Every person charged with a domestic violence offense in Colorado eventually asks a version of the same question: Does the jury decide if what I did counts as domestic violence? It is a reasonable question, and the answer has real consequences for your sentence, your treatment obligations, and your constitutional rights. By the time the question reaches you, the case has usually already moved through Colorado’s mandatory-arrest stage and past the point where the alleged victim can simply drop the charges — so understanding how the DV finding itself gets made matters.
The answer, confirmed by both a 2017 Colorado Court of Appeals decision and a 2023 Colorado Supreme Court ruling, is: the judge decides — not the jury.
This article explains the law behind that answer, why defendants have challenged it, why Colorado courts have consistently upheld it, and what it means for anyone facing a domestic violence charge or sentence in Colorado today.
The Statute: What Triggers a Domestic Violence Finding
Under Colorado Revised Statute § 18-6-801(1)(a), when a person is convicted of any crime where the trial court finds — on the record — that the underlying facts included an act of domestic violence, the court must order the defendant to complete a treatment evaluation and follow its recommendations; this includes treatment meeting standards set by the Domestic Violence Offender Management Board (DVOMB). This is true regardless of what crime the person was convicted of. The underlying conviction could be stalking, harassment, assault, or even a property crime — if the court finds the act was domestic violence, treatment almost always is required.
That finding — the factual determination that the underlying crime included an act of domestic violence — is made by the trial judge, not by the jury that decided guilt or innocence.
What “Domestic Violence” Means Under Colorado Law
Under § 18-6-800.3(1), “domestic violence” is defined as any crime that is used as a method of coercion, control, punishment, intimidation, or revenge, and that is directed against a person with whom the actor is or has been involved in an intimate relationship.
An “intimate relationship” under § 18-6-800.3(2) is broad. It includes not only current romantic partners but also former partners — including people who were simply in a past unmarried dating relationship. This means that conduct involving an ex-boyfriend or ex-girlfriend, even a relationship that ended years ago, can fall within the domestic violence definition in Colorado.
Why Defendants Argued This Decision Belongs to the Jury
The argument that a jury — not a judge — should make the domestic violence finding is rooted in a line of U.S. Supreme Court cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that any fact that increases a criminal penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296 (2004), applied that principle to state sentencing schemes. And Alleyne v. United States, 570 U.S. 99 (2013), extended the rule further to cover facts that increase a mandatory minimum sentence.
The logic of the challenge is straightforward: if a domestic violence finding results in mandatory treatment that the defendant would not otherwise face, and if that treatment is a form of punishment, then the finding is increasing the defendant’s penalty. Under Apprendi and its progeny, a jury — not a judge — would need to make that factual determination beyond a reasonable doubt.
It is a well-constructed constitutional argument. Daniel Kyser and the Law Office of Daniel H. Kyser pressed exactly this issue on behalf of Steven Thomas Heisler in People v. Heisler, 488 P.3d 176 (Colo. App. 2017), ultimately decided by the Colorado Court of Appeals in 2017.
Why Colorado Courts Said No: DV Treatment Is Not Punishment
Both the Colorado Court of Appeals in Heisler and, six years later, the Colorado Supreme Court in Pellegrin v. People, 532 P.3d 1224 (Colo. 2023) (FindLaw), rejected the Apprendi challenge on the same ground: court-ordered domestic violence treatment is not “punishment.” Because Apprendi and its progeny apply only when a sentence is punitive in nature, the Sixth Amendment jury right never attaches to a domestic violence finding under § 18-6-801(1)(a).
To determine whether a sentence is punitive, both courts applied the seven-factor test from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963). Here is how each factor applies to Colorado’s domestic violence treatment requirement:
1. No affirmative disability or restraint. Domestic violence treatment does not restrict where an offender may live or work, and does not extend or alter the length of incarceration or probation. It does not approach the “infamous punishment of imprisonment.” Heisler, ¶ 49.
2. Not historically regarded as punishment. Domestic violence treatment, which prioritizes victim and public safety and the rehabilitation of the offender, is not analogous to traditional forms of punishment such as incarceration or fines. Heisler, ¶ 50.
