Colorado Domestic Violence Law Series – Bail Bonds – How Are They Set? What Criteria Is Applied?
Colorado Domestic Violence Law Series – Bail Bonds – How Are They Set? What Criteria Is Applied? – Colorado Domestic Violence cases are very different than almost any other criminal charge.
As a result of the influence of Federal Law – the Violence Against Women Act (VAWA) – most state’s laws are framed to almost presume the guilt of the person arrested for domestic violence.
This “approach” to Colorado Domestic Violence prosecutions begins with the arrest and the setting of bail.
What Judge’s Are Trained To Think About Colorado Domestic Violence Cases
Judges are trained to believe that allegations of domestic violence are unlike other kinds of crimes because of the “increased risk for re-offense or obstruction of justice” when – or if – the accused (almost always a man) is released into the community while the charges are pending.
The Fear Of Future “Contact” With The Alleged Victim
Since the accused – “perpetrator” – most likely lives with his “alleged victim” or has regular contact with that person – judges require evidentiary assurances that no harm will come to that person if the accused is released.
To overcome these “judicial fears” the defense should call – at the bail bond hearing – witnesses such as the alleged victim to quash those presumptive fears. Such ideas as “escape plans” and other safety measures as well as lengthy testimony that the accused presents no threat of harm to the alleged victim should be presented in person before the court.
The Presumed “Control” Of The Accused Over The Victim
Since the accused is believed – presumptively – even in the absence of evidence – to be motivated by a desire to control the “victim” and is believed to may possibly use violence to control the “victim” while the charges are pending – the judge will require evidence to disprove these fears.
In Setting Bond – Judges Reason From National Studies Of Domestic Violence To Your Case of Alleged Domestic Violence
The judges belief is – ‘since I do not know this defendant – but I do know that the “pretrial period is a very dangerous time – and the alleged victim could face retaliation or other threats during the pretrial period. – I must set bond conditions just in case violence occurs.’
The Setting Of Bail in Colorado Domestic Violence Cases
The Law is found in: The Right to Bail under C.R.S. § 16-7-207(1)(e), C.R.S. § 16-2-111. And the U.S. Const., amend. V, VI, VIII, XIV;
At the very first appearance in court – the Trial Judge will advise the accused of their right to bail along with other rights provided under U.S. and Colorado Law.
What the Judge does NOT tell the accused is that – before bail can be set – the alleged victim must be contacted and given an opportunity to be heard on the amount and nature of the bail as well as the conditions of bail under Colorado’s Victim’s Bill of Rights Act – C.R.S. § 24-4.1302.5(b).
To Need To Understand The Impact Of The Colorado Victim’s Bill Of Rights.
Here Is A Summary of The Colorado Victim’s Bill of Rights – § 24-4.1-101 through § 24-4.1-304.)
•To be treated with fairness, respect and dignity;
•To be informed of and present for all “critical stages” of the criminal justice process;
•To be free from intimidation, harassment, or abuse, and the right to be informed about what steps can be taken if there is any intimidation or harassment by a person accused or convicted of the crime or anyone acting on the person’s behalf;
•To be present and heard regarding bond reduction, continuances, acceptance of plea negotiations, case disposition, or sentencing;
•To consult with the district attorney prior to any disposition of the case or before the case goes to trial and to be informed of the final disposition of the case.
•To be informed of the status of the case and any scheduling changes or cancellations, if known in advance.
•To prepare a Victim Impact Statement and to be present and/or heard at sentencing.
•To have restitution ordered and to be informed of the right to pursue a civil judgment against the person convicted of the crime;
•To a prompt return of the victim’s property when no longer needed as evidence;
•To be informed of the availability of financial assistance and community services;
•To be given appropriate employer intercession services regarding court appearances and meetings with criminal justice officials;
•To be assured that in any criminal proceeding the court, the prosecutor, and other law enforcement officials will take appropriate action to achieve a swift and fair resolution of the proceedings;
•Whenever practicable, to have a safe, secure waiting area during court proceedings;
•Upon request, to be informed when a person accused or convicted of the crime is released from custody, is paroled, escapes or absconds from probation or parole.
