Allegations of harassment arise frequently in applications for protective orders, but what exactly is harassment pursuant to Nevada law? This allegation is probably most common when people in a domestic relationship have a disagreement which results in a verbal altercation. Most people's connotation of harassment is related to a persistent annoyance, but the conduct in question must go past annoyance under Nevada law to legally constitute harassment.
Harassment is defined by Nevada law as follows:
1. A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(1) To cause bodily injury in the future to the person threatened or to any other person;
(2) To cause physical damage to the property of another person;
(3) To subject the person threatened or any other person to physical confinement or restraint; or
(4) To do any act which is intended to substantially harm the person threatened or any other person with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out. If a court decides that person has committed an act that fits within this definition, the person is guilty of a misdemeanor crime. It is also enhanceable as a second conviction would be a gross misdemeanor. NRS 200.571
As stated above, this allegation normally appears in applications to the court for protective orders and not as a criminal charge. Even in the applications, the conduct in question must fit the definition of harassment. Adverse parties must take into account that, as discussed in this blog in previous posts, the burden of proof is significantly lower to have a protective order issued than it is for a guilty verdict in a criminal case. It is important to consult an attorney if a protective order has been issued against you as some allegations in applications for protective orders do not rise to the level of harassment as a matter of law, and an attorney should be able to have the protective order dissolved.
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.
Tuesday, November 1, 2011
Thursday, October 6, 2011
Subpoena Power Over Witnesses Who Live Outside of Nevada
Extra procedural steps must be taken to secure the presence of witnesses who reside outside of the state of Nevada. Nevada courts only have jurisdiction, or power, to control people who are within Nevada's borders. In order to command people from other states to appear in a Nevada court as a witness, a Nevada court can issue a certificate to the court in the county where the witness resides. The law is called the Uniform Act To Secure the Attendance of Witnesses From Without a State in Criminal Proceedings which the vast majority of states in the U.S. have adopted into their own state laws.
In Nevada for witnesses who are located out of state, it reads: 1. If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this State, is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation which has commenced or is about to commence, a judge of such a court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to ensure the witness's attendance in this State. This certificate must be presented to a judge of a court of record in the county in which the witness is found.
2. If the witness is summoned to attend and testify in this State the witness is entitled to receive the amount required by NRS 50.225 for subsistence and travel expenses. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this State a longer period of time than the period mentioned in the certificate unless otherwise ordered by the court. If such witness, after coming into this State, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State. NRS 174.425
The prosecutor must take these steps to obtain power to order the witness to appear in a Nevada court. This power really comes from the court of the sister state who Nevada is requesting to appear as the Nevada court cannot control what happens to people in other states. Although their are unifrom acts which allow for standardized rules between the states, it is ultimately up to the other state to get the witness from within its borders.
For a more in-depth discussion of this area of law, or others that deal with subpoenas and witnesses, please contact me through georgeforjustice.com
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.
In Nevada for witnesses who are located out of state, it reads: 1. If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this State, is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation which has commenced or is about to commence, a judge of such a court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to ensure the witness's attendance in this State. This certificate must be presented to a judge of a court of record in the county in which the witness is found.
2. If the witness is summoned to attend and testify in this State the witness is entitled to receive the amount required by NRS 50.225 for subsistence and travel expenses. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this State a longer period of time than the period mentioned in the certificate unless otherwise ordered by the court. If such witness, after coming into this State, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State. NRS 174.425
The prosecutor must take these steps to obtain power to order the witness to appear in a Nevada court. This power really comes from the court of the sister state who Nevada is requesting to appear as the Nevada court cannot control what happens to people in other states. Although their are unifrom acts which allow for standardized rules between the states, it is ultimately up to the other state to get the witness from within its borders.
For a more in-depth discussion of this area of law, or others that deal with subpoenas and witnesses, please contact me through georgeforjustice.com
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.
Friday, August 19, 2011
Nevada vs. California: Comparative Penalties for a Domestic Violence Conviction
Many people believe that the penalties in Nevada for a Battery Domestic Violence conviction are more severe than in other states. In a situation where there is a verbal argument and minimal physical contact, a typical statement from a reluctant or recanting alleged victim or defendant is: "In California, this never would have been blown out of proportion like it is here. No one would have been arrested and charged with a crime there, and the penalties aren't as bad."
