In any criminal case in Colorado, and in many traffic case, jail is a possibility. In felony cases, prison is always on the table. This a concern that is almost always brought up in my very first meeting with my clients. They always want to know, “What are the chances I’m going to jail or prison?” Obviously, in this post, I can’t answer a question about your specific circumstances, but we can review some principles that often provide insight into the answer. Let’s talk through some generalities, and hopefully give you a little clearer understanding of what factors influence jail time or prison time.
As a Colorado defense attorney, it’s my job to guide my clients through their case from the very beginning. Even in brand new cases where my clients first walk in the door, this is a very difficult question to answer. When I work on a criminal case, I learn the facts, circumstances, aggravating and mitigating factors. I also know who the Judge and DA are in your case. I will learn about your criminal history, whether you are on probation or parole. Do you have similar priors? Is this a case with specific sentencing requirements, such as a Domestic Violence or a Drunk Driving (DUI or DWAI case)?
These questions and many others will be provide me insight on how likely it is that you will be doing time. I have handled thousands of criminal cases in El Paso County since 2004, both as a Deputy DA and as a defense lawyer. Chances are, I have handled hundreds, if not thousands of cases like yours. That means that usually I have a pretty good idea of what to expect. And more importantly, all the ways that we can try and avoid jail or prison time on your case.
I want to stress that we never really know what will in happen in your case until we have your discovery (police reports, evidence, 911 calls, bodycam, etc.), and we have spoken to the DA. In every case with a plea agreement, it is always up to the Judge on whether a deal is approved by the Court. If you choose to proceed to a jury trial or court trial, we won’t know until the verdict is read, and the Court passes sentence.
Let’s go through the steps on how we determine what to expect in your case:
Initial Consultation: Introduction to Your Case
The first step in any criminal defense case is the initial consultation. This is where you, as a potential client, sit down with your defense attorney to discuss the specifics of your case. Be honest and detailed during this meeting. When you discuss your case with a criminal defense attorney, it is a confidential meeting. The information you provide will help us formulate your defense strategy. This is also your opportunity to ask questions, understand the charges against you, and get an assessment of the possible outcomes.
Investigation and Evidence Gathering
If we decide to work together on your case, the next phase involves a thorough investigation. This isn’t just about reviewing the evidence that the prosecution has; it’s also about conducting our own independent investigation. We’ll look for inconsistencies in the police reports, interview witnesses, and gather information that can aid your defense. We want to build the strongest case by identifying favorable evidence and finding weaknesses in the prosecution’s arguments.
Plea Bargaining: Consider Your Options
Most criminal cases do not go to trial. Instead, they are often resolved through plea bargaining. We never have to accept a plea. However, it’s almost always in your best interest to at least listen to the options. If the DA’s best offer isn’t good enough, then maybe it is a good idea to go to trial in your case. If the DA offered jail time as part of a plea, we would discuss the pros and cons of taking your case to trial. We need to be strategic at this stage of your case. We will consider the strength of the case against you, the level of the charges, the possible penalties, and your personal circumstances. For example, if the charges carried a mandatory minimum of 32 years in prison, but the plea offer was to a misdemeanor with no jail, you’d really have to consider your options. It is a risk vs. reward analysis that we will discuss at every stage of your case.
As your defense counsel I will negotiate with the DA on your behalf. We will discuss mitigating factors, points of evidence, legal strengths and weaknesses and potential plea bargains. I always want a dismissal of my clients’ criminal charges, but realistically, we know that isn’t going to happen in every case. This is a great opportunity to negotiate a no jail or no prison plea deal with the DA. In some cases, the DA will make a favorable offer that guarantees no jail or prison if you accept the agreement. A “no jail” deal may be in your best interest, but that is one of the most important discussions you will have with your defense counsel.
Pre-Trial Motions and Hearings
Before a case goes to trial, there are various motions and hearings that can influence the proceedings and could even lead to dismissal of your charges. For example, a common pretrial motion is to suppress evidence for an unlawful search and seizure under the Fourth Amendment. Many times, if we win a suppression motion, the DA no longer has any evidence to proceed, and the case will be dismissed.
Another example is a preliminary hearing. For certain serious felony charges, you are eligible for a preliminary hearing where the DA must show that there is probable cause for the crimes charged. If the Court finds that probable cause does not exist, the charge(s) will be dismissed. These hearings are pivotal moments in your defense, providing opportunities to weaken the prosecution’s case before it even reaches trial.
The Trial
Trials can be unpredictable, and while our goal is always an acquittal, the reality is that the outcome depends on many factors. Most importantly, the strength of the evidence. I often say that that many cases are won or lost at jury selection because it is essential to have fair and impartial people on your jury. If you get an unfavorable jury, the trial will be an uphill battle.
During a criminal trial, my job is to advocate on your behalf, cross-examine prosecution witnesses, and work to create reasonable doubt among the jurors. Remember, in a criminal trial, the prosecution must prove your guilt “beyond a reasonable doubt.” This is the highest standard of proof in the legal system.
Sentencing: What Happens If I’m Convicted?
Unfortunately, we need to discuss what happens if you are convicted at trial. At this point, the Judge will sentence you according to the possible penalties for your level of charges. Sentencing can vary widely depending on the crime, your criminal history, and other factors. In some cases, Judges or DAs may ask for a pre-sentence investigation to learn more about your history before sentencing.
At this stage, we can still argue for a reduced sentence. Factors like no criminal history, showing remorse, participation in rehabilitation programs, etc. can all be considered in your favor. If you lose at trial, your life is in the Judge’s hands. The Judge can give you the minimum or the maximum sentence (or anywhere in-between) if they feel it is appropriate in your circumstances.
Jail or prison after you have been convicted at trial can be a very real possibility. You should discuss your options, and the likelihood of various outcomes before you make a decision on how to proceed. There is always a risk vs reward balancing test to consider before you make life-changing decisions.
Jail Alternatives:
Even if the Court decides to sentence you to a detention sentence, there are options to avoid jail or prison. One option is for in-home detention, also called electronic home monitoring. In this situation, you are typically allowed to go to work or school while you are completing your sentence at home through a GPS monitor.
Another option is for Work release, if your county offers the program. You would stay at a detention facility at night but go to work during the day. Each Colorado County runs their own work release program that has different rules and costs involved.
Finally, the Court could sentence you to a Community-based detention facility in lieu of prison time in a felony case. Community Corrections (such as COMCOR, Embrave, CAE, and others) allow for you to continue to work at your job instead of going to prison. The rules are strict, and they will require you to pay to stay at these facilities. The upside is that you can continue to work and avoid a prison sentence.
Conclusion
“Am I going to jail?” The answer to this question depends on numerous factors, including the nature of the charges, the evidence against you, the defense strategy we develop, and the complexities of your case. As we discussed above, there are dozens of points that factor into that answer.
Your defense attorney’s role is to navigate these cases with you, providing a defense that seeks to protect your rights, and obtain the best possible outcome in your case. Hire the best criminal defense lawyer in Colorado for you. It is essential that you feel comfortable with the person who will help you make some of the most important decisions of your life. We offer free consultations in criminal and traffic cases; I’d be happy to talk to you about yours.