Deferred Judgments and DUI cases in Colorado

Can I receive a deferred judgment (DJ) for a DUI in Colorado?

I was recently charged with DUI and a number of other traffic charges in Denver, CO. Can I receive a deferred judgment in court so I can avoid being convicted and having this on my permanent record?

Answer: Deferred judgments, often referred to as deferred sentences, is governed by statute in Colorado at C.R.S. section 18-1.3-102. The key provision, for most persons accused of driving under the influence is that part of subsection (2) which provides that “[t]he conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation.”

A deferred judgment can be a very beneficial offer in a DUI or DWAI case because the end result would not be a conviction if you are successful with the period of supervision. However, the same offer that looks good on paper can turn bad fast should you be accused of violating the terms of the deferred sentence agreement.  In addition, “DJ offers,” as lawyers refer to them, are extremely hard to get in DUI cases, especially when the accused has a prior conviction on his or her record.

At first glance, it would seem that the main benefit to a deferred judgment and sentence, compared to a probationary sentence, is that, upon successful completion of the deferred judgment agreement, “the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” For many purposes, however, the conviction is not “erased.”

For example, a plea of guilty entered pursuant to the deferred sentence provisions counts as a conviction that triggers the counseling and treatment requirements of C.R.S. section 18-1.3-201, the drug or alcohol offender surcharges pursuant to C.R.S. sections 18-19-102 and 103, as well as the public service and rehabilitation requirements of C.R.S. section 18-18-432. As a general rule, all the penalties, expenses and conditions that could be applied to a probationary sentence can also be applied to a deferred sentence.

The primary reason most people seek a deferred sentence over a probationary sentence is probably in order to clear their record. However, this does not happen automatically. All of the information in the case, including the factual allegations remain public records unless and until the records are sealed and expunged. However, in the case of In Re Harte, 2012 COA 183 (decided Oct. 25, 2012), a panel of  the Colorado Court of Appeals held that certain types of deferred sentence cases were not eligible to be sealed – even after successful completion of the sentence and withdrawal of the plea. Among these , the court concluded, were alcohol and drug-related driving offenses, as well as any driving offense committed by the holder of a commercial driver’s license.

On July 22, 2013, the Colorado Supreme Court granted certiorari to review the Harte case on the following issue:

     Whether the court of appeals erred in holding that a successfully completed deferred judgment pertaining to an alcohol-related driving offense constitutes a conviction such that the matter cannot be sealed pursuant to section 24–72–308, C.R.S., notwithstanding the fact that such a deferred judgment is specifically exempted from the definition of conviction under section 42–4–1307, C.R.S.

As of this date, the case is still pending decision in the Colorado Supreme Court. (no. 12SC958)

Even if Harte is reversed, there remain two problems with the “record-sealing” strategy. First, many employers, insurance companies and licensing agencies require disclosure, not only of previous convictions, but also of guilty pleas that were entered pursuant to deferred sentencing whether or not the deferral was successful.  Second, the internet is filled with powerful search engines, and private services that perform “background checks” for employers which are capable of picking up and storing such information from the date the plea is entered. Court orders do not have the power to erase such private data bases.

Note: In some cases, a defendant facing sanctions as the result of a conviction that could affect governmental licensure or employment can petition the sentencing court for “collateral relief,” pursuant to C.R.S. section 18-1.3-107, in order to exempt the defendant from certain specified consequences relating to the defendant’s employment or employment prospects, but, “collateral consequences” does not, as defined, include any restraint or restriction on a person’s driver’s license. In addition, the process is not available to relieve collateral consequences imposed by law “for licensure by the department of education, or any collateral consequences imposed by law for employment with the judicial branch, the department of corrections, division of youth corrections in the department of human services, or any other law enforcement agency in the state of Colorado.” Section 18-1.3-107(4)(a).

Though not the case in Colorado, some states consider a deferred sentence for a DUI as qualifying for enhanced punishment, regardless of whether the sentence was successfully completed. Thus, a deferred sentence in Colorado could theoretically constitute a prior DUI for purposes of sentencing if a later DUI is sustained in another state.

Colorado C.R.S. section 18-1.3-102 reads as follows:

(1)(a) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.

(b) The period may be extended for an additional time:

(I) Up to one hundred eighty-two days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department; or

(II) Up to two years if the deferred judgment is for an offense listed in section 16-11.7-102(3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension.

(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant’s attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation. A person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3(1), shall stipulate to the conditions specified in section 18-1.3-204(2)(b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto. Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. The stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon the guilty plea; except that, if the offense is a violation of article 18 of this title, the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment. If the court makes those findings and continues the deferred judgment over the objection of the prosecution, the court shall also impose additional and immediate sanctions upon the defendant to address the violation, to include, but not be limited to, the imposition of further terms and conditions that will enhance the likelihood of the defendant’s success, respond to the defendant’s noncompliance, and promote further individual accountability, including extending the time period of the deferred judgment for up to two additional years or incarceration in the county jail for a period not to exceed ninety days consistent with the provisions of section 18-1.3-202(1), or both. When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than seven days to the defendant or the defendant’s attorney of record. Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty-five days thereafter. The burden of proof at the hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.

(3) When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405.

(4) A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found.