Thursday, January 30, 2014

Enforcing plea agreements.

Most criminal cases are not tried, resolving instead via plea agreement.  Typically criminal charges are reduced or dismissed, or sentencing concessions given, in exchange for a plea of guilty or similar.  Negotiating agreements with prosecutors is an art form, requiring patience, nuance and knowledge.

Plea agreements are interpreted according to contract principles.   Normally, when the prosecution fails to adhere to a plea agreement, the trial court will enforce the prosecution's promise.  Promises a prosecutor makes that are integral to plea dispositions must be kept. 
A plea agreement is more than merely a contract between two parties, and must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due.  These safeguards are embodied in due process principles that require the enforcement of almost all plea agreements in which defendants reasonably and detrimentally rely on prosecutorial promises and fulfill their side of the bargain. 

Determination of the meaning of a plea agreement and whether a party has breached it are matters of law for the trial court (subject to appellate review).  Ambiguities must be construed in favor of the defendant and against the government. 
Where there is detrimental reliance on the prosecution’s (or other government agent’s) promise – i.e. where the defendant has lived up to his or her side of the agreement - the defendant may be entitled to enforcement of the agreement (known as specific performance). 
Procedurally, if the prosecution fails to live up to its end of the agreement, a written motion to the court explaining the agreement, the prosecution's failures, and asking that the agreement be enforced, is in order.  Call Sanderson Law, P.C., 303-444-8846, when you or someone you know needs legal help.

Monday, January 13, 2014

Responding to an SEC Investigation.

The federal Securities and Exchange Commission oversees the nation’s securities markets.  It is well-funded and has the resources aggressively to investigate and enforce alleged violations of the numerous and complex securities laws and regulations.  It has offices around the country including Denver.

Investigations typically start with a letter requesting documents and other information, or (eventually) a subpoena compelling the production of that material and possibly testimony.  Subpoenas can also go out to third-parties, like accountants, former employees, customers and others who may have relevant information. 

 As with most government regulators, the SEC should not be considered merely a neutral fact-finder as it also has enforcement powers – including for example fines, the payback of monies, and far-reaching injunctive relief.

Though typically civil in nature, SEC proceedings can lead to criminal charges at the state and federal level.  The SEC usually gets involved by way of a referral from another law enforcement agency, a tip from some other person, computer-monitored trading practices, and even media reports.  Most cases with the SEC are settled.  However, the closing of an SEC investigation does not in itself preclude the possibility of other civil or criminal actions by other state or federal agencies.

Responding to SEC (and most any regulator) investigations and related proceedings requires a prompt, careful and global strategy.   Experienced, reliable and responsive legal counsel can make a huge difference.  Count on Sanderson Law, P.C., 303-444-8846, to help.

Monday, January 6, 2014

Latest Changes to DUI Driving Penalties

Starting January 1, 2014, the Colorado DUI-related driver’s license consequences have changed (again).  Here are some highlights:

- First offenders (no prior DUIs) over 21 with breath or blood test results under 0.15 face a 9 month revocation and after one month are eligible to drive up to the remaining 8 months with the interlock device installed (requiring a breath test to start the vehicle);

- first offenders over 21 with a result 0.15 or higher face similar consequences except the interlock period is two years and cannot be shortened. 

Cases involving breath/blood test refusal, prior offenses, people under 21 years old, and/or commercial driver’s licenses, implicate additional consequences not readily summed up and can be very fact-specific. 

These days, DUIs are being treated more seriously than ever by MVD, prosecutors and judges.  It is best to retain an experienced lawyer to help you navigate the license and criminal consequences.