Domestic Violence Criminal Lawyer
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There's no other area in Utah law where something that starts out simple can end up so complicated and damaging. Obviously, Domestic Violence is a serious issue and actual acts of violence towards domestic partners or children should be dealt with swiftly and decisively.
However, the vast majority of 'Domestic Violence' cases jamming up Utah's courts are one of two types:
1. A simple argument gets out of hand, and one party, or sometimes a relative, calls 911. Once law enforcement gets involved, you lose all control of the situation. Law enforcement makes a quick, on-the-spot judgment and one partner is put in handcuffs and arrested. This begins an expensive, lengthy process that creates a terrible burden on the family.
2. A disgruntled or attention-seeking 'Ex' is permitted, and sometimes encouraged, to use the Utah justice system as a weapon against others.
If you've been charged with any form of 'Domestic Violence' in Utah, or if you find yourself lost in the Utah justice system and no one will listen to you, you need an experienced Utah Domestic Violence Attorney.
Domestic Violence charges are, for the most part, not independent crimes.
"Domestic Violence" is a tag placed on regular crimes such as assault and criminal mischief when they involve cohabitants. Common charges include:
Assault or Aggravated Assault
DV in the Presence of a Child
Violation of a Protective Order
Interruption of Communication Device
Threat of Violence
"Domestic Violence" or "domestic violence offense" means any criminal offense involving violence or physical harm, or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another.
Domestic violence or domestic violence offense also means commission or attempt to commit, any of the following offenses by one cohabitant against another:
Aggravated Assault, Assault
Electronic communication harassment
Kidnapping, child kidnapping, or aggravated kidnapping
Sexual Exploitation of a Minor
Unlawful detention or unlawful detention of a minor
Violation of a protective order or ex parte protective order
Burglary and Criminal Trespass
Possession of a deadly weapon with intent to assault
Discharge of a firearm as a domestic violence offense
Disorderly conduct as a domestic violence offense
Can an Alleged Victim Refuse to Bring Charges or Have Charges Dismissed?
Like many questions in the law, the answer is "it depends".
A typical domestic violence call proceeds something like this: a couple is fighting, one person calls the police who arrive on scene, statements are given, photographs of bruises and/or damage are taken, and people are arrested or cited.
In the typical scenario as described above the answer is "no". Once statements are given to the police, the decision to file/not file is largely out of the hands of the alleged victim. The officer's report, witness statements and photos and other supporting documents are forwarded to the prosecutor's office for screening and a decision of whether to bring formal charges through a charging document known as an "information".
Once a case is filed, the decision of whether to dismiss the case or go forward to trial lies solely with the prosecutor. The alleged victim can influence the outcome, but does not have the power to unilaterally dismiss the case.
An alleged victim frequently states that they will simply refuse to testify against a defendant. The reason is usually that the situation became far more serious than intended and blown way out of proportion with the police involvement. With the exception of the spousal privilege, as described on this page, a person cannot refuse to testify against another person, if they have received a subpoena requiring them to appear at trial.
Many alleged victims simply ignore the subpoena and do not appear in court. This technically is contempt of court, since a subpoena is a court order requiring a person to appear. The decision to pursue contempt of court charges again lies with the discretion of the prosecutor. Many prosecutors will decline to bring contempt of court charges against the alleged victim for failing to appear in court in response to a subpoena under the theory that they do not want the only person punished to be the alleged victim. However, it is important to note that a subpoena is a court order and no one can advise another person to avoid a subpoena. Trying to convince a person not to appear in court is a violation of the Tampering With a Witness statute, UCA 76-8-508.
Who is a Cohabitant?
In order for a crime to be a domestic violence offense, it must involve a cohabitant. The following persons qualify as a cohabitant as set forth in UCA 78b-7-102:
A "Cohabitant" means an emancipated person pursuant to Section 15-2-1 or a person who is 16 years of age or older who:
(1)is or was a spouse of the other party;
(2)is or was living as if a spouse of the other party;
(3)is related by blood or marriage to the other party;
(4)has or had one or more children in common with the other party;
(5)is the biological parent of the other party's unborn child; or
(6)resides or has resided in the same residence as the other party.
