Las Vegas Justice Court and Municipal Court Procedures in a Misdemeanor Domestic Violence Case

If a person is charged with a crime, and they have never been part of the criminal justice system before, it can be a scary and unknown process.  Here is a general overview of the different steps in a misdemeanor criminal case in Clark County NV.

Las Vegas Township Justice Court -

If you are charged with Domestic Violence in the Las Vegas Justice Court, keep in mind that one court handles all of the misdemeanor Domestic Violence cases through trial.  This Court rotates between the LV Justice Court judges.  Currently, Melanie Andress-Tobiasson handles all of the Domestic Violence cases in the Las Vegas Township.  When hiring an attorney, the familiarity and success rate that he has had in this courtroom with this judge is important.

Arraignment - Normally, the first hearing in a misdemeanor case is called an arraignment.  An arraignment is a procedural hearing where the accused is brought before the court to plead before the court.  At this hearing the defendant is given a Complaint.  A Complaint is a document that describes the charges that are being levied against the defendant by the State.  At the arraignment in this Court, the vast majority of the time the defendant would automatically enter a not guilty plea and set the case for trial.  A trial date is given to the defendant which is normally about 60 days after the arraignment depending on the court's schedule.  These dates are quicker if the defendant is in jail.  In the LV Justice Court, the State normally provides the defense with some discovery at the arraignment.  Discovery is the disclosure of evidence that the State may try to present to the court in its case against the defendant if there was a trial or other evidentiary hearing.  The defense receives a discovery packet of documents that normally includes police reports, witness statements, photographs, and other documentary evidence. Bail amounts and other issues are sometimes argued at the arraignment.

Trial - Normally, the second hearing in LV Justice Court is the trial date.  A trial is an evidentiary hearing where the State presents evidence to the judge that the accused committed the crime charged in the Complaint.  In Nevada, the judge evaluates the evidence as the trier of fact in a misdemeanor case, not a jury.  The defense can also present evidence to the judge and object to the evidence presented against him.  The judge then decides whether the State has proven its case beyond a reasonable doubt.

Status Checks -  Status check hearings are held before a trial in a misdemeanor case, normally at the request of the defense attorney, in an attempt to negotiate a case with the State before a trial is necessary.  Status check hearings are also held after a negotiated settlement of the case or a guilty finding, so the Court can review whether a defendant has followed the terms of the agreement or the sentence of the Court. 

Other Hearings - Other hearings in a misdemeanor case can be set at the request of the different attorneys via Motion.  Motions can be argued before the Court regarding many different legal issues.

Las Vegas Municipal Court -

Pre-Trial Hearing - The procedures in the LV Municipal Court are mostly the same as the LV Justice Court, except there is one additional hearing in the LV Municipal Court called a pre-trial.  The pre-trial is after the arraignment and before the trial.  The pre-trial hearing is a like a status check hearing as to the readiness of the parties for trial, and the pre-trial hearing also gives the parties an opportunity to talk about the case and attempt to resolve it before a trial is necessary.

If you are a suspect or have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help with your defense.

Arrests for Domestic Battery

Battery Domestic Violence differs from other misdemeanors under state and federal law in many respects, including enhanced punishment for subsequent convictions, the constitutional right to bear arms, immigration consequences, requirements of counseling and community service upon conviction, and, even before the charge is levied, there are strict arrest requirements for the person accused. Normally the requirement for arrest by a police officer is below.  There is no mention of misdemeanor arrests.    

171.124. Arrest by peace officer or officer of Drug Enforcement Administration

1. Except as otherwise provided in subsection 3 and NRS 33.070, 33.320 and 258.070, a peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may make an arrest in obedience to a warrant delivered to him or her, or may, without a warrant, arrest a person:

(a) For a public offense committed or attempted in the officer's presence.

(b) When a person arrested has committed a felony or gross misdemeanor, although not in the officer's presence.

(c) When a felony or gross misdemeanor has in fact been committed, and the officer has reasonable cause for believing the person arrested to have committed it.

