10 Things you Need to Know About Battery Domestic Violence in Nevada
1) Summary of Battery Domestic Violence in Nevada
What is Battery Constituting Domestic Violence in Nevada? According to Nevada law, specifically Nevada Revised Statute (NRS) 200.485, "battery domestic violence" (commonly referred to as Domestic Battery or simply “BDV”) is: 1) a battery (any force or violence); and 2) within a domestic relationship.
Nevada prosecutors, whether in the State Court (through the DA’s office) or the City Court (through the City Attorney’s Office), have the burden of proof in showing beyond a reasonable doubt these elements before someone can be convicted of the crime of Battery Domestic Violence in Nevada.
It is very important to hire the right Las Vegas domestic violence lawyer. Not all lawyers are the same. While many lawyers may claim they “handle criminal cases” or “defend domestic violence charges,” the choice between choosing ones lawyer can be the difference between winning and losing. An experienced lawyer can strategically begin a defense long before trial and in many cases can have the case dismissed or reduced without exposing you to the risk of a trial. With the correct strategy, a person wrongfully accused of domestic violence can have their case dismissed.
2) Somethings are not what they seem - - Especially when it comes to Battery Domestic Violence
While the police and prosecutors tend to believe the person charged is always guilty, this is often not the case. In fact, many times the person charged in a Battery Domestic Violence case (called the Defendant) was not only acting lawfully, but they have been victims themselves. Oftentimes, the person charged was acting in self-defense, were set up by a spouse with a bias or agenda, or were themselves a repeated victim that ultimately led to an act of desperation. While our criminal justice system is undoubtedly the best in the world, it isn’t perfect. No place is this more clear than in the context of Battery Domestic Violence allegations. Police may begin an investigation on the wrong foot, meaning that each subsequent fact is predicated on a fallacy. Police can make decisions on factors such as who dialed 911 initially, who was more calm on their arrival, the physical appearance of the people at the scene and the like. Domestic violence cases are emotionally charged. This means that is almost always in your best interest to retain an experienced Las Vegas Domestic Violence Defense Lawyer who has been down this road before. Such a lawyer can remove the emotion, identify the facts and help you build your best defense and beat your charge.
3) Just because you are arrested or charged does not mean you will be convicted
Many people think that just because the police make the decision to arrest them, they have no chance of prevailing on their Battery Domestic Violence case. This couldn’t be further from the truth. In Las Vegas, and throughout the State of Nevada, the law allows for numerous viable legal defenses to the Government’s accusations against you. These can include:
Fraudulent of False Allegations: as the saying goes - - “Hell hath no fury like a woman (or man) scorned. Because allegations of Battery Domestic Violence by definition occur in a domestic relationship they are often emotionally charged. It is extremely common for an angry spouse or lover to create a false report in order to “get back” at their former significant other. A qualified Domestic Violence Defense Lawyer can often fill in the blanks in an alleged victim’s story that were missed by the police. These inaccuracies, once exposed, can lead to the dismissal of charges or an acquittal at Trial
Self-Defense: In allegations of Battery Domestic Violence, as in all crimes of alleged violence it is an affirmative defense that the person was acting to protect themselves or others. In no arena is this justifiable act more commonly seen than in crimes involving domestic violence. Simply put, it is not a crime to lawfully and reasonably act to defend yourself against the fear of bodily injury or death. As a justifiable act, to do so is not a crime.
Failure to Prove the Case Beyond a Reasonable Doubt: Las Vegas Battery Domestic Violence Defense Lawyer Josh Tomsheck has had a long history of holding the State and City prosecutors in the Las Vegas valley to their burden of proof. Just because the prosecutor makes an allegation doesn’t make it true. The prosecutor has the burden of proving their case beyond a reasonable doubt to a judge or jury. If they don’t, the person accused (the Defendant) is entitled, legally, to a verdict of not guilty.
There are just a few of the many defenses to an allegation of Battery Domestic Violence in Nevada. The best defense in your particular case depends on the unique facts and circumstances of your situation. You should talk to a knowledgeable and experienced attorney at your earliest opportunity to discuss your best defense.
