Ketosis Defense

Embracing a low-carb diet might result in weight loss and feeling healthier, but it could also get you arrested.

It might sound crazy but it’s true. A low-carb diet can trick a breathalyzer test into producing false results.

Breath tests or breathalyzer tests are administered at the scene of a traffic stop when law enforcement suspects someone of driving under the influence of alcohol. The test measures (often inaccurately) your blood alcohol concentration (BAC). It’s no secret that these tests have a lot of problems, which include producing false results based on various factors. One of the most common problems in recent years especially has been elevated results based on someone’s diet.

DUI Test Results and Ketosis

How can what you eat affect your breathalyzer test results?

To understand how your breathalyzer test results can be falsely elevated based on what you eat, it’s important to understand ketosis.

Ketosis is the condition that occurs when your body turns to its storage of fat because you reduce the amount of carbohydrates you consume. When this occurs, your body produces ketones. Ketones are chemically similar to isopropyl alcohol – which is where the problem with the breathalyzer test comes in. The test checks for alcohol in the blood, but it can’t tell the difference between different alcohols. This means your BAC level could be higher than it is if the test picks up on the ketones in your system.

You could be completely sober and still register as intoxicated on a breathalyzer test.

Symptoms of Ketosis

Breathalyzer test results aren’t the only problem you face when eating a low-carb diet. People who are in ketosis experience many of the same symptoms as someone who has been drinking alcohol. This includes:

• Headache
• Brain fog
• Fatigue
• Nausea
• Bad breath
• Impaired physical ability

Essentially, someone in ketosis could be mistaken as drunk.

Who is affected by falsely elevated BAC results due to ketosis?

Anyone who has lightened their carb intake enough to trigger ketosis is at risk for a false positive on their breathalyzer test results. But most often, this problem for people with diabetes, both type 1 and type 2, and people adhering to a low-carb diet.

This includes Atkins, paleo, and more.

These things don’t guarantee ketosis, but they increase your likelihood. As a matter of fact, some dieters even make ketosis a goal because they know their bodies are burning stored fat, which helps them lose weight.

Unfortunately, without testing the ketones in your urine, you won’t know that you are in ketosis. But if you’re low on carb intake and your BAC test shows an elevated level of alcohol, despite not having any drinks, chances are you are.

Using Ketosis as a Defense

It might seem as if using ketosis as a defense against DUI charges would be an easy way out of your situation, but this isn’t the case. The court will require some proof to back up your defense. But what qualifies as proof of ketosis if you didn’t take a ketone urine test at the same time your breathalyzer test was administered?

Other evidence that can be used to support your claim of ketosis includes:

• An official medical diagnosis of diabetes
• Medical proof of your low-carbohydrate diet
• Receipts showing what you consumed at your last meal(s)
• Statements from people familiar with your dieting habits
• Personal food journal

The medically backed evidence is stronger than the other things on the list, but you could still make a decent argument using any of the above.

What If I Was Drinking?

Can you still use ketosis as a defense against DUI charges if you did have an alcoholic drink or two?

Maybe.

Even with a drink or two, your BAC could still be under the legal limit (usually .08% depending on where you live). But ketones could make it look like you’re over the legal limit. In this case, you’ll use the same defense as you would have had you consumed no alcoholic drinks. The only difference is there were some traces of liquor in your system.

Ketosis has been used more in recent years since low-carb diets have become a legitimate approach to weight loss. If you believe ketosis affected your breathalyzer test results or you want to speak to someone about a drunk driving arrest, David Lindsey can help. Contact him at 303.228.2270 to schedule a free consultation.

Is Sharing Your Passwords a Crime?

Have you ever shared a password with a friend or relative? You aren’t alone. With the increase in streaming video and other online sources of entertainment that require a membership, people across the country are sharing their account information so friends and loved ones can access paid content. Only one person is paying to utilize the service but many people benefit.

Netflix, Amazon Video, Hulu, and more have made it easy for people to take advantage of their services, but is this legal?