(7) A "Cohabitant" does not include:
(a)the relationship of natural parent, adoptive parent, or step-parent to a minor; or
(b)the relationship between natural, adoptive, step, or foster siblings who are under 18 years of age.
Domestic Violence Defenses
Domestic violence cases are defending in the same manner as the underlying charge; for example, in an assault case, a defendant might claim self defense, defense of habitation or defense of personal property.
Domestic violence cases involving husband and wives are unique in that spouses can refuse to testify against one another. This right is known as spousal privilege.
Utah Rule of Evidence 502 states, "(b) Privilege in Criminal Proceedings. In a criminal proceeding, a wife may not be compelled to testify against her husband, nor a husband against his wife."
In other words, the prosecution cannot force a spouse to testify against the other. In many domestic violence cases, the invocation of the spousal privilege necessitates the dismissal of the case. However, the prosecution frequently pushes the case right up to the date of trial before dismissing on spousal privilege grounds.
How the Prosecution Addresses Spousal Privilege & Reluctant Alleged Victims
It is a popular misconception that if an alleged victim invokes spousal privilege or indicates that they will refuse to testify that the case is automatically dismissed. This is not the case. The prosecution will carefully review the defendant's statement and any other witness statements to determine if he/she can make their case without the testimony of the alleged victim. The statements of the alleged victim who is not appearing in court are hearsay (unless an exception can be established). The statements of a criminal defendant are not hearsay, they are admissible whether the defendant testifies or not.
In a typical scenario, a husband is charged with assault against his wife. The police arrive and the officer(s) take statements from both the husband and the wife. The wife states that the husband hit her. The husband might agree that he lost his temper and hit his wife after a yelling match. Charges are brought. The wife does not want to testify and invokes spousal privilege. The prosecutor can continue the case against the husband in the absence of his wife's testimony because he admitted to hitting her and his statement is admissible into evidence.
Jail Release Agreements
After an arrest for domestic violence, the offender may not be released before:
(1)the matter is submitted to a magistrate in accordance with Section 77-7-23; or
(2)the offender signs a jail release agreement.
A jail agreement is an agreement signed by the offender that until an initial appearance in court, he/she the arrested person agrees in writing or the magistrate orders, as a release condition, that, until the arrested person appears at the initial court appearance, the person will not:
(A)have personal contact with the alleged victim;
(B)threaten or harass the alleged victim; or
(C)knowingly enter onto the premises of the alleged victim's residence or any premises temporarily occupied by the alleged victim.
The initial appearance must take place no more than 96 hours after the time of the arrest.
If, at the initial appearance the judicial officer determines there is probable cause to support the charge or charges of domestic violence, the judicial officer shall determine:
(i)whether grounds exist to hold the arrested person without bail;
(ii)if no grounds exist to hold the arrested person without bail, whether any release conditions, including electronic monitoring, are necessary to protect the victim; or
(iii)any bail that is required to guarantee the defendant's subsequent appearance in court.(d)
If the prosecutor has not filed charges against a person who was arrested for a domestic violence offense and who appears in court at the initial appearance, the court:
(i)may, upon the motion of the prosecutor and after allowing the arrested person an opportunity to be heard on the motion, extend the release conditions by no more than three court days;
(ii)unless extended as described above, the jail release agreement expires at midnight on the day on which the person arrested is scheduled to appear for their initial appearance.
If a law enforcement officer has probable cause to believe that a person has violated a jail release court order or jail release agreement, the officer shall, without a warrant, arrest the alleged violator.
Any person who knowingly violates a jail release court order or jail release agreement is guilty as follows:
(i)if the original arrest was for a felony, an offense under this section is a third degree felony; or
(ii)if the original arrest was for a misdemeanor, an offense under this section is a class A misdemeanor.
