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April 14, 2017

Denver DUI Laws, Forgery Allegations Create Doubt

Denver DUI Laws, Forgery Allegations Create Doubt If you were sentenced for a drunk driving charge under Denver DUI laws, forgery allegations create doubt. If you feel that your legal matter may be affected by this news, you should contact our attorneys at the Law Office of Joseph W. Galera in Denver right away. Our firm primarily specializes in DUI, criminal law, marijuana dispensaries, civil rights, employment law.

According to a recent Denver Post article, Colorado defense attorneys are calling into question the validity of DUI convictions when it was discovered that a technician who was in charge of certifying the state’s breathalyzer test machines said someone forged his signature on more than 100 records in 2013.

The Colorado Department of Public Health and Environment (CDPHE) validates, certifies, and maintains the Intoxilyzer 9000, which is the instrument used to test the blood-alcohol content of every suspected drunken driver here in Colorado. Two hundred of these machines are used at 165 law enforcement agencies across the state.

Colorado’s Governor John Hickenlooper doesn’t want an independent investigation of the Intoxilyzer 9000 or the certification process used for every breath test machine in the state. The governor’s legal counsel believes a complete review has already has been done. The result of that review was that there was no evidence of misconduct found. The counsel suggested if new facts emerge they can always take another look at it.

But Mike Barnhill is a former electronics specialist in the state lab. According to the Post article, he became worried about the machines’ certifications after a supervisor instructed three people who were not technicians and two of whom were not state employees to calibrate and validate the machines and then sign his name on the certification forms. Barnhill also questions the state investigation results because they didn’t even talk to him.

It is suspicious because some recent certificates are showing a former laboratory director’s signature but the problem is she’s been gone from the CDPHE since July 2015. Believe it or not, those problem certificates are being used in DUI trials to show machines were recording accurate blood-alcohol content (BAC). The Post article explains that under these circumstances the President of the Colorado Criminal Defense Bar Darren Cantor questions whether the CDPHE lab can realistically testify to the truthfulness of their machines in a court of law.

The lawyers, judges, and juries use the results of alcohol breath tests when deciding charges, verdicts, and punishments. Under Colorado law, no expert needs to testify about a breathalyzer test machine’s accuracy, instead, these certificates themselves are the sole proof relied on during a trial to confirm that the machine is working properly. But perhaps they are not as scientific and reliable as they think.

The defense attorneys point out the correct procedure is to have the breathalyzer machines calibrated and validated by trained technicians, and the certifications signed by the person who conducted those tests.

According to the Post article, Barnhill says in 2013, in a hurry to deploy the machines to police and sheriffs, the state health department’s lab brought in a lawyer and a marketing specialist from the Intoxilyzer 9000’s manufacturer and a department intern to validate and certify them. Barnhill and another technician set up about two dozen of the 165 machines that are sent to each Colorado law enforcement agency. But Jeff Groff who was in charge of the breath alcohol-testing program told them to enter Barnhill’s passcode to operate the machines and then to sign his name to the certifications. Barnhill subsequently quit in 2015.

At least 130 allegedly forged certificates have been found so far.

In late 2015, DUI defense lawyers noticed that the breathalyzer machine certifications used in court cases had the signature of former state health department laboratory director Laura Gillim-Ross on them even though Gillim-Ross had left the agency. This raised questions about the legitimacy of the machines’ certifications. Gillim-Ross says that the signing of the certificates was not her job and she didn’t authorize anyone else to use her electronic signature.

The state health department says Gillim-Ross’ signature is no longer being used and has been removed from all but five or six devices. After discovering the questionable signatures, Colorado defense attorneys began to look into the Intoxilyzer 9000’s rollout in 2013, and they discovered additional potential Barnhill forgeries.

Using the Colorado Open Records Act, the defense attorneys requested the health department’s lab data that shows how a particular machine was validated and to make sure it was scientific and reliable, but those requests were denied. They were told the data had been destroyed. Instead, they received the possibly forged validated certificates.

According to the Post article, the state health department director conducted an internal investigation to see if unqualified people had certified the Intoxilyzer 9000s. The result of the investigation was that the appropriate process had been used and calibrations and verifications were conducted by the appropriate personnel or under their supervision.

