Writing Samples

False Assumptions

You may think there’s nothing anyone can do for you, that because you’re guilty you should just plead guilty, that because you’re not guilty things will just work out, or that if the judge or the prosecutor are just aware of the circumstances, they’ll give you a break. Those things aren’t usually true, but your attorney can work the system to make things better for you.

You may think certain consequences are inevitable. They might or might not be, but if they aren’t, you should know how to prevent them.

Potential Consequences

Even if you are guilty, just pleading guilty is to invite the worst-case scenario, and you don’t really know what that is. Throwing yourself on the mercy of the court is seldom a wise move. Let your attorney explain what might happen, so you don’t find out the hard way. 

Your Advocate

If you’re not guilty, or if there are significant mitigating circumstances, the judge and the DA aren’t just going to dismiss your case or give you a break. Each has ethical obligations, but the DA’s job is not to advocate for you, and the judge can’t help you if they don’t know why they should. Your attorney will tell them. 

What You Don’t Know

You're not guilty or have extenuating circumstances. But if you talk to the DA personally, you might be giving them the one thing they need to convict you. Let your attorney talk to them. There is a right time and a right way to pitch your case. Done right, you might convince your prosecutor to dismiss or give you a break early on. Done wrong, you could be tipping your hand and they'll beat you at trial. A good attorney knows what cards to play and when.

Putting it all Together

The right attorney will, through discovery, investigation, their legal knowledge, find ways to advocate for you. They will look for ways to undermine the prosecution’s case and to build yours. 

Avoiding Bad Moves

One attorney and his client thought it was unlikely the complaining witness would appear for trial. The client thought they should tell the prosecutor at pretrial. The attorney explained that if the DA knew there was doubt the victim would appear, the DA would make sure they did. Instead, nothing was said. The witness didn’t show for trial, and the case was dismissed. Doing what the client wanted to do would likely have led to the opposite outcome.

Don’t Assume

As an aside, be aware that your attorney will be prepared to proceed to trial even if it’s “known” the complaining witness will not appear – because they might. Your attorney also knows that the prosecution might elect to proceed without that witness – they will be prepared for that as well.

One Myth

You may think that because you weren’t advised of your Miranda rights, your case will or should be dismissed. That isn’t usually the case, but it does matter. The right attorney will advise you as to when that matters and what can be done about it. If there was "custodial interrogation" without a valid Miranda advisement and waiver, your statement and its fruits should be suppressed – but that doesn’t just happen. If your Miranda rights were violated, a proper motion will need to be filed and litigated. Your attorney knows when to do that, what goes in the motion, how to get a suppression hearing, how to conduct the hearing, what to ask for, and what to do with the results. 

Candidness and Diplomacy

The right attorney knows what to say, how to say it, and when. You’re emotionally invested in your case and its outcome. That’s understandable. Your attorney cares too, but that won’t affect their judgment about what to say. They know how to be diplomatic, and they’ll say it in such a way that it can’t be used against you later. They can be candid with the judge and prosecutor in ways that won’t hurt you. 

Things You Didn’t See Coming

Being convicted of certain things can wreak havoc on your future. Convictions can affect professional licenses, parental rights, immigration status, employment, housing, and your right to possess a firearm, among other things. Your attorney can advise you so you know what the stakes are going in. There may be instances in which you’ll need to report a conviction to a professional licensing authority. You should know this, as failure to do so can make matters worse.

The Art of Dealing with Priors

Having a previous record can turn a misdemeanor into a felony or probation into mandatory jail or prison time, no matter where or how old that record. The right attorney will advise you and may be able to negotiate or litigate your way out of those consequences or beat one or more of your priors.

Knowing the System

The right attorneys know local prosecutors and judges well enough to know their tendencies or are connected enough to know how to find out. Some judges will follow the terms of a plea bargain, some won’t. Some prosecutors are more sensitive to mitigation than others. It helps and is sometimes essential to know those things. 

Your Discovery Obligations

As a criminal defendant, you have discovery obligations - things you need to disclose to the prosecution. Do you know what those are, how and when to disclose them, and what happens if you don’t?

Records Sealing

Some records can be sealed, some can’t. The right attorney will advise you appropriately and may be able to arrange a disposition where your record can, at least eventually, be sealed.

Inadvertently Breaking the Law and Getting Yourself Rearrested

You may miss something that will cause you to be rearrested or other charges to be filed against you. A good example of this is when a bond provision is to have no contact with the alleged victim of a crime or a witness. Even if that person reaches out to you, it’s not ok - unless that provision has been modified. There may also be a separate protection order, which would also need to be modified. Your attorney will advise you of other things you may overlook, such as that you cannot contact a protected party through a friend or other third party. 

