Monday, June 29, 2020

What is a good plea bargain?

     Most criminal cases plea bargain rather than proceed through trial.  Typically the defendant agrees to admit (more or less) to having committed some crime or crimes in exchange for a reduced sentence (consequences like jail or prison, fines, classes, a criminal history etc.).  The more serious the charged crimes, or the more extensive the defendant's criminal history, the less sentence reduction - the less of a bargain - should be expected.

     So what is a "good" plea bargain?  Here is a general list of the most common plea agreements in descending order of how good a bargain they can be:

1.  Dismissal of all charges with no sentence terms or conditions.  This is rare mainly because once a case is started prosecutors are loathe to dump it.  An overwhelming lack of evidence usually underlies such a dismissal.  Indeed, typically this is less a plea agreement than an acknowledgement by the prosecution that the case should not have been started in the first place.

2.  Deferred prosecution, sometimes called a diversion.  The prosecution agrees to dismiss the case if the defendant timely completes whatever terms or conditions are agreed upon or otherwise required.  The defendant does not admit to having committed any crimes.

3.  Deferred sentence, sometimes called a deferred judgment and sentence (or "DJS").  This is like a diversion except the defendant pleads guilty (or no contest if ok'd by the prosecutor and the judge) to something.  If he or she timely completes the required terms and conditions, that plea is withdrawn and the case dismissed.

4.  Guilty (or no contest) plea to a lesser crime or crimes with lesser/fewer or minimal sentence requirements.  For example, the defendant admits to having committed a crime less or different than the ones charged in exchange for no jail/prison or reduced jail/prison.  This is by far the most common plea agreement.

5.  Open sentence.  The defendant admits to a lesser or different crime or crimes and the sentence is left up to the judge.  Sometimes a sentence "cap" is agreed to whereby for example the sentence won't exceed a certain period of jail or prison time (subject, as with all sentence terms and conditions, to court approval).

     Again, generally speaking, the higher up this list a defendant seeks to climb, the longer (and more expensive) the case will be.  Every case is different and nothing in the law is guaranteed.  The slightest difference can make all the difference.  The more serious the case or the defendant's history, the fewer options.

Monday, June 15, 2020

Dropping criminal charges

Can the "victim" of a crime "drop the charges?"  Short answer is No.

On TV crime shows, you'll often hear the victim of a crime - one might think for example the person assaulted, or robbed, or defrauded, or hurt by whatever crime was committed - say he or she wants to drop the charges, or doesn't want to press charges.  The TV police and prosecution meekly comply, and the case is dismissed.  This is fiction.

Unlike a civil case - where the plaintiff is the victim (the person claiming to be hurt) and the defendant is the person who supposedly did the hurting, in a criminal case the plaintiff is/are the "People" of the city, state or U.S. government doing the prosecuting.

Look at the caption (the title or heading) on any criminal complaint or indictment or other charging document:  It does not name the person we think of as the victim.  That person is not a real party to the proceedings and has no deciding say if or how the case is commenced, prosecuted or resolved.  That decision rests with the prosecuting attorney's office (heavily influenced by the police etc. investigating the matter or who made the arrest), subject sometimes to court approval.

Although various recent so-called victims rights acts or laws mandate the person hurt be kept apprised of or have some say in the case, those laws generally stop short of granting veto power or even a vote.

In conclusion, people don't drop charges, prosecutors do (and rarely at that).

Wednesday, April 1, 2020

Does a pandemic excuse performance of a lease or other contract?

The short answer is Maybe.

Contract law generally seeks to enforce the parties' intent.  For example, parties to a lease agree that in exchange for paying rent the tenant temporarily is entitled to the premises.  Civil courts are available to enforce the parties' rights and responsibilities in the event of a breach (failure to perform).

"Impossibility of performance" is a defense to a breach of contract claim.  In Colorado for example (and typical of most jurisdictions), the doctrine precludes legal responsibility for breach of contract where (1) the defendant's (say, the tenant's) performance of her promise was made impossible as a result of (among other things) an "Act of God" (natural disaster or similar - like a pandemic?), (2) the tenant could not have reasonably foreseen the event, and (3) the tenant did not cause the event.

What is considered "impossible?"  Impossible here means "the contract cannot be performed physically or without violating the law or without incurring extreme and unreasonable difficulty, expense, or risk of injury or loss to persons or property."  Colorado Civil Jury Instruction 30:24.

If the tenant timely gave notice of (and later as necessary proved) impossibility of performance, it might excuse rent payment but not entitle her to remain on the premises - leaving her with the very practical problem of finding another place to live - or automatically result in the mythical security deposit refund.

A basis "of the doctrine of impossibility is the unconscionability of insisting on strict performance [of the lease or other contract] in the light of radically changed circumstances."  Contracts, by Calamari and Perillo, p. 509 (West 1982).  And in these strange times, Who can say how things will go.

Indeed, every situation is different and consulting an experienced attorney wisely is recommended before proceeding in legal matters.  -Sanderson Law, P.C., 303-444-8846.