The health department revalidates and recertifies them every year.

The Intoxilyzer 9000 and the certificates with the possibly forged former lab director’s signature on them are being challenged in a federal lawsuit against the Louisville Police Department, the state health department, and its employees, and CMI, the company that makes the Intoxilyzer 9000. In Weld County, 33 DUI cases were dismissed after they showed an Intoxilyzer 9000 was recording blood-alcohol levels higher than they actually were and the machine’s calibrations were off. Other cases are being challenged as well.

There is uncertainty in the Denver DUI laws, forgery allegations create doubt. Our attorneys at the Law Office of Joseph W. Galera are dedicated to helping our clients achieve their legal goals. We are available to help you with your legal questions. The firm is here to protect your rights and serve as an advocate for your needs. If you have been convicted of a DUI during the contested time frame, contact our office.

March 28, 2017

Employment Law and the WARN Act in Colorado

Employment Law and the WARN Act in ColoradoIf you have questions about employment law and the WARN Act in Colorado, the Law Office of Joseph W. Galera in Denver, can give you the information you are looking for. We are always dedicated to helping you achieve your goals. We are here to protect your rights and serve as an advocate for your legal needs.

What is a WARN?

According to the U.S. Department of Labor Employment and Training Administration (DOLETA), the Worker Readjustment and Retraining Notification Act (WARN) is a law that protects workers, their families, and communities from the impact of mass layoffs by requiring employers give a 60-day notice of plant closings mass layoffs and sometimes the sale of a business. There are some exceptions.

The notice must be given to either the affected workers or their representatives like a labor union; to the Colorado dislocated workers unit; and to the local government. The WARN notification must be specific and in writing. If employers don’t provide adequate notice to employees, it can result in prosecution and penalties.

The Worker Adjustment and Retraining Notification Act is Public Law 100-379 (29 U.S.C. 210l, et seq.) The Department of Labor published final regulations on 4/20/89 in the Federal Register (Vol. 54, No. 75). The regulations can be found at 20 CFR Part 639.

The Worker Adjustment and Retraining Notification Act (WARN) was enacted on August 4, 1988, and became effective on February 4, 1989.

When do employers need to give a WARN notice?

Events that trigger a WARN notice to be filed include mass layoffs, plant closings, and sometimes the sale of a business, although some exceptions apply.

When are employers affected by WARN?

Employers who have 100 or more employees (not including employees who have worked fewer than 6 months in the last 12 months and employees who work only an average of less than 20 hours a week) are covered by WARN.

They are covered by WARN if they are a private, for-profit employer, or a private, nonprofit employer. In addition, they are covered if they are a public or quasi-public entity which operates in a commercial context and are organized separately from the regular government.

If federal, state, and local government entities provide public services, they are not covered.

What employees are covered?

If you are an hourly or salaried employee, or a managerial or supervisory employee you will get a notice under WARN. Business partners will not get a notice.

What do employers have to give notice about?

According to DOLETA, you have to give a WARN notice about plant closings and mass layoffs and sometimes the sale of a business.

For plant closings, an employer must give notice if an employment site will be shut down, and will cause an employment loss for 50 or more employees during any 30-day period. Some employees are excluded from the count.

For mass layoffs, an employer must give notice if there will be a mass layoff which does not result from a plant closing, but which will result in an employment loss at the employment site during any 30-day period for 500 and up employees, or for 50-499 employees if they are at least 33% of the employer's active workforce. Some employees are excluded from the count.

Under certain circumstances, job losses within any 90-day period will also count toward WARN threshold levels unless the employer demonstrates that the employment losses during the 90-day period are the result of separate and distinct actions and causes.

How does the sale of a business trigger a notice?

If there is a sale of part or all of a business, the seller is responsible for providing notice of any plant closing or mass layoff which happens up to and including the date and time of the business sale. The buyer of the business has to provide notice of any plant closing or mass layoff that occurs after the date and time of the sale. However, no notice is required if the sale does not result in a covered plant closing or mass layoff.

What does employment loss mean?

An employment termination, but not a discharge for cause, voluntary departure, or retirement; a layoff exceeding 6 months; or a reduction in an employee's hours of work greater than 50 percent in each month of any 6-month period is considered an employment loss. There are some exceptions regarding employee transfers.

