Can the victim of domestic violence drop charges?

Denver domestic violence defense

The law takes away the power to “drop charges” in Colorado domestic violence cases, but a lawyer can help.

In Colorado, the short answer is no. A criminal charge is brought by the state against the defendant, therefore only the state prosecutor can drop the charges. Interestingly, the Colorado Victim’s Rights Amendment requires that the prosecutor consult with the named victim about how to handle a case, but other laws (and politics, and sometimes judgment) prevent prosecutors from dismissing most domestic violence cases, even in minor cases where the alleged victim does not want to proceed. But read below for how a good criminal defense lawyer can help.

Mandatory Arrest & Limited Discretion

The fact is, domestic violence cases take on a life of their own once the police get involved. From the police to the prosecutor to the judge, Colorado law limits the discretion of the people involved to creatively resolve minor cases. Colorado is a mandatory arrest state: if police have probable cause that a crime of domestic violence was committed, then they must arrest, no matter the wishes of the alleged victim, no matter how muddled or minor the evidence.
The case goes to the prosecutor, and the prosecutor is prevented by law from dismissing a domestic violence case, or pleading one out to a non-domestic violence charge, unless they tell the court that they could not prove that domestic violence happened. Judges must, in any domestic violence conviction (even a deferred judgment), impose domestic violence evaluation and treatment, usually a lengthy and expensive course of treatment supervised by a probation officer.

These strict laws prevent some of the errors of the past, where some good old boys in the criminal justice system, insensitive and undertrained in domestic violence, would abandon an investigation or prosecution because a frightened victim did not want to pursue charges against an abuser.

Good intentions aside, these strict laws have a very high cost! Criminal laws are worded broadly, and their fair and reasonable application depends on the exercise of discretion by the police, prosecutor and judge. If Joe Blow calls police because his brother broke his favorite coffee mug out of anger, the police would probably laugh at him. (And if the case was filed, the district attorney would hopefully dismiss it after the defendant replaced the mug). But if Joe Blow called police because his girlfriend broke his favorite coffee mug out of anger, there’s a good chance his girlfriend would be charged with criminal mischief as an act of domestic violence. The charge would carry a maximum of 1 year in jail and a minimum of probation with lengthy domestic violence therapy. The police officer would sheepishly write up the report, and the district attorney would scratch his head and wonder how the heck this was charged. If there was a conviction, a reasonable judge would reluctantly but certainly impose domestic violence therapy and probation. But no one along the way would feel he had the discretion to dismiss the case, not even when the “victim” called to say it was all a big misunderstanding, and that no one should have a criminal record for a broken coffee mug.

How can a lawyer help when the alleged victim wants to drop charges?

So, the fact that an alleged victim wants the charges to be dropped does not mean the criminal case is likely to be dropped. But in some cases, a good criminal lawyer can use the wishes of the alleged victim, along with other weaknesses in the case, to get a dismissal. This typically requires extensive investigation and negotiation, often with a supervisor at the district attorney’s office. Often, cases that the alleged victim wants to “drop” involve situations of shared responsibility for whatever took place. A criminal defense lawyer may be able to convince the district attorney to offer a deferred judgment in a case like this, where the conviction could eventually be removed from the client’s record.

Alternatively, a case like this might be very good for trial—a jury is very likely to wonder “why are we here”, when an alleged victim takes the stand and says it was all a big misunderstanding, and that nothing criminal happened. But every case is different, and the quality of attorneys varies widely. Hire a skilled Denver domestic violence lawyer to get help.

For a free consultation, call the Law Office of Matthew Hand at (303) 900-8480.