3. No scienter finding required. The plain language of § 18-6-801(1)(a) does not require the trial court to make any finding of scienter — of intent or knowledge — before ordering a DV evaluation and treatment. Heisler, ¶ 57.
4. Deterrence, not retribution. Although the treatment program is designed to reduce the occurrence of future domestic violence — and thus serves some deterrent purpose — it does not promote the traditional punitive goal of retribution. Heisler, ¶ 58; Pellegrin, ¶ 61.
5. Criminal behavior — but that doesn’t make treatment punitive. The conduct triggering DV treatment is, by definition, criminal conduct. The legislature is permitted to impose both criminal and civil consequences for the same act. The fact that the conduct is a crime does not by itself make the treatment punitive. Heisler, ¶ 59.
6. Rationally connected to rehabilitation. A finding of domestic violence is rationally connected to the rehabilitative purpose of court-ordered treatment. The statute is carefully drawn to limit the program to individuals who have committed an act of DV, who would benefit from treatment, and who would not pose a risk to victims by participating. Heisler, ¶ 60.
7. Not excessive. Although domestic violence treatment is not without cost and inconvenience to the defendant, it is not excessive in relation to the rehabilitative goals it serves. Heisler, ¶ 62; Pellegrin, ¶ 64.
Taken together, all seven factors pointed away from punishment. The Colorado Court of Appeals in Heisler held — as a matter of first impression in Colorado — that § 18-6-801(1)(a) does not violate the Sixth Amendment. The Colorado Supreme Court in Pellegrin expressly agreed, adopted the Heisler analysis, and confirmed it as settled Colorado law.
The Critical Exception: When a DV Finding Does Require Jury Involvement
This rule has an important boundary. Not every domestic violence finding avoids Apprendi scrutiny.
In People v. Jaso, 2014 COA 131, ¶ 7, 347 P.3d 1174, 1176, a Colorado Court of Appeals division concluded that Colorado’s habitual domestic violence statute — § 18-6-801(7) — did violate the defendant’s Sixth Amendment right to a jury trial. The reason: under the habitual domestic violence statute, the DV finding actually increased the defendant’s punishment. When the DV finding does raise the floor or ceiling of the sentencing range, Apprendi applies and the jury must decide.
The Colorado Supreme Court in Pellegrin drew this line clearly: Pellegrin’s case was different from Jaso because he was not subject to the habitual domestic violence statute, and his DV finding did not increase the maximum or minimum sentence for his crimes. It added only a treatment evaluation and recommended treatment as a condition of his sentence.
The practical takeaway: if you are charged under the standard § 18-6-801(1)(a) provision — the one that adds a treatment evaluation and recommended treatment to any existing sentence — the judge makes the DV finding. If you are charged under the habitual domestic violence statute in a way that increases your actual sentencing range, the constitutional analysis is different, and your attorney needs to raise it.
What the Domestic Violence Finding Means Practically
According to our courts, the DV finding under § 18-6-801(1)(a) may not constitute “punishment” in the constitutional sense, but, as I argued to the Colorado Court of Appeals, I think it very clearly is. Regardless of how it is labeled, it is far from inconsequential. It requires you to:
- Complete a treatment evaluation through an approved provider meeting DVOMB standards
- Comply with the resulting treatment recommendations
- Bear the cost of that evaluation and any recommended treatment
- Complete the treatment as a condition of your sentence — meaning non-compliance can result in a probation violation
Beyond the direct consequences, the DV finding also appears on your record in ways that can affect future charges, civil protection order proceedings, and — as discussed in our article on Colorado DV convictions and the Second Amendment — your gun rights under federal law.
None of that is trivial. And because the judge is making this finding — not a jury applying the beyond-a-reasonable-doubt standard — the threshold for the finding is lower than the threshold for conviction itself.