•Upon written request, to be informed of and heard at any reconsideration of sentence, parole hearing, or commutation of sentence;
•Upon written request, to be informed when a person convicted of a crime against the victim is placed in or transferred to a less secure correctional facility or program or is permanently or conditionally transferred or released from any state hospital;
•To be informed of any rights which the victim has pursuant to the constitution of the United States or the State of Colorado.
•To be informed of the process for enforcing compliance with the Victim Rights Act.
The Setting Or Modification of Bond or Bail Bond Conditions Is A “Critical Stage” In The Colorado Domestic Violence Process
Since the setting of bail in a domestic violence case is a “critical stage” ANY bond reduction or modification requires victim input. In the vernacular – the courts have come to call this “VBR” compliance – or victim’s bill of rights compliance.
If a bond is set lower than scheduled or customary amount for th at specific crime.
If a bond is adjusted as a result of a plea bargain.
If there is any change in the type of bond in the case – such as from a cash to a surety bond.
If there is any modification to a condition of the bond.
…all of these situations – and others require VBR – before changes can be made to the bail or bail conditions.
Denial of Bail – The Constitutional Right To Bail – Even In Domestic Violence Cases
Both the Colorado Constitution and the U.S. Constitution prohibit “excessive bail.”
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Setting of Bond – The Criteria Applied By The Judge
Your Colorado criminal defense lawyer must argue that the primary function of bail is ONLY to assure the presence of the accused. This goal – under the law – means that bail should pose the “least possible hardship upon the accused.”
Factors – under C.R.S. § 16-4-105 – must be applied by the trial judge – in setting bond. Unfortunately- a judge’s decision on the setting of bail and the conditions of bail are well within the discretion of the trial court and that decision will not be disturbed unless there is a very clear case of abuse of discretion.
Here Are Colorado’s Bail Bond Criteria
(1) In determining the amount of bail and the type of bond to be furnished by the defendant, the judge fixing the same shall consid er and be governed by the following criteria:
(a) The amount of bail shall not be oppressive:
(b) When a person is charged with an offense punishable by fine only, the amount of bail shall not exceed the amount of the maximum penalty;
(c) The defendant’s employment status and history and his financial condition;
(d) The nature and extent of his family relationships;
(e) His past and present residences;
(f) His character and reputation;
(g) Identity of persons who agree to assist him in attending court at the proper time;
(h) The nature of the offense presently charged and the apparent probability of conviction and the likely sentence;
(i) The defendant’s prior criminal record, if any, and, if he previously has be released pending trial, whether he appeared as required;
(j) Any facts indicating the possibility of violations of law if the defendant is released without restrictions;
(k) Any facts indicating a likelihood that there will be an intimidation or harassment of possible witnesses by the defendant;
(l) Any other facts tending to indicate that the defendant has strong ties to the community and is not likely to flee the jurisdiction.
Additional Criteria Are Applied In Setting Colorado Domestic Violence Bonds
Notwithstanding the criteria set out above that are applied in ALL criminal cases – judges in domestic violence cases ADD some – or all – of the following criteria:
The Judge Looks More Carefully At Defendant’s Prior Criminal History – with an eye toward violence.
The Judge Looks More Carefully At Weapons Offenses – the prior use of a weapon or firearm to commit and offense or the defendant’s access to weapons.
The Judge Looks More Carefully At “Access To” The Alleged Victim.
The Judge Looks More Carefully At The Nature and Extent Of The Defendant’s Family Connections.
The Judge Looks More Carefully At Attempts Of The Alleged Victim To Leave Or Terminate The Relationship With The Defendant.
The Power Of The DA – Prosecutor To Object To PR (Personal Recognizance Bonds) C.R.S. § 16-4-105(1)(m)-(p.5).
