What’s the Difference Between Shoplifting and Theft in Colorado?

Theft and shoplifting crimes are cases that we frequently defend. They are the most common type of property crime we handle in Colorado Springs.

In my practice, sometimes the question comes up, “Why was I charged with theft, not shoplifting?” (or vice versa). The way these property crimes are charged can be determined by a variety of factors. Location of the incident (city vs. county), victim of the theft (store vs. individual), and value of the property can be determining factors.

Some people use the terms “shoplifting” and “theft” interchangeably. While all shoplifting is theft, not all theft is shoplifting. Understanding the difference between these charges matters because it determines which court hears your case, the penalties you face, and what strategies might work best in your defense.

Theft vs Shoplifting: A Quick Summary

• Shoplifting is charged under Colorado Springs Municipal Code 9.6.401 in Municipal Court; theft is charged under C.R.S. 18-4-401 in County or District Court.
• Retail theft inside city limits may be shoplifting; theft from individuals or outside city limits is always state theft.
• Value controls severity: Shoplifting applies only under $2,000; theft penalties escalate by value, becoming felonies at $2,000 and above.
• Municipal shoplifting has capped jail and fines; state theft can lead to felony convictions, prison time, and high fines.
• Theft is broader and includes fraud, embezzlement, and other property crimes beyond retail stores.

The Fundamental Difference: Where You’re Charged

The most important distinction between shoplifting and theft in Colorado comes down to jurisdiction. Or which courthouse will hear your case? Shoplifting charges are typically filed in municipal court under city ordinances. Theft charges are filed in county or district court under state law. This jurisdictional difference creates significantly different legal landscapes.

Colorado Springs Municipal Code 9.6.401 defines shoplifting as a city offense. The state theft statute, C.R.S. 18-4-401, defines theft as a state crime. While the basic elements are similar, where you’re prosecuted makes a real difference in how your case proceeds and what consequences you face.

What MakAll shoplifting is theft, not vice versa:es Conduct “Shoplifting”?

Under Colorado Springs Municipal Code 9.6.401, shoplifting occurs when someone without authorization knowingly obtains or exercises control over goods offered for sale by a store. The key elements include taking merchandise valued under $2,000, intending to deprive the store permanently of the item, and the property being offered for sale in a retail setting.

The Colorado Springs ordinance specifically covers concealing merchandise, using deception to obtain refunds, or altering price tags. The municipal code creates “prima facie evidence” of intent when someone willfully conceals unpurchased goods. If you’re caught hiding merchandise, the law presumes you intended to steal it.

Municipal shoplifting charges apply only to merchandise under $2,000 in value. Anything over that amount will be filed in state court under the theft statute.

How State Theft Law Works

Colorado’s state theft statute, C.R.S. 18-4-401, is broader than the City Code. A person commits theft when they knowingly obtain, retain, or exercise control over anything of value belonging to another without authorization or by threat or deception. The statute requires intent to permanently deprive the owner, knowingly using or concealing the item, or demanding improper consideration to return it.

State theft law covers everything municipal shoplifting covers, plus much more. Theft includes stealing from individuals, embezzlement, rental property not returned, receiving stolen property, and countless other scenarios.

The state statute divides theft into multiple classification levels based entirely on the value of what was stolen, creating a sliding scale from petty offenses to serious felonies. Any theft not from a retail establishment should be filed as theft, not shoplifting.

The Penalty Structures Compared

Municipal shoplifting in Colorado Springs carries penalties of up to 189 days in jail and fines up to $2,500. These are serious consequences that create a criminal record that could affect employment, housing, and professional licensing.

State theft penalties escalate dramatically based on value. Property under $300 is a petty offense with up to 10 days in jail and a $300 fine. At $300 to $1,000, it becomes a class 2 misdemeanor with up to 120 days in jail. Between $1,000 and $2,000, theft is a class 1 misdemeanor carrying up to 364 days in jail and a $1,000 fine.

Felony territory begins at $2,000. Theft valued at $2,000 to $5,000 is a class 6 felony with 12 to 18 months in prison and fines up to $100,000. The classifications continue escalating all the way to class 2 felonies for theft exceeding $1 million, carrying eight to 24 years in prison and $1 million in fines.

One critical provision allows aggregation of multiple thefts. If someone commits theft multiple times within six months, prosecutors can add up the total value and charge based on the aggregate amount. Someone shoplifting $800 three times over four months faces a potential felony charge for $2,400 in total theft.

Why Law Enforcement Choose State vs. Municipal Charges

There is some discretion in deciding where to file shoplifting charges in some cases. Remember, there is concurrent jurisdiction in many cases. Value is the most obvious factor. High-value thefts must be prosecuted at the state level. If it is a low value, in city limits, at a store, it will most likely be filed as a shoplifting at Municipal Court.

Many municipal courts offer pretrial diversion programs for first-time offenders, allowing defendants to complete community service and pay restitution in exchange for dismissal. The county court also has options where the charges don’t have to end up on your permanent record.

Juveniles have options like Diversion, where they can avoid prosecution by participating in a court-approved program. Adults may be offered a deferred sentence, whereby they can keep the conviction off their record and even seal the case if they successfully complete the deferred.

The Location Element in Shoplifting

The big distinguishing factor of shoplifting is the “mercantile establishment” requirement. Shoplifting specifically involves taking goods offered for sale in a store. General theft under state law has no such limitation. You can commit theft by stealing from homes, construction sites, embezzling from employers, or keeping rental equipment. None of these involves retail establishments, so they can only be prosecuted as general theft.

Example: Jimmy steals a bicycle from a neighbor’s garage and commits theft, but not shoplifting. Tara, who walks out of Target with unpaid merchandise, commits both, giving prosecutors a choice of which charge to pursue.

Another element to consider is the geographic location involved as well: Did the crime happen inside city limits? If the crime happened outside of city limits, the Municipal Court doesn’t have jurisdiction over your case, and it will likely be filed as simple “theft under Colorado Revised Statutes.

If the law enforcement officer was an El Paso County sheriff, the ticket would be filed into County/District Court. A Colorado Springs Police officer may write a ticket into either courthouse.

Deception and Fraud in the Retail Context

Both the municipal shoplifting ordinance and the state theft statute address obtaining property through deception. The Colorado Springs ordinance specifically includes obtaining refunds for goods not purchased or items with altered price tags.

This is becoming very common, and if law enforcement can determine probable cause exists that you didn’t purchase the item there, or messed with the price, you could be looking at shoplifting charges.

The state theft statute’s language on deception is broader, covering any false statements, misrepresentation, or trickery to obtain property, reaching far beyond retail settings into fraud, embezzlement, and white-collar crimes.

Concurrent Jurisdiction and Prosecutor Choice

For merchandise valued under the municipal threshold, both the city prosecutor and the district attorney have authority to prosecute the offense. Colorado Springs Municipal Court’s jurisdictional limit is $2,000.

Example: Tina shoplifts a total of items valued at $2,500 from Target inside Colorado Springs City Limits.

• Question: Where will this be filed? Municipal, County, or District Court?
• Answer: Must be filed as theft in District Court as the amount puts the charge into Class 6 felony range.

In practice, most low-value retail theft cases start in municipal court. Prosecutors view municipal court as appropriate for first-time offenders and minor cases. State court resources are reserved for serious crimes, repeat offenders, and cases requiring felony sanctions.

All Shoplifting is Theft, But Not All Theft is Shoplifting

The best way to think about it: shoplifting is a subset of theft. Every shoplifting case involves the elements of theft. But theft encompasses vastly more conduct than just shoplifting.

Theft includes pickpocketing, burglary, embezzlement, fraud, and countless other ways to wrongfully take property. Shoplifting is the narrow category of theft that happens in retail stores. All shoplifting is theft, but not all theft is shoplifting.

Practical Implications for Defendants

Understanding whether you face municipal shoplifting or state theft charges matters enormously. Municipal court offers more lenient maximum penalties and better access to diversion programs. State court means facing potentially severe felony penalties and mandatory prison sentences.

