Attorney Steven Karen

Law Office of Steven J Karen   

702-382-9307  2810 West Charleston, Suite 82 Las Vegas, Nevada 89102

I AM ALSO A DISTRICT COURT JUDGE, PRO TEMPORE FOR THE EIGHTH JUDICIAL DISTRICT COURT

9.4Steven J. Karen

DOMESTIC VIOLENCE BATTERY


WHAT DEFENSES ARE AVAILABLE IN DOMESTIC VIOLENCE CASES?

I didn't do it.  A Defendant does not have to prove that he did not commit a battery.  The prosecution must prove beyond a reasonable doubt that the Defendant did commit a battery, that it was not legally justified, that it was a domestic relationship, and that it occurred in the jurisdiction.  If they can't prove all of that, then they lose.  To properly defend the case  it is important to properly evaluate and attack the credibility and reliability of the prosecution witnesses.  This is why an experienced attorney is vital to your case.

The prosecution can't prove it:  This can happen for many reasons.  They may not be able to secure the testimony of a necessary witness.  The evidence may be corrupted, suppressed because it was not taken legally, lost or be inconclusive.  However, if you do not hire a lawyer, plead not guilty and set the case for trial; then you may never find out that the prosecution cannot prove their case.


Affirmative Defenses:  
The following are affirmative defenses.  This means that force was used,  but it was legally justified and therefore the Defendant is not guilty. Once an affirmative defense is properly raised It is the burden of the prosecution to prove beyond a reasonable doubt that the battery was not legally justified:
 
Self De
fense:  A person is allowed to use reasonable force to defend himself.  A person using this defense must assert that he or she is in imminent fear of bodily injury and that this fear was justified. This is evaluated on a case by case basis.  Some of the factors may include whether the Defendant knew the other person had been violent in the past, whether the accused was injured, disabled, weaker or smaller then the other person involved in the fight.  I have had many cases where a husband was attacked by his wife and all he did was push her out of the way to get out of the house.  This is often a successful use of self defense.


Defense of Others:  This applies If you were defending someone else such as a child.  Many of the same factors used to evaluate self defense apply here. 

Defense of Property:  This is a rarely used defense.  I once had a case where a husband and wife were in a terrible argument. The husband got drunk and grabbed the wife's prescription medications and threatened to flush them down the toilet.   The wife screamed and pleaded for her husband to return the medications. She needed her medications to live. She also did not think they could be replaced. The wife grabbed a baseball bat, hit her husband (not hard enough to cause serious injuries) and retrieved her prescription medications. The police arrived and the wife was arrested. At trial we successfully argued that she was defending her property and was legally entitled to use reasonable force to do so.  She was found not guilty.

Other Defenses

Jurisdiction:  If the battery did not occur in the jurisdiction it cannot be prosecuted there.

 Not a domestic relationship.  If the offense did not involve a domestic relationship as defined above.  However, the prosecution may be able to prosecute for a charge of simple battery not involving a domestic relationship.

Definition of domestic violence
Domestic violence is the non justified use of force or violence (a physical fight) between family members or between people who live together or between people in a dating relationship. It can involve slight force. The Nevada Supreme Court has held that spitting on another person can constitute enough for a battery charge.  So can pushing a person or tearing their clothes. It can be between a father and daughter/son, mother and daughter/son, an adult child and elderly parent, but it most often occurs between a man and a woman living together, married or not. 

How are charges filed?

The police officers, who respond to the place where the incident occurred must investigate whether or not a crime has been committed.


  • If the police officers believe that a battery has been committed they must make a police report for the incident. If possible, the officers must also arrest the person who they believe committed the battery within 24 hours of the battery. That person must spend a minimum of 12 hours in jail before he/she can be released.

  • If the officers are not able to arrest the person within 24 hours (because they cannot find the person), they must submit appropriate paperwork to the LVMPD Domestic Violence Unit. Detectives review the reports and evidence and may submit the case for possible prosecution.

  • Other police reports such as; violation of protective orders, destruction of private property, stalking or harassment, may also be submitted to the LVMPD Domestic Violence detectives for evidence review and possible prosecution.

Misdemeanor or felony
Generally, if the battery did not involve a weapon (such as a knife or gun) or the injuries did not result in permanent physical damage or involve strangulation then the crime is classified as a misdemeanor. The maximum possible penalty for a misdemeanor is $1,000.00 fine and/or 180 days in jail.

Misdemeanors that occur within the city of Las Vegas are prosecuted by the City Attorney’s Office.

Batteries with weapons or serious injury or strangulation are felonies. The Clark County District Attorney’s Office, prosecutes all felony cases and any misdemeanor cases that occur outside of the cities of Las Vegas, North Las Vegas, Henderson, Boulder City and Mesquite.
 
The Court Process


  • Arraignment: When a criminal complaint has been filed against the defendant, he/she is ordered to go to court. He/she will be informed of the charges against him/her and must enter a plea of either “Guilty,” “No Contest” (“Nolo Contendere”) or “Not Guilty.”

At trial the prosecutor must prove that the defendant is guilty  beyond a reasonable doubt of committing the crime with which he/she is charged. This evidence may include the testimony of the complaining witness, testimony of independent witnesses including police officers as well as photographs, medical records and 911 tapes.

