Nedlin: Domestic violence cases not always clear cut

As a prosecutor, I found that one of the most difficult aspects for law enforcement involved domestic-violence cases. That’s because when the police respond to a domestic call, there are many different components that need to be evaluated before making an arrest. Emotions are running high on part of both parties, and alcohol and/or drugs is usually involved. Therefore, attempting to gain a clear understanding of what actually occurred can easily become blurred. When a peace officer determines that there is probable cause, meaning that it is more likely than not a crime or offense has occurred involving domestic violence, the officer must make an arrest based on the applicable crime for which he or she may be charged. What this does is take any discretion away from a police officer.

It is unlike a DUI case in which law enforcement can have the offender park the car and drive them home. The statute defining the duties of a peace officer in regard to domestic-violence cases mandates that police make the arrest once they have determined a crime has been committed.

This is where it can get tricky. If the peace officer receives complaints of domestic violence from two or more opposing parties, the officer must evaluate each individual separately to determine whether a crime by one or more of the people has been committed. In making this determination the officer must consider: 1) any prior complaints of domestic violence; 2) severity of injuries of each person; 3) future injury to each person; and 4) whether it is possible that one person acted in self-defense.

You can only imagine how difficult it is when police arrive on a scene and there are personal items and furniture smashed, as well as both parties being bruised, bloodied and intoxicated. In addition, each person is saying the other was the initial aggressor.

Many times it is not black-and-white, and this is when law enforcement will separate the parties for the evening because a determination cannot be made as to whom to arrest. Although the statute says the words “shall arrest,” it also specifically discourages double arrests. I can tell you from personal experience that no prosecutor likes to see a double domestic-violence arrest.

When it is not clearly discernible as to whom to arrest, law enforcement is encouraged to continue with the investigation. On the following day, police will investigate to see if there are any independent corroborating witnesses, what, if any histories do the parties have of domestic violence, where were they prior to the incident, and did anyone see them arguing; and most important, speak to each individual again to see if their stories remain the same or have changed in any way.

During my five years as a prosecutor, some of the most difficult cases I had were those involving domestic violence. Also, some of the most dragged-out arguments I had with law enforcement involved these types of cases, as well. During my time as an Aspen prosecutor, we were the only office in the 9th Judicial District, and probably the state, that specifically asked law enforcement not to write a summons charging an individual with domestic violence. Rather, we asked them to write a warrantless arrest affidavit that stated the crimes for which the perpetrator was arrested. The reason this was done was so that we were able to take our time in determining whether the crime committed actually was one of domestic violence. This allowed us to be in a position to Monday-morning quarterback. By using this method, it allowed me to review each case and its individual facts closely, conduct additional investigation and then make a non-rushed determination, based on law and fact if a charge of domestic violence was warranted.

Next month, I will explain what happens when someone is arrested for domestic violence, bond, mandatory protection orders and brought before the judge.

Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.