The California misdemeanor Battery Domestic Violence statute is included below.
(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as defined in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.
(2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
(3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.
(4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed. Cal Pen Code § 243
In comparing the two Domestic Violence laws, the California law is clearly more severe. First, the California law allows for confinement in jail for up to 1 year. The Nevada law allows for a 6 month maximum. The California law allows for double the maximum fine ($2,000.00) of Nevada ($1,000.00). The California law states that the batterer must attend counseling sessions for at least 1 year. The Nevada law states 6 months to 1 year. The California statute allows for payments to a women's shelter of up to $5,000.00, and reimbursements for costs of counseling to a victim. The Nevada statute does not have these provisions. The Nevada laws against Domestic Violence can seem harsh, especially in certain situations, but the California laws are even more severe.
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 California misdemeanor Battery Domestic Violence statute is included below.
(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as defined in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.
(2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
(3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence.
(4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed. Cal Pen Code § 243
In comparing the two Domestic Violence laws, the California law is clearly more severe. First, the California law allows for confinement in jail for up to 1 year. The Nevada law allows for a 6 month maximum. The California law allows for double the maximum fine ($2,000.00) of Nevada ($1,000.00). The California law states that the batterer must attend counseling sessions for at least 1 year. The Nevada law states 6 months to 1 year. The California statute allows for payments to a women's shelter of up to $5,000.00, and reimbursements for costs of counseling to a victim. The Nevada statute does not have these provisions. The Nevada laws against Domestic Violence can seem harsh, especially in certain situations, but the California laws are even more severe.
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.
Wednesday, August 10, 2011
Why Can't I Just Drop the Case?
In many instances of Domestic Violence cases, alleged victims wonder why they cannot just "drop" the charges against a defendant. The alleged victim is the one who is "pressing" the charge, so why can't they let it go after everything calms down. Many times, alleged victims and defendants are under the impression that if they were in a different jurisdiction, namely another state, they would be able to control whether the prosecution goes forward in the case or not.
In a criminal prosecution in Nevada, the governmental entity (normally city or state) is the Plaintiff, not the alleged victim. The alleged victim in a criminal case in Nevada is only a potential witness in the case, and not necessarily an essential witness in the case. This means the prosecutor will move forward if he believes that he can prove the case beyond a reasonable doubt with or without the alleged victim. If the alleged victim was the Plaintiff in civil litigation or an applicant for a protective order, they could control whether the case moves forward or not, but not in a criminal case here.
The public policy behind not allowing alleged victims to ultimately control whether or not to proceed in a criminal case is really about pressure extended towards alleged victims to drop charges from defendants or other third parties. This could be through a number of means both psychological and physical. It could be anything from actual physical violence, threats of violence, shame, or potential financial consequences of the conviction for a family. This is the rationale behind why alleged victims are not allowed to "drop" charges and end a case. Normally, alleged victims do have some input as to what actions a prosecutor will take in resolving a case, so there is some control in that respect.
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.
In a criminal prosecution in Nevada, the governmental entity (normally city or state) is the Plaintiff, not the alleged victim. The alleged victim in a criminal case in Nevada is only a potential witness in the case, and not necessarily an essential witness in the case. This means the prosecutor will move forward if he believes that he can prove the case beyond a reasonable doubt with or without the alleged victim. If the alleged victim was the Plaintiff in civil litigation or an applicant for a protective order, they could control whether the case moves forward or not, but not in a criminal case here.
The public policy behind not allowing alleged victims to ultimately control whether or not to proceed in a criminal case is really about pressure extended towards alleged victims to drop charges from defendants or other third parties. This could be through a number of means both psychological and physical. It could be anything from actual physical violence, threats of violence, shame, or potential financial consequences of the conviction for a family. This is the rationale behind why alleged victims are not allowed to "drop" charges and end a case. Normally, alleged victims do have some input as to what actions a prosecutor will take in resolving a case, so there is some control in that respect.
