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Domestic Violence Losing Your Freedom Is Not an Option

Domestic Violence Attorney in Tucson

Domestic Violence Attorneys in Tucson

Every relationship has its ups and downs, and there are times that heated discussions and arguments occur. No one deserves to be injured or hurt by a family member, significant other, partner or spouse. There are times, however, when an argument that otherwise would have been forgotten the next day can turn into a criminal charge with significant implications. Under the law as it exists today, a telephone call from a well-meaning neighbor can turn a family argument into a criminal charge, and if you are charged with domestic violence and there is a claimed injury – even just leaving red marks on the alleged victim’s skin - or a weapon is alleged to have been exhibited, the police must take you to jail for the night. You can even be charged with domestic violence for breaking your own property in your own home.

In the past, domestic violence was not always treated as a serious offense, and true victims were not always taken seriously. As a result, changes to the law and Arizona Constitution have given victims substantially more power in the legal system. Under the law as it exists now, anyone who accuses someone of domestic violence is a victim of domestic violence at the time they make the accusation, without proving that a crime has occurred. An unfortunate side effect of giving true victims more power in the legal system is that individuals making false claims have been given the same rights as a true victim – including potentially excluding the accused from the family home, and preventing the accused from possessing a firearm, based on no more than an unproven accusation.

If you have been charged with domestic violence, you may very well find that the courts are unwilling to hear your side of the story, and that you are presumed to be guilty because of the nature of the crime. Nesci & St. Louis passionately advocates for your Constitutional rights in the judicial system. Having dedicated nearly 40 years of combined experience to defending those accused of crimes, our Tucson domestic violence lawyers are determined to give you a voice in the Arizona courts, and to get you the best outcome possible.

Call our firm and share the details of your case in a confidential consultation.

Domestic Violence Laws

A variety of crimes will be charged as Domestic Violence offenses based on your relationship to the alleged victim. Those crimes are:

  • Murder (anything from negligent homicide to first degree murder).
  • Endangerment.
  • Threatening or intimidating.
  • Assault (misdemeanor or felony Aggravated Assault).
  • Custodial interference.
  • Unlawful imprisonment.
  • Kidnapping.
  • Interfering with access to a child.
  • Sexual assault.
  • Unlawful disclosure of nude images.
  • Criminal trespass (first, second and third degree).
  • Criminal damage.
  • Interfering with judicial proceedings.
  • Disorderly conduct (by engaging in fighting, violent or seriously disruptive behavior; by making unreasonable noise; by using abusive or offensive language or gestures in a manner likely to provoke immediate physical retaliation; or by recklessly handling, displaying or discharging a deadly weapon or dangerous instrument).
  • Cruelty to animals (intentionally or knowingly subjecting an animal in your control to neglect or abandonment that results in serious physical injury to the animal).
  • Intentionally preventing or interfering with the use of a telephone in an emergency.
  • Use of an electronic communication to terrify, intimidate, threaten, or harass.
  • Harassment or Aggravated Harassment.
  • Stalking.
  • Surreptitious photographing, videotaping, filming, digitally recording or viewing.
  • Aggravated domestic violence.
  • Child or vulnerable adult abuse.

A listed crime will be charged as a domestic violence offense when the person accused and the alleged victim (the parties) are in one of the following relationships:

  • Are married, were married, live in the same household, or used to live in the same household.
  • Have a child in common.
  • One party is pregnant with the other party’s child.
  • You or your spouse, are the parent, grandparent, child, grandchild, brother or sister, parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law, or sister-in law of the alleged victim.
  • The alleged victim is a child who resides or has previously resided in the same household as the accused, and is related by blood to a former spouse of the accused, or to someone who resides or has resided in the same household as the accused.
  • The parties were previously in a romantic or sexual relationship. Factors that may be considered in determining whether the relationship qualifies are: 1) The type of relationship 2) the length of the relationship 3) the frequency of interactions between the parties 4) if the relationship has terminated, the length of time since it terminated.

Domestic Violence Arrest Procedures

Arizona’s Domestic Violence statute A.R.S. §13-3601 is unique in that it provides law enforcement officers and prosecutors with a series of instructions as to how they must proceed when an act of Domestic Violence occurs. Law enforcement officers:

