Video: Understanding Domestic Violence Charges

In This Video

• What are domestic violence charges?
• What are the levels of domestic violence?
• What are protection orders (restraining orders)?
• What are no-contact orders?
• Why you should NEVER violate protection orders.
• How domestic violence can affect your Second Amendment rights.
• Should you choose a plea agreement or go to trial?
• Why you NEED a criminal defense attorney
• Why hire Krizman Law for domestic violence?

Good afternoon and welcome to Krizman Law, where you can expect nothing less than a relentless criminal defense. Today, we’re going to talk about domestic violence charges here in the State of Colorado.

What are domestic violence charges?

I have a lot of clients over the years who have been charged with acts of domestic violence. One of the most confusing things about domestic violence is the fact that a domestic violence charge isn’t actually the crime itself. Rather, domestic violence is a sentence enhancer to another crime.

For instance, a person can be accused of committing assault in the third degree. If the alleged victim is someone they’ve been in an intimate relationship with, then that assault in the third-degree charge gets designated as a crime of domestic violence. Essentially, what it means is in addition to any other penalty that would go along with the assault in the third-degree conviction, there is also a requirement for domestic violence evaluation and treatment per Colorado statute.

So what else is there? [I’ve had] lots of domestic violence clients over the years… assault in the third degree, felony second-degree assault, harassment, contact that is harmful or painful if it’s a municipal court, or assault and battery, which happens a lot in municipal courts. We’ll get to more on that later.

We also have interesting charges that one would think couldn’t be a domestic “violence” charge. For instance: injury to property, if it’s a municipal case. Or the state corollary, which is criminal mischief. If there’s no violence, how can there be a domestic violence sentence enhancer? Well, that just means that the words are imperfect. In this case, if the alleged victim of the injury to property or criminal mischief is someone who the defendant has been in an intimate relationship with, or if damage to the property was done in a way that was trying to exhibit coercion or influence or power over that intimate partner, it could be labeled as an act of domestic violence.

So the key distinction here is when you call looking for a criminal defense attorney, you have not been charged with domestic violence. No, you’ve been charged with something else. And the prosecution, the government—the State—has identified that as an act of domestic violence. Again, meaning that the alleged victim is someone that you had had an intimate relationship with.

What are the levels of domestic violence?

Because domestic violence isn’t a charge itself and attaches to other crimes, there are many different levels of domestic violence. If the underlying crime is a felony, there is felony domestic violence. Likewise, if the underlying crime is a misdemeanor: misdemeanor domestic violence.

And where there are municipal cases, mainly Denver and Aurora, domestic violence can, in fact, be attached to a municipal code violation.

As we talked about earlier, if someone is convicted of a crime that has the domestic violence sentence enhancer, then per Colorado statute, that person must complete domestic violence classes if they are granted probation.

Domestic violence classes are unique in that you have to show a specific amount of aptitude, or you have to graduate from different levels in order to complete the course. There aren’t 20 classes, and you’re done. There aren’t 40 classes, and you’re done. You must show that you are participating and that you are learning, and essentially you must graduate from the class showing that you have participated and learned from the program.

Generally, these classes can take anywhere between eight to 12 months. Some folks say it can be done in less, but that’s really pushing it. So a lot of times when the prosecution wants 12 months of probation and a defense attorney is asking for fewer than 12 months of probation on a domestic violence charge, one of the main points of pushback they will get from a prosecutor is the contention that domestic violence classes can’t be completed in nine months or in six months.

Oftentimes, the lowest probationary sentence that will be agreed to by the prosecution is 12 months.

What are protection orders (restraining orders)?

One of the most confusing aspects of a domestic violence case is the protection order. Not only is it a confusing aspect for the defendant, but it’s also often highly contentious either for both parties (the defendant and the alleged victim) or for just one of them.

