Domestic Violence


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Attorney Vita

experienced and professional attorney - 30+ years private practice in Colorado state and municipal courts

6538 Charter Drive
Colorado Springs, CO 80918-1335


Phone (719) 260-1002
Fax (719) 260-1003  *  Toll Free (800) 410-1002
Criminal Defense Lawyer
Colorado Springs, Colorado      map
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I appreciate your interest
perhaps I'll become  your attorney


Page Index Site Index Consultation Terms Fees * Costs Directions Maps Travel * Trade Area
Colorado Springs, El Paso County, Colorado
Pikes Peak Region  *  Surrounding Colorado Counties  *  Southern Colorado  *  Front Range  *  Continental Divide  *  Eastern Plains
representation inquiries are invited & welcome * public questions seeking free advice or information declined * consultation terms
 attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted



Action Required
defense preparation
Fast Track
procedure & quick trial settings
Domestic Violence Court Proceedings and Procedure
What happens in a domestic violence case?
Residence of Alleged Abuser
time to leave home - at least temporarily
Definitions and Explanation
Felony vs. Misdemeanor
Advice to Counsel
Inexperienced or New Attorneys
PPIR  **  Potential Defenses Plea Offer Pitfalls Commonly Charged Domestic Violence Offenses
Domestic Violence Sentencing
possible sentences and
other domestic violence sanctions
Post Sentencing Matters * Motion to Revoke Probation - Deferred
Domestic Violence Classes
Anger Management

non-clients please do not call attorney for class information

Do I Need an Attorney? Attorney's Role
  Firearms   Federal Law - Brady Bill   Colorado Law  
ATTORNEY'S FEES AND COSTS Civil Court Case - Domestic Abuse Restraining Orders
Ethics Warning Right to Silence Search & Seizure Defendant Demeanor Bail Bond
Jurisdictional Attack Collateral Attack Affirmative Defenses Statute of Limitations Sealing Criminal Records
Court Proceedings Sentencing Deferred Sentencing Remedial Links Useful Public Service
 Cases Outside Colorado Springs - Travel

No Pro Bono Assistance  *  No Installment Payment
Legal Advice Limited to Clients - Not General Public
Representation Now - Another Attorney or Self
Attorney Representation & Declined Matters
No Post Sentencing - Revocation or Appeal * Sealing
ALLEGED VICTIMS - please do not call
attorney will neither offer advice to you nor speak with you about charges against an alleged perpetrator
if retained, attorney's private investigator will subsequently contact you requesting an interview regarding facts alleged in the case


attorney does not accept post sentencing matters unless counsel during underlying case
non-acceptance - probation revocation, deferred sentence revocation, parole violation or appeal **  sealing & collateral attack accepted

Colorado Springs Domestic Violence Criminal Defense. felony or misdemeanor arrest, fast track, similar transactions or prior bad acts, motion hearings, trial readiness hearing, jury trial or trial to the court. Trial is likely. Self defense or defense of property or defense of other persons affirmative defenses, domestic violence - domestic abuse - anger management classes, counseling & treatment, ownership or possession of firearms or weapons, restraining orders, deferred sentence pitfalls, CBI central registry identification as domestic abuse offender, sealing criminal justice records

Regarding civil restraining orders involving domestic abuse
refer to
RESTRAINING ORDERS page in my primary website


defense preparation


        Due to the speed with which domestic violence criminal cases are set for trial, it is prudent to retain counsel rapidly.  An attorney has no alternative but to decline representation if the prospective client calls at the eleventh hour unless the prospective client can obtain a continuance.  Courts typically do not grant continuance to the defense absent a compelling evidentiary reason; voluntary defendant delay may likely be found not to be compelling.  Once an attorney has entered his or her appearance as counsel of record, attorney remains bound to defend unless a judge grants permission to withdraw.  Attorney will not not seek late continuance on a person's behalf - if not granted, trial comes on without opportunity for defense preparation.  Attorney declines to be placed in a position where he must mount an incompetent defense due to lack of prep time.  Approximately 60 days is needed for preparation of a competent defense, mandatory endorsements and mandatory discovery disclosures; 45 days is compressed; 30 days is rejection threshold.


        A person charged with domestic violence criminal allegations may hire any attorney with whom he or she feels comfortable as defense counsel, but immediate defense preparation is required.  Delay is not a plan.


        For organization and dissemination, this attorney will utilize a confidential trial data site regarding case documents and pleadings, photographs, discovery from prosecution or law enforcement, 911 dispatch or other audio files including investigator interviews and transcripts as well as for other evidence and trial preparation.  A client index page provides access to materials by client, private investigators, transcriptionist, expert witnesses or other agent retained by counsel.  Some materials are protected by attorney - client privilege or the attorney work product doctrine and need not be disclosed to the prosecution.  A separate disclosure page is utilized for disclosure to prosecutors which may be limited by counsel.  Attorney utilizes a trial preparation worksheet to efficiently glean facts and evidence from a client. (access restricted to clients)


        This attorney will prepare a DV case for jury trial regardless of a client's anticipation of victim non-appearance.  Competent trial preparation is not negotiable.  To do otherwise would be ineffective assistance of counsel and malpractice in this attorney's opinion.  Refer to attorney fees and costs below and to travel if your case is outside Colorado Springs.  Information in this web page is free for the reading.





        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  No criminal or domestic violence criminal defendant should discuss a case or make any statements whatsoever with any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person. Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  Consult with your attorney before talking.  

        Statutory privileged communications under CRS 13-90-107 are limited in domestic violence cases and in cases of child abuse or at-risk adults and at risk juveniles, privileges do not exist.  I advise my domestic violence / abuse clients to rely only upon the attorney - client privilege and not to rely upon the communications privileges of husband - wife, clergy-parishioner, patient - physician, nurse or medical providers, psychiatrist, psychologist, professional counselor, marriage and family therapist, social worker, unlicensed psychotherapist or mental health.  Martell v. County Court of Summit County, 854 P.2d 1327 (Colo. App. 1992) - counseling, People v. Covington, 19 P.3d 15 (Colo. 2001) - CRS 12-36-135 which requires physicians to report and testify in episodes of domestic violence or gunshot wounds, abrogated the privilege.

        My clients are advised not to discuss facts, law or trial strategy in a domestic violence case with anyone other than myself as legal counsel or a private investigator retained as my agent, who is covered by the attorney - client privilege.  Statements to the alleged victim may be grounds for additional criminal charges, even if the alleged victim is your husband or wife.  Should you speak to the victim after entry of a restraining order, prosecutors will file a separate violation of a restraining order misdemeanor case against you.  If no restraining order enters after the statutory 72 hour no contact order, the victim may report that you made the wrong statement, and prosecutors will not hesitate to file intimidation of witness felony charges.  Be very careful what you tell or say to other persons - your statements may be used against you at hearing or trial, and the third person's testimony may be involuntarily compelled by subpoena.  Visitors who are not my clients should consult with your attorney before talking.

When the police call or drop by, don't talk to them.  
Simply say at the outset that you wish to remain silent & want an attorney.





        Emotions run high when arrested for domestic violence. It is scary to be taken involuntarily from your home in the middle of the night, booked into jail, left with little sleep or little food and required to face a judge and prosecutor. There is a tendency to feel a need to immediately get back into what you perceive as the safe harbor of your home.

        Do not contact the alleged victim or violate any restraining orderEvery domestic violence criminal case commences with a statutory injunction restraining defendant during the entire pendency of the case from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. CRS 18-1-1001  The injunction may impose other terms as a condition of release on bond.  It is standard practice for judges to impose a 72 hour no contact order in the injunction.  Other restraining orders may enter pursuant to CRS et. seq.: 13-14-101, 14-4-101 to 14-4-105, 14-10-107, 14-10-108, 19-2-707, 19-3-316, 19-4-111, C.R.Civ.P. 365

        Once the 72 hour restraining order has elapsed, even if no other injunction has entered, I advise my clients do not return home.  Tell your loved one that counsel has recommended that you have no contact during the pendency of criminal prosecution - lay that emotional burden on the attorney. Physical and emotional distance can not hurt you. Close proximity can hurt you - you may make the alleged victim angry, either wanting to prosecute you in this case or initiate another criminal case or a civil injunction. It's time for some distance.

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        You'll notice I placed the warning sections regarding exercise of the right to remain silent and victim no contact at the top of this web page.  It is placed in priority position because each is that important.  Clients want to carry on with their significant other as if nothing has happened - same 'ole / same 'ole.  The fact is, initiation of domestic violence criminal charges changes a defendant's life, and it frequently changes his-her perceptions.  Client conduct is the client's decision, but I can't for the life of me understand why clients put themselves at further risk of criminal defense.  If you are in this circumstance, you figure it out.


