Colorado Domestic Violence Sentencing Law – Understanding The Restrictions on Prosecutors
Domestic Violence cases in Colorado are different. From the Mandatory Arrest laws to the Fast Track Plea Bargaining techniques to the provisions that I have highlighted on this page.
What follows is a close analysis of a statute ( law) that everyone charged with a domestic violence case in Colorado should become familiar with.
The law is not just for lawyers.
Here is the analysis of the law:
18-6-801 – Domestic violence – sentencing.
(1) (a) In addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship, shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence management treatment board as required by section 16-11.8-104, C.R.S. If an intake evaluation conducted by an approved treatment program provider discloses that sentencing to a treatment program would be inappropriate, the person shall be referred back to the court for alternative disposition.
HMS: This provision is the law that requires court ordered treatment.
(b) The court may order a treatment evaluation to be conducted prior to sentencing if a treatment evaluation would assist the court in determining an appropriate sentence. The person ordered to undergo such evaluation shall be required to pay the cost of the treatment evaluation. If such treatment evaluation recommends treatment, and if the court so finds, the person shall be ordered to complete a treatment program that conforms with the standards adopted by the domestic violence management board as required by section 16-11.8-104, C.R.S.
HMS: This provision requires YOU to pay for it.
(c) Nothing in this subsection (1) shall preclude the court from ordering domestic violence treatment in any appropriate case.
(2) Subsection (1) of this section shall not apply to persons sentenced to the department of corrections.
(3) A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were currently or formerly involved in an intimate relationship if the defendant were brought to trial on the original domestic violence offense and upon such a finding by the court.
The prosecuting attorney’s record and the court’s findings shall specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons therefor.
No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3 (1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.
HMS: This is the basic provision – other than DA policies intra office – that requires prosecutors to go on the record to state – as an officer of the court – that they cannot prove their case. This is ONLY required in Domestic Violence labeled cases and in NO other type of cases. This law also requires the DA to delve into the intimate lives of the accused and the victim and determine if they have had sex in the past.
Finally this law requires only enough evidence for a PRIMA FACIE CASE not PROOF BEYOND A REASONABLE DOUBT. DA’s should make their decisions based on whether they can meet the tough standard of proof beyond a reasonable doubt – NOT the bare bones standard of a prima facie case.
HMS: PRIMA-FACIE, EVIDENCE, CASE Latin for “at first view.” Evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted. A very weak standard of proof – evidence.
(4) No person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), shall be eligible for home detention in the home of the victim pursuant to section 18-1.3-105 or 18-1.3-106 or for deferred prosecution pursuant to section 18-1.3-101. Nothing in this subsection (4) is intended to prohibit a court from ordering a deferred sentence for a person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1).
HMS: This statute removes the possibility of home detention in the home of the victim and also prevents a deferred prosecution – the latter is a device sometimes used in plea bargaining that forgoes the need for a plea of guilty – allows the parties to settle the case (usually with a treatment program of some sort) then terminates in a dismissal of the case. The DP is used in every other kind of criminal case.
(5) Before granting probation, the court shall consider the safety of the victim and the victim’s children if probation is granted.
(6) Nothing in this section shall preclude the ability of a municipality to enact concurrent ordinances.
(7) In the event a person is convicted in this state on or after July 1, 2000, of any offense which would otherwise be a misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence as defined in section 18-6-800.3 (1), and that person has been three times previously convicted, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, of a felony or misdemeanor or municipal ordinance violation, the underlying factual basis of which was found by the court on the record to include an act of domestic violence, the prosecuting attorney may petition the court to adjudge the person an habitual domestic violence offender, and such person shall be convicted of a class 5 felony. If the person is adjudged an habitual domestic violence offender, the court shall sentence the person pursuant to the presumptive range set forth in section 18-1.3-401 for a class 5 felony. The former convictions and judgments shall be set forth in apt words in the indictment or information.
HMS: This is the provision that permits the DA to “stack” prior DV cases and enhance the misdemeanor to a felony labeling the accused an habitual domestic violence offender.
Title 18 Part 8. Colorado Revised Statutes – Domestic Violence.
§ 18-6-800.3 Definitions.
As used in this part 8, unless the context otherwise requires:
(1) “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
(2) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.