What exemptions are included?

The DOLETA sets out that no notice is needed if a plant closing is a temporary facility, or if the closing or mass layoff is the result of the completion of a particular project or undertaking.

No notice is needed to strikers or to workers who are part of the bargaining unit which is involved in the labor negotiations that led to a lockout when the strike or lockout is equivalent to a plant closing or mass layoff.

No notice is required when permanently replacing a person who is an economic striker.

Who will get the WARN notice?

The employer gives the written notice to the chief elected officer of the exclusive representative or bargaining agency of the employees and to unrepresented employees who can reasonably expect to experience an employment loss. The employer must also provide notice to the Colorado dislocated worker unit and to the chief elected official of the unit of local government in which the employment site is located.

What is the notification period?

The notice must reach the employees at least 60 days before the closing or layoff. There are exceptions for a faltering company, unforeseeable business circumstances, and natural disasters.

What are the penalties for an employer who violates the WARN Act?

An employer is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days.

If an employer does not notify the local government, they can receive a civil penalty not to exceed $500 for each day of violation.

How is the WARN Act enforced?

Employees, representatives of employees, and units of local government may bring individual or class action suits at the US district court.

Where Do I Get More Information About WARN?

For more details about the WARN requirements, contact the Colorado WARN Coordinator: Karen Hoopes at rrteam@state.co.us.

The address is:

Colorado Department of Labor and Employment

Statewide WARN Act Coordinator,

Attn: Karen Hoopes

633 17 Street, Suite 700

Denver, Colorado 80202

The WARN website is:

https://www.doleta.gov/programs/factsht/warn.html.

One of our specialties at the Law Office of Joseph W. Galera in Denver is employment law, and we are available to assist with any issues regarding the WARN Act in Colorado. We understand the kind of stress and disruption legal matters can have on your life. We are on your side and will help you get through whatever legal issues you might have.

February 14, 2017

New Marijuana Laws 2017 Colorado

New Marijuana Laws for 2017 in ColoradoHere at the Law Office of Joseph W. Galera in Denver, we know that the legal struggle between the federal government and Colorado marijuana laws may intensify under the new Trump administration. To keep our state law from clashing with federal law, the state legislature will be debating some new Colorado marijuana laws for 2017.

Among others things, these potential new laws will try to stop pot that’s been legally grown here in Colorado from being sold illegally on the black market. We know that these unique legal issues between state and federal law, as well as the fact that the marijuana laws are in the state constitution, will present some extreme conflicts in legal interpretation and enforcement. If you have concerns or feel your rights have been denied, please contact our office.

According to an article in The Cannabist, the proponents of these changes are worried that since Colorado’s laws allow people to grow pot without a license, it has created a successful network of illegal growers. Under Colorado law, if you are a medical marijuana patient, you are allowed to grow up to 99 plants. If you are a Colorado recreational user, you are allowed to group your allotted six plants into big co-ops, creating large greenhouses of pot plants that are possibly skirting the law, not being tracked or taxed and some say selling on the black market.

Colorado’s Governor John Hickenlooper says the problem is the law’s large per-person pot allowance makes it extremely difficult for police officers to distinguish Colorado’s legitimate growers from the black market ones. Hickenlooper wants to pass several new laws to close that gap, in order to shut down illegal black market marijuana growers. Some of the new law proposals include eliminating the group or co-op recreational pot greenhouses and requiring additional paperwork for people who are growing pot for medical purposes.

Regulating and enforcing Colorado’s personal marijuana growing laws can be difficult. With the uncertainty about how the new administration in Washington will view Colorado’s marijuana laws, Colorado state regulators are pushing these changes to tighten the laws on those who are growing outside the law. The new laws are intended to prevent Colorado’s legal weed from illegally ending up in other states.

Nebraska and Oklahoma complain that Colorado’s marijuana laws violate their states’ sovereignty and they are forced to spend more time and money arresting, incarcerating, and prosecuting people bringing pot into their states from Colorado. The attorney generals from both states have asked to be a part of a lawsuit brought by some Colorado sheriffs and another lawsuit that was brought by people who live next to a rural property in Colorado where marijuana is grown. Nebraska and Oklahoma argue that federal laws criminalizing marijuana should override Colorado’s marijuana law. Although the federal trial court judges in Colorado dismissed both cases, they were consolidated into one case and are now on appeal.