        When a criminal suspect voluntarily gives permission for police or law enforcement to search, items found in that search will likely be admissible as evidence.  Conversely, searches without a warrant are presumed unlawful with some exceptions.  Evidence found as a result of an unlawful search may be suppressed (excluded from admission) as a fruit of the poisonous tree.

        Every citizen has the constitutional right to be free from unreasonable search and seizure.  Never consent to a search or seizure without advice of legal counsel.  Let law enforcement procure a warrant or face possible constitutional challenge to the evidence.

        Similarly, no other rights should be waived by any criminal suspect or defendant without advice from counsel.  If you aren't certain what your rights are at the time of the police request, simply say no - I need to speak to an attorney.

If the police drop by, do not give them permission to cross your door threshold or enter the residence.

Simply say at the outset

you do not grant permission to enter

you wish to remain silent & want an attorney.


If the police have a warrant:

ask to see the warrant state you are not an attorney
state you do not grant permission but won't resist step aside and remain silent


refer to link for information


refer to link for information


        Since you're looking at this webpage, chances are you were booked into jail and have bonded, or alternatively you have a loved one currently sitting in jail shortly after an arrest.  You are likely familiar with the beginnings of the "fast track" procedure - arrest and hold for court advisement.  Pending trial, the fasted way to get out of jail is to procure a bail bond.  Refer to the bail bond page for additional information.

Notice the order in which the beginning of this web page is laid out.
        1.  Keep your mouth shut - exercise your rights to remain silent and presence of counsel, and do not consent to any search.
                    Make no statements to anyone other than counsel, and again - do not consent to any search.
        2.  Temporarily move out and have no contact - get some distance between you and the alleged victim.
        3.  Bail bond - how to obtain your freedom pending trial.  
                 Freedom pending trial is an immediacy to most people, but ranked 3rd on this list.

The order was intentional.  Domestic violence cases have very serious, long term consequences.  Clients frequently ignore this advice saying:  "That doesn't apply to me."  Attorney has had multiple clients regret that type of decision.

Warning given - take heed.  If a client chooses to continue cohabitation with the alleged victim or to have physical or phone contact with him / her during the pendency of criminal proceedings, attorney does not castigate or lecture the issue.  Clear warning on one occasion to an adult such as given here should be sufficient.




        If you are looking at this page, you or a loved one has likely been charged with a crime which is classified as domestic violence. Domestic violence is not a charge against a defendant, nor a crime at all. It is a sentencing enhancer that affects sanctions which may be imposed.

CRS 18-6-800.3  Definitions. Criminal Law

        (1) "Domestic violence" means 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.

        (2) "Intimate relationship" means 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.

The underlying crime(s) alleged may be misdemeanor or felony.

        a. Misdemeanor offenses are tried in county court; the maximum number of jurors you may have is 6. If convicted, the court's maximum sentencing jurisdiction is 2 years county jail and $5,000 fine. If granted probation, other conditions reasonably related to rehabilitation may be imposed; usually domestic violence classes or therapy, or anger management classes.

        b. Felony offenses are tried in district court; the maximum number of jurors you may have is 12. District court has no per se jurisdictional limitation on prison term or fine as exists for county court.  District court limitations in felony sentencing are set by the statute of the offense convicted or the class of felony convicted and the sentencing statutes.  Felony classes range from F-1 being the most serious to F-6 being the least serious.  Incarceration is to the Colorado Department of Corrections (prison - penitentiary). If granted probation, other conditions reasonably related to rehabilitation may be imposed; usually domestic violence classes or therapy, or anger management classes. Supervised probation is more likely in felony cases than misdemeanor.

CRS 18-6-801.5(7) conversion of misdemeanor to felony
habitual domestic violence offender

if a defendant is convicted of a misdemeanor domestic violence crime and 

has three times previously been convicted of prior domestic violence crimes

prosecutors may apply for adjudication as habitual domestic violence offender

defendant shall be sentenced pursuant to the presumptive ranges set forth in CRS 18-1.3-401 for a class 5 felony (F-5)

Note: In the information or indictment (charging document), prosecutors must set forth the former convictions and judgments - notice of felony prosecution must be given.

        I have included an abbreviated summary of statutes regarding criminal sentencing.  It is not intended to be all inclusive, however does contain a summary of basic information pertaining to a range of relevant sentencing penalties.  You may determine the class of felony or misdemeanor charged against you from the DV-Offenses page and locate the sentencing range below. 
        Refer to my primary website sentencing page for a summary.
                Sentencing - Misdemeanor

                Sentencing - Felony

        I have included an abbreviated summary of statutes regarding several offenses commonly charged in domestic violence criminal cases.  It is not intended to be all inclusive, this website contains external links where you may read the statutes verbatim.  You may wish to review the particular charges pending against you.  Refer to the DV-Offenses page for a summary of offenses and CRS link to read the statutes.

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General Concepts

        a. Statute of Limitations. After a criminal violation, the state may only bring criminal charges for a limited time. For most crimes, the statute of limitations is as follows: Misdemeanors - 18 months. Felonies - 3 years. CRS 16-5-401  Refer to the above link for more detailed information.  Once a person has been arrested or given a summons and complaint, the statute of limitations no longer applies. In most domestic violence cases, the arrest occurs shortly after the alleged criminal act, thus negating the statute of limitations. If you fail to appear for court, a warrant is issued to preserve the court's jurisdiction. The statute of limitations does not then apply.  

        b. Speedy Trial. Once a plea of not guilty is entered, the court must hold your trial within 6 months or dismiss the case. We are all entitled to resolution of criminal charges. Given fast track settings, this will not likely apply in domestic violence cases. If you fail to appear for court, a warrant is issued to preserve the court's jurisdiction; speedy trial does not apply.  Refer to the above link for more detailed information.

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Special Treatment for Domestic Violence Crimes

        A crime of domestic violence is treated differently than the same crime allegedly committed against a stranger. Fast track, CBI central registry reporting, employment limitations and weapon possession or ownership are major differences. Many people think the O.J. Simpson case in California was the impetus for domestic violence harsh prosecution as it now exists. In fact, the movement got underway and coalitions were formed in the mid 1980's - long before Simpson.

        FAST TRACK. The El Paso County District Attorney's Office worked for several years with surrounding area law enforcement agencies, hospitals, mental health professionals and T*E*S*S*A (fka the Center for Prevention of Domestic Violence) to establish a system to rapidly prosecute domestic violence cases. Visit their website -  DIVERT Partners - pretty impressive list of adversaries against each individual domestic violence defendant.  The local court also established "fast track" procedures which dovetail.  "Fast track" common circumstances are indicated below.  

        a. In most cases, the altercation or argument which underlies the criminal charge(s) occurs late at night or in the early morning hours. Law enforcement are called on scene by yourself, your significant other, or a neighbor. Law enforcement will come even if you call but never speak (911 traps all phone numbers, including non-published.) One or both of you will likely be charged with a crime under state policy; police will arrest regardless of your desires or your spouse's desires. Law enforcement will arrest on the basis of the alleged victim's statement alone - law enforcement officers arrest with no physical injury or supporting evidence.

        b. When arrested, the suspect (defendant) will be held in jail overnight without bond until he or she can be advised by the court of a statutory temporary 72 hour restraining order prohibiting contact with the alleged victim, return to the residence or return to the victim's place of employment. CRS 18-1-1001   Pending advisement, bail bond is not permitted.  I believe that is a violation of constitutional rights, but not yet tested in the Colorado appellate courts.

        c. After booking in the early morning hours, the suspect barely drops off to sleep before the personal recognizance bond eligibility investigator arrives. The defendant may miss breakfast. The suspect is taken to the courthouse for advisement in the early afternoon.

        d.     The alleged victim is brought in to the prosecutor's office at approximately 9 am for a conference to determine the facts, document evidence and provide input regarding punishment he or she would like to see imposed. The alleged victim does not have the ability to withdraw criminal proceedings.  If uncooperative, the alleged victim is confronted with impeachment by statements he or she made which are contained in police reports (sometimes inaccurately recorded or embellished by investigating officers), mandatory court appearance by subpoena (non-appearance punishable by jail) and the possibility of being treated as an adverse or hostile witness by prosecutors.  

        e. During the morning hours following the offense, prosecutors receive the victim's statement, witnesses statements, police reports, photographs, medical reports or other evidence.. In court it may appear to a lay person that the state has its case together in an iron clad fashion.

        f. After being shown a movie concerning rights, the defendant is taken into a courtroom in handcuffs (possibly leg irons also) and placed in the jury box, isolated from family or support who may be sitting in the gallery. Subsequent to court advisement, while still cuffed, the prosecutor may stand or hover over the defendant while negotiating. If occurring, this skews the power structure even further.

        g. If a defendant pleads not guilty, a trial date is scheduled in 60 days or sooner with a trial readiness hearing set in less time. Hopefully you didn't waive your jury trial right.

        h. Defendant bonds out in the late afternoon or early evening hours.

        i.  Each of the above circumstances have existed in cases I personally have defended.  It happens.

