Colorado is a mandatory arrest state, which means that if police are called out to a domestic violence incident and they determine probable cause that one of the parties committed a crime (regardless of how minor or the other parties objection), they are required to make an arrest.
Sometimes we truly need help from the police to get out of a violent situation and we have nowhere else to turn. Other times, you wish you could change the outcome after an argument got a little too intense. Either way, if your spouse is arrested for domestic violence, we have outlined the general process you can expect to happen in this post.
In part 2, we discuss some of your options if you would like to get out of the relationship as well as steps you can take to help your partner if you want to stay together.
A person arrested for domestic violence is required to see a judge before they can post bond. A bond hearing will occur within 48 hours, and typically occurs the day after an arrest. Your partner will go in front of a judge and the judge will decide whether or not he will have a bond, and how much it will be.
For a first and/or minor offense, sometimes a judge will grant a PR bond, which means the defendant promises to appear at all future court dates. For other offenses, judges may set cash or surety bonds which require that someone actually puts up money for the bond. A surety (bondsperson) will usually charge a non-refundable 10-15% percent fee to post the bond. A cash bond is refundable from the court once the case is over.
Mandatory Protection Order (MPO)
At the bond hearing, the judge will put a mandatory protection order in place protecting the named victim. The only mandatory part of this protection order is that the defendant is prohibited from molesting, intimidating, or retaliating against the victims and witnesses. However, the courts often include additional conditions that prevent the accused from returning home or having any form of contact with their family. The MPO may also protect any children if they were affected during the incident.
The protection order can be modified at any time during the proceedings, including the very first bond appearance. A protected party seeking to modify the protection order can contact the prosecutor’s office, a victim advocate, the defense attorney and/or appear in court to speak to the court directly.
Arraignment/Pre-Trial Conference/Status Conference
A defendant returns to court to determine how to resolve the case. A plea offer may be negotiated or a trial may be scheduled at these hearings. A client without an attorney can speak directly to the prosecutor about their case. A defendant can also apply for the public defender or find a private attorney to attempt to negotiate a plea, obtain a dismissal or schedule a trial.
There are a variety of potential agreements that can be reached to resolve a criminal accusation. Diversion involves a dismissal after completing a short contract with the prosecutor’s office. A Deferred Judgement and Sentence (DJS) requires a plea of guilty, but that plea can be withdrawn after successful completion of probation. Any plea of guilt will require successful completion of domestic violence treatment.
If the police entered your home without consent, obtained statements/evidence illegally or violated a person’s constitutional rights, those claims can be presented and argued at a Motions Hearing that seeks to suppress evidence.
One common misconception is that every arrest requires an advisement of your Miranda rights. In reality – the police only have to advise you of your rights if you are under arrest and they are asking you questions. Most of the time, law enforcement seeks to ask all of their questions first – before making an arrest, in order to avoid violating this rule.
You are never required to speak with the police and can always invoke your right to remain silent or speak with an attorney at any time – even if you haven’t been advised of that right by the police. Neither party is required to speak to the police or give the police consent to enter into their home.
Every person accused of a crime has the right to a trial, but only a small fraction of cases actually proceed to a jury. There are lots of reasons that people accept plea agreements, but setting a case for trial is often a good decision.
Prosecutors have large stacks of files that they are prosecuting. Sometimes, they won’t thoroughly review a case until it is set for trial. Many times, they won’t even try to speak to the witnesses until a week or two before trial. Frequently, when the prosecution is required to prove the accusations at a jury trial, they end up dismissing the case instead.
Once a case is presented to a jury, the defense has their first opportunity to cross examine witnesses and make arguments to a neutral, unbiased party. The prosecution has to prove the case beyond a reasonable doubt in order to obtain a conviction.
If someone pleads guilty or is convicted at trial, the most common sentence is a period of probation. For misdemeanors and first offenses, probation typically lasts 12-18 months and involves domestic violence treatment. If alcohol or drugs were involved, substance abuse treatment might also be ordered.
In more serious cases involving injuries or when the case involves a repeat offense, some form of jail might also be imposed (work release, day reporting, ankle bracelet or straight time). Serious felony cases can involve Community Corrections (halfway house) or DOC (prison).
At Datz Law Firm we’re experienced with domestic violence situations. If you’d like help with this arrest, please get in touch with us. If you feel confused about what’s happening, please look at Part 2 of this article where we give some ideas on thinking things through.