Going to Trial

If your case goes to trial, you will need to pick a jury, make an opening statement, cross examine witnesses, make a motion for judgment of acquittal, present your own case, prepare jury instructions, and sum up. You will need to know how to get your witnesses there and how to get your evidence in. You will need to know the difference between what you can do and say from the podium versus from the witness stand. You will not be able to testify from notes. If you don’t get something in before both parties rest, you can’t testify about it in your summation. Even then, even if you know everything an attorney knows, it’s difficult to do it alone.

Give it a Chance

You should at least consult with one or more attorneys before you make your decision. A good one will tell you what they can, can’t, or might be able to do for you. After that, you will be better able to make an informed decision about whether to represent yourself.

You’ve been charged with domestic violence. You’re curious about what happens next, and you also need to be aware of a few things so it doesn’t get worse; it will if you’re not careful. There are things that can be avoided, and others you should be ready for.

What is Domestic Violence?

Domestic violence is a designation, not a charge. It affects sentencing and has other consequences.

In its simplest form, domestic violence is an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. The underlying charge is usually harassment, assault, or a property crime. 

An intimate relationship is one between spouses, former spouses, past or present unmarried couples, or parents of the same child, regardless of whether the persons have been married or have lived together at any time. The law does not by its terms require a sexual relationship.

Domestic violence can also be an act used as a method of coercion, control, punishment, intimidation, or revenge directed at the person with whom you do or did have an intimate relationship, or against an animal, property, or a person other than the one with whom you have or had an intimate relationship.

Once the relationship deteriorates, almost anything, even the destruction of your own property, could be considered an act of domestic violence.

Mandatory Arrest

You’ve probably heard the generalization that on a domestic violence call, someone’s going to jail. In reality, that is most times the case, but not always. If police are called and there are allegations, but they do not believe there’s probable cause that a crime actually occurred, there is no need to make an arrest. 

If you are arrested on a domestic violence charge, you cannot be released on bail until you’ve been advised on the record of the protection order and acknowledged it in writing, in court. Bond should be set within 48 hours of your arrival at a facility.

Protection and No Contact Orders

In all criminal cases there is a mandatory protection order which, at a minimum, restrains the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. The court can prohibit the defendant from contacting the victim or witnesses and stay away from certain places. There are special protections for animals and provisions regarding the possession of alcohol or controlled substances. The court can direct your cell provider to transfer rights to and responsibility for number(s) to the alleged victim or a witness. Many provisions found in the mandatory protection order will be found in a civil protection order and vice-versa.

In cases involving the use, threatened use, or attempted use of physical force, the mandatory protection order will require the defendant to refrain from possessing or purchasing firearms or ammunition and to relinquish possession or control of same. There are strict, technical requirements for compliance, including the manner of relinquishment and to whom, written verification, compliance hearings.

Protection and no-contact orders cause, at best, major inconvenience. You may not have access to your own home, to your possessions, or to your children. These issues must be addressed thoroughly, through the court, and at the earliest opportunity.

In addition to the mandatory protection order, conditions of probation, and possible civil protection orders, contact, who you see, and where you go, may also be affected by orders issued by family court. All must be coordinated.

If you read nothing else

There are four very important things which are often overlooked and can result in unpleasant consequences for the defendant. 

(1) In addition to the mandatory protection order issued in connection with the criminal case, there may also be a civil protection order. If one is modified or vacated, you must still comply with the other. 

(2) Those orders are between you and the court, not the other person. If the victim or witness contacts you or expresses that they don’t care about the order, that doesn’t matter. They can’t waive it. The court must modify it. Don’t respond. Hang up or walk away.

(3) You cannot use a third party as a messenger. That will violate the order. 

(4) Almost anything you do could be considered a violation. Some examples are reacting to a social media post, tagging someone in a social media post, or anything affecting a joint account, such as a bank account or cell phone account.

Firearms

Your ability to purchase or possess firearms, ammunition or other weapons is likely to be affected at the outset of your case and as a direct or indirect result of its disposition. This can happen as the result of the mandatory protection order issued at the outset of your case, a civil protection order independently sought by an alleged victim, conditions of probation, or state and federal laws prohibiting same for domestic violence offenders. There are strict requirements for compliance, including parties or entities to whom relinquishment can be made, verification of same, and compliance hearings. Just as there are myriad ways to violate a no-contact order, many things constitute possession or control. It is best to consult with an attorney about such matters.

Read Everything

Read everything you are given. Every word. Your bond conditions require more of you than simply making your court appearances. The protection order is more than a no-contact order. If you don’t read everything, word for word, you face a serious risk of rearrest and new charges.

Recantations and Dropping Charges

The victim can’t drop the charges. They can ask the prosecutor to do so, but that’s it; the prosecutor doesn't have to. Additionally, a recantation will not necessarily result in the dropping of charges.

Sentencing

If you are charged with and convicted of domestic violence, you will be sentenced for the underlying charge but also required to undergo a domestic violence evaluation and treatment. This is expensive and treatment can last for months.

You cannot serve a home detention sentence in the home of the victim.

Your fourth misdemeanor domestic violence conviction is a felony.