The charge also affects your defense strategy. Municipal cases often focus on negotiating diversion or reduced charges. It could be a court trial or a jury trial with fewer than 6 jurors in the Colorado Springs City Court. State felony cases require more aggressive defense tactics.

County Court, you will have 6 jurors. In District Court there will be 12. You can still choose to have a Court trial where the Judge decides your case.

The specific statute cited in your charging documents tells you which system you’re in. Municipal ordinance numbers like “9.6.401” indicate city charges. “C.R.S. 18-4-401” indicates state charges.

Conclusion

Shoplifting and theft overlap but aren’t identical. Shoplifting is municipal prosecution for retail theft under $2,000. Theft is the comprehensive state crime covering all forms of wrongful taking, from petty offenses to major felonies.

Where you’re prosecuted determines your penalties, your options, and your approach to defense. All shoplifting is theft, but the reverse isn’t true.

If you’ve been charged with theft or shoplifting, give us a call. We defend all types of theft cases (including “white collar “crimes) at all Courts in Colorado Springs.

For any legal inquiries or consultations, contact McDowell Law Firm today.

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What Will Show Up on My Background Check?

Whether you’re applying for a new job, renting an apartment, or seeking professional licensure, the prospect of a background check can raise questions and concerns.

What exactly will show up when someone runs a check on you? Understanding what information appears on background checks, and what doesn’t can help you prepare for these screenings and address any concerns proactively.

Background checks have become standard practice across many industries and situations. While they serve important purposes for employers and organizations, they can also feel invasive and stressful for the people being screened. The good news is that background checks follow specific rules and limitations, and knowing what to expect can help ease your concerns.

What Appears on Criminal Background Checks

• Criminal background checks are among the most common types of screenings, and they typically reveal a variety of information about your interactions with the criminal justice system.
• Most background checks will show both felony and misdemeanor convictions, along with details about the charges, disposition, and sentencing.
• Background checks typically include arrest records with dates and charges, court records showing the entire case history, any active warrants, conviction details with sentencing information, and records of time served in correctional facilities.
• When a background check company searches criminal records, they’re pulling information from various sources. County-level searches are considered the most accurate because most criminal prosecutions occur in municipal or county courts. More comprehensive checks may also search state databases and federal court records.
• It’s important to understand that even arrests that didn’t lead to convictions can appear on background checks. This often surprises people who assumed that being found not guilty or having charges dropped would erase the incident from their record entirely. The reality is more nuanced.

Related: Will a DUI Show Up on My Background Check?

Commercial Background Checks vs. NCIC

A common misconception is that employers and landlords have access to the FBI’s National Crime Information Center database. In reality, commercial background checks and law enforcement databases operate very differently.

The NCIC is maintained by the FBI and contains comprehensive information on criminal records, wanted persons, fugitives with active warrants, missing persons, and stolen property. However, access to the NCIC is strictly restricted to law enforcement agencies, certain government entities, and organizations specifically authorized by law. Commercial background check companies and private employers cannot search the NCIC database.

Instead, commercial background check providers compile their own databases by gathering information from various public sources. These sources include county court records, state criminal repositories, sex offender registries, federal court records, and other publicly available information.

Each background check company maintains its own database, which means two different companies might have access to different information depending on which sources they’ve compiled.

This is why there’s no truly comprehensive national criminal database available to private employers. The information in commercial databases depends entirely on which records the company has purchased and compiled. Some commercial databases are more thorough than others, but none have the complete access that law enforcement agencies have through the NCIC.

For most employment and housing screenings, commercial background checks rely heavily on county-level court searches combined with multi-jurisdictional database searches.

While these searches are generally thorough, they may not capture every criminal record, especially recent arrests that haven’t yet been entered into public databases or records from jurisdictions the company hasn’t compiled into their system.

Dismissed and Pending Charges

One of the most common questions people have is whether dismissed charges will appear on their background check. Unfortunately, the answer is often yes. Dismissed charges typically appear on most background checks because they represent formal criminal indictments, even though they didn’t lead to convictions.

When charges are dismissed, it means the prosecution or court decided not to pursue the case further. This could happen for many reasons, including lack of evidence, procedural errors, or successful completion of diversion programs. While individuals are not legally guilty when charges are dismissed, the arrest and court proceedings still create a record.

Pending charges also appear on background checks in most cases. If you’re currently facing criminal charges that haven’t been resolved, those charges will likely show up along with their current status.

This can create challenges for job seekers or others undergoing screening. Even though the presumption of innocence remains in court, employers may not feel the same or consider you too big a risk.

The critical distinction is that dismissed charges should show as dismissed rather than as convictions. A reputable background check will clearly indicate the disposition of each charge.

However, it can take time for court systems and law enforcement agencies to update their records after charges are dismissed, which means recent dismissals might not immediately reflect the updated status.

The Difference Between Juvenile and Adult Records

One of the most significant distinctions in criminal background checks involves records from when you were a minor. Juvenile records are treated very differently from adult criminal records, reflecting the belief that young people deserve opportunities for rehabilitation without lifelong consequences.

Criminal background checks usually don’t report juvenile offenses, as juvenile records are typically sealed from public disclosure.

In many jurisdictions, juvenile records can be sealed or expunged when the individual turns eighteen, and in some places this happens automatically. In Colorado, we use the term “expunged” for juvenile cases.

When juvenile records are sealed, they don’t appear on standard background checks, so employers cannot see them. This protection allows individuals to move forward from mistakes made as minors without those incidents affecting their adult opportunities.

However, juvenile record confidentiality isn’t absolute. Certain positions working with children, seniors, vulnerable populations, or requiring high security clearances may allow access to juvenile records through specialized background checks.

Level 2 background screenings, used for positions involving vulnerable populations, can reveal records that have been sealed by courts, including certain juvenile convictions.

The treatment of juvenile records varies significantly by state. Some states feature automatic expungement filing for juvenile offenders, while others require individuals to submit applications independently. The severity of the juvenile offense also matters, as more serious juvenile offenses are more likely to remain on records for longer periods.

Once a juvenile record is expunged, it will be completely sealed and will not be visible on background checks. Former juvenile offenders with expunged records can legally state on applications that they’ve never been arrested or adjudicated delinquent for those offenses.

What Won’t Show Up: Sealed and Expunged Records

Perhaps the most important thing to understand about background checks is that sealed and expunged records should not appear. Criminal convictions that have been expunged or sealed should never show up on background checks.

Expungement and sealing are legal processes that remove or restrict access to criminal records. When a record is expunged, it’s essentially erased from existence for most purposes. When a record is sealed, it still exists but is hidden from public view and most background check companies.

If you’ve successfully petitioned the court to expunge or seal records, those cases should not appear on standard employment background checks.

However, even after sealing, certain government agencies and courts can access sealed records for specific purposes, though they shouldn’t show up on typical background checks.

If you are applying to certain high-level government positions, there is a chance that even a sealed offense/record could appear.

If you are applying for a job that you expect will have a more extensive background check, be prepared to discuss the charge.

If it is sealed, that means it was likely dismissed, so you could discuss how and why the case was dismissed and sealed.

Were you wrongfully accused? Did the prosecutor drop the charges after additional investigation?

The key is ensuring that the expungement or sealing process was completed properly and that all relevant agencies have updated their records. If sealed or expunged records do appear on a background check, it may indicate an error that needs to be corrected.

Time Limitations on Reporting

Background checks don’t extend infinitely into the past. Federal and state laws impose limitations on how far back certain information can be reported.

In several states, including California, Kansas, Massachusetts, Maryland, Montana, New Hampshire, New York, and Washington, it’s illegal for background check companies to report convictions that are more than seven years old. This “seven-year rule” provides some relief for individuals with older convictions who have moved on with their lives.

The Fair Credit Reporting Act establishes federal guidelines as well. Under federal law, arrests that didn’t lead to convictions are generally reportable for up to seven years, while convictions can often be reported indefinitely unless state law provides otherwise. Under the FCRA, civil judgments and lawsuits can also be reported, but they are bound by the seven-year rule as well.

These time limitations don’t apply universally to all positions. Certain regulated industries or positions with higher security requirements may have access to more comprehensive background information regardless of age.

