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7 Defenses to Your Colorado Domestic Violence Case

Domestic violence (“DV”) charges are among one of the most serious offenses you can face in the judicial system. In addition to the potential loss of freedom, there are many additional collateral consequences that can greatly impact your life. It can also impact your immigration status and ability to remain in this country.  

If you or a family member have been accused of or charged with domestic violence in Colorado, you are concerned about protecting your freedom, rights, reputation, job, and future. It’s important to understand:

  • What constitutes domestic violence under Colorado laws
  • Why domestic violence cases are so difficult
  • 7 ways you can defend yourself against domestic violence charges
More Than 20 Million People Are Falsely Accused of Domestic Violence Yearly

Many domestic violence accusations are false. According to the Center for Prosecutor Integrity, eight percent of all claims of domestic violence are untrue, with more than 20 million people around the country falsely accused each year.

An accusation or charge of domestic violence can cause irreparable harm to you, your career, your reputation, your future, and your family. The consequences of an accusation of domestic violence are long-reaching and deeply damaging. 

Media portrayals of domestic violence and well-meaning public campaigns stress that we must trust people who say they are victims of abuse. This is absolutely true if they are telling the truth. But what about the innocent people accused of domestic violence who didn’t do it or did something that is being falsely interpreted as domestic violence? Who speaks for them?

BURNHAM LAW SPEAKS FOR YOU.

We are committed to defending you against wrongful charges of domestic violence so that you can preserve your life, your career, your financial well-being, your reputation, and your family and move forward with your plans for your future. 

The deck is stacked against anyone accused of domestic violence in Colorado. If the police think the accusation is at all believable, they have to arrest you. If you are arrested for a domestic violence related offense, a protection order will be issued, and you will not be released from jail until you acknowledge the order and sign it. Protection orders are mandatory in all DV related cases and are issued automatically with very little fact-finding. Before you have any chance to tell your side of the story, you’re already labeled as a criminal and an abuser. You are not given an opportunity to refute the claims against you until the case goes to a trial, many months down the line. Once you’re in the system, it’s very hard to get out of it unscathed. 

Your side of the story matters to us. We make sure the judge and jury hear it. Just because someone says you committed domestic violence doesn’t automatically make it true. There are many defenses to domestic violence, and our firm is familiar with all of them. Call us today at (303) 625-9193 for help.

Domestic Violence Charges in Colorado Are Particularly Difficult to Deal With

Colorado C.R.S. 18-6-800.3 defines domestic violence as “an act or threatened act of violence” or any crime 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.” This definition sounds somewhat complex, but as you will see, it’s actually a lot easier to apply and charge someone under it than you might think, which places you, as a domestic violence defendant, in a very difficult and risky position. 

Here are some of the reasons why Colorado domestic violence charges are especially problematic:

All Intimate Relationships Are Subject to Domestic Violence Charges

Domestic violence charges are much more prevalent in Colorado than you may think. These charges are brought based on the nature of the relationship between the accused and the alleged victim. If the parties have ever been in an “intimate relationship” with each other, the charges may include the DV designation. That sounds pretty clear-cut, but courts determine if there is an intimate relationship on a case-by-case basis. If you have children together, there is automatically an intimate relationship, but one can be found in a variety of circumstances. Even high school students who call themselves boyfriend(s)/girlfriend(s) can be charged with domestic violence.   

A sexual relationship is not required for a court to determine there is an intimate relationship. You don’t have to live together to qualify. If you dated three years ago and a crime is alleged today, domestic violence charges can be added to the case simply because of this past relationship. Because of this, many people are charged with so-called domestic violence when they don’t even consider themselves to be in a relationship with the alleged victim. 

In 2019 in Colorado, 419 domestic violence protective orders were issued. 36.8% of women and 30.5% of men in Colorado report being victims of domestic violence. With at least a third of the State’s population identifying themselves as alleged victims, there is pressure on the police and courts to reduce these statistics through enforcement, treatment, and jail.  

It is very frustrating for those accused of DV, especially those without any prior criminal history, to be lumped together with violent offenders. For example, anyone who enters a plea for a domestic violence related offense must complete a domestic violence evaluation and complete all recommended treatment. Thus, those charged with minor offenses must undergo the same evaluation as those charged with extraordinarily aggravated crimes. Therefore, the courts often treat all offenders the same for expediency purposes. Burnham lawyers can humanize you to the court and explain why you should not be treated like everybody else.  