A Denver Post article discusses doctors who have recommended marijuana grows of at least 75 plants to more than 1,500 patients, suggesting this kind of legal abundance of pot may lead to an illegal black market. The Post says as of last May, state records show that 478 patients had recommendations for more than 75 marijuana plants. Another 1,324 patients have been recommended to grow between 50 to 75 plants. More than 2,200 have permission to grow between 26 and 50 plants.

There were six large criminal raids in the last couple of years in Colorado, pointing to black market pot dealers who are exploiting our state’s pot laws. In one of the raids, federal agents and local law enforcement worked together to reveal a dozen homes in Colorado’s southeast that were planning on taking 22,400 pounds of marijuana out of state.

Governor Hickenlooper’s ideas for new marijuana laws for 2017 in Colorado were laid out prior to this legislative session. His plan includes a statewide 12-plant limit in private homes. Some opponents complain this proposed limit is too restrictive, but others point out that California has a six-plant list and Washington has a four-plant limit before they have to register with the state. Some cities, like Denver and Colorado Springs, have already set a 12-plant limit.

Opponents of the 12-plant cap point out that both of Colorado’s constitutional amendments passed by voters dealing with marijuana (Amendment 20 in 2000 for medical uses and Amendment 64 in 2012 for recreational uses) give each adult the right to have six marijuana plants. The problem with a 12-plant limit per household is that if more than two adults live in the house, they do not have the right to harvest their six plants despite the constitution allowing it.

Hickenlooper has also proposed an end to the co-op recreational growing operations and to make marrijanna caregivers keep track of their plants and where they end up.

It’s been difficult in the past to crack down on marijuana caregivers because Colorado’s marijuana laws are in the state constitution. So, opponents argue they have a constitutional right to the higher plant limits and to designate others to grow plants for them for medical purposes.

Marijuana activists in the state claim these proposed changes are nothing more than an attempt to collect more taxes by making it harder to grow pot, forcing them to buy marijuana from the stores that charge taxes.

Some limits were recently approved requiring caregivers to register with the state. This came in response to complaints from law enforcement because officers have no way of knowing whether a pot grower is actually growing for real medical patients.

The legal struggle between the federal government and Colorado is not going to go away even with the proposed new marijuana laws for 2017 in Colorado. Our legal team at The Law Office of Joseph W. Galera in Denver knows how this can be confusing. If you want to make sure you are following the law or you feel the enforcement of this law has violated your rights, contact our office. We will fight on your behalf.

January 12, 2017

New Colorado Laws for 2017 that Deal with Employment

New Colorado Laws for 2017 that Deal with EmploymentLaws are constantly changing. That’s why, if you need help understanding the new Colorado laws for 2017 that deal with employment, our legal team at the Law Office of Joseph W. Galera in Denver is ready to help you. We provide skilled and effective advocacy dealing with employment law, as well as DUI, criminal law, civil rights, and discrimination.

Several recent changes in Colorado laws affect employment in Colorado.

Increases in Colorado State Minimum Wage

According to the Colorado Department of Labor and Employment, the Division of Labor Standards and Statistics has adopted Colorado Minimum Wage Order Number 33 which goes into effect this month through the end of the year. It increases the minimum wage for Colorado workers in 2017 from $8.31 an hour to $9.30 per hour. It should also be noted that for tipped employees, no more than $3.02 per hour in tip income may be used to offset minimum wage.

Colorado's minimum wage will now be increased every year by $0.90 each January 1 until it reaches $12 per hour effective January 2020. After that, it will be adjusted each year for cost of living increases, as measured by the Consumer Price Index used for Colorado.

Here’s how it works according to Section 15 of Article XVIII of the Colorado Constitution. If either of the following two situations applies to an employee, then they are entitled to the $9.30 state minimum wage or the $6.28 state tipped employee minimum wage, effective January 1:

  • The employee is covered by the minimum wage provisions of the Colorado Minimum Wage Order
  • The employee is covered by the minimum wage provisions of the Fair Labor Standards Act

 

Employers covered by the Wage Order are required to post the Colorado Minimum Wage Order Poster containing this new information about wages.

