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Duties of Peace Officers and Prosecuting Agencies – Preservation of Evidence

NOTE: Shall arrest law

(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 pursuant to the provisions in subsection (2) of this section, if applicable, and charge the person with the appropriate crime or offense. 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. Additionally,nothing in this subsection (1) shall be construed to require a peace officer to arrest either party involved in an alleged act of domestic violence when a peace officer determines there is no probable cause to believe that a crime or offense of domestic violence has been committed. The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer’s station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made.

NOTE: Colorado’s”Primary Aggressor” law

(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:

(a) Any prior  complaints of domestic violence;

(b) The relative  severity of the injuries inflicted on each person;

(c) The likelihood  of future injury to each person; and

(d) The possibility  that one of the persons acted in self-defense.

(3) (a) A peace officer is authorized to use every reasonable means to protect the alleged victim or the alleged victim’s children to prevent further violence. Such peace officer may transport, or obtain transportation for, the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the protected person, who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order for the care and control of the child or an order allocating parental responsibilities with respect to the child and whether or not the other parent objects. A peace officer who transports a minor child over the objection of the other parent shall not be held liable for any damages that may result from interference with the custody, parental responsibilities, care,and control of or access to a minor child in complying with this subsection (3).

(b) For purposes of  this subsection (3), “shelter” means a battered women’s shelter, a  friend’s or family member’s home, or such other safe haven as may be  designated by the protected person and which is within a reasonable distance  from the location at which the peace officer found the victim.

(4) (a) The arresting agency shall make reasonable efforts to collect and preserve any pertinent evidence until the time of final disposition of the matter, including, but not limited to, the following:

(I) Any dispatch  tape recording relating to the event;

(II) Any on-scene  video or audio tape recordings;

(III) Any medical  records of treatment of the alleged victim or the defendant; and

(IV) Any other  relevant physical evidence or witness statements.

(b) However, in the  absence of bad faith, any failure to collect or preserve any evidence listed  in paragraph (a) of this subsection (4) shall not be grounds to dismiss the  matter.

(5) A peace officer shall not be held civilly or criminally liable for acting pursuant to this section if the peace officer acts in good faith and without malice.

Source:L. 94: Entire section added. p. 2029, § 5, effective July 1. L. 95: (1) amended, p. 568, § 4,effective July 1. L. 98: (1) amended, p. 1231, §2, effective July 1; (3)(a) amended, p. 1404, § 59, effective February 1, 1999.

Law reviews. For article, “1994 Legislature Strengthens Domestic Violence Protective Orders”, see 23 Colo. Law. 2327 (1994).

18-6-803.7 – Central Registry of Restraining Orders – Creation.

(1) As used in this section:

(a)  “Bureau” means the Colorado bureau of investigation.

(b) “Protected  person” means the person or persons identified in the restraining order  as the person or persons for whose benefit the restraining order was issued.

(c)  “Registry” means a computerized information system.

(d) “Restrained  person” means the person identified in the order as the person prohibited  from doing the specified act or acts.

(e)  “Restraining order” means any order that prohibits the restrained  person from contacting, harassing, injuring, intimidating, molesting,  threatening, or touching any person, or from entering or remaining on  premises, or from coming within a specified distance of a protected person or  premises, that is issued by a court of this state or an authorized municipal  court, and that is issued pursuant to article 14 of title 13, C.R.S., sections  14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S., section 14-10-108,  C.R.S., section 18-1-1001, section 19-2-707, C.R.S., section 19-3-316, C.R.S.,  section 19-4-111, C.R.S., or rule 365 of the Colorado rules of county court  civil procedure or an order issued as part of the proceedings concerning a  criminal municipal ordinance violation. “Restraining order” also  includes any foreign protection order as described in section 18-6-803.8.

(f) “Subsequent  order” means an order which amends, modifies, supplements, or supersedes  a restraining order.

(2) (a) There is hereby created in the bureau a computerized central registry of restraining orders which shall be accessible to any state law enforcement agency or to any local law enforcement agency having a terminal which communicates with the bureau. The central registry computers shall communicate with computers operated by the state judicial department.

(b) Restraining  orders and subsequent orders shall be entered into the registry by the clerk  of the court issuing the restraining order; except that orders issued pursuant  to sections 18-1-1001 and 19-2-707, C.R.S., shall be entered into the registry  only at the discretion of the court or upon motion of the district attorney.  The clerk of the court issuing the restraining order shall be responsible for  updating the registry electronically in a timely manner to ensure the notice  is as complete and accurate as is reasonably possible with regard to the  information specified in subsection (3) of this section.

(c) The restrained  person’s attorney, if present at the time the restraining order or subsequent  order is issued, shall notify the restrained person of the contents of such  order if the restrained person was absent when such order was issued.

(d) Restraining  orders and subsequent orders shall be placed in the registry not later than  twenty-four hours after they have been issued; except that, if the court  issuing the restraining order or subsequent order specifies that it be placed  in the registry immediately, such order shall be placed in the registry  immediately.

