Domestic Violence Basics and Tips
Domestic violence is not actually a charge, but rather a sentence enhancer to be determined by the judge (although some judges have held that this is a question for the jury under Apprendi- see Legal Guide entitled "Domestic Violence Hot and Appealable Issues") as to whether the alleged conduct was actually an act of domestic violence. Even if the jury finds that the alleged conduct occurred, the DA still has the burden of proving that such act was actually an act of domestic violence. "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. Further, the DA must prove that an intimate relationship existed. An "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.
If the judge finds that the alleged conduct was an act of domestic violence, you will be required to undergo a minimum of 36 weeks of domestic violence treatment. Further, due to federal law, a person convicted of a crime of domestic violence is strictly forbidden from ever owning or possessing a gun. A domestic violence conviction can also affect child custody. A person convicted of a crime of domestic violence is automatically considered not in the best interest of the child in any custody battle in Colorado.
In domestic violence cases, the court will automatically issue a Mandatory Protection Order which will remain in effect until the entire case is concluded (including any jail sentence and/or probation). Violating a Protection Order will result in a new criminal case which will be punishable by a fine of up to $2000 and/or a maximum jail sentence of 2 years. However, the protection order can be lifted if the alleged victim goes before the judge and requests that the Protection Order be vacated entirely or modified to allow contact. However, the judge has the final say on the matter after hearing from both the victim and the prosecutor. Common misdemeanor offenses that are charged as a crime of domestic violence are Assault (Third Degree) and/or Harassment -Strike, Shove, Kick. If the alleged victim was pregnant in an assault, there is a mandatory 6 months jail if the defendant is convicted.
You can be charged as a habitual domestic violence offender if your current case follows three prior and separate convictions where there is an underlying domestic violence factual basis. If the DA decides to file your case as a habitual, it will be a felony even if the alleged conduct only constitutes a misdemeanor.
Also, if you have prior convictions or bad acts then the DA may bring those convictions or bad acts in as 404(b) evidence. Generally speaking, character evidence or propensity evidence (saying because you did it before that means you did it again this time) is inadmissible. However, if the DA can show other reasons to bring it in other than character evidence, including but not limited to, motive, intent, plan, absence/lack of mistake, and identity.
TIP: Many DAs wrongfully argue pattern of conduct as a reason to bring in a prior conviction for domestic violence, but if identity is not a genuinely disputed issue than this is an impermissible reason for allowing the prior conviction to come in at trial. Also, there is case law in Colorado that prohibits the admission of a prior conviction for intent when the conduct itself plainly demonstrates the intent. In one case, the defendant was charged with murder after brutally beating his girlfriend. The DA argued that the prior instances of domestic violence should be admitted to show intent. The court ruled that intent was not a genuinely disputed issue because to beat her to death obviously showed that the defendant had malice aforethought. Therefore, the prior instances were not allowed in at trial. For harassment, strike, shove, kick (18-9-111(1)(a)), there is an intent requirement that the defendant, with the intent to annoy, harass, or alarm, struck, shove, or otherwise touched the victim. If the DA argues intent to bring in the prior bad act, then the argument is that the act itself plainly demonstrates intent therefore the prior bad act has little probative value and is merely prejudicial character evidence.
BUT, in Colorado, the legislature has specifically indicated its desire to allow in prior bad acts in relation to domestic violence as it is considered to be a cycle of violence and relevant. Whether this information comes in or not is crucial to the outcome of your case, whomever you hire to represent you needs to fight hard against allowing such evidence in at trial.
NOTE: It does not have to be a prior conviction, it can be a prior bad act. The standard of proof is very low so even a prior arrest can come in at trial if the judge finds it is relevant and not unfairly prejudicial.
Also, people often think the prior bad act has to be "similar" to the present act in order to come in, but the reality is that there is no similarity requirement under 404(b).
TIP: The domestic violence sentence enhancer must be proved by evidence brought in at trial and is a factual determination made by the judge. Thus, the prosecutor must prove the crime charged and that such a crime was committed by someone who was in an intimate relationship with the alleged victim who did so as an act of retaliation, intimidation, coercion, or control. Generally speaking, the defendant admits to the officer that the alleged victim is his/her significant other. By remaining silent about the status of the relationship, it will be difficult for the prosecutor to prove an intimate relationship - assuming the alleged victim does not disclose the status of the relationship. Also, never give up your right to a jury trial!!
Also, if the victim is hand-served with a subpoena, then he/she must appear by law or a warrant can be put out for his/her arrest. Although, a warrant may not be issued as it is within the sole discretion of the DA. Usually, if the case is serious or, if the case is not serious, the defendant has a bad criminal history, then the DA will likely ask for a warrant.