Beyond Criminal History

While criminal records are usually the number one concern about background checks, these screenings often include other types of information as well. Background checks may include employment and education verification, driving records, professional license verification, and even credit reports for certain positions.

Employment verification confirms your work history, including job titles, dates of employment, and sometimes salary information.

Education verification checks the degrees and credentials you’ve claimed. For positions involving driving, motor vehicle records will show your driving history, including tickets and license suspensions. For example, CDL drivers, taxi drivers, and chauffeurs can expect that their DMV records will be pulled by prospective employers.

For positions in financial services or other roles handling money, credit checks may be part of the background screening process. These checks reveal your credit history, outstanding debts, and financial responsibility patterns. This is also true for many government positions and jobs that require high trust.

Preparing for Background Checks

I understand that applying for a job is a high-stress situation. But being worried about your history and what might show up can be nerve-racking. Understanding what will appear on your background check allows you to prepare appropriately.

If you know you have a criminal record, it might be a good idea to run your own background check before potential employers do. This gives you a chance to see exactly what shows up and address any inaccuracies.

If dismissed charges or old arrests appear on your record, you may be able to take legal action to have them sealed or expunged. Consulting with a criminal defense attorney can help you understand your options for cleaning up your record. I handle sealings and expungements on cases that weren’t automatically sealed by the court. Under new Colorado laws, it is much easier to seal a case. Additionally, more cases are eligible for sealing.

When filling out job applications or other forms, answer honestly and accurately. If a question asks about convictions and your charges were dismissed, you typically don’t need to disclose them, but read the question carefully, as some applications ask about arrests or charges regardless of disposition. When in doubt, discuss with a criminal defense attorney near you regarding what should be disclosed in your situation.

Remember: Most of all, be prepared to discuss anything that appears on your background check. Having a clear, honest explanation ready, especially one that emphasizes what you’ve learned and how you’ve moved forward, can make a significant difference in how potential employers view your history.

The post What Will Show Up on My Background Check? first appeared on McDowell Law Firm.

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When Did DUI Become Illegal? The Surprising History of Drunk Driving Laws in America

Here’s a question I get asked more often than you’d think: “When did DUI actually become illegal?”

The answer surprises most people. Drunk driving has been illegal in parts of America since 1906, long before breathalyzers existed, before BAC testing was possible, even before most Americans owned cars. But those early laws looked nothing like the complex DUI system we have today.

I have handled thousands of drunk driving cases, both as a prosecutor and as a DUI defense lawyer. I find the evolution of drunk driving laws fascinating. Understanding this history isn’t just interesting trivia. It explains why modern DUI cases are so technical, why defense strategies focus on scientific evidence and procedures, and why a DUI arrest triggers two separate proceedings (criminal court and DMV).

Let’s cover how we got from vague prohibitions on “intoxicated driving” to today’s science-driven, procedure-heavy DUI enforcement system. This history directly impacts how I defend cases today.

Before “DUI,” There Were Drunk Driving Arrests

The drunk driving problem emerged as soon as cars became common. One of the earliest documented drunk driving arrests happened in London in 1897, when police arrested a taxi driver for operating his vehicle while intoxicated.

But in the United States, “DUI” as a defined legal category developed gradually, tied to state motor vehicle codes and eventually federal highway funding incentives. Early lawmakers recognized the danger immediately, even when cars were rare and expensive.

The First U.S. Drunk Driving Laws Were Vague But Important

Early American drunk driving laws bore little resemblance to modern DUI statutes. They typically banned driving “while intoxicated,” without any numeric BAC standard. Testing didn’t exist yet, so prosecutors had to rely entirely on observations.

Two landmark dates in U.S. DUI history

• 1906: New Jersey became one of the first states to specifically criminalize driving an automobile while intoxicated. Keep in mind, this was before most Americans had ever seen a car, let alone owned one.
• 1910: New York enacted one of the earliest comprehensive statutory prohibitions on operating a motor vehicle while intoxicated. Legal scholarship widely cites this as a pivotal early drunk driving law.

Here’s some context for how rare cars were back then:

• 1906: Cars weren’t common on U.S. roads, but lawmakers already understood the danger drunk drivers posed
• 1908: Henry Ford introduced the Model T
• 1910: Mass production of automobiles began
• 1914: The Model T’s price dropped to $490, making cars accessible to working families
• 1920: Over 8 million registered cars in the United States
• 1930: Over 23 million cars on American roads

Think about that. New Jersey passed its drunk driving law when hardly anyone owned a car. That’s how serious lawmakers took the threat.

How Early DUI Cases Were Prosecuted

If you were prosecuted for drunk driving in the early 1900s, the case turned entirely on testimony. Officers described your driving behavior, physical appearance, odor, and speech patterns. Courts had no standardized roadside tests. Prosecutors had no breath machines. No blood tests. No scientific measurements whatsoever.

Defense strategy focused on credibility, alternative explanations, and the complete lack of objective measurement. Sound familiar? Those same strategies still work today when chemical test evidence is weak or missing.

That dynamic changed once medicine and public safety organizations began pushing for measurable standards.

Science Enters the Law: BAC Thresholds Begin to Form

A major turning point came in 1938 when the American Medical Association partnered with the National Safety Council to establish chemical standards for interpreting “under the influence.” They recommended a limit of 0.15% BAC.

Let that sink in. That’s three times the current legal limit for a DWAI in Colorado (0.05%), and nearly double today’s DUI limit (0.08%).

Why This Mattered

This wasn’t yet a nationwide “legal limit,” but it provided a blueprint for future DUI laws. It gave lawmakers and courts a way to connect alcohol concentration to legal definitions of impairment. More importantly, it created the intellectual foundation for “per se” DUI laws decades later, where BAC alone can satisfy an element of the offense.

The concept was revolutionary: you could be guilty of DUI based solely on a number, regardless of how you appeared or drove.

Chemical Testing Technology Transforms DUI Enforcement

Once BAC could be measured reliably, DUI law shifted from subjective judgment toward instrument-based evidence. This fundamentally changed how cases were prosecuted and defended.

Key developments included

• Blood testing for BAC became available in the 1930s
• The Breathalyzer was invented in 1954
• Breath alcohol devices were widely adopted in traffic enforcement by the mid-20th century
• Laboratory blood testing grew as an evidentiary tool

For DUI defense attorneys, this created what I call the “DUI evidence stack”:

• Observations and driving pattern
• Field sobriety testing
• Breath or blood chemical results
• Chain of custody and instrument reliability issues

When breath and blood testing instruments became common, DUI defense work increasingly required technical fluency in instrumentation and testing procedures. That remains absolutely true today. If your lawyer doesn’t understand the science behind these tests, they can’t effectively challenge the results.

Express Consent Laws Reshape the Refusal Landscape

States also built legal tools to obtain chemical evidence, including implied or express consent laws. These frameworks allow license consequences for refusing a lawful chemical test request.

Colorado uses “Express Consent,” meaning that by driving on Colorado roads, you’ve already expressly consented to provide a sample of your breath or blood for chemical testing if lawfully arrested for DUI.

Why Express Consent Changed Everything

Express consent accomplished two things simultaneously:

• It encouraged compliance with chemical testing
• It created a second legal track of consequences, separate from the criminal DUI charge, through administrative license actions

This dual-track system still shapes case strategy today. A drunk driving arrest triggers both criminal court exposure and DMV consequences on different timelines, with different standards and hearing rules.

Through the DMV process: You can lose your license for refusing a chemical test or for driving with a BAC over 0.08%.

In criminal court: You face legal penalties for drunk driving, including up to a year in jail for a first offense in Colorado. A DUI conviction can also revoke your license.

Understanding both tracks is essential for proper DUI defense. Many attorneys miss opportunities at the DMV hearing that could have preserved their client’s driving privileges.

The Federal Government Accelerates Uniformity

DUI is a state crime (unless committed on federal property), but federal action heavily influenced state DUI policy through funding, standards, and highway safety priorities.

