What is a plea bargain?
A plea bargain is a settlement agreement in a criminal prosecution. It is a legally binding contract that resolves one or more criminal charges against you without a trial. The plea is generally taken at a court proceeding called the disposition hearing.
Contrary to popular belief, criminal cases rarely go to trial. In 2014, for example, almost 38,000 new criminal cases were filed in Colorado’s criminal courts. Of these, fewer than 1,000 went to trial – approximately 2½ percent.1
To help you better understand the pros and cons of resolving a criminal case without a trial, our Denver Colorado criminal defense lawyers answer the following questions:
- 1. When does a Colorado plea bargain occur?
- 2. How are Colorado plea bargains negotiated?
- 3. How long does a plea bargain take?
- 4. What are the advantages of a plea bargain?
- 5. What sentencing alternatives are available through a plea bargain?
- 6. What are the disadvantages of a plea bargain?
- 7. Do I have to plead guilty in order to get a plea deal?
- 8. When should I accept a plea bargain?
- 9. What happens after I accept a plea deal?
- 10. Can I modify or revoke a plea agreement?
- 11. What happens if I violate my Colorado plea agreement?
Read our related article on collateral relief in Colorado.
Plea bargaining may occur before you are formally charged or after charges have been brought. It can even occur after a trial has started or at any time before the jury (or judge) returns a verdict.
Sometimes a plea offer occurs right after an arrest, especially if
- you have no criminal history and
- the potential charges are not serious.
Often, however, a plea offered right off the bat is a bad one. The prosecutor simply takes advantage of how scared you are in the face of criminal charges.
A plea bargain may be presented as a “take it or leave it” offer, especially if you do not yet have a lawyer. Though, in fact, it can usually be negotiated.
While you may be tempted to jump at the prosecutor’s first offer, it is a good idea to remember that you are not the only one who does not want to lose at trial. Often the prosecutor is simply trying to make you blink first.
Colorado prosecutors can only take so many cases to trial. Our Denver and Golden criminal defense attorneys can help you determine whether
- the plea offer is a good one and
- you might be able to do better by waiting.
Either the prosecutor or your defense attorney can initiate a plea offer. In most Colorado criminal cases, this will be done by
- email and/or
If the charges are serious, however, plea negotiations may be conducted face-to-face. They may take place in the D.A.’s office or in the courthouse at any point before a verdict has been entered — even while the jury is out deliberating.
Your Colorado defense lawyer and/or the prosecutor will usually want to investigate the case before making a plea offer. This can include
- speaking to witnesses,
- watching surveillance video,
- obtaining the results of a drug screen or rape kit, and
- anything else that would tend to establish innocence or guilt.
If the prosecutor’s case is weak, your lawyer will make a presentation to the prosecutor to point out the holes and inaccuracies in the state’s evidence. Often this will result in a plea offer.
In a best-case scenario, the prosecutor will even drop the case entirely. Though even when prosecutors think they have a strong case, they are often willing to bargain in order to avoid the expense and time of a trial.
Having an experienced Colorado defense lawyer who knows the local courts and prosecutors offers you the best chance of a successful plea deal. We know the types of cases in which the Denver District Attorney and Jefferson County District Attorney are authorized to offer pleas, and we can help you evaluate the considerations that go into a plea agreement, such as:
- The seriousness of the allegations;
- The weight of the evidence;
- The likelihood of a guilty verdict at trial; and
- How crowded the court’s docket is.
We can also advise you how juries in your jurisdiction have found in similar cases in the past and how “tough on crime” the judge assigned to your case is.
See our related article about reducing a felony to a misdemeanor.
Sometimes a plea resolution can be reached in one phone call or email exchange. In other cases, negotiating a plea deal can take weeks or even months.
- “discovery” (fact-finding),
- pretrial motions and,
- possibly, trial.
Prosecutors and courts like plea bargains for numerous reasons, including:
- Plea bargains reduce their caseload;
- Plea bargains save taxpayers the expense of trials and possible appeals; and
- There is less risk of a “not guilty” verdict in borderline cases.
Though plea bargains can often be advantageous for you as well. Advantages can include (but are not limited to):
- Avoiding the expense and uncertain outcome of a trial;
- Avoiding jail time (especially in misdemeanor cases);
- Reducing prison time or serving your sentence in jail instead of prison (with a felony plea bargain to a misdemeanor);
- Having a fixed sentence;
- Avoiding the collateral consequences of a felony conviction (such as losing your Colorado gun rights);
- Avoiding the requirement to register as a Colorado sex offender;
- Not being labeled a sex offender, drug offender, or child abuser;
- Reducing criminal fines; and
- Getting the help you need instead of incarceration.
Certain types of plea bargains can allow you to obtain treatment instead of going to jail.
