Lifetime effects of DV conviction or plea bargain
DA cannot dismiss DV charges
1. The District Attorney cannot dismiss a domestic violence case or plea bargain it to anything that does not involve domestic violence C.R.S. § 18-6-801 (3). Realistically, the only way you can clear your record of a domestic violence charge is to go through a jury trial. Bear in mind that the prosecutor will attempt to bluff you about going to trial, and your defense attorney may recommend a plea bargain because he gets paid but doesn't have to go to the time and effort of preparing for trial.
If you wisely call the prosecutor's bluff and insist on going to a jury trial we have heard innumerable stories from men where the district attorney asks the judge to dismiss the case the day before or the morning the trial is to begin.
2. If you plead guilty, nolo contendre (no contest), or are convicted, the protection order you signed may be made permanent, a lifetime sentence. If you have a public defender, be aware that the law, C.R.S. § 18-6-801(3), forbids any plea bargain that does not involve pleading guilty to a domestic-violence related charge.
Insist on a jury trial rather than accepting a plea bargain. Only a jury is likely to listen to your side of the story. A plea bargain carries the same lifetime sentence that simply pleading guilty to the original charge would. Anything you tell the police or prosecutor trying to explain your side of the story can and will be used against you.
The punishment is will include domestic violence treatment that you will have to pay for. Even if you are found guilty at trial the punishment will be the same as if you pled guilty.
3. You will be placed on the Colorado Bureau of Investigation (CBI) C.R.S. § 18-6-803.7 and the FBI's National Instant Check System for life based solely on the arrest record unless you can prove yourself innocent and then take extraordinary and typically expensive steps to have your name removed. Under Federal law you will never again be able to own, possess, or control a weapon or any dangerous instrument such as explosives 18 U.S.C. § 922(g)(8) unless you are able to prove your innocence. However, that will not be explained to you by the judge or prosecutor.
Deferred sentence or judgement is a honey trap
1. If you are represented by counsel, and sometimes without, the prosecutor may offer a plea bargain involving a deferred judgement, deferred sentence, or any other lying euphemism the prosecutor wants to call your guilty plea. Regardless of what it the DA and judge call it, you are pleading guilty to the crime and it will never disappear from your record no matter what they tell you. Remember, a prosecutor can legally lie, and (s)he will.
In this arrangement the judge typically sentences you to two years probation, at least 36-weeks DV counseling (although anger management and drug or alcohol abuse classes may be imposed as well), a fine, and court costs in return for a guilty plea. Typically the mandatory protection order will also be dropped and you can go back home immediately unless your accuser objects. The DA and judge will promise you that the records will be "sealed" if you successfully complete your probation or sentence. They lie!
A deferred sentence or judgement often sounds like a real good deal to many men at the time. That is particularly true if the prosecutor has piled charge after charge on to the original simple misdemeanor assault the police arrested you for and it looks like you're facing 12 years in prison for a Class 3 felony if you go to trial. Or at least that's what the assistant DA is telling you after you've spent one or more sleepless nights in jail. But the long term impacts will not be explained to you, nor the fact that the prosecutor probably has little hope of proving any of the charges against you to a jury.
2. First, a deferred sentence is often only offered in DV cases where the defendant is represented by an attorney. So you may have had to already pay the attorney's retainer. Also, at the end of the sentence you will likely be required to pay the attorney another $1,000 or so to get the records "sealed," a euphemism for making your record very slightly harder for someone to find.
3. For at least two years your conviction will be a matter of public record on COcourts.com and in the Colorado Bureau of Investigation database. However, don't count on your record disappearing off these databases as most remain. Further, any competent private investigator or government agent will have full access to the record showing your conviction for the rest of your life.
4. If you need a new job, a security clearance, a financial bond, own or are around guns or explosives, want to enlist or reenlist in the military, serve with police or fire departments, renew or get a professional license, haul hazardous materials, or utilize many other privileges granted a free man they will be denied you for life.
5. If, at the end of the two years, you have met all the conditions of your probation you may file a motion to seal your record, typically through your attorney at the cost of another $1,000.
