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S. Huband, Esq.
S. Huband, Esq., Attorney
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I live in Colorado and will keep this short...I was arrested

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I live in Colorado and will keep this short...I was arrested for harrasment with DV attatched to it. A woman I had been dating for 2-3 months seemed to have symptoms of bipolarism and after dealing with the "being On or Being Off" I told her to get help and I would want to help her to do that. Needless to say that did not go over well and I was sent a text to not talk with her or text or see her again. The next day she and her estranged husband( which had to get my private number from her) called me a total of 4 times...2 each...they also left voice mails on my phone. The voicemails accused me of poisoning her dog that morning. For about a 1 - 2 weeks after that I sent about 5- 6 series of text....ranging from I was sorry to hear about the dog to hoping her court date went well with her estranged husband. The last were to see if we could have a "truce" and speak over dinner as adults...none of my texts were sent in anger or were mean spirited.
The night of the last text I recieved a call from the police that they wanted me to come in and talk to me about a case dealing with this woman. Since I knew about the dog and was told by her and her ex I informed the officer that I figured they would be calling and agreed to go in to answer some questions....I was not worried because I was with my kids the whole time and knew that I had done nothing to harm the animal.
When I went to the station I was patted down...but I figured that was because the officer stated he was there by himself and it was mandatory...I was fine with it. He read me my rights that I read along with on a piece of paper and I signed them....again I was not worried since I knew that I had done nothing wrong.
After some questioning and me talking about coming in to discuss the dog I noticed that he started asking more questions about my relationship with the woman and if she asked me to stop texting her and if I had done that. I expained that yes I had only because the very next day they called me on the phone and that none of my texts were mean spirited or hurtful.
I realize now that that is all he wanted to here and he did not care about the rest of anything. I was told I was being arrested for harassment and since we dated he was attaching DV to it. They for some reason put a chest belt on me and handcuffed me and to me 45minutes to the county prison....Mind you the worse I had seen was a speeding ticket my whole life in all my 48 years. I have since hired an attorny and he thinks that my case is good and will be dropped or I will be found not guilty since she omitted the fact that after she told me to not communicare with her, she tuened around and called me the next day. I have asked my lawyer but he has not answered since he wants me to focus on the case at hand....but I want to know what my recourse for myself...I miss about 4-5 hrs of work each day I need to see my lawyer since this is happening in a different county. This has taken a huge toll on me mentally and my children as well. I am curious if a person can lie and get away with it and have absolutley no recourse against them. I have all of my phone records texts and voice mail recordings and as I said my lawyer is confident that this will go away because she lied.... BTW the dog case is dropped because there was no evidence.
Truly I want to know that I have a path for recourse either in a criminal way or civil way...I know this is a small case but it has affected my children and I in a terrible way and I want to have her punished for what she has done.

Thanks for you time,

K
Submitted: 2 years ago.
Category: Family Law
Expert:  S. Huband, Esq. replied 2 years ago.
Thank you for the opportunity to assist you! If you find my response helpful, please rate it positively so that I can receive credit for my work.

What a terrible situation you have found yourself in. I'm very sorry to hear about this.

Q) I want to know that I have a path for recourse either in a criminal way or civil way.

The best way to get back at her is to win your trial. I love winning trials, if for no other reason, than to see the "victim's" bubble burst into a zillion pieces, right in front of the whole world to see. By that point, the victim/complaining witness has convinced herself that the accused (i.e. you) should pay with a pint of blood or a pound or flesh. How incredibly satisfying for a judge or jury to say, "Nope, not today. We just don't buy what you're saying..."

So, put your efforts 5000% into helping your attorney win your trial.

Criminal charges
As far as criminal prosecution of this lady, keep in mind that it is the state (i.e. a law enforcement officer or a prosecutor) who initiates the case, not a "regular" person like you or me. It is doubtful that either would take out charges against her. They will probably see it as you "getting back" at her, etc., especially if you win at trial.

The only crime I can really think of would be something like filing a false police report. That's usually a misdemeanor. The state would have to prove that she knowingly told a lie to the police about something material and that she intended to mislead them. Perjury is also another theoretical possibility, since she will probably perjure herself while telling lies on the witness stand at your trial. But, I seriously doubt that the prosecutor will want to do a 180 degree about face after YOUR trial and start in on prosecuting her. It rarely happens that way.