Colorado law in all cases – but particularly domestic violence cases – permits the district attorney to prevent the grant of a personal recognizance (signature only) bond if:
The Defendant is presently at liberty on another bond of any kind in another criminal action involving a felony or class 1 misdemeanor; or
He has a record of conviction of a class 1 misdemeanor within two years, or a felony within five years, prior to the release hearing.
The Judge Cannot Grant A PR Bond Without Reliable Information About The Accused
A Colorado criminal defense lawyer MUST MAKE CERTAIN – at the time bond is set = that the judge has “reliable information concerning the accused prepared or verified by a person designated by the court, or substantiated by sworn testimony at a hearing before the judge, from which an intelligent decision based on the criteria set forth in this section and be made.
This information can be submitted either orally or in writing without unnecessary delay. A lawyer must make certain the witnesses that can support their clients are available to testify at the bail bond hearing.
The Conditions Placed On The Accused In Addition To Posting Bail In Colorado Domestic Violence Cases
One of the most difficult aspects of being prosecuted for domestic violence in Colorado – are the numerous and unfair conditions place on individuals who have merely been accused of a crime of domestic violence.
The law permits a judge “to impose additional conditions upon the conduct of the defendant as will, in the judge’s opinion, render it more likely that the defendant will fulfill the other bail bond conditions, including, but not limited to, the condition that he will appear.”
These include the mandatory protection order and numerous other conditions.
The Mandatory Protection Order As A Condition Of Bond In Colorado Domestic Violence – Criminal Cases
The issuance of the no contact / mandatory restraining order and the many conditions of that order will shock the newly charged person in the Colorado court system.
The mandatory restraining order remains in effect from the time that the person is advised of his or her rights at arraignment or the person’s first appearance before the court and informed of such order ….. until final disposition of the action.
“Until final disposition of the action” – does not mean until the next court date – it means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence.
If the mandatory restraining order – and the most intrusive form of that order – the NO CONTACT ORDER – is not modified or removed before or at the time of sentencing – it remains in effect throughout the period of probation or if there is only incarceration and no probation – until the sentence is completely served.
The BASIC mandatory restraining order restrains the person charged from “harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.”
The NO CONTACT Order enhances the basic restraining order and makes any and all contact – direct contact or indirect contact a violation of the Court’s order and punishable by contempt of court and / or a new criminal case filing called violation of a protection order.
Additional Orders That May Be Placed On The Accused As A Condition Of Bond
The Judge – can order any or all of the following:
(a) An order to vacate or stay away from the home of the victim and to stay away from any other location where the victim is likely to be found;
(b) An order to refrain from contact or direct or indirect communication with the victim;
(c) An order prohibiting possession or control of firearms or other weapons;
(d) An order prohibiting possession or consumption of alcohol or controlled substances;
(e) Any other order the court deems appropriate to protect the safety of the alleged victim.
Note: The court is required, in domestic violence cases, to state the terms of the protection order on the record and require the defendant to acknowledge the protection order as a condition of any bond.
The Protection Order Does NOT Impact The Defendant’s Criminal Defense Lawyer
A mandatory protection order does NOT include the Defendant’s criminal defense lawyer as that person must be allowed access to ALL witnesses including the victim to effectively prepare for all hearings and the trial.
The Judge in A Colorado Domestic Violence Case Can Also Order Pretrial Services
Colorado law § 16-4 103(2)(f) gives a Judge authority to order:
(I) Periodic telephone contact with the defendant;
(II) Periodic office visits by the defendant to the pretrial services program;
(III) Periodic home visits to the defendant’s home;
(IV) Periodic drug testing of the defendant;
(V) Mental health or substance abuse treatment for the defendant, including residential treatment;
(VI) Domestic violence counseling for the defendant;
(VII) Electronic or global position monitoring of the defendant;
(VIII) Pretrial work release of the defendant.
Conclusion – Colorado Domestic Violence Law Series – Bail Bonds – How Are They Set? What Criteria Is Applied?
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