A Domestic Violence Designation is a Sentence Enhancer to the Underlying Criminal Offense

Whenever anyone is accused of a crime (no matter how big or small) against an alleged victim who is or has been involved in an intimate relationship with the accused, a domestic violence designation attaches to the offense simply because of that relationship under C.R.S. 18-6-800.3. This “designation” triggers mandatory penalties, such as a DV evaluation and treatment, not required for the same offense committed against a stranger.

Domestic violence charges in Colorado are sentencing enhancements, not separate crimes. They are added on to a crime to attempt to get a stronger sentence against the accused. A person is never just charged with domestic violence. Domestic violence is added on when another crime is charged first.

Domestic Violence Does Not Require Actual Violence

A common misconception is that a domestic violence offense requires actual violence. As DV is a sentence enhancer added to the underlying charge, virtually anything can be domestic violence related. For example, people are frequently charged with criminal mischief – DV because they damaged the alleged victim’s property. The alleged victim does not even need to be present when this occurs. However, since it was done 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.”  

Some of the crimes that commonly have the domestic violence designation attached to them are:

  • Assault (C.R.S. 18-3-202, -203 and -204)
  • Criminal Mischief (C.R.S. 18-4-501)
  • Elder Abuse (C.R.S. 18-6.5-103)
  • False Imprisonment (C.R.S. 18-3-303)
  • Harassment (C.R.S. 18-9-111)
  • Menacing (C.R.S. 18-3-206)
  • Sexual Contact (C.R.S. 18-3-404)
  • Stalking (C.R.S. 18-3-602, called Vonnie’s Law)
  • Theft (C.R.S. 18-4-401)

While these are the common charges in which you will find an add-on of domestic violence, domestic violence charges can be added onto any criminal charge, as well as any violation of a municipal ordinance. Suppose you take $20 out of your boyfriend’s wallet without permission.  In that case, domestic violence can be added to a charge of theft simply because you are in a relationship, even if no actual violence actually occurred. Any crime involving someone you are involved with, or used to be involved with, can have domestic violence designations added on to it. 

You Are Automatically Arrested

If a person alleges that you committed domestic violence, C.R.S. 18-6-803.6 requires the officer to arrest you if they think there is probable cause that you committed the offense. In many cases, there is no physical evidence or witnesses, so the officer simply takes the alleged victim at their word. The general policy gives the alleged victim the benefit of the doubt. This means that many people are arrested falsely, based simply on someone else’s word.  

You Can Lose Your Gun Rights

If you are a gun owner or a military service member, your gun rights are extremely important to you. If you are found guilty of a domestic violence charge, C.R.S. 18-6-801 requires a mandatory gun right relinquishment. If your charge sticks, you will no longer be permitted to own, buy, or possess a weapon. Weapons include hunting equipment such as bows and arrows.  For someone in the military, this can be a career-ending situation. And for a hunter or anyone passionate about protecting themselves, this can be a devastating loss. If you are convicted of any domestic violence related offense, even petty offenses, you will have your gun rights taken away permanently. 

You Can Be Deported

If you are a non-citizen, you could face deportation if you are convicted of domestic violence. This can happen even if you have a spouse or children and a job in the United States.

You Can Lose Your Children and Your Right to Make Decisions Regarding Them

A conviction of domestic violence can result in you losing custody or visitation with your children. If you are already divorced, separated, or have a custody order in place, the other parent can use your conviction to modify the existing order and reduce or remove your rights entirely. If you are currently married or in a relationship, a domestic violence charge can be used against you when and if the other parent files for divorce or custody.

You don’t have to be actually convicted of domestic violence for the alleged incident to affect your parenting rights. Under C.R.S. 14-10-124 (1.5)(b)(V), domestic violence is a factor the court must consider when determining custody and visitation. If there is a preponderance of the evidence that domestic violence occurred, the court will consider it. This means you don’t actually have to be convicted for the allegation to impact your rights as a parent.  

If the court determines that, by a preponderance of the evidence, one of the parties has committed an act of domestic violence,  has engaged in a pattern of domestic violence, or has a  history of domestic violence, the court shall not award joint decision-making if the other party objects. There is a presumption that  it is “not  in  the best  interests of  the child to allocate mutual decision-making over the objection of the other party.” C.R.S. §14-10-124(4)(a)(II)(A).

