Posted by Gilbert Levy | Nov 21, 2016 | 1 Comment


 What kind of charge is domestic violence?

Domestic violence is a crime by a family or household member committed against another family or household member.  It involves an underlying charge such as assault, coercion, malicious mischief, (property destruction) or stalking with a domestic violence allegation tacked on in the charging document.  The underlying charge can be a felony or a misdemeanor.  “Household member” includes people who are living together or have lived together in the past.

I have never been in trouble.  Why was I arrested for domestic violence?

By statute, an arrest is mandatory if a police officer has probable cause to believe that domestic violence has occurred.  Persons so arrested will remain in jail until they bail out or are released on their personal recognizance.  In the case of a mutual assault, officers are required to arrest the “primary physical aggressor.”

What is a domestic violence no contact order?

Typically, the court will issue a no contact order at the first appearance. In most cases, a no contact order means refrain from any contact with the alleged victim.  If you and the alleged victim are living together, one of you will have to move out.  The order will remain in effect throughout the case unless it is lifted by the court.  If you are convicted of a crime involving domestic violence, the no contact order can remain in effect so long as you are under court supervision.  While a no contact order is in effect, the alleged victim cannot consent to contact.  Only the court can lift or modify a no contact order.  Violation of a no contact order is a gross misdemeanor but can be a felony if the violation involves an assault.

You may not possess a firearm while a domestic violence no contact order is in place.  The restriction will remain in place until you are acquitted, the charge is dismissed or the order is lifted by the court.  If you possess a firearm while under a domestic violence no contact order, you can be charged with a Class B felony.    

What can be done about a charge of domestic violence?

You can take your case to trial and win a dismissal or an acquittal.  In assault cases involving domestic violence, you may be able to raise a claim of self defense.  The prosecution has the burden of proving the absence of self defense beyond a reasonable doubt.  A competent attorney can advise you as to whether you have a chance of winning your case.  Depending on the evidence, some cases are winnable and some are not.  If you try your case and lose, you could receive a more severe sentence than what you would have received had you agreed to plead guilty.  This is commonly known as a “trial tax”.

If this is your first offense and you are charged with a misdemeanor, you may qualify for what is known as a dis-positional continuance.  The availability of a dis-positional continuance depends on the court and the prosecutor.  Most local courts allow this but some do not.  In a dis-positional continuance, your case is continued for a period of time – usually a year or two – during which time you are required to satisfy certain conditions.  Typical conditions may include payment of court costs, no law violations, and completion of a domestic violence counseling program.  In some instances, you may need to obtain an evaluation by a mental health professional in order to qualify for the program.  If you satisfy all the conditions, the charge is dismissed at the end of the continuance period, and you will not have sustained a conviction. 

What if the alleged victim wants to drop the charges?

True or not, the common belief is that victims of domestic violence frequently recant.  Once passions cool, people think twice about putting a loved one out the house or affecting the ability of the bread winner to make a living.  Once charges are dismissed, the domestic violence may continue or escalate into something worse.  As a result, courts and prosecutors are reluctant to dismiss charges regardless of the wishes of the alleged victim, and may force that person to testify.  Attempting to persuade someone not to testify by promises or threats can lead to additional more serious charges and is a really bad idea.

What are the consequences of a domestic violence conviction?

The obvious consequence is jail time or prison.  Depending on the severity of the crime, you are probably not looking at jail time for a first offense misdemeanor but are likely to be ordered into counseling as a condition of a suspended or a deferred sentence.  In addition, the court is likely to continue the no contact order for the period that you are under court supervision.  In the case of a misdemeanor, court supervision can continue for up to five years.  

If you are charged with a felony, the court can add a domestic violence aggravating factor to the charging document.  The jury will then decide whether the State has proved the aggravating factor beyond a reasonable doubt.  If the aggravating factor is proved, you could receive a prison sentence above the standard range up to the maximum term provided in the applicable statute. 

If you are convicted of a misdemeanor, the court has discretion to impose a deferred or a suspended sentence.  The difference is that in the case of a deferred sentence, your plea is changed to not guilty at the end of the period of deferral and the charge is dismissed.  You can then truthfully answer that you have not been convicted of a crime.  However, the fact that you were once convicted remains a matter of public record, which is accessible to potential employers, landlords and credit reporting agencies.  It is legally possible to seal a conviction record but very difficult.  Gaining dismissal of the charge at the end of the period of court supervision is not available in the case of a suspended sentence.

If you are convicted of an offense involving domestic violence, you may not possess a firearm.  If you possess a firearm with this type of conviction, you can be charged with a Class B felony.  In Washington, you can apply to a court to have your right to possess a firearm restored at the end of five consecutive years during which you have not been convicted or charged with a crime.  However, being a felon in possession of a firearm is also a federal offense.  Restoration of your gun rights by a state court will not necessarily protect you against a federal charge if you have been convicted of a felony

What is the best course of action if I am charged with domestic violence?

Get competent representation.  Domestic violence is a serious crime.    




About the Author

Gilbert Levy

Gil Levy is a graduate of U.C. Berkeley and UCLA School of Law.  After serving as a Deputy County Attorney in Tucson and a felony trial attorney with the Seattle King County Public Defender Association, he has spent over forty years in private practice specializing in criminal defense and First Amendment cases.  He has argued cases successfully in the United States Supreme Court, the United States Courts of Appeal, and the Washington Supreme Court.  He is licensed in Washington and Arizona and has active practices in both States.  He has earned an AV (highest) rating from Martindale Hubbell and a 10.0 (superb) rating from AVVO.  In 2010, Gil received the President's Award from the Washington Association of Criminal Defense Lawyers for distinguished service to the profession. Gil has tried dozens of jury trials including homicide, racketeering, conspiracy, drug cases, and complex frauds.  He has enjoyed success in having local ordinances declared unconstitutional on First Amendment grounds and in getting clients off of death row.  Gil is married with three adult children and two grandchildren.  Other than family, friends and work, his major passions are international travel and fly fishing.



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