The first question on any self-defense case is to know if this case is domestic violence or not a domestic violence case. The rules and consequences are very different between the two.
In our State the Police MUST ARREST a defendant for domestic violence every time they have probable cause! If the defendant is not around, then the police must get a warrant for the person’s arrest.
C.R.S. 18-6-803.6 – Duties of peace officers and prosecuting agencies – preservation of evidence
(1) When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3 (1), has been committed, the officer shall, without undue delay, arrest the person suspected of its commission…
In a non-domestic violence the police are allowed to:
- Give you a summons
- Arrest you
- Get a warrant for you arrest at a later time
Part of the frustration is why do they arrest some people and simply give a summons to other people. The answer is that it is left to the discretion of the officer. Having the right attorney may be able to help you with this process. In the past we have arranged for our clients to never be charged with this crime. In the past we have arranged for a felony to only be charged as a misdemeanor. In the past we have arranged for a misdemeanor to be only charged as a municipal ordinance violation. In the past we have arranged a summons to be given to our client when they planned on arresting our client. In the past we have arranged for our clients to turn themselves in on their own schedule rather than being arrested at their workplace or at home in front of children.
The question is why me, why did I get arrested I did not start it; I was only acting in self-defense?
This is a question we get asked a lot. The best guide is in the domestic violence statutes that mandate what an officer MUST do. As a skilled attorney, I go through this list all the time just to show the jury that the officer NEVER follows that law they pretend they are enforcing;
C.R.S. 18-6-803.6, (2) If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons. In determining whether a crime has been committed by one or more persons, the officer shall consider the following:
- Any prior complaints of domestic violence;
- The relative severity of the injuries inflicted on each person;
- The likelihood of future injury to each person; and
- The possibility that one of the persons acted in self-defense.
Why do they not arrest both people. They are authorized to arrest both people however, they seldom do.
C.R.S. 18-6-803.6, (1) specifically states…
“Nothing in this subsection (1) shall be construed to require a peace officer to arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence.”
So why was I arrested and not the other person?
Is it because you are a male that you were arrested? Is it because in a fight you hurt the other person more than they hurt you? Is it because you were the one to call 911? All of these are great questions however, we never see to get a straight answer. This is why as an experience attorney, we have to go to trial as often as we do. Sometimes the only way to achieve justice, and be fair is to go to a jury trial.
So let us look at what a Colorado Jury Instructions on an affirmative defense of self-defense to a crime such as Assault actually states. The following are real jury instruction used in a real criminal Jury Trials WE WON in Colorado Courtrooms across the State. The reason I always provide this to my client is because I want my client to be actively involved in working with me on their case. The reason other attorney do not provide you this information is… well you figure it out. I am not a big firm. I am not the big name law firm where you hire the person you want only to learn that they send you to Court every time with a different lawyer that knows nothing about you, your family, your circumstances, your prosecutor, your judge, what has gone on up until now and knows NOTHING about the facts of YOUR CASE.
INSTRUCTION NO. 11
The elements of the crime of assault in the third degree are:
- That the defendant;
- In the State of Colorado, on or about the date and place charged;
- Caused bodily injury to another person;
- Without the affirmative defense in instruction number 13.
After considering all of the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of assault in the third degree.
After considering all of the evidence, if you decide the prosecution has failed to prove any one or more of the elements, you should find the defendant not guilty of assault in the third degree.
INSTRUCTION NO. 12
The evidence presented in this case has raised an affirmative defense.
The prosecution has the burden of proving the guilt of the defendant to your satisfaction beyond a reasonable doubt as to the affirmative defense, as well as to all the elements of the crime charged.
After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of the defendant’s guilt, you must return a verdict of not guilty.
INSTRUCTION NO. 13
It is an affirmative defense to the crime of assault in the third degree that the defendant used physical force upon another person:
- In order to defend himself or a third person from whathe reasonable believed to be the use of imminent use of unlawful physical force by the victim, and
- He used a degree of force whichhe reasonable believed to be necessary for that
These actual instructions were used recently in 4 real Jury Trial I just won:
Case Number 1: Offer on the case was 8 years in Prison – NOT GUILTY and he never lost his job, his house or his freedom.
Case Number 2: Offer on the case was 1 year in the county jail, domestic violence conviction, no contact order for 1 year with his wife – NOT GUILTY.
Case Number 3: Offer on the case was 2 years in Prison – NOT GUILTY.
Case Number 4: Offer on the case was a 1 year deferred judgment and sentence as part of domestic violence – NOT GUILTY. A great offer but NOT when you are innocent. The jury agreed.
Hiring the right attorney can make all the difference in your world. Please call us to discuss how we can begin helping you on your case. (303) 377-0100.