FAQ: Colorado Domestic Violence Cases Part II
FAQ: Colorado Domestic Violence Cases Part II
What happens if I am not a U.S. citizen?
A person charged with domestic violence who is not a United States citizen can face serious penalties. Deportation is required by federal law even if the case ends in probation or deferred adjudication. Re-entry into the United States will probably be denied after arrest, even if the case has not gone to trial.
Who would have access to my record?
The records will be available for anyone with access at the courthouse or over the Internet. Even a deferred adjudication case will be discoverable to any person. Present or future employers will have access to domestic violence records. Unless the case is sealed after successful completion of the deferred period of the judgement. Many landlords now run a background check on prospective renters and deny a lease to anyone with a Domestic Violence, or any convicition for that matter involving a serious crime.
If I successfully complete deferred sentencing or adjudication can I get the records sealed?
Yes, you have the opportunity to file to seal your record in the same District as the criminal case but the Petition to Seal / Expunge is filed before a Colorado Civil Court.
Can I own or possess a firearm?
No. Under 18 U.S.C. § 922(g)(9) (the Lautenberg amendment) anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” can never own, possess, or be in the vicinity of a weapon or ammunition again.
The federal law has no time limitation to it. The permanent loss of the right to possess a firearm, weapon, or ammunition applies whether the case ends in a conviction, probation, or deferred adjudication and that includes any form of plea bargain.
Can I get a national security clearance if I am convicted or enter a plea?
No. You will lose any existing security clearance you hold.
If placed on community supervision, will I have to attend counseling?
A person on community supervision for domestic violence will be required to attend Domestic Violence Treatment program that, in September of 2010, will now be open ended as a result of the previous “one size fits all” mandatory 36 week program.
All Domestic Violence plea bargains will now contain this open ended requirement.
Online classes are NOT allowed under Colorado Law. On-line domestic violence offender treatment “classes” or correspondence courses are not approved by the Colorado Domestic Violence Offender Management Board (DVOMB) nor allowed according to Colorado statute for meeting the requirement of court ordered domestic violence offender treatment. 18-6-801 C.R.S.
Offenders who participate in on-line or correspondence classes are also be required to complete approved domestic violence offender treatment from a Colorado DVOMB Approved Provider which will result in additional costs to the offender.
Can I attend counseling of my own choosing?
Yes and No. You must select a counseling program from a list of approved providers.
Here are some links to assist you in finding an approved provider
Approved Provider List:
What are typical probation/deferred conditions for domestic violence cases?
The defendant is responsible for all costs of counseling and probation. Typical conditions of Community Supervision include
• Jail as a condition of probation;
• Court Costs;
• Victim Impact Panels;
• Counseling for Victim;
• Contributions to Women’s Domestic Violence Shelters;
• Weekly Batterers Intervention Prevention Program Counseling;
• Alcohol Evaluation and Treatment;
• Anger Management Counseling;
• Monthly Probation Fees of $50 per Month;
• No Contact With Victim;
• Random Urinalysis or Breathalizers or both.
• Monthly Reporting To Probation Officer;
• Community Service;
• Electronic Location Monitoring Bracelet;
• Other Conditions the Judge Finds to Be Reasonable.
A domestic violence conviction will result in a finding that domestic violence occurred.
If the defendant enters a plea bargain of any kind, or is found guilty, the trial court must make an affirmative finding of domestic violence and enter the affirmative finding in the judgment.
What does it mean to have a domestic violence finding?
A plea of either guilty or no contest will result in a domestic violence finding even if the sentence is deferred.
A finding of domestic violence can have drastic consequences for a parent facing a child custody or modification case. There probably will be a presumption that the accused is not a fit parent.
What are the possible penalties for a conviction?
It depends on the level of misdemeanor or felony in the resulting conviction. Crimes are placed on a scale of severity and the sentence can run the gamut form probation, to county jail, to prison.
If the accused has prior convictions for domestic violence, a fourth conviction can be prosecuted as a felony offense. If a person is convicted of an offense which would otherwise be a domestic violence misdemeanor and has already been previously convicted three times of acts of domestic violence, the person may be considered a habitual domestic violence offender and a misdemeanor may be increased to a class 5 felony.
If the person is found by the court to be an habitual domestic violence offender, the court would then sentence in the presumptive range for a class 5 felony or 1 to 3 years in the Department of Corrections. The DA has to give notice to the accused that they intend to do this. The DA may amend the charges upward if the accused has a significant domestic violence criminal.
