The police don't necessarily have to read you the Miranda "rights" or warnings for you to be arrested, charged, or convicted of a crime. As a brief overview, the name Miranda comes from the case Miranda v. Arizona which was heard by the U.S. Supreme Court. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The U.S. Supreme Court stated in Miranda that if law enforcement takes statements from a suspect during a custodial interrogation, they must read the suspect the Miranda warnings prior to the questioning. If they do not, it may violate your Fifth Amendment right against self-incrimination, and law enforcement may not be able to present those statements at an evidentiary hearing. There are exceptions to this rule, and there is a voluminous body of case law that details the Miranda warnings and what a custodial interrogation is, etc.
A violation of a defendant's Fifth Amendment rights could affect a Battery Domestic Violence case. Many times law enforcement's case hinges on a statement that was made to an officer who arrives at the scene shortly after the alleged incident. An attorney needs to carefully review the case, and, depending on the overall strategy in the case, prepare a request to the Court to disallow the presentation of the statement in question at trial.
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, January 27, 2012
Wednesday, January 11, 2012
Statements Made at Hearings for Protective Orders
In order to extend a Protective Order past the initial 30 day temporary period, a hearing must be held in which the Applicant has to affirm the facts alleged in the application under oath. At this hearing, the Adverse Party may present testimony to the contrary. Unlike most criminal actions where Defendants have the right to counsel and are protected, there is no right in this context. Adverse Parties must be very careful as to what they present because statements made at the hearing regarding the protective order are admissible at subsequent hearings, like criminal or civil trials. The relevant part of the evidentiary code is stated below. "Hearsay" means a statement offered in evidence to prove the truth of the matter asserted unless:
1. The statement is one made by a witness while testifying at the trial or hearing;
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) Inconsistent with the declarant's testimony;
(b) Consistent with the declarant's testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(c) One of identification of a person made soon after perceiving the person; or
(d) A transcript of testimony given under oath at a trial or hearing or before a grand jury; ...
NRS § 51.035
Many times non-lawyers do not realize that they are making admissions to criminal acts or civil liability when they are under oath at these hearings. This is another reason to retain counsel before the hearing to extend 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. The statement is one made by a witness while testifying at the trial or hearing;
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) Inconsistent with the declarant's testimony;
(b) Consistent with the declarant's testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(c) One of identification of a person made soon after perceiving the person; or
(d) A transcript of testimony given under oath at a trial or hearing or before a grand jury; ...
NRS § 51.035
Many times non-lawyers do not realize that they are making admissions to criminal acts or civil liability when they are under oath at these hearings. This is another reason to retain counsel before the hearing to extend 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.
Wednesday, January 4, 2012
Defendants' Conversations with Witnesses Under Subpoena
In Domestic Violence cases, many times alleged victims, who are under subpoena or will be subpoenaed, and Defendants in cases still associate with one another. They are husbands and wives, boyfriends and girlfriends, etc. Defendants in these situations need to be very careful as to what they say to alleged victims in these situations because certain statements could constitute criminal acts.
For instance, certain statements could be considered preventing or dissuading person from testifying or producing evidence. Nevada law states, "A person who, by persuasion, force, threat, intimidation, deception or otherwise, and with the intent to obstruct the course of justice, prevents or attempts to prevent another person from appearing before any court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other official proceeding, or causes or induces another person to be absent from such a proceeding or evade the process which requires the person to appear as a witness to testify or produce a record, document or other object, shall be punished:
1. Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
2. Where no physical force or immediate threat of physical force is used, for a gross misdemeanor."
NRS 199.230.
Statements by Defendants to alleged victims about appearing in court, or even discussions about the perception of the events in question could make a bad situation even worse, especially if the relationship turns sour. This is even more of a concern when the communication is via text message, email, or other written form.
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.
For instance, certain statements could be considered preventing or dissuading person from testifying or producing evidence. Nevada law states, "A person who, by persuasion, force, threat, intimidation, deception or otherwise, and with the intent to obstruct the course of justice, prevents or attempts to prevent another person from appearing before any court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other official proceeding, or causes or induces another person to be absent from such a proceeding or evade the process which requires the person to appear as a witness to testify or produce a record, document or other object, shall be punished:
1. Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
2. Where no physical force or immediate threat of physical force is used, for a gross misdemeanor."
NRS 199.230.
Statements by Defendants to alleged victims about appearing in court, or even discussions about the perception of the events in question could make a bad situation even worse, especially if the relationship turns sour. This is even more of a concern when the communication is via text message, email, or other written form.
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.
Tuesday, November 1, 2011
What is Harassment?
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.
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.
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.
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