With the continued prevalence of pro se parties in courts across Colorado, many may turn to the internet for legal research. Increasingly, people may be asking bots and artificial intelligence platforms legal questions to decide if they need to hire an attorney or to avoid hiring one altogether.
The legal community still seems to be relatively unsure how to ethically and safely leverage AI into regular legal practice but the public may be less wary of the tech when asking for legal assistance. Over the past month, Americans have queried Google and AI add-ons like ChatGPT with a variety of civic and legal questions.
Law Week asked ChatGPT some of our own legal questions, then we asked legal experts in these areas what they thought of the responses from the AI.
Death and Taxes
Ireland Stapleton tax attorney Brian Huebsch told Law Week that the number of pro se litigants in the U.S. Tax Court is greater than 70%. He noted tax law is an area where he sees clients who rely on “Attorney Google” for legal advice that is often wrong.
With tax season quickly approaching again, Huebsch said, “Practically speaking, the real problem I see with using Chat GPT is that there is no citation to authority for where it comes from.”
He said he recognized some of the ChatGPT tax law responses Law Week shared with him as being nearly verbatim from the IRS’s website. He noted that if a taxpayer relies on information directly from the IRS and it’s wrong that it may not change the resulting tax, but that the taxpayer would have an iron-clad defense against any potential penalties. “Or as iron-clad as you can get in these situations,” he added.
When Law Week asked ChatGPT what to do if you made a mistake on your taxes and you’re being audited, the AI gave a few incorrect answers that Huebsch said could be quite harmful to any taxpayer that gets a similar response.
“This one got my blood boiling because, as a tax controversy professional, there is so much in this [response] that is dangerous,” Huebsch warned. “First, depending on the type and magnitude of the ‘mistakes,’ there is potential criminal exposure in the audit. These take extra special care; and the strategy I might employ will vary drastically based on the facts and circumstances we may be dealing with. Handling an audit correctly is an art, not a science.”
First, the AI advised the questioner not to panic and asserted audits are a standard part of the tax process.
“Less than 1% of all filed tax returns are audited — so it is a misrepresentation that it is a ‘standard part of the tax process,’” Huebsch pointed out. “Second, there are very few instances when a taxpayer’s return is randomly selected for audit.”
He added that depending on the magnitude of the mistakes, he may want a client in this scenario to have a healthy dose of fear. “Nobody in this situation should be thinking ‘I can learn everything I need to know to handle this myself by combing the internet,’” Huebsch said.
The AI also advised the asker to correct mistakes in an amended tax return. But Huebsch said that once the IRS opens a return for audit, it won’t process an amended return. “So, don’t waste your time. More importantly, the 1040X is signed under penalties of perjury (just like the 1040), so submitting an amended return could be used as an admission.”
Huebsch cautioned it’s a crime to make false statements to IRS employees. “This is another reason taxpayers shouldn’t represent themselves in an audit,” Huebsch added.
ChatGPT also gave a number of other inaccurate elements in its response, like saying not responding to an audit notice promptly could result in penalties, and saying “honest mistakes” can help you avoid or reduce penalties.
Law Week also asked ChatGPT about paying taxes on offshore accounts or investments. Huebsch said the bulk of that response was simply too general to help anyone more than a qualified tax attorney.
“Tax laws change when certain assets are held offshore,” Huebsch explained. “From 2009 through today, the IRS has had a separate Voluntary Disclosure Program for foreign assets, and the last statistic I saw (maybe 10 years ago) [was that] they had already collected over $5 [billion].”
He added that no one with offshore assets, even certified public accountants, should try to figure tax issues out themselves.
“What keeps me awake at night is not what I know, but what I don’t know,” Huebsch said. “And for laypersons, what they don’t know could fill the Grand Canyon.”
AI Under the Influence
Law Week also asked ChatGPT common DUI questions.
After looking over the responses we got, Denver DUI attorney Jay Tiftickjian said, “I feel like I am reading stock text that has been pulled from DUI lawyer websites written for SEO purposes by non-lawyer marketers.”
Overall, the AI seemed to get almost as many things wrong in its responses for DUI as it did with the tax questions.
Law Week’s first question was if you can refuse a breathalyzer or blood test if you get pulled over for suspicion of DUI. ChatGPT said that refusing one could result in significant penalties even if you aren’t convicted of DUI, but Tiftickjian said this would only be administrative penalties and caselaw doesn’t support criminal penalties for such a refusal.
“[Refusing] can lead to administrative penalties with the DMV/driver’s license, but the US Supreme Court has previously held that a separate crime for refusing a test is invalid and unconstitutional,” he explained.
ChatGPT broadly explained the concept of an implied consent law. Tiftickjian pointed out that in Colorado, it’s an express consent law and law enforcement need probable cause to believe you are driving impaired by alcohol, drugs or both.
The AI also claimed there were exceptions where refusing to take a test may not result in the same penalties. This portion of its answer appeared to be entirely false, according to Tiftickjian. It first claimed if you refuse a breathalyzer or blood test, an officer may allow an alternate form of testing like a urine test. Tiftickjian said Colorado doesn’t typically use urine tests for alcohol testing because they’re not accurate enough, but they may be used for drug testing.