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Amendment of Charges

        Regardless of the charges initiated on a summons and complaint by a law enforcement officer, the District Attorney's Office ultimately has total authority to charge, amend or dismiss. Any one of the following actions will likely result in charges..

                a. You block your spouse's path of exit or movement (frequently standing in a doorway or in front of your spouse)
                b. You shove or touch your spouse in anger
                c. You throw items in anger or break property
                        even your own property
                d. You threaten your spouse
                e. You argue with your spouse and swear
                f. You repeatedly insult, taunt or challenge your spouse or communicate using offensively coarse language a manner likely to provoke a violent or disorderly response (in other words, your argue vehemently or are vulgar
                g. You are ordered not to contact your spouse and you later do
                        That includes a phone call to see if he / she is ok
                        Yes, I've defended that too when a client didn't take my no contact advice
                h. Without consent, you listen in on your spouse's conversations or tape record your spouse's conversations (felony punishable in the state penitentiary)
                i. You hang up the phone or pull the cord from the wall when your spouse is attempting to place a call
                j.  Refer to the DV-Offenses page for a summary of offenses frequently charged.

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Prosecution Preparation

        a. Prior Bad Acts. Prosecutors will attempt to introduce prior transactions (domestic violence or abuse incidents). By law, prosecutors must provide you notice by filing a notice of intent to introduce similar transactions and state the purpose of the evidence. They usually cite common plan, scheme or design, motive, modus operandi, lack of mistake, knowledge or evidence to negate an affirmative defense you may claim such as self-defense. The defendant may file an objection, in which case a hearing is held outside the presence of the jury to determine admissibility. That's a court fight with important effect on the potential outcome of your trial. When deciding guilt, you do not want a jury to hear this type of evidence. Although the jury would be instructed of the limited purpose for which they may consider the evidence, human tendency may be to subconsciously think... bad actor - did it before - did it again.

        b. Cycle of Domestic Violence. Prosecutors will likely endorse an expert to testify regarding the cycle of violence and symptomology. That type of evidence may be the subject of dispute.

        c. Improper Testimony Inducement -
                Threat to Prosecute Recanting Alleged Victim
                1.  In cases where I did not represent the DV defendant, alleged victims who wished to retract have called seeking advice for themselves.  Such alleged victims have informed me they have been intimidated by local prosecutors who stated that if the alleged victim recants (denied the DV allegation), he / she (alleged victim) would be charged with false reporting to authorities, a Class 3 Misdemeanor.  CRS 18-8-111 or perjury Perjury in the first degree is a Class 4 Felony Perjury in the second degree is a Class 1 Misdemeanor.  False Swearing is a Class 1 Petty Offense.  
                2.  Attorney comment.

        In 1997 my investigator obtained an admission on tape from an alleged victim that she had reported false allegations against my client (former boyfriend); that my client had not been present at the alleged location on the alleged date or time.  She freely admitted the charges were initiated to please her current boyfriend who was jealous of my client.  The circumstances of false reporting were credible and had the indicia of reliability.  The tape was offered on a silver platter to the El Paso County DA Office for prosecution.  DA Office management declined to prosecute, indicating as a policy determination there were simply inadequate resources to prosecute initial allegations plus subsequent recants, and if the DA Office prosecuted this case, they would have to prosecute all recants.
        On July 31, 2003 counsel confirmed with the chief prosecutor the policy of the El Paso County DA Office has been and remains to call the alleged victim to the witness stand, then put on expert testimony regarding the cycle of domestic violence to discredit the victim witness' recant.  The chief prosecutor was adamant that the prosecution's policy not to file criminal charges against the recanting alleged victim would remain unchanged while he is management.  This is based upon tragic circumstances of a former case.  The county court chief prosecutor referenced above has been promoted and is no longer involved in county court domestic violence prosecutions.  DA Office policy may have changed.
        If the El Paso County DA Office in fact has a no prosecution policy, yet subordinate, individual deputy district attorneys are threatening prosecution of the alleged victim to obtain testimonial evidence, that may be prosecutorial misconduct which may support dismissal motion, motion for a special prosecutor, could affect an appeal, could be misconduct which may subject the individual deputy prosecutor to disciplinary proceedings - C.R.P.C. 3.4(b), 4.1(a), 4.4, 8.3(a) - and may constitute extortion - a class 4 felony (F-4), CRS 18-3-207.  Tell your defense attorney if prosecutors or law enforcement officers have made threats of criminal prosecution to the alleged victim in order to induce testimony.
        This attorney has never seen a prosecution for false reporting or recant perjury, but who knows what charges may be brought by zealous prosecutors.
        Refer to Affirmative Defense- Perjury - Retraction

        d. Pre-Plea Investigation Referral. If a first offense without injury is charged, prosecutors may offer to defendant the option of a PPIR (Pre-Plea Investigation Referral) which assessment will be utilized by prosecutors in determining the disposition to be offered in plea negotiations, including determination of whether or not to prosecute the case.

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Defense Preparation
refer to attorney's role and assistance for additional information regarding defense preparation

        a. Motions
            1.  Defense counsel frequently files a discovery motion to learn the facts alleged in the prosecution's case. Counsel may also a motion to suppress alleging the defendant's rights were violated, claiming evidence which is fruit of the poisonous tree should be suppressed (excluded). Motion in limine may be filed alleging evidentiary exclusion on other than constitutional .grounds. If relevant, your attorney may also file a motion to gain access to medical, mental health or other confidential records of the alleged victim or if relevant, to require psychiatric or psychological evaluation of the alleged victim. Access to confidential records or victim evaluation is not standard procedure. You must be present in Court for motion hearings.
        b.  We are all human - periodically the law enforcement officer(s) make(s) an error on the summons.  Some errors are sufficient to deprive the court of jurisdiction to hear the case.  If an error exists, it may be worth making a big ta-do because it may result in dismissal or a more favorable plea offer.

refer to jurisdictional attack page

Identification Error Statutory Citation Error Alleged Offense within Venue
Failure to Timely File No Date of Offense In Futuro - Offense Alleged Future Date
Statute of Limitations Appearance Date When Court Not Open Appearance Precedes Charging Document
Other Jurisdictional Arguments Other Arguments Failure to Join in Single Prosecution
Appearance Date - Year Blank Failure to Serve Summons or Arrest Officer Failure to Issue (Sign)

        b. Victim Prior Bad Acts or Aggression. Refer to link for information.

        c. Victim or Witness Credibility for Truth. Credibility of an alleged victim or witness may be impeached by testimony of reputation in the community for truth or veracity. Specific instances of lying are not admissible except on cross examination regarding inconsistent statements made in the course of this case or relevant to this case.

        d. Private Investigation. You should not discuss this case with any witness or the alleged victim. Prosecutors will not hesitate to file intimidation of witness felony charges. I request a trust deposit to cover expenses for a private investigator.  Witness statements should be taken from any law enforcement, medical or paramedic or lay witnesses who may testify. A transcript of the witness' statement is useful in trial preparation, as well as for impeachment purpose at trial or hearing. Counsel can not testify in any case in which representation is provided. It is also common for the investigator to photograph the scene. An investigator looks for all evidence - favorable and unfavorable. Your attorney does not wish to be surprised at trial.

        e. Subpoena or Subpoena Duces Tecum. A subpoena is a document which requires attendance at hearing or trial and attendance. A subpoena duces tecum requires someone to appear and produce a specified document or item of evidence. Your witnesses will generally be given a subpoena to appear. Law enforcement 911 and dispatch call screens (aka computer assisted dispatch - CAD) will likely be placed under subpoena duces tecum. Your attorney may issue others for production of evidence from any agency, medical provider or person. I utilize the services of a reputable private process server.

        f. Endorsements and Jury Instructions. Your attorney will likely file the following documents in preparation for trial: witness endorsement, exhibit endorsement, theory of defense endorsement, affirmative defense endorsement (if relevant) and jury instructions.  Defendant in a criminal case is entitled to an instruction based on his theory o defense so long as the tendered instruction is in proper form and based upon evidence in the record. People v. Jones, 635 P.2d 904 (Colo. App. 1981).

