b.  The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine.  MIP does not fit the statutory definition of petty offense for purpose of jury trial right, however counsel would argue that right.  An El Paso County Court case appealed to the District Court resulted in a ruling that jury trial is a right in an MIP prosecution.  The right to jury trial is clear in other offenses classified as class 2 misdemeanors.
        d.  The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel.

4. Pre-Trial Conference.  At the time of first appearance, the court sets most cases for pre-trial conference.  At this time, defendant or defense counsel will meet with the prosecutor to discuss possible alternatives and attempt to reach an agreement to dispose of the case.  This is called plea bargaining. Plea bargaining can also occur outside pre-trial conference setting.  Clients have inquired "What's a deferred sentence?"  Refer to the link for information.  If a plea bargain is obtained which is acceptable to the client, the case is dismissed or set for sentencing.  If a plea bargain is not obtained which is acceptable to the client, the case is set for motion hearings or trial, or both. Locally the courts require a defendant's presence unless an out of state resident.  The goal in MIP is to procure a flat dismissal of all charges or a deferred sentence.

5. Motions Hearings.  Counsel may file any of several motions available.  MIP most common motions:

        a. Discovery Motion. This is a request to discover information in order to prepare an adequate defense
        b. Motion in Limine.  This is a motion to exclude evidence from trial on the basis of evidentiary or statutory grounds. An example would be a breath or blood test which is not defendant's but mislabeled; and which could prejudice the jury without having any importance on the issue of guilt or innocence.
        b. Motion to Suppress.  This is a motion to exclude evidence from trial on the basis of violation of constitutional rights.  An example would be a warrantless entry into a home without consent for the purpose of an evidentiary fishing expedition.  Absent probable cause (reason to believe defendant engaged in a crime) for the search, seizure or arrest and absent reasons which place the entry outside the general warrant requirement, evidence obtained subsequent to the entry may not be used against defendant.  Similarly, forced confessions or statements may not be used.  There are many other arguments which may be available in MIP cases.  With limited exceptions, defendant must be present in court for motion hearings.

6. Trial.

        At a trial, guilt or innocence will be determined, and it must be decided unanimously (all jurors agree).  See above for the right to a jury trial and the number of jurors, or defendant may request trial to the judge alone without a jury.  The right to trial by jury should never be given up without advice of counsel; it is an important right.  At trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt.  Every defendant is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt.  Every defendant may remain silent, or may testify if he / she chooses.  Defense may call witnesses and make them come to court by subpoena.  Every defendant may confront and cross-examine witnesses against him / her.  A trial on a MIP charge is a criminal trial with all rights attached.  If defendant is found not guilty, the case is concluded.  If defendant is found guilty of any charge, the case is set for sentencing.  Defendant must be present in court for a trial.  Under some circumstances, the court may proceed to trial without the presence of the defendant, but that's a bad idea from defense perspective.

7. Sentencing:  I have provided a quick synopsis for relevant offenses.
        Quick Sentencing Grid - MIP Offense
        Quick Sentencing Grid - Class 2 Misdemeanor
        Quick Sentencing Grid - Unclassified Offenses

8. Preparation for Sentencing.

        In a criminal case, counsel looks for facts which may lead to dismissal of charges or not guilty verdict. Plea negotiations are affected by weaknesses in the DA's case.

        "Shoot for the best - plan for the worst."  It is also wise to plan for other contingencies; conviction of an alcohol offense. Anticipating you may subsequently face a judge, to prepare for the most favorable sentencing result:

1.         Prepare for a fine and court costs.

2.         At sentencing, the Court has the options of imposing 24 hours useful public service.  Any defendant convicted of MIP should hope for a useful public service order.  In the offenses of attempt to purchase alcohol with a false ID or possession / consumption on public land (including