Conviction for Misdemeanor Battery Domestic Violence = NO GUNS

Pursuant to federal law, if you are convicted of a misdemeanor crime of domestic violence, it is unlawful to possess a firearm.  For some people, this is the worst of many consequences (i.e. enhancability, long term counseling, jail time, cost) of a conviction for domestic violence, especially if you are or would like to become a member of law enforcement or the armed forces.  The law states:

(g) It shall be unlawful for any person--
   (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
   (2) who is a fugitive from justice;
   (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
   (4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
   (5) who, being an alien--
      (A) is illegally or unlawfully in the United States; or
      (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
   (6) who has been discharged from the Armed Forces under dishonorable conditions;
   (7) who, having been a citizen of the United States, has renounced his citizenship;
   (8) who is subject to a court order that--
      (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
      (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
         (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
   (9) who has been convicted in any court of a misdemeanor crime of domestic violence,
 to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 USCS § 922

If you are charged with misdemeanor crime involving domestic violence and you want to preserve your ability to legally possess firearms, you must not be convicted of a crime of domestic violence, misdemeanor or felony.  Whether aviodance of the conviction comes from a negotiation to a lesser offense or a not guilty verdict at trial, your best chance to keep your right to legally possess firearms is to retain a counselor who will dedicate enough time and energy to present the best defenses in your case.

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Attorney's Fees May Be Awarded If False Affidavit Filed

There is a specific provision included in the local rules of the Clark County courts that allows for attorney's fees to be issued to an Adverse Party for defending itself against an improperly filed Protective Order.  "(n) The applicant may be ordered to pay all costs and fees incurred by the adverse party if by clear and convincing evidence it is proven that the applicant knowingly filed a false or intentionally misleading affidavit."
Nev. EDCR 5.22.  Along with having to show there was fraud, the standard of proof evincing the fraud is very high, "clear and convincing evidence."  This is contrary to the standard of proof for obtaining a Protective Order which is very low "to the satisfaction of the court."  In rare cases, it may be possible to be awarded attorney's fees.   One scenario could be if an Applicant included facts in an application that he was in Las Vegas when an Adverse Party provided phone records or plane tickets evidencing that they were in Oregon.  There are also other rules and case law that could be employed to request an award of attorney's fees to an Adverse Party.  It is very difficult to obtain an award of attorney's fees in any civil case, but, in certain cases, it may be possible for an Adverse Party to be awarded attorney's fees.  Please remember, attorney's fees can be awarded to the Applicant as well, and it is easier for the court to do so. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

How do you spell TPO? G-U-N

If the word "gun" appears in an Applicant's statement of facts, a protective order will be issued.  Even without the word gun, protective orders are easy to get.  The burden of proof needed for a judge or hearing master to issue a TPO is very low.  Pursuant to NRS§ 33.020, "If it appears to the satisfaction of the court from specific facts shown by a verified application that an act of domestic violence has occurred or there exists a threat of domestic violence..." the court may issue protective order.  For many reasons (political, abundance of caution, public policy, etc.), if there is an allegation of a gun involved in any event of domestic violence, a protective order will be issued against the Adverse Party.  From a prosecutorial perspective, taking action against a person who owns a gun is preventing a murder.
What does this mean?  From a defense perspective, it can give a pretext for lying.  Allegations become exponentially more powerful, so there could be a larger rationale to lie or exaggerate facts in an application when they pertain to guns.  It also means that your 2nd Amendment rights will be taken from you for extended period of time. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

He Said ... She Said

He said, she said is a common way for laypeople to describe the majority of battery domestic violence cases.  Many defendants have the impression that they cannot be convicted in a case that is "he said, she said."  This is false.  Many criminal cases are based mostly or entirely on testimonial evidence, not readily apparent injuries or other corroborating evidence.  If the finder of fact (judge or jury) in a criminal case believes that the testimony is credible, then a defendant can be found guilty of a crime based on testimony alone.
Looking at jury instructions is a simple, straightforward way to review some legal concepts.  Instructions on testimonial evidence and the credibility of witnesses differ slightly from juridiction to jurisdiction, but they are all similar to this one.  "In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe.  You may believe all of what a witness said, or only part of it, or none of it.  In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence you believe."  Eighth Circuit CA Preliminary Jury Instruction 1.05.
This jury instruction takes into account corroborating evidence, but it is not necessarily a determining factor.  It is true that a case based on testimonial evidence is normally easier for a defense attorney to refute, but these cases can still be difficult to handle and a significant amount of work needs to be done to investigate and prepare in order to perform an adequate examination of a hostile witness.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

The Prosecutor Must Go Forward

Battery Domestic Violence is different from many other crimes because a prosecutor cannot dismiss or negotiate down to a lesser charge unless he believes the charge cannot be proven at trial.  Nevada law states, "If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial."  Nev. Rev. Stat. Ann. § 200.485.  This makes a Battery Domestice Violence case more difficult to resolve.  A defense attorney cannot argue to a prosecutor purely mitigating evidence, i.e. productive member of society, no previous criminal history, involved in community or charitable activities, etc.  This evidence may still be needed as it could contribute to a defendant's credibility, but pursuant to Nevada law, unless the prosecutor believes he cannot prove the case, the defendant must enter a guilty plea to the charge of Battery Domestic Violence or go to trial on the charge.  This is the reason that many Battery Domestic Violence cases must either go to trial or resolve just before trial, so a defense attorney usually has to work harder on domestic violence cases than many other cases.

