FAQs

This is the most common question we are asked. Unlike what you see on television, Miranda rights need only be given to someone prior to custodial investigation (think in custody and in an interrogation room or in the back of the police car). Without getting into the complexity of what that means, it typically does not apply to questions asked during the investigatory stage of the contact and before arrest.

If one party is not on scene at the time the police arrive to investigate an incident, it is common for them to just interview the person/people on scene. If after this interview they believe they have probable cause to make a DV arrest, officers often do not feel it necessary to get the other person’s side of the story before seeking a warrant. Once the arrest decision has been made, it is our opinion that little can be gained from speaking to the police at this point without the presence and advice of an attorney as nothing you say is likely to change their mind, and what you dop say may well hurt you later. Therefore, if you are placed under arrest, you should assert your right to remain silent and not to speak to the police without an attorney present.

In Colorado, it is not up to an alleged victim whether a person is charged with domestic violence. In fact, per statue the police have to make a mandatory arrest anytime they investigate an incident and believe there is probable cause that a domestic violence incident occurred.

Domestic violence (DV for short) is not actually a charge in and of itself, even though you sometimes see it listed separately on some police or court documents. Depending on who you ask, domestic violence is a sentence enhancer or modifier. Domestic violence can be attached to any charge, it simply has to do with the relationship between the parties and dictates additional potential penalties, including an evaluation and treatment.

To simplify and summarize it, DV is attached to any violent charge where the defendant and the alleged victim have at any point been involved in an intimate relationship, or any nonviolent charge where the involved parties have had an intimate relationship and the act involved in the charge was committed for purposes of coercion and control within the relationship.

For a DV case, the officer will then take you to jail to be processed. After that, the details vary a bit by jurisdiction. However, in most jurisdictions including El Paso County, you will have a video advisement on the next business day (or the day after that if the court’s docket is very heavy). You will not be eligible for bond until that video advisement. Unfortunately, that means if you are taken into custody on a Friday or a weekend, you may spend a few days in jail until bond is set in your case.

At video advisement you appear from the jail by video at the courthouse. The judge will advise you of the probable cause charges (these may change later), the 18-1-1001 Mandatory Protection Order, and the applicable firearms orders (basically you can’t have any during the case and need to submit proof you have relinquished them). They will also set a bond, which will permit you, finally, to get out of custody. They will give you your next court date as well. For felonies, that will normally be a First Appearance or Filing of Charges date. For misdemeanors, it is usually set as a pre-trial conference.

There are a number of statutory factors the Court takes into account in setting bond, but commonly it’s determined by the court’s bond schedule for the level of charges, modified by a number of factors designed to determine the risk level of the defendant and the likelihood that they will show up for court. People with lower charges and no history may well get a personal recognizance bond (PR bond for short). People with higher charges and/or more criminal history will have higher cash or surety bonds.

Pre-Trial conferences are most commonly used in misdemeanors. At the first Pre-Trial Conference (or PTC for short), the DDA will usually make an initial offer on your case. If you have an attorney, it rarely makes sense to take the initial offer, especially because the defense very often does not yet even have discovery on the case at this point. Usually the case will get set over for another PTC so that the defense can get discovery and negotiate with the DDA. If a resolution cannot be reached, the case will very often get set for pre-trial readiness and jury trial.

These are terms usually used for felony cases (at least in Colorado Springs and Pueblo) that work in function very similarly to the Pre-Trial Conference discussed above.

A pre-trial readiness hearing is set just before trial. It is an appearance at which each side states whether they are ready or not ready for trial, to address any motions for continuances, or any discovery issues that may exist.

Yes. In Colorado for a misdemeanor in county court you are entitled to a jury of 6, and for a felony in district court you are entitled to a jury of 12.

By statute, the court must issue what’s called an 18-1-1001 protection order in any criminal case. In a domestic violence case, that order typically contains the provisions that the defendant have no contact with the alleged victim, vacate the home shared with the alleged victim (if they do share a home), relinquish all firearms and ammunition, and not use alcohol or intoxicating substances. Even if the no contact provision and vacate home provisions are later vacated by the court, mandatory protection orders always contain provisions forbidding harassment, punishment, coercion, etc. of the alleged victim by the defendant.

