What to do if you are charged with a Domestic Violence Charge?

Misdemeanor domestic violence charges are easy to get, hard to defend, and have dreadful consequences. Sorry that you are in a spot where you have to ask about what to do when you have a domestic violence charge (“DV”) in Colorado Springs or elsewhere in El Paso County, Colorado. Getting charged with a DV means you have probably spent the night in jail and are prevented from going home for seven days or more. It is an embarrassing, humbling and scary event. Hopefully, this information can help reduce the fear and help you understand the process.

A misdemeanor DV charge starts when the police or sheriff's deputies are called out to an altercation between husband and wife or some other type of couple. The police and deputies have very little discretion when they come out to a DV call. The policy is to separate the couple and let things cool down. That means at least one person is going to get arrested for even the most minor of DV offenses. Once arrested, Colorado law requires that a person charged with DV get held in jail until advised by the court. That means at least one night in jail. Once released from jail, the person charged with DV is subject to a mandatory domestic violence protection order that usually keeps him/her from returning home for seven days or more.

Almost any crime can be a DV offense. All that is required is that the victim is a current or past partner in an intimate relationship. Typical misdemeanor DV offenses are harassment, false imprisonment, criminal mischief, telephone obstruction and third degree assault. Harassment is an example of a minor offense that becomes more significant when charged as a DV offense. It is a third class misdemeanor. That means it is the lowest class of misdemeanor. Harassment can be charged a lot of different ways. One way alleges that you took some action with the intent to harass, annoy or alarm another person by striking, shoving, kicking or touching that person. It does not have to cause any visible injury. Third degree assault can be essentially the same crime as harassment, but also requires you to have caused “bodily injury.” Causing pain is all that is required to cause a bodily injury. Third degree assault is a more serious, first class misdemeanor.

If you are alleged to have broken something during a domestic dispute, you can get charged with criminal mischief as a domestic violence charge. That means you are alleged to have broken something as a method of coercion, control, punishment, intimidation, or revenge directed against your intimate partner or spouse. False imprisonment is just what it sounds like: you are accused of preventing your spouse or partner from leaving somewhere. A related charge can arise if you are accused of preventing a person from making a telephone call to the police, obstruction of telephone service. You should also know that you can be charged with child abuse if a child is present or in danger during an alleged domestic dispute.

When you get charged with a DV misdemeanor, you are subject to laws that require you to surrender your firearms and add a host of conditions to you while you are defending the case – most notably a domestic violence protection order. Should you get convicted of harassment as a DV offense, even on a deferred sentence, you are subject to federal law that prevents you from possessing firearms and ammunition and you have to complete mandatory treatment for domestic violence. A conviction to any DV crime will require you to complete domestic violence counseling, which is a 36-week program.

The court process starts when you are arrested on suspicion of committing a DV offense. It can result in you being convicted of a misdemeanor, which can remain on your record forever. You can be fined and have to pay a number of mandatory fees. You can also be sentenced to up to 24 months in jail. Jail is unlikely on a first misdemeanor offense, but not unheard of. The normal sentencing ranges for misdemeanors are as follows:

Misdemeanor Class	Normal Sentencing Ranges		Enhanced
	Minimum	Maximum	Maximum
1	6 months	18 months	24 months
	$500	$5,000
2	3 months	12 months	18 months
	$250	$1,000
3	none	6 months	12 months
	$50	$750

 

The County Court in El Paso County puts a misdemeanor DV charge on a “fast track.” “Fast track” often means your case is set for trial within less than 60 days. It results in those charged with DV to meet with a prosecutor at the first court appearance and attempt to resolve the case immediately. Do not feel like you have to take a deal to get out of jail. You are entitled to a bond and will not normally be held without bond on a misdemeanor DV charge. The wise choice is to resolve the case after you have had a chance to consider your options and get the advice of counsel. In all DV cases, the alleged victims are notified of your release from jail and his/her right to appear and participate in the court process.

What follows is my list of things to do when you are charged with a domestic violence charge. Be careful using the listed items in this article. Not all of these suggestions may be applicable to you. When a lawyer writes an article like this one it is not meant to be legal advice. You cannot rely on it as legal advice because there are many complex and strategic things to consider. A host of factors can change this analysis, for example, whether the charge is a first offense, the age of the person charged, the specific allegations made, the length of the relationship, whether someone was hurt, and so on. What is a good strategy for one client in one situation will not be a good strategy for another client in another situation. Also, my list is not ordered: many of the items should be done immediately and not in any particular order. So while I do not intend to give you legal advice in this article, I can describe what I do in many first offense DV cases:

