Colorado Domestic Violence Defense Blog

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Will Your Domestic Violence Case Be Dismissed if the Victim Doesn’t Come To Court?

  • Will Your Domestic Violence Case Be Dismissed if the Victim Doesn’t Come To Court?

    No face, no case….not so fast. I’m routinely asked if someone accused of a domestic violence case needs a domestic violence defense attorney if the victim doesn’t want to, or isn’t going to come to court and testify. The answer is still yes, for a variety of reasons, which I’ll explain below.

    Colorado is a “No Drop Prosecution State”

    First and foremost, under Colorado law, if a prosecutor believes they can prove a prima facie case, they are not allowed to dismiss or plea a domestic violence charge to a non-domestic violence charge. Simply because the victim no longer wishes to go forward does not mean the case can’t be proven, and therefore, it’s unlikely that the DA will dismiss the case simply because the victim no longer wishes to prosecute.

    Moreover, there are ways to compel the victims attendance in court, ie. a subpoena. If the DA has the victim validly served and they do not appear in court, the DA can ask for a bench warrant for their arrest. While this is a drastic remedy and relatively uncommon, if they wist to pursue this route, they can and do.

    The DA May Not Need the Victim to Prove the Case

    Simply put, the DA may not need the victim to prove the case. If you admitted to anything, if a third party witnessed any of the acts, if the victim immediately sought medical treatment and made statements to the doctor, if the victim called 911 and was sobbing as she told the operator what happened, if….well you get the point. There are literally to many scenarios to list where evidence of the crime may successfully be admitted in Court without the victim’s cooperation, and could result in a conviction. This fact, coupled with Colorado’s ‘no drop’ law, means that even if the case becomes more difficult to prove, the DA still must move forward. Hence the reasons why you need to talk to a criminal defense lawyer who regularly handles domestic violence cases.

    Don’t I have a Right to Confrontation?

    Yes. The United States Constitution Guarantees you the accused, the right to confront and cross-examine any witnesses who are compelled to testify against them. The problem with allowing a victim’s statements to be told be an officer who recorded them, without the victim testifying is that the statements are hearsay. So they shouldn’t come in right? Wrong. As with all rules, there are exceptions. In this instance, a United States Supreme Court case, Crawford v. Washington, is what creates the exception. Crawford lays out a three prong test that the Court must consider when determining if statement’s the victim made are admissible at trial, when the victim themselves doesn’t testify. I won’t bore you with the analysis applied in Crawford, but be aware that the victim’s statements or observations, maybe admissible at trial, even if they aren’t testifying.

    The bottom line is, you shouldn’t assume that the simply because the victim of a domestic violence charge doesn’t wish to cooperate means that the case is going to be dismissed, you should always consult with an experienced domestic violence defense attorney before you make what could be a costly error.

  • What You Need to Know About Colorado Domestic Violence Laws

    Being arrested for domestic violence can be a nightmare. Things like mandatory arrest laws, mandatory no contact orders, criminal charges and the stigma of being a batterer, are all common and unforeseen. First, it’s important to know what Colorado law considers domestic violence. C.R.S. 18-6-800.3(1) defines domestic violence as:

    “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, 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.”

    Intimate relationship is defined in C.R.S. 18-6-800.3(2) as:
    “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.”
    Keep in mind that domestic violence is not a crime itself; rather it’s a sentencing enhancer that can be attached to nearly any other crime. Moreover, you don’t necessarily need to subject someone to physical contact to be charged with domestic violence. Breaking property, threatening someone, texting or calling repeatedly, or even using obscene language can result in a charge. What’s worse is that Colorado is considered a mandatory arrest state. Pursuant to C.R.S. 18-6-803.6, when a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3 (1), has been committed, the officer shall, without undue delay, arrest the person suspected of its commission pursuant to the provisions in subsection. Basically, you need to know, if police are called, someone is going to jail. If you are contacted by police and believe you may be arrested, don’t make any statement. You have the right to remain silent and use it.

    Once someone is arrested for domestic violence, a mandatory restraining order enters. That means that you cannot have contact with the named victim(s) during the period of the restraining order. It’s a separate criminal charge if you do. Also, third party contact counts, so don’t call the victim’s best friend and ask them to contact the victim.

    One of the biggest misconceptions about domestic violence cases is that the victim can simply “drop” the charges. This couldn’t be further from the truth. Colorado law says that a prosecutor cannot drop domestic violence charges unless they believe it would be impossible to prove the case at trial. This “no-drop” prosecution policy means that the victim can tell the DA to dismiss the case until they are blue in the face, but the DA isn’t allowed (not that they would anyway). So don’t think that because you and your significant other made up and they want the case dismissed that it will be.

    So what should you do if you are arrested for domestic violence? First, don’t say a word. Invoke your right to remain silent. This is critical. Saying something you think may help you often does the exact opposite and makes the state’s case stronger. Next, bond out of jail and have absolutely no contact with the named victim. Don’t text them, call them, email them, write them, nothing. Until the restraining order has expired, you face the penalty of a new case being filed, which may ultimately lead to the your bond being revoked for committing a new offense. Even if the victim is trying to contact you, don’t pick up or respond. Remember, you’re the one that is restrained, not them. Next, hire an attorney to handle your case. I know what you’re thinking, “here comes the sales pitch”, but it’s not. If you choose to hire our firm, that’s great, we’d be happy to help, but if not, that’s fine to, but do hire an attorney who handles these cases and has a superior history of handling them. Look for former district attorney’s, as they know the ins and outs of the DA’s office like no other attorney could. Look for an attorney who has a proven track record of taking these cases to trial and winning. There are so many attorneys who haven’t been in front of a jury since they were wearing a polyester suit to court. While your case may not need to go to trial, DA’s know what defense attorney’s regularly go to trial and win, and those who take a plea on every case. Obviously, the attorney’s who win at trial get a better offer than those who take a deal on every case. You have way to much riding on this case to let an attorney who doesn’t know what they’re doing handle it, or worse yet, trying to handle it on your own. A domestic violence conviction will prevent you from owning a firearm under the Lautenberg Amendement, can impact the possibility of future employment and it will follow you for your whole life.

    -Steven Rodemer, Esq.

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