Domestic Violence Sentencing
Jail time, fines and probation are the identical in domestic violence cases as with the underlying charge, i.e. an assault is a class B misdemeanor and a assault- domestic violence assault is also a class b misdemeanor (first offense, see enhancement below). The potential jail time is the same (180 days) the fines are the same $1,000 plus a surcharge, but statistically, domestic violence cases reoccur with more frequency than non domestic violence cases. To that end, judges are given additional sentencing resources and requirement.
Specifically, the Utah Code states that the sentencing court shall: (1)assess against the defendant, as restitution, any costs for services or treatment provided to the victim and affected children of the victim or the defendant by the Division of Child and Family Services under Section 62A-4a-106; an (2)order those costs to be paid directly to the division or its contracted provider.
In addition, the court may order the defendant to obtain and satisfactorily complete treatment or therapy in a domestic violence treatment program, that is licensed by the Department of Human Services. A list of approved providers can be found here.
Sentencing Protective Orders
As part of sentencing, a court may enter a sentencing protective order for the duration of the probationary period. The court may order any or all of the following:
(1) enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim or other family or household member;
(2) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;
(3) requiring the perpetrator to stay away from the victim's residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or household member;
(4) prohibiting the perpetrator from possessing or consuming alcohol or controlled substances;
(e)prohibiting the perpetrator from purchasing, using, or possessing a firearm or other specified weapon;
(5) directing the perpetrator to surrender any weapons the perpetrator owns or possesses;
(6)directing the perpetrator to participate in and complete, to the satisfaction of the court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or psychiatric or psychological treatment;
(7)directing the perpetrator to pay restitution to the victim; and
(8)imposing any other condition necessary to protect the victim and any other designated family or household member or to rehabilitate the perpetrator.
Violations of Sentencing Protective Orders
A law enforcement officer shall, without a warrant, arrest an alleged perpetrator whenever there is probable cause to believe that the alleged perpetrator has violated any of the provisions of a sentencing protective order or protective order.
An intentional or knowing violation of any sentencing protective order is a class A misdemeanor, and is a separate domestic violence offense, pursuant to Section 77-36-1.
Second or subsequent violations of sentencing protective orders carry increased penalties, as described below.
Enhancement for Future Offenses
A "qualifying domestic violence offense" for this section means:
(a)a domestic violence offense in Utah; or
(b)an offense in any other state, or in any district, possession, or territory of the United States, that would be a domestic violence offense under Utah law.
If a person has a qualifying domestic violence offense within the previous 5 years, a class B misdemeanor is enhanced to a class A, a class A is enhanced to a third degree felony.
*A plea of guilty or no contest to any domestic violence offense in Utah, which plea is held in abeyance is the equivalent of a conviction, even if the charge has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement. UCA 77-36-1.2.
Owning/Possessing Firearm Prohibition
Under federal law, specifically 18 USC 922, anyone convicted of a felony of any kind and misdemeanor offense of domestic violence is prohibited from purchasing or possessing a firearm. This includes persons who are subject to domestic violence protective orders.
Utah state law is somewhat different, but it is important to point out that what might not be illegal under state law is illegal under federal law and still subject to prosecution (consider legalization of marijuana in a number of states despite that possession of marijuana is still illegal in those states under federal law).
Under Utah law, misdemeanor domestic violence convictions do not prevent a person from owning a firearm.
Pretrial Protective Orders
A defendant who has been arrested for an offense involving domestic violence shall appear in person or by video before the court or a magistrate within one judicial day after the arrest.
A defendant who has been charged by citation, indictment, or information with an offense involving domestic violence but has not been arrested, shall appear before the court in person for arraignment or initial appearance as soon as practicable, but no later than 14 days after the next day on which court is in session following the issuance of the citation or the filing of the indictment or information.
At the time of a first appearance by an offender, the court shall determine the necessity of imposing a pretrial protective order or other condition of pretrial release including, but not limited to, participating in an electronic or other type of monitoring program, and shall state its findings and determination in writing.
Appearances required by this section are mandatory.