A major catalyst was the 1966 Highway Safety Act, which confronted alcohol-impaired driving as a national traffic safety priority. An interesting pattern emerged:

• States create their own criminal law
• Federal policy pushes national consistency by tying certain safety requirements to highway funding

Translation: Although states make their own DUI laws, if they want federal highway funds, they need to fall in line with federal guidelines. It’s a carrot-and-stick approach that’s been remarkably effective at creating nationwide standards.

From “Intoxicated” to “Per Se”: How BAC Limits Became Central

Modern DUI law typically includes multiple offense types:

• Impairment DUI: The government proves your ability to drive was impaired by alcohol or drugs to the slightest degree
• Per Se DUI: The government proves your BAC was at or above a statutory level (usually 0.08%) within a defined timeframe
• DUI: A driver is substantially incapable of operating a vehicle
  

The per se model spread as states adopted numeric BAC limits, then lowered them over time. The progression typically went from 0.15% to 0.10% to eventually 0.08%.

The Move to 0.08 as the National Norm

The critical legal moment came in 2000 and 2001, when Congress used funding sanctions to accelerate adoption of 0.08% BAC laws. President Clinton’s Transportation Appropriations Bill required states to lower their DUI limits to 0.08% or face denial of federal highway funding.

Every state eventually adopted this standard. By 2004, all 50 states had set their per se BAC limit at 0.08%.

Does the Legal Limit Actually Matter?

I’ll be honest with you. There’s debate about whether lowering legal limits actually saves lives or just creates more prosecutions. Mark Twain famously said there are “lies, damned lies, and statistics.”

Legal limits probably don’t matter much to someone who chooses to drink and drive after consuming 10 beers. They’re not considering whether they’re at 0.04% or 0.079% when they get behind the wheel.

That said, lower limits may have a deterrent effect on repeat offenders or encourage some people to drink in moderation. Hopefully, this saves lives.

What I know from my DUI defense practice: drivers with higher BACs are definitively more dangerous to themselves and others. It’s common to see high BAC results in serious accident cases. Intoxicated driving at any level is a serious safety hazard.

What This Means for DUI Defense

Independent of the legal limit, defense strategy focuses on creating reasonable doubt through other aspects of the case. The fight in a BAC case typically centers on:

• The legality of the stop and detention
• The legality of the arrest
• Chemical test foundation, calibration, maintenance, and operator compliance
• Blood draw procedures, preservatives, contamination risk, and lab methodology
• Rising BAC defenses and time of driving issues
• Medical explanations and measurement uncertainty

This is why “best DUI lawyer” or “DUI attorney near me” searches lead people to attorneys who focus their practice on drunk driving defense. Good DUI attorneys can argue both constitutional issues and forensic details.

The Modern DUI Era: Data, Deterrence, and Technology

DUI law kept expanding beyond BAC limits. Policy now targets enforcement certainty and prevention tools, including ignition interlock devices, high-visibility enforcement campaigns, and administrative sanctions.

Drunk driving remains a major factor in traffic fatalities. NHTSA reports that approximately 30% of U.S. traffic crash fatalities involve drunk drivers with BACs of 0.08% or higher. In 2023 alone, 12,429 people were killed in drunk driving crashes.

State legislatures didn’t stop at making DUI illegal. They instituted systems to educate and deter drunk driving behavior. In Colorado, a DUI or DWAI conviction requires:

• Alcohol education and therapy as required by an alcohol evaluator
• Community service
• Probation
• Fines
• Possible jail time (mandatory for prior convictions or BAC over 0.20%)

So When Did DUI Actually Become Illegal?

Here’s the complete timeline:

• Early 1900s: Drunk driving became illegal in parts of the United States through state statutes prohibiting driving while intoxicated, with New Jersey (1906) and New York (1910) as early examples.
• Late 1930s: DUI became “modern DUI” once chemical standards and BAC concepts entered the legal system, especially after national organizations promoted measurable thresholds.
• 1954: The Breathalyzer was invented, revolutionizing enforcement.
• 2000-2004: DUI became nationally standardized at 0.08% after federal funding sanctions drove state adoption, with universal 0.08% state limits by 2004.

That’s the real evolution: from a vague prohibition on “intoxicated driving” to a science-driven, procedure-heavy system built around chemical proof.

Colorado DUI Law: A State-Specific History

Since I practice in Colorado, let me give you our state’s specific timeline:

• Early 1900s: Colorado criminalized impaired driving shortly after cars appeared on Colorado roads, following national trends.
• 1982: Major DUI statute rewrite. Colorado enacted comprehensive reforms that revised and strengthened DUI/DWAI laws, requiring better records, new penalties, and alcohol abstinence conditions for repeat offenders.\
• 1990s-2000s: Colorado aligned with national BAC standards, adopting 0.08% per se DUI laws. Modern Colorado law (C.R.S. § 42-4-1301) also includes a 0.05% presumptive limit for impaired driving (DWAI).
• 2013: Colorado passed House Bill 2013-1325, amending DUI statutes including definitions and penalties.
• 2015: Fourth DUI became a felony. Colorado lawmakers changed the law so a fourth DUI conviction automatically becomes a class 4 felony, significantly increasing penalties for repeat offenders.
• 2019: Tandem DUI per se law added. Colorado created a new offense for driving with both alcohol and measurable drugs in your system.

What Is Tandem DUI?

Tandem DUI applies when a driver is suspected of using alcohol and one or more drugs “in tandem.” The slang term “cross-faded” (drunk and high simultaneously) perfectly describes when someone might face a tandem DUI charge.

The legal definition requires:

• Evidence based on demeanor, behavior, and observable impairment that the driver consumed alcohol or drugs (or both)
• The driver was substantially incapable mentally or physically to exercise clear judgment or safe operation
• Any measurable amount of a drug or controlled substance (other than alcohol) in blood or oral fluid at the time of driving or within four hours after

How Does DUI History Inform Defense Today?

Understanding this legal evolution directly impacts how I defend DUI cases:

• Scientific evidence, not just officer opinion: Modern cases require challenging the science, not just the observations.
  Administrative license rules, not just the criminal case: You must fight on both fronts to protect your client’s driving privileges.
• Statutory technicalities: Observation periods, admissibility foundations, and test timing rules all stem from this historical development.
• Constitutional limits: Protections against unreasonable stops, searches, and compelled testing remain your strongest defenses.

What Good DUI Representation Requires

Your lawyer should be able to do three things clearly:

• Explain the legal theory: Impairment DUI vs. per se DUI, and why it matters in your case
• Attack the process: Challenge the stop, arrest, test request, testing method, and documentation
• Interpret the science: Understand breath and blood measurement limits, lab practices, and alternative explanations

This is why experience matters in DUI defense. The law has evolved over more than a century, creating layers of complexity that require specialized knowledge to navigate effectively.

If You Have been Charged with a DUI

DUI laws started simple and became increasingly complex as science, technology, and policy evolved. What began as a basic prohibition on intoxicated driving transformed into a sophisticated system involving chemical testing, administrative hearings, federal funding mandates, and felony enhancements.

This complexity creates opportunities for defense. Every layer of procedure, every scientific test, every administrative requirement represents a potential weakness in the prosecution’s case if not followed correctly.

If you’re facing DUI charges in Colorado Springs, you need an attorney who understands not just current DUI law, but how we got here and why these procedures exist. That knowledge is the foundation of effective defense strategy.

Contact The McDowell Law Firm today for a free consultation. We’ll evaluate your case and explain exactly how the law applies to your situation. Remember, being charged with DUI doesn’t mean you’re guilty. Make the State prove their case according to the rules that a century of legal evolution created to protect you.

The post When Did DUI Become Illegal? The Surprising History of Drunk Driving Laws in America first appeared on McDowell Law Firm.

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Lima’s Museum of Gold (and Arms of the World)

My favorite museum in Peru is Lima’s Museum of Gold and Arms of the World. Maybe it’s an odd combination. Upstairs: guns, knives, armor. Downstairs: ancient precious artifacts covering thousands of years of Peruvian History.

