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MCCLUSKEY LAW OFFICE
MCCLUSKEY LAW OFFICE is a criminal defense law office dedicated to protecting the rights of individuals charged with crimes. M. E. McCluskey, Esq. is available to represent clients charged with FELONIES and or MISDEMEANORS in Arvada, Aurora, Bennett, Beyers, Boulder, Breckenridge, Brighton, Broomfield, Castle Rock, Centennial, Cherry Creek, Denver, Edgewater, Engelwood, Federal Heights, Fort Collins, Fort Lupton, Fort Morgan Greeley, Greenwood Village, Frederick, Highlands Ranch, Kiowa, Lakewood, Lakeside, Littleton, Lochbuie, Lodo, Longmont, Louisville, Loveland, Northglenn, Parker, Platteville, Sheridan, Strasburg, Thornton, Telluride, Vail, Watkins, Westminster, Wheat Ridge, Windsor, Front Range communities and ADAMS, ARAPAHOE, BOULDER, BROOMFIELD, CLEAR CREEK, DENVER, DOUGLAS, EL PASO, GILPIN, JEFFERSON, LARIMER, and WELD counties.
Often all it takes to get charged with Domestic Violence is an allegation. It's not uncommon for a female to use the DV laws as leverage to gain control of her intimate partner and coerce him.
If police have been notified of a disturbance and suspect domestic violence has occurred then someone in the relationship is going to be spending the night in jail. The law does not allow the accused to bond out before spending a night in jail. The accused can be placed in the fast track process where they will appear in court within 24 hours of arrest leaving little time to hire an attorney beforehand. The restrained person can file a motion to dismiss or modify the protection order. Civil and criminal protection orders will be issued. Upon final disposition of the criminal charges, the criminal Protection Order will expire. The civil temporary protection order will ordinarily become permanent if you don't show up at the hearing and contest the allegations. You need an attorney to fight for you and illustrate why the temporary protection order should not become permanent and should be vacated.
You must get a fingerprint-based criminal history record check 90 days prior to filing the Motion to Dismiss or Modify. You need a dedicated attorney to present your convincing arguments as to why the Permanent Protection Order should now be dismissed or vacated. A Permanent Protection Order can have a negative impact on your future employment and housing as it can show up on background checks.
MOTION TO MODIFY OR DISMISS PERMANENT PROTECTION ORDER
You may qualify for a modification or dismissal of a PPO, Permanent Protection Order if you haven't been convicted of any felonies or misdemeanors against the Protected Person, (other than the original offense), after the issuance of the PPO.
The wait time for filing a Motion to Modify or Dismiss a PPO, Permanent Protection Order, has been reduced from four years to two years for PPOs that were issued on or after July 1, 2013.
For Permanent Protection Orders that were issued prior to July 1, 2013, the restrained person may file a Motion to Modify or Dismiss a PPO, Permanent Protection Order with the Court four years after issuance of the PPO.
Domestic Violence is not a separate crime by itself, but is a label used for sentence enhancement purposes. Certain crimes are frequently charged with a Domestic Violence factual basis. Assaults, Criminal Mischief, Criminal Menacing, Harassment frequently have the DV label attached. Damaging property with no injury or damage to the accuser, for example a person accused of throwing a cell phone in the vicinity of his intimate partner in anger can end up with a DV criminal mischief conviction. Even though there was no bodily injury or contact, the accused can end up with a more severe sentence because of the Domestic Violence label or underlying factual basis.
Some of the penalties found in §18-6-801 include:
Domestic violence evalution
Domestic violence treatment which must be approved by the DVOMB
No IHD in the home of the victim
Loss of right to possess a firearm §13-14-105.5
Mandatory protection order
Individuals with multiple offenses labelled as domestic violence can face Habitual Domestic Violence Offender charges, a class 5 felony.
In United States v. Castleman, 572 U.S. ____ (2014) issued March 26, 2014 the Supreme Court decided that a state conviction for "misdemeanor domestic assault," arising out of an incident with the mother of his child where the restrained party pleaded guilty to "intentionally or knowingly caus[ing] bodily injury to " the mother of his child qualifies as a "misdemeanor crime of domestic violence" under federal law prohibiting Castleman from having a gun. The lower court had held that Castleman's conviction could not qualify as a "misdemeanor crime of domestic violence" because Castleman could have been convicted for "caus[ing] a slight, non serious physical injury with conduct that cannot be described as violent." The United States Supreme Court disagreed and determined that the element of force is satisfied by even the slightest touching.
18-6-801. Domestic violence - sentencing(1) (a) In addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined insection 18-6-800.3 (1), or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S. If an intake evaluation conducted by an approved treatment program provider discloses that sentencing to a treatment program would be inappropriate, the person shall be referred back to the court for alternative disposition.(b) The court may order a treatment evaluation to be conducted prior to sentencing if a treatment evaluation would assist the court in determining an appropriate sentence. The person ordered to undergo such evaluation shall be required to pay the cost of the treatment evaluation. If such treatment evaluation recommends treatment, and if the court so finds, the person shall be ordered to complete a treatment program that conforms with the standards adopted by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S.
§13-14-105 Domestic Protection Order - Domestic abuse involves any act of violence committed by a person against another person who is currently or formerly related to, or living in the same home or is involved or has been in an intimate relationship.
Elder or at Risk-Adult Protection Order - Abuse of the elderly (an adult 60 years or older) or of an adult at risk.
365 Protection Order - Protects those other than those individuals listed in Domestic and Elderly or At Risk Adults.
§18-1-1001 - Mandatory protection order against the defendant is ordered against any person charged with an offense. This protection order includes staying away from the alleged victim and witness as well as being prohibited from possession of firearms, consumption of alcohol and controlled substances.
VIOLATION OF PROTECTION ORDER
It's not uncommon for the protected person to try to gain more leverage, especially during divorce proceedings, by deliberately placing themselves in the vicinity of the restrained person or by contacting the restrained person by phone or email. The protected person then files a violation of the restraining order alleging that the restrained person came within the protected space.
It is not uncommon for the parties to have unintentional contact in a public place when they had no prior knowledge that the other party would be there.
The required culpable state of mind of "knowingly" applies to all elements of the crime of violation of a restraining order. People v. Coleby, 34 P.3d 422 (Colo. 2001). If you've been accused of violating a Protection Order, MCCLUSKEY LAW OFFICE can protect your constitutional rights in court and investigate possible defenses to argue before a judge on your behalf.
18-6-803.5. Crime of violation of a protection order - penalty - peace officers' duties - definitions(1) A person commits the crime of violation of a protection order if, after the person has been personally served with a protection order that identifies the person as a restrained person or otherwise has acquired from the court or law enforcement personnel actual knowledge of the contents of a protection order that identifies the person as a restrained person, the person:(a) Contacts, harasses, injures, intimidates, molests, threatens, or touches the protected person or protected property, including an animal, identified in the protection order or enters or remains on premises or comes within a specified distance of the protected person, protected property, including an animal, or premises or violates any other provision of the protection order to protect the protected person from imminent danger to life or health, and such conduct is prohibited by the protection order;(b) Except as permitted pursuant to section 18-13-126 (1) (b), hires, employs, or otherwise contracts with another person to locate or assist in the location of the protected person; or(c) Violates a civil protection order issued pursuant to section 13-14-102 (22), C.R.S., or pursuant to section 18-1-1001 (9) by:(I) Possessing or attempting to purchase or receive a firearm or ammunition while the protection order is in effect...
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