Fishing Law

Are Game Warden Checkpoints Legal? Can A Game Warden Really Search My Car?

Are Game Warden Checkpoints Legal? Can A Game Warden Really Search My Car?

Colorado and Kansas game wardens often establish check points to aid in their investigation of possible poaching or hunting violations.  Knowing your rights and defenses to tickets received at a checkpoint is crucial knowledge as a hunter.

Can I hunt private land in Kansas that is not posted? Kansas trespassing, criminal hunting, and written permission laws.

Many hunters from across the nation will be converging on Kansas towns in the coming days for pheasant and quail opening weekend followed quickly by the rifle deer seasons.  While some may have family farms to return to or other private leases to hunt, others will be trying their hand on public lands and looking to find other private land that may be available.  The laws concerning where you can hunt are crucial when looking for that new honey-hole, especially for non-resident hunters unfamiliar with the nuances of Kansas hunting regulations.

Hunters may not hunt private land in Kansas without permission, even if it is not posted.  “Criminal Hunting,” is defined as hunting private land or water without the owner’s permission in statute K.S.A. 21-5810.  If you find private property that does not have signage saying “No Trespassing,” you still must determine the owner and get their permission before hunting the property.  This is different than some states with earlier pheasant seasons that hunters may be accustomed to, such as North Dakota.  Unless the land is clearly posted as public ground, such as Kansas’ “Walk In Hunting Area” land, you must have the permission of the owner before hunting there.

 Purple paint is legally recognized as "No Trespassing" in many states, including Kansas.

Purple paint is legally recognized as "No Trespassing" in many states, including Kansas.

Where property IS posted, hunters in Kansas must carry written permission in their possession while hunting.  Kansas statute K.S.A. 32-1013 states that posted property in Kansas, that has signs saying any variation of “No Trespassing,” “No Hunting,” or “Private Land,” requires all hunters who are on the property to have written permission.  Verbal permission from the owner of the land, no matter how long you’ve known the owner or have hunted the property, is not enough and will result in trespassing tickets for your group. Purple paint on posts, fences, or trees surrounding the property also counts as “posted” property for the purposes of this statute.  Essentially, if there are signs or purple paint on the property you are hunting, you must have written permission to show the game warden if asked.

If you receive a trespassing ticket, you have a few options and should consult with an attorney before simply pleading guilty and paying the fines.  Nate Gilbert, attorney in Colorado and Kansas, grew up in Kansas and has defended trespassing charges for hunters in both Colorado and Kansas.  Drawing on the experience Nate has in dealing with these charges, a consultation with Nate will help you determine your best course of action and whether you have any defenses available.  

Can I Fight a Trespassing Ticket?

Can I Fight a Trespassing Ticket?

Fighting a trespassing ticket can seem like quite an undertaking, but consulting with an attorney is a great place to start to see what options you may have.

Fishing on Private Property in Colorado: A 20 Point Offense

Receiving a ticket for fishing on private property can be a frustrating situation.  Often it is merely a mistake and no real harm was intended and indeed, you may not have even caught a fish, but still receive the violation.  If you receive a fishing violation in Colorado for fishing on private property without permission, you need to speak with an attorney before paying the fine and pleading guilty.

The particular statute governing fishing on private property reads:

C.R.S. 33-6-116. Hunting, trapping, or fishing on private property: (1) It is unlawful for any person to enter upon privately owned land or lands under the control of the state board of land commissioners to hunt or take any wildlife by hunting, trapping, or fishing without first obtaining permission from the owner or person in possession of such land.

Trespassing in Colorado, whether for fishing, hunting, or trapping, results in 20 license suspension points.  20 or more license suspension points in a five year period results in a hearing before the Wildlife Commission and possibly, loss of your hunting, fishing and trapping privileges for the coming seasons.  In essence, a violation for fishing on private property could put your elk hunt this fall in jeopardy. 

