Habitual DV Offenders

In Colorado, when a defendant is convicted of domestic violence for the 4th time, the defendant commits a class five felony even if the 4th offense is a misdemeanor:

Any misdemeanor offense that includes an act of domestic violence is a class 5 felony if the defendant at the time of sentencing has been previously convicted of three or more prior offenses that included an act of domestic violence and that were separately brought and tried and arising out of separate criminal episodes.

C.R.S. 16-6-801(7)(a).

Prior convictions for petty offenses, even if DV, do not qualify:

For the purposes of this section, “conviction” includes any federal, state, or municipal conviction for a felony, misdemeanor, or municipal ordinance violation.

C.R.S. 16-6-801(7)(b).

Most first year prosecutors need not worry about proving habitual domestic violence because it is a felony. First year prosecutors must, however, learn to:

1. 1. 1. recognize when a case would be a defendant’s 4th conviction,
      2. know how to “upcharge” a case to a felony,
      3. understand the value of misdemeanor convictions in domestic violence cases, and
      4. ensure any conviction for misdemeanor domestic violence includes a DV finding clearly made on the record by the judge.

Identifying Habitual DV Offenders

Although police officers charge misdemeanors in Colorado, police officers commonly forget to check whether a DV offense is a 4th offense. Most of the time, you will discover a defendant’s prior DV convictions when you check the defendant’s criminal history. Criminal histories can be difficult to read, and sometimes they do not include complete information. If, after reading a criminal history, you suspect a defendant may have prior criminal histories, you should search Data Access, not E-Filing, for prior DV convictions. Data Access will list the cases in Colorado matching that defendant’s name and date of birth. It will also state “DV Proven” in special lettering somewhere in the case description if the case included a finding of Domestic Violence. Although this is the best system, this is not perfect. Cases more than 10 years old do not reliably use this tagging system. If you suspect a case involved domestic violence but Data Access does not show a tag, read through the Data Access notes carefully for mentions of DV findings. You may also have to order the case file from the clerk of courts of that jurisdiction to see whether there were any case findings. Ultimately, if you need help or are confused, consult a more senior deputy in your office to learn more.

“Upcharging”

When you have identified a habitual DV offender and believe you can prove a defendant has three prior qualifying DV convictions, you should consult a felony prosecutor in your office about “upcharging.” Upcharging involves filing felony charges against the habitual offender, which you are usually not authorized to do. Even if you know how to do this and are authorized to do so, do not do so without consulting a chief or a felony deputy first. There are certain circumstances where it does not make sense to upcharge. Some low-level offenses or offenses that are particularly difficult to prove may be better resolved as misdemeanors anyway. Ultimately, consult your chief or a more senior deputy to understand how your office handles upcharging.

The Value of a Misdemeanor DV Conviction

The unfortunate reality of domestic violence is that true DV offenders usually do not stop offending. Because defendants must receive DV treatment when they are convicted of a crime of domestic violence, by definition, a habitual DV offender has continued to offend despite going through DV treatment more than once.

You can do your part to stop habitual DV offenders and protect victims by convicting abusers of misdemeanors with the DV designator. The name of the misdemeanor is less important. So long as you do not plead the crime to a petty offense, offer a deferred judgment, or agree to drop the DV tag, a DV conviction will secure DV treatment for the defendant and a qualifying prior offense for DV habitual offender charges later on, should they persist in abusing intimate partners.

This means one of your most important tasks when resolving domestic violence cases is to distinguish between likely one-time offenders and those who are likely to continue offending. This is much easier when you are dealing with defendant with second or even third offense. This is much more difficult when you are dealing with a first-time offender. Read the case facts, consider the victim’s prior allegations of prior uncharged abuse, look for any power and control dynamics, check the criminal history for similar violent misconduct, review any assessments of the defendant available to you, consult colleagues, and use your best judgment.