ChatGPT also falsely asserted implied consent laws don’t apply on private property. “This is not true,” Tiftickjian explained. “The DUI laws and express consent apply everywhere in the state except on federal land.”
When Law Week asked ChatGPT about DUI charges, the AI said, “In most states, the legal limit for BAC is 0.08% for drivers over 21. Commercial drivers and drivers under 21 may face stricter limits.”
“Colorado has an impairment inference between 0.051 and 0.079 (DWAI). So, driving with a BAC of 0.051 or more puts a person in the inference of DWAI,” Tiftickjian clarified.
Experts and attorneys have argued for decades over the efficacy and accuracy of breathalyzer tests. The AI stated medical conditions like acid reflux can affect the accuracy of the results. However, a 1999 report by award-winning forensic toxicologist Patrick Harding based on more than a decade of related research and testing seems to debunk that claim. Harding’s research concluded that “naturally occurring compounds in human breath do not significantly affect breath alcohol testing instruments.”
Additionally, a separate study in 1999 by other authors looked at the impacts of gastroesophageal reflux disease, or GERD, in both men and women during breath-alcohol tests. That study, also published by the National Library of Medicine, concluded that “the risk of alcohol erupting from the stomach into the mouth owing to gastric reflux and falsely increasing the result of an evidential breath-alcohol test is highly improbable.”
Immigration In Focus
When Law Week asked the AI system questions about immigration, it returned mostly correct answers but did get a few areas wrong, according to Christine Hernández, a shareholder and the director of the immigration department at Hernandez & Associates.
Law Week asked ChatGPT if someone can be deported if they show up in court to resolve a traffic ticket.
The AI said lawful permanent residents or green card holders may be deported in extreme cases of certain traffic violations. Hernández said this answer was inaccurate or misleading as it does not define what constitutes “extreme cases.”
“I do not agree that only ‘extreme cases’ could potentially lead to deportation for LPRs by appearing in traffic court,” she noted. “Each administration has their list of enforcement priorities for detaining/locating deportable immigrants. DUIs are typically a priority for any administration, which can lead to being detained by ICE while appearing in court, reporting to probation or upon completion of a term of probation.”
Hernández said the risk of deportation will largely depend on the jurisdiction and whether the pending charges, upon conviction, could lead to removability. She explained that some states classify specific traffic violations as “crime[s] involving moral turpitude” which could result in being placed in removal proceedings.
“If you have a prior deportation order, simply appearing in court for a traffic matter could place you at risk of being detained by ICE,” Hernández noted.
“During the Bush administration, ICE routinely appeared in courthouses and reviewed dockets looking for removable individuals regardless of the severity of pending charges,” Hernández said. “During the first Trump administration, programs like Secured Communities and 204g agreements, caused victims to fail to appear in court out of fear of being detained by ICE when they were supposed to testify in court and individuals were being reported by probation to ICE before completing probation. ICE was often waiting in courtrooms to detain immigrants.”
Law Week also asked the AI if you can be deported if you don’t have a green card but your children were born in the U.S.
Hernández noted the portion of the answer Law Week got about provisional waivers was incorrect. The AI said if you have a spouse or child who is a U.S. citizen, you qualify for the waiver and can apply for a green card without leaving the U.S. or facing removal.
“The I-601A Provisional Stateside Waiver is only available to individuals who can demonstrate ‘extreme hardship’ to their LPR/USC spouse or parent,” Hernández corrected. “Furthermore, once your I-601A waiver is approved, you must continue your journey to legal permanent residency, by leaving the U.S. to attend an interview at a U.S. consulate in your home country.”
Hernández also explained that some of the AI’s responses related to deferred action may be out of date or are only true for specific administrations.
“ChatGPT is a great place to start to get general information, but speaking to an experienced immigration attorney will give you individualized advice based on current trends regarding local law enforcement practices and the current administration’s priorities and directives, which is extremely important for anyone to make decisions regarding their family’s immigration needs,” Hernández said.
Personal Injury Queries
Law Week asked ChatGPT if you can sue if you fall in a public parking garage and get injured, mirroring a recent Colorado Supreme Court case that pondered which structures are “buildings” for the purposes of the Colorado Governmental Immunity Act.
Ross Ziev, founding partner of Legal Help In Colorado, told Law Week the AI did a good job of identifying many of the issues related to this question.
“However there are some pitfalls,” Ziev explained. “The AI response does not differentiate the different classes of plaintiff under the premises liability statute. There is a different burden for a trespasser than an invitee or licensee.”
Other problems Ziev identified with the response include ignoring the “should have known” portion of the statute that applies to an invitee, saying negligence is a claim available in this situation when premises liability is the only claim available in this specific scenario and stating the governmental immunity notice was 180 days when Ziev said it’s actually 182 days.
The difference between negligence claims and premises liability seemed to trip up the AI on a question about dog bites too. “If you were attacked by an aggressive dog on the dog’s owner’s property, then negligence is not the correct claim to bring, that claim would be premises liability,” Ziev pointed out.
Editor’s note: Law Week Colorado’s publisher and parent company Circuit Media has had a professional relationship with Hernandez & Associates.