Our in-house specialist on criminal law, shareholder Emily Warren, covers everything you need to know about the process of a domestic violence arrest.*
“Domestic violence” is not a crime in and of itself. Instead, it is a description added to a crime that indicates a specific relationship between the defendant and victim. It requires that the defendant and victim be in an intimate relationship – either presently or in the past – and that the crime either be an act or threatened of violence committed against the victim, or that it be any other crime which is used as a method of control, punishment, intimidation, or revenge against the victim. For example, destroying property that someone else has an ownership interest in, which is the crime of criminal mischief, is a crime of domestic violence if done in retaliation for a bad break up.
For many crimes, including most property crimes and most misdemeanors, a defendant can be issued a summons to appear or can be arrested; however, Colorado state statute requires that anyone who will be prosecuted for a domestic violence crime must be arrested and must be on bond if released while the case is pending. Additionally, a domestic violence offender cannot be released on bond until seeing a judge so that a Mandatory Protection Order can be entered. Compliance with that MPO will be a requirement of the defendant’s bond.
This means that someone arrested for a domestic violence crime cannot be released from jail sooner than the next business day when the Court is in session. If the arrest is on a Friday before a 3-day weekend, this generally means it will be Tuesday before the defendant can be released.
If the police decide to arrest your spouse, the officers may issue you a Notice to Appear, or something similar, which advises you of the date and time when the defendant will appear in court for a first appearance. They issue this because as a crime victim, you have certain rights under the Victim’s Rights Amendment to the Colorado Constitution and statute. Chief among these is the opportunity to provide your position to the court and the DA on a number of issues. (Unless you wish to speak directly to the judge, the DA will convey your position to the judge.)
At the first appearance, the judge and the DA will want to hear your position on the type of bond ordered, conditions of bond that you feel are needed to ensure no law violations while the case is pending (eg. no consumption of alcohol), whether or not a no contact order should be entered, etc. Generally speaking, the court and the DA are going to act with caution on the initial bond conditions, and the Court’s inclination will be to enter a no contact order which requires your spouse to leave the family home and stay away from you or anywhere that you may be. If you have children with the defendant, the court and DA will want to know your position on the defendant having any type of contact with the children. Especially where the children were present during the crime, the court’s inclination will be to enter an order that requires the defendant to also stay away from the children or anywhere they may be.
This is important to understand because there may be circumstances where you would want to be able to communicate with your spouse in order to make sure your needs and your children’s needs are met. For example, if you and your spouse have a business together, you may need to communicate regarding the business. Under certain circumstances and if requested, the court may permit you and the defendant to have telephone contact only to discuss a business, or your finances, or the children. As a result, if you feel the need to have communication with your spouse while the case is pending, you need to tell the DA or the court, and you should be prepared to explain why you believe this is necessary. Ultimately, it will be up the judge to decide whether or not to permit such contact.
You should keep in mind that the District Attorney’s Office is required to exercise independent judgment regarding bond conditions, and ultimately regarding resolution of the case. You absolutely have the right to be heard on both of these issues, but at the end of the day, the DA can take positions that are different from yours. If this happens, it does not mean that you are wrong to have the position you have, and does not mean that you should not honestly express your position. It’s important to understand that what affects your thoughts and feelings about the case is personal to you. In contrast, the DA is charged with seeking “justice” in the global sense, and is required to treat similarly situated defendants similarly. The DA is not your lawyer. As a result, the DA’s decision may or may not be exactly what you would like to see happen.
Once bond is set, the case will be scheduled for future court dates. The DA’s Office is required to share those future court dates with you, as well as to advise you of other rights you have as a crime victim, and will likely do so in writing. You should take advantage of these rights.
You should also be given the name of the victim-witness advocate or specialist assigned to your case. This person is employed by the DA’s office, can answer your questions about the criminal justice system and what is happening on your case, and can also share information about various community resources that might be helpful to you. You may receive a Victim Impact Statement to fill out. This is one way for the DA to learn what you would like to see happen on the case and whether you suffered any financial consequences – the other is through a conversation with you. If you want to have that conversation, make sure you tell the DA or the advocate or specialist.
The DA and the court really are interested in hearing what your position is and you should take advantage of opportunities to provide that information. After all, you know more about the facts of the case and the defendant than they do. The more information that is provided, the better the decisions that will be made.
*This discussion is limited to what happens in the days immediately following the arrest of a defendant for a domestic violence crime. It is intended to provide general information only and does not constitute legal advice.