Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Shannon Young appealed his driving under the influence, fourth or subsequent offense conviction. The Colorado Court of Appeals affirmed the judgment.
In June 2020, Young rear-ended another car stopped at a red light. Two witnesses to the accident told the responding officer they smelled alcohol on Young’s breath when they approached him following the accident, according to the opinion.
Young was charged with one count of DUI, fourth or subsequent offense, and one count of reckless driving based on his field sobriety test and refusal to submit to a blood draw to determine his blood alcohol level.
Before trial, Young moved to suppress his field sobriety tests, asserting his consent to the tests was involuntary because he didn’t know he could refuse to take the tests and evidence of his refusal to take a blood test because the officer failed to offer him a breathalyzer test in violation of the expressed consent statute.
During this stage of the COVID-19 pandemic, the Aurora Police Department enacted a policy to only offer blood draws to determine blood alcohol levels because the risk of transmitting COVID-19 during breathalyzer testing was so high.
The trial court denied Young’s suppression motions. The trial court found, given the circumstances of the COVID-19 pandemic, the Aurora Police Department had valid grounds to suspend the availability of breathalyzer tests under the “extraordinary circumstances” provision of the applicable state law.
The appeals court found the totality of circumstances of the record showed that Young voluntarily consented to take the field sobriety test, and the trial court didn’t err when it denied his motion to suppress the test results.
The appeals court also concluded Aurora Police Department’s policy was a valid response to the extraordinary circumstances of the COVID-19 pandemic, the DUI officer didn’t violate the statute when she asked Young to take a blood test after explaining the extraordinary circumstances and Young’s failure to complete the blood test constituted a refusal.
The appeals court affirmed the judgment.
Juan Gonzalez Morales appealed the district court’s order granting the dismissal motion of Abril Dubbe Meixueiro of a proceeding initiated by Gonzalez Morales under the provisions of the Convention on the Civil Aspects of International Child Abduction. The Colorado Court of Appeals concluded Gonzalez Morales retained sufficient rights of custody to pursue an order in the Colorado jurisdiction, where their child is currently present, for the return of his daughter to Mexico. The appeals court reversed the district court’s conclusion and remanded the case for further proceedings.
Gonzalez Morales and Meixueiro were married in Texas in 2014 and have one daughter, who was born in 2015. Shortly after the child’s birth, the two relocated to Mexico. In September 2019, Gonzalez Morales filed for divorce. In November 2020, a family court in Mexico entered a decree dissolving the marriage.
The decree gave Meixueiro custody and provided Gonzalez Morales with regular parenting time. In early 2021, Gonzalez Morales went to Meixueiro’s home in Chihuahua for his scheduled parenting time and discovered Meixeuiro and the child were missing, according to the opinion.
Gonzalez Morales applied to the Mexican authorities for the return of the child under the Hague Abduction Convention, believing Meixeuiro had left the country with the child.
In June 2021, after Gonzalez Morales learned the child was in Colorado, he filed a petition for the registration and expedited enforcement of a child custody determination pursuant to the Uniform Child-custody Jurisdiction and Enforcement Act in the district court of Garfield County. Gonzalez Morales also sought and obtained a warrant under Colorado state law and the Hague Abduction Convention to take immediate custody of the child and return her to Mexico.
At the hearing, Gonzalez Morales presented his case and Meixeuiro moved for a directed verdict in her favor, contending Gonzalez Morales hadn’t proved he possessed rights of custody sufficient to entitle him to relief under the Hague Abduction Convention.
The district court resolved the motion in Meixeuiro’s favor; it concluded under the decree and Mexican law, Gonzalez Morales didn’t have rights of custody that entitled him to seek the return of the child under the Hague Abduction Convention.
Gonzalez Morales appealed, contending the district court wrongfully granted the mother’s motion because it erroneously concluded the decree didn’t provide him with any “rights of custody” as defined by the Hague Abduction Convention. Specifically, Gonzalez Morales argued the district court erred by relying on Ibarra v. Quintanilla Garcia to hold the decree’s award of custody to Meixeuiro eliminated all rights of custody he had under Mexican law, including rights under the Mexican doctrine of patria potestas.
Meixeuiro argued article 393 of Chihuahua Civil Code, as incorporated into the decree, superseded Gonzalez Morales’ patria potestas rights. The appeals court disagreed.
The appeals court concluded Gonzalez Morales did not surrender patria potestas rights, based the decree’s silence on the issue of and the existence of default patria potestas rights under the law of Chihuahua. Based on this, the appeals court held Gonzalez Morales maintained rights of custody sufficient to pursue an action for the return of the child under the Hague Abduction Convention.
The appeals court also concluded the district court erred when granting Meixeuiro’s motion, because Gonzalez Morales had sufficient rights of custody under the doctrine of patria potestas to maintain a wrongful removal action under the Hague Abduction Convention.
The appeals court reversed the district court’s order, remanded the case for further proceedings, including the completion of Meixeuiro’s presentation of her case in opposition to Gonzalez Morales’ request to return the child to Mexico, and issued an order that includes conclusions of law consistent with the opinion.
In the Matter of the Estate of Ybarra
Raymond Ybarra Jr. appealed a magistrate’s order, entered with required consent, which removed him as the personal representative of his father’s estate and awarded the appellee, his sister Connie Zamora, damages against him for breach of fiduciary duty, conversion and civil theft.
After the magistrate entered her order, Ybarra’s new attorney sought and obtained an extension of time to “review the [c]ourt record and determine whether post-trial relief may be warranted.” Within the extended deadline, Ybarra filed a motion for relief, which the magistrate denied, citing lack of authority.
Ybarra then filed a notice of appeal 110 days after the initial magistrate order. The appeal was 66 days after the extended deadline for post-trial motions and 26 days after the magistrate denied Ybarra’s motion. The opinion noted that based on a 49-day appeal deadline, the appeal was either 61 or 17 days late, depending on whether it was based on the magistrate’s initial order or the extended post-trial motion deadline, respectively.
Ybarra argued the additional time granted by the magistrate’s order made his appeal only 17 days late, which he argued should have been accepted due to excusable neglect. Alternatively, he argued the appeals court should have accepted the appeal under the unique circumstances doctrine. The appeals court rejected both arguments.
The appeals court noted no Colorado case addressed whether obtaining an extension of time to file a post-trial motion tolls the appeal deadline where no cognizable post-trial motion is filed. The appeals court held that it does not, and because of this, Ybarra’s appeal was filed 61 days late and beyond the maximum period allowed for excusable neglect. The appeals court also concluded the unique circumstances don’t justify accepting the appeal.
The appeals court dismissed the appeal for lack of jurisdiction and awarded Zamora her appellate attorney fees and costs, in an amount to be determined by the district court on remand.