According to the interpretation of at least one law, it’s not. But how concerned you should be about the matter varies depending on who you ask.

Several years ago the effort to prevent the illegal download of music led to a world in which the FBI could go after private citizens for what they were doing on their personal computers in their own homes. But these weren’t people who were viewing offensive or illegal content. It wasn’t the content at all – it was how they were acquiring it.

So are we dealing with a similar situation when it comes to video streaming services?

It might be unlikely, due in part to the fact that video streaming services don’t seem overly concerned about the practice, despite losing $500 million a year to password sharing. Netflix even allows you to set up access for different members of your family on one account. The company’s CEO Reed Hastings said people sharing an account hasn’t been a problem for the company.

HBO Chairman and Chief Executive Richard Piepler agrees and stated that even though the company doesn’t encourage password sharing, it’s also not viewed as a big enough problem to warrant the network’s attention.

Computer Fraud and Abuse Act

Of course, the companies’ lackadaisical attitudes concerning password sharing doesn’t mean lawmakers won’t take aim at the practice and do what they can to enforce copyright and patent laws. And should the companies begin to take seriously how much revenue they are losing due to password sharing, they could change their tune.

The Computer Fraud and Abuse Act (CFAA) is an anti-hacking law that, according to critics, could have inadvertently made everyone sharing Netflix passwords a criminal.

Critics of the CFAA say that criminalizing so-called unauthorized access means that the terms of service that apply to software become law. And because terms of service so often include drastic penalties and tend to be very broad, it could end up turning something that everyone does into a serious crime. Lawmakers inadvertently made it possible for someone to go to jail for 20 years for using a person’s Netflix password.

It’s rare, in the American legal system, for contract law violations to result in criminal penalties, which makes this situation even more unusual.

Under CFAA, accessing someone’s computer without that person’s permission is punishable as a felony and because most TOS agreements ban the sharing of login credentials without specifying if this means a specific device or account, the penalties, in theory, could be drastic. “Unauthorized access” has yet to be defined clearly enough for the average person to determine what he or she can or cannot legally do.

And according to those who are following court cases linked to the CFAA, the problem is only going to get more complex as more devices include microchips.

Future of Password Sharing

It’s easy to dismiss the situation as government and law enforcement overreach, considering how many people are participating in the practice of sharing passwords every day. But there might be a reason to be concerned.

Abuses of the CFAA law have happened in the past and the punishments for violating the laws are astounding. The law was originally intended to prevent hacking but could turn just about anyone into a felon. Under the law, the private right of action could make it possible for providers to package huge lawsuits into their terms of service and we’d live in a world where Amazon could sue any time someone accessed his or her Prime account.

If you’d like to learn more about the CFAA, check out this information from the National Association of Criminal Defense Lawyers.

If you’ve been accused of a crime related to password sharing or account or device access, contact David Lindsey to discuss your situation.

Fifth Amendment Constitutional Rights

Most people have heard the term “pleading the fifth.” It is used in television and movies on a regular basis, so most people have some idea what it means. But in reality, what it means to use the Fifth Amendment for protection can be complex and something you need to discuss with an experienced attorney.

“The Fifth” refers to the Fifth Amendment of the US Constitution. The purpose of the Fifth Amendment is to protect people against self-incrimination and prevent a person from having to serve as a witness against themselves. The amendment specifically states, “No person…shall be compelled in any criminal case to be a witness against himself…”

The right to protection against self-incrimination was important as the country was being formed, in part, because of the treatment the Puritans faced in the 1600s under the Church of England. They were often tortured into admitting their religious affiliation and if they refused to do so, they were considered guilty. English laws established to protect them against self-incrimination became part of the laws of the new land.

In a nutshell, pleading the Fifth means that you can’t be forced to say anything that can be used against you and that you cannot be forced to testify if what you would say could be used to argue you are guilty of a crime. Fifth Amendment protections are offered at both the federal and state levels.

