The Dreaded Deferred Judgment

Often times a prosecutor will offer a deferred judgment and sentence to resolve a case.  Why do I call it the dreaded deferred judgment?  Sometimes it is the best way to resolve a matter and sometimes it is a too good of an offer to reject.  I often say “if you didn’t do the crime, don’t admit guilt.”   Unfortunately, even innocent people get convicted.  The deferred judgment and sentence offer on a winnable trial challenges the most seasoned attorney.

What is a deferred judgment and sentence?   A deferred judgment is an agreement with the district attorney’s office where the defendant admits guilt by pleading guilty to a charge and the sentence is deferred for an agreed upon of time.  After the agreed period of time, if the defendant fulfills any agreed upon requirements,  the district attorney files a motion with the court asking the court to allow the defendant to withdraw the guilty plea and the charge is dismissed.   Just like you won at trial, the charge is dismissed.  During the period of the deferred judgment, the case is unresolved.  The plea has entered but judgment and sentence has been deferred.

Why is that so dreaded?  Sometimes you are absolutely positively not guilty of the charge.  A deferred judgment is hard to reject.  In cases where a defendant has virtually no criminal history and the facts and evidence don’t help your defense, a deferred judgment is a fantastic way to resolve a case.  In the end the charge goes away just like you won at trial.   A deferred judgment is a great way to avoid a felony, domestic violence or drug conviction.  A deferred judgment is a great way to preserve your criminal record.

Deferred judgments are dreaded in cases where the requirements are burdensome. In domestic violence cases, the deferred judgment requires the completion of domestic violence classes which can last up to 36 weeks.   In drug cases, often times the requirements include drug treatment and monitored sobriety.  In theft cases, the payment of restitution is often a requirement.

As an attorney it is difficult to advise a client to reject a deferred judgment.  With a deferred judgment you control the outcome.  You take the power away from the jury and if you complete the requirements, your charge is dismissed.  When you reject a deferred judgment offer, you risk losing your case, losing a clean record and losing the rights that go with losing your case. In felony cases, you risk becoming a felon.  In domestic violence cases, if a prosecutor is willing to give you a deferred judgment, you control whether you will have a domestic violence conviction, which can mean the loss of your gun rights.  In a drug case, you control whether you will have a drug conviction.  In a felony case, you control whether you will be a convicted felon.  There are no certainties when you take a case to trial.  With a deferred judgment you take complete control of the outcome

Whether to take a deferred judgment is always the client’s choice.  If there is any chance of conviction, any evidence pointing towards guilt, any risk of losing at trial, it is always safe to take the deferred judgment, complete the requirements and move on with your life.

It is important to note:  that immigration law considers deferred judgments as convictions for immigration determinations. Deferred judgments to a felony, during the period of the deferred judgment you are subject to impeachment as a felon during legal proceedings.  Domestic Violence deferred judgments you lose your gun rights.  This article is not meant to confer legal advice.  Consult your attorney to determine the consequences of any deferred judgment.

Aggressive Criminal Defense–Answers to many questions regarding aggressive criminal and DUI defense

What is aggressive criminal defense?  

Aggressive criminal defense means you want a lawyer who can analyze the evidence against you, the potential defenses and can piece together a plan to fight the charges in every way possible.

What does Aggressive criminal defense involve?  Getting all the evidence that is admissible in trial.  This means the discovery–the case the prosecution intends against you.  Aggressive defense involves challenging every piece of evidence used against you including  testing scientific evidence and getting experts who can help, interviewing key witnesses, challenging the police conduct in obtaining warrants, obtaining evidence, the police use or misuse of confidential informants.  Aggressive criminal defense involves challenging eye witness testimony or testimony of confidential informants.  Aggressive criminal defense includes trying to get evidence the prosecution intends to use against you suppressed so a jury can’t hear the evidence.   Aggressive criminal defense includes presenting a defense like self defense or other defenses that negate the necessary elements of the charge necessary to find guilt.  Aggressive defense often times means putting the case on a track to go to trial.