Every Case Results in a Mandatory Protection Order (MPO)

Under Colorado law, every time a charge of domestic violence is entered, a mandatory order of protection is issued under C.R.S. 18-1-1001. The protective order states that the accused must avoid the alleged victim AND may not possess weapons while the order is in effect. Violating an MPO (C.R.S. 18-6-803.5) is a class 1 misdemeanor and can result in up to 18 months in jail or a fine of up to $5000. The MPO is entered without a trial and without you having a chance to defend yourself.  

The Accuser Cannot Drop the Charges

If the person accusing you of domestic violence decides to come clean and be honest that you didn’t do it, it doesn’t matter. The decision to drop the charges can only be made by the prosecutor. Once the arrest is made, your case will not necessarily be dismissed, even if the accuser recants their accusation. The prosecutor will evaluate the case and can even proceed without the alleged victim’s testimony. 

Repeat Offenders Are Punished More Harshly

You are considered a repeat offender if you have been convicted of three prior domestic violence charges. Under C.R.S. 18-1.3-401, 18-6-801, your next offense is automatically a Class 5 felony which is punished with up to four years in prison. 

There Are Mandatory Sentencing Rules

C.R.S. 18-6-801 sets out mandatory sentencing for domestic violence convictions. A “DV” designation cannot be removed or plea bargained away “unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the criminal offense.”  C.R.S. 16-21-103, C.R.S. 18-6-800.3(1), C.R.S. 18-6-801(a).

Probation

If you receive probation for your offense, there are several mandatory components you must complete:

  • Domestic Violence Evaluation and Treatment It does not matter what kind of domestic violence or underlying crime you are convicted of. Even if there is no finding of any kind of actual violence, evaluation and treatment are mandatory. There are three tracks of treatment that are determined by the evaluation you undergo. You must undergo treatment and evaluation to complete your probation. Everyone who receives probation must participate in some level of treatment. 
  • Fines You are required to pay fines, including the court fees and the actual cost of your own probation.
  • Loss of Firearms A probation sentence includes the loss of the right to carry, own, buy, or possess firearms or ammunition.
Jail Time

If you receive a prison or jail sentence, the sentence’s length depends on the underlying crimes you are convicted of. You could face up to 2 years in jail for misdemeanor offenses and up to life in prison for felony offenses. Sentencing depends on the nature of the offense, any prior history, and the victim’s input regarding punishment.  

There Are 7 Important Defenses to Domestic Violence Charges

You absolutely must take any domestic violence charge seriously and work with an experienced Colorado domestic violence defense attorney. Your life and liberty are valuable, and you deserve the best defense possible. 

There are 7 defenses to domestic violence charges you must be aware of:

  1. I did not do it, and I am not guilty.
  2. I did not do it, and the other person is lying.
  3. I did something, but it was in self-defense.
  4. I did something, but it was an accident.
  5. I did something, but it doesn’t fit the definition of domestic violence.
  6. I did it, but the victim will not cooperate or testify in court.
  7. I did it, but the State cannot prove it beyond a reasonable doubt.

These defenses are crucial paths to reclaiming your life, reputation, and career. 

1. I Didn’t Do It, and I’m Not Guilty

If you did not commit the underlying crime you are accused of, your attorney will be able to present a case that proves your complete innocence. If the underlying crime didn’t happen, domestic violence didn’t happen either. If you didn’t do it, your attorney will rely on witnesses, physical evidence, police reports, and other key elements to show the jury you did not commit the crime. 

An alibi can be an important way to prove your innocence. Your attorney will carefully review with you exactly what happened and where you were at the time of the alleged crime. 

2. I Didn’t Do It, and the Other Person is Lying

There are a lot of reasons an accuser might lie about domestic violence:

  • Jealousy If you were or are together and you cheated or moved on to another relationship, a domestic violence accusation is a common way for a jilted or hurt person to react. However, although you might have broken someone’s heart or simply needed to move on, you don’t deserve to be charged with a crime.
  • Anger/Revenge If a current or former partner is out to get you, falsely claiming domestic violence is one way to try to punish you. This behavior could stem from unresolved pain from the relationship, from someone being manipulative and unreasonable, or it could simply be an argument that momentarily reached an explosive boiling point. Falsely accusing the other person of domestic violence can be a heat of the moment tactic stemming from a few seconds of unreasonable rage. 
  • Custody Tactic Because an accusation of domestic violence can impact a child custody case and impact the allocation of parental responsibilities and decision-making, the other parent may allege domestic violence to try and gain an advantage in a custody case.
  • Confusion The alleged victim or a witness could have misinterpreted an action you took. They could be reporting what they think happened, but in actuality, they really did not see what they thought they saw, or they only saw one moment of a longer situation that led them to be confused about the truth. 

