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Colorado Criminal Law – When The DA Can’t Plea Bargain – Domestic Violence and DUI Cases

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Colorado Criminal Law – When The DA Can’t Plea Bargain – Domestic Violence and DUI Cases – There are few legal restrictions on the power and authority of a Colorado prosecutor. However, in two areas – Domestic Violence Cases and DUI cases – some of that authority has been removed under Colorado State Law. This can cut either way if you are charged with one or both of these kinds of cases. It makes sense to understand these restrictions.

The Colorado General Assembly long ago placed limits on the right of the Colorado District Attorneys and Trial Judges to plea bargain DUI and Domestic Violence cases. Even though there is a clear constitutional separation of powers between the Legislative Branch, the Judicial Branch and the Executive Branch of State government, when it comes to so called “drunk driving” and domestic violence cases, at least two statutes go far in blurring the lines between those branches.

Some Quick Colorado Constitutional Law – The Separation Of Powers Doctrine

Tens of thousands of DUI and Domestic Violence cases are filed in the Courts of Colorado each year. If you are charged with either of these kinds of crimes you would want the prosecutor of your case to have the same broad authority to settle your case (if you decide not to take the case to trial) as any other Colorado criminal case.

Article III of the Colorado Constitution provides for a separation of powers -functions – between the three branches “departments” of government as they are known in Colorado. The three branches are the legislative, executive, and judicial branches. Because the sheer number of DUI – DWAI and Domestic Violence cases filed in Colorado is enormous (fully at least 1/3 plus of all county court misdemeanors fall into this category) ANY IMPACT on the DA’s or Court’s authority to settle these cases can have nightmarish results.

The DUI Plea Bargain Limitations of 42-4-1301(4) C.R.S.

Under CRS § 42-4-1301(4), a Defendant charged with a DUI in a drunk driving case may only plead guilty to a DUI related charge and NOT to a non-drunk driving crime with very very few excptions

This law prohibits a Judge from accepting a plea of guilty to – say – reckless driving – if that Defendant has been charged with driving while ability impaired (“DWAI”) or Driving Under The Influence (“DUI”) unless the DA/prosecutor can represent to the court that the State’s case is so weak that the State could not even establish a “bare bones” or prima facie case of DWAI.

Here is the relevant law: Section 42-4-1301(4) C.R.S.

…..

(4) No court shall accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or guilty to the offense of UDD from a person charged with DUI or DUI per se; except that the court may accept a plea of guilty to a non-alcohol-related or non-drug-related traffic offense or to UDD upon a good faith representation by the prosecuting attorney that the attorney could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.

The Domestic Violence Plea Bargain Limitations of 18-6-801(3), C.R.S.

Under this Colorado law, Section 18-6-801(3), a Defendant charged with a crime of domestic violence may not plead to a “non-domestic violence crime.” Again, here the State must go on record and represent that the State cannot establish a prima facie case of domestic violence to avoid the mandate of this law.

Here is the relevant law – Section 18-6-801(3) C.R.S.

(3) A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3(1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were currently or formerly involved in an intimate relationship if the defendant were brought to trial on the original domestic violence offense and upon such a finding by the court.

The prosecuting attorney’s record and the court’s findings shall specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons therefor. No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3(1)* unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.

* § 18-6-800.3. Definitions (An Act or Threatened Act of Violence)

(1) “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

Why A DA Might Want To “Deal” (Plea Bargain) A Case

Defendant’s charged with crimes by the police in the form of a ticket – actually WANT the DA to have the power plea bargain an even dismiss a case improperly filed. The power of a district attorney to charge someone with a crime, to plea the case to a different crime, to defer the case using tools such as a deferred judgement and sentence or to dismiss a case outright, is the kind of authority that may actually benefit the person wrongfully accused.

Deputy DA’s in the courtroom are tasked with plea bargaining the vast majority of their cases. They perform this function every day. A DDA might offer a “non-drunk driving” or “non-domestic violence plea” where there is a low likelihood of success at trial. This decision to “deal” the case might be based on evidence that has been suppressed or an alleged victim’s or witnesse’s refusal to testify at trial.

In such a case the DA might plea the case to some other kind of conviction to create “a record” for the defendant but not for the most serious of the original charges. In such a case the Defendant might be willing to “take the plea” rather than risk a conviction on the higher charge at trial.

Sections 42-4-1301(8) and 18-6-801(3), by expressly prohibiting the trial courts from accepting certain plea agreements, greatly impact the authority from the DDA thus taking away the kind of flexibility and discretion that prosecutors require and indirectly hurting the thousands of individuals charged with DUI and Domestic Violence cases each year.

The Impact Of Restricting The Power Of The District Attorney/Prosecutor

When the full authority and discretion of a DA is altered by laws – such as the two described in this article – the options to resolve the case are limited as follows:

Option (1) the Defendant may plead guilty only to a drunk driving or domestic violence crime;

Option (2) the Defendant may be forced to go to trial; or

Option (3) the DA may dismiss the case outright after making a so called “good faith representation” that a prima facie (bare bones) case cannot be made or plea bargain to another charge that is non-DUI or non-domestic violence.

Summary And Conclusion

Before these two laws limited the authority of Judges and District Attorney’s – enacted in the eighties and nineties – the parties to Colorado Domestic Violence and DUI could plead their cases to whatever kind of crime they chose, just as in all other plea bargaining situations. These statutory limitations need to be understood of course, but they also should be repealed for the reasons argued above.

Colorado Criminal Law – When The DA Can’t Plea Bargain – Domestic Violence and DUI Cases

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way Colorado Criminal Law – When The DA Can’t Plea Bargain – Domestic Violence and DUI Cases.

Summary

Article Name

Colorado Criminal Law - When The DA Can’t Plea Bargain - Domestic Violence and DUI Cases

Description

There are few legal restrictions on the power and authority of a Colorado prosecutor. However, in two areas - Domestic Violence Cases and DUI cases - some of that authority has been removed under Colorado State Law. This can cut either way if you are charged with one or both of these kinds of cases. It makes sense.

Author

H. Michael Steinberg