  • May arrest and take to jail someone for Domestic Violence, whether the crime was committed in the officer’s presence or not, and whether it is a felony or misdemeanor (as opposed to citing and releasing the suspect, as commonly occurs in the majority of misdemeanor arrests).
  • MUST arrest and take to jail someone for Domestic Violence, whether the crime was committed in the officer’s presence or not, and whether it is a felony or misdemeanor, if a physical injury is inflicted, or a deadly weapon or dangerous instrument was used, discharged, or exhibited in a threatening manner to commit the crime, unless the officer believes that the circumstances are such that the alleged victim will be protected from further injury. Physical injury is defined in A.R.S. §13-105(29) as “the impairment of physical condition.” While that definition may not be helpful, by caselaw, causing red marks on an individual’s skin and causing them pain constitutes causing a physical injury. A deadly weapon is anything designed to cause death, and a dangerous instrument is anything readily capable of causing death or serious injury (for example, a car) under the circumstances in which it was used. Note that most, if not all, Arizona law enforcement agencies require that the suspect must be taken to jail if there is probable cause for a DV assault charge with any injury.
  • May question the occupants of the home as to whether a firearm is present, and temporarily seize any firearm present on the premises, if it is in plain view, or was found pursuant to a consent search, if the officer believes the firearm would expose the victim or anyone else in the household to a risk of serious bodily injury or death.
  • Requires the officer to give a receipt for each firearm seized and not to return them until 72 hours have passed, and to notify the alleged victim before returning any firearm.
  • Whether anyone is charged with Domestic Violence or not, requires the officer to provide the alleged victim with notice of their rights, including: How to obtain an order of protection or injunction against harassment; the emergency telephone number for the local police agency; telephone numbers for emergency services in the local community; and websites for Domestic Violence websites.
  • Must check the welfare of any minor present in the home.

For prosecutors:

  • If the prosecutor believes that there is “reasonable cause” that returning a firearm may endanger anyone in the household or the person who “reported the assault or threat,” the prosecutor shall file a notice of intent to retain the firearm in court and serve notice of the filing on the owner or possessor of the firearm by certified mail. The notice shall state that the firearm will be possessed for no more than six months from seizure. The owner may request a hearing with the court to dispute the grounds for seizure and request that the firearm be returned at an earlier date. The court shall then hold a hearing within ten days, as to whether the owner gets the gun back.

Domestic Violence Penalties

Pursuant to A.R.S. §13-3601.01, if you are convicted of a Domestic Violence offense, you are required to be sentenced to complete a domestic violence offender treatment program at a facility approved by the court. Most, if not all, domestic violence offender treatment programs in Arizona require participants to take 26 sessions of Domestic Violence counseling. Typically, each class is 90 minutes long, and participants may only take one class a week. In addition, pursuant to 18 United States Code §922(g), a person convicted of Domestic Violence cannot buy or possess a firearm, and A.R.S. §13-3101(7)(d) defines a prohibited possessor as someone on probation for a Domestic Violence conviction. Whether jail time is imposed, and how long the defendant is sentenced to jail, are in the judge’s discretion.

Following completion of the defendant’s sentence, an individual convicted of Domestic Violence can ask the court to set the conviction aside, including requesting to have your right to bear arms restored. Call Nesci & St. Louis today to discuss having your conviction set aside.

A third or subsequent conviction for Domestic Violence in 7 years will be charged as Aggravated Domestic Violence, a class 5 felony, punishable by .5 to 2.5 years in prison.

Orders of Protection

Enacted in 2008, the Arizona Rules of Protective Order Procedures (ARPOP) govern the issuance of domestic violence orders of protection, emergency orders of protection, injunctions against harassment and injunctions against workplace harassment. ARPOP law guides judges on courtroom processes for issuing, amending and terminating orders. The law permits criminal and civil courts to issue orders of protection, and the violation of a restraining order is considered a criminal offense.

An Order of Protection may be obtained when the parties are in one of the relationships outlined above that would qualify a crime to be charged as a Domestic Violence offense, and it is alleged that you committed an act of domestic violence within the last year (and sometimes longer). An Order of Protection can:

  • Order that your accuser be granted exclusive use of the residence you share.
  • Prevent you from contacting the alleged victim and other specified parties, such as your children, or go to their homes, places of employment or schools.
  • Prevent you from possessing or purchasing a firearm, and require you to transfer any firearms you own to a law enforcement agency.
  • Order that you complete a domestic violence offender treatment program, as outlined above without being convicted of any offense.
  • Give your accuser sole care and custody of any animal.

If you have been served with an Order of Protection, you are entitled to a hearing to challenge the order within five days if you have been removed from your home, and within ten days in all other cases. Call Nesci & St. Louis today to begin your vigorous defense against the allegations made against you.

Injunctions Against Harassment

When the parties are not in a relationship that would qualify a crime to be charged as a Domestic Violence offense, someone may still seek an injunction against harassment against you, based on a claim that you have committed a series of acts that constitute harassment. The injunction can:

  • Prevent you from contacting the alleged victim and other specified parties, or go to their homes, places of employment or schools.

If you have been served with an injunction against harassment, you are entitled to a hearing to challenge the order within ten days. Call Nesci & St. Louis today to begin your vigorous defense against the allegations made against you.

Lifting a Domestic Violence Injunction

Our Tucson domestic battery defense attorneys will take immediate action to get you into court to challenge your domestic violence injunction and to restore your rights. Upon receiving notice of the restraining order against you, we will request a hearing — which must be scheduled within five days if you are denied use of your home and within ten days otherwise.

At the hearing, we will present evidence to counter false allegations and claims in the petition and will ask the court to quash or modify the order. Consult with our dedicated defense law firm if you have been charged with domestic violence.

To fight claims of domestic abuse and battery, call Nesci & St. Louis today at (520) 999-2441 to schedule your free initial consultation.

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