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        At a trial, your guilt or innocence will be determined, and it must be decided unanimously. If charged with misdemeanor, you have the right to a trial by jury of six (6) persons, or to the judge alone. Felony gives right to a twelve (12) person jury, or court trial. The right to trial by jury should never be given up without advice of counsel; it is an important right. At trial, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt. You are presumed innocent unless and until the prosecution proves you guilty. You may remain silent, or you may testify if you choose. You may call witnesses and make them come to court by subpoena. You may confront and cross-examine witnesses against you. This will be a criminal trial with all rights attached. If you are found not guilty, the case is concluded. If you are found guilty of any charge, including a lesser charge, the case is set for sentencing. You must be present in court for a trial or a sentencing hearing.

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Assessment or Evaluation for Sentencing

        An assessment or evaluation is conducted by one of the treatment agencies before sentencing to determine the extent (if any) of domestic violence / anger in your life, and your history. A report is made to the court.  The Court is free to accept or reject the recommendations when imposing the sentence. At sentencing, the Court has the options of imposing a fine, court costs, jail, domestic violence counseling classes or therapy, anger management classes or therapy, marital counseling, alcohol or drug education or therapy, public service, alcohol anonymous meetings, or any other condition reasonably related to rehabilitation. You must be present in court for sentencing.

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        Each case is different; judges impose sentence based upon the facts of each case. In El Paso County, jail can be but is not usually imposed on a first misdemeanor offense if the case is properly presented and the facts are not aggravated. On a second misdemeanor offense, it is common for a sentence of 30+ days jail to be imposed. A third misdemeanor offense can draw 4-9 months jail. However, bear in mind these are generalizations, and may change in any case based upon the facts and circumstances surrounding the case. Felonies are more serious, much more so if crime of violence is charged against you. 
Misdemeanor Cases - Jail Sentence Imposed
    a.    You may qualify for work release.  That means you would be released from custody in time to go to work and would be due back to the detention facility shortly after finishing work.
            1.  You must provide a letter on company letterhead verifying days and hours of employment.
            2.  The local jail (CJC) has a maximum release policy - 12 hours per day, 6 days per week.  COMCOR work release facility did not have a maximum release policy the last I checked.
            3.  To verify your employment status you must be available by land line telephone - not cell phone.
            4.  To be able to drive to and from work, you must provide a current driving record reflecting valid driving privileges plus insurance currently in effect.
            5.  The cost is approximately $15 per day.
    b.    You may qualify for home detention - also known as ankle bracelet.  Courts have generally left ankle bracelet determination to the sheriff's office or COMCOR, but that is changing with jailhouse overcrowding due to DUI first offense mandatory jail sentences and some judges are imposing direct sentences to home detention.
    c.    You may qualify for day reporting.  That means you would report between 1 - 5 times per week to an agency which monitors your compliance with conditions of probation and may request random breath, blood or urine samples to check for alcohol or drugs.
            1.  To verify your employment status you must be available by land line telephone - not cell phone.
            2.  To be able to drive to and from work, you must provide a current driving record reflecting valid driving privileges plus insurance currently in effect.
            3.  The cost is approximately $6 per day report.
    d.    The El Paso County DA Office has taken a posture in misdemeanor cases that second offenders should spend at least 30-60 days straight jail time or 1.5 - 2 times the number of days with work release or some other combination with day reporting.  Based upon the shift in El Paso County DA Office settlement policy to imposition of straight jail without work release, this attorney believes settlement negotiations are no longer worthwhile in any misdemeanor case unless conducted within the context of motion and trial settings.  This is unfortunate as trial posture increases fees and costs, but unavoidable based upon El Paso County DA Office policy.

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Client's Preparation for Sentencing

        If you plead guilty to or are found guilty of a domestic violence crime, you will be ordered to commence domestic abuse counseling classes or therapy. Please refer to the DV-Classes page for a summary list of state certified classes in the local area regarding domestic violence and anger management.

        Although useful public service or alcohol education may likely not be ordered, remedial links are available.


Plea Offer

        a. Deferred Sentence. The District Attorney's Office has a no drop charge policy. In negotiations, prosecutors may offer you a deferred sentence. Under that mechanism, the defendant pleads guilty, however sentencing is delayed for a period, usually 2 years. If you complete the domestic violence counseling classes and have no other violations of law, your plea of guilt is withdrawn and the case or relevant charge dismissed.

        b. Waiver of Rights to Seal. The last numbered paragraph of the deferred sentence form pre-printed by the El Paso County District Attorney's Office contains an express clause wherein the defendant waives his or her rights to seal criminal justice records under CRS 24-72-308, the sealing of criminal justice records statute. If signed, the defendant's records of this offense maintained by the CBI, FBI, law enforcement agencies, courts, prosecution, and any evaluation or treatment agencies are wide open for use in a later domestic violence allegation.  For additional information, refer to the Sealing Criminal Justice Records page.

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Central Registries - Identification as Abuser

        Pursuant to Colorado law, a central registry identifying domestic abusers is maintained by the Colorado Bureau of Investigation (CBI) in Denver.  Every arrest is reported to and recorded by the CBI.  Every every domestic violence criminal case court filing, and every domestic abuse restraining order civil case court filing results in a report to the Colorado Bureau of Investigation CBI Central Registry. Final orders are reported to the CBI.  Can prospective employers, licensing agencies or the public find or access the CBI database?  CBI records check  Can prospective employers, licensing agencies or the public find or access the Colorado Judiciary database?  LexisNexis or CoCourts or BISI and Denver Courts
        Law enforcement databases have faster access to CBI records and court records.  In a domestic disturbance call, once the parties are identified law enforcement officers immediately check CCIC, including the CBI Central Registry.  If your name pops up, guess who is likely to be charged in a new investigation?  Same song, second verse except the jury potentially hearing about a prior. 
        The Department of Human Services (DHS - formerly DSS) maintains a statewide identification central registry of all reported child abuse which is founded in fact.
        Mandatory check of DHS TRAILS, CBI and FBI are required in a step parent adoption, relative adoption or straight adoption.  Schools will also check databases before permitting parents or grandparents to volunteer.
        These records have major impact upon a person's future, not only pertaining to potential future criminal charges, but possibly affecting opportunities regarding education, employment, professional licensing, international travel visa, or firearm possession / ownership, concealed weapon permit, etc.  Jury trial is likely where a criminal defendant's only alternative is accepting an offer which leaves the person vulnerable or trial.

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        If a person is convicted of a crime of domestic violence, or if a civil domestic abuse restraining order (injunction) enters against a person, firearm or ammunition ownership or possession becomes a thing of the past.  Federal law prohibits.  Also, with a domestic violence conviction or a domestic abuse restraining order, in addition to possession or ownership, attempting to purchase a firearm or ammunition is a federal felony.  See federal statutes 18 U.S.C.A. 921, 922 et. seq.  If firearms or ammunition are required for present or future employment, say good-bye.  At present, given a cursory review, it appears to this attorney that a deferred sentence to a domestic violence crime with subsequent dismissal does not impact firearm or ownership purchase, ownership or possession.  However I would need to conduct additional legal research to offer a firm opinion to a client on this issue.  Check with a gun dealer or the local sheriff's office.

        Forty-six-month sentence for possession of a firearm while under a domestic violence restraining order upheld. United States v. Baker, 197 F.3d 211, 217 (6th Cir. 1999)

United States Code
federal statutes - domestic abuse or domestic violence and firearms
18 USC 921 and 18 USC 922 are also known as the Brady Bill
act named after James Brady who was shot when John Hinckley, Jr. attempted to assassinate President Ronald Reagan on 3/30/1981
18 USC 921
18 USC 922
unlawful acts - firearms
ownership - possession - attempt to purchase
18 USC 2261
interstate domestic violence
18 USC 3563 and 3563 Update
conditions of probation
18 USC 3583 and 3583 Update
supervised release after imprisonment
CRS 18-12-108
Colorado law - weapon prohibition
note: government sites change location with regularity - if the above links don't work, try  US Code Search
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Colorado Law - Possession of Weapon by Previous Offender
CRS 18-12-108
felony conviction and deferred sentence or domestic violence - misdemeanor or felony
 definition of various weapons is contained in CRS 18-12-101

refer to the above verbatim statute link for convenience only - statute may have been amended since published herein - do not rely upon applicability to current date  **  site visitors may research CURRENT STATUTORY LAW

case on point regarding deferred sentencing as prior conviction for weapon prohibition CRS 18-12-108
People v. Dewitt
, 10CA1271 (Colo.App. 9-15-2011)

In Dewitt, the defendant carried a partially concealed handgun into a grocery store and behaved in such an irate fashion that police were called.  Defendant testified he believed his prior felony cases had been dismissed upon successful completion of deferred sentence, and therefore he did not know of his prior convictions and believed he did not have a prior conviction.  Among other issues on appeal, Dewitt challenged that knowledge of the prior conviction was required and that a deferred sentence is not a conviction within the context of the criminal statute CRS 18-12-108.