Reasonable Accommodations for Pregnancy-Related Health Conditions

Beginning this summer, if an applicant for employment or an employee requests reasonable accommodations because of a health condition due to pregnancy or recovering from childbirth, an employer in Colorado must provide it.

Under certain circumstances, reasonable accommodations may include paid leave, unpaid leave, or the transfer of another employee to a different job to accommodate the employee with the health condition. But there are some limits on the types of accommodations that are required by employers.

Employers must also provide a written notice to employees to inform them of their rights under this new law, and it must be posted in an easily seen place that is accessible to all employees.

The new law also prohibits employers from:

  • Taking adverse action against employees who request such an accommodation
  • Denying employment opportunities based on the need to make such accommodations
  • Imposing an unnecessary accommodation or one that the employee did not request
  • Requiring the employee to take leave if other reasonable accommodations are available

 

State Law No Longer Requires Employment Eligibility Verification

According to the Colorado Department of Labor and Employment, a law effective this summer no longer requires Colorado employers to complete an affirmation of legal work status for employees. However, employers are still required to comply with the federal requirement which is Form I-9, the employment eligibility verification form. (8 U.S.C. sec. 1324a) 

What this means is that Colorado has eliminated the requirement that employers collect and retain state employment verification forms for each new hire. The Colorado General Assembly decided that the state collection requirement was unnecessarily burdening employers because it was a repeat of the federal requirements for the Form I-9 and did nothing additional to ensure legal work status of employees in the state.

Under the new law, the Director of the Colorado Division of Labor still has the right to conduct random audits of employers and to require employers to prove that they have complied with the federal law which requires completion of I-9 forms and employers still have to keep the affirmation forms and copies of I-9 documents for existing employees hired between January 1, 2007, and August 9, 2016, for the duration of the employees’ employment. 

Since 2007, businesses and other organizations hiring people in Colorado have had to comply with the Colorado employment eligibility verification process, requiring employers to verify the legal employment status of all new employees by reviewing and copying the employment eligibility documents required under federal law.

Under the repealed law, Colorado’s Employment-Verification Law, Colorado employers also had to complete the Affirmation Form and retain it with copies of an employee’s identification documents. This form stated that they had:

  • Examined the legal work status of each employee
  • Retained copies of the employee’s identification and employment authorization documents presented for completion of the federal Form I-9
  • Not falsified the employee’s identification documents
  • Not knowingly hired an unauthorized alien

 

Now, Colorado employers no longer have to complete the Colorado Affirmation Form for new employees.

Employee Rights to View Their Personnel File

A new Colorado law makes it easier for employees to look at their personnel file if they want to and request it. Prior to this law, some businesses refused to give employees access to their personnel file and there was no Colorado law saying whether an employer had to allow an employee to inspect his or her own personal file. Of course, many employers did allow employees to request to look at their files under certain conditions.

But now employees can request to look at their personnel file at least once a year and at least one time after their termination. Employers can put some restrictions on an employee’s inspection rights and some employers and employees are excluded from this law.

Laws are always changing and the new Colorado laws for 2017 that deal with employment are now in effect. If you are an employer, you may want to review and make necessary changes to your company policies, as well as update your employee manual based on these laws. If you are an employee and feel your employer is not in compliance, our legal team at the Law Office of Joseph W. Galera in Denver is ready to advise you. Contact us today for a free consultation.

December 16, 2016

Filing an Employment Discrimination Claim in Colorado

Filing an Employment Discrimination Claim in ColoradoIf your employer has discriminated against you and you want help filing an employment discrimination claim in Colorado, contact our legal team at the Law Office of Joseph W. Galera in Denver. First, let’s discuss some of the basics that you should know about Colorado’s employment discrimination law.

According to the Colorado Fair Employment Practices Act, employers can’t discriminate on the basis of race, color, religion, creed, national origin, ancestry, sex, age, sexual orientation, and physical or mental disability. If you fall into one of these categories, you may certainly have a case.

