Without fail, every relationship has it rough points. In the good old days, an argument would occur between the husband and wife, boyfriend/girlfriend, or parents and their children. And, the argument would end with no one the worse for wear, police not being involved, and one party sleeping at a hotel or with a friend, or on the couch in the family room. Personally, I miss those days.
But in this time of political correctness, crimes involving domestic violence are one of the targeted crimes of the media and law enforcement. As a result, crimes of domestic violence are highly politicized and criminally enforced.
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 DV allegation arises in cases involving assault, threatening and indimidating, 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 any of the following apply:
1. The relationship between the victim and the defendant is one of marriage or former marriage residing or having resided in the same household;
2. The parities have a child in common or one party is currently pregnant by the other party;
3. The victim is related to the defendant or the defendant spouse by blood such as grandparent, child, grandchild. It can also include step parents/children and various inlaws.
4. The victim is a child resides or has resided in the same household as the defendant is related by blood to former spouse of the defendant to a person resides or who has resided in the same household as the defendant;
5. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship.
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 apply upon conviction. Those mandatory penalties include counseling at a minimum, but can include various terms of jail or prison and probation.
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 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 their 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.
The majority of my cases involve the husband/boyfriend being arrested because of red marks on the wife/girlfriend. In addition, the underlying argument that resulted in police responding is often 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.” That is a real problem when you may be the signer on the apartment lease and the victim is not. It really means you can’t go back to your apartment, and she can do what she wants.
If the victim wants to help, the first thing that can be done is to have the victim tell the judge at the jail that they want the defendant home. Hiring counsel can expedite getting that information to the judge. If the victim does not know how to appear at the jail when the initial release terms are ordered, a new motion will need to be filed in the court. It can take days, even a couple of weeks, to get the release orders corrected.
In more than half of my cases, the victim regrets calling 911 and involving the police. The argument got out of hand, and calling the police was meant to help….not set in motion a series of events that could result in an arrest, a criminal record, and the stigma of being convicted for a crime of domestic violence.
I am frequently asked if the case can be dismissed at the victim’s request. It used to be that way. But unfortunately, prosecutors will not normally dismiss the case. They would rather take a case to trial, even a bad case, then risk being the agency reported in the news for letting the next domestic abuser walk on a dismissal.
But experienced counsel can work with a victim to help obtain a dismissal or other resolutions that are short of a conviction. Having defended thousands accused of DV crimes, I have developed several effective means of obtaining dismissals or non-DV resolutions.
Most first-offense DV crimes are misdemeanor cases. You may be offered diversion or deferred prosecution. If offered, the standard counseling program is 26 WEEKS. If you complete the program, the charges will then be dismissed. However, even entering those programs may cost you immigration consequences or problems with a professional license (bankers and realtors beware).
If actually convicted of a domestic violent crime, you will lose your gun rights, and weapons may be forfeited. You will be required to attend counseling and may be placed on probation. Subsequent allegations may be prosecuted as felonies.
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 you 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….
There is a difference between going to church and repenting versus being hammered by the government for criminal wrongdoing. When you have the weight of the government trying to take away your liberty and your reputation, don’t look back on your choices and ask yourself, “what would have been the outcome, if I had hired him?”
I have successfully defended thousands of DV cases. I have created and used several creative defenses that have been successful. Don’t enter the fight on your own.
Howard Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any crime, please give call him at (602) 825-3031, email him at [email protected] or visit his website at https://snaderlawgroup.com