The first thing most of our clients facing a domestic violence charge ask is, “What comes next? What do I need to do?” Frequently these individuals have no criminal record and little or no experience with the criminal justice system. In this article, we are going to lay out a simple road map for how we approach a charge of domestic violence, and our game plan to resolve these cases as quickly and fairly as we can.
EARLY STAGES: Avoiding the Pitfalls
If you are arrested and charged with any crime classified as domestic violence in the state of Colorado, you will be taken to county jail and held until you are seen by a judge. The domestic violence statute requires a mandatory arrest on the spot if the officers have probable cause to believe a crime of domestic violence was committed. Before you are released, you will be ordered to sign and comply with a Mandatory Protection Order, usually requiring that you shall not harass, retaliate, or intimidate the witnesses (including the alleged victim); refrain from contacting the alleged victim; and stay away from anywhere the witness/alleged victim is likely to be found, including their home. The Mandatory Protection Order also frequently prohibits possessing any weapons and may prohibit alcohol or drugs, and may include monitored sobriety if alcohol or drugs were part of the allegations. This translates, for a lot of people, into being forced to leave a shared residence and refrain from any contact with their spouse or partner. The logistics of finding another place to live while your case progresses through the Court proceedings are agonizing for most. Even more complicating, is that crimes classified as domestic violence cannot be “dropped” by the alleged victim, since they did not press the charge. Often, our clients will tell us that they and their partner got into an argument, and something triggered an angry call to the police. “Domestic violence” may include physical violence or property crimes and can be applied to something as inconsequential as knocking a cell phone out of your partner’s hand in anger. Most people think that in the light of day, when everyone’s calmed down, they will be able to explain to the police that they don’t really want to bring charges. This is not the case. Once you are arrested for domestic violence, the alleged victim cannot drop the charges filed.
It is absolutely critical in the early stages of your domestic violence case to steadfastly adhere to the provisions of the Mandatory Protection Order. One of the most common mistakes that can result in a new arrest and entirely new case, is contacting the alleged victim while the protection order is in place. It’s a common misconception that if the alleged victim contacts you first, you’re free to respond. Or that a friend will be able to pass a message on to the alleged victim on your behalf. These common misconceptions are wrong and extremely dangerous for your case. No contact means no contact. The alleged victim can contact you; their friends can pass on messages to you, but you are not allowed to respond – ever. Whether the relationship is normally good or bad, it’s difficult for most to ignore the temptation of text messages or quick phone calls. It’s important to keep in mind that a violation of a protection order could result in a new criminal case as well as complicate the original case. If nothing else, it damages your reputation in front of the Court and prosecutor and hurts any argument for a good offer and resolution in your matter.
NEXT STAGES: Reviewing the Evidence and Seeking an Offer to Resolve
No matter what the seriousness of a charge is, our first step is reviewing the State’s evidence, which is known as “discovery.” This includes police reports, body worn camera video, photos, the 9-1-1 call, witness statements and the parties’ criminal histories. When police respond to a domestic violence call, the involved parties are usually separated so the officers can talk with each witness and allow the suspect(s) and alleged victim(s) to speak more freely. This evidence is provided to our client so we can get their perspective on how accurate the reports are. Details can be omitted, statements may be misconstrued, and it helps us build a better theory of the case if we have all sides represented for our analysis. We ask that our clients share every detail of the incident and a history of the relationship so that we know the best course of action. For instance, it is not uncommon that the “wrong” party will be arrested for domestic violence when police respond to a call. The alleged victim may have a long history of abuse, physical or emotional, and the suspect is being investigated for retaliating in some way. Often the victim is emotional because of the abuse and has difficulty articulating the facts in a concise way. The perpetrator is often calm and can get their version out more easily. It is not uncommon that officers take the word of the perpetrator because they are easier to talk to and decisions need to be made quickly. When the client relays the full history of the relationship to us, we know exactly how to proceed. We immediately pull records documenting past instances of violence by the “alleged victim,” conduct interviews of relevant witnesses, review of the facts and work with our client to build a mitigation packet for the prosecutor.
In another scenario, it could be that a couple got into an argument and later regret getting police involved in the heat of the moment. In that case, both the defendant and the alleged victim want the case dropped. Even after speaking with the alleged victim and hearing right from the source that he/she does not want to pursue a domestic violence case, the DA may not dismiss charges. This is common and not an indication that the DA doesn’t believe the alleged victim or that they have some vendetta against the defendant. Prosecutors are charged with prosecuting crimes when sufficient evidence exists that a crime has taken place; it’s not personal, it’s the law. Because we understand this, we adopt a course of action that usually involves consulting with the alleged victim to gather their statement and understand their wishes. We can also obtain reference letters from individuals familiar with the couple and their history. We provide the most persuasive mitigation to the prosecutor to secure the best outcome for our clients and their families.