A Word About Heisler: This Firm Argued That Case
People v. Heisler, 488 P.3d 176 (Colo. App. 2017), is a published Colorado Court of Appeals opinion. The defense attorney of record was Daniel H. Kyser of the Law Office of Daniel H. Kyser, L.L.C. Although the constitutional challenge did not succeed — the court upheld § 18-6-801(1)(a) — the case established, as a matter of first impression, the legal framework that now governs every domestic violence sentence in Colorado. The Colorado Supreme Court cited and adopted Heisler in Pellegrin six years later. Daniel Kyser and the Law Office of Daniel H. Kyser, L.L.C. continue to work at the cutting edge of Colorado domestic violence law.
Understanding the law at the appellate level is not separate from defending a domestic violence case at trial — it is part of the same discipline. Knowing why a DV finding cannot be challenged under Apprendi helps experienced counsel identify where it can be challenged: in the underlying facts, in the definition of “intimate relationship,” in the sufficiency of the evidence, and in the plea negotiations that determine what charge is actually entered in the first place.
Frequently Asked Questions
Who decides whether my crime included an act of domestic violence in Colorado?
The trial judge decides — not the jury. Under § 18-6-801(1)(a), the court makes this factual finding on the record after conviction, and it is not subject to the beyond-a-reasonable-doubt standard that applies to the underlying crime.
Doesn’t the Sixth Amendment require a jury to decide facts that affect my sentence?
Only when those facts increase a criminal penalty above the statutory maximum or raise the mandatory minimum. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), judicial factfinding is unconstitutional when it aggravates punishment. Because Colorado courts have held that DV treatment is not punishment, Apprendi does not apply to the § 18-6-801(1)(a) finding.
Is there any situation where the jury does make the domestic violence finding?
Yes. If you are charged under Colorado’s habitual domestic violence statute, § 18-6-801(7), and the DV finding would increase your actual sentencing range, Apprendi applies. Under People v. Jaso, 2014 COA 131, 347 P.3d 1174, that statute has been found to require jury involvement. The standard § 18-6-801(1)(a) provision — which adds a treatment evaluation and recommended treatment but does not change the sentencing range — does not.
What does the judge look at when making the domestic violence finding?
The court determines whether the underlying crime was committed as a method of coercion, control, punishment, intimidation, or revenge and was directed against someone with whom the defendant is or was in an intimate relationship. See § 18-6-800.3(1). An “intimate relationship” includes past unmarried dating relationships. See § 18-6-800.3(2).
Can I fight the domestic violence finding even after I’m convicted?
It is very difficult. The DV finding is made by the judge after conviction, and because it has been held not to constitute additional punishment, the appellate remedies are limited. The better strategy — by far — is to fight the charge and the evidence before conviction, and to work with experienced counsel on plea negotiations that control whether a DV finding is ever possible.
How does the DV finding affect my sentence beyond the treatment requirement?
The treatment evaluation and any recommended treatment can be burdensome in terms of cost, time, and probation compliance obligations. Separately, the DV finding can affect future proceedings, civil protection orders, and — critically — your federal gun rights under the Lautenberg Amendment (18 U.S.C. § 922(g)(9)). See our article on Colorado domestic violence convictions and the Second Amendment.
What counties does the Law Office of Daniel H. Kyser serve for domestic violence cases?
The firm represents clients in domestic violence cases across Denver, Arapahoe, Jefferson, Douglas, Adams, and Weld counties, as well as statewide for appellate matters.
Facing a Domestic Violence Charge in Colorado?
The domestic violence finding is made by a judge — which means the most important decisions happen before sentencing, not during it. Whether it is challenging the evidence of an intimate relationship, contesting the underlying charge at trial, or negotiating a plea that keeps the DV finding off the table entirely, experienced counsel makes the difference.
Attorney Daniel H. Kyser has over 19 years of courtroom experience, including published appellate opinions at every level of Colorado’s courts. The firm is based in Greenwood Village, Colorado, and serves clients statewide.
Call 303-831-6111 for a free, confidential consultation, or request a case evaluation online. Learn more about our Colorado domestic violence defense and Colorado criminal appeals practices.
Law Office of Daniel H. Kyser — 5950 S. Willow Drive, Suite 250, Greenwood Village, CO 80111. Serving Denver, Arapahoe, Jefferson, Douglas, Adams, and Weld counties.