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.
Thursday, July 14, 2011
Definition of Domestic Violence in Nevada
Nevada law defines Domestic Violence in the following way:
"1. Domestic violence occurs when a person commits one of the following acts against or upon the person's spouse or former spouse, any other person to whom the person is related by blood or marriage, 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, any other person with whom the person has a child in common, the minor child of any of those persons, the person's minor child or any other person who has been appointed the custodian or legal guardian for the person's minor child:
(a) A battery.
(b) An assault.
(c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform
(d) A sexual assault.
(e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:
(1) Stalking.
(2) Arson.
(3) Trespassing.
(4) Larceny.
(5) Destruction of private property.
(6) Carrying a concealed weapon without a permit.
(7) Injuring or killing an animal.
(f) A false imprisonment.
(g) Unlawful entry of the other person's residence, or forcible entry against the other person's will if there is a reasonably foreseeable risk of harm to the other person from the entry.
2. As used in this section, "dating relationship" means 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." NRS § 33.018
This definition encompasses a large continuum of activity, and if a Complainant testifies that any of these acts was committed on him, a protective order may be issued. As stated in this blog previously, the issuance of a protective order against you could cause you significant harm, especially regarding your employment if a background check is conducted. It could also have an effect on family law matters. This is why it is important to defend yourself against these claims, even if you are not concerned about the protective order itself and its restrictions. Sometimes a resolution can be attained that avoids the issuance of a protective order.
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.
"1. Domestic violence occurs when a person commits one of the following acts against or upon the person's spouse or former spouse, any other person to whom the person is related by blood or marriage, 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, any other person with whom the person has a child in common, the minor child of any of those persons, the person's minor child or any other person who has been appointed the custodian or legal guardian for the person's minor child:
(a) A battery.
(b) An assault.
(c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform
(d) A sexual assault.
(e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:
(1) Stalking.
(2) Arson.
(3) Trespassing.
(4) Larceny.
(5) Destruction of private property.
(6) Carrying a concealed weapon without a permit.
(7) Injuring or killing an animal.
(f) A false imprisonment.
(g) Unlawful entry of the other person's residence, or forcible entry against the other person's will if there is a reasonably foreseeable risk of harm to the other person from the entry.
2. As used in this section, "dating relationship" means 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." NRS § 33.018
This definition encompasses a large continuum of activity, and if a Complainant testifies that any of these acts was committed on him, a protective order may be issued. As stated in this blog previously, the issuance of a protective order against you could cause you significant harm, especially regarding your employment if a background check is conducted. It could also have an effect on family law matters. This is why it is important to defend yourself against these claims, even if you are not concerned about the protective order itself and its restrictions. Sometimes a resolution can be attained that avoids the issuance of a protective order.
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.
Monday, July 11, 2011
Sealing Records for a Battery Domestic Violence Conviction
Another law that makes convictions for domestic violence worse than other misdemeanor convictions is the statute that allows for the sealing of records. For most misdemeanors, two years after the case is completed, your records can be sealed, and it is as if the event never occurred. The record sealing, or expungement, statutes give people who have a limited criminal history a second chance at keeping their records clean. For misdemeanor Battery Domestic Violence, defendants must wait seven years after the completion of the case.
NRS 179.245 states: "1. Except as otherwise provided in subsection 5 and NRS 176A.265, 176A.295, 179.259, 453.3365, and 458.330, a person may petition the court in which the person was convicted for the sealing of all records relating to a conviction of:
(a) A category A or B felony after 15 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(b) A category C or D felony after 12 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(c) A category E felony after 7 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(d) Any gross misdemeanor after 7 years from the date of release from actual custody or discharge from probation, whichever occurs later;
(e) A violation of NRS 484C.110 or 484C.120 other than a felony, or a battery which constitutes domestic violence pursuant to NRS 33.018 other than a felony, after 7 years from the date of release from actual custody or from the date when the person is no longer under a suspended sentence, whichever occurs later; or
(f) Any other misdemeanor after 2 years from the date of his release from actual custody or from the date when the person is no longer under a suspended sentence, whichever occurs later." (underline added).