Wednesday, February 5, 2020

Clearing up an arrest warrant

An arrest warrant is a court issued document directing law enforcement to take into custody for alleged crimes the person named, pending bail and/or an appearance before a judge.  Custody means the local jail.  

Warrants can issue without the suspect knowing.  Often the warrant remains in effect until for example the person is pulled over and notified (possibly issued a summons) or picked up during a routine traffic stop or showing his/her passport for a flight.  The more serious the crimes listed in the warrant, the more likely police actively will be looking for the suspect and arrest him/her anywhere anytime found.  Arrest warrants can lead to searches of the person and/or property and related property seizure (and even forfeiture proceedings).

Calling the clerk of the court believed to have issued a warrant, the local jail, or the local sheriff's office will reveal whether a warrant is pending, the criminal charges, and what (if any) bail bond has been set.  Assuming there is a warrant, best to have the person turn himself/herself in ASAP, early in the morning, early in the week.  This will eliminate the chance of being picked up at an otherwise especially inconvenient time, and maximize the chance of not having to spend a night or weekend in jail.

The turning-in process typically goes like this:  The person walks into the local jail facility and tells reception he/she is there to clear up a warrant.  An officer/deputy will then escort him/her back into a processing room for identification, fingerprints and photographs.  The person is then held at the facility until the bond is squared away and a court date set.  At best it can take an hour or half a day, depending on how busy they are, how staffed they are, how lazy they are, their paperwork requirements etc.  Worst case scenario could mean remaining in custody until brought before a judge either at the jail or the courthouse, or indefinitely if no bail is allowed.  

Try calling the jail ahead of time to learn more about how long its process takes, the nature and amount of any bail bond, and any other particulars.  Other than identification, do not bring anything else.  Do not discuss the case or try to explain anything!  You are there only to clear up the warrant and get your case going.  If you have a lawyer or are in the process of getting one tell the jail personnel that right away.  Keep your lawyer updated.

Warrants don't just go away.  They need to be cleared up, the sooner the better, including so that the underlying criminal charges can be addressed and to avoid unwanted searches and seizures etc.  

Thursday, September 19, 2019

DUI Arrest and Charging Process

DUI Arrest and Charging Process

(from a June 2019 Colorado Division of Criminal Justice report per Colorado House Bill 17-1315, pp. 22-24)

“Generally, an individual is stopped by a [police] officer for a traffic infraction and the officer [claims he/she] observes signs of impairment or recent substance use. Examples of initial observations can include the smell of alcohol or cannabis, the sight of open containers, slurred speech, slowed reaction, or failure to follow instructions. 

Once an officer notices an initial sign of impairment and [believes he/she] has probable cause to suspect impairment, then he/she may ask the individual to voluntarily perform a battery of psychophysical tests and, potentially, a preliminary breath alcohol test (PBAT) if alcohol is the suspected substance of impairment. If other drug impairment is suspected, then the arresting officer may call a [so called] Drug Recognition Expert (DRE) to assist or proceed with toxicological exams.

Under Colorado’s Expressed Consent law, “any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state” is required to provide a chemical sample or lose their license upon refusal if the arresting officer has reasonable grounds to suspect impairment.  The arresting officer will provide the person with a choice of a breath or blood test if alcohol is the suspected impairing substance. Once the choice is made, the person cannot renege and choose the other test.

If the individual has a breath alcohol test result at or above 0.08 or refuses the test, the person’s license is surrendered to law enforcement and the individual has seven days to request a hearing by the Division of Motor Vehicles. However, if the driver chooses a blood test or the officer has reasonable grounds to suspect drug-related impairment and requires a blood test, then the license is not automatically surrendered because the results of a blood test are not readily available. Generally, if the PBAT result is above the per se limit [0.08%), the officer may choose not to test for additional drugs as this is costly [and they likely have enough information for a conviction anyway].

Two possible paths exist when a legal case is initiated.

Misdemeanor.  When the case is being charged as a misdemeanor, the arresting officer completes the Uniform Summons and Complaint form that is generated by the law enforcement agency when the defendant is arrested. The original copy is filed with the court, and copies are given to both the defendant and the district attorney’s (DA’s) office.

[As in any prosecution] [t]he DA can add, amend or dismiss charges, either as part of plea agreement or because such actions better reflect the facts of the case. Because the case is a misdemeanor, the defendant is not entitled to a preliminary hearing. Rather, the defendant will be advised of his/her rights by the judge either while in jail or, if he/she is released on bond before seeing a judge, when he/she returns to court. Thereafter, the case will be set for either an appearance of counsel (for the defendant to hire a lawyer or apply for the services of a public defender) or an arraignment (where the defendant will enter a plea of guilty or not guilty).

If the defendant enters a “not guilty” plea, a trial date will be set and, most of the time, a date to litigate constitutional and/or evidentiary motions will be set prior to trial. If the defendant enters a guilty plea (usually as part of a plea agreement), the court may sentence the defendant immediately or, more likely, will set the case for a sentencing hearing and direct the probation department to meet with the defendant and prepare a pre-sentence investigation report [known as a PSI] in time for the sentencing hearing [usually at least 6 weeks later].