1. Don't take the deal offered to you at your first appearance. You are in jail, you are scared, and you have had no opportunity to talk to an attorney. This is not a time to make a decision about a permanent conviction record. In all but the most severe cases – multiple offenses or felony offenses – you are likely to get a standard bond or personal recognizance bond and get out of custody. The offer made by the prosecutor is not likely to get worse if you take your time to consider it. Meeting with one or more attorneys for a consultation will help you evaluate your options. Taking a DV plea agreement, even to a deferred sentence, will have profound and lasting impacts on your employment and future.
2. Follow the rules of the domestic violence protection order. You will likely be ordered to have no contact with the alleged victim of your charges for seven days or more. Violating the domestic violence protection order is another crime. That means you could be re-arrested and charged again with another domestic violence charge. These new charges happen all too often when your partner contacts you after you get out of jail and wants to talk or make up. All that is required is that your partner or spouse report you contacting him/her during the domestic violence protection order for you to be charged again. A text that says “I love you” is a violation. Your attorney can go to court and seek exceptions – time to meet at counseling or for parenting exchanges, for example.
3. Have another person take pictures of any injuries or marks you received in the altercation with the alleged victim. Self-defense is a reasonable defense in these cases. Don't rely on the officer's (or deputy's) pictures. Make sure the pictures show your face and the injuries.
4. Don't talk to anyone about the events that resulted in you being charged. All your phone calls from the jail and visits over the video system at the jail are recorded. Prosecutors regularly review these recordings for incriminating statements. When you talk to someone else about the events leading to your arrest, you give him or her an opportunity to misunderstand you or misquote you. Unless the person you are speaking to is covered by some kind of privilege, like the attorney-client privilege, he or she can be called into court to testify about what you said happened or what he or she claims you said happened.
5. Ask some hard questions of yourself and about your relationship. Once the domestic violence protection order expires, you are free to communicate and live with your partner or spouse. You are also free to end your relationship and go your separate ways. Whatever decision you make, you need a plan to be successful. Most important is to not put yourself in a position where you are at risk of getting charged again. Getting back together is risky if you and your partner or spouse are not willing to engage in family counseling and treatment. The heart wants what the heart wants, but a relationship in constant conflict cannot survive. You and your partner have to be willing to learn, change, forgive and move forward if your relationship is meant to prosper. Your attorney, your counselor, your priest, preacher, rabbi or spiritual counsel, or your trusted family or friends can help you with talking out these issues. My advice to my clients is always to get couples' counseling and stay in couples' counseling while the case is pending if you want to stay a couple. If your relationship is over, end it gracefully. This is not a time to antagonize the alleged victim in your case. Ending a relationship may also be helpful to persuade the prosecutor or judge that you are making changes to reduce the chances of a repeat offense.
6. Be kind to the alleged victim. Whatever the future of your relationship may be, this is not a time to set an aggressive or adversarial tone. Your alleged victim has the upper hand in any dispute over parenting time and personal property. The Victim's Rights Amendment requires the prosecutor to consult with the alleged victim about any plea agreement in your DV case. The alleged victim can seek, and will likely get, a permanent civil protection order against you. The best outcome possible in the DV case is only going to minimize the consequences of the charges. Your behavior toward the alleged victim after the charge has been filed may determine a great deal of how much you can minimize the consequences of the charge. Stated differently, you don't want the alleged victim calling the prosecutor every day telling him or her what a jerk you are being.
7. Choose a defense to defend the case. Attorney's call this the theory of defense. A good attorney will take you through the events leading up to your arrest, the circumstances of the dispute between the couple, your statements to the officer or deputy who was called out, the events of your arrest, and the advisements given to you. All of these events have the potential to open up defenses or motions to suppress evidence. Sometimes, in the heat of an argument, a partner or spouse exaggerates what happened between you, which can lead to your arrest. Showing exaggerations were made can be a powerful defense. Even if the facts are not helpful to you, you want to think about how to defend the case and show you are serious about making sure you are never in such a situation again.
8. If you don't have a great defense, work on the issues that led to your arrest. The prosecutor handling your case wants to do his or her best to make sure you never come back on a second offense. Taking real, meaningful steps to recognize and treat your issues goes a long way in helping your attorney negotiate a better plea resolution for you. I suggest many of my clients begin domestic violence classes immediately and without being ordered to do so by the court. The class helps you show you take the allegations seriously and are asking the right questions about the DV allegations. It is mitigation: evidence you use to get the prosecutor to give you a better offer or that you use to allow the judge to give you a lesser sentence if you get convicted. You can find a treatment provider at: http://dcj.dvomb.state.co.us/home/approved-providers.
9. If anger is an issue you have struggled with in your life, go talk to a counselor regularly about your anger in addition to DV classes.
10. If alcohol or substances contributed to your decisions, stop drinking alcohol or using substances and get treatment. Treatment can come in many forms: AA or NA classes, intensive outpatient programs, or inpatient programs. Your lawyer can help you decide what is needed. Often the time you spend in an inpatient program can be given day for day credit against a jail sentence.