However, sealing the records doesn't hide them from government view. So you still won't be able to get a security clearance, serve in the military, work for a police or fire department, own or be in possession of a gun or ammunition, etc.
Any competent private investigator can find your record easily so you probably can't get or renew any professional license. Even if your records are "sealed" you will find yourself having problems getting a job, a mortgage, a financial bond, or any other position or situation where it is likely someone will run a background check on you.
In essence, remedies such as expungement or sealing, and even a pardon, are rendered meaningless due to an omnipresent commercial data-harvesting industry. Effectively this renders any notion of rehabilitation meaningless, hindering for life all with a criminal record in terms of employment, housing, and professional licensing if you accept a plea bargain or are convicted at trial.
6. If you are ever again, at any time in your life, caught in the same situation you will be classified as a repeat offender facing much heavier penalties.
The mark of a criminal record, both arrest and conviction, when coupled with the proliferation of the personal computers and the advent of the Internet makes justice data accessible in an unprecedented way and you will be marked for life if you have taken a plea bargain and been convicted.
In domestic violence or other criminal cases there is no difference between a simple guilty plea and a deferred sentence or judgement.
Private investigators and lie detectors
1. If you find yourself in these circumstances with false allegations being used to deprive you of everything you own and love it would probably be wise, and economical to hire a private investigator to provide you with the facts. One national group we have worked successfully with is Blue Moon Investigations but there are many others.
2. The use of lie detectors can short circuit many of the games women play with false allegations. Dual, paired testing by certified polygraphers working independently of local courts and attorneys holds the promise of significantly reducing perjury commonly encountered in domestic violence cases. Such methods are most economical and effective if employed early in the dispute.
3. Using polygraphy in combination with a private investigator can be particularly effective in preventing false allegations from going forward.
A jury trial is your best chance
1. There is a very good chance, much better than 95%, that you will have your case dismissed or be found innocent in a jury trial, but a plea of guilty, no contest, or accepting a plea bargain of any kind simply because you want to get it over with will be virtually impossible to change. The sentence, protection order, and the label of abuser, are for life. If you value your honor, your career, and freedom, these hearings are the time to defend them.
There were 18,691 misdemeanor cases of domestic violence in 2009 (Table 57) but only 765 misdemeanor jury trials, and in a number of judicial districts and county there were no jury trials. Clearly the odds are very much in your favor if you plead not guilty and demand a jury trial in a criminal domestic violence case. If charged with a felony you would be a fool to not take your case to a jury.
2. Prosecutors found that they got a higher conviction rate if the alleged "victim" didn't testify, so-called "evidence-based prosecution." The approach was to try the case in the same fashion the prosecutor would a murder case, with no victim present (if the defense doesn't subpoena her or she didn't appear). Statements made by the woman at the time of the arrest (excited utterances) are recorded. Videos and photographs from the arrest are used as evidence against you. Police officers also testify and their notes are admitted even though their testimony is hearsay.
However, in Crawford v. Washington in March 2004 the U.S. Supreme Court ruled unanimously that the Confrontation Clause in the Sixth Amendment required that the defendant had the right to cross-examine any witness or author of a report used against him as reaffirmed in Melendez-Diaz v. Massachusetts. That has largely put an end to "evidence-based prosecution" if the woman doesn't want to testify against the man. But that fact may not be explained to you. And be sure your attorney is aware of it as well.
If the woman does want to press charges and continue to trial, you must be sure and subpoena the "victim." Dismissal of the charges should be demanded if she fails to appear as she is very likely to be the best witness in your defense.
3. We hear from many men and women who have taken a plea bargain because they were afraid to go through a jury trial. It is the position of the Equal Justice Foundation that if you are too afraid to stand in front of your fellow citizens and proclaim and defend your innocence then you must be judged guilty, of moral cowardice if nothing else. The jury system is about the only process still working in our courts. Because of that many legislators and judges are doing their best to eliminate jury trials.
Conversely, a bench trial to a judge is simply a long, slow way of pleading guilty.