Can domestic violence related criminal charges in Colorado be dismissed? The short answer is possibly – any criminal charges can be dismissed. However, the decision to dismiss a criminal case rests exclusively with the prosecutor.
In Colorado, “domestic violence” is not a standalone crime. In other words, there is no criminal charge under Title 18 in the Colorado statutes labeled “domestic violence.” Instead, it is a sentence enhancer. Therefore, if a defendant is convicted of a crime and the prosecutor has labeled the charge as involving domestic violence, a conviction subjects the individual to specialized, enhanced sentencing conditions.
Under Colorado law, domestic violence is defined as:
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, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, 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. [i]
The prosecution has the burden to prove each and every element of the charged crimes. [ii] However, the prosecution only has to prove a sentence enhancer by a preponderance of the evidence.[iii] Therefore, the state’s burden on this issue is lessened.
If the prosecution intends to dismiss a case involving domestic violence, one of three reasons will influence this result:
- the prosecution cannot prove a) the underlying criminal charge(s) against the Defendant, or b) that the criminal charge(s) involve(s) domestic violence;
- the defendant has an affirmative defense to the charges, such as self-defense; or
- the defendant completed a diversion program approved by both the prosecution and the court.
The prosecution’s inability to prove the elements of either the criminal charges or domestic violence definition is accomplished by challenging the state’s evidence and excluding as much as possible from trial. This is done by suppression motions, motions in limine and arguing that procedural infirmities happened in the progression of the case.
If the defendant has an affirmative defense to the charge, this could lead to dismissal if the prosecution finds that it is credible and would likely lead to jury acquittal at trial. For instance, if a suspect did assault a partner and was arrested for same, but there was evidence showing that he/she was resisting an attack by the alleged victim, this may direct a reasonable prosecutor to conclude that the case could not be won at trial. There is a realistic chance in this situation the case would be dismissed.
Another alternative that may possibly lead to dismissal of domestic violence related charges is a defendant’s entry into a diversion program. Under Colorado law, a diversion program directs defendants to complete specific steps to prevent him or her from committing additional, future crimes. It also restores victims, has the accused pay restitution, and reduces the number of cases on the court docket.[iv] A defendant essentially enters into a contract with the district attorney agreeing to the terms and conditions of the program. [v] Sexual offenses are not eligible for diversion; however, any other criminal charges related to domestic violence can be managed under a diversion agreement.[vi] If the accused successfully completes a diversion program, all criminal charges against the defendant are dismissed.[vii]
What is absolutely true is the prosecution will not dismiss a domestic violence related case merely because the victim does not want to prosecute or testify against the defendant. Colorado is a mandatory arrest state for crimes related to domestic violence.[viii] Additionally, Colorado has a fast track policy for domestic violence cases, mandating that defendants enter a plea at the first appearance before a judge. This environment creates a “no drop” policy across the state where the prosecution moves forward with domestic violence cases even if the victim does not want to press charges against the defendant or testify at any trial. However, if the victim tells the prosecutor that he/she intends not to testify, a prosecutor will weigh this in analyzing the case and seeing if there is enough evidence to obtain a conviction otherwise.
If you are facing criminal charges where the state claims domestic violence was involved, contact Mile High Legal for help. We have the experience to help you navigate your way through the criminal justice system.
[i] COLJI-Crim. (2023), F108, p. 480
[ii] COLJI-Crim. (2023), E:03, p. 216
[iii] People v. Wilson, 2013 COA 75, ¶ 43
[iv] § 18-1.3-101(1)(a), C.R.S.
[v] § 18-1.3-101(9), C.R.S.
[vi] § 18-1.3-101(9), C.R.S.
[vii] § 18-1.3-101(10)(b), C.R.S.
[viii] People v. Willoughby , 2023 CO 10, ¶ 73; § 18-6-803.6(1), C.R.S.