What are the advantages to an aggressive defense?  There are many advantages.  You get your day in court. You make the government prove the case beyond a reasonable doubt.  You fight for your innocence.  Remember you are presumed innocent and often times you have to stand up and make the government meet their burden of proving you guilty beyond a reasonable doubt.  Sometimes you have nothing to lose by presenting an aggressive defense.  Weird things happen when you prepare for trial.  Witnesses testimony changes, the police embellish the true evidence or the case against you falls apart for some other reason.  If you are going to spend one day in jail or years in prison you sometimes have nothing to lose.   Often times preparing for trial leads to a dismissal or a drastic reduction in charges.

Are there any disadvantages to an aggressive defense?  There sometimes are disadvantages.  Sometimes the government can easily meet their burden of proving the case beyond a reasonable doubt.  Evidence that hurts your case include–confessions, eye witnesses, DNA evidence, Video surveillance evidence, recordings of a transaction.  Some prosecutors will offer a plea bargain and in some cases the plea bargain is a good idea.  Sure it would be nice to take every case to trial but you must weigh the downside of going to trial.  Cost.  Trial can be expensive.  Experts are not cheap.  Often times the plea baring offered versus the risk of losing at trial helps make the decision whether to proceed to trial.  If you face a mandatory 10 years in prison on a case that there is overwhelming evidence against you, a plea to five years may make sense.  An attorney can mitigate your role in a case where a prosecutor will make the initial plea margin offer better.  An aggressive defense may not be the goal.  Mitigating the harm or potential sentence may be the goal in some cases.

Who or what makes the decision whether to be aggressive?  It is always beneficial to plan for an aggressive defense.  The facts, the evidence against you, the offered plea bargain, the potential defense, the jurisdiction, the case analysis dictates your defense and way to approach a case.  You need to have an attorney who has seen many different fact situations and who can give you insight as to what will work and what won’t work in defending your case.   In murder cases where you face life in prison–you fight every inch.  You have nothing to lose.  In cases where a judge determines how long of a jail or prison sentence, sometimes you want enter a plea agreement where there are maximums the Judge can give you pursuant to an agreement with the prosecution.  Some Judges don’t take caps or any type of sentencing agreement.  An experienced attorney is necessary to navigate through the issues of limiting exposure to sentencing.  Sometimes cost determines how aggressive to fight a case.

In a DUI case what would constitution an aggressive defense?

In most driving under the influence cases there are four pieces of the prosecution case:   The driving, the sensory observations, the field sobriety tests and the chemical test.  An aggressive defense would include gathering all the information regarding the officer and his training.  Making the officer testify regarding why the officer pulled the driver over, what he observed and the way he conducted the field sobriety tests.  An aggressive defense may include an expert to challenge the way the officer conducted the field sobriety tests compared to the way they should have been conducted.  An aggressive duo defense would include gathering all the evidence on the breath machine including logs of previous and subsequent tests, repair records as well as evidence regarding how the test was conducted.  An expert may help in pointing out the breath test can’t be trusted because it conducted incorrectly or the breath machine is faulty.  Sometimes, physiological conditions lead to misleading results and an expert can help explain those conditions including GERD or other reasons the test can’t be trusted.  Some cases can’t be helped by experts.  At the very minimum you have to examine all the evidence, retest at the blood test, find out and question the officer before making the decision to mount an aggressive defense with the use of experts.  The potential cost of losing your license of going to jail, justify going all out on a DUI defense.  The experienced DUI lawyer can guide you through the facts of the case and the potential defenses.

Charged with DUI and Refused the Chemical test?

Colorado law requires you to take a chemical test when requested by law enforcement.  You don’t have to take the test BUT you face serious consequences by refusing a chemical test.  The Department of Motor Vehicles–the people that give you the drivers license may take your license for one year without any type of probationary license.  If you have refused a test and refuse a test a second time, you face losing your license for two years.  Furthermore any revocation of your license based on the results from your case happen consecutively to the refusal revocation.

So what happens in court with the chemical test refusal?

District Attorneys rarely offer plea bargains to people that refused a chemical test.  Fighting the case is your best approach.  At trial the jury is told that the fact that you refused can be used as consciousness of guilt.  Often times the fact you have refused a chemical test can be explained to a jury and jurors do listen.   A DUI case is broken down into four parts.  The driving, the sensory observations by the officer, the field sobriety gymnastics and the results of any chemical test.  Bad driving can be explained.  The officer makes sensory observations that look for intoxication and rarely takes note of observations that show sobriety.  The field sobriety tests are seldom done properly by law enforcement.  The chemical test is the final piece of a driving under the influence investigation.  If you refuse the test, the government gets the advantage of arguing that if the defendant was innocent he had the opportunity to show it and refused.  Not is all lost in refusal cases.  The driving, sensory observations and field sobriety gymnastics can all be explained to a jury.  If the field sobriety tests are completed with little problems,  you have a good shot at beating the refusal case.