The main floor is absolutely packed, floor to ceiling, with samurai swords and armor, WWII memorabilia, elephant guns, ceremonial knives, you name it. It would take hours to appreciate the breadth of the collection.

Heading downstairs, behind a three-foot-thick bank vault, is what I came to see.

On one side of the display cases sat preserved human heads from 1,500+ years ago. Some had ropes running through holes in the top of the skulls, to be used as trophies to “record the valor” of Nazca warriors. Other skulls showed evidence of trepanation, what the Museum signage describes as ancient “surgical procedures.” There is some debate on the purpose of trepanation in ancient cultures, but evidence suggests many patients(?) survived the procedure, as there are signs of healing around the wounds.

Other skulls had ornate headdresses made of feathers, gold foil and turquoise. These weren’t casualties of war displayed as trophies. The remains were clearly cared for and were likely those of revered members of their people. The juxtaposition was striking. Violence and reverence, all in one display.

Nazca Feather Headdresses

The Museum also displayed hundreds of delicate gold and precious metal ornaments. Thin sheets of hammered gold, bracelets with intricate designs, small discs that once adorned burial shrouds. The Nazca people left us no written records. Everything we know about them comes from what they left behind: lines in the desert, their pottery, textiles, and artifacts of life and death.

What Are Trophy Heads and Why Did the Nazca Take Them?

The Nazca practiced ritual decapitation regularly. A practice that lasted centuries. Archaeological research shows they prepared these severed heads in a very specific way:

• They drilled a hole in the forehead and threaded a carrying rope through it
• They broke open the base of the skull to extract the brain
• They pinned the mouth (and sometimes the eyes) shut with cactus spines

Why go to all this trouble? The heads weren’t just battle souvenirs. They served powerful religious functions.

The Spiritual Power of Severed Heads

Much of this is historical speculation, but I will briefly cover a few common theories below.
Trophy heads appear constantly on their pottery and textiles, usually in the hands of mythical beings or shamans performing ceremonies. Early Nazca pottery even shows the “Sprouting Head” motif where plants grow from severed heads. It has been implied that these offerings were connected to fertility and agricultural renewal.

By sewing the mouth shut, it is believed that they were trapping the spirit of the victim, preventing it from escaping to seek revenge. I have seen these cactus spines used even in the bodies of the Nazca tridactyl mummies.

The ropes served as handles

Who Were the Victims?

Some of the heads turned out to belong to the Nazca’s own people, not foreign enemies.

This suggests to me one of two things: ritual sacrifice or infighting. During times of severe drought or crisis, the Nazca might have ritually sacrificed members of their own group. It could also be the result of neighboring communities fighting over limited resources. Historians believe that changing weather conditions, lack of water, deforestation, and over-cultivation led to the desertification of the Nazca’s home, and their ultimate demise.

Trophy Head Practices

The meaning and use of trophy heads changed over time. Early Nazca society seems to have used them primarily for agricultural rituals. But as centuries passed, the practice took on additional meanings.

Later Nazca art and burials show a shift toward militarism. Trophy heads became status symbols that marked a warrior’s prestige. Successful headhunters were celebrated, their gruesome trophies displayed to enhance their social rank. This is a point I often make: in a culture without a written history, we rely on the physical remains of their culture, and particularly their art, to tell us their story.

Trepanation: Were the Nazca Really Performing Brain Surgery?

The museum’s collection often includes skulls that bear telltale round or square holes of cranial trepanation, an ancient form of skull surgery.  The Nazca healers actually demonstrated advanced skill at drilling or cutting into the skull. We know that, because many of their patients lived through the operation. (Many skulls show signs of healed bone growth around the trepanation holes.) The delicate nature of this procedure without anesthesia, antiseptics, antibiotics etc. is remarkable.  The Nazca, like the Paracas culture before them, likely used simple tools like obsidian blades or drills made of hollow reeds.

The guy on the right has been through some things.

Why were the Nazca Performing Skull Surgery?

Probably to relieve pressure from head wounds. Nazca warriors engaged in frequent combat (as evidenced by all those trophy heads and warfare scenes on pottery). Leading to skull fractures or hematomas from slings and clubs. By carefully removing a section of bone, a Nazca healer could relieve the buildup of pressure on the brain.

Fun fact: Among hundreds of trepanned crania in museum collections, a majority have the hole on the left side of the head.
Why: They were probably getting clubbed on the head by right-handed enemies.

Golden Adornments on the Dead

The Nazca weren’t as advanced in their metalwork as other ancient cultures. The Moche to the north and later the Inca created more elaborate gold work. But the Nazca had a developed craft, and what they created was meaningful.

The Nazca worked primarily with native gold nuggets, which they could hammer directly without advanced smelting. Using stone tools and hammering techniques, they thinned gold into foils, then cut and shaped it into ornaments.

Their techniques included openwork (cut-out designs) and embossing. They created tiny hummingbird shapes, human figures, and feline designs. The gold itself most likely came from alluvial sources, rivers flowing from the Andes. Nazca territory had very few metal ores, but they could pan flakes of gold from streams or obtain gold through trade with highland groups.

Golden discs

Cahuachi was a major Nazca ceremonial center, located about a 45-minute drive west from the city of Nazca. It is believed to be a site of major spiritual significance and a location for pilgrimage for the Nazca people.  Of note, archaeologists only found small amounts of gold among offerings in Cahuachi. Absent huaquero looting of gold over centuries (always a problem), it would indicate that gold was relatively rare and reserved for the most important rituals and persons.

High-status Nazca mummies were wrapped in layers of fine textiles and adorned with metallic embellishments. (To date, I have not seen any historical examples of Nazca mummies that were prepared for burial or preserved with diatomaceous earth like the tridactyl mummies.)
These gold foils and sequins were sewn onto clothes or burial bundles. Many of the tridactyl mummies show very similar gold foil adornments on various parts of their bodies.

Larger pieces like bracelets and crowns were also part of Nazca burials. One of the bracelets, for example, is a broad cuff with tiny feline figures worked in relief across its surface. The choice of motif is likely significant. The feline was a sacred creature in ancient Peru, associated with power. Other metallic cuffs appear to have simple geometric shapes.

By burying gold with their loved ones, the Nazca perhaps hoped to illuminate their path in the underworld or curry favor with the gods.

I already counted his toes, they are all there

Common Nazca Burial Practices

When a Nazca elite died, the send-off was elaborate. Most bodies were wrapped in textile layers and prepared for burial with various items of importance.

The Burial Process

Mummification Bundles: The dead were placed in a fetal position or seated upright, then wrapped in multiple layers of textile to create a tight bundle. This bundle might be painted or adorned on the outside.

Grave Offerings: Buried alongside or within the mummy bundle were ceramic jars and bowls (often painted with Nazca deities or nature symbols) for food and drink, gourd canteens, weapons, and personal items.

Luxury Items for Elites: High-status burials included feather fans or plumes, shell beads, and metal ornaments. Gold nose ornaments, earrings, bracelets, pectorals (chest plates), and even silver items marked the wealthy. Headresses adorned with colorful feathers and gold were also used. (as shown on the heads at the museum.)

Ceremonial Context: Funerals and burials were likely accompanied by religious ceremonies at sites like Cahuachi. The presence of feasting remains, corn beer (chicha) vessels, and evidence of sacrifice indicates that sending off the dead was a community affair.

The Chauchilla Cemetery

Nazca cemeteries like Chauchilla (due south of Nazca) give us a window into these customs. Even today, you can see open tombs at Chauchilla with skeletons or mummies still adorned with fragments of cloth and other objects.

Unfortunately, many tombs were plundered over centuries by looters looking for gold. Because of huaquero (grave-robber) activity, it is difficult to know the condition of these sites as the Nazca left them. The museum’s holdings of Nazca gold are especially valuable because they represent pieces saved from looters and preserved for study.

The Tridactyl Bodies

The Nazca tridactyl bodies are unique in quite a few regards, but for my closing thoughts in this blog, I’ll show some photos of burial adornments. The first thing that needs to be mentioned is the lack of a known burial site for the tridactyl bodies. Because these bodies were not found by archaeologists, the site was not secured for study. In fact, there is no location that has been identified as the true location of their discovery. Obviously, it hinders any scientific/academic study of the area and the hopes of finding additional evidence about their nature, origin, and history. The bodies themselves provide the historical evidence.