This means that our lawmakers have decided that a conviction for misdemeanor domestic violence is akin to a low level felony conviction when it comes to being able to clean up your criminal history. This is just another reason to hire competent legal representation to defend a domestic violence 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.
NRS 179.245 states: "1. Except as otherwise provided in subsection 5 and NRS 176A.265, 176A.295, 179.259, 453.3365, and 458.330, a person may petition the court in which the person was convicted for the sealing of all records relating to a conviction of:
(a) A category A or B felony after 15 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(b) A category C or D felony after 12 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(c) A category E felony after 7 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later;
(d) Any gross misdemeanor after 7 years from the date of release from actual custody or discharge from probation, whichever occurs later;
(e) A violation of NRS 484C.110 or 484C.120 other than a felony, or a battery which constitutes domestic violence pursuant to NRS 33.018 other than a felony, after 7 years from the date of release from actual custody or from the date when the person is no longer under a suspended sentence, whichever occurs later; or
(f) Any other misdemeanor after 2 years from the date of his release from actual custody or from the date when the person is no longer under a suspended sentence, whichever occurs later." (underline added).
This means that our lawmakers have decided that a conviction for misdemeanor domestic violence is akin to a low level felony conviction when it comes to being able to clean up your criminal history. This is just another reason to hire competent legal representation to defend a domestic violence 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.
Wednesday, June 22, 2011
Domestic Violence and Child Custody
As stated previously in this blog, convictions for domestic violence can have far reaching consequences. Many people are unaware of many of these consequences and find out about them after they have taken irreversable steps in a Domestic Violence case. One of these consequences deals with child custody disputes.
NRS § 125.480 states,
5. ...a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.
6. If after an evidentiary hearing held pursuant to subsection 1 the court determines that more than one party has engaged in acts of domestic violence, it shall, if possible, determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:
(a) All prior acts of domestic violence involving any of the parties;
(b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;
(c) The likelihood of future injury;
(d) Whether, during the prior acts, one of the parties acted in self-defense; and
(e) Any other factors that the court deems relevant to the determination.
In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies to each of the parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies only to the party determined by the court to be the primary physical aggressor.
...
The specifics of everyone's situation are always different, and a strategy in one case may not be effective in another, but people need to be aware of these consequences. These consequences can also be used by sophisticated people in sinister ways, so attorneys need to take these domestic laws into account when strategizing about 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.
NRS § 125.480 states,
5. ...a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.
6. If after an evidentiary hearing held pursuant to subsection 1 the court determines that more than one party has engaged in acts of domestic violence, it shall, if possible, determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:
(a) All prior acts of domestic violence involving any of the parties;
(b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;
(c) The likelihood of future injury;
(d) Whether, during the prior acts, one of the parties acted in self-defense; and
(e) Any other factors that the court deems relevant to the determination.
In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies to each of the parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies only to the party determined by the court to be the primary physical aggressor.
...
The specifics of everyone's situation are always different, and a strategy in one case may not be effective in another, but people need to be aware of these consequences. These consequences can also be used by sophisticated people in sinister ways, so attorneys need to take these domestic laws into account when strategizing about 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.
Friday, May 13, 2011
Mental Illness in Domestic Relationships
Mental illness is a pervasive issue in society and will probably always be part of the human condition. There are a wide range of problems to deal with from depression to schizophrenia. Our society is developing new ways of treating mental illness at a rapid pace, but many times mental illness goes undiagnosed, untreated or mistreated for long periods of time. Normally, it is these untreated or mistreated issues that give rise to mental illnesses playing a role in domestic violence cases.
This topic is very complex, and it cannot be covered sufficiently in this small blog entry, but you should know that it can play a role in the defense of a criminal case, and the facts of a Defendant's specific case can be addressed in great detail with their individual attorney.
Mental illness can become part of a criminal case in a number of different ways. In some circumstances, mental illness can be a factor in an insanity or competency defense. These are usually not much of a factor in any criminal cases, nevertheless misdemeanor domestic violence cases.