18-1-1001 orders last until the conclusion of the case. If someone is fortunate enough to have their case dismissed early the order ends at that time. However, if someone either enters a plea in a DV case or is found guilty and then sentenced, the mandatory restraining order stays in place until the case is completed done, which can mean until after probation or a long sentence years later.

Yes, and this happens often. However it is not automatic, and judges will not consider such a modification unless an alleged victim is ok with the change. Additionally, many judges are reluctant to make a change too soon after the date of offense and may not grant such a request easily.

Your attorney can file a motion requesting the modification, and can also contact the AV to see if they would approve such an order and to give them the information of the court date the attorney expects the order to be addressed so that the alleged victim has the ability to give their own input to the court if they so wish.

Yes. The alleged victim is a witness in the case and the court nor the prosecution can forbid a defense attorney from speaking with a witness in a prosecution. However, any attorney with even a bit of common sense is careful with these communications and is very cognizant of never attempting to influence an alleged victim to do or not do anything. At Peakstone Law Group, LLC, we have a policy that every alleged victim contact includes a clear introduction of who we are and whom we represent, reminding the alleged victim that they do not have to speak with us if they do not want to, and that if they do choose to speak with us we will never attempt to influence them in regards to anything regarding the case, but that we would love to have their input on the case and their opinion on what they would like to see happen with the protection order and the case generally if they had the choice.

If the prosecution or the police find out about it, it can lead to a new Class 1 Misdemeanor charge for Violation of Protection Order. It can also lead to being found in contempt of court, as well as potentially revocation of your bond. At Peakstone Law Group, LLC, our advice in this is always clear—obey the protection order to the letter.

No. Whether your significant other contacts you first or not is irrelevant. You may not have direct or third party contact with the alleged victim without risking additional charges and consequences. If the alleged victim calls you, do not answer. If the alleged victim texts you, do not respond. If you see the alleged victim in the grocery store, turn around and walk out. Some defendants share a marriage, life, and kids with the alleged victim in their case and ceasing all contact is extremely difficult, emotionally and practically. However, getting charged with more cases will not be conducive to recovering your normal life.

The court will be willing to issue a Keep the Peace order at your video advisement (or later if not at the video advisement) that will allow you to stop by your residence briefly to grab important non-contested items. In some cases, your attorney may also be able to help facilitate getting important items if the alleged victim is willing to be cooperative in the matter. Family members and friends that are trusted by both parties can also help, but you must keep in mind that they cannot pass communications of any type back and forth or it could be third-party contact and thus a violation of the protection order.

Colorado law breaks down criminal charges into three broad categories: 1) Petty Offenses, 2) Misdemeanors, and 3) Felonies. Of those three categories, felonies are considered the most dangerous, and as such, they carry severe consequences for a conviction, including jail.

Felonies are broken out into six different classes, with Class 1 (such as Pre-Meditated Murder) being the most serious, and Class 6 being the least serious (such as False Information to a Pawn Broker).

Felonies are distinguished from misdemeanor criminal charges by the potential sentences available to the court. Generally speaking, misdemeanors are punishable by up to one year in jail, while felonies are punishable from one year in jail up to life imprisonment.

Some felony convictions require a prison sentence pursuant to state law, such as a violent crime resulting in serious bodily injury. For lesser felonies, it may be possible to get sentenced to probation (usually supervised) or Community Corrections.

A probation sentence will likely have several requirements for successful completion, most of which relate to the circumstances of your arrest. For example, if you were intoxicated at the time you committed your offence, you can expect a condition of your probation to be that you abstain from drinking alcohol or using illicit drugs, and there may be some type of testing requirement to ensure that you are complying with the court’s order. You may be required to get some type of evaluation (mental health, domestic violence, etc.), either through the probation department or outside agency, and you will be ordered to comply with any recommendations made as part of that evaluation. You must refrain from any other violations of law during the period of your probation, and will be expected to complete any community service hours and pay off any restitution amounts as ordered by the court.

While jail may be the primary concern of most defendants, there are a number of other consequences for a felony conviction that will affect your life long after your case is over. Convicted felons lose their right to vote, their Second Amendment rights to own or possess a firearm, and the right to sit on a jury. In addition, the conviction will show up on any background check which could impact your ability to find a job or a place to live.