The manner in which they were buried/preserved is unlike any other mummies from any other culture or period. Interestingly, the Nazca tridactyls are better preserved than most of the other bodies I’ve seen, including the ones in the museum. So, maybe there is something to this method.

Many of the tridactyl bodies do have gold foil adornments on their bodies. The golden foil discs on the headdresses, and display cases bear a striking resemblance to the golden discs found on the bodies of Montserrat and others. Other tridactyl bodies have what appear to be tumbaga (a golden alloy) and copper adornments.

The mummy “Sebastian” has a grey metal cuff around the back of his neck. The Gold Museum features many bracelets and cuffs that appear similar to Sebastian’s neck adornment. In this image, number 19 appears to be very similar in size to Sebastian’s cuff.  

Ornamental Gold Discs (Left), Tridactyl Mummies with Golden Disc Adornments in their foreheads (Right)

Bracelets/Cuff in the Museum of Gold (Left) Sebastian’s cuff (Right)

Side Note: If you visit the Museum of Gold, eat next door at Fauna. Get an order of the Focacia. In a city full of great food, it is one of my favorites.

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Harassment in Colorado: A Complete Guide to Types, Key Cases, and Defenses

Harassment Charges in Colorado

The most common form of harassment I see on a daily basis in my practice is the “strike, shove, kick” variety. This is what is often charged in physical altercations when no injuries are sustained. (Note: If there are injuries, including pain, law enforcement will typically file third-degree assault charges.)

However, harassment charges in Colorado actually cover a wide range of acts, from unwanted physical contact to online messages that cross a certain line.

These cases might seem straightforward at first, but the law around harassment is shaped by years of Colorado Supreme Court and Court of Appeals decisions. This case law protects both public safety and free speech.

If you are facing a harassment charge, it helps to understand how the law works, what the prosecution must prove, and the defenses that have succeeded in real Colorado cases.

This blog focuses on criminal harassment under Colorado law, Colorado Revised Statutes 18-9-111. We’ll cover the types of harassment, highlight important cases, and show cases where courts have limited the law to protect constitutional rights.

Finally, we’ll give some examples of defenses that have worked in appellate courts, so you can see how these cases have played out in the past.

Types of Harassment Under Colorado Law

Colorado’s harassment statute lists several “varieties” of harassment. One thing each subsection has in common, is that they all require that the act be done with the intent to harass, annoy, or alarm another person.

Here are the main categories.

1. Physical Contact

Harassment includes striking, shoving, kicking, or touching another person with the intent to harass. These cases often arise from arguments or domestic disputes.

The injury does not need to be serious, which is why harassment can be charged even when conduct falls short of assault. Remember, if there is pain or injury, it will typically be charged as third-degree assault.

Quite commonly, police will stack the charges and you’ll see harassment and assault filed on the same case.

2. Obscene Language or Gestures in Public

It is a crime to direct obscene language or an obscene gesture at someone in a public place. Obscene has a specific legal meaning. It refers to explicit sexual content, not simple profanity.

This part of the statute is narrow because courts have made clear that most rude words and gestures are protected speech.

3. Following Someone

A person commits harassment by following another person in or around a public place with intent to harass. This is a lower-level version of stalking. One incident of following can lead to a charge if the intent is proven.

4. Unwanted Phone Calls

The statute prohibits repeated telephone calls that have no legitimate purpose of conversation. Hang-up calls, repeated calls at midnight, or constant ringing designed to disrupt someone’s privacy fall into this category.

5. Electronic Harassment

Colorado added electronic harassment in 2015 under Kiana Arellano’s Law. It includes sending electronic communications that threaten injury or contain obscene sexual content.

In 2022, the Colorado Supreme Court struck down part of this law, ruling that the phrase “intended to harass” was unconstitutional when applied to online speech that was merely annoying or offensive. Threats and obscene content remain criminal. Annoying or critical messages do not.

6. Fighting Words

violent response. These are known as fighting words, a narrow category of unprotected speech. The law requires proof that the words used would provoke an immediate breach of the peace. Read more about threats vs. protected speech.

7. Penalties and Domestic Violence

Harassment charges under CRS 18-9-111 are misdemeanors. When harassment involves intimate partners, the case often receives a domestic violence tag, which triggers mandatory protection orders and other consequences.

Some harassment cases involving bias motivation or physical contact may be charged as class 1 misdemeanors with higher penalties.

Landmark Colorado Cases on Harassment and Free Speech

Harassment laws often intersect with First Amendment rights. Colorado appellate courts have repeatedly reviewed the statute and struck down sections that criminalized protected speech. These cases shape how harassment charges work today.

Bolles v. People (Colorado Supreme Court 1975)

This foundational case involved mailed anti-abortion flyers. Prosecutors charged Bolles under the section that punished communications sent in a manner likely to harass or alarm.

The court struck the statute down as overbroad because it criminalized too much protected speech. The ruling forced the legislature to rewrite the law and remains one of the most important free speech decisions in Colorado harassment jurisprudence.

People v. Weeks (Colorado Supreme Court 1979)

Weeks made a series of sexually explicit phone calls to a woman’s home. He argued that the harassment statute’s obscenity provision was unconstitutional.

The Colorado Supreme Court rejected the challenge because his speech was legally obscene. The ruling confirmed that obscene or threatening calls fall outside First Amendment protection and can be prosecuted.

People v. Smith (Colorado Supreme Court 1993)

Smith challenged a subsection that criminalized repeated communications at inconvenient hours or in offensively coarse language.

The court agreed that the statute was vague and overbroad because it swept in protected speech. After this decision, the legislature narrowed the law so that it now applies only to fighting words or true intrusions into privacy.

Fun fact: this case was appealed by my first chief at the 4th Judicial DA’s office (I was still in high school at the time this case was argued).

People v. Moreno (Colorado Supreme Court 2022)

Moreno sent repeated vulgar emails and Facebook messages to his ex-wife. He was charged under Colorado’s electronic harassment law.

The Colorado Supreme Court ruled that part of the law was unconstitutional because it allowed prosecution of online speech intended to annoy or harass, even when the speech was not threatening or obscene.

The court removed the phrase “harass or” from the statute. Today, electronic harassment in Colorado requires threats or obscene content, not merely unpleasant messages.

Counterman v. Colorado (United States Supreme Court 2023)

This case involved Colorado’s stalking statute rather than harassment, but it directly affects how courts analyze threats. The Supreme Court held that prosecutors must show a defendant acted at least recklessly regarding whether their statements would be perceived as threats.

Although Colorado’s harassment law already requires intent for threat-based subsections, this decision reinforces that courts must take a close look at a speaker’s mental state when evaluating threatening speech.

Defenses That Have Succeeded in Harassment Cases

The best defense in harassment cases involving speech is typically the First Amendment. In physical cases, the defenses are a little different.

Many defenses that appear frequently in harassment cases come directly from appellate decisions. Here are a few of the most common and effective defenses.

1. Protected Speech

If a harassment charge is based on words, gestures, posts, or messages, the first question is whether the speech is protected. Courts have repeatedly held that offensive, vulgar, or upsetting language is not enough for a conviction unless it contains threats, legal obscenity, or fighting words.

Many harassment charges are dismissed once the content of the speech is reviewed. True threats and fighting words matter. Many things fall under the protected speech blanket of the First Amendment.

The First Amendment is very broad and protects many types of speech. In recent years, some countries have taken the approach of criminalizing speech (including online comments) that they find disagreeable or offensive.

In my opinion, one of the things that makes our country great is the broad protections provided by the First Amendment to allow for discourse, and even unpopular opinions, to be shared without fear of prosecution.

2. No Intent to Harass

The prosecution must prove that you acted with the purpose of harassing, annoying, or alarming the other person. If you had a legitimate purpose, such as trying to resolve a dispute, co-parent, request payment, or address an emergency, intent may not be present. Intent is the keyword here.