So, as far as a criminal prosecution against her, it's a long shot, me thinks.

Civil court
You might have more success on the civil side. You could possibly file a civil lawsuit for damages (i.e. money) for malicious prosecution. Malicious prosecution is making a claim against another person, either in civil or criminal court, based on falsehoods or with no good faith basis for pursuing the claim. The claim would be that she pursued a claim in a criminal case against you that she KNEW to be false but she did it anyway.

Listen to your attorney during your trial on the harassment charge. At the end of the prosecutor's case, your attorney will probably make a motion for a directed verdict. (Some states call it a motion for judgment, others, like where I practice, a motion to strike the evidence. I'm not sure what Colorado calls it.) This motion basically alleges that the prosecution has not put up sufficient evidence for the judge or jury to possibly conclude that you are guilty, or that the prosecutor has failed to provide evidence as to one or more elements of the crime you are charged with. If the judge denies the motion, i.e. you then have your turn at presenting evidence, testifying on your own behalf, etc., you would NOT have a claim in civil court for malicious prosecution. This is just one of the rules; if the case passes the directed verdict stage, it is very hard (but not impossible) to claim malicious prosecution.

You might also have a claim for defamation. Defamation means oral or written statements, published to another person or entity, which are false and which damage your reputation or moral regard in the community. A defense to defamation is the truth, and I'm sure she will stick to her guns and swear up and down that what she said in court or to the police, etc., is the truth.

Finally, some states still have a civil claim from jolly old England called "false light". I do not know about Colorado's status on this claim, although it may have done the same as most other states and rolled it into defamation law. False light is creating a negative impression to the community, even when the impression is not exactly completely false. I think of this as the reduced calorie version of defamation. But, as I said, it may not even exist anymore in Colorado.

I hope this discussion gives you some guidance on where to go from here. If you want to pursue a civil claim, your current attorney might be able to help, or you could hire someone else. You will need someone who works in the personal injury area of the law. As your current lawyer for a referral, or contact the Colorado State Bar Attorney Referral Service and ask for help there. Just remember that civil claims usually have strict time deadlines, and if you do not consult an attorney soon after your criminal trial and get the process going, you might have any claims forever barred. Step 1: Win your criminal trial. Step 2: The day after you win, go see an attorney about making a civil claim!

Please indulge me with one final, parting thought. This whole business about the cop saying, "Come on down to the station so we can chat..." You are COMPLETELY correct in your assessment that the harassment issue was ALL he wanted to talk to you about. He knew the whole "dog poisoning" thing was going nowhere.

Your belief that if you just told the truth, everything would be fine, is very common with most people. After all, people who have nothing to hide should be able to talk freely, right? You are in good company. I cannot TELL you how many hundreds of clients I have had who believe this same thing. Life, at least at the police department suspect interrogation room, doesn't work that way.

What's done is done, and there is no going back in time. I'm simply suggesting that, in the future, if you ever encounter the police again and there is a possible, remote, theoretical, hypothetical chance that you might be prosecuted for something, exercise your 5th amendment right to remain silent and demand an attorney. I've rarely, if ever, had a client who spoke to the police and the statement wound up helping him. It's almost always the opposite.

None of this is to say that your case is lost. Much to the contrary, your attorney there in Colorado is best suited to assess your chances for success, and I'm very glad he is telling you he believes you have a strong chance at trial. I agree with his statement: concentrate on winning now. Worry about other stuff later.

Best of luck with your case. I sincerely XXXXX XXXXX goes well for you. Take care,
Shuband
S. Huband, Esq., Attorney
Category: Family Law
Satisfied Customers: 1283
Experience: Experienced, and knowledgeable family law attorney.
S. Huband, Esq. and 4 other Family Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 2 years ago.
Hello again!

I was notified that you rated the answer I gave positively and that you generously applied a bonus payment for my efforts. Thank you so much. I am very pleased and gratified that I was able to help you. I sincerely hope the legal matters we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Again, thank you very much for the opportunity to assist you.

Take care,
Shuband

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