The Setting of Bail Bonds in Colorado Domestic Violence and All Other Colorado Criminal Cases

In this web page I republish the actual Colorado Bail Bond laws that impact domestic violence cases. The mandatory arrest policies of the Colorado Domestic Violence statutes – in part – the result of the National Violence Against Women Act – couple with the mandated DENIAL of bail bond provisions of these aggressive and often unfair laws. These are laws that lead to the arrest of citizens – who for the most part – commit minor misdemeanor acts and – who have no experience with the criminal justice system.

These “suspects” are held behind bars without bond and are so terrified when they do see a judge under Colorado’s county domestic violence “fast track” systems – they often plead guilty in confused thinking that has them believe they will not see their freedom until they have pled guilty – giving up their constitutional rights to a lawyer and to a trial.

It is the Court’s duty to inform the defendant at the first appearance that he has the right to bail, if the offense is bailable, and the amount of bail that has been set by the court.

A person may be granted bail when he is charged with a misdemeanor or petty offense in county court by a judge as provided in Article 4 of Title 16, or, if a judge is unavailable, by an appropriate officer designated by court rule….except in Colorado domestic violence cases

All persons shall be bailable by sufficient sureties except: for capital offenses, when proof is evident or presumption is great; or when, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that proof is evident or presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:

1. A crime of violence, as may be defined by the general assembly, alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;
2. A crime of violence, as may be defined by the general assembly, alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;
3. A crime of violence, as may be defined by the general assembly, alleged to have committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the united States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony.
4. A crime of possession of a weapon by a previous offender alleged to have been committed in violation of C.R.S. § 18-12-108(2)(b), (2)(c), (4)(b), (4)(c), (5).

When a person has been convicted of a crime of violence or a crime of possession of a weapon by a previous offender, as described in section 18-12-108(2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S.., at the trial court level and such person is appealing such conviction or awaiting sentencing for such conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail.

The primary function of bail is to assure the presence of the accused, and this end should be met by means which impose the least possible hardship upon the accused.

The court should consider facts which throw light on what would be reasonable bail in order to assure defendant’s presence at the trial.

The power of deciding the amount of bail is within the discretion of the trial court, and its decision in that regard will not be disturbed when properly raised except in a clear case of abuse of discretion.

There is an absolute right to bail except as set forth above. The amount and conditions may vary, but bail may not be denied except according to the procedures outlined in Crim P. Rule 46.

To deny bail for capital offenses, or cases where the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the cases listed in section B above, a trial court must hold a hearing to determine whether “the proof is evident or the presumption great.”

Denial of bail is mandatory upon finding that proof is evident or presumption is great.

For Example, denial of bail was not cruel and unusual punishment; The statute was not unconstitutional; vesting of judicial powers in the prosecution was not in violation of doctrine of separation of powers.

There is no unqualified Constitutional right to bail for a juvenile under the U.S. and Colorado Constitutions.

The Colorado Constitution, like the U.S. Constitution prohibits excessive bail. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Financial inability to make bail in not unconstitutional denial of bail.

“The right to bail does not amount to a guarantee that every defendant who is charged with a crime will be released without bail if he is indigent.”

In determining the amount of bail and the type of bond to be furnished by the defendant, the judge fixing the same shall consider and be governed by the following criteria:

1. The amount of bail shall not be oppressive:
2. When a person is charged with an offense punishable by fine only, the amount of bail shall not exceed the amount of the maximum penalty;
3. The defendant’s employment status and history and his financial condition;
4. The nature and extent of his family relationships;
5. His past and present residences;
6. His character and reputation;
7. Identity of persons who agree to assist him in attending court at the proper time;
8. The nature of the offense presently charged and the apparent probability of conviction and the likely sentence;
9. The defendant’s prior criminal record, if any, and, if he previously has be released pending trial, whether he appeared as required;
10. Any facts indicating the possibility of violations of law if the defendant is released without restrictions;
11. Any facts indicating a likelihood that there will be an intimidation or harassment of possible witnesses by the defendant;
12. Any other facts tending to indicate that the defendant has strong ties to the community and is not likely to flee the jurisdiction.