How to Choose a Criminal Defense Attorney?

In this day of electronic media, it is even harder to choose the right attorney.  Attorneys with little experience can have a major on-line presence and a slick webpage leaving you with a great impression with little substance.  So what is important in choosing a criminal defense attorney?

1. Experience, Experience and Experience.   You want an attorney who regularly practices criminal defense.  You wouldn’t’ go to a brain surgeon to repair a broken arm.   Long ago, lawyers practiced in many different areas.  Wills and Trusts, Divorce, personal injury, criminal defense, real estate and sometimes even an adoption.  Lawyers were commonly general practitioners.  Similar to the general internal medical doctor who does the whole body.  But when you have a specific problem a general practice doctor sends you to a specialist.   Today,  lawyers concentrate their practice to limited areas.   You want an attorney who has handled your type of case and has been on the battlefield.  The experienced attorney can advise you from the experience of battle wounds.  Doctors receive at least 4 years of on the field training before they enter practice in their field of choice.  Lawyers get their license and are often let loose.  An experienced lawyer can advise you based on what he or she has seen in practice.  There is nothing worst than being advised to proceed to trial on facts that have no business being placed in front of a jury or being advised take a plea bargain when success at trial is very likely.  Experience includes years in practice, number of jury trials and work in a particular jurisdiction.  Having the experience of a jury gone bad, evidence gone bad, familiarity of a jurisdictions likely jurors and facts that appeal to juries makes a huge difference in the advice an experienced attorney will offer.
2. Access to the attorney you choose.  You want to be able to communicate with the attorney you hire.  There are no firms of 100 plus lawyers defending criminally accused.  The relationship with the criminal defense attorney is important.  After all the accused has to tell his or her lawyer pretty intimate information.  You want an attorney who is available to you, returns your calls and shows up to Court.  Sometimes you hire a firm and you don’t know who will be there when the Judge calls the case.
3. A criminal defense attorney you can trust.  You hire an attorney to defend you against the Government who is trying to prove your guilt.  The information the attorney gives you is very important.   While you make  a few key decision in a case, you base your decisions on your attorney’s recommendation.  The accused decides whether to plead guilty or not guilty, whether to testify at trial or remain silent, whether to have a trial to a judge or jury and whether to waive your rights to a speedy trial and in a felony case where you are entitled to a preliminary hearing, whether to waive or proceed to hearing.   These decision must be made the accused and the accused must choose an attorney who he or she is comfortable with in helping him make these important decision.
4. Price.  While price is always a consideration, the lowest priced attorney may be the best attorney or may be what you pay for.  Speak to a few attorneys.  Price is often determined on type of case, complexity of the case, location of the case, years of experience of the lawyer and time it will take for the case to be resolved.   Each case is unique.  An experienced lawyer may have a better idea on what is required to properly defend your case.  Some cases resolve with plea agreements prior to trial and some cases always end up going to trial.  Some lawyers may have little or no experience with your fact pattern and it may be a new journey for the lawyer.  While you may only wish for an attorney to get the best deal, you also want an attorney to make sure your rights are protected.  Having an experienced attorney is very importation.

Richard B. Huttner  limits his practice to criminal defense.  He has been practicing for 18 years and has conducted over 100 jury trials.  Richard B. Huttner has defended over 2500 cases for clients.  Richard B. Huttner handles both misdemeanor and felony cases in most Metro Denver counties including:  Adams, Arapahoe, Boulder,  Broomfield, Douglas, Denver, Gilpin,  and Jefferson Counties.  He practices in most Municipalities including Aurora, Lakewood, Littleton, Englewood, Thornton, Northglenn, Sheridan and Westminster.

The Officer didn’t read me my rights!

I often hear from clients that the officer didn’t read me my rights.  Most of the time, the officers don’t read a person their rights because they are not required to read the rights except under specific circumstances.   What are your rights?   The rights most people know are the rights established in 1966 by the Supreme Court in Miranda v. Arizona. Those rights include the right to remain silent and that anything the person says will be used against that person in court, the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent an attorney will be provided at no cost to represent her or him.