The prior conviction element of the offense uses the term "conviction" which, when used without any reference to judgment, means merely the establishment of guilt by plea or verdict.  People v. Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (citing Page 21 Hafelfinger v. Dist. Court, 674 P.2d 375 (Colo. 1984)) (the felony conviction element of CRS 18-12-108(1) is satisfied by proof of a guilty plea and deferred judgment; a judgment of conviction and sentencing are not required).  emphasis added  In either instance guilty plea or guilty verdict a defendant will necessarily have knowledge of the conviction because he or she would have entered the plea or observed the jury's verdict.


Our conclusion that "knowingly" does not apply to the prior conviction element is reinforced by the purpose of the possession of weapon by prior offender (POWPO) statute, which is to limit the possession of firearms by persons whose past conduct has demonstrated their unfitness to be entrusted with such dangerous instrumentalities.  See People v. Montez, ___ P.3d ___, ___ (Colo. App. No. 07CA0139, Mar. 18, 2010) (cert. granted Nov. 8, 2010); People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).  The statute prohibits all convicted felons from possessing a firearm to avoid "substantial risk of harm to the public," see Allen, 111 P.3d at 520, and it would be inconsistent with this purpose to require proof of a defendant's knowledge of his or her convicted felon status before prohibiting the possession of a firearm.


Express mental state of "knowingly" in the amended POWPO statute applies only to the element that the defendant knowingly possessed the weapon and that he or she understood that the object possessed was a weapon.  The only mens rea requirement for a conviction is knowledge that the instrument possessed is a firearm.


The mens rea or mental state element of the statute does not require that the prosecution must prove that that at the time of the alleged offense the defendant knew he or she had a prior felony conviction.  No requirement exists that the defendant knew of the prior conviction(s).  Prior conviction is established by evidence of conviction.  States with similarly worded POWPO statutes have consistently declined to apply the express mental state in the statute to the prior felony conviction element of the offense.


Attorney notation.  It is now clear that if the prior offense qualifies statutorily, a deferred sentence which has been subsequently dismissed upon successful completion is sufficient to support the prior conviction element under the Colorado previous offender weapons statute.
CRS 24-72-308(1)(d) (sealing statute) provides "Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person."  The sealing statute also provides for unsealing of criminal justice records.  "Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition."  CRS 24-72-308(1)(e)  Under the sealing statute, basic identification information is not sealed.  Therefore, upon a records check, law enforcement will have a heads up to investigate further and perhaps request unsealing.
The appellate court in
Dewitt held a deferred sentence which resulted in dismissal is deemed a prior conviction for purpose of POWPO, but did not address whether a deferred sentence dismissal which has been subsequently sealed would be construed as a prior conviction and support conviction under the Colorado previous offender weapons statute.  To counsel's knowledge, whether a deferred sentence which has been dismissed and sealed will be considered to be a prior conviction is an issue of first impression which has not yet been decided by Colorado appellate courts.
In debt collection, appellate courts have ruled the statute of limitations bars enforcement, but does not extinguish the debt.  Appellate courts may use analogous reasoning that the sealing statute bars seeing or disclosure of the records unless unsealed, but does not extinguish or eliminate the underlying conviction.  Given appellate rulings which have been unfavorable to defense, that type of reasoning in future court opinions is a very real possibility.  Attorney would not personally wish to be the defendant in the test case.

On the conservative side since the issue remains undecided, counsel believes the only safe approach to possession of a weapon is jury trial and not guilty verdict or flat dismissal by the court not the result of a deferred sentence, such as suppression of all the evidence.  Criminal justice records should then be sealed.  Otherwise, counsel believes possession of a weapon is imprudent and may result in criminal charges even if the dismissed deferred sentence case has been sealed.

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QUICK SENTENCING GRID   CRS 18-1.3-401 Felony and CRS 18-1.3-501 Misdemeanor

Class of Crime Location Incarceration Presumptive Range

Fine Range

Misdemeanor Class 1 (M-1) County Jail  6 months - 18 months $   500 $   5,000
Misdemeanor Class 2 (M-2) County Jail  3 months - 12 months $   250 $   1,000
Misdemeanor Class 3 (M-3) County Jail  0 months - 6 months $     50 $      750
Felony Class 3 (F-3) State Penitentiary 4-12 years, Max: 24 years $3,000 $750,000
Felony Class 4 (F-4) State Penitentiary 2- 6 years, Max: 12 years $2,000 $500,000
Felony Class 5 (F-5) State Penitentiary 1- 3 years, Max: 6 years $1,000 $100,000
Felony Class 6 (F-6) State Penitentiary 1- 1 years, Max: 3 years $1,000 $100,000


        For more information, I have included an abbreviated summary of statutes regarding criminal sentencing.  It is not intended to be all inclusive, however does contain a summary of basic information pertaining to a range of relevant sentencing penalties. 
        Refer to the Sentencing page for a summary.
                Sentencing - Misdemeanor
                Sentencing - Felony
                All sentences may include assessment / evaluation at a state certified agency and must include domestic abuse counseling. CRS 18-6-801(1)(a) and CRS 16-11.8-104
                Jail sentence to home detention (ankle bracelet) is prohibited CRS 18-6-801(4)
                The Court may impose any other condition reasonably related to rehabilitation. 
                A period of probation or parole would not be uncommon. 
        In addition to the criminal court's sentence, a convicted defendant is subject to:
            a.  Identification as a domestic abuser in the Colorado Bureau of Investigations CBI Central Registry.
                    Should law enforcement again respond to a person's residence regarding a potential domestic disturbance and the party is identified in the CBI Central Registry, that nearly guarantees arrest regardless of the factual circumstances.
                    CRS 18-6-803.7
            b.  Use of the offense in any subsequent (later) prosecution for a separate offense - evidence
                    common plan, scheme or design, lack of mistake, guilty knowledge, intent, modus operandi, identity, or motive CRS 18-6-801.5
            c.  Criminal justice records are open unless sealed.  Refer to Sealing Criminal Records page.
                    Open records may affect the ability to adopt, parental responsibility and parenting time in family law cases, ability to gain or maintain employment, hunting license, concealed weapons permit, education, rental housing, and domestic violence conviction could possibly affect a future personal relationship.
            d.  Inability to possess, own or attempt to purchase a firearm - federal crimes
* Colorado crime.


        When a defendant is in custody sitting the jury box and intimidated as indicated above, a domestic violence case can appear indefensible.  Some are not defensible at trial, however most are.  I've included a short list of issues counsel reviews, but have not included any defenses which could skewer the facts reported by a defendant to counsel during an interview.  Defense preparation should fit the facts, not the client making the facts fit potential defenses.


        The most common affirmative defenses claimed in domestic violence criminal charges would be self defense, defense of another person, defense of property, choice of evils or alibi.  


        Voluntary Intoxication is an affirmative defense to criminal charges requiring scienter (specific intent), but generally speaking it is not prudent in a domestic violence case.  Given my "druthers", I'd "druther" the alleged victim were intoxicated than my client.  Voluntary intoxication is not an affirmative defense to general intent crimes.

Frequently Charged Domestic Violence Offenses
Harassment * specific intent Third Degree Assault * general intent

        Involuntary Intoxication (i.e.: spiked punch - consumption of alcohol without knowledge) can be used as an affirmative defense to crimes of specific intent or general intent.  It would be a very unusual affirmative defense to domestic violence criminal charges.  Attorney has endorsed this affirmative defense to general intent crimes in a domestic violence jury trial involving voluntary consumption of alcohol in conjunction with prescription drugs which caused the synergistic effect where the client was unaware of potential effects of combining alcohol with prescription drugs.  Involuntary intoxication may require toxicological expert testimony, and as indicated, it would not commonly be endorsed except under unusual specific circumstances.