The issues related to the Fifth Amendment and your Miranda rights tend to be complicated and can have a huge bearing on your case, so it’s important to discuss your Fifth Amendment rights with your attorney.

How Do I Know I Should Plead the Fifth?

This is an issue that needs to be discussed with your attorney as soon as possible when you are facing criminal charges.

In general, the less you say the better throughout the investigation phase of your case, but when it comes to speaking in court, whether or not it’s a good idea to use the Fifth Amendment varies from case to case.

The Fifth Amendment can prevent you from incriminating yourself while under oath, but it can also have a negative effect on the jury. After all, why wouldn’t a person take the stand and give testimony if he or she were innocent? But this isn’t always the case.

Despite juries being advised not to consider any implications of a defendant taking the fifth, it is human nature to be curious why a person would choose not to publicly defend him or herself. Even if you taking the fifth doesn’t affect them directly, it could have an indirect bearing on their opinion of you. Jurors are told to view it neutrally, but it can still affect the outcome of your case.

How Miranda Rights Grew Out of the Fifth Amendment

When you are arrested you must be read your Miranda Rights. These are things told to you by law enforcement that ensure you are aware of what you can and cannot do. As part of your Miranda Rights, you must be informed that you have the right to remain silent and to have an attorney present for any police questioning.

Miranda Rights are an outcome of the US Supreme Court ruling on the case Miranda v. Arizona. In that case, it was ruled that a person’s Fifth Amendment rights extend beyond the courtroom and apply to anything that involves testimony or personal rights. If you speak to law enforcement and you have not been read your Miranda Rights, anything you say after your arrest could be ruled inadmissible in court.

For a detailed explanation of Miranda Rights and how they affect you if you are arrested, check out this information from MirandaWarning.org.

If you’d like to know more about your Fifth Amendment rights or you have questions about how the Fifth Amendment applies to your case, contact Criminal Defense Attorney David Lindsey for a free consultation.

Punishment for Human Trafficking Crimes

The problem with modern human trafficking in the United States and around the globe has reached an epidemic level and in response, lawmakers continue to update and enact new laws to combat the issue.

Recently, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) into law. The law targets online sex traffickers and makes it possible for prosecutors and victims to file a lawsuit against websites that facilitate criminal activity.

Prior to the law, websites fell under the protection of the Communications Decency Act which protected website owners from any liability involving content posted by users. Critics argued the law is a violation of free speech, but advocates hope it limits the damage that can be done by online traffickers.

FOSTA shut down several sex-oriented sections of different websites and in some cases, shut down entire sites like Backpage.com, which had been accused of facilitating prostitution. Craigslist, one of the internet’s most popular online forums, shut down its missed connections, dating, and personals sections.

To read more about FOSTA, check out this article from The Washington Post.

What Does This Mean for You?

If you own a website that is used for soliciting sex you could be held personally responsible for the actions of users, even if the site was not originally intended for this use. Furthermore, as a customer of a site that is breaking the law, you are at risk.

As a site owner, it’s your responsibility to determine how people are using your site. If you suspect there’s a problem you should speak to an attorney and look for ways to bring your site to within the letter of the law. No matter what type of site you run, if it can be linked to human trafficking you could face criminal charges.

Law enforcement will be evaluating sites more carefully than ever that are linked to the sex industry, so it’s important that, as a site owner, you do all you can to ensure your site falls within proper legal parameters.

What If You Don’t Own a webSite?

Your risk is slightly less if you aren’t a site owner, but any affiliation with a website linked to human trafficking can get you into trouble.

This means that employees and customers of general pornography sites could be put under a microscope. Chances are there won’t be a problem unless you’re breaking the law or you are aware of laws being broken, but it’s still important to be very careful.

If you suspect anything unusual or anything about the activity on a site makes you uncomfortable, it’s better to be safe than sorry – especially if you work for a company that runs the site in question.

Keep in mind, punishments will be harsh if you are connected in any way to human trafficking and until the problem is brought under control, you can expect the trend of aggressive crime fighting to continue.