If your current job has any licensing requirements (for example, teachers, doctors, nurses, and child care providers), a felony conviction may prohibit you from continuing to work in those areas.

A deferred judgment and sentence (or in some jurisdictions a deferred sentence or DJ for short) is a plea offer from the prosecutor. Under a deferred sentence, a person pleads guilty to a charge, but no conviction enters. Instead, if the person does what they are supposed to do (often classes and therapy, useful public service, etc.) and stays out of trouble, the case can be dismissed at the end of the deferred sentence period. Usually it can then be sealed. Deferred sentences are usually only offered on first offenses with non-aggravated facts and some jurisdictions are more generous with offering them than others. However, when offered, a deferred sentence can sometimes be an excellent plea agreement that can avoid a conviction.

The most important thing you can do right now is to relax. We understand that this is an incredibly stressful period of your life, but rest assured knowing that you now have the help you need to move past it.

We will be working closely with you over the next several months in preparing your defense, and you are our most important asset when it comes to understanding what happened that led to charges being filed against you. We can only read what is contained in the discovery and police reports to figure out what happened, but you lived it. If there were any witnesses to or recordings of the events that we should be aware of, make sure and let us know. If we need help tracking anything or anyone down, we have a great working relationship with several private investigators in the area who have done great work for us in the past.

Depending on the circumstances of your case, it may be a good idea to get a jump on any requirements that could ultimately be imposed as part of a sentence in the future. This could mean community service hours, education and therapy, or specialized counseling. Anything that you can do while the case is still pending will potentially save you that time and effort in the future.

Although there will be a primary attorney and paralegal assigned to your case, our entire office is here to help you. Feel free to reach out to our office with any questions or concerns, and if the person you speak with cannot get you an answer right away, we will have someone get back to you as soon as possible.

Not all court appearances are created equal; some may be a quick in and out, others may require testimony and evidence to be presented. All you need to know if that the criminal justice system has a process that we will help you get through. Your case can (and likely will) take several months to get resolved.

If you are facing charges, that means that an investigation has been done through some law enforcement agency, typically the local police department or Sheriff’s office handles that, but there are a number of governmental agencies with the power to initiate a criminal case. Either the police did an immediate investigation on the scene of the alleged crime and believed they had probable cause for a warrantless arrest, or else they collected evidence during an investigation and put it in a Probable Cause affidavit they then showed to a judge. If a judge believes it is sufficient, the judge then issues a warrant for your arrest.

However, initial charges that led to an initial arrest or else a warrant are only what are called “arrest only” charges. The District Attorney’s Office will then review the proposed charges to see what charges the attorneys at that office think are supported by the actual evidence in the case, and will then formally charge accordingly.

After your arrest, you will appear in front of a judge and you will be advised as to the nature of the criminal charges and the potential penalties, at which point the judge will set a bond amount. Bond is typically set according to the nature of the charges against you, but a judge must also take into account your current circumstances (how long you have lived in the area, whether you have any family living nearby, your criminal record, whether you are a threat to the community, etc.). Posting a bond will allow you to remain out of jail as the case progresses (if you cannot afford the bond amount, you will be held in custody until your case is resolved, either through a plea or at trial). Your next court date(s) will likely be set for a First Appearance.

A first appearance is an initial court date at which the prosecutor presents you and the court with the charges they are formally bringing against you. Once that is done, the Court will normally set the case for an Appearance of Counsel date or else straight for an Arraignment.

Appearance of Counsel is a court date at which time an attorney you have hired has an opportunity to formally enter their appearance on your behalf as your attorney in the case.

An Arraignment is a court date at which you have the ability to enter a plea of guilty or not guilty.  In practice, this is more complicated.  Arraignments (called Disposition Hearings by some judges) are negotiation dates at which your attorney will try to work out a resolution with the prosecutor.  Sometimes more than one Arraignment settings are required before a resolution to your matter is obtained.  If no resolution is possible and the defense attorney and prosecutor are at an impasse, not guilty please may enter and the case could get set for trial.  In the alternative, one can use often use this date to enter a plea if an agreement has been reached with the prosecutor.  Whether sentencing can be done at the same time usually depends upon the type and nature of the charge, as well as the nature of the plea itself.

