Disclaimer
Blaine Stokes is licensed to practice in the State of Colorado with an office in Denver, Colorado. The information provided in this web site is offered for informational purposes only; it is not offered as and does not constitute legal advice and pertains only to the State of Colorado. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in these answers to FAQ without seeking the advice of an attorney. Blaine Stokes does not seek to represent you based upon your visit or review of this web site.

1. Can I have the charges against me dismissed since I wasn't given a Miranda warning?
2. Do I need an attorney to represent me in a simple DUI case?
3. I am charged with assaulting my wife or girlfriend. Will the DA dismiss the charges at the request of my wife or girlfriend?
4. Should I request a jury trial?
5. I am facing criminal charges based on events that happened months ago. Can't I have the charges dismissed?
6. No charges have been filed against me but the police want to talk to me. I am afraid that if I don't talk to them they will arrest me. Should I talk to the police?
7. Should I plea bargain the case against me?
8. What is a deferred judgment?
9. What is a deferred prosecution?
10. What is a "lesser included offense?"
11. What is voir dire?
12. Do I have the right to consult with an attorney before deciding whether to agree to a breath, blood or urine test for alcohol?

Can I have the charges against me dismissed since I wasn't given a Miranda warning?

If the police violated your 5th Amendment rights by questioning you when you were in custody without first giving you your Miranda rights any statements that you give to the police or any evidence obtained as a result of the statements may be suppressed. However, the remedy is not dismissal of the charges against you.

Do I need an attorney to represent me in a simple DUI case?

You don't have to be represented by an attorney. However, if you are convicted of a DUI the penalties are severe. First, you will lose your driver's license and when you do get a license your insurance premiums will double, triple or even quadruple in cost. You may be sentenced to jail, you will be ordered to pay fines and costs, attend a level 1 or level 2 alcohol treatment program (for which you pay the costs) , and perform community service.

There is an old saying in the legal profession that an attorney who represents himself has a fool for a client. If a lawyer shouldn't represent himself, does it make any sense for a non-lawyer to represent himself when a conviction will cost thousands of dollars?

If you decide to retain a lawyer, you will want an attorney that is experienced in DUI defense. He (or she) should know how to analyze the case to discover any weaknesses in the prosecution case, obtain discovery on your behalf, independently analyze a breath or blood sample, suppress illegally seized evidence, help you to decide whether to plea bargain your case down to a lesser charge or go to trial, negotiate with the prosecuting attorney, represent you at a DMV hearing and present your defense at trial.

I am charged with assaulting my wife or girlfriend. Will the DA dismiss the charges at the request of my wife or girlfriend?

Probably not, the people of the state of Colorado are filing charges against you, not the alleged victim. The victim does not have the right to dismiss the charges. If the police respond to a domestic dispute and they believe that you injured your spouse or domestic partner or caused property damage they will file charges against you regardless of whether the alleged victim wants charges to be filed. Once the charges are filed they will not be dismissed unless the DA feels that they cannot prove their case.

Should I request a jury trial?

It depends on the type of case against you. If you have a highly technical defense which a jury may have trouble understanding you may want a judge to hear your case. In other types of cases a jury may be more sympathetic. Your attorney should discuss with you whether you should request a jury trial.

I am facing criminal charges based on events that happened months ago. Can't I have the charges dismissed?

The prosecuting attorney must file charges against you within a set period of time unless you flee the jurisdiction of the court to avoid prosecution. The period of time during which charges must be filed depends on the type of case. You may want to speak with an attorney to see if the charges against you should be dismissed based on the applicable statute of limitations.

No charges have been filed against me but the police want to talk to me. I am afraid that if I don't talk to them they will arrest me. Should I talk to the police?

Don't talk to the police until you have consulted with an attorney. If the police have made up their minds to arrest you, you probably aren't going to change their minds. (They may be asking to meet with you just so that you can be arrested.) By speaking with the police you may inadvertently provide them with the last bit of information that they need in order to file a case against you. Consult with an attorney before you speak with any law enforcement officials even if you are adamant that you are innocent. Innocent people are convicted of criminal offenses.

Should I plea bargain the case against me?

Whether you decide to enter into a plea bargain with the prosecutor depends on your individual circumstances. For instance, in a DUI case will the plea bargain result in the loss of your license? If your job requires a drivers license you may want to give more consideration to going to trial.

Can you afford the time and expense of a trial? Trials, especially jury trials, are expensive and emotionally draining. Are you willing to fight for your rights or would you prefer to avoid the difficulties of a trial?