In other cases, problems with mental illness can be used in more subtle ways.
In cases where alleged victims of Battery Domestic Violence have a mental illness, a few issues that should be evaluated are: capacity to perceive events, inability to control one's actions, or self-defense defenses. These can be raised in Battery Domestic Violence trials or negotiations with prosecutors.
For Defendants with mental health issues, interaction with the criminal justice system may allow them another chance to address problems with proper diagnoses and treatment. Mental health problems can sometimes be discussed with a prosecutor or judge in mitigation of aggravating events in a case, and potential treatments for these conditions can be integrated into sentences.
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.
This topic is very complex, and it cannot be covered sufficiently in this small blog entry, but you should know that it can play a role in the defense of a criminal case, and the facts of a Defendant's specific case can be addressed in great detail with their individual attorney.
Mental illness can become part of a criminal case in a number of different ways. In some circumstances, mental illness can be a factor in an insanity or competency defense. These are usually not much of a factor in any criminal cases, nevertheless misdemeanor domestic violence cases.
In other cases, problems with mental illness can be used in more subtle ways.
In cases where alleged victims of Battery Domestic Violence have a mental illness, a few issues that should be evaluated are: capacity to perceive events, inability to control one's actions, or self-defense defenses. These can be raised in Battery Domestic Violence trials or negotiations with prosecutors.
For Defendants with mental health issues, interaction with the criminal justice system may allow them another chance to address problems with proper diagnoses and treatment. Mental health problems can sometimes be discussed with a prosecutor or judge in mitigation of aggravating events in a case, and potential treatments for these conditions can be integrated into sentences.
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.
Wednesday, April 27, 2011
Prosecutor's Don't Care, They Just Want Convictions
Maybe some don't care, but the vast majority of them do. In a situation where a Defendant has been charged with Domestic Violence and an alleged victim doesn't want the Defendant to be prosecuted, sometimes the best strategy in a case is for the alleged victim to tell the prosecutor face to face. The only thing that prosecutors normally see before a trial setting in a misdemeanor case is statements on paper. When a prosecutor reads a statement made by police officer, it is going to be presented in a fashion that makes the officer's decision look good. It is just human nature. Prosecutors deal with a wide range of cases, some are very serious, others are not serious at all, but sometimes the line between these cases gets blurred. When a prosecutor sits down with an alleged victim and the alleged victim tells them face to face about the incident, it can help the Defendant's case in some situations. Defendant's need an attorney with experience in Domestic Violence cases to evaluate the total situation, and the best strategy may include the alleged victim telling the prosecutor about what happened.
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.
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.
Wednesday, April 13, 2011
Subpoenas and Battery Domestic Violence cases
Many witnesses, including alleged victims, have questions regarding subpoenas in a criminal case, especially domestic violence cases. Often, the alleged victim in a battery domestic violence case does not want to testify against the defendant in a case for a multitude of different reasons.
Compelling people to appear in court to tell their version of events is essential to the criminal justice system. In order for a prosecutor to obtain a criminal conviction, he must prove a case beyond a reasonable doubt at trial. In order to do this, the state must introduce evidence that leads a trier of fact (judge or jury) to believe the defendant committed the crime in question. In most cases, this evidence mostly comes from the testimony of witnesses. This is especially true in battery domestic violence cases.
In order for a witness to have an obligation to appear in court to testify in a criminal case, they must be properly served with a subpoena. The law regarding service of the subpoena in a criminal case is as follows:
NRS 174.345 states:
"Service of subpoena. 1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed."
Below are the repercussions if a witness fails to attend the court date in question.
NRS 174.385 states that, "Failure by any person without adequate excuse to obey a subpoena of a court or a prosecuting attorney served upon the person or, in the case of a subpoena issued by a prosecuting attorney, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney, of the court in which the investigation is pending or the indictment, information or complaint is to be tried."
There are also other provisions of the law which enable a prosecutor to obtain a warrant for a witness's arrest if it can be shown that the subpoena was properly served and the witness failed to attend the hearing.