In some cases, you may qualify for special Colorado “problem solving” courts such as:
- Adult Drug Court;
- Juvenile Drug Court;
- DUI Court;
- Mental Health Court;
- Family and Dependency/Neglect Court; or
- Veterans’ Treatment Court (VTC) — also known as Veterans Trauma Court.
Though even Colorado’s general courts can approve a plea bargain under which you are granted probation and the chance to obtain treatment instead of jail time in an appropriate case.
When such an agreement is reached before charges have been filed or before a plea has been entered, it is known as
- Colorado adult diversion or
- a pretrial diversion plea bargain.2
If you have already entered a guilty plea in court, you may still be able to obtain counseling instead of jail time under Colorado’s deferred sentencing law.3
Both adult diversion and deferred sentencing “pause” the criminal proceedings so that you can obtain treatment instead of going to jail. Upon successful completion of a diversion program, the charges against you will be dismissed.
Having an experienced Colorado criminal defense lawyer can greatly increase your chances of
- having your case heard in specialty court or
- getting you pretrial diversion or deferred sentencing instead of jail time.
Notwithstanding the many advantages, it is not always in your interest to enter into a plea bargain in Denver or elsewhere in Colorado.
Disadvantages to Colorado plea bargains include (but are not limited to):
- Losing the opportunity of a “not guilty” verdict at trial;
- A guilty or “no contest” plea counts as a conviction;
- Generally no opportunity to change your mind later or appeal the sentence; and
- Restrictive conditions on your freedom, which can include (without limitation):
- Admitting to guilt (even if you are innocent);
- Regular meetings with your probation officer;
- Risk assessment and counseling at your own expense;
- Victim restitution;
- Testifying against another defendant or otherwise helping with an investigation;
- A protective order that restricts your freedom;
- Drug testing;
- Losing your right to possess a firearm; and
- Risk of jail if you commit any crime other than a minor traffic infraction — even one that would not normally get you jail time.
Not necessarily. With a Colorado adult diversion plea bargain, you enter treatment before charges are filed or before the prosecution gets very far. In such a case, you may never need to enter a plea at all.
You must enter a guilty plea, however, in order to obtain certain forms of relief (such as Colorado deferred sentencing). However, if you successfully complete a diversion program,
- the charges will be dismissed and
- you can have your record sealed.
Another option in some cases is to plead “nolo contendere” (no contest) to the charges. A Colorado nolo contendere plea means you are not admitting or denying the charge, but are accepting the consequences as if there had been a conviction (often to a lesser charge).
Unfortunately, for most purposes, a plea of nolo contendere counts as a conviction in Colorado. However, it may be useful in cases in which you are legally required to disclose a conviction but are allowed to explain it (such as disclosing a felony conviction on job applications).
There is no set answer as to when or whether you should accept a plea bargain.
Remember – the prosecutor is not offering a deal out of the goodness of their heart. The prosecutor will only offer a deal that they believe is in the government’s best interest.
This is why it is so important to retain an experienced criminal lawyer to help you assess and negotiate your Colorado plea deal. Your attorney can advise you on
- whether they think the deal can be improved and
- what the possible outcomes are if you take your case to trial.
Together you and your Colorado defense lawyer will discuss the options and decide what you can and can’t live with. In the end, however, only you can determine whether the benefits of a plea deal outweigh the risks of trial.
After a plea agreement is worked out between the prosecutor and your criminal defense lawyer, the prosecutor presents it to the judge with the recommendation that the court accepts it.
The judge usually goes along with the prosecutor’s recommendation. However, it is entirely up to the judge whether or not to do so. Factors the judge will consider may include:
- Your prior criminal history (if any);
- Recommendations in the pre-sentence investigation report (PSIR);
- Recommendations made by treatment providers;
- Statements of family members and alleged victims; and
- The nature of the crime and acts alleged.
If the plea bargain is accepted, it will be entered into the record in open court with you present.
Otherwise, the judge will notify the parties that the court is rejecting the agreement. If the court rejects the agreement, the prosecutor and your defense attorney are free to try again.
In general, once you sign a plea deal, you may not change your mind. However, you may be able to challenge the plea deal if you entered into the agreement because:
- Your lawyer was incompetent (ineffective assistance of counsel);
- You were mentally ill or otherwise legally incompetent when you signed the agreement; or
- The police or prosecutor committed fraud in connection with your case.
You should be aware, however, that such challenges to plea bargains are rarely successful absent clear evidence that you were unable to understand the consequences of what you agreed to.
Our Denver and Golden criminal defense lawyers can review the circumstances surrounding your plea deal to see if relief may be available.
Your Colorado plea agreement will set forth the consequences for violating its terms. Depending on what has been agreed, violation of a plea bargain agreement can result in
- no action,
- a fine,
- incarceration, or
- the commencement or resumption of criminal proceedings against you.
However, if you have a good excuse for violating the terms of the plea bargain, the judge may let you off the hook.
Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211