Domestic Violence Counseling

Domestic violence treatment in Colorado is long, arduous, and expensive. Its length and components are determined by risk level and progress. It is usually at least 36 weeks in length. There are three levels. Level A consists of weekly sessions. Level B adds monthly individual sessions. Level C is twice-weekly groups. It cannot be done online. The total cost can range from approximately $1500 to $3500 or more. There is a sliding scale. This is in addition to court costs and probation supervision fees, which are also substantial. Progress requires learning the curriculum and accepting responsibility. Substance abuse and mental health will be addressed and may be addressed separately. 

Collateral Consequences: It isn’t Just the Sentence

There are, invariably, other consequences, called collateral consequences, when you’re charged with a crime. Your Second Amendment rights are affected and are discussed elsewhere in this article. Your case and its resolution can also impact your immigration status (even if you’re a lawful permanent resident), your employment (especially if you are licensed), your rights and privileges as a parent, and where you live. If you hunt, or if your employment, e.g. military or law enforcement, requires you to possess a firearm, a domestic violence charge or conviction will have severe effects. Even the wording of your plea agreement and what is said in court can impact those things. Consult with an attorney so the outcome isn't even worse than you anticipated.

Immigration Status

A domestic violence or violation of a protection order charge can affect the immigration status even of a lawful permanent U.S. resident. It is essential either that your attorney is an expert in immigration law or that there be consultation with an immigration lawyer.

Employment

The existence of a protection order, the pendency of a domestic violence case, or any disposition of a domestic violence case, can affect your employment. This is particularly true if your job requires a license, requires you to be armed (military, security, law enforcement), or involves travel. Your job or profession may have reporting requirements, even before conviction or resolution of your case.

Family Court

In a dissolution of marriage or child custody case, a finding that you have committed an act of domestic violence can dramatically impact the determination or parenting time and decision making. This is true regardless of the existence of criminal proceedings. Colorado’s domestic relations law employs an expansive definition of domestic violence. A finding of coercive conduct by the family court may also affect the disposition of those proceedings.

Dismissal and Sealing

There may be consequences even if your case is dismissed outright, you receive a deferred judgment, or your record is eventually sealed. In some situations, even a deferred judgment, is considered a conviction. If your criminal case is dismissed, there may still be a record of a protection order. If your record is sealed, that will help. But not all sealing orders are followed, and they do not apply in all circumstances. A sealing order doesn’t mean you weren’t charged – just that in certain circumstances you can legally deny you were, and that certain parties will not be able to access your record. Consult your attorney.

The 7-day deadline: If you’ve been arrested for DUI and refused chemical testing or your Intoxilyzer result was .08 or above, you received a notice. The notice requires you to request a hearing within 7 days. Otherwise, your driving privileges will be revoked. If you submitted to a blood draw and the result is .08 or above, you will receive a notice in the mail, also with a deadline. Make sure DMV has your correct mailing address. If you don’t know how to request a hearing and to get a temporary license, talk to an attorney. Don’t wait until the last minute.

DMV ≠ Court. If you win at DMV, that doesn’t mean you will or should win at court, or vice-versa. The issues are different and the findings of one are not binding on the other. 

The Miranda advisement: A Miranda advisement and waiver is required before “custodial interrogation.” Otherwise, your statements and their fruits will be suppressed. Your case will not usually be dismissed. What constitutes custodial interrogation is another issue. What’s important to know is that the lack of a Miranda advisement and waiver usually results in suppression of evidence rather than dismissal. 

Marijuana and prescription drugs: The legality of the substance you’ve ingested doesn’t make your driving under its influence legal. Think about it: Alcohol is legal (if you’re over 21), and driving under the influence of alcohol is not. The same is true for prescription drugs and marijuana. Remember also that marijuana is still illegal under federal law.

Different tests: There are two chemical tests: the PBT and post-arrest chemical testing. The PBT is the preliminary breath test. It’s a small device you blow into at the scene. Submitting to that doesn’t count. If you submit to the PBT but refuse other chemical testing, usually Intoxilyzer or blood draw, it’s a refusal. PBT results or refusals are not admissible at trial.

CDL: The rules are different for CDL drivers. While the level required for an express consent revocation is .08 for regular drivers over 21, it is .04 for CDL drivers in a commercial vehicle. Even a DWAI conviction, even in your personal vehicle, results in a mandatory one-year revocation of a CDL. The actual period of revocation may be longer depending on factors affecting your regular driving privileges. You cannot operate a commercial vehicle with an interlock device. The consequences are worse if you are transporting hazardous materials. There is a mandatory out-of-service order for any level of alcohol in your system in a commercial vehicle. 

Under 21: The rules are also different for drivers under 21. Unlike adult drivers, they will suffer a license revocation for refusal of the PBT. A BAC between .02 and .049 will result in a conviction of UDD, otherwise known as a baby DUI. A BAC of .02 or above will also result in an express consent revocation. Be aware as well that a minor in possession charge can result in a license revocation.