Defending Colorado Drug Cases
| Publication year | 1973 |
| Pages | 1 |
1973, July, Pg. 1. Defending Colorado Drug Cases
This article presents a basic discussion of the defense of drug cases, and discusses practical problems arising in Colorado state courts. Two other references---Bailey and Rothblatt, Handling Narcotic and Drug Cases, and Bernheim, Defense of Narcotics Cases---provide broad general coverage of the subject.
The Colorado narcotic drug laws, which place cocaine, opiates and marijuana in the same "narcotic" classification, were enacted in 1935 and are substantially identical to the Uniform Narcotic Drug Act which is in force in many states.(fn1) More recent laws relating to stimulants, depressants and hallucinogens are found in the Colorado Dangerous Drug Act of 1968.(fn2) Virtually all of the criminal laws relating to drugs are compiled in Chapter 48 of the Colorado Revised Statutes.(fn3) Most of the charges filed under these laws relate to possession or sale of drugs, and the defense of such cases from arrest to sentence is the focus of the discussion which follows.
Detailed rules for conducting an initial interview with your client are impossible to prescribe, but some matters must be ascertained in every drug case. You should elicit considerable personal data, particularly regarding the nature and extent of your client's addiction to drugs. He may be reluctant to reveal such information during the initial interview, and you must stress that immediate medical treatment and favorable bonding consideration can depend upon full candor concerning addiction. Find out whether your client has undergone any treatment in the past, with an eye to possible rehabilitative programs which can provide immediate assistance. Direct your attention, even at this preliminary stage, to the possibility of an ultimate sentence. In the event of conviction, your client's chances of probation will be considerably enhanced if he is steadily employed, supporting his dependents, living in a stable home and obtaining help for his drug dependence. The period between arrest and sentencing is usually several months, affording the drug defendant an opportunity to demonstrate to the sentencing judge that he is capable of adhering to the terms of probation should he be given the opportunity. Familiarize yourself with community rehabilitation programs and
encourage and assist your client to avail himself of an appropriate program. An excellent statewide guide to community resources available for help is "Facilities and Resources for Persons with Alcohol and Drug Problems," available from the Colorado Department of Health, 4210 East Eleventh Avenue, Denver, Colorado 80220. Check for "tracks" (needle marks) on your client's arms; if they are present, ascertain how recently these injection marks were made and take color photographs immediately. Often a police officer will attempt to justify an arrest and search by asserting that he observed "fresh tracks" on the defendant's arms. Knowledgeable possession of a drug can also be circumstantially inferred from recent use,(fn4) and photographs can be useful in rebutting this inference.
Explore the circumstances of the arrest and charge while they are still relatively fresh in your client's mind. If a copy of the charge is available, discuss the specifics of the charge and the identity of listed witnesses. The facts of the search or sale are of paramount importance, and your client must answer with candor questions such as the following:
Put these questions to the client immediately, and begin an independent investigation based on the client's disclosures as soon as possible.
The initial investigation can take many forms, depending upon the case. If a search warrant was used, review the warrant, its supporting affidavit and its return and inventory in the office of the clerk of the court (county or district) where the charge is filed. If charges have not yet been preferred, these documents are usually in the custody of the clerk of the court which issued the warrant. See Rule 41(f), Colorado Rules of Criminal Procedure. In some areas prosecuting attorneys and law enforcement agencies will furnish you with copies of all offense reports and laboratory analyses upon request and without the necessity of a formal discovery motion. Interview the police officers who were integral in the investigation; contrary to popular police mythology, there is no statute which forbids such discussions with defense counsel. If the officer refuses to discuss the case, his refusal can ultimately be brought to the attention of the jury to show hostility and bias and can be effective in impeachment. Also make an immediate attempt to interview all lay witnesses to the search or transaction. Obtain written and signed statements whenever possible. In drug cases witnesses are often transient and forgetful. If their testimony will be helpful, make periodic contacts and maintain current addresses. Have photographs taken immediately of the location of the search or transaction, as well as the interior of any residence or vehicle involved, hopefully before material changes such as furniture rearrangement have occurred.
Bond must be set at the defendant's first appearance before a judge. If this appearance is delayed for some reason, you may request a bond hearing which must be held "forthwith."(fn5) This procedure is sometimes necessary in localities such as Denver where
defendants are held for long periods under an open-ended "investigation pending analysis" and are not taken before any court until analysis of the suspected drug has been completed.
At a bond hearing in a drug case, judges are often concerned with the likelihood of treatment for the defendant if he is released on bond. While this matter is barely relevant to a determination of "the risk of nonappearance," which is purportedly the sole issue at a bond hearing,(fn6) it is a very real concern for most judges and you must be prepared to respond. The court can order that treatment be a condition of a favorable bond, and probationary supervision can also be ordered pending trial or sentencing.(fn7) If the defendant suffers from a serious drug dependency, make arrangements prior to the bond hearing to obtain appropriate treatment or counseling. It is often helpful to secure the attendance of a representative from a rehabilitation agency at the bond hearing. Concerned friends, relatives and employers who are willing to assist should be present whenever possible. Narcotics detectives in some localities often attempt to obtain informants by offering to recommend a personal recognizance bond in return for "turning in three people" after the defendant is released. This practice is particularly odious since it forces the defendant to return, at the risk of his life, to the drug culture which he should escape. Willingness to become an informant has no relevance to the "risk of non-appearance" and should not be considered in the bonding decision. You should rarely, if ever, recommend this course of conduct if you are concerned with your client's ultimate rehabilitation and security.
In any felony drug case which is filed by direct information, as opposed to indictment, the defendant has the right to a preliminary hearing if he demands it within 10 days after he is first brought before a county judge.(fn8) No right to a preliminary hearing is afforded in misdemeanor drug cases, which include possession of dangerous drugs and possession of less than one-half ounce of marijuana. When requested, the hearing must be held within 30 days and its ostensible purpose is to determine the existence of probable cause to believe that the defendant committed the crimes charged. However, in most cases the preliminary hearing serves two valuable ends in addition: It provides you with an excellent opportunity to discover the police version of the facts, and if one of the arresting officers takes the stand he can be tied down to testimony which he cannot easily alter at a later suppression hearing on the issue of illegal search and seizure. At the preliminary hearing, extensively explore the probable cause for the search and the manner that the search was executed, although remember that this hearing is not considered the proper forum for suppressing evidence and most judges will not reject illegally obtained evidence when determining whether to bind a charge over for trial.
In every case, weigh the advisability of holding a preliminary hearing. Such a hearing is especially advantageous in drug cases because it gives you a preview of possible search and seizure issues. The hearing can also be useful in helping you formulate a realistic position concerning disposition of the case through plea bargaining. There are two risks in such a hearing: If a witness is unavailable at trial, his preliminary hearing testimony can be introduced as evidence,(fn9) and if he is subjected to extensive...
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