If you are concerned about a potential link to human trafficking or you have questions about FOSTA, we can help. Contact David Lindsey to schedule a consultation.

What is Computer Crime

As the world continues to become increasingly more computerized and digital, people find themselves in situations they don’t fully understand – especially from a legal standpoint.

Lawmakers are aggressive about keeping up with technology and sometimes, computer crime laws end up affecting people who have done nothing more than make a mistake.

Making matters worse, a conviction of computer crime can result in significant fines and even a prison sentence. This is why it’s so important to contact a criminal defense attorney if you are accused of a computer crime, even if you know you did nothing wrong.

If you’ve been accused of any of the following, you need the guidance and support of an experienced computer crimes attorney:

• Hacking
• Identity theft
• Denial of service attacks
• Credit card fraud
• Violation of pornography laws

Why Do You Need a Defense Attorney Who Understands Computer Crimes?

How can a defense attorney help you if you’re accused of any of the above?

1. Experienced defense attorneys are able to negotiate with prosecutors. This can mean reduced charges and less severe sentence.
2. Criminal attorneys can provide a much-needed glimpse into reality. It’s easy to get so caught up in your perspective of the case that you’ll need someone to explain the likely outcome you’re facing.
3. Defense attorneys have a better shot at collecting witness testimony. People are more likely to talk to defense attorneys or investigators because there is less to fear. You might know you’re innocent, but a witness might not see you that way.
4. Defense attorneys might be able to work with the justice system to create a sentence customized to your needs. This reduces the risk you’ll face further legal action in the future.

Any arrest, especially when it’s linked to a sex crime, can be scary and intimidating. This is especially true if your arrest involves solicitation. But what happens if the law is interpreted in such a way that you’re not only charged with solicitation, you’re also charged with human trafficking?

Why is there a distinction and what is the main difference between human sex trafficking and solicitation?

Defining Solicitation

Solicitation occurs when a request for a sexual act is made. If money is given in exchange for the sexual act, solicitation is a crime. If the solicitation involves an underage child it’s a felony crime. Laws vary from state to state concerning whether the solicitation of an adult is a felony or misdemeanor, but it’s usually a misdemeanor.

Defining Human Trafficking

Human sex trafficking is related and is a sex crime, but it’s generally viewed as more serious. It’s a federal offense no matter the age of the victims or any other factors. Trafficking occurs when someone, often a third party, uses threats, coercion, or tricks to lure someone into prostitution. Victims of sex trafficking are moved from one location to another and typically forced into the sex trade against their will.

Why the Difference Matters

If you find yourself facing charges of solicitation and/or human trafficking, it’s important to understand the difference because the penalties vary a great deal. You can get into trouble for breaking laws related to solicitation, but the punishment is going to be a great deal different than it would be if what you did is construed as trafficking.

Making matters worse, a lot of people confuse the two crimes or assume someone guilty of solicitation must have been involved in trafficking. Unfortunately, blurring the line between these two semi-related crimes hasn’t done anyone any good and can be especially problematic if you’re the one accused of a crime.

Treating solicitation as if it is the same as trafficking can not only hurt those accused of a crime, it can make life more difficult for those involved in sex work voluntarily.

As a matter of fact, that’s one of the key differences between trafficking and sex work: victims of trafficking are just that – victims – who have not chosen their lives. They have been forced into their role and would not continue to do what they are doing if given a choice.

Voluntary sex workers, on the other hand, have not been coerced or threatened into their role. They entered into sex work knowingly and willingly and continue to choose to do what they are doing. And in most places, sex workers are also committing a crime, while those who have been trafficked are not criminals.

This means if you’re accused of solicitation you’re engaging in a crime with someone who has willingly agreed to commit that crime with you. If you’re participating in trafficking, the person or persons being victimized are not participating willingly. Furthermore, you don’t even need to intend to engage in a sex act with the victim to be accused of trafficking.

