Howard A. Snader 2013-05-03 00:10:31
Without fail, every relationship has it rough points. In the good old days, an argument could erupt in the family resulting in one party sleeping on the couch or crashing with a friend. Personally, I miss those days. Now, more often than not, fights among family members result in the arrival of the police. In this time of political correctness, the media and law enforcement have targeted domestic violence. As a result, crimes of domestic violence are highly politicized and criminally enforced. What Is Domestic Violence? Simply stated, domestic violence is not a crime. It is an allegation or enhancement to a specific criminal act. It may be applied to many crimes, but frequently the allegation arises in cases involving assault, threatening and intimidating, harassment, stalking, unlawful imprisonment, criminal damage or disorderly conduct. The DV label can be applied to misdemeanors and felonies. In most cases, if the label sticks, it requires the court to impose enhanced penalties. Domestic violence applies where a criminal act occurs and the offense is committed when the parties are in a relationship: i.e., residing together or have children in common and can extend to parents, their children, grandparents, step-parents and children. DV can also apply where the victim is currently or was in a romantic relationship with the accused. A.R.S.§13-3601 et seq. 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 add the DV allegation, prosecutors and courts treat the case substantially different. In many cases, there are specialized prosecutors that handle the DV cases. Mandatory penalties may apply upon conviction. Police Must Make An Arrest: Best Solution, Get Counsel ASAP Our wonderful legislature has created a law that requires police to make an arrest in cases involving domestic violence if the criminal event involved the infliction of any physical injury or involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument. 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 will be 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 may have their release revoked. Obtaining counsel at the time of arrest or before seeing the judge can often mitigate a client’s release conditions and prevent additional problems. An attorney’s appearance at the initial appearance at the jail court can hopefully derail many release related issues. The majority of my misdemeanor DV cases involve the husband/boyfriend being arrested because of red marks on the wife/girlfriend. Usually, the underlying argument that led to the red mark and police response is the basis for a disorderly conduct charge. Once arrested, the judge will order the defendant to “not return to the scene of the crime” and “have no direct or indirect contact with the victim.” When your client is the signer on the apartment lease and the victim is not, your client will have problems “returning home.” As counsel, the attorney need to assist their client in modifying their release conditions to allow them to return home. At the very least, tell the client to contact the police for a “civil standby” so they can return home for a short period of time and collect some personal items. What If The Victim Wants To Help? If the victim wants to help, they need to be brought before the judge so they can personally advise the court that they want the defendant to return home. Hiring counsel can expedite getting the victim’s information to the judge and the prosecutor. If the victim information is not brought be for the court, release conditions can be more harsh than otherwise necessary. Any subsequent change in release conditions will need to be done by motion. That can take days, even a couple of weeks, to have the release orders modified. In more than half of my cases, the victim regrets involving the police. Once police become involved, a series of events are set in motion that can result in an arrest, a criminal record and the stigma of a domestic violence conviction. I am frequently asked if the case can be dismissed at the victim’s request. In the past, this was possible. But prosecutors now rarely dismiss DV cases. They would rather take a case to trial, even a bad case, than risk being the agency reported in the news for letting the next domestic abuser walk on a dismissal and subsequently commit a new DV crime. But, counsel can work with a victim and the prosecutor to help obtain a dismissal or other resolution that would not be a conviction. Having defended thousands accused of DV crimes, I have developed several effective means of obtaining dismissals or non-DV resolutions. Penalties: Jail, Counseling, Gun Rights and more…. Most first-offense DV crimes are misdemeanor cases. Defendants may be offered diversion or deferred prosecution. If offered, the standard counseling program is 26 weeks. Upon successfully completing the program, the charges will be dismissed. If actually convicted of a domestic violent crime, individuals lose their gun rights, and weapons may be forfeited. The law allows police to remove all weapons from the home until the case is concluded. Individuals may also be required to attend counseling and may be placed on probation. 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 result in making someone deportable, and if it’s a crime of moral turpitude, non-admissible. For those with professional licenses, they may have reporting requirements 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…. Summary Crimes of domestic violence are a very specialized area of practice. There are specific defenses and practices that can optimize the outcome for a client. Even though the majority of these cases are misdemeanors, the collateral consequences make any DV allegation a serious crime.
Published by Target Market Media . View All Articles.