4) A conviction for Battery Domestic Violence carries mandatory sentences
In the State of Nevada, the legislature has enacted laws that mandate certain sentences if you are convicted of a crime of Battery Domestic Violence. This means that the judge MUST impose certain minimum sentences if you are convicted, independent of what the judge might want to do. It is also important to note that for each subsequent conviction within a certain time period, the mandatory minimum penalties for a Domestic Violence Conviction are enhanceable, meaning they “go up.” These penalties are summarized as follows:
First Offense Battery Domestic Violence Conviction: Misdemeanor
· At least 2 days, up to 6 months in County or City Jail
· Fines of $200.00 up to $1,0000 (with court costs the minimum fine is over $300.00)
· At least 48 hours and up to 120 hours of community service.
· Mandatory counseling classes of 1.5 hours per week for 26 weeks (6 months)
Second Offense Battery Domestic Violence Conviction: Misdemeanor
· At least 10 days, up to 6 months in County or City Jail
· Fines of $500.00 up to $1,0000 (with court costs the minimum fine is over $800.00)
· At least 100 hours and up to 200 hours of community service.
· Mandatory counseling classes of 1.5 hours per week for 52 weeks
Third Offense Battery Domestic Violence Conviction: Felony
· At least 1 year, up to 5 years in Nevada State Prison
· Mandatory Prison (not eligible for probation)
5) There are many ways to get your charges reduced
In Nevada there are many ways to get a charge of Battery Domestic Violence reduced. A competent defense attorney can often identify issues and weaknesses with the prosecutor’s case. These weaknesses can often lead to a reduction in charges, or even a full dismissal. In many circumstances a charge can be reduced to the non-domestic, non-enhanceable crime of simple battery. While still a misdemeanor conviction, a simple battery does not have the mandatory minimum sentences a Domestic Battery does. In some circumstances a skilled defense attorney can negotiate a resolution where your Battery Domestic Violence charge can be reduced to something as innocuous as “disorderly conduct” or “breach of peace.” In other cases, through clever negotiation, an experienced criminal defense lawyer can convince the State or City prosecutor to allow for a plea of no contest and a “stayed adjudication” - - - meaning the person charged is never convicted - - - while they complete some simple requirements or stay out of trouble and the case is ultimately reduced or dismissed. Another such vehicle is a “submittal on the record.” If your lawyer is able to convince the prosecutor of weaknesses in his or her case against you, you may be able to “submit the case on the record” --- meaning you don’t enter a plea at all, but rather essentially push pause on the case while you take classes or pay fines, in exchange for a greatly reduced offense or a dismissal after the requirements are completed. The best Las Vegas Battery Domestic Violence Defense Attorneys know that you should not foreclose on any potential outcome in your case because it is often that a great result can occur, even against great odds.
6) It is possible to seal a conviction for Battery Domestic Violence
Many people think that because they had a Battery Domestic Violence Conviction in their past they have to live with it on their records. They face stigma from potential employers, are embarrassed when they have to face a background check or are simply pained by something that happened in their youth or in the past. Take comfort that a conviction of Battery Constituting Domestic Violence can be sealed much like most other crimes in the State of Nevada (read more about Las Vegas Record Sealing Lawyer here). As with all other convictions in Nevada, there is potentially a waiting period before the conviction and arrest can be sealed. This ultimately is decided by how the charge was concluded, or “disposed of.”
For example, if the person was arrested for Battery Domestic Violence and the case was dismissed, there is no waiting period and they are eligible to seal their record immediately.
If the person was charged with Battery Domestic Violence and their lawyer was able to get their charges reduced to a NON domestic violence battery conviction, but the charge was disposed of as a misdemeanor (such as a simple battery or disorderly conduct) they must wait two (2) years from the conclusion of their case during which they must remain trouble free, before they can seal their record.
If a person is actually convicted of the charge of Battery Constituting Domestic Violence, first or second offense, they must wait a period of seven (7) calendar years from the conclusion of that conviction, during which they MUST remain trouble free, before they can file to have their records sealed.
