Howard Snader 0000-00-00 00:00:00
I. Domestic Violence is NOT a crime. It is an allegation or enhancement to a criminal act.1 ARS§13-3601 defines domestic violence as a criminal offense for homicide, assault, endangerment, threatening or intimidating, unlawful imprisonment or kidnapping, sexual assault, trespass, criminal damage, interfering with judicial proceedings, disorderly conduct, preventing the use of a telephone in an emergency, using a phone to terrify intimidate, threaten, harass, annoy or offend, harassment, surreptitious photographing, child or vulnerable adult abuse AND the offense is committed when any of the following apply: 1. The relationship between the victim and the defendant is one of marriage or father marriage persons residing having resided in the same household; 2. The victim and the defendant had a child in common; 3. The victim or the defendant is pregnant by the other party; 4. The victim is related to the defendant or the defendant spouse by blood, court order, pound, grandparent, child, grandchild, or sister by marriage as a parent in law, grandparent and law, step down, step grandparent, stepchild, step grandchild, brother in law sister-in-law; 5. The victim is a child resides or has resided in the same household as the defendant is related by blood to former Criminal Defense spouse of the defendant to a person resides or who has resided in the same household as the defendant; 6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors can be considered by the court: a type of relationship, the length of the relationship, the frequency of interaction between the victim and defendant, and if the relationship has terminated a length of time since termination. In my experience, the majority of cases arise from those persons charged with disorderly conduct, assault related offenses, interfering with a judicial order (violating an order of protection), and criminal damage. When prosecutors allege the crime is one of domestic violence, by adding the additional language of domestic violence, prosecutors and courts treat the case substantially different. Mandatory penalties apply upon conviction. Those mandatory penalties including counseling at a minimum, but can include various terms of jail. II. In cases of domestic violence involving the infliction of physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, the peace officer SHALL arrest a person if they have probable cause to believe that the offense has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense.2 The physical injury can be as limited to a red mark on the skin or a broken item in the household. Once arrested, the person will see a judge within 24 hours and release conditions set. In most cases, the individual is prevented from returning to the place of the crime (in other words, they cannot go home) and prevented from having contact with the victim (again, no dialogue at all regarding children, property, etc…). Should the individual violate the release conditions, they are certainly subject to their conditions of release being revoked. In addition, they could be committing a new crime. Obtaining counsel at the time of arrest or before seeing the judge can often mitigate the release conditions and prevent additional problems. III. Deferred prosecution or diversion is not automatically granted for a first-time offender. The prosecutor’s office will consider the allegation in the complaint, the defendant’s criminal history, and any past referrals to counseling. The prosecutor can also consider the victim’s recommendation. In the old days of years past, many prosecuting agencies would allow one to enter true diversion. Prosecution for the criminal offense would be dismissed and not refiled unless the person failed to complete a counseling program. Currently, when offered by prosecutor’s, they are extending deferred prosecution. However, under this program, the defendant must enter a GUILTY plea. The sentencing is deferred while the person completes the counseling program. If the defendant successfully completes the program, the case is formally dismissed. If the defendant fails to complete the program, they are called back into court to complete the sentence agreed to in the plea agreement. As an aside, the standard counseling program is 6 months in duration. IV. Misdemeanor cases are not dismissed by misdemeanor compromise. Generally speaking, ARS §13-3981 provides that misdemeanor charges can be dismissed where the defendant has a remedy in civil action and the victim appears in court, acknowledges they received satisfaction for the injury and requests the matter be discharged. However, when the crime includes an allegation of domestic violence, the misdemeanor compromise is only possible with the prosecutor’s recommendation. Simply stated, the prosecutors do not make such a recommendation. Even where the victim recants their story to police, prosecutors no longer make such a recommendation. V. Crimes of domestic violence, either dealt with through deferred prosecution or resulting from a guilty plea or verdict may result in several collateral consequences. One’s immigration status, professional license, gun rights, are among just some of the concerns raised with a guilty plea to a domestic violence offense. The court can limit one’s use or control of a firearm while the case is pending. The court could demand the forfeiture of all weapons pending the outcome of the prosecution. If convicted of a domestic violent offense, even a misdemeanor, under the state and federal laws, the person may be a prohibited possessor.3 In the context of immigration proceedings, a charge of domestic violence may jeopardize one’s resident status. A conviction for a crime involving domestic violence may make them deportable, and if a crime of moral turpitude, non-admissible. For those with professional licenses, you may have reporting requirement and may be subject to sanctions. Those in law enforcement and military commitments can be devastated by the gun related issues. Airline pilots could lose their security clearance and not be permitted into secured areas due to the TSA regulations. The list goes on…. CONCLUSION Cases involving domestic violence are not simple. Even misdemeanor matters have landmines just waiting for you and/ or your client to step on. If you need help concerning a criminal offense involving domestic violence, feel free to give me a call to discuss your concerns.
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