Beyond gathering evidence, as the domestic violence case moves past its initial stages, clients will often desire to have changes made to a protection order. Initial Mandatory Protection Orders, as discussed, will bar any contact with the alleged victim in a DV case and require the defendant to leave a shared residence. Courts and prosecutors are often amenable to modifications allowing contact, usually electronic at first, after the parties have some time to “cool off.” If we can confirm the alleged victim is in favor of a modification allowing contact, we file a motion including this information. Typically, no modification will be permitted if the alleged victim opposes the change. Even if we can secure modification allowing in-person contact and allowing the defendant to return to the home, the protection order may prohibit any “negative” contact. Therefore, it is still important, even if an alleged victim was in favor of a modification, for a client to consider how much contact they have. If a couple was struggling to get along before a domestic violence charge, another fight afterwards can still trigger a violation of a protection order, if the police feel there is harassment, intimidation, retaliation, or any other negative contact.
During this phase of a domestic violence case, there are several hearings (arraignment, status conference, pre-trial hearing.). Most of the work, preparing mitigation, research, organizing evidence and discussing the case with the prosecutor is done parallel to hearings and the hearings may only be used to get a new date for the next hearing. However, the discussions with the prosecuting attorney are extremely important. We use these talks to get a feel for what the prosecutor’s concerns are and how to go about resolving them with the evidence and testimonials we can provide. What, in the State’s evidence, is the prosecutor’s main focus? Was a witness statement so concerning that the DA may not reduce the charges? Does the client have a criminal history that makes them leery of extending a lenient plea? Discussions with the prosecutor help guide us in gathering evidence to assuage whatever doubts they may have as to resolving a case in a way that benefits our client.
FINAL STAGES: Wrapping Up a Domestic Violence Charge
After your attorney has a chance to review the State’s evidence, discuss the matter with relevant witnesses and perform necessary investigation, they will reach out to the prosecutor and obtain the initial offer. This offer will usually involve pleading guilty to a charge and standard terms and conditions that will accompany an offer. This means that the defendant may enter a plea, agree to be on probation for a certain amount of time and complete conditions such as taking a course or counseling for domestic violence. Sometimes the prosecutor will offer a deferred judgment or sentence. A deferred sentence is an opportunity to have your case dismissed so long as you comply with all terms and conditions and stay out of trouble, you will be able to withdraw the guilty plea and the case will be dismissed. The charge and the case will remain on your record, showing up on criminal background checks, unless you are able to get the case sealed.
If, after review of all the relevant evidence, your attorney finds that your case is a good candidate to push for a reduced charge or dismissal, a mitigation packet will be presented to the prosecutor. Good candidates for this strategy are cases where the alleged victim participated in the altercation, if the alleged victim has a criminal history that reflects a history of violence, or if the client has an otherwise spotless criminal history and the instant charge would have a severely negative impact on the client’s career or employability. In some cases, the evidence against our client simply isn’t strong – the police reports reflect a confused narrative, witnesses are recanting, or the charge doesn’t accurately reflect the offense. If these types of ambiguities exist in a case, your attorney is in a good position to negotiate with the prosecutor on the initial offer to advocate for reduced charges or a dismissal. Prosecutors are aware of the very grey area in which domestic violence cases can exist and have very full dockets. If we can successfully convince them that our client is a good candidate for a reduced charge or a dismissal, i.e., they won’t see them in court the next week on a new charge, prosecutors are open to these negotiations.
Once a resolution is reached with the prosecutor, a plea agreement is drawn up. Your attorney will carefully review all the terms and conditions of this agreement with you. You will be fully advised of all the consequences of signing a plea and what will be required of you going forward to successfully complete the deferred sentence. After this discussion, you will sign the agreement and it will be filed with the Court. The Court is under no obligation to accept the agreement that the parties have reached to resolve a case, but generally the agreement is accepted and Ordered. After this, the deferred judgment begins. In other cases, if a reduced charge is agreed upon, the terms will be provided to the Court for approval. Frequently, the Mandatory Protection Order, as modified, will stay in place through the duration of a deferred judgment and sentence or through the probationary period. However, if both parties agree that no protection order is necessary, the Court may allow for a full contact. However, certain requirements, i.e., no negative contact and no weapons in domestic violence case, will remain in effect until your case is closed. If the case is dismissed outright, the protection order will also be dismissed.