If you are a witness in a criminal case and you have questions about the process, please contact the law office of Pezzillo Robinson through georgeforjustice.com.
Compelling people to appear in court to tell their version of events is essential to the criminal justice system. In order for a prosecutor to obtain a criminal conviction, he must prove a case beyond a reasonable doubt at trial. In order to do this, the state must introduce evidence that leads a trier of fact (judge or jury) to believe the defendant committed the crime in question. In most cases, this evidence mostly comes from the testimony of witnesses. This is especially true in battery domestic violence cases.
In order for a witness to have an obligation to appear in court to testify in a criminal case, they must be properly served with a subpoena. The law regarding service of the subpoena in a criminal case is as follows:
NRS 174.345 states:
"Service of subpoena. 1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed."
Below are the repercussions if a witness fails to attend the court date in question.
NRS 174.385 states that, "Failure by any person without adequate excuse to obey a subpoena of a court or a prosecuting attorney served upon the person or, in the case of a subpoena issued by a prosecuting attorney, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney, of the court in which the investigation is pending or the indictment, information or complaint is to be tried."
There are also other provisions of the law which enable a prosecutor to obtain a warrant for a witness's arrest if it can be shown that the subpoena was properly served and the witness failed to attend the hearing.
If you are a witness in a criminal case and you have questions about the process, please contact the law office of Pezzillo Robinson through georgeforjustice.com.
Thursday, March 10, 2011
Battery Domestic Violence Cases and Armed Forces Enlistment
There are clearly serious ramifications for Battery Domestic Violence convictions in the civilian world which this blog has discussed on numerous occasions, but there are also serious ramifications for much less than a conviction if you want to enlist in the military. In the case of the Air Force, a moral eligibility determination (MED) will be made "on each applicant whose moral suitability is in question." It is clear that the Air Force wants to see everything. If you have ever been charged with a crime, they want to know about it regardless of the disposition. The Air Force does this, "To protect the Air Force’s interests, MEDs are made on available information about a person’s conduct rather than on the outcome of a legal proceeding." The Air Force is also interested in all "adverse adjudications." These are defined as, "A finding, decision, sentence, or judgment that was other than unconditionally dropped, dismissed, or acquitted. If the adjudicating authority places a condition or restraint that leads to dismissal or is dismissed after a certain period of time, drops the charges, acquits, or the records are later expunged, the adjudication is still adverse. Suspension of sentence, pardon, not processed, or dismissal after compliance with imposed conditions is also adverse adjudication. If a person is charged and convicted of violating any federal (including UCMJ offenses), state, or municipal law or ordinance, that conviction is considered an adverse adjudication." Waivers are available for most criminal conduct if applicants are "highly qualified and motivated." Mitigating circumstances are also considered as part of the decision to grant a waiver.
Anyone who wants to join the military and has a criminal history should consult a lawyer who has knowledge of these regulations. The regulations are voluminous, dense, and detailed, and they are not always consistent. Although disclosure may be warranted in a case, consulting an attorney may help an applicant to formulate and converse about mitigating factors in a more meaningful and concise way. This may help an applicant in the waiver process.
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.
Anyone who wants to join the military and has a criminal history should consult a lawyer who has knowledge of these regulations. The regulations are voluminous, dense, and detailed, and they are not always consistent. Although disclosure may be warranted in a case, consulting an attorney may help an applicant to formulate and converse about mitigating factors in a more meaningful and concise way. This may help an applicant in the waiver process.
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.
Tuesday, March 1, 2011
New Clark County Domestic Violence Court
In the Las Vegas Township, Battery Domestic Violence cases will now be heard by one judge. An administrative order was signed on January 11, 2011 by Chief Las Vegas Township Justice Court Judge Karen Bennett-Haron which created specialty courts in the Las Vegas Township Justice Court for Domestic Violence and DUI cases. Pursuant to this order, Judge Melisa Saragosa will hear a segregated caseload of Domestic Violence cases. This change will affect the defense Battery Domestic Violence cases in the Las Vegas valley. There are certain strategies in cases that will not work as well because Battery Domestic Violence cases are now centralized in one court. It becomes more important than ever to retain a counselor who is familiar with the new procedures in this court, the judge herself, and the prosecutors.
