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Colorado Law: Understanding Colorado Domestic Violence Cases – FAST TRACK and Other Laws That Impact Your Domestic Violence Case

Introduction – Colorado Domestic Violence Lawyers understand the complex interplay between the various laws that impact Colorado domestic violence cases.  What follows is an analysis of the various laws and how they interact to lead to culmination of your domestic violence case.  Study them – they matter.

What IS The Definition of Domestic Violence In Colorado

Domestic violence, as defined in C.R.S. § 18-6-800.3(1),

….. is “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 or any municipal ordinance violation against a person

OR

against property, 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.”

C.R.S. § 18-6-800.3(2) defines an”intimate relationship” 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.”

Colorado Domestic Violence Restraining Orders

Colorado statutes also call for a mandatory restraining order against any person charged with a domestic violence violation.

The Colorado Restraining Order law – C.R.S. § 18-1-1001(1) requires:

….. that the order “remain in effect from the time that the person is advised of his or her rights at arraignment or the person’s first appearance before the court and informed of such order until final disposition of the action.”

The statute mandates that defendants released on bail in cases involving domestic violence are provided with the terms of the restraining order on the record. The court is required to acknowledge the restraining order as a condition of any bond for the release of the defendant.

The Term: “An Act Of Domestic Violence “- A Sentence Enhancement

Domestic violence in Colorado – itself is NOT a statutory crime; it is a sentencing enhancement.

What that means is this – if the Court finds the crime was “an act of domestic violence” the court MUST impose the following conditions of any sentence:

The preferred sentence is participation and completion of an approved batterer intervention program. Under C.R.S. § 18-6-801.1, all domestic violence offenders are subjected to an intake evaluation conducted by a certified treatment provider. The batterer will be referred back to court for alternative disposition if the evaluator deems that sentencing to a treatment program would be inappropriate.

Colorado Law Provides That MUTUAL ARRESTS Are Not Favored In The Law

State law discourages mutual arrests. C.R.S. § 18-6-803.6(2) states:

If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons.

In determining whether a crime has been committed by one or more persons, the officer shall consider:

(1) any prior complaints of domestic violence;

(2) the relative severity of the injuries inflicted on each person;

(3) the likelihood of future injury to each person;

and

(4) the possibility that one of the persons acted in self defense.

What Is A COLORADO FAST TRACK Domestic Violence Program?

Many counties have so called fast track domestic violence programs.  Among them is the following program in Southern Colorado

Fast Track Prosecution

The Southwest Colorado Domestic Violence Project takes place in the context of fast track prosecution. Since fast track plays a central role, some attention must be paid to the practice itself. Fast track prosecution of domestic violence cases occurs in several districts in the state of Colorado and continues to expand.

Normal Progression of A Colorado Criminal Case – vs.  FAST TRACK

In traditional first appearance hearings, defendants appear before a magistrate or judge at which time they are informed of specific charges and their constitutional rights, and bail or other conditions of pretrial release are determined.

In minor cases, the court may accept a plea at the first appearance. If there is no plea, the case will then proceed to pre-trial conference.

Fast track is applied to first-time misdemeanor domestic violence cases only. Under this program, the emphasis in the first appearance hearing is on the plea.

Typically, the defendants have been released under no contact orders. Under state law, defendants may plead guilty without benefit of counsel where the District Attorney stipulates to the court that there is no intent to seek a jail sentence.

Without such a stipulation, there is a constitutional right to an attorney in cases where a jail sentence may result.

According to C.R.S. § 16-5-501, the prosecuting attorney may state in writing whether or not he will seek incarceration as part of the penalty upon conviction of an offense for which the defendant has been charged.

Victim’s Notice To Appear – Deceptive

Under fast track, when law enforcement officers make an arrest at the incident scene, they present the victim with a ‘Notice to Appear.’

Although the ‘Notice to Appear’ has no potential legal ramifications, it clearly states: You are hereby notified to appear. Failure to appear may result in disposition of the case without your presence or may result in prolonged court proceedings and personal service of process upon you.

The ‘Notice to Appear’ instructs victims to appear at the District Attorney’s Office at a designated time on the first business day following arrest to meet with two advocates: a

court advocate employed by the District Attorney’s Victim Advocate Program meets with them.

The notice also includes advocate contact information, should the victim prefer to

contact the advocate by telephone rather than in person.

Defendants appear in front of the magistrate where they are advised of their rights. The

domestic violence prosecutor meets with defendants only after they have been fully and

thoroughly advised by the magistrate.

After the magistrate has advised the defendant and explained the role of the District Attorney as a prosecutor for the state rather than defendant counsel, the magistrate gives the defendant the option of meeting with the prosecutor.

The magistrate or judge is supposed to makes it clear that if the defendant feels uncomfortable meeting with the prosecutor, the case can be reset.

While the advocates assist victims, the domestic violence prosecutor meets with defendants, informs them of their right to counsel, reviews the incident reports with them, and offers a plea.

Defendants then appear in front of the magistrate who can record their pleas into the record at that time. In general, defendants do not have counsel present during plea negotiations, and most defendants waive their right to counsel to expedite the case.

Defendants who accept the plea are routinely sentenced to the domestic violence intervention program and one year probation.

Why The FAST TRACK Idea Has Flaws

The application of fast track prosecution is controversial.

Discussion of the advantages and disadvantages of fast track is warranted.

The Suggested Advantages

1. Defendants are sentenced to treatment faster.

2. Victims receive in-person advocacy support.

3. The courts become more efficient.

4. Probationers are supervised.

Faster Treatment.