MENTAL ELEMENT  *  Specific Intent Crimes vs. General Intent Crimes
Nature of Offense Effects Voluntary Intoxication or Involuntary Intoxication Affirmative Defense Availability
  1. Jurisdictional attack  - refer to link for information
            Attack the jurisdiction (power) of the court in the pending criminal case
            Jurisdictional attack may be an important concept in defense of any given DUI case

  2. Reinstatement of jury trial right - involuntary, unintelligent and unknowing waiver

  3. Lack of reasonable suspicion for initial contact by the law enforcement officer

  4. Unlawful, warrantless entry into defendant's home

  5. Unlawful, warrantless arrest or seizure of the defendant's person

  6. Unlawful extra-jurisdictional arrest if law enforcement officer outside of jurisdictional limits

  7. Defendant's admissions the result of undue influence, duress and coercion - due process violation

  8. Defendant's admissions taken in violation of
            5th Amendment privilege against self incrimination
            6th Amendment right to legal counsel

  9. If intoxication is relevant and investigated in the domestic violence arrest or may affect defendant's credibility:
            Sobriety testing (if relevant) unreasonable search unsupported by warrant
            Chemical testing (if relevant) unreasonable search unsupported by warrant
                Sobriety testing - was it truly "voluntary," advisement which was given, it a search within the meaning of constitutional protections - was there probable cause, was it reasonable?  Were there legitimate reasons other than alcohol for poor performance?  Was horizontal gaze nystagmus (HGN) properly conducted or could an eye doctor discredit the test as conducted?  Was HGN conducted after midnight - HGN onsought effect.  What tests didn't the negligent officer conduct?
                Breath BAC.  Consent "voluntary?" Did the officer observe the defendant for a full 20 minutes to avoid residual mouth alcohol?  Dentures, plates or periodontal pockets?  Certification of the intoxilyzer operator, instructor and machine?  Spiking, malfunction, blood-gas ratio average not particularized to defendant, physical inability to cycle, retention of a silica jell tube, specimen re-test results & variance, standard solution - time used, date of preparation, number of times used, standard solution results from other tests, ambient air alcohol, radio wave interference.  How long from time of driving, how was the time of driving established?  Cycle sequence, etc.
                Blood BAC.  Voluntary consent?  Vial 1.0+% NaFl as anti-coagulent and preservative?  Sterility in vial and skin?  Was ethanol based sterilent used to swab skin?  Specimen re-test results & variance, is BAC result highest of multiple state tests or average or low test result?  Refridgeration, officer presence at the time of the draw, time between blood draw and testing, chain of custody and witnesses thereto, vial identification, phlebotomist / lab tech / toxicologist / pathologist, lab certification, vial serial number matches - ID, etc.
            chemical testing (if relevant) unreliable and violative of due process
            Chemical testing failed to comply with Colorado law & Dept. of Health regulations
            Knowing consumption - vodka spiked punch unbeknownst to "victimized" defendant

  10. Vendetta.  When the "alleged victim" is gut angry with the defendant, he / she may have been waiting for an opportunity and may use the domestic violence prosecution as a vendetta to get back at defendant for all the years of frustration.  
            Witness allegations inconsistent with physical evidence.  "Alleged victim" may fabricate or overstate the severity of the altercation and "battering" sustained or criminal conduct perpetrated.
                Expert testimony of a physician regarding physical symptomology to be expected given witness' description of beating may destroy the credibility of the "alleged victim."  
                The voice of the reporting party on 911 dispatch tapes may not reflect the emotional tone jurors would expect given the proximity of alleged trauma.
                Cell phones are wonderful sources of impeachment evidence.  Cell phone billing records reflect each incoming and outgoing call, and the length of each call.
                Co-workers and friends of the "alleged victim" can also be fruitful sources of impeachment evidence.  Sometimes in his / her zeal, the "alleged victim" says a little too much.  
                Law enforcement officers or ambulance EMTs may have impressions or may have made observations not contained in reports.  Such matters may be fertile for impeachment.
                It is important to have the scene photographed and perhaps a video tape of the residence or other location.  Condition of the physical scene may be inconsistent with an altercation or other allegation, and in any event, it is worthwhile for defense counsel's and perhaps the jury's understanding of the case.  If the scene is under the physical control of the alleged victim, investigator access can be gained by filing a motion with court.
                This is why counsel uses a private investigator.
                In such a case, defense counsel will not only let the witness dig his / her own grave in direct testimony, but encourage extrapolation during cross-examination.  Care must be taken in cross-x to be certain the jury is not alienated by the line or method of questioning.
                When bone deep upset and "on a mission", even highly intelligent persons can lose judgment and may exaggerate.  These exaggerations can absolutely destroy witness credibility.
            Domestic violence or abuse is really all about power and assertion over another.  The jist of the argument is that domestic abuse is indeed being perpetrated, but not at the time of the alleged offense - it is being perpetrated in the midst of the trial - and jury members are an instrumentality of the "alleged victim's" abuse.
                Remember, jurors have taken time from their busy lives to sit on the panel.
            This argument is used only when meritorious, but in such a case - it's effective.  Vendetta argument may be the most persuasive defense in a jury trial. 

  11. Officer observations - what didn't he observe which a jury member might expect?  What was the officer's opportunity to observe? - lighting, time spent, temperature, victim demeanor and injuries, etc.  

  12. Officer credibility.  Experience with domestic violence / abuse and training, over concern with conviction statistics, a cop's cop or an average Joe doing a job, would the jury members want this particular officer responding to a call at his / her home?  Has the officer overstated his / her observations in relation to the other evidence?  How well was the investigation conducted?

  13. Cloak of innocence and burden of proof upon state.
            Cloak of innocence.  Each defendant is presumed innocent and that presumption remains with each defendant throughout the trial.
            Burden of proof.
                A defendant is not required to prove innocence - the state must prove guilt.
                To establish guilt, the state is required to prove each and every element of each offense charged beyond a reasonable doubt.  Individual jurors are required to keep an open mind and participate in jury deliberations before reaching a conclusion and coming to a verdict.
                A little more likely than not (preponderance) won't suffice to support a verdict of guilt.  
                Clear and convincing evidence won't support a guilty verdict.  
                Beyond a reasonable doubt can be a very heavy threshold in this type of case.

  14. I could ramble on, but it should be clear a multitude of facts are available for cross examination and argument.

  15. When all else fails:
            Trial lawyer's adage:
                If the facts are on your side - pound the facts.
                If the law is on your side - pound the law.
                If neither the facts nor the law are on your side - pound the table !

  16. And if that fails ---- time to buy a bird dog or learn to cook.  Your dog can flush the pheasants on the eastern plains for your friends with 12 gauge shotguns.  You can also accompany your friends into the mountains on the annual deer or elk hunting trip and be the camp cook or carry a camera with a telephoto lens or a pair of spotting binoculars.  But if convicted, you can't carry a weapon, and I'd suggest there not be an "extra gun" in the vehicles or camp.




        Given El Paso County DA Office fast track policies, a defense attorney's role in a domestic violence case is trial attorney, not negotiator.  Domestic violence cases proceed to jury trial.  Many other counties have also adopted fast track policies with the goal to reduce docket congestion and close court files rapidly.  That may be a worthy goal for overburdened courts, prosecutors and law enforcement, but a defendant's interests lie in adequate defense preparation, due process and fair trial, not speed of court file closure.


        Your case will be investigated and prepared for trial. The below is an indication of common domestic violence trial preparation.

a.  Counsel looks for evidence.
     1.    exculpatory.  tends to negate guilt or to reduce punishment
     2.    inculpatory.   tends to establish or support guilt or to increase punishment


b.  Defense counsel uses a private investigator to uncover facts and potential testimony - both favorable and unfavorable.


c.  Defense counsel requests that client provide information on a rather lengthy client statement trial preparation worksheet (restricted to client use only).  Subsequently, attorney and / or private investigator will interview the the client to uncover facts, both favorable and unfavorable.  Plan on 1 - 3 hours for a factual interview.


d.  If client is in need of personal property items such as clothing and toiletries for temporary use while excluded from the residence, investigator will make arrangement for property transfer to investigator and subsequently from investigator to client.  In no event should client attempt to arrange property transfer with the alleged victim or any third party.


e.  If relevant, client's caller ID will be photographed.  Do not erase and advise counsel if such exists.  Note: caller ID commonly rolls over and overwrites after a specific number of call entries.  Timely make arrangement with attorney or investigator for photographing to a permanent evidentiary digital image file.  Client is advised not to personally accomplish this - chain of custody and foundational testimony is required for use in court proceedings.


f.  If relevant, client's voice mail will be recorded.  Do not erase and advise counsel if such exists.  Note: phone companies and cell phone companies automatically delete voicemail after a period of time - commonly 10 days - 60 days.  Timely make arrangement with attorney or investigator for recording to a permanent evidentiary digital audio file.  Client is advised not to personally accomplish this - chain of custody and foundational testimony is required for use in court proceedings.