11. Document any mental health issue that led to your arrest and get treatment. Mental health issues are not usually an excuse for a DV charge, but they are often explanations that can help your attorney negotiate a better plea resolution. Colorado Springs is a military town and some veterans, for example, suffer from PTSD or PTSD symptoms that make it more likely that a domestic dispute will escalate. My advice to any veteran suffering from PTSD would be to go to the VA clinic and get enrolled in PTSD treatment. Our local courts have programs for veterans that you may be eligible to enter that can allow you to resolve your case favorably. If you have a mental health issue, you should get your medical records and list the providers that can show your mental health issue and how it affected your decisions. Ask your doctors to write letters explaining how your issue affected your behaviors. Go see your doctor or therapist and ask if you can make a change to your treatment or medication that will make a repeat offense less likely. Helping the prosecutor justify a more favorable deal for you means showing him or her that you are doing what needs to be done to find and treat your mental health issue.
12. Save all of your communications and receipts that led up to the alleged domestic dispute. Facebook posts, tweets, text messages, logs showing text messages were sent or received, e-mail messages, voice messages and phone logs may be helpful to defend your case. Do not delete anything and think about what other information may be saved somewhere to aid your defense. Credit card and store receipts show where you were at a specific time. More and more businesses and homes have video recordings of events. You have to subpoena this information immediately – many systems only record a few days of video. It is important that you or your attorney know about what digital information is available to defend you. Now is not to the time to delete anything or throw any paperwork away.
13. Figure out what to do with your guns and ammunition. If you have guns and ammunition, you have to get rid of them while the case is going on and, if you get convicted of a DV offense, you cannot possess guns forever. Getting rid of your guns can mean storing them with a federally licensed firearms dealer or selling or transferring them through a licensed dealer. You will need paperwork from the federally licensed firearms dealer to show the guns are out of your possession and control to satisfy the court.
14. Order discovery from the Fourth Judicial District Attorney. That process is described here: http://www.4thjudicialda.com/aboutdiscovery.aspx. “Discovery” is the name for the documents and other written evidence the prosecutor will use to try to convict you. It includes reports, checklists, test results and other documents generated by the government agents who arrested you. It may not include photographs, physical items of evidence, recordings and other non-document evidence – you have to request such things separately.
15. Hire an investigator to interview the alleged victim and other key witnesses. Key witnesses can be helpful or hurtful to your defense. You have to find out what these witnesses will say ahead of time. Investigators help because they are not involved in the case, are more neutral than you or other witnesses, and can report on what they hear and see to you in a report that might help you persuade the prosecutor to give you a better result or persuade a judge or jury. Unfortunately, the work product of an investigator is only protected by the attorney work-product protection if the investigator is hired by the attorney.
16. Figure out whether you want to hire an expert. Experts can help persuade a jury or a prosecutor that your defenses have merit.
17. Start doing community service through a certified agency, normally Front Range Community Services, Inc., 11 East Vermijo Avenue, Colorado Springs, Colorado 80903. Do a minimum of 24 hours.
18. File motions to limit the evidence against you. These are called motions to suppress evidence. They can be based on constitutional issues; the Fourth Amendment protection from unreasonable searches and seizures, for example. It takes years of practice to understand how motions fit in with the defense of a case, but that does not mean you cannot give a motion a try.
19. Organize and prepare your evidence for hearing and trial. Make sure you have multiple copies of the exhibits you want to use. Prepare your questions for each witness. Ask the court to issue subpoenas for witnesses you need at hearing or trial. A jury can be persuaded with a simple and truthful argument. A jury can be persuaded with the lack of evidence. Make sure you know what you are trying to persuade someone to believe before you head to hearing or trial.
20. Think hard about whether to accept or reject a plea bargain offer. This is very hard to do without some experience in knowing what might happen at a hearing or trial. Generally, I want my client to analyze the risk of a conviction against the costs and benefits of a plea offer.
21. If you get convicted, do a good job explaining why you deserve a minimum sentence. Anything that shows you know how to or have been following the rules is helpful. Bring proof that you are doing classes. Bring proof that you are in treatment. Bring proof that you are doing community service. Bring proof that you have a job. Bring such things to the probation department and to the sentencing hearing.
22. If you get convicted, get started on your sentence right away. Waiting to get started can result in having too little time to get things done. Then you risk having a warrant go out for your arrest and spending the night (or longer) in jail while the court figures out why you have not completed your sentence.
23. When you complete the pieces of your sentence, get proof and make sure you file it with the court. Ask for a document that shows you completed your DV classes. Same for community service. Keep your receipt showing you paid your fines, fees and costs. Get proof that you went to treatment required by the court. Keep copies of all such documents in a safe place that you can find easily in the future.
24. Do not get arrested for a DV case again. Learn what you need to learn to avoid getting into a dispute like the one that got you arrested in the first place. If a relationship is broken, fix it or get out. If an argument is escalating, leave and revisit the argument after both of you have had a chance to cool down. You can always find a coffee shop or somewhere public to talk things out where it will be less likely things will escalate. If treatment helps, keep doing the treatment. Nothing good happens with a second offense. You face more expense, more jail and more angst. A second offense also signals a more serious issue with domestic violence.

You have lots of choices of excellent attorneys in El Paso County. I appreciate that you read through my article and gave us the chance to earn your business. If you decide you need an attorney, please give me a call at (719) 471-7957, to set up a no-obligation interview.