H. Michael Steinberg has 36 years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Understanding Deferred Judgments in DUI Cases Under Colorado Law

Understanding Deferred Judgments in DUI Cases Under Colorado LawBy H. Michael Steinberg Colorado DUI Criminal Defense Lawyer

Introduction

Other than an immediate and complete dismissal of a case, a Colorado deferred judgment and sentence (DJ and S) plea bargain is the gold standard for all plea bargains. The only superior plea bargain offer that exists, a diversion offer, is rarely offered in a Colorado criminal cases.

This article explains a plea bargain to a “DJ and S” in Colorado DUI cases.

What IS a Deferred Judgment and Sentence Plea Bargain?

Colorado deferred judgments are governed by law (a statute) C.R.S. section 18-1.3-102.

A deferred judgment and sentence occurs when a defendant pleads guilty, meaning that they admit guilt to the crime charged in open court but the actual conviction on their record is, well, deferred – in other words, the person is neither convicted nor are they sentenced at the time the plea enters.

Instead, they are required to complete the conditions of the D J, and S.

Defendants are given a certain amount of time to complete these conditions. If the defendant completes all of the conditions within the allotted time, the conviction never enters. The benefit of a deferred judgment is that the “judgment” i.e the conviction does not enter unless and until the court determines that the defendant has violated the conditions of the deferred judgment and sentence.

If there is a violation of the conditions of the deferred judgment, with one exception, the trial court must enter a judgment of conviction and then impose a sentence.

The main benefit of the successful completion of the terms of the deferred judgment, is that the guilty plea is withdrawn and the case is dismissed with prejudice (it cannot be re-filed). Following a successfully completed and dismissed deferred judgment, the defendant has the right to petition to seal records under the ‘completely dismissed’ category the Colorado sealing statute.

Of course, in addition to the dismissal of their case, a person charged with any crime wants the case, and all of the records associated with their case,  be sealed upon the successful completion of the deferred period.

Sealing the case means any criminal history relating to the case is removed – cleared from their criminal history.

Under Colorado law, when criminal cases are “sealed,” a defendant is permitted to legally deny the case was ever brought and can state that no such case or record ever existed.

Importantly, this benefit, the right to seal the record, does NOT apply to deferred judgments in Colorado DUI cases.

DUI’s that are Dismissed within a Colorado Deferred Judgment and Sentence Agreement are NOT Sealable Under Colorado Law

A deferred judgment plea bargain offer from a district attorney in a Colorado DUI case is unequivocal evidence to any experienced criminal defense lawyer that the district attorney has a weak case. Otherwise, the offer of a deferred judgment would never be conveyed. Acceptance of the plea bargain offer means that a trial will never occur.

A defendant charged with DUI in Colorado must seriously weigh the decision to accept a deferred judgment and sentence offer in their DUI case. Accompanying acceptance of this kind of offer is the risk that a violation of the deferred judgment could lead to a revocation of the deferred “contract” leading to a permanent conviction.

Furthermore, under Colorado law, a plea of guilty entered pursuant to the deferred sentence statute in a DUI case triggers the same counseling and treatment requirements as would a conviction. This means that when a defendant enters into a deferred judgment and sentence, they must still complete the same drug or alcohol offender classes and therapy, the public service hours, MADD (or Victim Impact) panel requirement and other rehabilitation requirements, pay expenses and conditions that are applied to a probationary DUI sentence.

The only difference between a deferred judgment and sentence and a straight plea… is, as explained, at the end of the deferred sentence “contract,” if all conditions are met, the case is dismissed with prejudice (can never be refiled.)

The Decision to Go To Trial

Alternatively, if a DUI case goes to trial, and the defendant is acquitted, there IS no conviction. No conviction means no probation sentence and therefore none of the many requirements that are ordered as conditions of probation in the case of a deferred judgment – the case is terminated. It is over.

DJ and S offers are, in most Colorado criminal cases, almost always accepted by the defense. This is because they are “sure things” as long as the defendant cooperates with the conditions of their deferred sentence.

The purpose of this article is to fully inform anyone charged with a Colorado DUI, DUID or DWAI crime of the hidden dangers and potential repercussions associated with the decision to accept a DJ and S sentence under Colorado law.

If, after, the successful completion of a DJ and S to a DUI charge, the conviction cannot be “erased” by a Petition to Seal – why should anyone even seek a deferred? If the state has such a weak case that the district attorney’s offer is a deferred judgment and sentence, taking the case to trial may actually be the better option.

Let’s examine this decision: to accept or reject a deferred judgment and sentence offer (if one is made) in light of a close analysis of all sides of the decision under Colorado law.

A Deferred Judgment in DUI Cases Operates Differently than in Other Colorado Criminal Cases – No Right – No Way to Seal the Case

As noted, the primary reason most people seek a deferred sentence over a straight plea and probationary sentence is the ability to clear their record of the crime charged. Also, as discussed above, when a case is “sealed” under Colorado law, the entry on your criminal history is removed, with very few exceptions, and cannot be accessed in the public record.

