Colorado Domestic Violence Cases – A Birdseye View
What is domestic violence?
Colorado domestic violence law addresses the so called emotional and psychological harm to alleged domestic violence victims.
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 or any municipal ordinance violation against a person or against property, 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
(3)” 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.
Source: Colorado Revised Statute 18-6-800
To be deemed domestic violence, the couple involved does not need to be sexually intimate. They merely need to represent themselves as a couple, of different sexes or the same sex.
What is a domestic violence offense?
There is not a Colorado penal code statute entitled “Assault — Domestic Violence.” Despite what offense may have been written on the judge’s warning or bail bond, the actual offense is typically for “Assault.” or “Harassment.
The majority of family violence cases are charged as Class misdemeanors in which it is alleged the defendant caused some kind of harm to the victim. In cases in which “serious bodily injury” is alleged, or a deadly wepaon was used, the offense is characterized as a felony.
What evidence do the police need to make an arrest?
An officer must arrest if probable cause exists to believe that a crime against another occurred and that victim was someone with who the actor has had an intimate relationship. Colorado there is no requirement that bodily injury occurred. For most crimes, a peace officer in Colorado is given discretion when and where, and even if, to charge and or arrest someone. Not so in Domestic Violence Cases.
If officers are called out and they have probable cause to believe someone committed an act of Domestic Violence, the suspect of the crime must be arrested. The legislature has told the officer that he must do this “without undue delay” meaning that if the person is there, the arrest must be made then and there. In addition, the arrested person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard.
Domestic Violence Can Be Any Crime
It’s commonly misunderstood that Domestic Violence charges mean that someone was violent during the events concerning the charge. In Colorado, “Domestic Violence” of course means an act or threatened act of violence upon someone with whom the accused has had intimate relationship. But that is not the only way a crime may be classified as “Domestic Violence.” It also includes any crime committed as a means of coercion, control, punishment, intimidation, or revenge against an intimate partner. So, for example, if a girlfriend breaks her boyfriend’s Sony Playstation when he is not even home, but because she is mad he went out with another girl to the movies, it is arguably an act of domestic violence.
Again, domestic violence is not a crime in and of itself. Domestic violence is an enhancement (defense lawyers and judges sometimes call it a “tag.”) to other criminal offenses such as harassment, assault, trespassing, and destruction of property. Upon conviction, the domestic violence enhancement carries additional sentencing considerations, including mandatory perpetrator treatment.
Do the police need a warrant to arrest me?
For most crimes, a peace officer in Colorado is given discretion when and where, and even if, to charge and or arrest someone. Not so in Domestic Violence Cases. If officers are called out and they have probable cause to believe someone committed an act of Domestic Violence, the suspect of the crime must be arrested.
The legislature has told the officer that he must do this “without undue delay” meaning that if the person is there, the arrest must be made then and there. In addition, the arrested person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard.
What happens if the alleged victim decides she does not want to prosecute?
The State will prosecute the case anyway. A victim cannot “Drop Charges.” Only the State “Presses Charges” For whatever reason, the person who reported the crime may decide they no longer want to pursue a case (perhaps they never wanted to go forward with the case); this does not however mean that the case will be dismissed on that fact alone. All crimes in Colorado are said to be affronts to the peace and dignity of the State. Despite someone being designated the victim, only the DA who is prosecuting the case can make the call about whether the case goes forward or not. Except for unusual circumstance, even a judge cannot dismiss the case
What is zero tolerance?
Zero tolerance means the police will make an arrest without exception after a family argument if they have probable cause to believe any bodily injury has occurred.
What is a no drop policy?
A “No Drop Policy” means the State will prosecute all domestic violence cases without exception, even if the victim wants the case dismissed and has filed an affidavit of non-prosecution.
Will I be allowed to “make bail?”
Not until you are taken before a magistrate (judge) and advised of her mandatory restraining order and otherwise advised…
What is the advisement?
After an arrest the accused will be brought before the magistrate for the advisement. At this hearing, the magistrate will read the accused their legal rights, set bail, and issue an emergency protective order.
What is an Emergency Protective Order?
An emergency protective order is issued against the accused by the magistrate at the arraignment hearing. The protective order may
• Evict the accused from their residence;
• Prohibit the accused from possessing or being in the vicinity of a firearm, weapon, or ammunition;
• Prohibit the accused from communicating directly with a person protected by the order or a member of the family or household in a threatening or harassing manner;
• Going to or near the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or the residence, child care facility, or school where a child protected under the order resides or attends.
What happens if I violate the emergency protective order?
Violation of the emergency protective order results in a separate criminal offense punishable by a fine or by confinement in jail for as long as one year, or both. An act that results in domestic violence or a stalking charge may be prosecuted as a separate misdemeanor or felony offense. If the act is prosecuted as a separate felony offense, it is punishable by confinement in prison for at least two years.
Can the judge kick me out of my own house?
The protective order may evict the accused from their residence
Can I be ordered not to have any contact with my wife or children?
In Colorado this is the primary position of the judge. The restraining order in effect prohibits direct or indirect contact with the “victim” or any other relation to her, or any of her friends.
Can I get the protective order modified, changed, or dismissed?
The court that issued the emergency protective order can modify all or part of the order after each party has received notice and a hearing has been held. In order to change or modify the order. Some of the considerations for the Judge at that hearing.
