Domestic Violence: What Are You Really Facing?
Domestic violence charges in Arizona are no joke. At The Heath Law Firm, PLLC in Mesa, I talk to people everyday whose lives may be ruined by these charges. The penalties for domestic violence offenses are stiff, even for first time offenses. To make matters worse, many people find themselves shocked to be charged with domestic violence because no one was actually hurt. So what is an Arizona domestic violence offense? It’s important to understand what it is and how a good attorney can help you through this if you find yourself on the bad of a domestic violence charge.
Arizona domestic violence (A.R.S. §13-3601): What it is and how to survive it:
Domestic violence is not actually a crime in and of itself. It’s an allegation. In other words, it’s an additional element the government has to prove on top of an existing crime. If it does, there are enhanced penalties on top of the penalties already associated with the underlying crime. While an assault or other violent offense seems obvious, many people find themselves charged with domestic violence just for disturbing their partner’s peace. That happens because disorderly conduct is the underlying crime and the victim who claimed his or her peace was disturbed happened to be in a romantic relationship with that person.
For example, a prosecutor must prove two things. First, Arizona law defines domestic violence as the commission of any one of the following offenses:
- Threatening or Intimidating;
- Aggravated Assault;
- Custodial Interference;
- Unlawful Imprisonment;
- Sex Assault;
- Criminal Damage;
- Interference with Judicial Proceedings (Order of Protection Violence);
- Disorderly Conduct;
- Animal Cruelty;
- Preventing a 9-1-1 call;
- Surreptitious Recording; or
- Child Abuse or Vulnerable Adult Abuse
And, second, the prosecutor must prove any one of the following victim relationships:
- One who is married or was married to the defendant (or living together);
- One who has a child in common with the defendant;
- One who is pregnant with the defendant’s child;
- One who is a blood or legal (including step family) relative up to grandparent/grandchild level;
- One who is a child in the same household, or has been in the same household, as the defendant and is related by blood to the spouse or other person living in the same household; or
- One who is or was in a romantic or sexual relationship with the defendant.
The last status is the most tricky. While the other relationships are fairly easy to prove, whether a person is actually in a romantic relationship is something that has perplexed hopeful romantics since humans began. All jokes aside, the legislature allows the jury to consider certain factors such as the type, length, frequency of the relationship, and time since the termination to determine if a romantic relationship existed. In other words, just because one person feels that he or she is in a romantic relationship with his or her partner doesn’t mean one actually existed.
What are the penalties for domestic violence offenses in Arizona?
It’s impossible to list them all because the crimes that can be classified as domestic violence vary wildly: life in prison for first degree murder to the lowest level misdemeanor for third degree trespassing. Obviously, a person accused of killing a spouse has bigger things to worry about than a domestic violence allegation but that’s not true for a person accused of trespassing. This is because of what these enhanced penalties do.
Enhanced Penalties: Anyone convicted of a domestic violence misdemeanor offense must complete court ordered counseling at his or her own expense. This usually involves 26 to 52 week courses (6 months to a year). There are also additional fines on top of whatever is ordered in the underlying offense (currently $100). If a person is convicted of more than two prior violations within 7 years, then the offense is aggravated to a felony and the person must serve a minimum of 4 months jail. A person convicted of three prior violations in 7 years will also face a felony charge and must serve a minimum of 8 months jail if convicted.
But it’s the collateral consequences of a domestic violence conviction that really hurt.
Gun Rights: Even the most benign misdemeanor that is classified as domestic violence will cause a loss of gun rights. Federal law prohibits the possession of firearms for any person convicted of a domestic violence offense. A domestic violence offense is the only misdemeanor that takes away a constitutional right.
Immigration: A domestic violence offense negatively impacts immigration. Even if a person is a lawful resident, a domestic violence offense can negatively impact status, even causing the loss of status.
Child custody: A domestic violence offense can also negatively impact a child custody hearing or visitation rights.
Employment: Because Arizona criminal records are permanent, a domestic violence offense can also negatively affect employment status for the rest of a person’s life. Although a set aside will help, it will not make a person’s record disappear.
How do a fight a domestic violence offense?
Like penalties, it is impossible to list all defenses because the underlying crimes vary but here are some basic defenses that often arise in a domestic violence case:
Fabricated Evidence: A domestic violence case is tricky for both a defendant and a prosecutor. This is because these types of cases are often one person’s word against another. Without corroborating evidence, it is difficult to prove or disprove what actually happened. And it is not uncommon for a partner to fabricate evidence in order to gain the upper hand in a child custody battle or out of revenge in a failing relationship. In theory, a defendant has the presumption of innocence and any reasonable doubt militates in the defendant’s favor. But the reality is that the one accused of the crime has an uphill battle. It’s human nature to assume the one charged with the crime is, in fact, the guilty party. Therefore, exposing motives the victim’s ulterior motives to fabricate a charge is critical.
Self Defense: Similarly, self-defense is an affirmative defense to domestic violence. If the reporting party was the initial aggressor, there is motive to minimize his or her participation while exaggerating a defendant’s. No person has to take abuse and defending one’s self from attack by using reasonable force to prevent attack is always a defense.
Insufficient Evidence: It is not uncommon for a victim to lose interest in prosecution. This is a defense that should be approached with extreme caution. Even when a victim informs the prosecutor that he or she is no longer interested in prosecution, once charges are filed, the government has the sole discretion to determine if the case will move forward or not. The prosecutor can even subpoena a victim to court. If the victim fails to honor a valid subpoena, he or she can be arrested. And even if the victim’s testimony is contrary to the original statement, a prosecutor can cross examine the victim with his or her prior inconsistent statements. While these are powerful tools to ensure that those who really do abuse and manipulate their partners get prosecuted, innocent defendants can and do get swept up in that overly broad net. So even if a partner really did make it up but had a change of heart, things could get really bleak if a person thinks that just not showing up to trial will work. That’s why it’s important to prove that dismissing the charges really is the right thing to do in a particular case. Although the victim’s position does not control the prosecutor, it can certainly influence the prosecutor’s decision how a case should proceed.
Why it’s important to hire the right Arizona domestic violence attorney:
With domestic violence, there are special rules and often special prosecutors assigned to just those types of cases. Thus, it’s important to have an Arizona domestic violence attorney on your side that understands the unique characteristics of a domestic violence case inside and out. It’s easy to see why an experienced Arizona domestic violence attorney is critical–job loss, property loss, homelessness, family associations, and even your constitutional rights are at stake. The Heath Law Firm will get to the bottom of each case and provide high quality legal representation. We can often mitigate the collateral consequences you’re experiencing while awaiting trial and get you back home.
A good attorney knows the best defenses and most persuasive arguments to make to a judge, jury, or prosecutor. And even if you did make a mistake, we can still help you. I’ll do our best to help you through this difficult time and get the best resolution that I can to save your future and all that’s at stake. Give my office in Mesa a call today at 480-442-0489 or use the contact form to schedule a free consultation.