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.