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. For more information see the PENALTIES section below on this page.


PENALTIES FOR BATTERY DOMESTIC VIOLENCE

A “first offense” Domestic Battery is a misdemeanor. • A person convicted of first offense Domestic Battery must be sentenced to: [1] serve a jail term of at least 2 days, but not more than 6 months; [2] perform community service of at least 48 hours, but not more than 120 hours; [3] pay a fine of at least $200.00, but not more than $1,000.00; and [4] participate in counseling sessions of at least 1 1/2 hours per week for at least 6 months, but not more than 12 months, at his own expense.  A person convicted of first offense Domestic Battery must also pay: [1] an administrative assessment of not more than $115.00; [2] a court facility fee of $10.00; and [3] a special court programs fee of $7.00. ________ If a person is charged with and convicted of two Domestic Batteries committed within a seven-year period, one of these convictions may be treated as a “second offense” Domestic Battery. A “second offense” Domestic Battery is a misdemeanor. • A person convicted of second offense Domestic Battery must be sentenced to: [1] serve a jail term of at least 10 days, but not more than 6 months; [2] perform community service of at least 100 hours, but not more than 200 hours; [3] pay a fine of at least $500.00, but not more than $1,000.00; and [4] participate in counseling sessions of at least 1 1/2 hours per week for 12 months at his own expense. • A person convicted of second offense Domestic Battery must also pay: [1] an administrative assessment of $115.00; [2] a court facility fee of $10.00; and [3] a special court programs fee of $7.00.  ________ If a person is charged with and convicted of three or more Domestic Batteries committed within a seven-year period, one of these convictions may be treated as a “felony” Domestic Battery. A “felony” Domestic Battery is a category C felony. • A person convicted of felony Domestic Battery is not eligible for probation, and is subject to be sentenced to: [1] serve a prison term of at least 1 year, but not more than 5 years; and [2] pay a fine of at not more than $10,000.00. • I can be charged with and convicted of felony Domestic Battery even if all prior judgments of conviction were entered as first offense Domestic Battery. ________ Every person convicted of first offense, second offense or felony Domestic Battery must pay a domestic violence programs fee of $35.00. ________ I may be ordered to pay restitution in this case. D. Other Consequences of Conviction. The following other consequences of conviction exist. ________ A conviction, and any other prior conviction from this or any other state which prohibits the same or similar conduct, may be used to enhance the penalty for a subsequent conviction. ________ If I am convicted of “first offense,” “second offense” or “felony” Domestic Battery, my possession, shipment, transportation or receipt of a firearm or ammunition may constitute a felony pursuant to NRS 202.360 or federal law. ________ If I am convicted of “first offense,” “second offense” or “felony” Domestic Battery at a time when I was not a U.S. citizen, I may be removed, deported or excluded from entry into the United States, or denied naturalization, in addition to other consequences defined in the federal law. ________ If I am convicted of “first offense,” “second offense” or “felony” Domestic Battery, the judge may order me to participate in an alcohol or drug treatment program at my expense. ________ If I am convicted of “first offense,” “second offense” or “felony” Domestic Battery, and it appears that a child under the age of 18 years may need counseling as a result of the Domestic Battery, the judge may refer the child to an agency which provides protective services. The judge will require me to reimburse the agency for the costs of any services provided to the extent of my ability to pay for them.

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


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.


IF YOU HAVE BEEN ARRESTED AND ARE FACING DOMESTIC VIOLENCE BATTERY CHARGES CALL ME NOW!

702-382-9307


Law Office of Steven J Karen   

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