Alleged victims of domestic violence are notified of defendant’s release from custody.

The right to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process;

The right to be informed, upon request by the victim, when a person who is accused or convicted of a crime against the victim is released or discharged from county jail;

The right to be heard at the critical stages of a court proceeding involving the defendant’s bond where the court action involves a bond reduction or modification at which the following occurs:

1. A bond is set lower than the scheduled or customary amount for the specific charge, including any adjustments made by the court to the amount of bond to correspond to the specific charge to which the defendant pled guilty or for which the defendant was convicted, if the adjusted bond is lower than the scheduled or customary amount for the specific charge;
2. A change in the type of bond;
3. A modification to a condition of the bond;
4. A defendant is permitted to appear without posting a bond;
5. In a case involving a capital offense, the court grants the defendant’s motion for admission to bail pursuant to C.R.S. § 16- 4-101(3); or
6. For jurisdictions that do not have a bond schedule or customary amount for bond, a bond is modified to a lower amount than that set at the initial bond hearing.

Victims have the right to be informed, upon request, when a person who is accused or convicted of a crime against such victim is released from custody or has escaped.

Victims and witnesses have the Constitutional right to be informed by law enforcement or the district attorney of the status of the case, including all significant proceeding.

Any person who is a victim of a criminal act, such person’s designee, legal guardian, or surviving immediate family members if such person is deceased shall have the right to be heard when relevant, informed, and present at all critical stages of the criminal justice process.

Critical Stages include:

• The filing of charges against a person accused of a crime;
• The decision not to file charges against a person accused of a crime;
• The preliminary hearing;

Any court action involving a bond reduction or modification at which the following occurs:

A bond is set lower than the scheduled or customary amount for the specific charge, including any adjustments made by the court to the amount of bond to correspond to the specific charge to which the defendant pled guilty or for which the defendant was convicted, if the adjusted bond is lower than the scheduled or customary amount for the specific charge;

• A change in the type of bond;
• A modification to a condition of the bond;
• A defendant is permitted to appear without posting a bond;
• In a case involving a capital offense, the court grants the defendant’s motion for admission to bail pursuant to section 16-4-101(3), C.R.S.; or
• For jurisdictions that do not have a bond schedule or customary amount for bond, a bond is modified to a lower amount than that set at the initial bond hearing.

However, the following shall not constitute a bond reduction or modification:

• The initial setting of a bond, whether set by the court at the first appearance or by another entity authorized to do so by the court prior to the first appearance;
• The setting of a new bond upon the filing of charges by the district attorney, so long as the bond is set at or above the scheduled or customary amount for the specific charge filed; and
• For nonbailable offenses, the subsequent setting of a bond by the court.
• The arraignment of a person accused of a crime;
• Any hearing on motions concerning evidentiary matters or pre-plea or post-plea relief;
• Any subpoena for records concerning the victim’s medical history, mental health, education, or victim’s compensation;
• Any disposition of the complaint or charges against the person accused;
• The trial;
• Any sentencing hearing;
• Any appellate review or appellate decision;
• Any subsequent modification of the sentence;
• Any probation revocation hearing;
• The filing of any complaint, summons, or warrant by the probation department for failure to report to probation or because the location of a person convicted of a crime is unknown;
• The change of venue or transfer of probation supervision from one jurisdiction to another;
• The request for any release from probation supervision prior to the expiration of the defendant’s sentence;
• An attack on a judgment or conviction for which a court hearing is set;
• Any parole application hearing;
• The parole, release, or discharge from imprisonment of a person convicted of a crime;
• Any parole revocation hearing;
• The transfer to or placement of a person convicted of a crime in a nonsecured facility;
• The transfer, release, or escape of a person charged with or convicted of a crime from any state hospital;
• Any petition by a sex offender to terminate sex offender registration;
• The execution of an offender in a capital case; and
• A hearing held pursuant to section C.R.S. § 18-1-414(2)(b) (remedy for the destruction of biological evidence).

C.R.S. § 16-4-101; COLO. CONST. art. II § 19; Colo. Crim P. Rule 46.