Defendants are sentenced to treatment faster. The program’s premise is that faster referral to treatment will reduce recidivism by interrupting the cycle of violence.

The major advantage of fast track prosecution is the swiftness of intervention. Since defendants appear in court the business day following the offense, the idea is that they are more likely to feel remorseful and accept responsibility for the incident.  The truth is – after a night in jail – they are exhausted – fearful and remarkably compliant. Those who plead guilty – the argument goes – are then able to enter into a treatment program, oftentimes within a month after the incident.

Some professionals in the Colorado criminal justice system indicate that the quicker turnaround in the court system leads to better treatment completion rates and lower recidivism rates.

In-Person Advocacy Support.

A second component of fast track is that victims receive in-person advocacy support. Nearly all victims who receive a ‘Notice to Appear’ at the time of the incident attend a session with advocates. In this session, the non-profit advocate discusses local resources, while the District Attorney’s victim advocate informs the victim of the court process and the likelihood that the defendant will be required to participate in a treatment program.

This personal meeting with advocates is intended to provide the victim with knowledge and resources, and should enhance victim safety. The fact that this meeting occurs within one business day of the incident results in fewer recantations and thus fewer “issues” for the prosecutor that may weaken his/her case.

Court Efficiency

An advantage to fast track is increased efficiency in the courts.

The defendant pleads guilty and accepts the prosecutor’s terms of the sentence, the case is closed—requiring no further action from the courts.

In addition to greater court efficiency, fast track also decreases the amount of time law enforcement officers must spend in court.

Supervision of Probationers

Fast track prosecution, as implemented in Colorado, is coupled with sentences to treatment and probation. Under this program, defendants receive treatment geared toward their specific needs and most importantly, probation officers work with treatment providers to monitor attendance and participation.

Ultimately, the combination of swift prosecution, treatment, and supervision is a positive outcome and goes a long way toward meeting the goal of community safety.

The Actual Operation of the Fast Track System – The Disadvantages

The implementation of fast track has several disadvantages, including the following:

1. The process raises serious constitutional issues.

2. The system depends on the integrity of the entire criminal justice system.

3. Fast track may disadvantage those who cannot afford counsel, and quite possibly, women defendants.

4. Fast track requires additional probation resources.

5. Fast track prosecution does not allow for alternative sentencing.

Constitutionality Issues

Defense attorneys have raised concerns regarding the constitutionality of fast track.

Of key concern is the lack of counsel during plea negotiations—state law provides that indigents are not entitled to counsel at the state’s expense where incarceration will not be sought.  Even in those cases where jail is sought, indigent defendants are extremely unlikely to secure the services of a public defender.

Defense attorneys also point out that defendants feel coerced into pleading guilty in the belief that it will eliminate future court hearings and the need to take time from work to attend court.

Under C.R.S. § 16-5-501, indigent defendants are not entitled to a public defender “if the prosecuting attorney does not seek incarceration as part of such penalty.”

Furthermore constitutional problems can arise when defendants are placed on probation and subject to jail time if they violate the terms and conditions of probation.

The constitutionality of fast track remains to be determined; appealed cases have not yet reached the Colorado Supreme Court.

System Integrity

Fast track prosecution depends on the integrity of the entire criminal justice system.

Law enforcement must make appropriate arrests with adequate documentation; the prosecutor must decide which cases to prosecute based on the evidence, and the magistrate must ensure that defendants are notified of their rights and understand the nature of the charges. Since fast track increases the number of guilty pleas, and hence, the District Attorney’s conviction rates, there may be an unstated incentive to prosecute borderline cases.

There is also evidence that police are making too many mutual arrests and arrests of self defending victims. By law, officers are required to conduct a primary aggressor analysis.

Yet mutual arrests occur and both the victim and the abuser enter the fast track system where the prosecutor must determine the merit of charges against both parties. Fast track makes it easier to convict both parties, especially since the District Attorney’s Office does not have an explicit policy on handling mutual arrest cases.

System Bias

Fast track disadvantages those who cannot afford counsel and may also disadvantage women defendants. In the criminal justice system, research has noted the strong relationship between social class and the likelihood of arrest and conviction. In fast track, the social class issue becomes even more troublesome as so few defendants have resources to hire an attorney and, being first time offenders, may not have an understanding of the criminal justice system.

Defendants who can obtain an attorney and postpone court proceedings are likely to be advantaged not only by counsel, but also by the fact that the victim is likely to recant over time.

Such cases are less likely to result in prosecution and conviction. In addition to social class biases, some local observers believe that fast track disproportionately disadvantages female defendants, some of whom may be self-defending victims.

The trauma of jail, combined with the strong desire to quickly close the case to be home with children, may impact women differently than men.

Local officials state that the prosecutor’s promise prior to sentencing that no jail will be imposed as part of the agreement is not binding at revocation proceedings. Furthermore, defendants are protected in the context of potential revocation because they are again formally advised of their rights to counsel.

Alternative Sentencing

Fast track does not allow for any intensive assessment prior to the plea agreement. Because first-time domestic violence defendants prosecuted under fast track are not subject to jail time, all offenders are sentenced to treatment regardless of the level of danger they present to the victim and the community.

Those convicted of domestic violence crimes do undergo an evaluation that is used to primarily place them in the appropriate treatment program.

However, the unavailability of alternative sentencing (including jail time), and the speed at which the cases are resolved tie the judge’s hands in terms of fast track sentencing.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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