Colorado Domestic Violence Restraining Orders – The Trick -Making Me Break the Restraining Order
By Colorado Criminal Defense Lawyer for the Defense of Criminal Restraining Order Violations – H. Michael Steinberg
Introduction – One of the most difficult and troublesome issues for a defendant in a domestic violence case is NOT COMMUNICATING with the alleged victim. This is a trap for the unwary – calls from the jail are recorded, friends become informers, relatives side with your significant other. This article addresses some strategies to prevent a violation of a Colorado Criminal or for that matter, a Civil restraining order.
The Tactic At Trying To Provoke A Violation Of A Colorado Restraining Order
Do not allow your significant other to provoke you into breaking the restraining order. In Colorado, even a minor violation of a restraining order is grounds for arrest. If your partner tries to get you to break the order, document the action and seek immediate legal advice.
What follows are some common examples of deceptive tactics, and actions in restraining order settings – and the methods you should take to combat them:
• If your partner calls on your cell phone, do not answer.
• If your partner sends a text message, do not reply.
• Do not accept an invitation to come over to your partner’s house to “kiss and make up.”
• If you should happen to see your partner on the street, immediately turn around and walk away.
• If your partner comes to your residence “just to talk things over,” do not accept the offer.
• Do not enter the person’s car, even to leave something for the children, or even if your partner asks you.
• Do not allow your partner to provoke you to engage in retaliatory violence.
• Respond to the provocation by shielding yourself with your hands and physically backing away.
• Do not push your partner away or restrain your partner’s arms.
• Do not block your partner from leaving the room or grab the person by the wrist to get her to stay and talk.
• Avoid engaging in verbal conflict. Do whatever you can do to de-escalate the situation.
• If possible, activate your cell phone to record the incident.
•Afterwards, document exactly what your partner said and did.
There are now a number of ways to track your movements, which can make it easier for a person to claim you violated the terms of the order. At the first sign of a false allegation, request a copy of this evidence, because many surveillance records and videotapes are purged after a few weeks (do not place a tracking device on your partner’s car):
•Cell phone GPS
•Car GPS (e.g., On-Star, Garmin)
•Credit card transactions
•Video surveillance systems
Traps – During child visitation exchanges:
• Bring a third party with you.
• Park well away from your partner.
• Do not make eye contact with the other party.
• Complete the exchange and leave as quickly as possible.
• Keep a daily log of your activities and whereabouts, as evidence that you did not violate the terms of the restraining order.
Remember to always be alert and be on your guard.
Civil/Criminal Penalties/Sanctions for violation of a protection order Colorado
C.R.S. 18-6-803.5 (2009) C.R.S. 18-6-803.5 Crime of violation of a protection order – penalty – peace officers’ duties
(2) (a) Violation of a protection order is a class 2 misdemeanor; except that, if the restrained person has previously been convicted of violating this section or a former version of this section or an analogous municipal ordinance, or if the protection order is issued pursuant to section 18-1-1001, the violation is a class 1 misdemeanor.
(a.5) A second or subsequent violation of a protection order is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). C.R.S. 18-1.3-501 (2009) 18-1.3-501. Misdemeanors classified – penalties (1) (a) Misdemeanors are divided into three classes which are distinguished from one another by the following penalties which are authorized upon conviction except as provided in subsection (1.5) of this section:
C.R.S. 13-14-103 (2009) 13-14-103: Emergency protection orders (4) If any person named in an order issued pursuant to this section has not been served personally with such order but has received actual notice of the existence and substance of such order from any person, any act in violation of such order may be deemed sufficient to subject the person named in such order to any penalty for such violation. (6) A person failing to comply with any order of the court issued pursuant to this section shall be found in contempt of court sleeping aids and, in addition, may be punished as provided in section 18-6-803.5, C.R.S.
Civil/Criminal Law Enforcement provisions for violation of a protection order
C.R.S. 18-6-803.5 (2009) 18-6-803.5. Crime of violation of a protection order – penalty – peace officers’ duties
(3) (a) Whenever a protection order is issued, the protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a protection order.
(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that (I) The restrained person has violated or attempted to violate any provision of a protection order; and (II) The restrained person has been properly served with a copy of the protection order or the restrained person has received actual notice of the existence and substance of such order.
(c) In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid protection order whether or not there is a record of the protection order in the registry.
(d) The arrest and detention of a restrained person is governed by applicable constitutional and applicable state rules of criminal procedure. The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer’s station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made, or the arrested person may be taken to the jail in the county where the protection order was issued. The law enforcement agency or any other locally designated agency shall make all reasonable efforts to contact the protected party upon the arrest of the restrained person. The prosecuting attorney shall present any available arrest affidavits and the criminal history of the restrained person to the court at the time of the first appearance of the restrained person before the court.
(e) The arresting agency arresting the restrained person shall forward to the issuing court a copy of such agency’s report, a list of witnesses to the violation, and, if applicable, a list of any charges filed or requested against the restrained person. The agency shall give a copy of the agency’s report, witness list, and charging list to the protected party. The agency shall delete the address and telephone number of a witness from the list sent to the court upon request of such witness, and such address and telephone number shall not thereafter be made available to any person, except law enforcement officials and the prosecuting agency, without order of the court.
(4) If a restrained person is on bond in connection with a violation or attempted violation of a protection order in this or any other state and is subsequently arrested for violating or attempting to violate a protection order, the arresting agency shall notify the prosecuting attorney who shall file a motion with the court which issued the prior bond for the revocation of the bond and for the issuance of a warrant for the arrest of the restrained person if such court is satisfied that probable cause exists to believe that a violation of the protection order issued by the court has occurred.
(6) (a) A peace officer is authorized to use every reasonable means to protect the alleged victim or the alleged victim’s children to prevent further violence. Such peace officer may transport, or obtain transportation for, the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the protected person, who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order allocating parental responsibilities with respect to such child or an order for the care and control of the child and whether or not the other parent objects. C.R.S. 13-14-103 (2009) 13-14-103: Emergency protection orders (7) At any time that the law enforcement agency having jurisdiction to enforce the emergency protection order has cause to believe that a violation of the order has occurred, it shall enforce the order. If the order is written and has not been personally served, a member of the law enforcement agency shall serve a copy of said order on the person named respondent therein. If the order is verbal, a member of the law enforcement agency shall notify the respondent of the existence and substance thereof.