General Concepts

        a. Statute of Limitations. After a criminal violation, the state may only bring criminal charges for a limited time. For most crimes, the statute of limitations is as follows: Misdemeanors - 18 months. Felonies - 3 years. CRS 16-5-401  Refer to the above link for more detailed information.  Once a person has been arrested or given a summons and complaint, the statute of limitations no longer applies. In most domestic violence cases, the arrest occurs shortly after the alleged criminal act, thus negating the statute of limitations. If you fail to appear for court, a warrant is issued to preserve the court's jurisdiction. The statute of limitations does not then apply.  

        b. Speedy Trial. Once a plea of not guilty is entered, the court must hold your trial within 6 months or dismiss the case. We are all entitled to resolution of criminal charges. Given fast track settings, this will not likely apply in domestic violence cases. If you fail to appear for court, a warrant is issued to preserve the court's jurisdiction; speedy trial does not apply.  Refer to the above link for more detailed information.

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Classification
Special Treatment for Domestic Violence Crimes

        A crime of domestic violence is treated differently than the same crime allegedly committed against a stranger. Fast track, CBI central registry reporting, employment limitations and weapon possession or ownership are major differences. Many people think the O.J. Simpson case in California was the impetus for domestic violence harsh prosecution as it now exists. In fact, the movement got underway and coalitions were formed in the mid 1980's - long before Simpson.

        FAST TRACK. The El Paso County District Attorney's Office worked for several years with surrounding area law enforcement agencies, hospitals, mental health professionals and T*E*S*S*A (fka the Center for Prevention of Domestic Violence) to establish a system to rapidly prosecute domestic violence cases. Visit their website -  DIVERT Partners - pretty impressive list of adversaries against each individual domestic violence defendant.  The local court also established "fast track" procedures which dovetail.  "Fast track" common circumstances are indicated below.  

        a. In most cases, the altercation or argument which underlies the criminal charge(s) occurs late at night or in the early morning hours. Law enforcement are called on scene by yourself, your significant other, or a neighbor. Law enforcement will come even if you call but never speak (911 traps all phone numbers, including non-published.) One or both of you will likely be charged with a crime under state policy; police will arrest regardless of your desires or your spouse's desires. Law enforcement will arrest on the basis of the alleged victim's statement alone - law enforcement officers arrest with no physical injury or supporting evidence.

        b. When arrested, the suspect (defendant) will be held in jail overnight without bond until he or she can be advised by the court of a statutory temporary 72 hour restraining order prohibiting contact with the alleged victim, return to the residence or return to the victim's place of employment. CRS 18-1-1001   Pending advisement, bail bond is not permitted.  I believe that is a violation of constitutional rights, but not yet tested in the Colorado appellate courts.

        c. After booking in the early morning hours, the suspect barely drops off to sleep before the personal recognizance bond eligibility investigator arrives. The defendant may miss breakfast. The suspect is taken to the courthouse for advisement in the early afternoon.

        d.     The alleged victim is brought in to the prosecutor's office at approximately 9 am for a conference to determine the facts, document evidence and provide input regarding punishment he or she would like to see imposed. The alleged victim does not have the ability to withdraw criminal proceedings.  If uncooperative, the alleged victim is confronted with impeachment by statements he or she made which are contained in police reports (sometimes inaccurately recorded or embellished by investigating officers), mandatory court appearance by subpoena (non-appearance punishable by jail) and the possibility of being treated as an adverse or hostile witness by prosecutors.  

        e. During the morning hours following the offense, prosecutors receive the victim's statement, witnesses statements, police reports, photographs, medical reports or other evidence.. In court it may appear to a lay person that the state has its case together in an iron clad fashion.

        f. After being shown a movie concerning rights, the defendant is taken into a courtroom in handcuffs (possibly leg irons also) and placed in the jury box, isolated from family or support who may be sitting in the gallery. Subsequent to court advisement, while still cuffed, the prosecutor may stand or hover over the defendant while negotiating. If occurring, this skews the power structure even further.

        g. If a defendant pleads not guilty, a trial date is scheduled in 60 days or sooner with a trial readiness hearing set in less time. Hopefully you didn't waive your jury trial right.

        h. Defendant bonds out in the late afternoon or early evening hours.

        i.  Each of the above circumstances have existed in cases I personally have defended.  It happens.