A finding of domestic violence may mean that you will lose custody of your children.
Prepare a vigorous pre-charge defense to avoid prosecution If an attorney says to wait and see if you are formally charged; walk away immediately; the best time to get a dismissal is before a formal charge.
Many times the best method of winning a false allegation case is to defeat it before it officially starts. Evidence can be collected during the pre-charging stage by the defense that does not have to meet the standards of admissible evidence at trial. The defense can produce typically inadmissible evidence such as polygraph examination results, character letters, and other forms of hearsay. The defense can also offer expert-witness reports and affidavits explaining the unreliability and tainted evidence procured by the prosecution.
Here are some common examples of evidence that can be assessed for a charge dismissal packet:
A. Your criminal history
B. Honorable Discharge
C. Education records
D. Polygraph results
E. Polygraph report
F. Psychological and personality testing of client
G. A factual summary of the defense version of the case
H. Sworn statements that the alleged victim has made false accusations in the past
I. Legal research and case law to show reason to not indict
J. Good character letters
K. Availability of defendant and others to testify if requested.
L. Recantations from alleged victims when available.
M. Expert-witness testimony and affidavits regarding tainted evidence comprising the States’ case.
N. Test results showing the accused does not have the psychological characteristics of a batterer.
If your attorney insists that pursuing a pre-charge defense is a waste of time, fire him. Prepare a vigorous defense for trial
If the prosecutor accepts the charge, then the case must be prepared for trial. It is rare for the state to dismiss a case once they have formally filed an assault charge. Your attorney must be prepared to try these specialized types of cases to a jury.
Selection of the jury is critical for domestic violence cases.
The potential jurors come into the case with heavy emotional attachments regarding allegations of abuse to a spouse or intimate partner. Strong emotions held by jurors about domestic violence must be overcome and their attention placed on being fair and acknowledging that false allegations are made. The jury panel must understand the serious potential for injustice a false allegation can cause.
In addition, the defense attorney must educate the jury panel on how false allegations could be made. The panel needs to understand how an alleged victim can make false and exaggerated statements and what motivation exists to do so.
The attorney must be well skilled in cross-examination to show deficiencies in the state’s investigation through a preconceived assumption of guilt shared amongst the advocacy team. Cross-examination is a skill obtainable only through years of trial practice itself.
The attorney must also be prepared to offer strong defense witnesses. Contrary to many criminal cases, the accused must testify in a domestic violence case if the defense wants an acquittal. Until the jury hears it straight from the accused’s mouth that the abuse did not occur, it will convict.
“Fast Track” Domestic Violence Programs in Colorado
Many Colorado cities and counties have so called “Fast Track” Domestic Violence Programs. The belief is that the fast-track system say is a better way to deal with domestic violence than the previous system, which took six weeks to nine months to resolve. Fast-track advocates say victims are less likely to recant, and abusers more likely to repent and reform when punishment comes quickly.
“The closer the consequence is to the conduct, the more there’s a connection between cause and effect,” said Doug Miles, a deputy district attorney in El Paso County Colorado who specializes in domestic violence and oversees fast-track prosecutions. “The longer the wait, the more you see denial and minimization.”
What the Courts and law enforcement are not telling you is that after a night or several nights in jail sometimes with no means to post bond, people are desperate to “get out” and will take a plea bargain even though they are innocent of the charges. This is coercion – not justice.
Do NOT plea bargain under any circumstances. At least not without the counsel or actual assistance of a Colorado Criminal Defense lawyer.
True domestic violence is criminal and has, fortunately rarely, resulted in tragic consequences. However, the cure has now become more abhorrent than the disease. Governmental overkill has created the Domestic Violence Industry. A needless bureaucratic machine defining innocent family members as batterers is the inevitable outcome of “zero tolerance” and “no drop” policies.
Further, law enforcement and related agencies have assimilated into a system of arrogance and self-righteousness believing they, and they alone, know what is best for the family. They end up – often – destroying the families and lives they are seeking to protect. Often they do not seek to do justice, but to expand and grow at the expense of those truly victimized, the individual family they claim to assist.
Americans now face a well funded and driven system intent upon finding domestic violence for every minor and insignificant transgression. Every lover’s quarrel has now become “domestic violence” in this new era.
(Credit for much of the content of this article is Given to the Texas Equal Justice Organization.)