Were you trying to harass, annoy, alarm or intimidate the other person?

3. Legitimate Reason for the Communication

Repeated communications that serve a reasonable purpose, even if unwelcome, do not qualify as harassment. Courts have recognized that people sometimes must send messages that the recipient does not enjoy, but that still serve a lawful purpose.

Where do multiple calls cross the line? In many situations, that could be a question for a jury to decide.

4. Insufficient Evidence of Who Committed the Acts

This is the oldest defense in the book. The classic “it wasn’t me” defense as immortalized by the artist Shaggy in the song with the same title. (“But she caught me on the counter…It wasn’t me”).

In cases involving anonymous calls, unknown senders, or unclear identity, the defense may argue that the prosecution cannot prove the defendant was the person responsible. This defense is especially common in online cases. This is one of the most common defenses in criminal cases.

The “it wasn’t me” defense, or “you got the wrong guy” defense are quite common, and can be very effective without computer forensic evidence, like an IP address tying a person to the case.

5. Words Were Not Threats or Fighting Words

Threat-based harassment requires a true threat. Coarse-language harassment requires fighting words or obscene language (referring to actual sex acts, not just saying curse words).

If the alleged conduct does not meet these narrow definitions, the charge shouldn’t stick. I wrote a blog recently about fighting words and the Counterman case.

6. Self-Defense in Physical Harassment

If a harassment allegation stems from touching or pushing someone, you may assert self-defense or defense of others. Some judges have found that self-defense is not a defense to harassment, as the intent doesn’t line up with the allegations. Harassment requires intent to harass, not intent to protect yourself.

So this defense can get a little tricky because if you are defending yourself, of course the mental state (mens rea) of harassing would not be present.

Harassment in Colorado: What This Means for Anyone Facing Harassment Charges

Harassment cases are quite common in Colorado, but they’re also serious. They can be a stain on your record and send you to jail. Especially when cases involve domestic relationships or conduct that affects someone’s safety, courts have placed strong boundaries around what the government can criminalize.

Many harassment allegations fall in the gray area between free speech and abusive criminal behavior. That is why context, intent, and the content of any communication matter.

There is a reason that the Founding Fathers put freedom of speech in the very first amendment. The 1st Amendment’s protections are very strong, but certain words can cross the line into criminal behavior, like fighting words.

If you are dealing with a harassment investigation or charge, the specific facts will determine the strength of both the prosecution’s case and your defense. If you’re looking for a Colorado Springs attorney who handles harassment cases, give us a call to discuss your case.

Did your conduct meet the narrow legal definitions created by statute and shaped by the appellate courts, or was it protected by the First Amendment?

Section 18-9-111 Harassment

Kiana Arellano’s Law

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:

(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or

(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or

(c) Follows a person in or about a public place; or

(d) Repealed.

(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or

(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or

(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another’s home or private residence or other private property; or

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.

(2) Intentionally left blank —Ed.

(a) A person who violates subsection (1)(a) or (1)(c) of this section or violates any provision of subsection (1) of this section with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121 (5)(a); or sexual orientation, as defined in section 18-9-121 (5)(b), commits a class 1 misdemeanor.

(b) A person who violates subsection (1)(e), (1)(f), (1)(g), or (1)(h) of this section commits a class 2 misdemeanor.

(c) A person who violates subsection (1)(b) of this section commits a petty offense.

(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.

(4) to (6) Repealed.

(7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano’s Law”.

(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.

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What Is Considered Domestic Violence in Colorado?

Domestic violence charges are incredibly serious. They can be career ruiners, relationship enders, and carry many unforeseen side effects (loss of gun rights, restraining orders. What does it mean to be charged with domestic violence in Colorado Springs? Maybe you’re confused about what actually “counts” as domestic violence under Colorado law.

Many people misunderstand Colorado’s domestic violence laws. Domestic violence isn’t a crime by itself. It’s a sentence enhancer added to other crimes when they occur between people in an intimate relationship. Understanding who qualifies as an intimate partner and what conduct triggers DV charges is critical to your defense.

Here’s what you need to know about domestic violence charges in Colorado.

What is Domestic Violence?

This surprises most people. You cannot be charged with “domestic violence” alone. Colorado law defines domestic violence as an act or threatened act of violence against a person with whom the defendant is or has been involved in an intimate relationship.

The key is the relationship, not the conduct. The same act might be simple assault between strangers but assault with a domestic violence sentence enhancer between intimate partners.

Who Qualifies as an Intimate Relationship Under Colorado Law

Colorado law defines intimate relationship very specifically. Not all family members or household members qualify. Here is the pertinent Colorado Stature, CRS 18-6-800.3:

(1) “Domestic violence” means 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.

(2) “Intimate relationship” means 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.

Intimate Relationships Include

• Current or former spouses
• Current or former dating partners
• People who have a child together (even if never married or dated)

The relationship must be or have been romantic or sexual in nature.

NOT Considered Intimate Relationships

• Parent and child
• Siblings
• Roommates without romantic involvement
• Extended family members (cousins, aunts, uncles)
• Housemates who are just friends

The People v. Disher Case: Defining Intimate Relationships

In 2010, the Colorado Supreme Court addressed what constitutes an intimate relationship in People v. Disher, 224 P.3d 254 (Colo. 2010). This landmark case clarified that sexual relationships are not required for domestic violence charges.

The Facts of Disher

James Disher was convicted of harassing a woman he had dated. The victim testified they had “dated exclusively” for a time. However, there was no testimony about a sexual relationship.

The county court refused to order domestic violence treatment because no sexual relationship was proven.

The Supreme Court’s Ruling

The Colorado Supreme Court reversed, holding that “evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship.” The court emphasized that “intimate” is not synonymous with “sexual.” Intimacy is a broader concept that includes but is not limited to sexual intimacy.

What This Means for Your Case

After Disher, prosecutors don’t need to prove you had sex with the alleged victim. Evidence that you dated, even without sexual activity, can establish an intimate relationship. The court looks at factors including:

• Nature or type of relationship
• Length of time the relationship existed
• Frequency of interaction between parties
• Whether the relationship was romantic in nature

Why This Matters for Defense

Disher expanded what qualifies as an intimate relationship. However, it also means defense attorneys can challenge whether brief or ambiguous relationships qualify.

If you went on one or two dates with no romantic connection, your domestic violence attorney can argue no intimate relationship existed under Disher’s factors.

The “Dating Partner” Definition

Dating partner causes the most confusion. Colorado law doesn’t require a long relationship or cohabitation, it refers to an intimate relationship.

What Courts Can Consider

• Nature of the relationship (romantic vs. friendship)
• Frequency of interaction
• Duration of the relationship
• Type of interaction (dates, intimate contact)

Courts look at the totality of circumstances. Even short romantic relationships can qualify. One date might not qualify, but several dates with romantic intent could certainly be charged as DV.

Situations that could be argued were not intimate

• Casual dating (case by case)
• “Friends with benefits” (this one could be tough)
• One-night stands
• Online relationships without in-person meetings

Prosecutors must prove the intimate relationship existed. Your attorney can challenge this element if the relationship was ambiguous.

These relationships above are not necessarily clear-cut intimate relations and leave room to argue that it was not intimate. Speak to your attorney to discuss whether your relationship may not be considered an intimate one for DV purposes.

Common Crimes Charged as Domestic Violence

Domestic violence enhances many different underlying crimes. Here are the most common:

1. Third Degree Assault (Probably the Most Common DV Charge)

Third degree assault is knowingly or recklessly causing bodily injury to another person. This is a Class 1 misdemeanor.

Common Scenarios:

• Pushing or shoving during an argument
• Slapping or hitting
• Grabbing that causes bruising
• Throwing objects that strike the victim

Bodily Injury Means:

Physical pain, illness, or impairment. Visible injuries aren’t required. The victim’s testimony about pain can be enough. As long as the person felt pain, it can be charged as assault.

2. Harassment

Harassment involves striking, shoving, kicking, or otherwise touching someone in a manner to harass, annoy, or alarm them. This is a Class 3 misdemeanor, but becomes Class 1 misdemeanor when domestic violence is involved.

