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We are facing charges – careless driving resulting in BI and failure to yield to a pedestrian on a crosswalk – even though we did not see the pedestrian. It is pretrial and we have received differing advice from 2 lawyers. One (flat rate) says extenuating circumstances (night/dark, pedestrian wearing all black, road construction-crew and equipment, blinding lights at crosswalk) are not arguable with the DA at this point. Other (hourly rate) wants to start full investigation immediately. Will it help our case to investigate and present to the DA? If yes, how would it be beneficial? If no, why not and when in the case would it be most beneficial to pursue?
Asked on February 22, 2011 under Criminal Law, Colorado
Answered 14 years ago | Contributor
Really what you mean are mitigating circumstances, which are facts that may play in the reduction of charges against you. Here are my concerns: one, that the attorney who charges a flat rate fee does not want to do ant extra work on the case AND the one that charges an hourly rate wants to make as much on the case as he can. Neither says too much for my profession but the inverse of both of those leaves you wondering who to believe regardless. Generally speaking, in criminal cases the law is the law. And yes, there can be mitigating factors in sentencing but the fact remains that you as the driver have a duty to yield to a pedestrian in a crosswalk. You have a much bigger responsibility here. There is no law that says you have to wear colors at night that drivers can see. There is I am sure a law that indicates that you as a driver have to be aware of your surroundings - even if they change because of construction - and drive safely and accordingly. And if you can not see because of blinding lights you can not proceed safely and you should not proceed at all. These factors may help you in the civil litigation to shift some of the burden - and there will be one am sure - but I do not know if they help from a criminal standpoint. Maybe you need to ask each of these attorneys the question about mitigation in the manner I have laid out here: even in light of each of these mitigating circumstances what is my obligation as the operator of a motor vehicle under the law and how does that effect my case? Good luck.
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