Under Colorado’s sealing statute, a person is eligible to seek the sealing of arrest and criminal records, other than those relating to “convictions,” in three situations:

(1) when the person was not charged,
(2) when the person was acquitted, or
(3) when the case was completely dismissed.

                                                       § 24–72–308(1)(a)(I), C.R.S.

However, a Colorado court may not seal criminal records pertaining to a “conviction” for:

(1) violations of section 42–4–1301(1) or (2), (DUI cases – alcohol and drug-related driving offenses;
(2) sexual offenses; or
(3) driving offenses committed by the holder of a commercial driver’s license.
                                          § 24–72–308(3)(a)(III), (c), (e), C.R.S.

Deferred sentence agreements in DUI cases are not eligible to be sealed, even after successful completion of the sentence and withdrawal of the guilty plea. Under the above Colorado law, a successfully completed deferred judgment still constitutes a “conviction” and therefore, by operation of law, cannot be sealed pursuant to section 24–72–308, C.R.S.

The bottom line is that a defendant who successfully completes their DJ and S in a DUI case (DUID/DWAI) still cannot seal their record- the DUI case will still appear in public record searches.

How is this Possible?

How Can a Successfully Completed Deferred Judgment and Sentence be Interpreted as a Conviction for the Colorado Sealing Statute?

Under the legal contortions of Colorado criminal law, a “conviction” depends on the particular statute in which the term is used.

Colorado’s DUI statutory scheme defines a “conviction” in the penalty section of the DUI statute. That definition provides that a “conviction” includes “having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.” § 42–4–1307(2)(a), C.R.S.2012.

This definition of “conviction,” found in the DUI penalty statute, is in direct conflict with Colorado’s sealing statute.

Believe it or not, the meaning of the word “conviction” depends on the statute in which the word is used. The penalty section of Colorado’s DUI law and the Colorado sealing statute contains a different statutory definition of what is considered a “conviction” that can be sealed.

In short, the laws conflict.

Reconciling the two laws was the result of some questionable reasoning on the part of the Colorado Supreme Court:

The Colorado Supreme Court has held that the two statutes described  “have different purposes.” The purpose of the sealing statute, generally, is to preserve criminal justice records without harmful effects to individuals.

Conversely, the purpose of the DUI penalty statute is only intended to address sentencing and treatment issues regarding repeat alcohol and drug-related driving offenders. The DUI statute addresses the “need for access to records for alcohol and drug-related driving offenses for which there is a basis of guilt is the concern for public safety.”

The Supreme Court has interpreted the two laws must be read together in the context of overreaching and powerful underlying “public interest policies.”

We assume that, had the legislature intended for the later-enacted definition of “conviction” in the DUI penalty statute to apply to the sealing statute, it would have amended one or the other statute, or both statutes, accordingly. … the statutes do not conflict.

The legislature has separately determined in the sealing statute that, as a matter of law, the public’s safety interest in having available an offender’s alcohol-related driving record outweighs any privacy interest of that offender.

In re Petition of Harte

In sum, the Colorado Supreme Court states that the two statutes do not conflict. The Court found that the state legislator intended that records relating to DUI/DUID/DWAI crimes, even if dismissed, cannot be sealed because it is in the public interest to know about alcohol and drug-related driving offenses and that this public safety interest outweighs the privacy interest of the person who commits these types of crimes.

Summary – Background Checks: How Does This Information Impact My Career When I Apply for a Job?

As noted above, when a case is sealed under Colorado law, if you are asked on an employment application whether you have been convicted of the sealed case, the law permits you to answer – honest and legally supportable-. “no” (under Colorado section 24–72–308(1)(f)(I), C.R.S.)

In the context of the successful dismissal of a Colorado DUI- without a court order sealing the record- even the simplest of background checks would allow a possible future employer to obtain the traffic criminal records and learn of the DUI conviction.

While a person applying for a job may truthfully say they have not been convicted of a DUI, and the case was dismissed following the successful completion of a deferred judgment and sentence- the damage to the applicant will have been done.

The legal distinction between a guilty plea which, by operation of law, is later dismissed as a result of a successfully completed deferred judgment and sentence, is usually “lost” on the recruiter.

The criminal record, which would include the entire investigation, in the absence of a court order to seal the record, remains an open public record.

In practice, this author has found that unfortunately, despite the best efforts of a job applicant trying to parse out the difference between a charge, a conviction, and the operation of a deferred judgment and sentence…. to a recruiter it is a waste of time.

The struggle to provide an adequate explanation of these important, but “nice” distinctions and are unlikely to convince the people that make these decisions.

Compare this result with a fully litigated trial for DUI, and the vindication of a clean acquittal by the jury – a jury that has weighed the evidence and found the accused NOT GUILTY.

This result, while certainly risky, is many times better than taking the deferred judgment and sentence “deal.”


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Never stop fighting – never stop believing in yourself and your right to due process of law.

H. Michael SteinbergABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – 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 of Colorado Criminal Law and his 35 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.

When making a responsible choice to retain a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 35 plus years, H. Michael has studied and written about nearly every area of criminal law, procedure, trial, and courtroom practice. He is passionate about getting the best result in each of the cases he defends.