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.

Alcohol, Alcoholics, and Testimony

Alcohol is a powerful substance as it can have significant effects on the mind and body.  Alcohol changes people's conscious perception of events and alters people's decision making and their personalities.  Everyone is affected differently.  As everyone is aware, some people are able to handle alcohol in a manner that is socially acceptable and others are not.  Some people become chemically dependent on alcohol.  Some people always find themselves making bad decisions after drinking alcohol.  Others become violent after drinking alcohol.
Alcohol can be a very important factor in criminal cases.  Use of alcohol can actually negate the intent necessary to commit certain crimes, but alcohol use is is more frequently a factor with witness testimony.   Witness testimony is necessary in all criminal cases, and a witness's ability to perceive and recall events is crucial.  Alcohol use creates doubt as to the reliability of the witness's perception and recall.   Doubt regarding a witness's testimony, which a Defendant can introduce to a trier of fact (judge or jury) in a criminal case, makes a not guilty verdict more likely.
The testimony of someone who drinks alcohol in large quantities on a regular basis (for the purposes of this blog "an alcoholic") can be even more unreliable.  The effects on the brain of substantial alcohol use, especially over long periods of time, are undeniable.  The brain is not able to function in the same way as it was without the alcohol.  In a criminal case, this can bring doubt into a case when an alcoholic witness has been drinking, or even when an alcoholic witness has not been drinking.  This can work against Defendants as well, so strategy is important.  It can also be difficult to introduce evidence of alcoholism into a case because of certain interpretations of the rules of evidence.  Defendants must make sure that their attorneys take a witness's alcohol use and/or abuse into consideration when negotiating a case or especially at a hearing.  
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.

Using Protective Order Hearings to Your Advantage

Suddenly, you have been charged with Battery Constituting Domestic Violence, and a Temporary Protective Order has been served on you.  These are serious matters, especially the criminal charge.  From a defense perspective, the protective order hearing may give a Defendant an opportunity to employ strategies to help the criminal case.  Due process dictates that if the Applicant wants to extend the protective order against the Adverse Party (for up to one year), the Applicant must appear and testify at a hearing.  At this hearing, there are not many rules, but the parties are sworn in and testify under oath.  Although normally a Defendant does not want to testify as to the underlying facts in the criminal case, there may be an opportunity for the Defendant's attorney to question the Applicant. Sometimes this questioning can bolster the Adverse Party's arguments at the criminal trial or lead to other discoveries.  The hearing master probably will not let the attorney go too far, but this is another reason hire competent counsel to not only represent you at the criminal trial, but also at the hearing on the protective order.  The protective order might even be extended, but, more importantly, your attorney has received information that may help to win the more serious criminal trial.
Every case is different, but you should consult an attorney immediately to inquire as to whether these strategies may work for you.  
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.