(e) Upon reaching  the expiration date of a restraining order or subsequent order, if any, the  bureau shall note the termination in the registry.

(f) In the event the  restraining order or subsequent order does not have a termination date, the  clerk of the issuing court shall be responsible for noting the termination of  the restraining order or subsequent order in the registry.

(3) (a) In addition to any information, notice, or warning required by law, a restraining order or subsequent order entered into the registry shall contain the following information, if such information is available:

(I) The name, date  of birth, sex, and physical description of the restrained person to the extent  known;

(II) The date the  order was issued and the effective date of the order if such date is different  from the date the order was issued;

(III) The names of  the protected persons and their dates of birth;

(V) The expiration  date of the restraining order, if any;

(VI) Whether the  restrained person has been served with the restraining order and, if so, the  date and time of service; and

(VII) The amount of  bail and any conditions of bond which the court has set in the event the  restrained person has violated a restraining order.

(b) If available,  the restraining order or subsequent order shall contain the fingerprint based  state identification number issued by the bureau to the restrained person.

Source:L. 94: Entire sectionadded, p. 2013, § 8, effective January 1, 1995. L. 96:(1)(e) amended, p. 1692, § 27, effective January 1, 1997. L.98: (2)(b) amended, p. 947, § 5, effective May 27; (1)(e) amended, p.1233, § 4, effective July 1. L. 99: (1)(e)amended, p. 503, § 12, effective July 1.

Lawreviews. For article, “1994 Legislature Strengthens DomesticViolence Protective Orders”, see 23 Colo. Law. 2327 (1994).

18-6-803.8  – Foreign Protection Orders.

(1) Legislative declaration. The general assembly recognizes that domestic violence is an issue of public safety. The risk of harm to victims of domestic violence is not limited by state boundaries. Victims have the right to travel safely from on estate, tribe, or territory to another and be afforded the same protections as their home state would provide against a perpetrator. Therefore, the general assembly finds that it is in the state’s best interest to allow for the recognition and enforcement of foreign protection orders as provided in this section.

(2) Definition. As used in this section, “foreign protection order” means any protection or restraining order, injunction, or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary or final orders, other than child support or custody orders, issued by a civilor criminal court of another state, an Indian tribe, or a U.S. territory or commonwealth.

(3) Full faith and credit. A foreign protection order shall be accorded full faith and credit bythe courts of this state as if the order were an order of this state,notwithstanding section 14-11-101, C.R.S., and article 53 of title 13, C.R.S.,if the order meets all of the following conditions:

(a) The foreign  protection order was obtained after providing the person against whom the  protection order was sought a reasonable notice and opportunity to be heard  sufficient to protect his or her due process rights. If the foreign protection  order is an ex parte injunction or order, the person against whom it was  obtained shall have been given notice and an opportunity to be heard within a  reasonable time after the order was issued sufficient to protect his or her  due process rights.

(b) The court that  issued the order had jurisdiction over the parties and over the subject  matter;

(c) The order  complies with section 13-14-102 (18), C.R.S.

(4) Process. A person entitled to protection under a foreign protection order may, but shall not be required to, file such order in the district or county court by filing with such court a certified copy of such order, which shall be entered into the central registry of restraining orders created in section 18-6-803.7. The certified order shall be accompanied by an affidavit in which the protected person affirms to the best of his or her knowledge that the order has not been changed or modified since it was issued. There shall be no filing fee charged. It is the responsibility of the protected person to notify the court if the protection order is subsequently modified.

(5) Enforcement. Filing of the foreign protection order in the central registry or otherwise domesticating or registering the order pursuant to article 53 of title 13, C.R.S.,or section 14-11-101, C.R.S., is not a prerequisite to enforcement of the foreign protection order. A peace officer shall presume the validity of, and enforce in accordance with the provisions of this article, a foreign protection order that appears to be an authentic court order that has been provided to the peace officer by any source. If the protected party does not have a copy of the foreign protection order on his or her person and the peace officer determines that a protection order exists through the central registry, the national crime information center as described in 28 U.S.C. sec. 534, or communication with appropriate authorities, the peace officer shall enforce the order. A peace officer may rely upon the statement of any person protected by a foreign order that it remains in effect. A peace officer who is acting in good faith when enforcing a foreign protection order shall not be civilly or criminally liable pursuant to section 18-6-803.5 (5).

Source:L. 98: Entire section added, p. 1233, § 5, effective July 1.

18-6-803.9 – Assaults and Deaths Related to Domestic Violence – Report.

The Colorado bureau of investigation shall prepare a report by November 1, 1995, and by November 1 o feach year thereafter, to the governor, the president of the senate, and the speaker of the house of representatives on the number of assaults related to and the number of deaths caused directly by domestic violence, including, but no tlimited to, homicides of victims, self-defense killings of alleged perpetrators,and incidental killings of children, peace officers, persons at work, neighbors,and bystanders in the course of episodes of domestic violence.

Source:L. 94: Entire section added, p. 2029, § 5, effective July 1

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H. Michael Steinberg Esq.
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