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.

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.

Conviction for Misdemeanor Battery Domestic Violence = NO GUNS

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

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

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

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

Attorney's Fees May Be Awarded If False Affidavit Filed

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

How do you spell TPO? G-U-N

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

He Said ... She Said

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

The Prosecutor Must Go Forward

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

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

When is the Relationship Over?

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

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

Municipal Court v. County Court 1

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

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

What is an Unlawful Use of Force?

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

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