(d) On a charge made, upon a reasonable cause, of the commission of a felony or gross misdemeanor by the person arrested.

(e) When a warrant has in fact been issued in this State for the arrest of a named or described person for a public offense, and the officer has reasonable cause to believe that the person arrested is the person so named or described.

2. A peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may also, at night, without a warrant, arrest any person whom the officer has reasonable cause for believing to have committed a felony or gross misdemeanor, and is justified in making the arrest, though it afterward appears that a felony or gross misdemeanor has not been committed.

3. An officer of the Drug Enforcement Administration may only make an arrest pursuant to subsections 1 and 2 for a violation of chapter 453 of NRS.

The NRS code goes on to state time periods for misdemeanor arrests which excludes misdemeanor batter domestic violence. 

171.136. When arrest may be made

1. If the offense charged is a felony or gross misdemeanor, the arrest may be made on any day, and at any time of day or night.

2. If it is a misdemeanor, the arrest cannot be made between the hours of 7 p.m. and 7 a.m., except:

(a) Upon the direction of a magistrate, endorsed upon the warrant;

(b) When the offense is committed in the presence of the arresting officer;

(c) When the person is found and the arrest is made in a public place or a place that is open to the public and:

(1) There is a warrant of arrest against the person; and

(2) The misdemeanor is discovered because there was probable cause for the arresting officer to stop, detain or arrest the person for another alleged violation or offense;

(d) When the offense is committed in the presence of a private person and the person makes an arrest immediately after the offense is committed;

(e) When the offense charged is battery that constitutes domestic violence pursuant to NRS 33.018 and the arrest is made in the manner provided in NRS 171.137;

(f) When the offense charged is a violation of a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive;

(g) When the person is already in custody as a result of another lawful arrest; or

(h) When the person voluntarily surrenders himself or herself in response to an outstanding warrant of arrest.

And domestic battery has its own statute regarding arrests, which notes in section (3) that no credence should be given as to whether the alleged victim of the battery wishes law enforcement to levy a charge on their behalf.

171.137. Arrest required for suspected battery constituting domestic violence; exceptions

1. Except as otherwise provided in subsection 2, whether or not a warrant has been issued, a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon his or her spouse, former spouse, any other person to whom he or she is related by blood or marriage, a person with whom he or she is or was actually residing, a person with whom he or she has had or is having a dating relationship, a person with whom he or she has a child in common, the minor child of any of those persons or his or her minor child.

2. If the peace officer has probable cause to believe that a battery described in subsection 1 was a mutual battery, the peace officer shall attempt to determine which person was the primary physical aggressor. If the peace officer determines that one of the persons who allegedly committed a battery was the primary physical aggressor involved in the incident, the peace officer is not required to arrest any other person believed to have committed a battery during the incident. In determining whether a person is a primary physical aggressor for the purposes of this subsection, the peace officer shall consider:

(a) Prior domestic violence involving either person;

(b) The relative severity of the injuries inflicted upon the persons involved;

(c) The potential for future injury;

(d) Whether one of the alleged batteries was committed in self-defense; and

(e) Any other factor that may help the peace officer decide which person was the primary physical aggressor.

3. A peace officer shall not base a decision regarding whether to arrest a person pursuant to this section on the peace officer’s perception of the willingness of a victim or a witness to the incident to testify or otherwise participate in related judicial proceedings.

4. 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.

Over the last two decades, the Nevada legislature has been adding more substantive and procedural statutes to the code in an attempt to prevent domestic violence.  These statutes have made domestic violence a more serious crime with harsher penalties.  It is essential to retain competent counsel to defend you if you are accused.
If you are a suspect or have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit georgeforjustice.com for help.

Subpoenas in Domestic Violence Cases

The most viewed topics on this blog have been about subpoena issues, the service of subpoenas, and the penalties regarding a witness not appearing in court after being subpoenaed, so here is the first article this blog posted about subpoenas. 
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 attorney George E. Robinson at gerobinsonlaw.com or call 702-233-4225.