(1) the order as originally issued is unworkable;
(2) the modification will not place the victim of the offense at greater risk than did the original order; and
(3) the modification will not in any way endanger a person protected under the order.
What if my spouse or girlfriend says she will not enforce the protective order?
Only the Judge or substitute judge can change an emergency protection order or set it aside. No other person can give permission to anyone to ignore or violate the order. Such orders work only one way. You are restrained, the “victim” is not subject to the jurisdiction (power and authority) of the court.
How long is the protective order in effect?
An emergency protective order is in effect for length of the case AND which includes the length of probation. In Colorado the mandatory restraining order issued in criminal cases of DV remains in effect until the case is dismissed, the defendant acquitted, the sentence, including probation, is completed, or the case is reversed on appeal. A civil restraining order for domestic abuse becomes permanent (lifetime) after the temporary orders hearing as a result of another hearing ( like a trial) called a permanent orders hearing.
Can I own or possess a firearm while out on bail?
No! Under 18 U.S.C. § 922(g)(8) (the Lautenberg amendment) it is a Federal felony to be in possession of a weapon or ammunition while under a restraining order involving domestic violence or abuse, and that includes military and peace officers.
Under Colorado, after arrest a magistrate will usually issue an emergency protective order, which will prohibit the arrested person from possessing a firearm.
The magistrate or judge assigned the case can make additional bond conditions, which prohibit the accused from possessing a firearm while the case is pending.
However, Federal law supersedes state law.
What kind of conditions will I be under while out on bail?
A magistrate can require any condition to bail that he or she finds to be reasonable as long as it is related to the safety of the victim or the community.
In most cases this will mean there is to be no contact between the alleged victim and the defendant. Once the case has been assigned to a court, that judge may order additional conditions of bond. You may also be required to wear an electronic location-monitoring bracelet.
The prosecutor must notify family law court of an arrest for domestic violence if temporary orders regarding custody or possession of a child are in effect
The prosecutor must notify a family law court of an arrest for family violence if the family law court had previously entered temporary orders.
Should we meet with the prosecutor to get the case dismissed?
Sometimes the alleged victim wants to meet with the prosecutor to change her story and get the charge dismissed.
This procedure needs to be skillfully handled by an attorney. If your spouse or girlfriend meets with either the prosecutor or police investigator alone, she may be threatened with arrest and prosecution if she wants to change the original story. The prosecutor may threaten to charge her with making a false statement to a police officer and/or perjury.
Can the case ever be dismissed?
Yes, even with a “no drop” or “zero tolerance” policy, an experienced and effective attorney might be able to eventually influence the prosecutor to drop the case. Prosecutors, despite great overtures about caring for the victim and similar altruistic posturing, care very much about winning. Winning the case and advancing their career is important to every prosecutor. As a n former career prosecutor for over 13 years I am fmailiar with the subculture. The alleged victims are just numbers whose faces and situations will be forgotten by the prosecutor with the start of the next case.
The defense motivates the prosecutor to dismiss. Prosecutors hate to lose cases. If confronted with a case that cannot be won they will try to deviate from office policy to dismiss, “just this one time.”
What if there is no physical evidence of bodily injury?
In many cases evidence of injury is slight, or no physical evidence of injury may exist at all. The State will prosecute the case anyway.
How could I be found guilty if there is no physical evidence?
The State can get a conviction solely on the testimony of the alleged victim without any physical evidence of bodily injury.
What if the victim does not show up for trial?
The State will subpoena her for trial. If she does not appear the judge may issue an arrest warrant). The Sheriff may arrest your spouse or girlfriend and bring him / her to the courthouse. If she cannot be located, the judge may also grant the State’s motion for a continuance. If she cannot be found, even after a continuance, the Judge may dismiss the case or the DA refuse to go forward and concede dismissal
Even in weak cases, the DA may have admissible evidence such as:
1. The 911 dispatch tape;
2. Statements to the investigating police officers;
3. Written or recorded statements of your spouse or girlfriend. ( Note that without a victim’s testimony) Written or recorded statements may now be inadmissible after the United States Supreme Court decision in Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229.
Can the case be won at trial?
These cases are frequently won at trial by skilled criminal defense attorneys. In many situations, the argument involved both parties and any physical assault was actually mutual combat. Self-defense is a defense to prosecution under Colorado and all states law. Many DV cases that go to a jury trial with a competent criminal defense attorney are won by the defendant. Bench or “Judge” trials are most often lost ….
Consequences of a conviction or plea bargain
Will an arrest or conviction be on my record?
A conviction, probated sentence, deferred sentence, deferred adjudication, or any form of plea bargain will result in a permanent criminal record. However, a case that has been deferred or placed in a diversion program can later be sealed (expunged) under Colorado Law.
A plea of guilty (a plea bargain is a guilty plea), or no contest to the charge or a finding of guilt, will result in a criminal record even if the defendant is placed on probation or deferred adjudication and successfully completes the community supervision period.
In Colorado there are only three ways to remove a domestic violence arrest record. An attorney can have the records of arrest expunged (destroyed) if the state never files a case or if the case is won at trial, or dismissed after the deferred judgement period of time has lapsed.
There is no method by law to expunge, destroy, or seal domestic violence convictions. In extremely rare cases it is possible to get a pardon from the state’s governor that will remove the conviction from the individual’s record. Usually a pardon can only be requested after the sentence is completed.