Now, if the business is found liable for discriminating on the basis of one of the protected classes, you can recover economic, non-economic, and punitive damages from them, even if it’s a business with fewer than 15 total employees. The law states that employees can also get attorney’s fees and costs.

Filing an employment discrimination claim in Colorado must be sent through the state administrative agency, Colorado Civil Rights Division (CCRD), or filed with the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies help each other process claims in what is called a work-sharing agreement. You only have to file the claim with one of the agencies and tell them you want to cross-file the claim with the other.

We recommend that if your employer has between 1 and 14 employees, you should file with the CCRD. If your employer has 15 employees or more (20 or more in the case of age discrimination) you should file your claim with the EEOC which enforces federal law.

Many people suggest filing with the CCRD first for all discrimination claims because there are several CCRD offices in Colorado and the CCRD can start investigating quickly.

If you want to know where to file a claim with the CCRD, here is a list of the Colorado offices.

Division of Civil Rights - Main Office

1560 Broadway, Suite 1050 

Denver, CO 80202 

Phone: (303) 894-2997 

Toll-Free (English/Spanish): (800) 262-4845 

Fax: (303) 894-7830 

Grand Junction - Regional Office
222 South 6th Street, Suite 301

Grand Junction, CO 81501

Office Phone: 970.248.7304 
Fax: 303-894-7830

Pueblo - Regional Office

301 North Main Street, Suite 305

Pueblo, CO 81003

Office Phone: 719.542.1298 
Fax: 303-894-7830

If you want to file a claim with the EEOC, you should contact your local EEOC office listed here. 

EEOC — Denver District Office

303 East 17th Avenue 

Suite 410 

Denver, CO 80203 

Phone: 303-866-4000

TTY: 800-669-6820

Once you have filed a claim with the EEOC, you can check the status of your case online. Their website allows you to upload and receive documents as well as communicate with the EEOC, which can help speed up the process. Since September, the EEOC offices are using the Online Charge Status System but it only applies to claims filed after September of this year. 

Some cities and counties in Colorado (including Aspen, Denver and Boulder) have agencies that help enforce local anti-discrimination laws. Many of these ordinances also cover discrimination on the basis of sexual orientation.

Most importantly, file right away with the CCRD and EECO because there are deadlines for filing an employment discrimination claim in Colorado. You must file with the CCRD (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. Your federal claim must be filed with the EEOC (or cross-filed with the state agency) within 300 days of the date you believe you were discriminated against.

When your claim is filed, the EEOC will give you a copy of your claim and your claim number. The EEOC has ten days to send a notice and a copy of the claim to the employer. Then the EEOC may decide to do one of these things:

  • Have you and the employer to take part in a mediation program
  • Ask the employer provide a written answer to your claim, then it will be given to an investigator
  • Dismiss the claim if your charge was not timely filed or if the EEOC doesn’t have jurisdiction

The EEOC’s investigation involves interviewing witnesses and gathering documents. Generally, it takes the EEOC about 6 months to investigate a charge, though it can often be settled in less than 3 months through mediation. Upon completion of the investigation, the EEOC will let both the employee and the employer know the result.

If the EEOC decides that discrimination did not occur then they will send the employee a notice of right to sue. This notice gives them permission to file a lawsuit in a court of law.

If the EEOC determines that discrimination did occur, a voluntary settlement with the employer will try to be reached. If a settlement can’t be reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases) to determine whether or not the agency should file a lawsuit.

In resolving your case, the administrative agency may require you to sign a release of your legal claims. If your case is not resolved by the CCRD or EEOC and you want to continue to pursue the matter, you can pursue your claim in court.

A federal employment discrimination case cannot be filed in court without first going to the EEOC, and having them dismiss your claim or exhaust your administrative remedies. The same is true with your state discrimination claim, you must file with the CCRD first.

There are time limits for pursuing it in court as well. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. A lawsuit based on your state claim must be filed within 90 days of receiving a similar letter from the CCRD. 

When filing an employment discrimination claim in Colorado you need to make sure you know how to file, where to file and all the necessary deadlines. Our attorney at the Law Office of Joseph W. Galera in Denver will make sure your case moves along and will fight for a favorable result for you. Give us a call today for a free consultation to discuss the details of your case.

 

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