An internal Denver City Attorney’s Office memorandum instructs prosecutors who know evidence is insufficient to prove a careless-driving case to delay dismissing the charge until a defendant is about to give his plea or until the day of trial.

“If you do not feel the facts support careless, ignore it when making an offer, but do not dismiss it until (defendant) pleads or the trial date,” according to the “traffic plea offers” memorandum obtained by The Denver Post.

Denver defense attorneys say the practice, which carries the threat of a misdemeanor rather than a simple traffic offense, is often used as a cudgel to persuade defendants — particularly the poor, who may lack an attorney — to plead guilty to other charges.

After inquiries from The Post, the city attorney’s office defended its strategy but said it is now in the process of revising the memorandum.

“A prosecutor’s job is always to seek justice, never to play deception games in order to force a plea bargain out of an uninformed defendant,” said Dan Recht, a Denver defense attorney who has taught ethics courses.

Recht said the practice is unethical and may justify an audit of Denver’s careless-driving cases. A prosecutor cannot continue to prosecute a crime when they know they don’t have probable cause to prosecute that crime, he said of the memo.

“That is hiding the ball from the defendant and therefore an ethical violation,” he said.

Colorado legal tenets describing “special responsibilities of a prosecutor” prohibit prosecutors from pursuing charges they can’t prove.

“The prosecutor in a criminal case shall: … refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause … (and) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense,” the state canon of ethics says.

Prosecutors must dismiss charges immediately when they determine there is insufficient evidence to prove a case, said Ross Koplin, a Denver defense attorney with expertise in handling traffic offenses.

According to the city attorney’s office, the memo could be taken out of context.

“The statement … fails to include what our prosecutors already know — that the police officer is not available at that time to respond to the driver’s explanation, and therefore many times, the prosecutor won’t know all the facts until right before trial. We will be clarifying the language in this internal document,” the statement says. “These guidelines do not direct our attorneys to prosecute charges that are not supported by the facts, and they never would.”

The statement adds: “Unfortunately, given the high volume of cases in our traffic courtrooms, the opportunity to speak with the officer typically doesn’t occur until the trial date when the officer must appear for trial.”

It also states: “We try not to dismiss charges that would entitle a defendant to a jury trial without really good cause.”

The memo says careless driving is a “versatile charge that can be used for any accident or unreasonable/imprudent driving.” It instructs prosecutors to determine whether the defendant is appropriately charged. If not, the prosecutor should add the more appropriate charge without dismissing the careless-driving charge “as a safety measure.”

Recht said Denver could be exposing itself to liability because of the practice, which he said violates the U.S. Constitution’s due-process clause.

“It certainly could result in an internal audit of plea bargains,” he said.

Koplin explained that careless driving is a misdemeanor criminal traffic offense, which is a more serious charge than most civil traffic infractions, including running a red light or speeding, and comes with greater penalties. Prosecutors routinely file the vaguely written charge because it gives them plea-bargaining leverage, he said. It is also routinely used as a redundant charge, he said. Someone charged with running a stop sign and causing an accident is often charged with the civil traffic infraction of running a stop sign and careless driving, he said.

“It wasn’t the intent of the legislature that every time someone is in an accident they should be charged with a crime,” Koplin said. But that is how Denver and other municipal police and prosecutors construe the law, he added. As a result, Denver issues 10 times more careless-driving tickets than it should, he said.

James Coyle — who heads the Colorado Supreme Court’s Counsel, which investigates violations of Colorado rules of professional conduct by attorneys and prosecutors and can censure, suspend or disbar attorneys — said he could not comment on ethical allegations publicly and declined to comment about the memo.