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

When is the Relationship Over?

As stated previously in this blog, there are two things which must be proven in a Battery Domestic Violence case: a domestic relationship and a battery.  Most issues in these cases come from the element of battery.  Did a battery actually occur as alleged?  Are there legal or factual defenses to this battery? 
Rarely cases deal with the other side, the domestic relationship.  Normally, this relationship is obvious because the alleged victim and defendant are currently dating or married.  Along with being a blood relative, spouse or former spouse, or having a child in common, the domestic relationship is defined as, "any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship"  Nev. Rev. Stat. Ann. § 33.018(1).  The statute goes on to define dating relationship as, "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context."  Nev. Rev. Stat. Ann. § 33.018(2).  What if the alleged victim and defendant dated for 6 months in 1997, but they still associate with the same people, and they get into a minor physical altercation while drinking at a party?  What if someone was a roommate two and a half years ago for a month?  Should the additional "domestic relationship" penalties apply in these cases, or should they be prosecuted as simple batteries?  These can be very difficult questions to answer, and they need to be addressed in a strategic manner to get the most fair result.

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Municipal Court v. County Court 1

In a Battery Domestic Violence case, are there differences in the defense strategy if you are charged in the City of Las Vegas, Henderson, or North Las Vegas versus Clark County?  Yes, there are many differences, but one I would like to point out today is the mindset of the a prosecutor in municipal court versus county court with regard to severity of the crime allegedly committed.  There is an inherent value assigned to cases by prosecutors and defense attorneys.  It is human nature to assign these values.  For the most part, prosecutors in Clark County deal with felony, gross misdemeanor, and misdemeanor cases.  They see bloody, violent, nasty cases, and they see disputes with little violence and no harm.  Prosecutors in Municipal Court see only misdemeanors,  which are not as bloody or nasty.  In Municipal Court, the worst thing you could be convicted of is Battery Domestic Violence.  In County Court, you can get the death penalty for first degree murder.  The mindset can be different in the two forums and must be taken into account. 

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

What is an Unlawful Use of Force?

In many situations where physical force is used by one person against another, the lawfulness of that force is in question.  For example, if a wife is intoxicated and attempts to drive a car, can her husband use physical force and prevent her from driving the car while intoxicated?  What if roughhousing goes a little further than one person wants?  As defined pursuant to Nevada law a Battery is, "any willful and unlawful use of force or violence upon the person of another."  The question is what is unlawful force.  In Nevada, that term seems to be undefined with respect to Battery.  In California, where the definition of Battery is identical, case law indicates that an unlawful use of force is "a harmful or offensive touching." People v. Martinez, 3 Cal App 3rd 886 (1970).  These terms encompass a wide range of physical contact and subjectively differ from person to person.  The above scenarios can be very tricky from a prosecutorial and defense perspective, but, if these situations are not defended effectively, it could equal a criminal conviction, jail time, or other punishment.

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Battery Domestic Violence charges and TPOs: the effect on CCW permits

Do you want to lose your CCW permit without any notice or a hearing?  If a Temporary Protective Order is issued against you or you are charged with Battery Domestic Violence, your CCW permit will be taken.  Protective orders are issued in many cases where there is an allegation of Domestic Violence.  When police are called to a domestic disturbance and a primary aggressor is identified and arrested, the police will encourage an alleged victim of domestic violence to obtain a temporary protective order (TPO) against the person who was arrested. Either way, if you have a CCW, it is going to be suspended or revoked.
Protective orders are easy to obtain as the burden for an applicant (alleged victim) to show a judge is very low. Even without a Battery Domestic Violence charge, anyone can go to the courthouse and fill out an application, and a TPO will normally be issued by the court without notice and without a hearing. There can be serious ramifications to the issuance of these orders. One is the revocation of the permitee's CCW.
Also, when a CCW permitee is charged (not convicted) with Battery Domestic Violence, the permitee's CCW will be suspended. If the charge is eventually dropped or the defendant is acquitted, the permit shall be restored.  This is just one more reason that Battery Domestic Violence is such a serious charge.

If you have been charged with Battery Domestic Violence or any other related crime or if a TPO has been issued against you, please visit georgeforjustice.com.

