In 2014 COA 149, the Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Supreme Court reversed and remanded to this Court. Before the Court’s mandate was issued, defendant requested that the Court decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The Court granted the request.

            Defendant first argued that the trial court erred in failing to sua sponte instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.

            It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the Supreme Court stated in Montoya v. People, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the Court found no error in the trial court’s failure to instruct the jury sua sponte on the affirmative defense.

            Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.

            Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The Court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the Court declined to reconsider whether the prosecution disproved the affirmative defense.

            The Court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the Court concluded any error was invited.

            The judgment was affirmed.

At defendant’s suppression hearing, Officer Gonzales testified that he saw a truck parked in an alley that then left the alley and eventually parked outside a house for about 15 minutes. The house had been the subject of a search roughly seven weeks earlier that turned up illegal drugs. When the truck drove off, Officer Gonzales followed it, saw it turn without signaling, and pulled it over. Defendant was driving the truck. The officer recognized defendant’s passenger from previous contacts with her, “including drug contacts” involving the use of methamphetamine. At Officer Gonzales’s request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo alerted, the truck was searched, and the officers found a “glass pipe commonly used to smoke methamphetamine” that contained white residue. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia. Defendant moved to suppress the evidence found in his truck, arguing that the police violated his constitutional rights by conducting a dog sniff search without reasonable suspicion and by otherwise searching his truck without probable cause. The court denied the suppression motion, the case proceeded to trial, and defendant was convicted of both counts.
On appeal, defendant contended that under the Colorado Constitution, the deployment of the drug dog was a search requiring reasonable suspicion of criminal activity. The Court of Appeals first noted that Amendment 64 legalized possession for personal use of marijuana of one ounce or less by persons 21 or older. Therefore, under Colorado law, a drug dog’s alert can reveal, in addition to contraband, the presence of something in which a person has a legitimate expectation of privacy (i.e., the possession of one ounce or less of marijuana). Consequently, a dog sniff should be considered a “search” for purposed of article II, section 7 of the state constitution where the occupants of the vehicle are 21 years or older.
Defendant also argued that the dog’s alert, in combination with other relevant circumstances, did not give police reasonable suspicion to search his truck and thus the district court erred in denying his motion to suppress. A warrantless search effected by a dog sniff of the exterior of a vehicle must be supported by reasonable suspicion. Under the circumstances of this case, the police lacked the requisite reasonable suspicion, the dog sniff was invalid, and the methamphetamine recovered as a result should have been suppressed.
The judgment was reversed and the case was remanded.

A decree of dissolution of marriage between husband and wife was entered in 1989. Husband agreed to pay wife lifetime maintenance of no less than $1,200 per month. In the event of breach, the prevailing party would be entitled to recover costs, expenses, and reasonable attorney fees. For the next 26 years, husband never paid maintenance and wife never asked him to do so.

            In 2015, wife retained counsel and sought entry of judgment for $520,636.32—$289,200 in unpaid maintenance and $231,436.32 in interest. She also requested a maintenance modification if the court did not award her the full judgment. Husband raised the affirmative defenses of waiver, estoppel, and laches. He also requested that the court terminate his maintenance obligation if it awarded wife the full judgment. The trial court (1) concluded that husband was required to pay maintenance under the decree; (2) held that Colorado law does not recognize the laches defense; (3) found that husband had failed to meet his burden of proof on the waiver and estoppel defenses; and (4) enforced the full judgment against him. The court also decreased the maintenance going forward to $800 per month and awarded wife attorney fees as the prevailing party under the separation agreement.

            On appeal, husband argued that he should have been able to raise laches as a defense. While a novel issue in Colorado, courts have addressed the issue as to child support and child support combined with maintenance. Based on these cases, the Court of Appeals concluded that laches is available as an affirmative defense when a party seeks maintenance arrearages as well as the interest on those arrearages. The Court remanded for the trial court to reconsider the full scope of the laches defense on the existing record.

            Husband also challenged the rejection of his implied waiver and estoppel defenses. The record supports the trial court’s rejection of husband’s waiver argument. As to estoppel, husband asserted that he proved all four elements. The trial court rejected this defense, finding that (1) husband understood his obligation to pay maintenance; (2) wife never told him that he did not have to pay; and (3) husband did not detrimentally rely on wife’s assertion that she would not collect maintenance. The Court found no basis on which to disturb the trial court’s rejection of the estoppel defense.

            Husband further argued that it was error to modify rather than terminate his maintenance obligation. The Court could not resolve this issue because the propriety of the trial court’s order will depend whether it awards the wife none, part, or all of her request for maintenance arrearages plus interest.

J.C. obtained a temporary civil protection order (CPO), issued on JDF Form 399, against her ex-boyfriend Hartsuff. The county court made the CPO permanent in 2015. Among other things, the CPO states that it does not expire and only the court can change it. It prohibits contact of any kind and includes a notice to the protected person that she cannot give the restrained person permission to change or ignore the order. The restrained person is similarly notified that if he violates the order because he believes the protected person has given permission, he is wrong and can be arrested and prosecuted.

            J.C. called the police and stated Hartsuff was on her front porch threatening her. In addition, J.C. showed the responding officer text messages and logs of phone calls from Hartsuff over the previous two days. Hartsuff was charged with harassment and violation of a protection order, both as acts of domestic violence.

            Hartsuff raised the affirmative defense of consent, which the trial court allowed. The district attorney sought judicial review pursuant to CRCP 106(a)(4), contending that the harm sought to be prevented by the CPO statute is broader than simply contact between the protected and restrained persons and includes preserving the integrity of a court order and preventing domestic violence. The district court found no abuse of discretion and remanded to proceed with trial. The district attorney appealed. The sole issue on appeal was whether the affirmative defense of consent as defined in CRS § 18-1-505 is available to a defendant who is criminally charged with violating a CPO.

            The Court of Appeals considered the entire statutory scheme relating to the offense of a violation of a protective order to give effect and meaning to all its parts. Under CRS § 18-1-505, the defense of consent of the victim is not available to any crime unless “the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” The Court found the “harm or evil” clause ambiguous and unclear. It therefore examined the legislative history, consequences of a given construction, and goals of the relevant statutes. Following an extensive analysis, the Court concluded it was error as a matter of law to allow the affirmative defense of consent for the crime of violation of a protection order.

The Weld County Department of Human Services (Department) filed a motion with the juvenile court to dismiss a dependency and neglect petition involving C.S. Father agreed to the dismissal but requested expungement of administrative findings of child abuse made against him by the Department. The court dismissed the case and denied father’s request, finding that father could obtain due process through an administrative hearing.

            On appeal, father argued that the juvenile court denied him a fundamentally fair proceeding when it dismissed the case without also ensuring the expungement of the administrative child abuse filing that led to the filing of the case. The Court of Appeals concluded that the juvenile court lacks authority to order expungement of child abuse and neglect records and reports, and the court’s order granting the parties’ voluntary dismissal of the petition is not final and appealable. The Court does not have jurisdiction to hear the appeal.

The appeal was dismissed.

While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.

On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The Court of Appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The Court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.

            Here, the Court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

The appeal was dismissed.