Articles Posted in Domestic Violence

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Any experienced Arizona criminal defense attorney knows that not every case can be won. Or, better put, “winning” a case does not always mean that a client was found not guilty. In some cases, the evidence of guilt is overwhelming, perhaps due to a post-arrest admission given by the defendant. In other situations, a defendant does not want to put themselves and their loved ones through the stress of a criminal trial. Because of these realities, plea bargains are not uncommon in Arizona criminal cases.

A plea bargain is an agreement between the prosecution and the defense under which the defendant will plead guilty, usually for a negotiated sentence. In some cases, a defendant may choose to “open plea,” in which case there are no negotiations, and the defendant places complete discretion in the judge’s hands. Typically, an open guilty plea would be appropriate when the offer made by the prosecution was unreasonable, or there are significant mitigating circumstances warranting a lesser sentence.

Pleading guilty, however, is an important decision that should only be made after careful discussion with an Arizona criminal defense attorney. By entering a guilty plea, a defendant gives up almost all of their pre and post trial rights. And after the sentence is imposed, there is very rarely an opportunity to have the finding of guilt or sentence reviewed by a higher court.

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Earlier this month, a state appellate court issued a written opinion in an Arizona homicide case discussing the admissibility of the defendant’s diagnosis for Post-Traumatic Stress Disorder (PTSD). Being an issue of first impression, the court was required to fashion a rule to determine the admissibility of such diagnoses, ultimately concluding that the evidence should not be admissible.

The Facts of the Case

The defendant was nine months pregnant when she shot her boyfriend, the father of her child, in the head, killing him. When asked by detectives, the defendant explained that her boyfriend was abusive and had woken her up by kicking her in the stomach. He also told her that he did not want the baby.

The state charged the defendant with first-degree murder. A few days later, she gave birth, and the state sought to terminate her parental rights. In that proceeding, several experts testified that the defendant suffered from PTSD; however, they noted that the defendant did not answer any questions about the shooting.

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In a recent Arizona appellate case, the defendant appealed his conviction for domestic violence, dangerous offenses, Class 3 felonies, and two counts of aggravated assault. He argued that it was a mistake for the court to admit a 911 call recorded by a victim.

The case arose in 2014 when the defendant got involved in a domestic violence quarrel with his wife. He pointed a gun at her and her mother. The mother called 911, and during the call they discussed what was happening. The mother said her daughter’s husband was threatening them with a gun that he’d just put down during her visit. The mother couldn’t be found to testify at trial.

The defendant tried to preclude evidence of the 911 recording on the grounds that it was made to a law enforcement officer and was used to prove past events that would be relevant to a later criminal prosecution. The lower court denied the defendant’s motion in limine and found that the 911 call could be admitted under the excited utterance exception to the rule against hearsay evidence under Arizona Rules of Evidence 803(2). The court found the mother’s comments weren’t testimonial for the purposes of the Confrontation Clause.

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In the unpublished opinion State of Arizona v. Scott, an Arizona appellate court considered the defendant’s conviction for disorderly conduct with a deadly weapon. The case arose when the victim and the defendant, who were married, got into a physical altercation. The husband was indicted for two counts of misconduct involving weapons and two counts of domestic-related aggravated assault.

The husband admitted that his wife was hurt and that he used a firearm during the incident. The wife suffered from paranoid schizophrenia and was medicated for it. She admitted on the stand that she’d been previously arrested for aggravated assault against her husband, that she’d previously been committed to a mental institution, and that she was susceptible to memory loss.

The husband alleged she attacked him, and he was simply defending himself. He was allowed to testify about his wife’s prior attacks and descriptions of having violent content of voices in her head, as well as his knowledge of her mental health diagnosis and medications.

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Arizona Domestic Violence Laws, Penalties, Criminal Defense

The Lautenberg Amendment in Title 18 U.S. Code § 922(g)(9) prohibits shipment, transport, ownership and use of guns or ammunition by individuals who were convicted of a misdemeanor domestic violence offense or are under a protection order (commonly referred to as a restraining order) for domestic violence. The amendment was enacted in 1996 and has been the subject of numerous court challenges.

On June 27, 2016, the United States Supreme Court further clarified that even convictions for reckless domestic assault can be construed as domestic violence offenses that prohibit firearm possession. The 6-2 decision resolved lingering questions about the nature of misdemeanor domestic violence convictions than can lead to loss of firearm rights.

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Domestic Violence Charges

Many victims of a Domestic Violence are unjustly arrested. This happens when, a domestic dispute takes place, and a victim calls #911 for police: When police arrive, the aggressor denies everything, and claims the victim was the aggressor, or provoked the argument. The victim is then arrested. If convicted, penalties are severe, and call for jail terms, fines, fees, anger management counseling and treatment, probation, and other penalties. Consequently the victim is victimized twice.

Often if police are unsure of the facts; who is telling the truth; and there were no eye witnesses, they will arrest the victim as well as the domestic aggressor. It is not uncommon for them to arrest the innocent party. The victim is left wondering why they ever called police in the first place. This happens because police feel pressured into making arrests, less they may be liable for death or serious injury resulting from disputes.

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The two main differences between Misdemeanor Domestic Violence and Aggravated Domestic Violence (felony) Charges are:

  • Classification:  Domestic Violence is a Misdemeanor. Aggravated Domestic Violence is a Felony.
  • Penalties: Misdemeanor Domestic Violence convictions do not carry prison sentences. Felony Domestic violence convictions will result in prison sentencing.  
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Aggravated Domestic Violence Charges

Aggravated domestic violence is a class 5 Felony in Arizona. “Aggravated” Domestic Violence charges are Misdemeanor charges that are elevated to Felony charges due to the charge being a repeat offense that occurred within 7 years of a prior conviction. A person may be guilty of Aggravated Domestic Violence charges under A.R.S. § 13.3601.02 for a repeat offense of misdemeanor domestic violence Domestic Violence Convictions when:

“A person commits a third or subsequent violation of domestic violence offense within 7 years (eighty four months).”

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Defending Domestic Violence Charges – Misdemeanor and Felony

Common defenses for Misdemeanor Domestic Violence and  Felony Domestic Violence charges are basically the same.  However, since Felony Domestic Violence charges carry prison sentencing, (Misdemeanors do not)  the level of defense that is most critical, if a person is convicted, is the sentencing phase.  Since prison terms apply and prison terms can be lengthy,  the best criminal defense attorneys will tenaciously look for mitigating factors to present that will reduce the prison sentencing terms.  Depending on the circumstances in some cases, the defense attorney may be able to get the charges reduced to Misdemeanor, so that prison sentences may not apply and be avoided completely.

10 Defenses for Felony/Aggravated Domestic Violence Charge 

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