Felony Battery Domestic Violence with Strangulation Crime

In the state of Nevada, there is a new law regarding incidents of Battery Domestic Violence which involve an allegation of strangulation. This law took effect in 2009. The law defines strangulation as:  "intentionally impeding the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person in a manner that creates a risk of death or substantial bodily harm." NRS 200.481(1)(h).  This definition is specific as to the act(s) which needs to be carried out before a conviction can be had. There are many scenarios of physical altercations which could take place where the neck or throat is contacted, but the crime of strangulation does not take place. georgeforjustice.com has seen a number of cases where my client had been charged with the Strangulation crime, but I did not believe the State could prove the charge because the contact with the neck or throat did not arise to the level of Strangulation pursuant to the statute's definition. From my experience, if the word “choke” appears anywhere in a statement, it is highly likely that the felony crime of Battery Domestic Violence with Strangulation will be charged. Many of these cases have very legitimate factual and legal defenses, which makes it even more beneficial to retain competent counsel.

If you have been charged with Battery Domestic Violence or related crime, or if a TPO has been issued against you, please visit georgeforjustice.com.

Must Wait 7 Years to Seal Records after Battery Domestic Violence Conviction

Most Battery Domestic Violence cases in the state of Nevada are misdemeanors, i.e. no deadly weapon involved, no strangulation, not a third offense, etc.  Nevada law states that most misdemeanors crimes can be sealed two years after the case has been completed, but Battery Domestic Violence is different.  A Battery Domestic Violence case cannot be sealed for 7 years after completion.  This means 7 years after everything has been finished in the case, including the mandatory 26 to 52 weeks of counseling and your informal probation. This is yet another penalty for a Battery Domestic Violence conviction that many defendants never know about. The additional time defendants must wait to seal their records makes it even more important to have a strong defense before it is too late.

If you have been charged with Battery Domestic Violence or related crime, or if a TPO has been issued against you, please visit georgeforjustice.com.

Longer periods of informal probation allowed in Battery Domestic Violence cases

In misdemeanor cases, if a defendant enters a guilty plea or is convicted of the crime, the judge has the ability to order the defendant to perform community service, pay fines, attend counseling sessions, or pay restitution to victims. In order to assure that the defendant complies with these requirements, a judge can order suspended jail time as well. This means that if the counseling or fines are not completed or paid within a certain time period, the judge can impose the suspended time and send a defendant to jail. In most misdemeanor cases, the time period in which the judge can order the suspended jail time is 2 years, but in Battery Domestic Violence cases it is 3 years. NRS 4.373. This is another reason that Battery Domestic Violence cases are more serious than the average misdemeanor case.

If you have been charged with Battery Domestic Violence or related crime, or if a TPO has been issued against you, please visit georgeforjustice.com.

Charges of Battery Domestic Violence not to be reduced by a prosecutor

Part of a defense attorney's job is to present mitigating factors regarding the individual or incident in question to a prosecuting attorney. Mitigating factors could be things like no previous criminal history, ties to the community like community service work, or facts leading up to a situation. With regard to Battery Domestic Violence cases, Nevada lawmakers have added the following language to the statute, "If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial." This means that prosecuting attorneys are not supposed to negotiate cases of Battery Domestic Violence to lesser crimes based on mitigation, like they can with other misdemeanors. A legal or factual issue with the prosecutor's case must be established in order for a prosecutor to reduce the charge.

If you have been charged with Battery Domestic Violence or related crime, or if a TPO has been issued against you, please visit georgeforjustice.com.

Domestic Relationship includes some In-Laws

In order to have a conviction for the crime of Battery Domestic Violence, there are two things which must be proven by a prosecutor to a court beyond a reasonable doubt. First is that a Battery took place. Second is that there was a domestic relationship between the victim and the defendant. One of the ways in which a domestic relationship exists pursuant to Nevada law is if the individuals are "related by blood or marriage." The Nevada Supreme Court has defined "related by blood or marriage" to include some In-Laws. The Court states, "We conclude that, by its plain meaning, the term "related by blood or marriage" includes the relationship between a sister-in-law and a brother-in-law. First, a person of ordinary intelligence would interpret the phrase "related by blood or marriage" to include a person's direct in-laws. This is underscored by the inclusion of "spouses" as well as relatives "by marriage" as victims under the statute. Second, utilization of the term "related by blood or marriage" plainly rejects a construct limiting culpability for domestic battery to relationships between the perpetrator and victim based upon consanguinity. Therefore, we conclude that NRS 33.018 plainly includes mothers-in-law, fathers-in-law, sisters-in-law, and brothers-in-law." City of Las Vegas v. Eighth Judicial Dist. Court of Nev., 188 P.3d 55, 58-59 (Nev. 2008). This case seems to indicate that some in-laws would fit the definition of domestic relationship, but for other in-laws it remains debatable.

If you have been charged with Battery Domestic Violence or related crime, or if a TPO has been issued against you, please visit georgeforjustice.com.