There are criteria specific to domestic violence cases that the court should consider in deciding the amount of bail to be set in domestic violence cases. While not all inclusive, some of these criteria are:

• Defendant’s prior criminal history.
• Likelihood of retaliation by the defendant, either directly towards the victim or indirectly towards the children, friends or extended family.
• Pregnancy of victim. Studies have shown that a high percentage of battering occurs during pregnancy and involves blows to the victim’s abdomen.
• The Defendant’s history of substance abuse.
• The defendant’s use of weapon or firearm to commit offense/defendant’s access to weapons.
• The defendant’s access to the victim.
• The nature and extent of his family relationships.
• Personal Recognizance Bonds in Colorado Domestic Violence Cases

Unless the district attorney consents, no person shall be released on personal recognizance if:

He is presently at liberty on another bond of any kind in another criminal action involving a felony or class 1 misdemeanor; or

He has a record of conviction of a class 1 misdemeanor within two years, or a felony within five years, prior to the release hearing.

Additionally no person shall be released on personal recognizance until and unless the judge ordering the release has before him reliable information concerning the accused prepared or verified by a person designated by the court, or substantiated by sworn testimony at a hearing before the judge, from which an intelligent decision based on the criteria set forth in this section and be made. Such information shall be submitted either orally or in writing without unnecessary delay.

1. Upon application by the district attorney or the defendant, the court before which the proceeding is pending may:
   • Increase or decrease the amount of bail;
   • Require additional security for a bond;
   • Dispense with security theretofore provided; or
   • Alter any condition of the bond.
2. Reasonable notice of an application for modification of a bond by the defendant shall be given to the district attorney.
3. Reasonable notice of application for modification of a bond by the district attorney shall be given to the defendant, except:Upon verified application by the district attorney or a bonding commissioner stating facts or circumstances constituting a breach of any of the conditions of the bond, the court may issue a warrant commanding any peace officer to bring the defendant without unnecessary delay before the court for a hearing of the matter set forth in the application. (See C.R.S. § 16-4-107(4)(a) for complete enumeration regarding hearing).
4. The district attorney has the right to appear at all hearings seeking modification of the terms and conditions of bail and may advise the court and all pertinent matters during the hearing. C.R.S. § 16-4-101(3).

Domestic Violence is defined as:

An act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when 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.

Intimate relationship is defined as: A relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

“[A] court may take into account the following three nonexclusive factors to determine the presence of an intimate relationship:

1. the length of time the relationship has existed, or did exist;
2. the nature or type of the relationship;
3. the frequency of interaction between the parties.”

Intimate relationship does not require proof of a sexual relationship. “The relationship must be more than that of a roommate, friend, or acquaintance; there must be a romantic attachment or shared parental status between the parties.”

The Order shall remain in effect from the time that the person is advised of his or her rights at arraignment or the person’s first appearance before the court and informed of such order until final disposition of the action.

“Until final disposition of the action” means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence. Any defendant sentenced to probation or incarceration shall be deemed to have completed his or her sentence upon discharge from probation or incarceration, as the case may be.

Such order shall restrain the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.

The protection order issued pursuant to this section shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected parties.

The court must advise the defendant of the protection order at the first court appearance and further advise that violation of such order is punishable by contempt.

The court may, in cases involving domestic violence to enter any of the following further orders against the defendant:

1. An order to vacate or stay away from the home of the victim and to stay away from any other location where the victim is likely to be found;
2. An order to refrain from contact or direct or indirect communication with the victim;
3. An order prohibiting possession or control of firearms or other weapons;
4. An order prohibiting possession or consumption of alcohol or controlled substances;
5. Any other order the court deems appropriate to protect the safety of the alleged victim.

The court is required, in domestic violence cases, to state the terms of the protection order on the record and require the defendant to acknowledge the protection order as a condition of any bond.

The mandatory protection order cannot include the defendant’s attorney. The defendant’s attorney must be allowed access to witnesses in order to effectively prepare for trial.

It is important to note that municipal courts are not bound by C.R.S. §18-1- 1001(1) and do not have the requirement of mandatory protection orders. Often, city attorneys will request protection orders as part of their office’s general practice or at the request of the victim.