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Amendment of Charges

        Regardless of the charges initiated on a summons and complaint by a law enforcement officer, the District Attorney's Office ultimately has total authority to charge, amend or dismiss. Any one of the following actions will likely result in charges..

                a. You block your spouse's path of exit or movement (frequently standing in a doorway or in front of your spouse)
                b. You shove or touch your spouse in anger
                c. You throw items in anger or break property
                        even your own property
                d. You threaten your spouse
                e. You argue with your spouse and swear
                f. You repeatedly insult, taunt or challenge your spouse or communicate using offensively coarse language a manner likely to provoke a violent or disorderly response (in other words, your argue vehemently or are vulgar
                g. You are ordered not to contact your spouse and you later do
                        That includes a phone call to see if he / she is ok
                        Yes, I've defended that too when a client didn't take my no contact advice
                h. Without consent, you listen in on your spouse's conversations or tape record your spouse's conversations (felony punishable in the state penitentiary)
                i. You hang up the phone or pull the cord from the wall when your spouse is attempting to place a call
                j.  Refer to the DV-Offenses page for a summary of offenses frequently charged.

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Prosecution Preparation

        a. Prior Bad Acts. Prosecutors will attempt to introduce prior transactions (domestic violence or abuse incidents). By law, prosecutors must provide you notice by filing a notice of intent to introduce similar transactions and state the purpose of the evidence. They usually cite common plan, scheme or design, motive, modus operandi, lack of mistake, knowledge or evidence to negate an affirmative defense you may claim such as self-defense. The defendant may file an objection, in which case a hearing is held outside the presence of the jury to determine admissibility. That's a court fight with important effect on the potential outcome of your trial. When deciding guilt, you do not want a jury to hear this type of evidence. Although the jury would be instructed of the limited purpose for which they may consider the evidence, human tendency may be to subconsciously think... bad actor - did it before - did it again.

        b. Cycle of Domestic Violence. Prosecutors will likely endorse an expert to testify regarding the cycle of violence and symptomology. That type of evidence may be the subject of dispute.

        c. Improper Testimony Inducement -
                Threat to Prosecute Recanting Alleged Victim
 
                1.  In cases where I did not represent the DV defendant, alleged victims who wished to retract have called seeking advice for themselves.  Such alleged victims have informed me they have been intimidated by local prosecutors who stated that if the alleged victim recants (denied the DV allegation), he / she (alleged victim) would be charged with false reporting to authorities, a Class 3 Misdemeanor.  CRS 18-8-111 or perjury.  Perjury in the first degree is a Class 4 Felony.  Perjury in the second degree is a Class 1 Misdemeanor.  False Swearing is a Class 1 Petty Offense.  
 
                2.  Attorney comment.

        In 1997 my investigator obtained an admission on tape from an alleged victim that she had reported false allegations against my client (former boyfriend); that my client had not been present at the alleged location on the alleged date or time.  She freely admitted the charges were initiated to please her current boyfriend who was jealous of my client.  The circumstances of false reporting were credible and had the indicia of reliability.  The tape was offered on a silver platter to the El Paso County DA Office for prosecution.  DA Office management declined to prosecute, indicating as a policy determination there were simply inadequate resources to prosecute initial allegations plus subsequent recants, and if the DA Office prosecuted this case, they would have to prosecute all recants.
        On July 31, 2003 counsel confirmed with the chief prosecutor the policy of the El Paso County DA Office has been and remains to call the alleged victim to the witness stand, then put on expert testimony regarding the cycle of domestic violence to discredit the victim witness' recant.  The chief prosecutor was adamant that the prosecution's policy not to file criminal charges against the recanting alleged victim would remain unchanged while he is management.  This is based upon tragic circumstances of a former case.  The county court chief prosecutor referenced above has been promoted and is no longer involved in county court domestic violence prosecutions.  DA Office policy may have changed.
        If the El Paso County DA Office in fact has a no prosecution policy, yet subordinate, individual deputy district attorneys are threatening prosecution of the alleged victim to obtain testimonial evidence, that may be prosecutorial misconduct which may support dismissal motion, motion for a special prosecutor, could affect an appeal, could be misconduct which may subject the individual deputy prosecutor to disciplinary proceedings - C.R.P.C. §§ 3.4(b), 4.1(a), 4.4, 8.3(a) - and may constitute extortion - a class 4 felony (F-4), CRS 18-3-207.  Tell your defense attorney if prosecutors or law enforcement officers have made threats of criminal prosecution to the alleged victim in order to induce testimony.
        This attorney has never seen a prosecution for false reporting or recant perjury, but who knows what charges may be brought by zealous prosecutors.
        Refer to Affirmative Defense- Perjury - Retraction .

