Plea Bargaining, Legislative Limits, and the Separation of Powers

• Publication year: 2003
• Pages: 63

32 Colo.Law. 63 Colorado Lawyer 2003.

2003, March, Pg. 63. Plea Bargaining, Legislative Limits, and the Separation of Powers

---

63

Vol. 32, No. 3, Pg. 63

The Colorado Lawyer
March 2003
Vol. 32, No. 3 [Page 63]

Specialty Law Columns
Criminal Law Newsletter
Plea Bargaining, Legislative Limits, and the Separation of Powers
by Will Bain

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in

Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092; Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by Will Bain, Colorado Springs, Deputy District Attorney for the Fourth Judicial District and head of the Crimes Against Children Unit - (719) 520-6000, WillBain@elpasoco.com.

In an effort to crack down on drunk drivers and domestic violence offenders, the Colorado General Assembly has limited the plea bargaining options for those cases. This article considers whether such restrictions limit the powers of district attorneys and judges and therefore violate the separation of powers doctrine.

. . . The Chief Justice . . . was thus
addressed [by a friend of the
accused]: "I come to you a prophet
from the Lord God, who has sent me
to thee, and would have thee grant a nolle prosequi for . . . his servant,
whom thou has sent to prison."

[Chief Justice:] . . ."Thou art a false prophet, and a lying knave. If the
Lord God had sent thee, it would have been to the Attorney General, for He knows it belongeth not to the Chief Justice to grant a nolle prosequi. . . ."1

Drunk driving and domestic violence statutes in Colorado expressly limit the plea bargaining options available to prosecutors, defendants, and judges. This article examines the pertinent Colorado statutes and relevant case law. It also examines powers held by the district attorney and the court. Finally, the article raises separation of powers concerns arising from the enactment of statutes that limit plea bargaining.

Plea Bargaining: Drunk Driving and Domestic
Violence

Under CRS § 42-4-1301(4), a defendant in a drunk driving case is barred from pleading guilty to a non-drunk driving crime in almost all circumstances. Under that statute, for example, a judge cannot accept a plea of guilty to reckless driving from a defendant who has been charged with driving while ability impaired ("DWAI") unless the prosecutor can represent to the court the state's inability to establish a prima facie case of DWAI.

Similarly, Colorado law generally bars a defendant charged with a crime of domestic violence from pleading guilty to a non-domestic violence crime. According to CRS § 18-6-801(3), a court can accept a plea of guilty or nolo contendere only in situations where the prosecutor cannot establish a prima facie case of domestic violence.2

The limits on plea bargaining imposed by these two laws are significant, inasmuch as the consequences of a drunk driving or domestic violence conviction are more severe than for other crimes of the same class. With drunk driving cases, there is a mandatory jail sentence of at least two days for a first-time DWAI conviction and five days for a first-time driving under the influence ("DUI") conviction.3 These mandatory jail sentences increase significantly if the defendant has prior drunk driving offenses.4 The jail sentences may be suspended, however, if the defendant completes an alcohol evaluation before sentencing and then undergoes counseling as part of that treatment.5 Such treatment can consist of as few as twelve hours of group education and as much as twenty-four hours of group education, followed by eighty-six hours of therapy sessions.6

In addition, the effect a drunk driving conviction has on a defendant's driving privileges can be significantly greater than the effect from a non-drunk driving conviction, especially when the defendant has prior drunk driving convictions.7 A convicted drunk driver also must perform a minimum of twenty-four hours of useful public service and as many as 120 hours of public service.8 In contrast, someone convicted of reckless driving can be punished with as little as eight points against driving privileges, an assessment of court costs, and a period of unsupervised probation.9

The penalties and additional consequences for a domestic violence conviction also exceed those of a comparable non-domestic violence conviction. A person who is convicted of any crime of domestic violence must complete a treatment evaluation and treatment program.10 The minimum treatment program requires at least thirty-six sessions of domestic violence counseling and includes up to fifty-two weeks of counseling, in addition to any other treatment recommended by the treatment evaluation (such as alcohol or mental health counseling).11

Unlike the penalties for non-domestic-violence convictions, a misdemeanor conviction for domestic violence will result in the defendant having a probation officer to whom he or she must report periodically.12 In addition, federal law will bar anyone convicted of misdemeanor domestic violence from possessing a firearm or ammunition.13 However, a defendant convicted of a non-domestic violence related crime, such as misdemeanor harassment, faces a minimum penalty of as little as a $50 fine and a period of unsupervised probation.14

Background to Statutory Changes

The General Assembly's goals in enacting these drunk driving and domestic violence statutes were to ensure the vigorous prosecution of such crimes, as well as the use of appropriate mandated treatment programs. In 1982, a drunk driving bill that led to the enactment of CRS § 42-4-1301(4) was introduced in committee with an assertion that "[t]his bill will help prevent a lot of plea bargaining."15

In 1995, an amendment was added to House Bill ("H.B.") 95-1179, which later became CRS § 18-6-801(3). H.B. 95-1179 was written to clean up domestic violence legislation enacted the year before, when twenty-two separate domestic violence bills were considered by the General Assembly. Amendment 3 to H.B. 95-1179 was introduced as legislation that was "meant to copy the DUI statutes"16 in its restrictions on plea bargaining.

Before these laws were passed in 1982 and 1995, parties could plead their cases to whatever kind of crime they chose, assuming the court accepted such pleas.17 Now, when there is a charge of drunk driving or domestic violence, one of the following must occur: (1) the defendant may plead to a drunk driving or domestic violence crime; (2) the case may go to trial; or (3) the prosecutor may dismiss the case outright18 unless, pursuant to relevant statutes, a district attorney makes a good faith representation that a prima facie case cannot be made.

The number of cases impacted by these statutory plea bargaining limitations is enormous. For example, in the Fourth Judicial District, which consists of El Paso and Teller Counties, more than 30,000 misdemeanor and traffic misdemeanor cases were prosecuted in 2001.19 Approximately 25 percent of that docket consisted of drunk driving and domestic violence cases.20

Constitutional Limitations

CRS §§ 42-4-1301(4) and 18-6-801(3) limit the powers prosecutors have in executing laws they are charged with enforcing and expressly forbid courts from accepting...