Common Scenarios

• Pushing without causing injury
• Grabbing someone’s arm
• Blocking someone from leaving
• Throwing objects at someone (even if they miss)

Key Difference from Assault

Harassment requires intent to harass, annoy, or alarm. Assault requires causing bodily injury. Harassment is often charged when there’s physical contact but no provable injury.

There are many types of harassment that don’t require physical contact. These can include telephone/computer harassment, or even verbal harassment.

3. Menacing

Menacing is placing someone in fear of imminent serious bodily injury through threats, actions, or weapons. This is a Class 3 misdemeanor, or Class 5 felony if a weapon is involved.

Common Scenarios

• Threatening to hit or hurt someone
• Raising a fist in a threatening manner
• Displaying a weapon during an argument
• Threatening with an object (bat, knife, etc.)

What “Imminent” Means

The threat must be immediate, not future. “I’m going to hurt you right now” can be menacing. “I’ll get you someday” probably isn’t.

Further reading: Understand the Differences Between Assault, Harassment, and Menacing in Colorado.

4. Criminal Mischief

Criminal mischief is damaging someone else’s property. When done to intimidate/retaliate/coerce/control an intimate partner, it becomes a domestic violence offense.

Common Scenarios

• Breaking a phone during an argument
• Damaging a car
• Punching holes in walls
• Breaking dishes or furniture

Why This Is Domestic Violence:

The conduct must be intended to intimidate, coerce, or control the intimate partner. Simply breaking things in anger may not qualify.

5. Violation of a Protection Order

If a protection order exists and you contact the protected person, you can be charged with violation. This is a Class 2 misdemeanor for first offense, Class 1 misdemeanor for subsequent violations.

Common Scenarios

• Texting or calling the protected person
• Going to their home or workplace
• Contacting through third parties
• Social media contact

This charge doesn’t require proof of an intimate relationship because the protection order already establishes it.

Other Charges Sometimes Enhanced by DV

• False imprisonment (preventing someone from leaving)
• Stalking (repeated unwanted contact)
• Sexual assault between intimate partners
• Child abuse (when perpetrator is intimate partner of parent)
• Trespassing (entering home of former intimate partner)

What Makes Something “Domestic Violence”

For any crime to be enhanced as domestic violence, prosecutors must prove:

1. An underlying crime occurred
2. The victim was an intimate partner
3. The act was intended to intimidate, coerce, control, punish, or revenge

The Third Element Is Critical: Not every crime between intimate partners is domestic violence. If you accidentally injure your spouse in a car accident, that’s not domestic violence. The conduct must be intentional and meant to control or punish.

Consequences of Domestic Violence Conviction in Colorado

Domestic violence convictions carry severe consequences beyond the underlying crime:

1. Mandatory Domestic Violence Treatment

2. Protective Orders

3. Loss of Gun Rights

• Federal law prohibits gun possession after DV conviction
• Must surrender all firearms
• Cannot possess guns even for work
• Lifetime ban in most cases

4. Immigration Consequences

• Deportation for non-citizens
• Denial of citizenship applications
• Inadmissibility for visa applications

5. Custody and Visitation Issues

• DV convictions heavily impact custody decisions
• May require supervised visitation only
• Can lose parental rights in extreme cases

6. Employment Impact

• Professional licenses may be revoked
• Many employers fire after DV convictions
• Background checks reveal DV convictions
• Security clearances often revoked

7. Housing Consequences

• Difficulty renting apartments
• Possible eviction from current housing
• Public housing denials

Why Relationship Status Matters for Your Defense

Challenging whether an intimate relationship existed is a valid defense strategy.

If You Were Just Roommates: No intimate relationship means no domestic violence enhancer. The charge becomes simple assault or harassment with lesser penalties and no DV consequences. Still a serious crime, but it won’t have the DV enhancer.

If You Were Acquaintances: Even if you knew each other well, friendship alone doesn’t create an intimate relationship.

If the Relationship Was Ambiguous: Your attorney can argue insufficient evidence of an intimate relationship. Prosecutors must prove it beyond a reasonable doubt.

Why This Defense Matters: Removing the DV enhancer means:

• No mandatory DV treatment
• Keep your gun rights (for misdemeanors)
• Less mandatory penalties overall
• Possible plea to non-DV offense

Common Defenses to Domestic Violence Charges

• Self-Defense You were protecting yourself from the alleged victim’s aggression. Colorado allows reasonable force in self-defense.
• Defense of Others You were protecting your children or others in the home from the alleged victim.
• False Accusations The alleged victim fabricated or exaggerated claims, often during custody disputes or breakups.
• Lack of Intent The contact was accidental, not intended to harm or intimidate.
• No Intimate Relationship You were roommates, friends, or family members, not intimate partners.
• Insufficient Evidence No visible injuries, no witnesses, conflicting statements.

What Happens if Someone is Arrested for Domestic violence

• Mandatory Arrest Policy Colorado has mandatory arrest laws. If police respond to a DV call and find probable cause, they must arrest someone. They cannot simply separate you and leave.
• Mandatory Protection Order The court issues a mandatory protection order at your first appearance. This prohibits contact with the alleged victim even if they want contact.
• No Contact Means No Contact You cannot call, text, email, or contact the victim through others. You cannot go to shared residences. Violations result in new charges.
• Child Custody Issues If you share children, the protection order affects your parenting time. You may get supervised visitation only until the case resolves.

Why You Need an Attorney for DV Charges

Domestic violence charges are different from other criminal cases:

• Mandatory minimum penalties
• Lengthy treatment requirements
• Permanent loss of gun rights
• Automatic protective orders
• Severe collateral consequences
• Immigration issues

An Experienced Attorney Can

• Challenge whether an intimate relationship existed
• Present self-defense or defense of others claims
• Negotiate for non-DV plea agreements
• Fight for dismissal based on insufficient evidence
• Protect your parenting time and custody rights

Early Attorney Involvement Matters: Domestic violence cases move quickly. Protection orders are issued immediately. Treatment requirements begin early.

Frequently Asked Questions

1. Is it domestic violence if we’re just dating?

Yes, dating partners can be considered intimate relationships under Colorado law. The relationship doesn’t need to be long-term or exclusive.

2. Is fighting with my adult child considered domestic violence?

No. Parent-child relationships are not intimate relationships under Colorado DV law. Charges would be assault or harassment without the DV enhancer.

3. Is it domestic violence if we never lived together?

It can be. Cohabitation is not required. Current or former dating partners can qualify regardless of living arrangements.

4. What if my roommate and I got into a fight?

If you’re just roommates without a romantic relationship, it’s not domestic violence. The charges would be simple assault or harassment.

5.Can domestic violence charges be dropped if the victim wants them dropped?

The victim cannot drop charges. Only the prosecutor can dismiss charges. Many DV cases proceed even when victims don’t want to prosecute.

6. Will I lose my gun rights for a domestic violence conviction?

Yes. Federal law prohibits gun possession after many domestic violence convictions. This is a lifetime ban in most cases.

7. What if we were only together one time?

One date or encounter may not establish an intimate relationship. Courts look at the totality of circumstances. Your attorney can challenge whether the relationship qualifies. Every case is different, and an experienced Colorado criminal defense lawyer can help you navigate this issue.

Get Legal Help for Domestic Violence Charges in Colorado Springs

Domestic violence charges carry consequences that last years beyond your sentence. Loss of gun rights, mandatory treatment, protective orders, and employment impacts make these cases serious even for first-time offenders.

Understanding what qualifies as an intimate relationship and what conduct triggers DV charges is the first step in your defense. Challenging these elements can result in reduced charges without DV consequences.

McDowell Firm handles domestic violence cases in Colorado Springs Municipal Court and El Paso County Court. Attorney Joshua McDowell is a former prosecutor who understands how DV cases are prosecuted and how to defend them effectively.

We offer free consultations to discuss your charges, explain your options, and develop a defense strategy. Don’t face domestic violence charges without experienced legal representation.

Contact McDowell Firm today to protect your rights and your future.

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