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Defense Preparation

        a. Motions. 
            1.  Defense counsel frequently files a discovery motion to learn the facts alleged in the prosecution's case. Counsel may also a motion to suppress alleging the defendant's rights were violated, claiming evidence which is fruit of the poisonous tree should be suppressed (excluded). Motion in limine may be filed alleging evidentiary exclusion on other than constitutional .grounds. If relevant, your attorney may also file a motion to gain access to medical, mental health or other confidential records of the alleged victim or if relevant, to require psychiatric or psychological evaluation of the alleged victim. Access to confidential records or victim evaluation is not standard procedure. You must be present in Court for motion hearings.
        b.  We are all human - periodically the law enforcement officer(s) make(s) an error on the summons.  Some errors are sufficient to deprive the court of jurisdiction to hear the case.  If an error exists, it may be worth making a big ta-do because it may result in dismissal or a more favorable plea offer.

        b. Victim Prior Bad Acts or Aggression. Refer to link for information.

        c. Victim or Witness Credibility for Truth. Credibility of an alleged victim or witness may be impeached by testimony of reputation in the community for truth or veracity. Specific instances of lying are not admissible except on cross examination regarding inconsistent statements made in the course of this case or relevant to this case.

        d. Private Investigation. You should not discuss this case with any witness or the alleged victim. Prosecutors will not hesitate to file intimidation of witness felony charges. I request a trust deposit to cover expenses for a private investigator.  Witness statements should be taken from any law enforcement, medical or paramedic or lay witnesses who may testify. A transcript of the witness' statement is useful in trial preparation, as well as for impeachment purpose at trial or hearing. Counsel can not testify in any case in which representation is provided. It is also common for the investigator to photograph the scene. An investigator looks for all evidence - favorable and unfavorable. Your attorney does not wish to be surprised at trial.

        e. Subpoena or Subpoena Duces Tecum. A subpoena is a document which requires attendance at hearing or trial and attendance. A subpoena duces tecum requires someone to appear and produce a specified document or item of evidence. Your witnesses will generally be given a subpoena to appear. Law enforcement 911 and dispatch call screens (aka computer assisted dispatch - CAD) will likely be placed under subpoena duces tecum. Your attorney may issue others for production of evidence from any agency, medical provider or person. I utilize the services of a reputable private process server.

        f. Endorsements and Jury Instructions. Your attorney will likely file the following documents in preparation for trial: witness endorsement, exhibit endorsement, theory of defense endorsement, affirmative defense endorsement (if relevant) and jury instructions.  Defendant in a criminal case is entitled to an instruction based on his theory o defense so long as the tendered instruction is in proper form and based upon evidence in the record. People v. Jones, 635 P.2d 904 (Colo. App. 1981).

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Trial

        At a trial, your guilt or innocence will be determined, and it must be decided unanimously. If charged with misdemeanor, you have the right to a trial by jury of six (6) persons, or to the judge alone. Felony gives right to a twelve (12) person jury, or court trial. The right to trial by jury should never be given up without advice of counsel; it is an important right. At trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt. You are presumed innocent unless and until the prosecution proves you guilty. You may remain silent, or you may testify if you choose. You may call witnesses and make them come to court by subpoena. You may confront and cross-examine witnesses against you. This will be a criminal trial with all rights attached. If you are found not guilty, the case is concluded. If you are found guilty of any charge, including a lesser charge, the case is set for sentencing. You must be present in court for a trial or a sentencing hearing.

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Assessment or Evaluation for Sentencing

        An assessment or evaluation is conducted by one of the treatment agencies before sentencing to determine the extent (if any) of domestic violence / anger in your life, and your history. A report is made to the court.  The Court is free to accept or reject the recommendations when imposing the sentence. At sentencing, the Court has the options of imposing a fine, court costs, jail, domestic violence counseling classes or therapy, anger management classes or therapy, marital counseling, alcohol or drug education or therapy, public service, alcohol anonymous meetings, or any other condition reasonably related to rehabilitation. You must be present in court for sentencing.