The defendant may present evidence at trial. However the Defendant is not obligated to testify or to present any evidence.  It is the prosecution burden to prove the case beyond a reasonable doubt. The defense is not obligated to prove anything. The judge will hear the evidence and then decide if the defendant is guilty or not guilty.

  • Sentencing: If the defendant is found guilty of battery domestic violence, the judge will decide the appropriate sentence within the guidelines established by Nevada Revised Statute (NRS). The sentence will include jail time, community service, fines and counseling.

The sentencing guidelines are also broken into levels for first and second domestic violence offenses being misdemeanors, while third or more offenses are felonies.



CRIMINAL DEFENSE

I have more then 20 years of experience defending criminal cases in Las Vegas including.  

  • DUI

  • DRUGS

  • DOMESTIC VIOLENCE BATTERY

  • MURDER

  • SEX CRIMES

  • JUVENILE OFFENSES

  • APPEALS

  • POST CONVICTION RELIEF

  • BURGLARY

  • PETIT LARCENY /SHOPLIFTING

  • ROBBERY

  • COUNTERFEITING

  • OBSTRUCTION OF A POLICE OFFICER

  • EBEZZELMENT

  • THEFT

CALL ME TODAY AT 702-382-9307 FOR A FREE CONSULTATION.

DUI DEFENSE



I have been handling DUI cases in Nevada for 25 years. Call me if you are charged with a DUI.  It's a free consultation.  702-382-9307. 


LAWS IN EFFECT IN NEVADA STARTING OCTOBER 1, 2015.  

New Hit and run statute.  Senate Bill 245 treats those who leave the scene of an accident with substantial bodily injury or death the same as a driver under the influence.  The maximum penalty is now 20 years in prison.  Probation is not an option.

NEW LAW:  Refusal to submit to a blood or breath test in Nevada results in automatic drivers license revocation for at least one year:

Sec. 14. NRS 484C.210 is hereby amended to read as follows: 33 484C.210 1. If a person fails to submit to an evidentiary test as requested by a police officer pursuant to NRS 484C.160, the  license, permit or privilege to drive of the person must be revoked  as provided in NRS 484C.220, and the person is not eligible for a license, permit or privilege to drive for a period of:  (a) One year; or  (b) Three years, if the license, permit or privilege to drive of 40 the person has been revoked during the immediately preceding 7  years for failure to submit to an evidentiary test.  2. If the result of a test given under NRS 484C.150 or 43 484C.160 shows that a person had a concentration of alcohol of 0.08 44 or more in his or her blood or breath or a detectable amount of a  controlled substance or prohibited substance in his or her blood or – 10 – - *AB67_R1* 1 urine for which he or she did not have a valid prescription, as 2 defined in NRS 453.128, or hold a valid registry identification 3 card, as defined in NRS 453A.140, at the time of the test, the license, permit or privilege of the person to drive must be revoked as  provided in NRS 484C.220 and the person is not eligible for a  license, permit or privilege for a period of 90 days.



New United States Supreme Court ruling.  requiring blood or breath testing without a warrant or consent is illegal.

  The United States Supreme Court recently decided in Missouri v. McNeely, 569 U.S.  (2013) that police may not routinely force blood testing from a suspect in DUI case without a search warrant. The court explained that a compelled physical intrusion beneath a persons skin and into his veins to obtain a sample of blood for use as evidence in a criminal investigation is an invasion of bodily integrity implicating an individual's  "most personal and deep-rooted expectations of privacy."   Such an invasion requires a warrant based upon probable cause reviewed by a  neutral and detached magistrate. The Court noted that  new technology allows a police officer to apply for a warrant over the telephone, by e-mail or video conferencing. The court acknowledged that the percentage of alcohol in the blood begins to diminish shortly after drinking stops.  However, this is not enough  to create a routine emergency exception to the warrant requirement.  Instead, the police will now have to explain on a case by case basis why there was such an emergency that they could not obtain a search warrant.

What does this ruling mean for routine DUI cases in Nevada?   In Nevada police may still obtain blood or breah testing from DUI suspects without a warrant if they consent.  If a person refuses the test the police are now required to obtain a warrant, which they can do by telephone.


The Nevada Supreme Court declared Nevada's  implied consent statute for obtaining blood/breath samples without a warrant unconstitutional in Byars v. State, 130 Nev. Ad Op. 85 (2014).


Even if the blood or breath testing evidence is thrown out of court it does not necessarily mean that the case is dismissed.  The prosecution can still try to prove the case using an under the influence theory. This means they will rely on the officers observations and field sobriety testing to try to prove their case.  However without a blood or breath test, proving the case will be more difficult.  Anyone charged with a DUI in Nevada should speak with a lawyer to discuss this situation.  You can reach me at 702-382-9307 for a free consultation.



The State Bar of Nevada has published the following DUI question and answer pamphlet.

What does “DUI” mean?

