Recht & Kornfeld Blog

In the last several months we have seen many cases of nurses stealing drugs from their hospital employers. This is not a new phenomenon, but rather is getting more attention of late. Professionals are not immune to the epidemic of drug abuse and addiction. However, licensed professionals face far more consequences than individuals without a professional license.

An accusation, and certainly a guilty finding can impact a professional licensure-even permanently. For many, treatment may avoid the worst licensure consequences. More and more, the court system is questioning the purpose of incarcerating a drug addicted individual.

Denver Drug Court is leading the nation in coming up with a solution to this problem.

Drug Court is a program for defendants charged with possession, sale, dispensing, or possession with intent to sell, or manufacturing of a controlled substance in cases involving less than 24 grams or less of a controlled substance. It is a specialized court designed to give offenders incentive to successfully complete treatment and take responsibility over their addiction and recovery. Individuals are almost immediately placed on probation and into a recovery program. They have regular meetings with their probation officer and with the Drug Court magistrate. This is a treatment program where the courts are involved in the recovery of a defendant without the constant threat of incarceration. Drug Court recognizes that addiction is not merely a choice and a probation officer insisting on abstinence of use is not effective.

In the case of nurse Jillian Fischer, charged with six counts of Obtaining a Controlled Substance by Fraud or Deceit, each a class five felony punishable by 1-3 years in prison, her attorney is working on having her admitted to Denver Drug Court. If admitted to the program, she may not even have a conviction when all is said and done. While this may solve the addiction situation and bring a quick end to her criminal charges, the fight with the Board of Nursing is just beginning.

The Larimer County Sheriff’s Office yesterday announced the arrest of an Estes Park high school teacher for Sexual Assault on a Child by One in a Position of Trust. According to the 16 year old student, she and the social studies teacher engaged in sexual conduct one time and she is now two months pregnant with his child.

Few offenses in Colorado are as serious in conduct and penalty as is a sexual assault of any type. In fact, the Legislature would be hard pressed to pass laws increasing the penalty, despite the demands of police and the public, who unfortunately operate with little knowledge of the possible sentences. Larimer County Sheriff’s Department stated the possible sentence for the above offense, if convicted, is up to 12 years in prison. This legal conclusion is patently untrue and incorrect.

In this situation, if the person accused of a crime is in a position of trust, i.e., a parent, coach, teacher, babysitter, etc. and subjects another to sexual contact, and that person is at least 15 years old and less than 18, the crime is punishable by a minimum of 2 to 6 years in prison and subject to indeterminate sentencing. In other words, the judge would sentence the defendant to prison and the Department of Corrections would determine if, and when, the person would ever be released from custody. If the victim is less than 15 years of age, the minimum sentence is 4-12 years in prison and is also indeterminate. Since 1998 when the new sex offender sentencing law was put into place, 1,351 defendants have been sentenced to prison and 8 have been released on parole.

Certainly, in this case, the paternity of the yet unborn child will be a key to the prosecution of the defendant. An aggressive and determined defense is required. The defense attorney will be instrumental in disputing the allegation, challenging the laws, and/or mitigating the offense.

Contact Recht and Kornfeld, P.C. in Denver

A Denver Police officer has been accused of pointing a gun at a local McDonald’s worker when his and another officer’s orders were taking too long to prepare. Any use of a weapon is an extraordinarily serious offense, and one that is often punishable by time in custody. Aurora Police report the officer faces felony menacing and weapons charges.

Felony menacing is a class five felony, punishable by one to three years in the Department of Corrections. In order to be convicted, it must be proven that the officer knowingly placed the clerk in fear of imminent serious bodily injury by the use of a deadly weapon. Even if the officer did not actually have a weapon but simply stated that he did, it is enough to prove the crime.

In the past, District Attorney Carol Chambers has created conflict between her office and the Aurora Police Department for her very hard stand against police misconduct. It is possible the officer will be offered a plea agreement in exchange for waiving his right to trial. It will be the goal of the officer’s attorney to avoid a felony conviction and incarceration. Regardless, it is unlikely the officer will ever be able to work in law enforcement again if he is convicted of any offense, felony or misdemeanor. However, if convicted of the offense of misdemeanor menacing (menacing without a weapon) the law does not preclude him from remaining in his current position.