The state provides you with “discovery,” which is essentially all of the evidence that the state has against you, be it police reports, witness statements, body camera footage, photographs, etc. When we receive discovery, we will set up an appointment during which we will sit down and review the evidence against you page by page. Once we have a handle on the nature of the charges against you and the evidence that the state intends to use, we will have a better understanding of how the case is going to turn out, and we use that information to negotiate with the DA.

The negotiations with the DA are an attempt to resolve your case without having to go to trial. Typically, we are able to work out a plea bargain that limits the potential penalties that you would otherwise face were you to be convicted of those charges at trial. Often times we are able to negotiate a plea to a less serious offense than that which you were originally facing, or we agree to a term of a sentence and the conditions you will have to satisfy for the case to be resolved. Ultimately, the goal of our representation is to secure you the best deal possible that minimizes the potential penalties and negative consequences for you going forward.

Although most cases settle prior to trial, there is no requirement that you take whatever offer comes from the District Attorney as part of a plea bargain. If you do not take a plea, your case will be set for trial, whereby the state must prove the allegations against you with proof beyond a reasonable doubt as to each and every element of the offense(s) that you have been charged with. In the lead up to trial, there may be various motions that have been filed (either by the state or on your behalf) which may require a hearing at which testimony or evidence is presented. Should we make it that far, a trial would be held in the courthouse in front of twelve jurors who will decide your fate once all of the evidence in the case has been presented, and you will either be acquitted or convicted. An acquittal would mean that you would walk out of the courthouse free and clear, and a conviction would lead to the imposition of a sentence by the court.

This is likely the most common question we get asked by our clients, and unfortunately there is no good answer, especially in the early stages where we haven’t had the time to examine the evidence against you. Each case is unique; no two cases involve the same parties, the same underlying facts, or the same outcome. The negotiations we have with the District Attorney will hinge on the facts of the case, your personal history, the impact on any victims, and a host of any other factor at play. What we can say is that we will do everything in our power to get the best possible outcome for you.

No. Standard Field Sobriety Tests (sometimes called roadside maneuvers) are voluntary. You do not have to do them if you do not want to.

Most people think they did fine on the roadsides. Unfortunately, the police rarely agree. Part of the problem is that the police do not tell you how they are scoring you before you take these tests, so how can you know if you are passing them or even what is expected of you? On the flip side of the problem is the fact that many people investigated for DUI are in fact intoxicated and may not be accurately judging their own performance. Regardless, roadsides are very difficult for anyone to pass, even if stone-cold sober. Once police officers form a conclusion in their minds, it becomes subconsciously hard to change.

That is a good question and may have a complicated answer. If the officer suspected drugs, then it is entirely proper for them to insist upon a blood test as a breath test would not show drugs. However, if drugs were not suspected, you may have a defensible issue in your case that you should discuss with an experienced DUI attorney. During COVID local agencies stopped issuing breath tests due to transmission concerns. However, this has caused a substantial motions issue that needs to be investigated in your case.

Unfortunately, in Colorado you are not entitled to speak with an attorney before making that decision.

In Colorado, the per se limit for alcohol intoxication is .08. However, there is a rebuttable presumption of impairment above .05.

No. You cannot legally lie to an officer, but you also do not need to answer their questions regarding anything other than identifying information. You have a right to remain silent, don’t be afraid to politely assert that right.

In simplified terms, driving while ability impaired in Colorado means that you were operating a motor vehicle while your ability to safely operate that motor vehicle was impaired even to the slightest degree by alcohol, or drugs, or both alcohol and drugs.

A BAC over .08 withing two hours of driving is what’s called a per se violation. How long a suspension is will depend upon the actual DMV level and whether the individual has previous DMV actions for DUI related suspensions.

Yes. Oddly, whether a first offense or not, a person driving with a BAC over .15 is considered a Persistent Drunk Driver (PDD). This can have increased DMV repercussions.

Eventually perhaps. However, there are not per se DMV limits for marijuana or other drugs like there is for alcohol. Therefore, while you could end up being suspended for points and/or a DUI or DWAI conviction, you will not be suspended simply for a blood test showing the presence of drugs in your system while driving.

