If you have been charged with a crime in Colorado, one of the biggest decisions you may face is whether to accept a plea bargain or take your case to trial.
There is no simple answer.
A plea bargain gives you some control over the outcome. A trial gives you the opportunity to force the prosecution to prove its case beyond a reasonable doubt. Each option carries risks.
The right decision depends on the evidence against you, the defenses available to you, the exact terms of the plea offer, the possible sentence if you are convicted at trial, and the consequences a conviction could have on the rest of your life.
Before you make that decision, you should understand exactly what you are giving up and exactly what you are getting in return.
What Is a Plea Bargain?
A plea bargain is an agreement between the prosecution and the defendant.
Typically, the defendant agrees to plead guilty to a criminal offense. In exchange, the prosecutor agrees to provide some benefit.
That could include:
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Reducing a felony to a misdemeanor.
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Dismissing one or more charges.
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Allowing a plea to a less serious offense.
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Agreeing to a sentencing cap.
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Recommending probation instead of jail or prison.
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Agreeing to concurrent rather than consecutive sentences.
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Offering a deferred judgment in an appropriate case.
The U.S. Department of Justice describes plea bargaining as an agreement in which a defendant pleads guilty and the government provides something in return.
Colorado also allows a deferred judgment and sentence in some cases. A deferred judgment can be particularly valuable because successful completion may result in withdrawal of the guilty plea and dismissal of the case.
The details matter. Two plea agreements that sound similar can have very different consequences.
What Happens When You Plead Guilty in Colorado?
A guilty plea is a conviction.
When you plead guilty, you give up important constitutional rights, including your right to require the prosecution to prove the case against you beyond a reasonable doubt.
Colorado Rule of Criminal Procedure 11 requires the judge to make sure that you understand the charge, the possible penalties, the rights you are giving up, and the consequences of your plea.
The plea must also be voluntary.
The court will generally ask you questions directly before accepting it.
One important point is that the prosecutor does not sentence you. The judge does.
Whether the judge is bound by a particular sentencing agreement depends on how the plea agreement is structured and whether the court accepts it. A prosecutor’s recommendation is not necessarily the same thing as a guaranteed sentence.
That is why you need to understand the actual language of the plea agreement before accepting it.
Can You Plead Guilty While Maintaining Your Innocence?
Yes, in some circumstances.
Colorado recognizes what is commonly called an Alford plea, based on the U.S. Supreme Court decision in North Carolina v. Alford.
With an Alford plea, a defendant does not necessarily admit committing the offense but agrees to accept a guilty plea and the resulting conviction.
The Colorado Supreme Court has confirmed that an Alford plea may be accepted if the plea is knowing, voluntary, and intelligent.
This is different from simply telling the judge you are innocent and pleading guilty without understanding the consequences.
Colorado also permits a plea of nolo contendere, commonly called “no contest,” with the court’s consent. Our article on no contest versus guilty pleas in Colorado explains the differences.
Plea bargain vs. trial: side by side
| Factor | Plea bargain | Trial |
|---|---|---|
| Outcome | Agreed in advance (subject to judge’s approval) | Decided by jury or judge |
| Burden of proof | Not tested; you admit guilt | Prosecution must prove guilt beyond a reasonable doubt |
| Sentencing risk | Often narrower and more predictable | Wider range; no negotiated cap |
| Rights | Trial rights waived | Trial rights preserved |
| Timing | Usually faster | Usually slower |
| Record | Conviction (unless deferred or dismissed terms apply) | Acquittal means no conviction; guilty verdict means conviction |
| Appeal | Very limited after a plea | Available after a conviction |
The table is a general framework. Colorado law sets different consequences for different offenses, so the details for your charge will vary.
What Happens If You Go to Trial?
Going to trial means the prosecution has to prove the case.
You remain presumed innocent unless and until the prosecution proves every required element beyond a reasonable doubt.
At trial, the defense can challenge the prosecution’s evidence through:
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Cross-examination.
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Witness testimony.
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Expert testimony.
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Physical evidence.
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Video or audio evidence.
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Challenges to scientific testing.
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Attacks on witness credibility.
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Constitutional defenses.
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Other evidence supporting the defense.
You also have the right not to testify.
The jury cannot require you to prove your innocence. The burden stays with the prosecution.
That distinction is important.
A criminal trial is not about deciding which side’s story sounds slightly more believable. The prosecution carries the highest burden of proof used in our legal system.
Much of a Criminal Case Is Decided Before Trial
People understandably think about cross-examination, witnesses, and closing arguments when they think about trial.
But much of the real work happens before the jury ever enters the courtroom.
That can include reviewing:
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Police reports.
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Body camera footage.
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Dash camera footage.