He said/she said cases are the classic example of cases in which the accuser is lying. The accuser says one thing happened. The accused says something else happened. In this type of case, your acquittal is dependent on your attorney’s skill. If there is no evidence to support either position, it all comes down to credibility. Your own credibility may be the key to success, and a skilled attorney knows how to portray you and your role in the alleged situation.

A big part of domestic violence trials involves victim testimony. Even if you didn’t do it, the jury could choose to believe the accuser. Because of this, you should work with an attorney who knows how to carefully and sensitively question accusers and get the truth to come out without angering the jury. An experienced attorney can carefully help the jury see the accuser’s motives for falsely accusing you. 

3. I Did Something, But It Was Self-Defense

Colorado law allows you to defend:

  • Yourself
  • Another person
  • Your property or home

Self-defense is a defense against assault and other crimes, and against domestic violence designations that are added to another criminal charge. If you are charged with domestic violence and you were simply acting in self-defense, you are innocent of the charges.

Your attorney will prove that you were placed in a position where you had to defend yourself, another person, or your home or property. The prosecution may present evidence that you harmed or threatened the alleged victim. They might show actual physical injuries, such as a scratch or a bruise caused by your actions. But if you were reacting to something someone else did or threatened to do to you, your attorney can help you prove your actions were in self-defense.

If you are a male charged with domestic violence against a woman, the jury may come into the case assuming that there’s no way you would ever need to defend yourself against a female. But this kind of situation is not unusual. If a female accuser attacked you or threatened to harm you, defending yourself is within your rights. 

Juries sometimes find it hard to believe that a man could actually be the victim of domestic violence, but it is much more common than most people believe. When a man is harmed or threatened by a woman he is in an intimate relationship with, he is the victim of domestic violence and is entitled to use self-defense to protect himself. 

Men are often taught not to lay a hand on a woman. Because of this, sometimes a man will try to ignore or deflect a situation in which a woman is attacking him or threatening him because he’s been taught to never touch her. These situations can escalate to the point where the male has no choice but to push or shove the female attacker away to stop the onslaught, resulting in a charge of domestic violence. An experienced attorney can succinctly argue this type of self-defense.

There are also situations where a woman has no choice but to defend herself against a threat or attack and is then wrongly charged with domestic violence. A common situation is where a man, who is bigger or stronger, backs a woman against a wall or into a corner, confining her in a threatening way, causing her to believe he is going to hurt her. She pushes him or hits him to get away, making the first actual physical contact, and then is charged with domestic violence because she laid a hand on him. This kind of situation falls under self-defense, and any woman who strikes out in such a situation has an excellent defense against the charges brought against her. 

Your attorney will work with you carefully to understand the exact circumstances that led to the incident in question and clearly isolate the ways in which you were attacked, provoked, and threatened, leaving you with no other option but to use self-defense. 

 

4. I Did Something, But It’s Not What You Think 

Eyewitness testimony is notoriously unreliable but relied upon heavily in criminal cases.  

You’ve heard the phrase, “perception is reality,” which is true in all of life, but it can have significant unintended consequences in the criminal arena, particularly in domestic violence cases. The bottom line is that witnesses are frequently wrong in their reporting, misunderstand the context of the conduct, or are trying to be helpful, so they “add” details to help investigators. An experienced and knowledgeable attorney can help put the conduct into context if you find yourself accused of a crime.

There is a strong presumption that victims are telling the truth, as discussed above. In instances where they deny any criminal conduct occurred, there is a presumption that they must be covering for their abuser. So, what happens when an eyewitness misinterprets a situation and the police are called? While this may seem unrealistic, it happens more often than you would think.  For example, a woman is heard screaming, “stop it! Please stop!” Worried, a neighbor calls the police, reporting that a woman is yelling and sounds like she needs help. The police show up and see that she is just playing with her kids who are chasing her around with water guns. The police observe this and realize there is nothing to investigate. However, not all cases are so easily cleared up.   