For a more detailed explanation of how the FBI defines sex trafficking, check out this information on their website.

Every case is different and it’s easy to see why it can be difficult to interpret the law correctly and determine exactly what crimes took place when it comes to sex crimes and trafficking. This is one of the reasons why it’s so important to have an experienced attorney who understands the legal differences between sex trafficking and solicitation working for you if you’re accused of any sex related crime.

If you’ve been accused of either crime and you aren’t sure what to do next, I can help. Contact David Lindsey to schedule a consultation.

Sobriety checkpoints are one tool law enforcement use to keep the country’s roadways safe. They are also a way officers get around search and seizure restrictions.

If everyone is being pulled over and checked for signs of drunk or drugged driving, they need no probable cause and don’t need to worry about evidence being thrown out for being illegally obtained.

Sobriety checkpoints are set up in high traffic areas and allow law enforcement to inspect many people driving through the area. In most cases, these checkpoints are scheduled for times when there is a known increase in drunk or drugged driving, such as over a holiday weekend. Sobriety checkpoints are especially popular on New Year’s Eve, Memorial Day weekend, and Fourth of July. There might also be local events that trigger sobriety checkpoints.

Are Sobriety Checkpoints Legal?

Over the years, since the rise of sobriety checkpoints, people have asserted they are a violation of 4^th Amendment rights, but courts have ruled this isn’t the case, as long as the checkpoints meet certain guidelines, including:

• Checkpoints are arranged at the supervisory level
• Limits are placed on the discretion of field officers
• Checkpoints are safe for both officers and motorists
• Checkpoints must be located at reasonable, effective locations
• Checkpoints must be timed to optimize its effectiveness
• Checkpoints must show indicia of official nature of the roadblock
• Motorists must only be stopped for just a short time to answer basic questions and look for signs of sobriety

There are also courts that have determined that checkpoint locations and times must be publicized in advance.

Those who believe sobriety checkpoints are legal believe the safety of the many outweighs the rights of a few. The Supreme Court ruled a state’s interest in preventing drunk driving is substantial, and despite 4^th Amendment rights being “technically violated,” the violation was worth it.

For a deeper dive into the Supreme Court and the 4th Amendment, check out this article from the Washington Post.

You Still Have Rights at a Sobriety Checkpoint

The good news is even though this violation is legally permitted, you still have rights.

Checkpoints must be set up for a specific period in a specific location. An officer can’t stop you and suddenly decide he or she is creating a sobriety checkpoint. In many cases, you’ll be able to determine the existence of a sobriety checkpoint hours before it begins.

Officers must also treat everyone who travels through the area equally. This doesn’t mean they need to stop every single vehicle, but their actions must be non-discriminatory. For instance, they must stop every vehicle, or every other vehicle, or every fifth vehicle.

Should the checkpoint or any actions taken during the checkpoint be illegal, the charges against you that stem from the stop can be dropped. It’s important you share every detail you can with your attorney because if there was anything untoward during the checkpoint stop, he or she can build a stronger argument in your favor.

Keep in mind, if you find yourself at a checkpoint and you’re concerned about drunk or drugged driving charges, you have the option to not say anything.

Obviously, this could lead to a request to take a field sobriety test, which you can also refuse. There will be consequences to dealing with a sobriety checkpoint this way, but if you’re only other option is to lie to an officer about your alcohol or drug consumption, you’re better off dealing with the fall-out from invoking your 5^th Amendment rights and allowing the court system to do its job.

If you’d like to know more about sobriety checkpoints or you were stopped at a checkpoint and it resulted in charges against you, contact criminal defense lawyer David Lindsey to schedule a consultation.

Explain more simply:

The law imposes weaker punishments on people who only have a small amount of a drug because it is assumed the drug is for personal use.

Having a small amount of an illegal drug is a crime of possession. Larger amounts of the same drug can indicate intent to sell or traffic the drug. It’s important to note: even if you are not actively selling or trafficking the drug, it is still possible for you to be charged with trafficking.