The rights pursuant to Miranda require the police to tell a suspect the rights when the suspect is in custody or under arrest and the suspect is being interrogate or questioned.  Often times police arrest people and don’t tell them the rights pursuant to Miranda v. Arizona because they don’t plan on asking them any questions.  In domestic violence settings, police sidestep the Miranda rights by asking questions prior to taking anybody into custody.  In Driving Under the Influence settings, the officer asks questions during a traffic stop right before the decision to arrest is made so the officer doesn’t tell the suspect the rights.  Questions, like “Have you had anything to drink this evening?”  In other criminal settings the police on the scene often don’t do much investigation so they don’t ask questions.  The patrol officer on the scene let an investigator or detective assigned to the case follow up with any questions.

If you are asked to come to the police station to speak with police, the police often inform a person two things:  1) You are not in custody and 2) The rights pursuant to Miranda.  That covers all the basis when they take a statement.  The police may want to use a statement against you in Court so they want to establish that they advised you of your rights and that you were not in custody so you didn’t need to be advised of your rights.

The right to remain silent is a critical right afforded the accused.  The accused doesn’t have to testify against himself.  A jury cannot infer guilty because the accused has remained silent.   Police will often try to get people to talk any way possible.  The use of  pretextual phone calls is often used where the police listen to a phone call made by a victim in a crime to a suspect trying to get the suspect to admit involvement in the crime.  This investigation method is often used in sex assault and crimes against children cases. The use of these phone calls is perfectly legal.

What if the police have me custody and they take a statement without informing me of my rights? In cases where the police violate the rules of Miranda, the criminal defense lawyer seeks to have any statements suppressed from being used against you at trial.  The issue of suppressing statements made by defendants is cornerstone to the defense in many cases.   The criminal defense lawyer files a motion to suppress statements and the Court holds a hearing where the officer testifies about the statement and how and where it was made.  The prosecutor and defense lawyer make arguments to the Judge and the Judge decides whether the statement can be used against the defendant by the prosecutor at trial.

You have specific rights and law enforcement uses many method to avoid informing you of your rights. If you are being investigated by police you should contact an attorney immediately.

Your Criminal Defense lawyer has the right to confront the Laboratory Technician that does the actual testing of the forensic evidence

The United States Supreme Court extended the right to confront witnesses to the laboratory technicians who examine and test physical evidence that is offered to prove guilt.  Colorado law provided the opportunity to cross examine the technician that supervised the process.  The Supreme Court has extended the right to cross examine the actual technician who did the testing.  This is critical in cases where there is laboratory testing such as Driving Under the Influence cases where blood is tested to determine blood alcohol.   The right extends to DNA testing, fingerprint examination, drug testing and all forms of forensic evidence.  A great victory for Defendants.

NACDL NewsRelease

FOR IMMEDIATE RELEASE

WASHINGTON, DC (June 23, 2011) – The U.S. Supreme Court ruled today that “The Sixth Amendment’s Confrontation Clause confers upon the accused ‘[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.’” And in the context of forensic laboratory reports containing a testimonial certification, a surrogate analyst simply won’t do. In this case of alleged driving while intoxicated, the defendant was denied the opportunity to cross-examine the lab analyst who completed, signed and certified the submitted lab report concerning his blood-alcohol level.

The case is Bullcoming v. New Mexico, No. 09-10876. The National Association of Criminal Defense Lawyers (NACDL), along with the National College for DUI Defense and the New Mexico Criminal Defense Lawyers Association, filed a friend-of-the-court brief in the case. The Court cited NACDL’s amicus brief, and the powerful data set forth in that brief concerning the frequency of laboratory error in blood-alcohol readings, to support its rejection of the argument that “the risk of human error [is] so remote as to be negligible.”