g.  If relevant, court order will be obtained for production of hard line telephone or cell phone records.  Not only can date, time and length of hard line long distance calls or any cell phone calls be ascertained, if relevant, location of a cell phone at the time of calling can generally be established via cell phone towers.  Hard line telephone produces limited records of long distance calls only - not local calls.


h.  Defense counsel and private investigator will view the scene of the alleged offense, photograph and take measurements.  A scene diagram will be prepared.  A video file of the scene may be recorded.  If the location is within the exclusive possession or use of the alleged victim and protected by restraining order or otherwise inaccessible, a motion for access will be filed.


i.  National background search of the defendant will be conducted.  CCIC should also be received in discovery from the prosecution.  If there is an issue with the prosecution attempting to introduce evidence of similar transactions, defense counsel wants to know and and will demand hearing on the issue prior to trial.


j.  National background search of the alleged victim will be conducted.  The prosecution may not run CCIC on the alleged victim or provide in discovery.  If the alleged victim has previously reported being the victim of domestic violence or abuse or if the alleged victim was charged with a domestic violence crime or involved as petitioner or respondent in domestic abuse civil litigation, open records act request or subpoena duces tecum will issue for court files, law enforcement records or perhaps 911 or law enforcement audio files, prosecution files  or other evidence.  Prior litigation opposing parties or witnesses may be interviewed by our investigator.


k.  Subpoena duces tecum will issue for law enforcement 911 audio files, dispatch communications and computer assisted dispatch (CAD) aka call screen.


l.  If the fire department, ambulance or paramedics were called in, subpoena duces tecum will issue for trip reports or other documentation which may have been generated by emergency response personnel.


m.  If relevant, injuries sustained by the defendant will be photographed evidencing any cuts, scrapes, abrasions, bruises or other visible evidence of injury.


n.  If hospital or medical records of the alleged victim or defendant exist which are proximately related to the alleged offense, such records will be procured via subpoena duces tecum or court order.  X-rays or toxicology reports may be important.  Nurse's notes tend to contain relevant information.  Other relevant medical records, if any, would also be procured.  Opinion from an independent M.D. may be relevant, or attending medical staff may be interviewed by our investigator.


o.  If hospital, medical or prescription records exist regarding a prior psychological condition which existed on the date of alleged offense or drug usage (Rx or otherwise), subpoena decus tecum may issue for such records.


p.  If hospital, medical, or prescription records or in-patient treatment center records exist regarding treatment for alcohol abuse or substance abuse & such condition is relevant to the alleged offense, subpoena decus tecum may issue for such records or motion for order of disclosure.


q.  If the alleged offense occurred at a location where security cams were present, subpoena decus tecum will issue for video or rapid photography images - film, tape, analog or digital files.


r.  For any law enforcement audio files, investigator interview digital audio files or other audio material, counsel will utilize the services of a professional court reporter / transcriptionist.


s.  As relevant and with the client's authorization & trust deposit to cover anticipated expenses, counsel may retain or consult with a psychiatrist, psychologist, trauma or other physician, orthopaedic physician, radiologist, neurologist, toxicologist, pharmacist or other expert witness.


t.  If relevant, counsel may schedule psychological testing of the defendant or alleged victim for assessment regarding their relationship, individual personality characteristics, domestic abuse and cycle of violence dynamics.


u.  The defense attorney should have more knowledge of the operative facts and applicable law than anyone else in the courtroom, and counsel must have the ability to present relevant evidence of facts at court proceedings.  Knowing something and getting evidence admitted into the record can be two very different animals.


        Plea negotiations are impacted by evidentiary or legal weaknesses.  If a favorable settlement offer is made, it is usually on the eve of trial or as the jury panel is being brought to the courtroom from the jury commissioner.  Chances are very slim that a domestic violence case will settle within parameters acceptable to the client unless it is not problematic for the client that records reflecting he / she is a spouse abuser will be retained and will be permanently available:

a.   potential subsequent use against the client in the event of future domestic violence allegations

b.   guaranteed impact upon the client's civil liberties, such as firearm or ammunition ownership or possession

c.   potential impact upon future educational or employment opportunities, professional licensing, volunteer activities, foreign travel visa, etc.

d.   don't expect negotiation to to result in disposition - jury trial is likely


        Judges want to know the parties have discussed possible settlement options before taking valuable docket time for contested hearings and trial.  To avoid the wrath of a judge who thinks Alexander Graham Bell's little invention (the telephone) is a wonderfully useful tool, defense counsel does communicate with prosecutors inquiring by phone or email of a potential plea offer.  Good faith representation that the parties have communicated and failed to reach agreement satisfies any judge as to settings on the docket.


        Counsel has no expectation any such communication will settle a domestic violence case.  However, unless it appears prosecutors have forgotten to prepare for an upcoming court appearance, it doesn't hurt to communicate with opposing counsel and may placate a judge.  Rarely is a plea offer received which is acceptable to the client.


        At any time a settlement offer is received, the client is advised of the offer, facts, applicable law, consequences and options in order that he / she may make intelligent decisions.  It is the client's case and consequences, therefore he / she must always be able to decide freely, voluntarily and intelligently.  Counsel may make recommendations, but the client's decision regarding settlement offer acceptance or rejection is always honored.  If the client rejects a plea offer, counsel again takes control of the case regarding trial strategy and presentation.  As mentioned numerous times herein, don't expect to settle - plan on a jury trial.  Hence, your defense attorney's role in a domestic violence case is trial attorney, not negotiator.

        Domestic violence trial commands a great deal of the defense attorney's time and attention.

a.   Misdemeanor fast track procedures usually set trial within sixty days or less from advisement, which is generally done the next business day after arrest.  Typically, counsel has less than two months from the date retained until a jury is seated in the box.  Continuance would routinely be denied unless defense has a very good reason.  The above preparation, including filing of motions, briefs & jury instructions plus legal research and preparation for hearing or trial proceedings must happen quickly with priority on the attorney's calendar.

b.   Felony cases are frequently not quite as rushed on the court's docket settings, however due to seriousness of allegations and potential penalties, felony cases most assuredly require significant attorney attention for investigation, filing of pleadings, briefs and jury instructions as well as legal research and attorney preparation for hearings and trial.  Felony cases are more complex and involve additional issues, thus demanding more time than misdemeanor case preparation.


refer to link for information and professionals utilized by counsel


advice by laymen or unsupervised paralegals - refer to link




Do I need an attorney?

Probably time to loosen the pocket book and hire a defense attorney.









Domestic violence allegations can have very serious, long term consequences well beyond the sentencing order of the judge.


Background check examples: post secondary educational program acceptance, employment, security clearance, professional licensing CRS 24-72-305.4, volunteering at your child's or grandchild's school, daycare or social group activities such as boyscouts, girlscouts, etc. CRS 24-72-305.3, caregiver functions, CRS 24-72-305.3, foreign travel visa, firearm possession or ownership (gun collection, hunting or target practice) Federal Brady Bill, concealed weapon permit - this mentions only a few common possibilities.


Adoptions - step parent adoption, relative adoption or straight adoption - mandatory background checks of DHS TRAILS, CBI and FBI are required.


Every arrest with jailhouse booking, and every domestic violence criminal case court filing, and every domestic abuse restraining order civil case court filing results in a report to the Colorado Bureau of Investigation CBI Central Registry.  Background check of this database can be conducted by anyone at any time - CBI records check database is not difficult to find.


Ultimately, sealing criminal justice records will likely be important to a person charged with a domestic violence crime.


If you'll ever need an attorney in your life, now is the time.  You may retain my services or the services of another attorney, but hire defense counsel.  Succinctly stated.


Trial Preparation Worksheet - domestic violence criminal defense - restricted to client use only.


Terms of First Consultation


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Multiple attorneys from across the state who are either inexperienced in DV defense or newly admitted have called for advice.  A few have accepted a domestic violence criminal defense case and domestic abuse restraining order defense case, never having tried any criminal or traffic case to a jury.  In particular, one new attorney had collected an initial retainer which would be insufficient to pay a private investigator, not including other litigation costs or attorney fees.  This was the new admittee's first criminal case, contested hearing was set the following day and the attorney was floundering with trial preparation which was wholly inadequate.
If you lack DV criminal defense experience, refund the client's retainer in toto, advise the client to retain experienced counsel and promptly file a motion to withdraw.  Alternatively, retain co-counsel in your local area who is experienced in domestic violence trials and learn how to try a DV case properly.  This is not the type of case on which you wish cut your teeth or learn criminal defense without an experienced second chair mentor.
Domestic violence criminal cases and civil domestic abuse PRO cases have potential consequences which are very long term and quite serious.  Incompetent solo representation not only risks a malpractice claim or grievance, lack of experience places your client at risk for potential jail and more importantly, the long term consequences related to DV criminal justice records which will be found in a background check for employment purposes as well as all the other privacy interests which may be harmed.  Although it may be embarrassing and financially hurtful to bring in experienced co-counsel or to tell your client you are not yet ready for this type of defense, refund and file a withdrawal motion, you will be serving your client's interests with honesty and integrity.