You might have intended to use every last drop of what was found. It won’t matter. It’s not what you actually intended to do, but what the amount of the drug you had implied you might do.

What Constitutes Trafficking?

Most people think of drug traffickers as those who are involved in the transport of significant amounts of a drug. For instance, you might see a picture on the news of large bags of cocaine associated with a trafficking bust.

However, these massive amounts of a drug are not necessarily needed for there to be a trafficking charge. This is especially true when it comes to prescription medications. A person only need be arrested with a few pills without a prescription to face trafficking charges. The difference between a possession and a trafficking charge when it comes to prescription pills is slight.

Consider how many people carry around old, unused bottles of pills because they’ve forgotten about their medication… It’s possible you could be charged with trafficking only because you forgot a pill bottle in your handbag or backpack!

When it comes to illicit drugs – ones for which there is no prescription use – the amount of the drug needed to face a trafficking charge is more significant than with prescription meds, but it’s still not as much as you might think. You can be charged with trafficking with less than 30 grams of cocaine and it only takes 14 grams of meth for there to be a trafficking charge.

This is far less than the rooms full of drugs and weapons we usually see after a bust. Just because you don’t have pounds and pounds of a drug doesn’t mean you won’t be accused of trafficking.

For more information about potential penalties for specific drug crimes, check out this information from the Colorado Judicial Department.

Other Differences between Trafficking and Possession

In addition to the amount of drug in question, there are a few other factors that can play a role in the penalties a person faces when found with drugs illegally.

For instance, trafficking charges can vary in degree based on the substance, where the suspect was arrested, whether or not he or she was in possession of drug paraphernalia in addition to the drug, and whether or not he or she has a criminal history. So, the amount of drug can change the charge from possession to trafficking, but the severity of the punishment can be further reduced or enhanced based on an individual’s specific circumstances.

It’s also important to note that to be charged with possession, you don’t need to have the drug actually on your body. Legally, possession doesn’t mean it’s in your hands or in your pock. If a drug is found in your vehicle or handbag or your home, you can be charged with a crime. Of course, there might be issues with the legality of the search that found the drug that could be called into question by your defense attorney, but that doesn’t affect the initial arrest and charge.

If you have additional questions about the difference between possession and trafficking or you need to speak to someone about drug charges you are facing in state or federal courts, contact criminal defense lawyer David Lindsey to schedule a free consultation.

To understand what a wobbler is, let’s first look at the difference between a felony and a misdemeanor.

Felonies are more serious than misdemeanors and result in stricter penalties. A person convicted of a felony is going to serve a longer sentence than one convicted of a misdemeanor, who at most will serve just a year in jail. In many instances, a person convicted of a misdemeanor will serve no jail time at all and the only penalty will be a fine.

Felonies include crimes such as murder and grand theft, whereas misdemeanors are things like shoplifting or disturbing the peace. Felonies also have long-term consequences, such as losing your second amendment rights, as well as your right to vote or serve on a jury.

To learn more about the long-term consequences of a felony conviction check out this article from Avvo.com.

What Happens When a Crime is a Misdemeanor and a Felony?

There are some circumstances in which a crime doesn’t fall into either category, or it falls into both.

Essentially, it “wobbles” between felony and misdemeanor, and a judge can apply either a felony or misdemeanor punishment. Sometimes it’s the judge’s ruling regarding punishment that determines the categorization of the crime.

Prosecutors have the option of charging a crime that is a wobbler one way or the other, but it’s ultimately up to the judge how the crime is ultimately categorized. This means that even if a wobbler is charged as a felony, the judge has the option of applying a punishment that would reduce the crime to a misdemeanor.

One of the most common reasons a crime that would normally be a misdemeanor ends up being charged as a felony has to do with prior behavior. Let’s say you are involved in a fistfight in a bar, and both you and the other person escape relatively unharmed. Under most circumstances, this would result in misdemeanor assault charges.