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.
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.
Wednesday, January 26, 2011
Factors Used in Determining the Dominant Aggressor
Pursuant to Nevada law when police officers arrive at a situation where there is an allegation of Domestic Violence, "the peace officer shall attempt to determine which person was the primary physical aggressor." NRS § 171.137. This evaluation becomes more difficult when there is mutual physicality between the participants.
Pursuant to the State of Nevada Domestic Violence Prosecution Best Practice Guidelines,
"In situations where more than one domestic violence incident may have occurred, the "primary" aggressor is the person determined to be the dominant aggressor, not necessarily the first person to use force or violence. In making this determination, the following should be considered:
a. The comparative extent of injuries or serious threats creating a fear of physical injury.
b. The domestic violence history between the parties involved.
c. The comparative sizes and vulnerability of the parties involved.
d. The demeanor of the parties involved, paying attention to excited utterances and emotional state.
e. Any weapons used or threatened for use by either party.
f. Any claims of self-defense, defense of others, defense of property, coersion, or trespass. The presence of defensive wounds, which may incude scratches to the suspect's face arms and hands or to the victim's neck in cases involving strangulation.
g. Any witness statements.
h. Whether there was an excessive response to the other parties' actions and/or time delay between domestic violence incidents.
i. Whether there was a time delay between domestic violence incidents.
j. The environment in which the violence occurred."
These factors are not always used by officers, and when they are used, they are not always used properly. These factors can produce good defenses in many cases, but you need to retain counsel who will spend time to fully develop 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.
Pursuant to the State of Nevada Domestic Violence Prosecution Best Practice Guidelines,
"In situations where more than one domestic violence incident may have occurred, the "primary" aggressor is the person determined to be the dominant aggressor, not necessarily the first person to use force or violence. In making this determination, the following should be considered:
a. The comparative extent of injuries or serious threats creating a fear of physical injury.
b. The domestic violence history between the parties involved.
c. The comparative sizes and vulnerability of the parties involved.
d. The demeanor of the parties involved, paying attention to excited utterances and emotional state.
e. Any weapons used or threatened for use by either party.
f. Any claims of self-defense, defense of others, defense of property, coersion, or trespass. The presence of defensive wounds, which may incude scratches to the suspect's face arms and hands or to the victim's neck in cases involving strangulation.
g. Any witness statements.
h. Whether there was an excessive response to the other parties' actions and/or time delay between domestic violence incidents.
i. Whether there was a time delay between domestic violence incidents.
j. The environment in which the violence occurred."
These factors are not always used by officers, and when they are used, they are not always used properly. These factors can produce good defenses in many cases, but you need to retain counsel who will spend time to fully develop 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.
Thursday, January 6, 2011
A Domestic Violence Conviction Makes You Deportable
If you lawfully enter the United States on a visa, or you are a lawful permanent resident, you will become automatically deportable if you are convicted of domestic violence or of violating a protective order. The federal law states:
"(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children [and].
(i) Domestic violence, stalking, and child abuse. Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
(ii) Violators of protection orders. Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding." 8 USCS § 1227.
If you are in the United States on a visa or here as a permanent resident, a conviction for domestic violence becomes even more devastating for you and your family. Not only will you have to complete extensive counseling, pay fines, do community service, and lose your right to bear arms, you will also lose your ability to lawfully stay in the country. Therefore, if you are here on a visa or you are an LPR/green card holder, it becomes even more important to obtain strong, competent counsel for the defense of 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.
"(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children [and].
(i) Domestic violence, stalking, and child abuse. Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
(ii) Violators of protection orders. Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding." 8 USCS § 1227.
If you are in the United States on a visa or here as a permanent resident, a conviction for domestic violence becomes even more devastating for you and your family. Not only will you have to complete extensive counseling, pay fines, do community service, and lose your right to bear arms, you will also lose your ability to lawfully stay in the country. Therefore, if you are here on a visa or you are an LPR/green card holder, it becomes even more important to obtain strong, competent counsel for the defense of 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.
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