A common scenario where an eyewitness misreads a situation and leads frequently occurs when one or both of the parties are drunk. For example, a very intoxicated couple is “dancing” on the sidewalk. The man tries to “twirl” his girlfriend, who is so unstable on her feet that she falls down. He tries to help her up, but she falls again. An eyewitness sees the woman falling and the man standing over her. The police are called and observe that she is drunk and bleeding. She tries to tell the police that she “fell.” The man is not very coherent but admits to dropping her. The man gets arrested for harassment-DV, spends the weekend in jail, and a protection order is issued against him. It can take a long time, if ever, to convince the DA that the alleged victim is not covering for her boyfriend and that nothing happened. Without a skilled attorney, this situation could result in criminal ramifications.  

Causing or being involved in an accidental injury is not domestic violence. If you find yourself in this situation, you must work with an experienced attorney who can lay out the truth for the jury and protect you. 

5. I Did Something, But It Wasn’t Domestic Violence

Domestic violence convictions must fulfill the requirements of C.R.S. 18-6-800.3. This means that either there was violence or threatened violence against an intimate partner OR any other crime was committed against an intimate partner for the purpose of coercion, control, punishment, intimidation, or revenge.

If these elements do not exist in your case, or cannot be proven beyond a reasonable doubt, you must have an experienced attorney to protect your rights and convince a jury of your innocence.   

6. I Did It, But the Victim Won’t Cooperate or Testify

In Colorado, it is not up to the victim to press charges. If an arrest is made, only the prosecutor has the discretion to dismiss the case. Even if a victim wants the case dismissed, it is up to the DA to determine whether to proceed with the charges. It is not uncommon for an alleged victim to refuse to testify. That fact alone does not mean that the prosecution cannot proceed. They may have other evidence or testimony to prove your guilt even without the alleged victim’s participation. However, domestic violence is a crime that often happens “behind closed doors.”  If that is the case, the victim may be the only witness that can prove your guilt. You should never attempt to pressure or dissuade an alleged victim from testifying. It may result in felony charges and have significant consequences to your case. 

In false reporting cases, an alleged victim may choose to exert his or her 5th Amendment privilege and avoid being called as a witness. The assertion of their 5th Amendment rights indicates that they are concerned that their testimony may incriminate them. A hearing would need to be held to determine if an alleged victim actually has the ability to assert their right to remain silent.

While uncommon, some Colorado jurisdictions will arrest alleged victims who have been subpoenaed but fail to appear in court. This is the absolute worst-case scenario because both parties are now facing criminal consequences for the incident. Having a strong advocate can help navigate these roadblocks and fight your case head on. 

7. I Did It, But the State Cannot Prove It Beyond a Reasonable Doubt

The prosecution has the burden of proving all of the elements of an offense against you beyond a reasonable doubt. As a defendant, you are presumed innocent until and unless the prosecution has met its burden. This is the highest standard under the law and even higher than the standard to remove your children from your home. The prosecutor must establish every single element of the crime beyond a reasonable doubt – not some of the elements– ALL of them. It is not enough for someone to simply say you committed a crime. The evidence presented in the case must remove all reasonable doubt from the jury’s mind, and they must reach a unanimous decision. 

Police bodycam footage is something that can be particularly helpful in creating reasonable doubt. Officers generally “mute” their cameras when discussing whether to arrest a suspect. Sometimes they forget, and their debate about which witness they believe, who they think is lying, or just general reservations about whether a crime was committed at all is a gold mine for creating reasonable doubt in a jury’s mind.   

Officers are only required to have probable cause to make an arrest (a significantly lower standard than beyond a reasonable doubt). If bodycam footage shows the arresting officers were unsure if there was even probable cause for an arrest, an experienced attorney can use that in trial to show that reasonable doubt exists in the case. This is just one of the many ways reasonable doubt can be used in your defense. Burnham Law has the proven ability to advocate for our clients and winning their cases.  

Domestic violence charges can be devastating to your freedom, family, career, and relationship with your children. Every aspect of your case matters, and our skilled attorneys work tirelessly to ensure that every possible angle is thoroughly examined and considered. Burnham Law is committed to your defense and helping you get your life back on track and moving forward in a positive direction. Schedule an appointment today by calling (303) 625-9193.

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Kayla
Wingard

Senior Associate - Domestic Relations & Criminal Defense

Colorado Springs

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