Under Colorado’s Express Consent law, driver’s have already agreed to a blood or breath test if demanded by law enforcement simply through the action of driving on the roads of Colorado. Therefore, if someone refuses to take one of those tests, it is called a refusal, and has increased DMV consequences, including a 60 day no-driver period before an individual is eligible to get a restricted license.

We think so. While it is very difficult to win a DMV hearing, it does happen. Additionally, requesting a DMV hearing gets you a temporary driving permit and allows you more time to plan how you are going to get around when the suspension does take effect.

Colorado attorneys are split on this issue. Some dui attorneys recommend not requesting the presence of the officer under the theory that, if the DUI DMV packet is missing an important element, there is no one there to fill in that gap with verbal testimony. Others prefer to request the presence of the officer so that, if the officer does not show up for the hearing, the case gets dismissed. This can also be helpful for an attorney to have an opportunity to cross examine an officer before a criminal trial to attempt to identify weaknesses in the officer and his/her testimony. PWL generally subscribes to the latter theory, but there are exceptions depending on the facts of the case.

Choosing an attorney is not always easy. You should choose the attorney with good experience in your type of case that you feel comfortable with. In the law as with everything else, cheaper is not necessarily better. An attorney that is charging substantially less than his/her competitors may either be hurting for clients, and there may be a reason for that. Or on the flip side of the coin that attorney’s practice may carry such a heavy caseload of cases at discounted rates that they are nearly as busy as a public defender and can’t dedicate sufficient time to any particular attorney. Likewise, the most expensive attorney you find may not be the best choice for you. Some attorneys market to wealthier clientele by charging more money for the same services, because their preferred clientele may, frankly, prefer to pay more and not less on the attorney they hire. An extremely high fee does not necessarily mean a great improvement in the type of representation you will receive. You need to find the attorney that is right for you. For further thoughts on the ever stressful attorney search, see our article on the matter.

Yes and no. Anyone should be concerned about an attorney or firm with a plethora of negative reviews, or with very mixed client experiences. However, while it may not be ethical, some law firms pay reputation management companies to stuff their reviews (or do so themselves). If you do not know what to look for, it can be hard to tell if the reviews you are seeing are legitimate or invented. Real reviews rarely look like they were carefully drafted by a marketing company. You should certainly look at reviews when trying to determine which attorney/firm to speak with, but take them with a grain of salt and remember that not everyone is honest in how they pursue their online marketing.

You want to hire someone that handles DUI cases regularly as a main part of their practice. Hiring a general practitioner that handles many areas of law may result in having an attorney that is not well versed in DUI law and defense.

Hiring an attorney is somewhat like buying a car. While it may be easier on the pocketbook—you may not want to hire the Kia of attorneys. Attorneys that undercharge are often younger with younger practices, or else have a business model that depends upon handling high case volume. If you want an attorney with experience, ability, and the time to dedicate to your particular matter in order to help assure the best possible result, this may not be what is best for you. Likewise, there are some attorneys in Southern Colorado that charge far more for their services than the case-type and work involved can justify. Instead, choose an attorney based on your confidence that they will get you the best outcome possible in your matter, and your comfort level with that attorney walking you through what can be a very intimidating and even frightening process. Hiring an attorney whose job it is to keep you out of jail is not the place to pinch pennies.

Great question. For one, always be responsive to your attorney and make sure to keep him/her advised of any change in contact information you may have. Also heed your attorney’s advice and remember they have likely helped more people in your situation than you could shake a stick at. Always be prompt in accomplishing any task your lawyer advises you to do.

At Peakstone Law Group, LLC, we pride ourselves on being responsive and communicative with our clients. We will always contact you as soon as we have any new significant development in your case and there are some types of conferences that we have with every criminal division client on every case. For example, we have in person (or phone if you prefer and the type of case allows) discovery reviews with our clients in every case to discuss the evidence against you, the strengths and weaknesses of the prosecutor’s case, and our possible defenses and strategy. In every criminal case there will be periods when not much happens for a little while and you may not hear from us until we have a new development. This is normal and the nature of criminal law. We often equate a criminal case to the old military axiom “hurry up and wait.” However, even if there are no new developments, we are always happy to answer any questions (or address any anxiety) that our clients bring us. We are here to walk with you and guide you through the whole process. So if you have a question or concern, or just want reassurance—call us!