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Sentencing

        Each case is different; judges impose sentence based upon the facts of each case. In El Paso County, jail can be but is not usually imposed on a first misdemeanor offense if the case is properly presented and the facts are not aggravated. On a second misdemeanor offense, it is common for a sentence of 30+ days jail to be imposed. A third misdemeanor offense can draw 4-9 months jail. However, bear in mind these are generalizations, and may change in any case based upon the facts and circumstances surrounding the case. Felonies are more serious, much more so if crime of violence is charged against you. 
    Misdemeanor Cases - Jail Sentence Imposed
    a.    You may qualify for work release.  That means you would be released from custody in time to go to work and would be due back to the detention facility shortly after finishing work.
            1.  You must provide a letter on company letterhead verifying days and hours of employment.
            2.  The local jail (CJC) has a maximum release policy - 12 hours per day, 6 days per week.  COMCOR work release facility did not have a maximum release policy the last I checked.
            3.  To verify your employment status you must be available by land line telephone - not cell phone.
            4.  To be able to drive to and from work, you must provide a current driving record reflecting valid driving privileges plus insurance currently in effect.
            5.  The cost is approximately $15 per day.
    b.    You may qualify for home detention - also known as ankle bracelet.  Courts have generally left ankle bracelet determination to the sheriff's office or COMCOR, but that is changing with jailhouse overcrowding due to DUI first offense mandatory jail sentences and some judges are imposing direct sentences to home detention.
    c.    You may qualify for day reporting.  That means you would report between 1 - 5 times per week to an agency which monitors your compliance with conditions of probation and may request random breath, blood or urine samples to check for alcohol or drugs.
            1.  To verify your employment status you must be available by land line telephone - not cell phone.
            2.  To be able to drive to and from work, you must provide a current driving record reflecting valid driving privileges plus insurance currently in effect.
            3.  The cost is approximately $6 per day report.
    d.    The El Paso County DA Office has taken a posture in misdemeanor cases that second offenders should spend at least 30-60 days straight jail time or 1.5 - 2 times the number of days with work release or some other combination with day reporting.  Based upon the shift in El Paso County DA Office settlement policy to imposition of straight jail without work release, this attorney believes settlement negotiations are no longer worthwhile in any misdemeanor case unless conducted within the context of motion and trial settings.  This is unfortunate as trial posture increases fees and costs, but unavoidable based upon El Paso County DA Office policy.

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Client's Preparation for Sentencing

        If you plead guilty to or are found guilty of a domestic violence crime, you will be ordered to commence domestic abuse counseling classes or therapy. Please refer to the DV-Classes page for a summary list of state certified classes in the local area regarding domestic violence and anger management.

        Although useful public service or alcohol education may likely not be ordered, upon request I has included quick links, as well as a remedial webpage.

Plea Offer

        a. Deferred Sentence. The District Attorney's Office has a no drop charge policy. In negotiations, prosecutors may offer you a deferred sentence. Under that mechanism, the defendant pleads guilty, however sentencing is delayed for a period, usually 2 years. If you complete the domestic violence counseling classes and have no other violations of law, your plea of guilt is withdrawn and the case or relevant charge dismissed.

        b. Waiver of Rights to Seal. The last numbered paragraph of the deferred sentence form pre-printed by the El Paso County District Attorney's Office contains an express clause wherein the defendant waives his or her rights to seal criminal justice records under CRS 24-72-308, the sealing of criminal justice records statute. If signed, the defendant's records of this offense maintained by the CBI, FBI, law enforcement agencies, courts, prosecution, and any evaluation or treatment agencies are wide open for use in a later domestic violence allegation.  For additional information, refer to the Sealing Criminal Justice Records page.

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Central Registries - Identification as Abuser

        Pursuant to Colorado law, a central registry identifying domestic abusers is maintained by the Colorado Bureau of Investigation (CBI) in Denver.  When a domestic violence injunction (restraining order) has entered or a domestic violence criminal conviction, a person is identified and tagged with the case number and location.  In a domestic disturbance call, once the parties are identified law enforcement officers immediately check the CBI Central Registry.  If your name pops up, guess who is likely to be charged in a new investigation?  Same song, second verse except the jury potentially hearing about a prior.  The Department of Human Services (DHS - formerly DSS) maintains a statewide identification central registry of all reported child abuse.  These records have major impact upon a person's future, not only pertaining to potential future criminal charges, but possibly affecting education or employment opportunities.  Jury trial is likely a criminal defendant's only alternative to pleading guilty or accepting an offer which leaves the person vulnerable.

QUICK SENTENCING GRID   CRS 18-1.3-401 Felony and CRS 18-1.3-501 Misdemeanor