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911 recordings.
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Witness interviews.
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Laboratory reports.
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Medical records.
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Cell phone evidence.
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Search warrants.
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Breath or blood testing records.
The defense may also file motions challenging evidence.
For example, if police stopped a vehicle without sufficient legal justification, evidence obtained after the stop may potentially be suppressed.
The distinction between reasonable suspicion and probable cause can become critical in determining whether evidence is admissible.
A case that looks strong when you first read the police report can look very different after the evidence has been examined carefully.
Plea Bargain vs. Trial
Here are some of the major differences.
Plea Bargain
A plea usually provides more certainty.
You generally know:
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What charge you are pleading to.
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Which charges will be dismissed.
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What the prosecution will recommend.
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Whether there is an agreed sentencing cap.
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Whether probation is available.
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Whether a deferred judgment is part of the agreement.
You also give up your right to trial.
Trial
At trial, the outcome is uncertain.
You may be acquitted completely.
You may also be convicted of the original charges and face a sentence substantially greater than the resolution offered before trial.
That risk has to be evaluated against the strength of the prosecution’s case and the potential defenses.
Does Taking a Plea Mean You Will Get a Lighter Sentence?
Often, but not always.
The prosecution frequently makes plea offers that reduce a defendant’s potential exposure.
For example, a prosecutor might offer:
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A misdemeanor instead of a felony.
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Probation instead of possible incarceration.
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One conviction instead of several.
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A reduced sentencing range.
But you should never assume that “taking the plea” automatically means probation or no jail.
Read the agreement.
You need to know whether the sentencing provision is:
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A binding term of the agreement.
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A sentencing cap.
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A joint recommendation.
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A recommendation from the prosecutor.
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Completely open to the judge.
Those are very different agreements.
What Is the “Trial Penalty”?
The term “trial penalty” describes the difference between the punishment offered in a plea bargain and the punishment someone may face after being convicted at trial. It’s not a real penalty per se, it is the potential difference in sentence between a plea bargain and what may happen at trial. Sometimes that gap is very large, making a plea bargain appear very favorable.
Suppose, for example, the prosecution offers probation in exchange for a guilty plea, but a conviction at trial could expose the defendant to several years in prison.
That difference creates powerful pressure to accept the plea.
This does not necessarily make the plea offer improper. Prosecutors can consider the certainty and efficiency created by a negotiated resolution.
But the size of the difference matters when deciding what to do.
The question should not simply be:
“How much less punishment do I get if I plead guilty?”
The better questions are:
“What is the prosecution actually capable of proving?”
“What defenses do I have?”
“What evidence can be excluded?”
“What happens if I win?”
“What happens if I lose?”
“What exactly am I receiving in exchange for giving up my right to trial?”
Most Criminal Cases Do Not Go to Trial
Most criminal cases resolve without a trial.
Statistics and percentages will vary by jurisdiction and region. But no prosecutor could potentially take a majority of their cases to trial. It would clog up the Judicial system and require exponentially more Judges and prosecutors to afford every case a trial. This is one reason that plea bargains are quite common: to keep cases moving through the system.
As a young DA, I was in a division with over 1,000 open cases. No one could possibly try 1,000 cases in a 6-month speedy trial period. Speedy trial is 180 days, with each trial taking an average of 1.5 days in county court, and court is open 5 days a week. My quick math says you could get about 85 cases tried in that time period with one judge and one DA, only doing trials back to back. This, of course, is running the cases back to back, not factoring jury deliberation time, or handling other cases, motions hearings etc. So, even stacking them all back to back, you could only try about 8.5% of the total.
This was just an oversimplified calculation to show that with a busy docket it is not possible to take even a significant portion of the cases to trial. There are many other factors, and not all cases are on the same 6-month speedy calendar, but it gives you an idea of how important plea agreements are to keep the system running smoothly. Plea agreements are quite common in every court.
Common does not mean appropriate in every case.
When Might Taking a Plea Make Sense?
A plea offer may deserve serious consideration when the prosecution has strong admissible evidence and the agreement substantially reduces the potential consequences.
For example, an offer may:
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Eliminate a felony conviction.
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Avoid mandatory incarceration.
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Preserve the possibility of probation.
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Dismiss serious additional counts.
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Reduce the effect on a professional license.
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Avoid a sentence enhancer.
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Provide a deferred judgment.
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Limit sentencing exposure.
Sometimes the difference between the plea offer and the potential result after trial is substantial.
That has to be considered realistically.
When Might Going to Trial Make Sense?
Trial may make sense when there are significant problems with the prosecution’s case.
Examples could include:
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An unreliable witness.
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Conflicting witness statements.
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Weak identification evidence.
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Missing or contradictory video.
