Colorado Criminal Domestic Violence Law – Understanding The Colorado Laws Governing Dismissal In Colorado Domestic Violence Cases
I am asked on a regular basis as to why – if the alleged victim in a Colorado Domestic Violence case wants the case dismissed – the case cannot just be “dropped.” What follows are the Laws, Rules and regulations that govern the dismissal of Colorado DV prosecutions.
Dismissals in Domestic Violence Cases
Dismissals of criminal cases do ocurr – and – because of the nature of the cases themselves Colorado domestic violence cases have a higher rate of dismissal than other kinds of criminal cases. This is due to the victim’s unwillingness to cooperate in the prosecution and certain evidence issues that cause problems for the prosecution in trial.
In cases where dismissal is appropriate, and the victim requests dismissal, if the case is dismissed – the prosecutor must establish for the benefit of the judge that the case is being dismissed based on the evidence and not the victim’s request.
Judges believe that if dismissals are automatically granted when the victim so requests, the message to the defendant and victim is that the victim, not the court or prosecutor, controls the case. This, the argument is made, provides a perpetrator with less incentive to stop the violent behavior since it becomes clear that the criminal court action can be avoided through intimidation and control of the victim.
Colorado Grounds for Dismissal Crim. P. Rule 48
By the State.
No criminal case pending in any court shall be dismissed or a nolle prosequi therein entered by any prosecuting attorney or his deputy, unless upon a motion in open court, and with the court’s consent and approval. Such a motion shall be supported or accompanied by a written statement concisely stating the reasons for the action.
The statement shall be filed with the record of the particular case and be open to public inspection. Such a dismissal may not be filed during the trial without the defendant’s consent.
By the Court.
If, after the filing of a complaint, there is unnecessary delay in finding an indictment or filing an information against a defendant who has been held to answer in a district court, the court may dismiss the prosecution.
Except as otherwise provided in this Rule, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, the pending charges shall be dismissed, whether he is in custody or on bail, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.
A Trial judge’s authority to dismiss criminal charges on his or her own motion prior to trial, except as expressly authorized by statute or rule, is narrowly limited.
If a trial judge had doubted the credibility of the charge, even though a factual basis for the guilty plea existed, the judge’s duty was to vacate the guilty plea, enter a plea of not guilty and set the case for trial, and the trial judge has no authority to dismiss the case prior to trial.
The Prosecution has broad discretion in Domestic Violence cases to decide to dismiss the case.
The Speedy Trial Dismissal
When a court denies a motion to continue a trial and then dismiss the charges, the appellate courts will examine the court’s ruling from an abuse of discretion standard. A motion for continuance is addressed to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed in the absence of an abuse of discretion
The ABA Standards for Criminal Justice–Speedy Trial provide that a court “should grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.” Standard 12-1.3, at 12.11.
Of paramount importance is whether granting a continuance will affect the defendant’s right to a speedy trial.
The Rights of The Victim Under the VRA (Victims Right Amendment)
Victims will often request charges be dismissed against the domestic violence defendant. The VRA does not require dismissal if the victim so requests. Further, a prosecutor is not required to dismiss the charges just because the victim requests under the VRA.
Improper Grounds For Dismissal – Statutory Authority
C.R.S. § 18-6-801(4) Deferred Prosecutions ( they are not allowed as they do not require an admission of guilt)
A district attorney may not dismiss the case pursuant to a deferred prosecution under C.R.S. 18-1.3-101.
C.R.S. § 18-6-801(3) Dismissal of the Domestic Violence Designation – The Domestic Violence “Tag” – Label
A District Attorney may not dismiss the “domestic violence” designation (tag) unless the DA represents “in good faith on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were or formerly involved in an intimate relationship” .
A Victim’s request to dismiss the charges does not require dismissal under the VRA. Gansz v. People, 888 P.2d 256 (Colo. 1995).
The Victims Rights Amendment Applicable to Notification of Dismissal of Charges
The VRA applies to any crime designated as an act of domestic violence by a law enforcement officer prior to the filing of charges, C.R.S. §24-4.1- 302(1)(bb.3); or when an offense is identified by the district attorney in the charging document as an act of domestic violence, C.R.S. §24-4.1- 302(1)(bb.7);
Dismissal of the case is a critical stage under the VRA, requiring notification. The critical stages of the criminal justice process are listed at C.R.S. §24-4.1-302(2).
While the VRA requires notification to the victim of the dismissal of the crime, the VRA does not grant a victim standing or a right to contest a district attorney’s decision to dismiss the charges. Gansz v. People, 888 P.2d 256 (Colo. 1995).
VRA applies to the Judiciary.
C.R.S. § 24-4.1-302.5(1)(a).
The Court must ensure the VRA is complied with prior to dismissal of charges.