Oftentimes when there’s an allegation of domestic violence, this protection order requires a no-contact order. And often, a defendant is actually asked to leave the home. And in a State-level case, whether that’s a felony or misdemeanor, it’s called a “mandatory protection order.” If it’s a municipal case, they call that a “municipal protection order.” In effect, they are the same document.

Almost always, there will be a protection order protecting the alleged victim; the degree of protection, however, varies based on the circumstances surrounding the allegation, the seriousness of the charges, and what the alleged victim wants. Although that is not always the be-all and end-all.

Almost always, box number one will be checked. Box number one says that, in essence, the defendant will not harass, threaten, molest, or intimidate any witness in the case that was before the court, but especially not the alleged victim. However, based on the seriousness of the allegations and/or what the alleged victim wants in terms of contact with the defendant, oftentimes, there will be a no-contact order put into place.

What are no-contact orders?

A no-contact order can be disastrous for a family. Whether it’s trying to coordinate childcare for a defendant and alleged victim who have no desire to stay together, or if the defendant and alleged victim want to stay together, the no-contact order drives a wedge in between the lives of the parties.

Now, there are good reasons for the no-contact order. In real domestic violence cases, where there is actual abuse and danger to the alleged victim, this no-contact order gives the parties time to cool off. To calm down and reassess what is going on in their lives and what led up to the allegations before the court.

That is why a lot of times, when a defendant goes into court and immediately seeks a modification to that protection order, the judge denies it. There are ways to get that protection order modified, whether that’s through the tactful timing of a request to modify or getting the prosecution on board, getting an affidavit from the alleged victim, or by knowing what to ask for.

It’s not always best to ask for the world. If you want to be able to see your kids, or if you want to be able to at least communicate with your spouse or significant other while this case is pending so that you can coordinate childcare or finances, sometimes it’s best to ask for that first.

Then, demonstrate to the court that the parties can abide by the court orders before asking for full contact. In extraordinary circumstances and circumstances in which I have been able to do these things for my clients, there have been opportunities to get full contact immediately. But this is something that needs to be consulted with, with your attorney.

Because a defendant who immediately goes into their first court appearance without an attorney and asks for a complete modification or dismissal of the protection order, not only is bound to be disappointed but is also likely to create a poor first impression in front of the judge.

Other aspects of the protection order aren’t limited to just what kind of contact the defendant can have with alleged victims or other witnesses. Oftentimes, if the court determines that the case is governed by the Brady Handgun Violence Prevention Act, a defendant, even before being proven guilty, will be required to relinquish firearms, sign an affidavit saying that either there are no firearms or that those firearms have been sold or transferred lawfully. And, in some cases, the defendant may also have to give up ammunition that he or she possesses.

In addition, if there’s alcohol or if there are drugs involved in the instance, or if there are allegations that the defendant is a habitual drinker or drug user, the court can put in a “no alcohol” or “no controlled substances without a valid prescription” requirement of the protection order.

This can be fought if there aren’t grounds. However, in a lot of instances, the court will require the defendant to abstain from these substances.

Now, as it relates specifically to the protection order, there isn’t necessarily a drug or alcohol testing mechanism. Although, your conditions of bond or pre-trial release services could require monitored abstinence. However, as it relates specifically to the protection order, there is not necessarily a testing mechanism.

That said, if your protection order says no alcohol and cops get called to a party or to a bar, and they see you even holding an alcoholic beverage, you can be in violation of the protection order.

Why you should NEVER violate protection orders.

It is absolutely critical that any defendant in a criminal case abide by the protection order. If someone violates a protection order, new charges can be filed for violation of that protection order. This can be disastrous, not just to the current case but to the new charge itself.

By statute, sentences for violations of court orders must be consecutive. That means in addition to any sentence for the underlying crime.

One major aspect of a violation of a protection order that is often overlooked, but should never be, is the fact that judges and prosecutors often tie compliance with the protection order as a condition of bond. Therefore, if you violate the protection order, you run the risk of not only getting another charge but also having your bond revoked on the underlying case, and violation of bail bond conditions is another charge in and of itself.

