Nedlin: What follows after a domestic violence arrest
August 11, 2013
One of the most humbling and frightening experiences one can have is being arrested, stripped of your clothing and personal items and put in jailhouse garb. Yet, this is exactly what is going to happen if you are arrested on domestic-violence charges in Colorado. These are not cases where you receive a summons and then are immediately released — only to be told when to appear back in court. For every domestic-violence arrest, you get fingerprinted, photographed and put in jailhouse orange for men, while the ladies will be draped in orange with white stripes.
You then sit in the jail cell until the prosecutor and judge bring you to court for your advisement. The rule, rather than the exception, is that you will not be brought up to court immediately.
For example, if you are arrested on a Friday night, you can expect to spend the weekend in jail only to be brought up on Monday morning. That's because there is not always a judge available to do domestic-violence advisements. However, I do recall times as a prosecutor, receiving a phone call on the Saturday of a long holiday weekend and being asked to do an a domestic-violence advisement. However, this usually was only to accommodate an individual who otherwise would sit in jail until Tuesday. It's a rarity and only for those individuals who had no prior criminal offenses and not for the "frequent fliers" who would be a guest of the Pitkin County Jail continually.
At the domestic-violence advisement, you will be brought to court in handcuffs, foot shackles and placed at the defendant's table. In the courtroom will be the prosecutor, judge and, in most cases, the alleged victim.
The Colorado Constitution includes the Victims’ Rights Act, which gives all victims of certain offenses, domestic violence being one, rights that must be afforded to them. One of them is the notification to attend every “critical” stage of a prosecution.
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The Colorado Constitution includes the Victims' Rights Act, which gives all victims of certain offenses, domestic violence being one, rights that must be afforded to them. One of them is the notification to attend every "critical" stage of a prosecution.
The bond, which is issued at the domestic violence advisement, is one of those critical stages and therefore the victim or victim's input must be heard and respected, although not necessarily followed.
At this time there is not much information about the incident. All the judge and the prosecutor have is a copy of the warrantless affidavit arrest, which is a report by law enforcement stating the probable cause for the arrest and the crimes allegedly committed. The prosecutor or the judge then will read the crime(s) and the elements and the possible penalties associated with each offense.
There will also be a mandatory protection order that will be put in place at this time. The order states the defendant must not harass or intimidate any witness or victim, vacate the home and stay away from any other place the victim is likely to be found, have no contact either direct or indirect with the victim and not possess any alcohol or firearm. This order can be very restrictive and even somewhat punitive. For instance, if the home is owned or rented by the defendant, that person must vacate the premises and continue to pay all rent and utilities while the alleged victim is living there for as long as the protection order is in place. However, the order may be modified, although the practice in Pitkin County is not to modify the order at the domestic violence advisement unless there are special circumstances.
I recall a time when vacationing couple, of which one was arrested for domestic violence, had a booked fight home the next day with the alleged victim. In such a case, the judge modified the protection order for full contact so they would not miss their flight. I always thought what a lovely trip home that must have been! Other circumstances are if there are small children, child care or other important issues that would need an immediate modification. Ordinarily, however, the protection order will stay in place unmodified to allow for a "cooling down" period and a modification, if desired, would occur at the next court date most often the following week after the domestic violence advisement.
The next issue to be addressed is bond. Bond, or bail, as it is known, is basically a monetary amount that must be paid, and later returned, so long as you keep the promise to the court that you will return for each and every appearance. Bond can be either "cash only" which is what it sounds like, "surety bond," in which a bail-bond agent guarantees that the defendant will appear in court, and the defendant pays a fee of usually 10 to 15 percent of that total bond amount to the bondsman, or a personal-recognizance bond where you do not have to pay any money to be released but rather make a promise to the court that you will oblige with the bond and its conditions. If you fail to do so, you must pay the cost of the bond. The alleged victim is allowed to have a say in the bond amount and may address the court in this matter. Many times it can become very dramatic during the domestic-violence advisement in the courtroom, with crying, yelling, screaming and raw emotions.
Next month, I will discuss modifying the mandatory protection order, rights of victims and a few of my personal experiences in dealing with domestic violence cases.
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. Contact him at 970-309-8197 and Richard@nedinlaw.com.
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