However, if you’re a repeat offender and you’ve been convicted of assault a couple of times in the past, and you happened to grab a beer bottle to swing in defense during the fight, you could be looking at felony charges.

Colorado Wobbler Drug Crimes

In Colorado, wobbler laws often apply to drug crimes. The wobbler law was actually added to the books in 2013 to allow some people convicted of drug felonies the opportunity to have the conviction reduced to a misdemeanor following the probationary sentence. The law can be beneficial to someone convicted of certain marijuana offenses, depending on the amount of drug in his or her possession.

To be eligible for application of the wobbler law, a defendant must:

• Be eligible for probation
• Have no prior deferred judgment or diversion for a felony drug charge
• Not have already taken advantage of a prior wobbler
• Have no prior misdemeanor drug convictions reduced from felony charges

The addition of wobbler laws also include new designations related to drug crimes. Individuals in Colorado can now face charges of “drug felonies,” “drug misdemeanors,” and “drug petty offenses,” which means the punishments are typically less severe than they are with other non-drug felonies, misdemeanors, and petty offenses.

If you have questions about how a wobbler works or you’ve been charged with a drug offense and aren’t sure what to do next, we can help. Contact Denver Criminal Defense Lawyer David Lindsey to schedule a free consultation.

If you’re a part of the latter group, you don’t need to worry. But if you’re in the former, there could be cause for concern, depending on the content and recipient of your messages.

For those who don’t know, a “sext” is a text message containing sexually suggestive or graphic material. In many cases, sexts include nude or erotic photographs of the sender. These messages are a techno way to flirt (or harass) taken to the absolute extreme, and the practice has been popular among people of all ages since text messaging on mobile telephones became possible.

For many, sexting is nothing more than keeping the spark alive in their committed relationship. It’s risky, but since you’re doing it with a spouse or long-term love interest, there’s a good chance nothing will ever come of it.

But for others, sexting has ended careers and marriages, brought them great embarrassment, and even resulted in criminal charges.

What turns sexting into a crime?

Much of it depends on the ages of those participating and the type of message being sent.

Sexting Involves the Distribution of Pornographic Materials

You might not think of the photo you send to a friend or loved one is all that problematic. And chances are it won’t be – unless the photo includes pornographic material. Once you transmit a photo that is of you or anyone else without clothing on, you’ve essentially distributed porn.

To learn more about what is legally defined as pornographic, check out this page.

Most people don’t take their sexts all that seriously, but this is one of the reasons it’s so important to consider what you’re doing before you do it when it comes to messaging. Even via text, these messages aren’t 100 percent private, and if the person to whom you’re sending a message chooses to betray your trust, there’s little you can do to protect your privacy. (Revenge porn is being addressed legally, but the laws are still evolving and even the best law in the world does nothing to protect you if it’s ignored.)

Is Sexting Illegal in Colorado?

The good news is sexting, in general, isn’t necessarily illegal – as long as the sender and recipient consent to participating in the exchange and the photo contained in the exchange is of someone over the age of consent.

Sexting becomes criminal when there is someone underage involved.

Colorado does not have a separate law to address sexting between minors, which means any message sent that contains an image of someone underage, even if the sender and/or recipient are underage, is considered no different than if the sender were an adult.

If a teenager is caught creating, distributing, or possessing pornographic images of a minor (even if it’s him or herself) it is a felony. Something that seems relatively innocent (or at least not a predatory adult sending child pornography files) will actually be charged as sexual exploitation of a minor.

Obviously, if it is an adult sending or receiving nude or suggestively suggestive photos of a minor via text or any other electronic transmission, it’s easy to understand why he or she would be guilty of a crime.

But what about teens exchanging messages with one another?

Let’s say your daughter is 15 and sends a photo of herself to her 16-year-old boyfriend. This can still result in felony charges. Furthermore, because you likely own the device on which the sext was sent and you’re responsible for your child’s actions, you too could be held legally accountable and charged with both state and federal crimes.

