Charged With a Domestic Violence Offense. Things can often get out of control when family members are involved. We are a Spokane area criminal defense firm. If you are ever charged with Domestic Violence, there are a number of issues that usually come into play. When the police arrive, usually because someone called 911, they will separate the witnesses and ask what happened. If the police hear different stories, they will often assume that the woman is lying to keep her husband or boyfriend from getting in trouble.
Right to Remain Silent. The best thing to do is to remain silent. If you or another family member say something that sounds likely that an assault occurred, a threat was made or community property broken, someone is probably going to get booked into jail. If it looks like there is probable cause to believe two people committed domestic violence, the male is usually the one that gets booked.
Four-Hour Mandatory Arrest Law. Washington state law enforcement officers will tell you they have to book someone if the initial contact is within four hours of the incident. This applies when there is a threat to hurt someone, any offensive contact or when preventing a 911 call. You may have to post bail and it can take a few days to get out. Often times you will be released on Personal Recognizance by waiting to go to court. And posting bail does not always get you out of jail more quickly.
Coerced Testimony: Even if a victim wants the charges to be dropped, the prosecutors will try to compel testimony with a subpoena. This usually involves coercion with a threat to prosecute the victim for false reporting. Coercion also may include threatening charges of perjury if the complaining witness says something different on the witness stand that what he or she reported to the investigating officers initially. A witness that does not appear will often be threatened with being held in jail as a material witness. A Subpoena is supposed to be served personally on the witnesses to compel an appearance but often budget-strapped prosecutor’s office send subpoena’s out via regular mail. An attorney for the defendant is not going to tell a witness not to appear because there is a conflict of interest and possible witness tampering charges against the defense attorney.
No Contact Orders. Defendants cannot usually talk to the complaining witness because the prosecutor usually asks for and obtains No Contact Orders from the court. A defendant who contacts a victim in any way after No Contact Orders issue may face additional criminal charges, being booked back into jail and a prosecutor asking the judge to impose a cash only bail without any allowance for a bail bond to be imposed. The bail could be raised from $1,000.00 or no bail required to $40,000.00 cash only. So don’t talk to the victim. Even if he or she wants to talk to you, the No Contact Order only goes against the person who is charged with a crime and is not binding on the victim.
Loss of Gun Rights. Prosecutors routinely offer Deferred Sentences on a first offense. The deferral, also called a Stipulated Order of Continuance, results in the conviction being vacated and dismissed, usually after a two-year probation with law abiding behavior and co similar incidents. This sounds like an easy way to avoid the stress and cost of a trial and the possibility of having a criminal conviction on your record. But the deferred disposition results in a loss of gun rights pursuant to RCW 9.41.040 (a) (i) and (ii):
(i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, 26.50.130, or 10.99.040);
(ii) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of harassment when committed by one family or household member against another, committed on or after June 7, 2018…
It takes three years with no convictions from the sentencing date or starting from when you are released from confinement to get your gun rights restored in a Gross Misdemeanor Domestic Violence case. The time that you must go without convictions increases to five years if you are convicted of a felony whether or not it is a domestic violence conviction.
Conviction Defined. The definition of a conviction for purposes of possessing firearms includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state, including military charges that are resolved without a court martial if they were equivalent to a felony in Washington state. Many experienced lawyers do not realize that Deferred Sentences result in a loss of gun rights. The fact that the dismissal takes place after a disposition means that the conviction is treated as if it never happened- but not for all purposes. For the purpose of possessing firearms, the deferral is a conviction even after it is vacated.
A conviction for a Gross Misdemeanor Domestic Violence charge results in a maximum of up to 364 days in jail and a $5,000.00 fine but most of the jail time is normally suspended for a first offense.
Domestic Violence Defined. The definition of domestic violence includes crimes when committed by one family or household member against another. The trier-of-fact (a judge or jury) is not required to find beyond a reasonable doubt that the complaining witness (often called the victim) is a family or household member; i.e., being a family member is not an element of the crime. The prosecutors often include a DV tag that follows along and becomes part of the criminal history if you are convicted.
Nevertheless, the FBI-NICS may determine that a family or household member was involved even if the tag is not attached and can do that by looking at police reports or other records. There is therefore no legal requirement for the prosecutor to prove that the case is a Domestic Violence situation. Courts are supposed to inform you that you have lost your gun rights. In some cases it is possible to go back after entering a plea and argue that you were not informed about losing your rights. But it is very difficult.
Court Orders. No contact orders, restraining orders and civil protection orders that contain findings of threats of force or that specifically restrain the Respondent from such force result in loss of gun rights under federal law in most cases. Washington state law provides different criteria than federal law:
(8) For purposes of this section, “intimate partner” includes: A spouse, a domestic partner, a former spouse, a former domestic partner, a person with whom the restrained person has a child in common, or a person with whom the restrained person has cohabitated or is cohabitating as part of a dating relationship.
Therefore, gun owners must be extremely well informed when making decisions because the complexity of these matters is challenging even to lawyers that are experts in federal and Washington state firearms law. A prosecutor may agree to drop the DV tag but the FBI-NICS may still deny a person’s right to possess firearms permanently after the conviction is dismissed.
Excited Utterance exception. Another surprising aspect that experienced trial lawyers see in such cases is that convictions often result even when the alleged victim does not appear to testify. The prosecutor will ask the officers how much time transpired from the time of the DV call until the police arrived. The officer will describe the complaining witness as excited, crying and shaking. The fact that a victim was emotional immediately after an alleged incident, can indicate to a judge that an exception should apply to the rule against hearsay. The “Excited Utterance” exception puts the defense at a disadvantage because cross-examining the officer is not nearly as productive as cross examining the alleged victim.
Material Witness Warrant. If the victim does not appear at the commencement of the trial, the prosecutor will ask for an emergency five-day extension of the trial date. This often results in the prosecutor requesting and obtaining a Material Witness Warrant to take the alleged victim into custody.
If your lawyer objects on the basis that the subpoena was mailed and not served, the court may deny the prosecutor’s request and the case might be dismissed. But more likely the state will proceed to trial and present the investigating officers’ testimony based on statements made by the complaining witness when she was so “spontaneously” excited that he or she could not possibly make up a story!
All of the above described dynamics place a terrific strain on marriage and other family relationships. There is an extreme need for diplomatic but also aggressive representation. You marriage can survive but you may have to avoid seeing your wife and children until No Contact and/or Civil Protection orders are removed. There are often several pending court cases, including divorce proceedings. Thus, the ability to develop a holistic approach in dealing with various courts and legal jurisdictions is important.
Domestic Violence charges are often pending at the same time as divorce proceedings or during Civil Protection Order proceedings. We often represent clients in Protection Order matters, especially when gun rights will be an issue. You will normally lose your right to possess firearms while there is a court order in place in which a judge finds that you threatened or used force. You will also lose the ability to possess firearms and ammunition if the judge restrains you from the use of force or threats of force.
The Law Office of Mark Knapp PLLC does not handle divorce cases but we have previously represented mothers and fathers in child custody and other family law proceedings. Thus, we can work with you and your family lawyer to develop synergistic strategies that get results when lawyers work together collaboratively.