If you are on private property, you may wonder how the Colorado Parks and Wildlife officer who issued you the fishing ticket got out there without permission.  CPW officers are allowed onto private property to investigate fishing, hunting, or trapping offenses without permission of the landowner.  There are limits to this power, but CPW officers are given a wide authority on enforcing wildlife statutes.  Additionally, you still have defenses available even if the officer is allowed to be there such as your 4th Amendment rights against unlawful search and seizure.  An attorney can help you determine any defenses that may be available to you.

Finally, trespassing in Colorado is a strict liability crime.  Essentially, it does not matter whether you meant to or not.  Trespassing is an offense regardless of if you crossed onto private property purposefully, or “with intent.”  Again though, this does not mean that just because an officer says you were trespassing, that you do not have defenses to this accusation.  How was the location determined? Where was the officer when he/she saw you allegedly trespass? Is there evidence to the contrary?

If you receive a fishing violation for fishing on private property in Colorado, The Law Office of Nathaniel Gilbert will help review your case and provide a free consultation.  You have nothing to lose by calling an attorney and getting help deciding what your best options will be.  Often, fishing violations are able to be handled for a flat fee with no lengthy hourly billings. Before you just pay the fine and plead guilty, think ahead and talk with an attorney—Your elk hunting buddies will thank you.

"Artificial Fly and Lure Only" Fishing Regulations

Colorado has many fishing areas that have special regulations on the kinds of methods you may use to fish.  One such regulation is that of "Artificial Flies and Lures Only."  In 2014, Colorado Parks and Wildlife Officers gave out nearly 100 tickets for "Fishing With Bait in Fly/Lure Only Water."  If you are cited for fishing with an unlawful bait your first call should be to your attorney for a free consultation on your rights and defenses.  However, let's look a little closer at what exactly this rule means to help avoid this problem in the first place.

 Click here for the 2016 Colorado Fishing Regulations Brochure

Click here for the 2016 Colorado Fishing Regulations Brochure

Bait is defined in the Colorado Parks and Wildlife Regulations as: "any hand-moldable material designed to attract fish by the sense of taste or smell; those devices to which scents or smell attractants have been added or externally applied (regardless if the scent is added in the manufacturing process or applied afterward); scented manufactured fish eggs and traditional organic baits, including but not limited to worms, grubs, crickets, leeches, dough baits or stink baits, insects, crayfish, human food, fish, fish parts or fish eggs."  The definition is unsurprising to most anglers, save for the portion regarding spray attractants.  The trouble here is, for most spray attractants that would be applied to otherwise legal flies or lures would leave very little in the way of identifiable scent for a human (CPW officer) to detect.  You could just receive the ticket based on having the spray attractant visible in your tackle box even if you're not actually using it.  

Artificial flies and lures are defined as: "devices made entirely of, or a combination of, natural or synthetic non-edible, non-scented (regardless if the scent is added in the manufacturing process or applied afterward), materials such as wood, plastic, silicone, rubber, epoxy, glass, hair, metal, feathers, or fiber, designed to attract fish."  Again, the definition is not surprising to most anglers but does give a very bright line rule for fishermen and women to consult and follow.  

If you do receive a ticket for fishing with bait in fly or lure only water, you need to call The Law Office of Nathaniel Gilbert for a 100% free consultation regarding your rights, defenses, and any repercussions that could come from pleading guilty and paying the fine.  Finding out too late that your fishing violation compromised your once in a lifetime elk hunt this fall could be devastating.  

Colorado Fishing Checkpoints To Be In Full Force This Summer

Colorado Parks and Wildlife often set up check stations in order to inspect fishermen in Colorado and their gear, vehicles, and landed fish.  These check points can be set up anywhere, but are most often situated on the roads leading out of popular fishing areas.  While the CPW wardens and officers conducting the check points do have a certain amount of authority, you still retain rights as an individual.