How strong is the case against you? If the case against you is weak you may want to take it to trial. If there is a strong case against you, you may be able to achieve more from plea bargaining than through a court battle.

What are the terms of the plea bargain? Are charges being dismissed or reduced? Will the prosecuting attorney agree to a deferred judgment or deferred prosecution? What fines and costs are you facing? Is it likely that you will receive jail time if you agree to the plea agreement?

To answer these questions, you need to know your rights. Consult with an attorney before agreeing to a plea bargain.

What is a deferred judgment?

As a result of a plea agreement with the prosecution, you plead guilty to one or more charges. You are placed on probation prior to sentencing and prior to any entry of conviction. If you successfully complete your probationary period your guilty plea is withdrawn and the case against you dismissed.. The record shows that the charges against you were dismissed so your record remains clean.

If you are alleged to violate the terms of the deferred judgment, a hearing will be held. If you are found to be in violation of the terms you will be sentenced on the charge or charges to which you plead guilty. If you are found to be in violation of the terms of the deferred judgment, you do not have the right to a trial on whether you were guilty of the charges to which you plead guilty on a deferred judgment basis.

Normally, if you plead guilty or are found guilty of criminal charges the case proceeds to sentencing. If you obtain a deferred judgment the case is frozen between the guilty plea and sentencing. If you comply with the terms the case is dismissed and never proceeds to sentencing. If you are found to violate the terms of the deferred judgment the case proceeds to sentencing. You have the right to a hearing to determine if you violated the terms of the deferred judgment. You do not have a right to try the underlying charges.

The terms of the probation are negotiated with the prosecuting attorney and must be acceptable to the court. They may include court costs, fines, jail, classes, therapy, payment of restitution, community service, drug testing, employment, etc.

What is a deferred prosecution?

A deferred prosecution is a disposition obtained as a result of a plea agreement with the prosecution. It is similar to a deferred judgment in that the case against you is frozen while you are on probation. However, with the deferred prosecution you do not enter a guilty plea to a charge prior to being placed on probation.

If you successfully complete the probationary period the charges against you are dismissed. As with a deferred judgment, there is no record of a conviction.

If you are alleged to violate the terms of the deferred prosecution, a hearing is held. If you are found to violate the terms, the case proceeds as if the plea agreement it had not been entered. You will be asked to enter a plea to the charge(s). If you plead not guilty, the case is set for trial.

Unlike a deferred judgment, you do not give up your right to a trial by entering into a deferred prosecution. Prosecutors are much more reluctant to grant you a deferred prosecution than a deferred judgment. If you receive a deferred prosecution you will still have to be tried if you violate your probation.

What is a "lesser included offense?"

If an offense is a "lesser offense" of another it carries less serious penalties. For instance, since the penalties for second degree murder are less severe than the penalties for first degree murder, second degree murder is a "lesser offense" of first degree murder.

If a lesser offense is also included in the greater offense, the lesser offense is said to be a "lesser included offense." Each criminal offense contains elements which must be proven beyond a reasonable doubt to sustain a conviction. If the elements of the greater offense necessarily include the elements of the lesser offense the lesser offense is a "lesser included offense."

For instance, in Colorado a person commits murder in the first degree if "after deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person." The elements of the offense are 1) deliberation, 2) intent to cause the death of another person and 3) causing the death of another person.

Murder in the second degree is committed if a person knowingly causes the death of a person. The elements of this offense are to 1) knowingly 2) cause the death of another person. Therefore, the elements of first degree murder necessarily include second degree murder. Second degree murder is therefore a "lesser included offense" of first degree murder.

At trial the judge or jury may find that the elements of the original (greater) charge have not been proven but that the elements of a "lesser included offense" have been established beyond a reasonable doubt. Thus, you could be convicted of second degree murder even though the complaint only accuses you of first degree murder.

What is voir dire?

Voir dire is a French term meaning "to speak the truth." It refers to the procedure by which the judge, prosecuting attorney and defense attorney select a jury to try a case. The potential jurors are asked questions to determine if they are qualified to act as jurors and acceptable to the prosecution and defense. Voir dire refers to the fact that the jurors are asked "to speak the truth" in responding to these questions.

Do I have the right to consult with an attorney before deciding whether to agree to a breath, blood or urine test for alcohol?

No. A refusal to take the test until you have spoken with an attorney is deemed to be a refusal. Your driving privileges will be suspended under Colorado's express consent law.

Back to Top