Colorado Criminal Defense Trial Practice 30+ Years

If you are looking for earnest trial preparation and representation, please call or email.  However, please look elsewhere if you are seeking an inexperienced or hungry attorney who will open file and run down to negotiate a nominal effort, quick settlement for a cheap fee.  The same applies if you anticipate dismissal due to victim non-appearance, but want an unprepared, minimal fee attorney present in the courtroom as backup in case the victim unexpectedly shows up for hearing or trial.  We won't travel either of those roads together.

At the time of the first visit, a prospective client will be given a quote for fees and estimated costs. The quote will be honored for a period of seven (7) days, after which quotes are subject to change without notice if this office has not been retained.  Fee quote and costs trust deposit is dependent upon the facts and circumstances of each individual case.  Attorney fee options + litigation costs: flat fee or hourly fees at client's discretion.  Due to the fact this type of case is commonly non-negotiable, attorney does not offer a settlement flat fee.  Litigation costs are not included in fees - client's obligation.  Attorney is a sole practitioner with need to manage his caseload.  Pending proposed client acceptance and payment, retainer agreement proposals are subject to withdrawal.  Attorney reserves the right to decline any case.  Refer to:  a) first consultation  b) attorney fees * costs * billings page  c) additional information.

map * travel policy - time & expenses * travel rates click jitney for travel tables
outside El Paso County

hourly fees may be less than offered flat fees, however are not capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of flat fee + estimated costs total trust deposit required to retain
trust deposit overage - refunded at case conclusion   **   undercapitalization - immediate trust deposit required



attorney does not accept installment payments * full payment is due at time attorney is retained * major charge cards accepted


Colorado Springs Attorney Robert D. Gustafson



$ 8,500  
$ 3,500  
common trust deposit request
including attorney's fees & litigation costs - excluding travel
additional cost deposit may be requested as trial preparation proceeds & anticipated litigation expenses solidify
* felony charges or child abuse allegations would change this estimate
* this shall not constitute an offer, nor be construed as a binding estimate


Use of professional services or expert witnesses will significantly effect litigation cost expenditure - client's responsibility.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
payment not received as agreed = representation withdrawn

out of pocket costs are the responsibility of the client
e-Filing availability and court mandatory requirements
litigation costs fluctuate - not within attorney control
costs change & below cost information may be obsolete
link to Colorado Judicial Branch website -  current costs
County Court
District Court
    Potential Expenses
Price   Background Search - cost per person searched - client and alleged victim
20.00   Offense Report
25.00   DA Office discovery packet - estimate (actual may be more or less)
25.00   State court jury deposit (some offenses) C.R.Crim.P. 23, CRS 16-10-109 (non-refundable except by acquittal)
10.00   Court records search & copy costs (actual may be more or less)
10.00   Copy expense at courthouse for prior offense files (estimate - may vary)
  State or municipal court records re defendant's prior litigation history as an alleged victim or a defendant
       domestic violence, domestic abuse, violence allegations of any nature, moral turpitude, dishonesty, etc.
  State or municipal court records re alleged victim's prior litigation history as an alleged victim or a defendant
       domestic violence, domestic abuse, violence allegations of any nature, moral turpitude, dishonesty, etc.
______   Court transcript of civil domestic abuse restraining order hearing testimony for criminal case impeachment
______   Graphic arts - professionally prepared poster sized diagram - scene of alleged offense
75.00   Public Service supervision fee
37.50   OJW fee to court (outstanding judgment warrant)
1,000 - 1,500.00   Private Investigator likely relevant - final investigator fees & costs variable based upon number of witnesses
200.00   Law enforcement 911 / dispatch records, tapes & transcript - widely variable
200.00   Subpoena process service expense - depends on number of subpoenas issued
$3 per page  250.00   Transcriptionist - law enforcement 911 / dispatch audio files & investigator interview audio recordings if relevant
5,000.00   Psychological evaluation of defendant or alleged victim - cycle of violence - cost widely variable
______   Emergency room physician or other physician - injuries inconsistent with allegations - cost widely variable
______   Pharmacist or toxicologist - if relevant - effect of psychotropic drugs taken by alleged victim - cost widely variable
Varies   On-line legal research - dependent upon issues requiring legal research, if any
Rates   Travel time and expenses if the case is outside El Paso County
    Alcohol or Substance Testing & Testimony if Relevant
$165.00   Toxicology - BAC Ethanol (alcohol) only - relevant only if alcohol or drug involved
215.00   Toxicology - BAC Ethanol (alcohol) + NaFl (preservative)
95.00   Toxicology - UA qualitative toxicology screen for marijuana
consult counsel or lab
  Toxicology - UA qualitative or quantitative toxicology screen for marijuana,
       substance quantitative toxicology screen for marijuana or qualitative and quantitative drug screen
  Laboratory - Toxicologist testimony hourly fees and travel mileage  -  if expert testimony relevant
                          misdemeanor hourly rate $350 - 5 hours travel time + minimum 1.5 hours court time

In every domestic violence case, it is prudent to place law enforcement 911 * dispatch tapes and records, plus other law enforcement records under subpoena duces tecum.  Same applies to hospital or medical records or EMT trip reports & records in the event of treatment.  Expense will depend upon the amount of time the law enforcement agency spends searching dispatch tapes and records and medical facility records research / reproduction costs.

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.  limited search pricing

******************** ******************** ********************
map * travel policy - time & expenses * travel rates click jitney for travel tables
outside El Paso County

hourly fees may be less than offered flat fees, however are not capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of flat fee + estimated costs total trust deposit required to retain
trust deposit overage - refunded at case conclusion   **   undercapitalization - immediate trust deposit required



attorney does not accept installment payments * full payment is due at time attorney is retained * major charge cards accepted



Colorado Springs Attorney Robert D. Gustafson



$ 17,500  
$ 5,000  
common trust deposit request
including attorney's fees & litigation costs - excluding travel
additional cost deposit may be requested as trial preparation proceeds & anticipated litigation expenses solidify
*common felony charges such as second degree assault, felony menacing, felony criminal mischief, child abuse
common trust deposit request expressly excludes first degree assault, murder, homicide, child abuse homicide
* this shall not constitute an offer, nor be construed as a binding estimate




Costs: refer to costs identified above; additional costs will be incurred
private investigator fees and costs will be significantly higher than that noted in the misdemeanor costs section above

Use of professional services or expert witnesses will significantly effect litigation cost expenditure - client's responsibility.


Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
payment not received as agreed = representation withdrawn

******************** ******************** ********************

The alleged victim may have brought a civil lawsuit for issuance of a domestic abuse restraining order.  Much of the investigation and trial preparation expense will have been covered by work & payment in the criminal case, therefore I bill PRO hearing fees upon an hourly basis.  Please refer to the restraining orders page for information regarding proceedings and PRO fees & costs regarding Permanent Restraining Order (PRO) hearing.  A client may retain my services in the domestic violence criminal case without asking for assistance at restraining orders hearing.  I do not undertake representation in a PRO hearing until a trust deposit has been received for the civil case.  Trust deposit estimate shall neither constitute an offer, nor be construed as a binding estimate of fees and costs.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
payment not received as agreed = representation withdrawn

representation inquiries are invited & welcome * public questions seeking free advice or information declined * consultation terms
 attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted


******************** ******************** ********************
First Consultation Accounting Structure Hourly Fees Costs
Flat Fee - Definition Settlement Phase Settlement Flat Fee
Contested Phase Trial Flat Fee Flat Fees - Phases Earned
Hourly vs Flat Fees Client's Election Final Travel Time & Expenses
Fees & Costs Security Trust Account Withdrawal - Termination
Client Duty to Disclose Omission Non-Disclosure Alternatives
Attorney Selection Retaining Gustafson Advice by Laymen

Thank you for considering my services; I appreciate your inquiry.


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Topical Website Copyright 2003 - All Rights Reserved - Document Revised January 30, 2012
mountains photo image, attorney photo image & law office logo copyright Robert D. Gustafson - all rights reserved - no copyright claimed to other images
Topical Website Initial Publication Date: February 29, 2004 - Republication Date: May 24, 2006


Serving Colorado Springs Area Zip Codes

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