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Problems with forensic evidence.
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A legitimate self-defense claim.
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An unlawful search.
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An unlawful traffic stop.
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Statements obtained in violation of constitutional protections.
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Evidence that does not establish one or more elements of the offense.
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A defense that the prosecution cannot easily overcome.
There are also cases where the plea offer simply does not provide enough benefit to justify pleading guilty.
If the proposed agreement carries nearly the same consequences as losing at trial, there may be less reason to give up your right to make the prosecution prove the case.
Every case is different.
Consider More Than Jail
One of the biggest mistakes defendants make is looking only at the jail sentence.
A conviction can affect much more.
Depending on the charge, consequences can include:
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Probation.
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Restitution.
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Driver’s license consequences.
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Ignition interlock requirements.
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Employment problems.
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Professional licensing consequences.
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Firearm restrictions.
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Immigration consequences.
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Protection orders.
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Treatment requirements.
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Registration requirements.
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Difficulty sealing the record.
A plea that looks attractive based solely on the sentence may create serious problems somewhere else.
DUI and DWAI Cases
Colorado DUI cases are a good example.
The criminal case is only one part of the problem. A DUI arrest may also create a separate driver’s license proceeding through the Colorado DMV.
Our guide to Colorado DUI, DWAI and UDD penalties explains the possible criminal consequences.
We also explain the separate issue of losing your driver’s license after a Colorado DUI.
A plea agreement in the criminal case does not necessarily solve the DMV case.
Domestic Violence Cases
Colorado domestic violence cases can also carry consequences far beyond the immediate sentence.
The domestic violence designation can affect treatment requirements, protection orders, firearm possession, and future cases.
You can read more about how these cases work on our Colorado Springs domestic violence defense page.
Immigration Consequences
Non-citizens need to be particularly careful before entering a plea.
A criminal disposition that appears relatively minor under Colorado sentencing law can create serious federal immigration consequences.
Immigration consequences should be evaluated before the plea is entered, not afterward.
Can You Wait Until the Day of Trial to Take the Plea?
Do not assume that you can.
Plea practices and deadlines can vary by judge and prosecutor.
This is particularly important in El Paso County.
Some Colorado Springs judges issue case management orders requiring plea agreements to be entered before the trial date. Certain divisions generally will not accept a negotiated plea agreement on the morning of trial except under extraordinary circumstances.
Other divisions may have different procedures.
If you are thinking, “I’ll just see what happens and take the deal on the day of trial if I get nervous,” that option may not exist.
Ask your lawyer:
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When does the offer expire?
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Can the prosecutor withdraw it?
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Does the judge impose a plea deadline?
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When is the final pretrial conference?
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What happens to the offer once trial preparation begins?
Know the answer before the deadline passes.
Can the Prosecutor Withdraw a Plea Offer?
Generally, a plea offer can change or disappear before it becomes a completed and accepted agreement.
Prosecutors reassess cases as they develop.
New evidence may help the prosecution.
New evidence may hurt it.
Witnesses may become unavailable.
A defense motion may change the admissibility of important evidence.
That is why you should never assume that today’s offer will still exist several months from now.
At the same time, you should not accept a bad plea merely because someone tells you that you will never see another offer.
The offer needs to be evaluated in the context of the evidence.
Why Preparing for Trial Can Lead to a Better Plea Offer
Preparing for trial and negotiating a plea are not opposites.
Trial preparation often creates leverage in negotiations.
When the defense thoroughly investigates a case, problems sometimes emerge.
A witness changes their story.
Video contradicts a police report.
A scientific test has weaknesses.
A constitutional issue becomes apparent.
An expert identifies a problem with the prosecution’s evidence.
A suppression motion threatens an important part of the government’s case.
Those developments can change how the prosecutor values the case.
A prosecutor who believes a case is likely to result in a conviction has little reason to make substantial concessions.
A prosecutor who sees a genuine possibility of losing may evaluate the case differently.
That is one reason we believe criminal cases should be prepared seriously even when a negotiated resolution remains possible.
Our article on how criminal charges can be dropped in Colorado discusses some of the ways cases can change after the initial filing.
Questions to Ask Before Accepting a Plea Bargain
Before entering a plea, you should be able to answer several questions.
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What exactly am I pleading guilty to?
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Which charges will be dismissed?
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What is the maximum possible sentence under the plea?
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Is the judge bound by the sentencing agreement?
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What sentence will the prosecutor recommend?
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What sentence is the defense allowed to request?
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What happens if the judge does not follow the recommendation?
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What is my realistic sentencing exposure if I lose at trial?
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What evidence does the prosecution have?
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What weaknesses exist in the prosecution’s case?