Retain Counsel As Soon As Possible

Especially if you don't have much experience with the criminal justice system, it can be a mysterious, frightening, and stressful time in your life.  One way to dampen all of this anxiety is to retain an effective attorney as soon as possible.  The earlier in the situation, the better, as having counsel gives a person piece of mind that they will be defended properly, that their story will be heard, and they will not be crushed by the power of the State.  Also, there are things that can happen during the investigative phase of a criminal case in which a defense attorney can make a big difference in the outcome of a situation.  Probably the most important of these issues is when law enforcement wants a suspect to give a statement, but there are others in which an attorney can be very helpful, as in speaking with detectives and prosecutors.

If a situation has become serious enough for you to have a court date, you need an attorney immediately.  If you don't have a competent attorney, and you go to court by yourself; you are asking for trouble.

Competent attorneys have a vast amount of knowledge and experience in dealing with situations similar to yours.  Without an effective attorney defending you, things can happen in your case that are very difficult or impossible to undo, and may affect your life in a very negative way.  

If you are a suspect or have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help. 

Police Officers Can, and Will, Lie to You

A person who finds himself in a position where they are speaking with a police officer needs to know that they can lie to you.  During the investigation of a crime, it is constitutionally permissible for police to use deception in the course of their duties.  The United States Supreme Court has expounded on this issue in a number of cases.  
In Oregon v. Mathiason, officers falsely told a burglary suspect they had lifted his fingerprints at the crime scene. 429 US 492 (1977).  The suspect subsequently confessed, and the court held that this deception did not invalidate the confession.  In Frazier v. Cupp, police told a murder suspect that his accomplice had been arrested and had confessed, implicating him in the crime.  394 US 731 (1969). Although police used no overt deception in Moran v. Burbine, 475 US 462 (1986),  the court stated, "We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights."
The most common way this deception is used by officers during investigations into accusations of domestic violence is when officers separate the parties to take statements and collect other evidence.   While the parties are separated, officers tell them that the other person has made statements that they have not actually made.  Normally stating that evidence that has been collected inculpates them of a battery.  In these situations, it is best to not give a statement as the statement can hurt the defense later if a case is filed.  The important lesson is that during questioning, do not rely on officers' statements as being truthful because it is a common, legal and effective investigative technique to lie.
If you have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.    

Social Media and Privacy Settings

Are you involved in a Civil, Criminal, or Family Court matter?  If you are, an attorney is trying to do research on you via the internet.  Social media, like Facebook, Twitter, Instagram, etc., can be a very valuable resource for attorneys in developing a case against you, or discrediting you.  Pictures and statements that you feel are harmless can be taken out of context and used against you. The best thing to do to prevent this from happening is to keep your settings as private as possible, so people like attorneys cannot see your information.  Remember, attorneys cannot misrepresent who they are pursuant to their ethical rules, so if an attorney does make a misrepresentation, they can be sanctioned.  Be careful with your information as to what you put on the internet, and who you trust, because it could become a big issue in your life if you end up fighting about something in court.
If you have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.

Domestic Violence - Coercion

What is the crime of coercion?  It is included in the definition of Domestic Violence in Nevada as part of NRS 33.018:
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.
...
Although the word coercion is not used in NRS 33.018, the definition is covered in section (c).  Coercion is further defined in NRS 207.190.
1. It is unlawful for a person, with the intent to compel another to do or abstain from doing an act which the other person has a right to do or abstain from doing, to:
(a) Use violence or inflict injury upon the other person or any of the other person's family, or upon the other person's property, or threaten such violence or injury;
(b) Deprive the person of any tool, implement or clothing, or hinder the person in the use thereof; or
(c) Attempt to intimidate the person by threats or force.
2. A person who violates the provisions of subsection 1 shall be punished:
(a) Where physical force or the immediate threat of physical force is used, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
(b) Where no physical force or immediate threat of physical force is used, for a misdemeanor.
As seen, coercion with physical force is a very serious crime, and if convicted, a person could go to prison.  In the municipalities in Clark County, misdemeanor coercion is a crime regularly charged in addition to a count of battery constituting domestic violence because no physical touching is needed for the conviction.  For example, if a defendant has been charged with trying to stop someone from calling 911 by threatening them and then grabbing their arm to stop them, the defendant could be charged with both coercion and battery domestic violence.
If you have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident like coercion, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.