The New Mexico Supreme Court ruled it sufficient that the state produced at trial a different forensic analyst familiar with lab procedures but who had no involvement with Donald Bullcoming’s blood sample investigation and report. By a 5-4 margin, the U.S. Supreme Court today reversed that decision, explicitly holding that “surrogate testimony of that order does not meet the constitutional requirement.” Writing for the majority, Justice Ruth Bader Ginsburg explained, the Confrontation Clause “does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”

Two years ago, almost to the day, the Supreme Court ruled in Melendez-Diaz v. Massachusettsthat a criminal defendant’s right to confront the witness against him includes the right to challenge the testimony of state crime lab technicians through cross-examination of those witnesses. “Today’s decision in Bullcoming further strengthens Sixth Amendment Confrontation Clause jurisprudence, protecting a core right of the accused in the American criminal justice system – the right to confront the specific witnesses against him or her,” said Barbara E. Bergman, a past President of NACDL and a co-author of NACDL’s amicus brief.

NACDL Member and Stanford University law professor, Jeffrey L. Fisher, who also arguedCrawford v. Washington and Melendez-Diaz v. Massachusetts, argued the case for petitioner Donald Bullcoming. Fisher is a director of Stanford’s innovative Supreme Court Litigation Clinic, and is a co-chair of NACDL’s highly-successful Amicus Curiae Committee. Bergman is also a co-chair of the Committee and a professor at the University of New Mexico School of Law.

On the Web:

Supreme Court decision: http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

NACDL’s Amicus Curiae brief:http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Bullcoming_Amicus.pdf

Why Challenging the State’s evidence is important

The article below shows why it is important to hire an experienced criminal defense attorney. Retesting and challenging the evidence is critical.  Whether a blood test in a driving under the influence case or DNA evidence in a sex assault case–the State laboratory makes mistakes, covers their errors and often times are slant the interpretation of the results.

From the Huffington Post–

Private Crime Labs Could Prevent Errors, Analyst Bias: Report

Do I need a Criminal Defense Attorney?

Do I need a criminal defense attorney?

When you face the possibility of going to jail or prison, don’t go to court without an attorney.  The State is represented by the district attorney’s office.  They often make offers or plea bargains to resolve the case without a trial.  Often times the deputy district attorney hasn’t read the file and just reads notes made by a non attorney intern and then makes the  plea bargain.  An experienced criminal defense attorney will make sure the government can meet the burden of proving the case or at least challenge the evidence before agreeing to any plea bargain.   Many times, the police make mistakes, don’t understand that the conduct charged is not a crime or the police don’t know that defendants have defenses by statute that make the conduct not against the law.

Juvenile delinquency cases, driving under the influence of alcohol cases and general criminal defense cases–they are all serious and all can affect your future.  What seems like a minor problem can lead to huge problems down the road.  For example, juveniles who admit to possession of controlled substances may be ineligible for public assistance for colleges.  Not addressing the driving under the influence matter quickly can lead to a loss of your ability to drive for a year or more.  Domestic violence cases can prevent you from owning a weapon.  Felonies have a huge affect on your future.  So do I need a criminal defense attorney?  Most likely if you can afford to hire a criminal defense attorney, you should at least meet with the attorney to see what your rights are and the potential defenses.  The State has an attorney and so should you!

What to expect from your Criminal Defense Attorney

Charged with Driving Under the Influence?

Being charged with Driving Under The Influence has severe consequences both with your driver’s license and with the State of Colorado. You potentially face a license revocation depending on your blood alcohol level or if you refused to take a chemical test. Hiring an experienced Denver DUI Attorney early on will benefit you.

Richard B. Huttner is a founding member of the National College of DUI Defense. Richard B. Huttner uses his extra training to neutralize and defend evidence obtained by the police during driving under the influence arrests. Richard has special training in attacking the Government’s chemical test and field sobriety tests.

DUI cases are looked at with four issues in mind:

* Why the officer contacted you?

* What the officer observed when he contacted you?

* The results of field sobriety tests (if performed)

* The results of the blood/breath or urine test (if performed)

Important legal issues affecting your rights are raised at every stage of the police contact.

Hiring a DUI Attorney is important to challenge Government charges. You are presumed innocent. Whether wrongly accused or guilty as charged having an experienced and qualified attorney is essential to protect your rights and fight for your freedom.

A plea bargain may be necessary depending on the evidence the Government has against you. Often times the government has weaknesses in its case. The right attorney can argue why your case should be dismissed or why a better plea bargain should be offered.

Richard B. Huttner is an experienced, Denver DUI Attorney who handles misdemeanors and felony cases in Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas and Jefferson Counties. He offers a free consultation and payment plans.