A person can violate the DUI (driving under the influence) law in three ways: 1) by driving while under the influenceof alcohol or drugs (whether prescription drugs or illegal drugs); 2) by driving with .080 or more blood alcohol level:3) providing a breath or blood sample within two hours of driving which shows a .080 or more blood alcohol level.It is a defense to #3 if a person shows that he/she drank after driving.


What if there is less than .080 percent alcohol concentration?

A person with a blood alcohol level under .080 may be convicted of driving under the influence if it can be shown he or she was driving while influenced by alcohol, “to a degree which renders him/her incapable of safely driving or being in actual physical control.”

What are field sobriety tests?

Field sobriety tests are conducted to test the coordination and concentration abilities of the DUI suspect. A personis not legally required to submit to field sobriety tests.


How is the DUI suspect tested for alcohol level?

If a person is suspected of driving under the influence of alcohol,two tests are available: breathalyzer or blood. If a person is suspectedof driving under the influence of drugs, two tests are available:blood or urine, in addition to the breath test.


Do you have to consent to the tests?Nevada law says that a DUI suspect must choose between tests if asked to take one by a police officer having reasonable grounds to believe that he or she is under the influence. If the DUI suspect refuses to take a test, an officer may use reasonable force to obtain a blood sample from the suspect.


What if the person is not driving the car but is asleep in the car when an officer arrives?

It is illegal to be in actual physical control of a car while under the influence of alcohol or drugs. Many factors determinewhether a person is in actual physical control, but some common ones are that the person is behind thewheel, has the keys in his or her possession, and must have driven the car to the location where the police officersees the car. Being asleep is not a defense to being in actual physical control. The penalties for being in actual physical control are the same as for driving while under the influence.


What penalties are imposed for DUI?


The first offense is a misdemeanor. Misdemeanors are punishable by up to six months in jail and a $1,000 fine plus assessments. The minimum penalties for first offense are two days in jail or 48 to 96 hours of community service,a $400 fine, a $60 chemical test fee, and a DUI education course including mandatory attendance at a victim impact panel. If a person’s blood alcohol level was a 0.180 or more or the person is under the age of 21 he or she must also pay to have an alcohol evaluation done. A second offense within seven years also constitutes a misdemeanor. The person must pay $100 to have an alcohol evaluation done, pay a fine of from $750 to $1,000, and serve 10 days to six months of jail. A third offense within seven years is a felony. The person must be sentenced to one to six years in prison and pay a $2,000 to$5,000 fine. Probation is available under certain circumstances. Consult an attorney.


Does a driver need an attorney to handle a DUI?

A DUI defendant must be given an opportunity to have an attorney. If the person cannot afford an attorney, an attorney will be appointed to assist him or her. A person who is charged with any DUI offense, including a DUI third offense or a DUI felony is not required to have an attorney, but it is extremely unwise to attempt to defend such a case without an attorney.What is a felony DUI?A felony DUI is a third DUI within seven years or any DUI which involves an accident which results in a death or substantial bodily harm to another person, whether that person is a passenger in the driver’s car or someone not in the driver’s car. Beginning in 2005, once a person has been convicted of a felony DUI, all subsequent DUI arrests will be charged as felonies, with an increased penalty of 2-15 years in prison.


What are the penalties when a death or serious injury is involved?

The person must be fined $2,000 to $5,000 and serve 2 to 20 years in prison for each injury or death. Probation isnot available for this charge.


Are DUI convictions from other jurisdictions counted by Nevada courts as prior convictions?

Yes. A valid DUI conviction from any state within seven years of the current DUI case will usually count as a prior conviction in Nevada.Does a person go to jail when arrested for DUI?Yes. The officer will transport the arrestee to the nearest facility where the arrestee will be tested for alcohol level.The arrestee can be released from jail if he or she posts bail, or is granted an OR release.


Does the person lose his or her driving privilege with a DUI?

A person convicted of a DUI first offense will lose his or her license for 90 days. A person convicted of a DUI second offense will lose his or her license for one year. A person convicted of a DUI third offense or of a DUI where death or serious bodily injury occurs will lose his or her license for three years. A person whose blood alcohol test was .080 or more will lose his or her license for 90 days, even if not convicted of a DUI.A driver may request a hearing on the revocation. A driver is required to notify DMV of his or her current address, soit is not a defense that the driver did not receive notice. A license to drive to work is available after half the revocationtime has been served. Since 2005, depending on a driver’s blood alcohol level, a court may require a driver toinstall a Breath Ignition Interlock device as a condition to reinstatement of a restricted or unrestricted driver’s license.A person convicted of driving while his or her license is revoked for DUI must serve 30 days in jail or 60 days housearrest and must pay a $500 to a $1000 fine. The driver’s license will be revoked for an additional period of time.When a revocation period has been served, the driver must go to the DMV to get his or her license back. The driver must pay a reinstatement fee, take a test or tests to earn back the license and maintain an SR-22 for three consecutive year.    


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IF YOU HAVE BEEN ARRESTED AND ARE FACING CRIMINAL CHARGES CALL ME NOW!

702-382-9307


Practicing Regularly in Las Vegas Justice Court, Las Vegas

Municipal Court, Henderson Justice Court, Henderson Municipal Court, District Court, Federal Court and all Courts in Nevada