Criminal Law: Domestic Violence

Domestic violence is a serious and highly stigmatized crime that can be charged as a misdemeanor or a felony. If you have been accused of this offense, you face harsh punishments and long-term consequences if convicted. This can include the loss of your right to bear arms even if it is a misdemeanor offense. You need to retain an experienced criminal defense lawyer as soon as possible to mount an aggressive defense to fight the charges you face.   As I noted in my personal page, my hybrid experience in handling violent felony offenses and my practice in family law put these type of cases directly in the wheelhouse of cases I specialize in.

What is Domestic Violence?

Domestic Violence does not necessarily involve “violence”! Rather, it is a category of offenses that are listed in Title 13-3601. In fact, one of the most commonly charged “DV” allegation is Disorderly Conduct, which does not necessarily involve any type of physical violence. The following are a list of the offenses for “DV” offenses:

  • Assault and battery, with or without a dangerous weapon
  • Criminal trespass
  • Disorderly conduct
  • Dangerous crimes against children
  • Endangerment
  • Harassment
  • Kidnapping
  • Stalking
domestic violence arrest
  • Sexual assault
  • Murder
  • Unlawful imprisonment
  • Threats and intimidation

Domestic Violence is also category of criminal offenses that involve the so-called “Relationship Test” between the Victim and the Defendant.  So even the term “Domestic”  is a misnomer.   You can get charged with “DV” If you have an altercation with your roommate!

The Court looks at the following to determine if the case is a DV offense:

  1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
  2. The victim and the defendant have 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’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
  5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who 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.

How Do these Charges Get Filed?

When police respond to a domestic violence 911 call, the police officers are often likely to determine that charges are appropriate even if neither party wants the case prosecuted.   In the vast majority of DV cases, someone, usually the male, is going to jail even if it is a non-violent offense (unlike most other criminal charges where the police are likely to issue a citation or a “paper arrest” if there is no physical violence or injury). Misdemeanor arrests are sent directly to the City Prosecutor’s Office and Justice Court for criminal prosecution.  Felonies are sent to the  County Attorney’s Office where a felony-level prosecuting attorney will then review the case and decide whether charges should be sent to the Grand Jury for a felony indictment.

Can a victim drop the charges?

No. Since domestic violence is a crime, the State brings the charges, not the victim, and they decide whether a case proceeds or is later dismissed.  However, as a victim, Arizona has a Victim’s Bill of Rights which requires the State to at least listen to your position on how the case should be handled. If your loved one has been charged and you do not agree with the position that the State is taking, you also have every right to independently contact the defendant’s attorney or to hire an attorney of your own.  If you would like to discuss the charges against one of your loved ones, I am able to help.

What are the Defenses To Domestic Violence Charges?

Domestic Violence charges have many of the same defenses as any criminal case!  However, because of the relationship between victim and defendant; Justification defenses, i.e. Self Defense (see specific section about this) often come into play.   And while the police appear eager to charge “Disorderly Conduct” for almost anything; the case law is clear that it shouldn’t.  You are allowed to have a reasonable argument with your significant other and not go to jail!

Can a misdemeanor domestic violence arrest be charged as a felony?

If an individual has committed a third or subsequent domestic violence crime within a 7-year period, they can be charged with aggravated domestic violence. Aggravated domestic violence is classified as a Class 5 felony in Arizona.

What Are the Penalties for Domestic Violence in Arizona?

The punishments for domestic violence will depend on whether the conviction is for a misdemeanor or felony and the classification of the offense. Several factors can affect the severity of the sentence, such as:

  • Whether the victim was a child
  • Whether the victim was injured or killed
  • Whether the victim was pregnant at the time of the domestic violence
  • Whether a weapon was used
  • Whether the defendant has prior convictions for domestic violence

Anyone convicted of domestic violence would be required to complete a domestic violence counseling program that can include between 28 and 52 sessions.

Examples of possible sentences include:

  • Class 1 misdemeanor: Up to six months in jail and a fine of up to $2,500
  • Class 2 misdemeanor: Up to four months in jail and a fine of up to $750
  • Class 3 misdemeanor: Up to 30 days in jail and a fine of up to $500
  • Class 2 felony: 7 to 21 years in prison and a maximum fine of $150,000
  • Class 3 felony: 5 to 15 years in prison and a maximum fine of $150,000
  • Class 4 felony: 4 to 8 years in prison and a maximum fine of $150,000
  • Class 5 felony: 2 to 4 years in prison and a maximum fine of $150,000

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