The point is: abide by the court’s orders. The last thing that a defendant needs is for a bad situation to get exponentially worse. And there is no quicker way to make a bad situation exponentially worse in the realm of domestic violence than by getting caught violating a protection order. Just don’t do it.

How domestic violence can affect your Second Amendment rights.

Another important aspect of domestic violence cases that does not get enough attention is the effect that it has on a defendant’s Second Amendment rights: the right to possess, own, and purchase firearms.

As we discussed earlier, when we were talking about a protection order, oftentimes, a defendant’s right to own a firearm is at least forestalled or put on hold while the protection order is in place. That protection order will also often last through the duration of any probation period. Therefore, as long as someone is on probation, they can’t own a firearm. Which may not even matter because under federal law, anyone who is convicted of a crime of domestic violence, that is a felony or misdemeanor, that person cannot own a firearm for the duration of their life.

Therefore, if you are convicted of any misdemeanor or felony act of domestic violence, you are not allowed federally to own a firearm ever again. Now the question of whether or not a deferred judgment or a conviction to municipal court cases has that same effect is fact-specific and requires legal analysis from a trained professional who has studied gun rights and gun law in the State of Colorado.

A lot of my clients tell me, “Well, I don’t own a gun. I’m not interested in owning guns. I’m not so worried about that.” But please, the framers of our constitution gave us ten rights in the bill of rights. I make no habit of trying to give away my clients’ rights. Don’t be quick to give away yours. Even if you have no intention of owning a firearm in the future, don’t try to lose 10% of your bill of rights.

Should you choose a plea agreement or go to trial?

Domestic violence cases, like most criminal cases, end in one of two ways, a plea agreement or dismissal or trial. How you proceed with your domestic violence case is up to you. Nobody can make you plead guilty. Nobody can make you go to trial, but there are certain ways that a defense attorney who specializes in domestic violence can make the decision that you have to make between a plea agreement or trial an easier one. The key here is, regardless of whether you think you’re going to trial, it’s important to have a criminal defense attorney who is thinking about trial from the first time that he speaks to you. How are these facts going to look to a jury? What evidence can come in? What witnesses might be helpful to you? Can the government prove their case?

These are all questions that you don’t necessarily have to answer right away, but you want someone who’s trained to think about these things from the start. As it relates to plea agreements, you might be saying, “I’m not pleading guilty to anything.” And that’s absolutely fine. Again, no one can make you plead guilty.

But there are some instances when the government can absolutely prove their case or when effective negotiation and mitigation presentation by a relentless criminal defense attorney can get you a plea agreement whose benefits far outweigh the risks of going to trial.

I ask you this: what’s the harm in trying to figure out the best options? If the prosecution is not willing to work with you, then trial may be the only way. Let’s say they want some unreasonable amount of jail for a tiny infraction. Then a plea agreement isn’t on the table. You’re going to take that case to trial.

Why you NEED a criminal defense attorney

 Whether or not you choose to go to trial is entirely your decision. However, having competent, effective, and relentless defense can make your options all the easier. Wouldn’t it be great if you had both a great plea offer and a strong trial strategy that you could choose to do the cost-benefit analysis and determine which one is best for you?

That’s the type of work that you’re going to get when you join my firm. I don’t rest until you have good answers and good solutions and good options.

In a domestic violence case, it’s important that you have someone that’s paying special attention to the facts in your case because not all mitigation is the same, just like not every fight between couples is the same.

There may be something out there, whether it’s mental health, substance use, prior interactions with police; there can be something out there that is the key to a successful case for you, that, if you’re treated just like another number in the system, won’t be found. That’s why you need someone who gives you an individualized and relentless criminal defense.

Why choose Krizman Law for domestic violence?

Call my firm today. Chances are, I’ll be the one answering the phone. I’ll be happy to walk with you through your case. Tell you what I think about it and see if I can help you. Thanks for your time today. And good luck.