Colorado Revised Statutes 33-6-111 (2) states: The division is authorized to establish check stations, as needed, at locations within the state to aid in the management of wildlife and the enforcement of articles 1 to 6 [of the laws governing hunting and fishing in the state of Colorado]. Persons who encounter check stations, whether in possession of wildlife or not, shall stop and produce licenses issued by the division, firearms, and wildlife for inspection by division personnel. Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars and an assessment of five license suspension points.

When you approach a check station after fishing, you are required to produce your fishing license and any fish you have in your possession.  If you fail to do so, or refuse to do so, you will receive the fines and suspension points as outlined in the statute.  However, officers of the division of Colorado Parks and Wildlife are limited in their power at check stations.  

C.R.S. 33-6-101(1) states that any CPW officer has the authority "to open, enter, and search all places of concealment where he or she has probable cause to believe wildlife held in violation" of the Colorado fishing regulations may be concealed.  This statute applies to both motor vehicles and vessels--Everything from a paddleboard or canoe to trucks, jeeps and RV's.  Once an officer has "probable cause" to believe that some evidence of a fishing violation may have been committed is concealed somewhere in your motor vehicle or vessel, they may search those motor vehicles or vessels.  Refusal to consent to a search is NOT probable cause to search.  You have every right to refuse a search of your motor vehicle or vessel.

If your vehicle or vessel was searched and evidence was found that allegedly indicated a fishing violation or other crime had occurred, you need to consult with an attorney before making any decisions.  The Law Office of Nathaniel Gilbert will take your call and provide a 100% free consultation so there is no downside to calling.   

 

BUI Law: Colorado Boaters Can Receive Boating Under the Influence Charge in Kayaks

Driving Under the Influence, or DUI in Colorado is a traffic offense, Title 42.  This is significant, because the Colorado Department of Revenue and the Department of Motor Vehicles maintain jurisdiction over these charges.  However, “Boating Under the Influence,” is NOT codified in the traffic code but rather under the Colorado Parks and Wildlife, Title 33.  What does this mean for Colorado boaters accused of a “B”UI?

A big distinction between BUI and DUI law is that of the actual “vessel” which the individual is accused of operating under the influence.  For BUI, the statute does not require that the vessel have an engine of any kind.  This leaves the possibility open that an impaired pilot of a craft such as a canoe, kayak, paddleboard, or raft built from twigs and rope can be arrested and charged with Boating Under the Influence.

Additionally, the law for BUI states that any owner or operator of a vessel who knowingly allows the craft to come under the control of someone who is impaired can also be charged with BUI.  This section of the laws on boating under the influence covers the common situation where multiple passengers are allowed to operate the boat. 

Sentencing for Boating Under the Influence can vary, but the statutes state that anyone convicted for a first offense shall be imprisoned in the county jail for at least five (5) days but never for more than a year.  This sentence can be suspended if your attorney and the prosecutor are able to work out an plea bargain where you would complete a substance abuse treatment course or program.  This is not an option with all cases though, and should be discussed with your attorney prior to accepting any kind of plea offer from the State.

Colorado Fishing Tickets: How a $50 summer mistake could put your elk hunting season in jeopardy

Colorado Fishing Tickets: How a $50 summer mistake could put your elk hunting season in jeopardy

Colorado Fishing Violations may seem small and fishermen and anglers may be tempted to plead guilty and pay the fines.  However, the violations could have serious impacts on your ability to hunt in the fall depending on the number of points you will receive on your hunting license.  Hunting and Fishing Violation Attorney Nathaniel Gilbert can help you evaluate your case and find your best route back in the field.

Am I A Colorado Resident?

Am I A Colorado Resident?

Big Game Regulations Brochures are officially out in Colorado and hunters across the state and across the nation will soon start planning their elk, moose, deer, and antelope hunts.  With the number of hunters moving to Colorado growing every day, some newly transplanted outdoorsmen may wonder when they officially become a resident for purposes of Colorado hunting licenses.