Aggravating Factors, Mitigating Factors, and Defenses.
Aggravating Factors, Mitigating Factors, and Defenses.
There are several different parts to any criminal case that can be exploited to get a more favorable resolution. Are there mitigating factors? What are the aggravating factors the prosecutor is relying on? Can you dispute them? While defense are sometimes considered "mitigating," many times aggravating factors and mitigating factors are in a different from legal defenses.
When prosecutors are evaluating a case for a possible plea offer, they will typically consider the existence and nature of any aggravating factors. The most common aggravating factor is a prior record of similar convictions. For example, if a person has 2 prior DUI convictions, the third DUI charge is going to result in a much harsher plea offer than if the person was on their first DUI.
Aggravating facts are sometimes based upon statute. For example, whether the victim of the crime was "at risk" pursuant to Colorado law. C.R.S. 18-6.5-103. Another example would be that a each DUI offense in Colorado has a different type of penalty depending upon whether or not the individual has any prior DUIs. C.R.S. 42-2-1301.1. Yet another example of a statutory aggravator would be Colorado's habitual statutes. In Colorado, a person can be charged as a habitual criminal, a habitual domestic violence offender, or a habitual burglar based upon prior convictions. C.R.S. 18-3-801; 18-6-801.
Sometimes aggravating factors are not based upon statute but based upon the facts of a case. For example, if a particular prosecutor believes that the defendant in a case committed a particular crime in an especially aggravated way. An example might be a Third Degree Assault charge where a victim has bruises all over his or her body vs. a Third Degree Assault charge where the victim says he or she felt pain but there is no visible injury. Another example would be a DUI where the driver was swerving all over the road in all lanes, eluded the police, and hit a light pole vs. a DUI where the only bad driving was that the driver had expired tags on the plate. Other examples of non-statutory aggravators could be if a prosecutor believes a defendant played some kind of leadership role in a group and influenced or controlled other defendants.
How is a Defense Different than an Aggravating or Mitigating Factor?
Many times, there is overlap between defenses and aggravating and mitigating factors. If a person picks up an assault charge but believes he acted in self defense, the affirmative defense of self-defense may apply. However, a prosecutor may not necessarily believe that self-defense can be established but may acknowledge that the defendant was "provoked" and make a different plea offer based upon that mitigating information.
Sometimes there isn't much overlap at all. A defendant may have a genuine substance abuse issue that was the catalyst for several property related crimes like theft or burglary. In this situation, the mitigating factor, the underlying drug issue, is not at all related to the facts of the crime. It is, however, many times a fact that can be pointed out by the defense to provide context and hopefully obtain a more favorable plea bargain (as opposed to a defendant that is committing these types of crimes that does not have a substance abuse issue).
Challenging Aggravating Factors and Presenting Mitigating Factors
As anyone in the legal system will tell you, reasonable minds will disagree. Just because a prosecutor confidently proclaims something to be an aggravating factor does not make it so. The challenge in many criminal cases is to determine whether the facts the prosecutor is relying with regard to aggravation are actually true. Does the defendant actually have prior domestic violence offenses that would make him or her a habitual domestic violence offender? Are the injuries really as severe as the prosecutor claims? Sometimes challenging the facts the prosecutor is relying on to aggravate the plea offer is as important as challenging the facts that the prosecutor claims support the charge.
Sometimes correctly identifying what is and is not true with regard to aggravation can make a world of difference in resolving a case. Sometimes it can be the difference between several years in prison and probation.
Typically, the flip-side of any aggravating factors can be a mitigating factor. Mitigators may include, but are not limited to, any of the following:
Lack of any prior criminal record;
Minor role played in the offense;
Culpability of the victim (the victim was not "helpless" or "at risk");
Substance abuse or other mental health issues that may provide context;
Circumstances at the time of the incident that do not necessarily excuse the criminal activity but offer an explanation;
A good lawyer will be able to dig deep into the facts of any case to find and exploit the mitigating factors. As long as the proposed mitigator bears some relation to the case, a defense attorney should consider it. Judges and prosecutors are people and all people are different. What one judge and proseuctor do not consider as mitigating another may.
You Will Need an Experienced Criminal Defense Attorney.
If you have been accused of a crime and your future is in jeopardy, do not go into the fight without an experienced advocate that can identify the aggravating and mitigating factors in your case and help you obtain the best possible result. Choosing an experienced lawyer is the best decision you can make early on in your case. Mr. Merson defense people with pending DUI charges in Longmont, Berthoud, Erie, Firestone, Frederick, Lyons, Mead, Niwot, or Dacono. To schedule a free consultation, call The Merson Law Office at 970-219-2923 or 303-776-3511. Or fill out an intake form here.
Merson Law Office, LLC 636 Coffman, Suite 200 Longmont, Colorado 80501 firstname.lastname@example.org (970) 219-2923 or (303) 776-3511 Hours: 9:00 am - 5:00 pm
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