My name is Christian Schwaner, and I am a criminal defense attorney and former prosecutor. If you have been arrested on domestic violence charges in Colorado Springs, I want to help. I have helped hundreds of people get through this trying time, and I can help you too.
Colorado has some of the harshest domestic violence laws in the country. If you are convicted, you may be sentenced to significant jail time and can lose certain rights, including the right to carry a weapon.
What is “Domestic Violence” in Colorado?
Believe it or not, domestic violence is not in itself a crime in Colorado. Instead, it is a “sentencing enhancer” – that is, it can be applied to increase the penalties against someone who has already been convicted of the crime to which the “domestic violence” label has been attached. Three elements must be met before the designation can be applied:
(1) “An act or threatened act of violence:”
Actual violence is not necessary – even the threat of violence is enough. An example of a borderline case might be uttering the words “I’m gonna make you sorry you ever…” Even words are not necessary, however – conduct that might be understood as a threat of violence by a “reasonable person,” such as a raised fist, is enough.
Moreover, the word “violence” is very broadly interpreted – destruction of the victim’s property or harassment of the victim’s dog could conceivably be considered “violence,” for example.
(2) “Upon a person with whom the actor has or has had an intimate relationship.”
An “intimate relationship” can include:
- A current or former spouse.
- A current or former boyfriend or girlfriend.
- The parents of the same child, even without an intimate relationship (a one-night stand that produced a pregnancy is enough if a live birth results).
(3) “For the purpose of coercion, control, punishment, intimidation or revenge:”
This element is inherently ambiguous because it relies on a conclusion regarding your mental state – that is, the ultimate motivation for your act or threat of “violence.”
Common Crimes to Which Domestic Violence is Applied
The following crimes are among the most common to which the “domestic violence” designation is applied, although just about any crime can apply under certain circumstances:
- Harassment: Harassment can include not only physical violence but also insults, repeated “hang-up” calls, obscene language or gestures, and other behavior.
- Assault: This offense requires bodily injury.
- Stalking: Stalking includes a variety of behaviors including surveillance, repeated unwanted or distressing communications, and threats – even if they are directed to a family member rather than the actual target of the behavior.
- False imprisonment: Confining or detaining someone without the legal authority to do so constitutes false imprisonment in Colorado. Even barring the door with your body might qualify under certain circumstances.
- Violation of a restraining order: Any contact with the complainant in violation of a domestic restraining order (generally, any contact at all).
- Criminal mischief: Damaging or destroying the complainant’s property (slicing someone’s tires or breaking a window, for instance).
Due Process vs. Victim’s Rights
When a designation of domestic violence is applied to a crime, certain “victim’s rights” procedural modifications kick in that do not apply to most other crimes. In practice, these modifications work to the disadvantage of the defendant, even the victim of a false accusation. These modifications include:
- Mandatory arrest: Once they have “probable cause” to believe that you committed an act of domestic violence, the police do not have the discretion not to arrest you, as they do with most crimes. Under Colorado’s law, you must be arrested “without undue delay,” even if the police officer does not believe that you are guilty.
- Mandatory restraining order immediately following arrest: A mandatory restraining order preventing you from any contact with the complainant will be entered immediately following your arrest. The order will prohibit you from any contact with the complainant, even through third parties, until it is lifted. If you violate it, you will be arrested for a second criminal offense. You can be convicted of violating a restraining order even if you are acquitted of the domestic violence crime for which you were originally arrested.
- A prohibition against the prosecutor “dropping charges:” In most criminal cases, the prosecutor can simply drop charges if he or she doesn’t believe you are guilty, or if he or she thinks it will be difficult to secure a conviction (the complainant does not have the right to “drop charges” against you, by the way). In a domestic violence case, the prosecutor must proceed with the case against you unless it would be impossible to win at trial. In other words, the prosecutor cannot use “difficult to win a conviction” as justification for dropping charges.
Special Issues for Military Personnel
Under federal law, a misdemeanor or felony domestic violence conviction will prevent you from legally possessing a firearm ever again. Obviously, such a prohibition is likely to end your military career, although this is not a certainty. The irony here is that, as discussed above, you don’t even need to have committed any act of violence, as that term is commonly understood, in order to become subject to the firearms ban. Obviously, an acquittal or even a plea bargain down to a lesser charge is better than forfeiting your entire career. Hiring a domestic violence defense lawyer in Colorado may be the best route to go if you want to protect your military career, reputation, and freedom.
Domestic Violence Treatment Classes
Since domestic violence is not a separate crime in Colorado, being “sentenced” for it means being sentenced for the underlying crime, plus additional penalties that are imposed because of the domestic violence aspect of the case – a treatment program, for example. If you are sentenced to prison, you will be relieved of the obligation to attend domestic violence treatment classes.
Between conviction and sentencing, you may be required to undergo an evaluation designed to determine whether a treatment program would be appropriate. A treatment program must be approved by the court. The typical treatment class is held one hour a week for 36 weeks, for a total of 36 hours. At the conclusion of the class, you will be subject to a mandatory evaluation.
If you are charged with a domestic violence offense after three previous convictions, the prosecutor can seek to have the court declare you a “habitual domestic violence offender,” which is a Class Five felony with a sentence of one to three years in prison, mandatory parole of two years, and a fine of up to $100,000. I cannot stress enough the importance of teaming up with a knowledgeable and experienced Colorado domestic violence defense lawyer to help you.
There are a number of legal defenses that may be available to you, including:
- Self-defense: Self-defense is a common and frequently successful defense, especially when the “loser” of a confrontation files a complaint against the “winner” over a physical altercation initiated by the complainant.
- Defense of others: It is not uncommon for an accusation to be filed against a spouse who intervened to prevent the complaining spouse from abusing the couple’s child.
- False accusation: False accusations are common – in particular, a spouse may level a false accusation to gain advantage in divorce or child custody proceedings.
- Excluded evidence: The prosecutor must prove you guilty beyond a reasonable doubt, and evidence against you can be excluded from trial for a variety of reasons, including coerced confessions, failure to “read you your rights,” and warrantless searches.
- Factual contradiction: You may produce evidence that directly contradicts the evidence against you – a witness, for example, who will testify that you were out of town at the time or that the alleged act did not occur.
A myriad of other potential defenses might be applicable, depending on the specific circumstances of your case – every case is different, and a skilled Colorado domestic violence defense attorney will be able to exploit the facts to your advantage.
Defending yourself against domestic violence charges doesn’t make much more sense than performing surgery on yourself to remove a tumor. Likewise, hiring a novice lawyer or one with inadequate domestic violence experience is like hiring a medical student to perform surgery on you. Not only am I an experienced domestic violence defense attorney, but I am also a former prosecutor, so I understand how the system works and what you will be facing. I hope that you will consider contacting me at 719-577-9700 or through my online contact page so that we can discuss the charges against you.
I provide an initial consultation free of charge, and I can meet you at the jail where you are being held. Even if you aren’t ready to speak with me yet, please take some time to review the information contained in the domestic violence category of my blog. I have done my best to supply you with a thorough explanation of exactly what you are up against.