On Sunday, the Denver Post ran an article on the habitual domestic violence offender law. This law, while infrequently used, allows prosecutors to charge a felony based on the number of prior domestic violence related convictions. The article provides the perspective of various metro area District Attorney Offices. El Paso County uses the law the most, while Denver County does not appear to use it at all. Boulder County and the 18th Judicial District, which includes Arapahoe and Douglas County, uses the law occassionally.
If a person has four or more prior domestic violence convictions and that person commits a new domestic violence related crime, that person can be charged as an habitual offender, which is a class five felony, punishable by up to three years prison. The article suggests that prosecutors do not charge the habitual offender felony very often because it is a law with no teeth. It can sometimes be difficult to determine whether a prior conviction was an act of domestic violence because “domestic violence” is not an actual charge in Colorado, it is a designation. In addition, it must be proven that the prior convictions were acts of domestic violence and case law suggests that this determination must be made by the jury, not just by the court at sentencing. Finally, prosecutors believe that they may receive a lengthier sentence for a fourt misdemeanor conviction that a first time felony conviction.
On the other hand, being charged with a felony carries with it a separate set of consequences than a simple misdemeanor. The article reports that Arapahoe and Douglas Counties have a specialized unit responsible for prosecuting domestic violence cases and that the unit is under instruction to charge the habitual offender felony whenever a person qualifies for the charge. The felony charge can be used as a bargaining chip for purposes of resolving a case through a plea agreement to avoid trial.
It is important to note that a person can be charged with a felony level domestic violence crime without having any priors. For example, if a person threatens his or her spouse or signifiant other with a deadly weapon, then that person has committed felony menacing as an act of domestic violence. This is a felony charge because of the conduct itself, not because of any prior convictions. In contrast, if a person pushes his or her spouse or significant other, but does not cause serious bodily injury and does not use a weapon, then that person may have committed harassment, which is a class three misedemeanor. But, if that person has three or more prior domestic violence convictions, then that person could be charged with a felony. In that case, the person is being charged with a felony because of his or her criminal record, not because of the conduct itself.
While the habitual offender law is not being used much today, sometimes when laws become the topic of general discussion, it causes prosecutors to more actively pursue enforcement of the law and/or lawmakers to change the law to make it more easily enforcible. Much like the recent change in DUI laws, creating a felony DUI in Colorado, it is important for people to be aware of possible future consequences when accepting a plea bargain or going to trial on a case. Defense attorneys can offer this analysis as part of their representation.
Read the article here: https://www.denverpost.com/news/ci_28132284/domestic-violence-habitual-offender-law-languishes-colorado