How Domestic Violence Could Affect Your Criminal Sentence

by Cory Robert Tuck on Dec. 12, 2018

Criminal 

Summary: When an argument with a spouse, former partner, or someone you were in an intimate relationship with gets out of hand, the situation can quickly go from bad to worse.

When an argument with a spouse, former partner, or someone you were in an intimate relationship with gets out of hand, the situation can quickly go from bad to worse. When the police receive a domestic violence call, it can be the start of a cascade that could cost you your freedom, your family, and your military career.

Can You Be Charged with Domestic Violence in Colorado?

There is no specific domestic violence charge in the Colorado criminal code. Unlike other states that have misdemeanors or even felonies labeled Domestic Violence or Domestic Assault, in Colorado, that label can be attached to almost any crime. Under Colorado law, “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.”

It can include any other crime against a person, animal, or property — even a local ordinance — if the act is “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.”

In other words, any time a person commits a crime — from assault, to animal cruelty, to the destruction of property — to control or get back at a current or former intimate partner, it can result in domestic violence charges. Even if you did not touch the other person, threats or other criminal behavior can still come with the domestic violence label.

“Intimate Relationship” Focuses on People, Not Conduct

When the police or prosecutors decide whether something is domestic violence, they are generally looking at how the people involved are connected, rather than the particular conduct that occurred. “Intimate relationship” is a broader category than might be expected. Domestic violence can attach to crimes involving a:

• Spouse
• Ex-spouse
• Unmarried partner, boyfriend or girlfriend
• Former partner, boyfriend or girlfriend
• Parent of the person’s child (even if the couple never lived together)

Mandatory Effects of Domestic Violence

Colorado law creates a series of automatic, mandatory events that happen when the police respond to a domestic violence call. Colorado is a “mandatory arrest” state. That means if a police officer believes that a crime involving domestic violence has happened, he or she must arrest the person he or she has probable cause to believe committed that crime. If the police get called because an argument between spouses gets out of hand or a child’s parent feels threatened, it is almost certain someone is going to jail.

Once the arrest has occurred, the law also requires a mandatory restraining order between the person alleged to have committed the abuse and the alleged abuse victim. That means even before you have gone to court to face your domestic violence charges you are already not allowed to have any contact with the named victims. No calls, no visits, no contact at all, even through third parties. When a mandatory restraining order is entered while the family is still living together that can cause immediate problems for the person charged who needs to find a place to stay, or even pick up clothes and other personal items. The restraining order will generally last until the case is finished, so it can be months or even years before a family will be reunited.

That doesn’t mean you can or should convince your named victim to “drop” the case. First, violating a mandatory restraining order could result in new criminal charges. That will only make the existing problem worse. Secondly, Colorado law has a “no-drop” policy for domestic violence prosecutions. A prosecuting attorney is not allowed to dismiss a case or take a plea deal that removes the domestic violence marker unless those facts would be impossible to prove at trial. That means if you are charged with a crime with a domestic violence sentencing enhancement, you will need the help of a criminal defense attorney if you hope to avoid a conviction.

Domestic Violence’s Effect on Criminal Sentencing

Rather than being a separate charge with a separate criminal sentence, Colorado domestic violence law adds conditions and limits on a sentence for any crime where the facts supporting the conviction fall within the definition of domestic violence. For example, if the reason you were charged with assault is because the evidence shows you struck your ex-spouse during a parenting time exchange, your sentence on that assault will be adjusted based on the domestic violence. If your conviction is based on a crime of domestic violence, you can expect:

• You will likely be required to participate in a domestic violence treatment evaluation or program, usually at your own expense, unless the criminal charge results in a prison sentence over one year.
• You will not be eligible for house arrest if you live with the victim.
• You will not be eligible for probation unless the court can ensure the victim and your mutual children will be safe.
• You will have to surrender your guns and ammunition.
• The no contact order will continue as a term of probation.

If domestic violence becomes a pattern resulting in three or more separate convictions, Colorado law allows prosecutors to add an additional charge against a “habitual domestic violence offender”. This is a Class 5 Felony, which can carry a penalty of up to 2-6 years if the underlying charge is a “crime of violence” (such as assault or sexual assault).

Domestic Violence and Military Service Don’t Mix

A criminal conviction based on Colorado’s domestic violence law can have a particularly severe consequence for the state’s Active Duty and Reserve service members. A federal law known as the Domestic Violence Amendment to the Gun Control Act (the Lautenberg Amendment), makes it illegal for someone with a misdemeanor domestic violence conviction to possess a firearm. Since carrying a weapon is a key part of most military assignments, a domestic violence conviction will generally cause a service member to be separated from the military. Police officers, security guards, and others whose careers are based on carrying and using firearms may also find themselves looking for a new line of work.

Domestic violence may not be its own crime in Colorado, but the effect it has on other criminal charges can be life-altering. The mandatory arrest and prosecution requirements, along with the sentencing enhancements, can mean even a first offense can leave criminal defendants looking for a new home, and sometimes a new job.

At Aviso Law, LLC, our criminal defense attorneys have experience with the Colorado domestic violence laws. We are here to serve you from the initial arrest, through sentencing, and we can assist service members facing post-conviction separation. We will help you identify your options, and any defenses you may have, so you can choose the best way forward. Contact us today to schedule a consultation.

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