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Are there motions that could exclude important evidence?
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What defenses could be presented at trial?
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What happens to my driver’s license?
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Could the conviction affect my job or professional license?
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Are there immigration consequences?
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Are there firearm consequences?
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Can the conviction eventually be sealed?
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Is a deferred judgment available?
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When does the plea offer expire?
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What would my lawyer do next if I rejected the offer?
Your lawyer should be able to explain these issues in language you understand.
The Decision to Plead Guilty Belongs to You
Your lawyer can recommend a course of action.
The final decision whether to plead guilty belongs to you.
A criminal defense lawyer’s job is to give you enough information to make that decision intelligently.
That means explaining the good facts and the bad ones.
You should understand what the prosecutor has, what can be challenged, what could happen at trial, and exactly what you are receiving under the plea agreement.
Be cautious of any lawyer who guarantees a dismissal, guarantees an acquittal, or tells you to take a plea without explaining why.
If you are still deciding who should represent you, our guide on how to choose a criminal defense lawyer in Colorado discusses what you should look for.
How We Approach Plea Offers at McDowell Law Firm
I spent several years as a prosecutor before becoming a criminal defense attorney.
That experience matters when evaluating a plea offer because a good defense requires understanding how the prosecution is likely to look at the case.
At McDowell Law Firm, I personally review the evidence, evaluate the possible defenses, negotiate with the prosecutor, and prepare the case for trial when necessary.
I do not believe every case should go to trial.
I also do not believe every defendant should accept the first reasonable-looking offer.
The question is whether the agreement makes sense based on the evidence, the law, the potential sentence, and what matters most to the client.
Sometimes the right result is a negotiated plea.
Sometimes it is a reduction or dismissal.
Sometimes it is trial.
You should know why you are making that decision before you make it.
If you have been charged with a crime in Colorado Springs or El Paso County, you can learn more about our Colorado Springs criminal defense practice.
If your case involves driving under the influence, visit our Colorado Springs DUI defense page.
You can also contact McDowell Law Firm to discuss your case.
Frequently Asked Questions
Is it better to take a plea bargain or go to trial?
It depends on the case. You need to compare the strength of the prosecution’s evidence, the available defenses, the plea offer, the possible sentence after trial, and the collateral consequences of a conviction. There is no rule that a plea is always safer or that trial is always better.
Do you usually get a lighter sentence if you plead guilty?
A plea agreement often reduces sentencing exposure, but that depends on the terms of the agreement. Some agreements contain specific sentencing limits. Others merely contain a recommendation from the prosecution. You need to know exactly what the judge can still impose.
Can a judge reject a plea bargain in Colorado?
The court plays an important role in accepting a plea and imposing sentence. Colorado Rule of Criminal Procedure 11 specifically addresses when sentencing representations may bind the court. The effect of a proposed sentencing agreement depends on its terms and whether the court approves it.
Can I plead guilty even if I say I am innocent?
Colorado recognizes Alford pleas in appropriate circumstances. An Alford plea allows a defendant to enter a guilty plea while maintaining innocence. It still results in a conviction and must satisfy the legal requirements for a valid plea.
Can I accept the plea bargain on the morning of trial?
Maybe, but you should never count on it. Colorado courts and individual judges can establish plea deadlines. Some El Paso County divisions generally do not accept plea agreements on the day of trial except in extraordinary circumstances.
Can the prosecutor take back a plea offer?
A plea offer can generally change or be withdrawn before it becomes a completed plea agreement accepted by the court. You should ask your lawyer whether the offer has an expiration date and whether any upcoming hearings affect it.
Do most criminal cases go to trial?
No. Most criminal cases resolve without trial. That fact alone does not tell you whether you should plead guilty. Your decision should be based on your own evidence, defenses, potential consequences, and plea offer.
What happens if I reject a plea bargain and lose at trial?
You will be sentenced based on the offense or offenses for which you are convicted, subject to Colorado sentencing law and the particular facts of your case. You generally will no longer have the benefit of the earlier negotiated plea agreement. The difference between the plea offer and potential post-trial sentence is one of the risks you should discuss carefully with your attorney.
Sources
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U.S. Courts: Table D-7, criminal defendants disposed of, 12 months ending September 30, 2025
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U.S. Courts: Table D-10, median time to disposition, 12 months ending September 30, 2025
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Is a Plea Really a Bargain? Plea and Trial Dispositions in New York City
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Colorado Judicial Branch: Criminal Case Management Order, Division 2
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Constitution Annotated: Plea Bargaining in Pre-Trial Process
Recommended
from McDowell Law Firm https://mcdowellfirm.com/plea-bargain-vs-trial/
https://mcdowellfirm.com/practice-area/dui-defense/