The penalties for sexting are severe. Juveniles can expect to go through the juvenile justice process, which can ultimately reduce the penalty to house arrest, probation, or a fine, depending on the circumstances. An adult receiving or distributing sexual images of a child can expect to spend at least a year in prison and pay up to $750,000 in fines.

Is It Illegal to Sext?

The bottom line when it comes to sexting?

It’s risky no matter who’s involved.

Even if you are an adult in a committed relationship with another adult and you both agree that exchanging explicit images is fine, you’re taking a risk with your privacy. And if you’re sending images to someone without his or her consent, or you’re interacting with a child or the subject of the photo is a child, you’re breaking the law, even if you’re the child sending pictures of yourself.

If you’ve been accused of sexting crimes, you need the support and guidance of an experienced attorney. To learn more, contact David Lindsey to schedule a free consultation.

There are several ways to do this.

Your criminal defense is a strategic argument designed to “poke holes” in the validity of what the prosecution is saying about you.

Even if you did the things the prosecution said you did, there are ways to defend yourself, so you should never assume that you are “guilty” and you deserve you punishment. There are certainly instances of this, but a defense attorney can help you build a strong defense that results in a less extreme punishment.

You should never put your fate into the hands of a judge or jury without trying to plead your case, even if you’ve done something wrong. Doing so puts you at risk for facing a punishment that is far more severe than the crime you committed.

What Criminal Defense Options are Available?

The most obvious criminal defense and the one most people assume they’ll be using, is to strike down the prosecution’s case against you. You do this by showing whatever evidence they present is false or misleading. This is known as an affirmative defense.

In order to build a successful affirmative defense, you must present evidence in your favor. For instance, if you are accused of rape, you might call on a witness to testify he or she was with you when the rape occurred. The alibi serves as the defense against the prosecution’s accusations.

Pleading Insanity

Another option for building a criminal defense is to admit to having committed the crime for which you are accused, but stating you did so because you were not of sound mind. This is known as the insanity defense.

If you’re using the insanity defense, you’ll need to present convincing evidence that you were suffering from a mental disease or defect at the time the crime occurred.

Using the insanity defense is risky because in order to convince the jury or judge that you were not of sound mind when the crime occurred, you must admit to having committed the crime.

Coercion and Duress

The coercion and duress defense is another that requires you to admit to the crime, but show that you do not deserve to be punished because you had a reason for what you did. In this case, that reason was that you were under the threat of unlawful force. It can be a threat of force against you or someone else.

For instance, if someone tells you that you must rob a bank in order to prevent your spouse from being murdered, you’d likely be able to use the coercion and duress defense.

It should be noted this defense is not an option if you created the circumstances that put you under duress.

Renunciation

Renunciation, also called the Abandonment and Withdrawal defense, acknowledges you had planned to commit a crime or assist someone in a crime, but decided not to do so. You abandoned the crime.

This defense requires you admit intention, then prove you abandoned that intention. You’ll also need to show that your actions did not contribute to the crime.

For instance, if you and another person were planning a crime and you gathered information and shared it with your accomplice, only to then decide not to participate, you could still be found guilty, unless you notified law enforcement in advance of the crime.

Self-Defense

If you are accused of a crime, but your actions were made in an effort to protect yourself, you can argue self-defense. This means that under other circumstances what you did would have been illegal, but because you were under a threat, your actions were only done in an effort to prevent harm.

For more information” about what constitutes self-defense, read this information from Justia.com.

Consent

It’s also possible to argue consent. If you are accused of a crime, but the victim consented to the action, you would use this defense. You’re acknowledging you committed the action, but stating that the victim gave you permission to do so.

Every case is different and there are many ways you can defend yourself against criminal charges. Some are unexpected but convince a judge or jury that you do not deserve to be convicted.

If you’ve been accused of a crime, it’s essential you contact a defense attorney to help you build your case. For more information or to discuss your circumstances with an experienced lawyer, contact David Lindsey to schedule a free consultation.