Keeping a Diary

In many domestic relationships, there comes a point where people start to get a bad feeling about what is going to happen in the future, like an event of domestic violence.  Maybe your partner is acting strange, saying strange things, or lying.  Maybe your partner has had a hard time controlling her temper at times or become more aggressive, and you feel like a physical altercation may be on the horizon. Clearly, there are certain steps that can be taken to attempt to prevent future physical or mental abuse, like communication, counseling, medication, leaving the relationship, etc.
After an event has occurred, and a party comes to an attorney for help in a criminal or family law situation that has resulted.  The attorney will ask his client about the partner's strange behavior before the alleged violent incident in question.  The attorney would like to have concrete, specific examples of the behavior, and usually human memory does not allow for a high level of detail in recalling past events.
If the client would have kept a diary and written down the partner's strange, aggressive, or criminal behavior, the attorney could use the diary to more clearly evaluate the client's defenses and potentially use the diary at trial.
The rules of evidence allow for these diaries to be used at trial in certain situations.  NRS 51.125 allows for the recorded recollection to be admissible.  "1. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately is not inadmissible under the hearsay rule if it is shown to have been made when the matter was fresh in the witness's memory and to reflect that knowledge correctly.  2. The memorandum or record may be read into evidence but may not itself be received unless offered by an adverse party."
Even better than a diary, would be an in-person video or audio recording of the behavior on a smartphone (no recording of phone conversations without consent).  Always remember that some of this data could also be available in old text messaging and other social media.  All of this information should be saved and could prove to be very helpful in the prosecution or defense of a case.  Collect all of this data, and present it to your attorney if a legal situation arises.
If you have been charged with Battery, Battery Domestic Violence, or any crime related to a Domestic incident, or if a TPO has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.

Domestic Violence and Children

When is Battery Domestic Violence considered child abuse?  Clearly, the victim of the battery needs to be a child (person under the age of 18) to be considered child abuse, but there are other requirements for a battery on a child to be considered child abuse. Pursuant to NRS 200.481(a), which is where the definition for battery in the battery domestic violence statute comes from, "Battery" means any willful and unlawful use of force or violence upon the person of another.  There is no requirement of physical harm in this definition, so no matter how slight the use of force is against another person, a conviction for battery can be had.  Child abuse is more specific as to the result of the willful act.  NRS 200.508 defines child abuse in Nevada and the punishments for conviction.  Pursuant to Subsection 4. "(a) "Abuse or neglect" means physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child under the age of 18 years, as set forth in paragraph (d) and NRS 432B.070; , 432B.100; , 432B.110; , 432B.140; and 432B.150, under circumstances which indicate that the child's health or welfare is harmed or threatened with harm.(b) "Allow" means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that the child is abused or neglected.(c) "Permit" means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care, custody and control of a minor child.(d) "Physical injury" means:(1) Permanent or temporary disfigurement; or(2) Impairment of any bodily function or organ of the body.(e) "Substantial mental harm" means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within his or her normal range of performance or behavior."
Child abuse calls for an injury or harm to the physical or mental well-being of the child whereas battery domestic violence does not have the element of the resulting injury or harm.  Child abuse is a more serious crime than battery domestic violence as it is a felony.  Battery domestic violence is a misdemeanor unless substantial bodily harm results from the battery, a weapon is used, or the battery was committed on a protected party while performing their job.  Pursuant to these statutes, a person could commit a battery on a child that does not arise to the level of child abuse.  There are many other subjects in relation to this topic that will be discussed in the future.    

If you have been charged with Battery, Battery Domestic Violence, Child Abuse or any crime related to a Domestic incident, or if a TPO has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.