Felony. If the case is being charged as a felony, the law enforcement officer will arrest the defendant and submit a Warrantless Arrest affidavit to the court and to the DA’s office. The judge will advise the defendant of his/her rights, set a bond, and set a return date for filing of charges. If the defendant is unable to post bond, this date will be within three working days. If the defendant is able to post bond, a later date may be set.

If the DA determines that misdemeanor charges are appropriate, a misdemeanor complaint will be filed, and the case will thereafter be treated as a misdemeanor. Otherwise, the case will continue to be treated as a felony.

Once the defendant obtains or waives counsel, the case will be set for a preliminary hearing in the county court. Meanwhile, the DA and the defense attorney may negotiate an agreement. If they agree to a misdemeanor, the preliminary hearing will likely be vacated and a date(s) for entering a plea and sentencing will likely be set in the county court. If they agree to a felony, the case will be bound over to the district court for an arraignment where the defendant will enter a plea.”

x x x

Monday, September 16, 2019

10 stats about DUIs

10 stats about DUIs

        In June 2019 Colorado's Division of Criminal Justice reported to the Colorado General Assembly “specific information relating to,” among other things, alcohol driving tickets (generally the report uses "DUI" to mean either driving under the influence or the lesser while ability impaired) in 2017 (the most recent data).  Here are some of the many interesting facts/statistics:

1.  In that year, there were 26,454 court cases filed statewide with at least one DUI charge (down from 27,244 in 2016).

    2.  Nearly 90% resulted in guilty, with 10% "dismissed."  On average, the time elapsed between case filing and disposition was 173 days.  (For reference, according to the National Association of Criminal Defense Lawyers, "more than 97% of [all] criminal cases [resolve] by plea...."  See the NACDL's Champion magazine, August 2019, p. 17.) 

3.  2/3rds of the cases involved a blood or breath test.

4.  There is a slightly lower "guilty" rate for cases with no blood or breath test (85.2% no test vs. 89.7% with test).  11.8% of cases without a test were dismissed compared with 8.6% with a test.  1.6% of all non-test cases ended in not guilty (categorized in the report as "dismissed, not guilty, diversion, and not proven") versus 0.4% with a test.  

5.  Males 18-20 years old had the highest rate of DUIs per population (curious to the extent they are age prohibited from drinking in the first place).  Overall, males made up nearly 75% of DUI defendants.

6.  Over 1/3rd of all cases involved at least one prior DUI or DWAI.  Nearly 7% had three or more priors.

7.  Cases with no priors averaged a blood alcohol content test result of 0.157% (by statute the DWAI threshold is .05% and the DUI threshold is .08%).  Those with three or more priors averaged 0.191%.

8.  The three most common additional charges associated with DUI were careless driving, lane usage violation, and failure to display proof of insurance.  (Colorado's Division of Highway Safety 1989 "DUI Enforcement Manual" states that, at night, turning with a wide radius and straddling the center or lane marker are the "driving mistakes" most indicative of driving under the influence.) 

9.  DUI cases involving prescription drugs had a lower proportion of guilty, at 61.3%.

10. Most DUI cases (nearly 75%) do not involve a crash.

    Cops typically do not screen for other substances once alcohol over 0.08 is detected (suspected) because, according to the report, they “generally have enough evidence to reliably achieve a conviction.”

        See SLPC’s website “Links and Resources” for the link to the complete 84-page report.


Wednesday, April 17, 2019

Circumstantial Evidence and Bigfoot

     As the jury instruction says, "there are two types of evidence from which you may properly find the truth as to the facts of a case.  One is direct evidence.  The other is circumstantial evidence, that is, the proof of facts from which other facts may reasonably be inferred."

     Prosecutors are quick to point out "the law makes no distinction between direct and circumstantial evidence," although prior to 1973 in Colorado (and most jurisdictions) there was a distinction.  That year the Colorado Supreme Court (following then recent federal case law) changed the law, although two justices disapproved dropping the "long established … protection against the conviction of an innocent person upon wholly circumstantial evidence."  People v. Bennett, 515 P.2d 466, 471 (Colo. 1973) (an early drug war case when courts unfortunately began equating justice with convictions).  

     Prosecutors often give the example of footprints in the snow as circumstantial evidence someone has walked by.  Direct evidence of that fact of course would be an eyewitness.

     Defense attorneys try to explain that circumstantial evidence is not as good as direct evidence.  This is especially difficult to do since jurors reasonably think the lack of distinction as instructed makes both types of evidence equally good, when really it is supposed to mean both types are equally good or bad.

     Take the footprint example - they don't necessarily tell you when, or who, or why someone walked by - or if they were going forward or backwards, carrying something or someone, whether someone followed in them, etc., etc.  An eyewitness could tell you more of those things.

     To experienced defense attorneys, the more a prosecutor talks about circumstantial evidence the weaker the prosecution's case.

     Remember this:  circumstantial evidence is used to prove the existence of Bigfoot (footprints), the Easter Bunny (chocolate eggs in your backyard) AND Santa Claus (presents under the tree).  It is also used to convict the innocent.

     So, when you hear someone talking about circumstantial evidence proving, or confirming or suggesting something, be wary.