If someone is convicted of a third or subsequent Battery Domestic Violence offense within any seven (7) year period, making their conviction a category “C” felony, they are forced to (in addition to serving mandatory prison time) wait for a period of twelve (12) years before the record can be sealed.
As you can see from the time periods required for the sealing of records, it is imperative that someone facing a Battery Domestic Violence charge in Las Vegas and elsewhere in Nevada do everything they can to fight, reduce or win their case, not only to avoid the penalties now, but to enable them to regain a normal life in the future. The first and best step in this process is to find an accomplished Las Vegas Domestic Violence attorney that will fight for you to receive the best possible result.
7) A Battery Domestic Violence Conviction can impact your Child Custody Case
In many circumstances an allegation of Battery Domestic Violence can come during a child custody battle between two (2) separated parents. This is an extremely important fact in both child custody cases and in defending a Las Vegas Battery Domestic Violence case.
In Nevada, the law presumes that separated parents have joint legal and physical custody of a minor child. However, this can be drastically changed when one parent alleges the other has engaged in Battery Domestic Violence. Generally speaking, Nevada Judges consider the “best interest of the child” in making custodial decisions. In addition to other factors, Judges must consider whether one parent has committed domestic violence against the other parent. To make such a determination, the family law Court holds a hearing regarding the allegations. If, following a hearing, the court finds by “clear and convincing evidence” that one parent has committed acts of domestic violence then the law presumes that the parent who has engaged in Battery Domestic Violence should not have primary or joint physical custody of the child. This becomes what is known as a “rebuttable presumption.” In other words, the parent who is accused of being a Domestic Batterer is presumed not to be a fit candidate for custody of the child unless the person can raise evidence sufficient to rebut this presumption under the law.
Unfortunately, many times parents who desire a certain custodial arrangement will use their children as “pawns” in a divorce or custody case. Far too often one parent will fabricate a story of domestic abuse in order to gain an advantage in a family law matter. And tragically, some people accused of Battery Domestic Violence in Las Vegas will enter a negotiation or plead guilty to a charge of Battery Domestic Violence, unwittingly putting themselves in a terrible position in their divorce or custody case.
Any individual faced with a custody or family law case should contact a family law attorney who is knowledgeable about the process and the effects of a domestic violence allegation and it is imperative that this be considered before entering any negotiation in a criminal allegation of Battery Domestic Violence. The best course of action is without a doubt to retain an expert Las Vegas Domestic Violence Defense lawyer to strenuously defend the allegation of Domestic Battery.
8) A Battery Domestic Violence Conviction means you Cannot Legally Possess a Firearm
Many people realize that it is a crime to own or possess a firearm if you have a previous felony conviction. However, a lot of individuals do not know that it is also a crime to possess or own a firearm if you have been convicted of a crime involving an allegation of Domestic Violence.
In the fall of 1996 the criminal division of United States Attorney’s Office issued an announcement that following the enactment of Title 18, United States Code, Section 922(g)(9), which is commonly referred to as the “Lautenberg Amendment,” their office would prosecute anyone who was in possession of a firearm who had been convicted of a crime of domestic violence, even if only a misdemeanor.
This law is expansive and does not only include an actual conviction for a crime of “Domestic Violence,” but also includes a reduced charge which is based on an allegation that has any element of domestic violence in it. This means that while a person may get a great result in their Nevada Criminal case and beat a charge of Battery Domestic Violence, if they are convicted of a lesser charges (such as simple battery or assault) based on a factual allegation of domestic violence, they are Federally prohibited by law from possessing a firearm. This rule has no exceptions for military, law enforcement or security employment positions, meaning that such a conviction can end a person’s career and livelihood.
An allegation of the type described here is no laughing matter. This is a Federal crime and is usually investigated by Federal Agencies (such as the bureau of Alcohol, Tobacco and Firearms or “ATF”) and prosecuted by the United States Attorney’s office. As a Federal crime the punishments are harsh.
If you, or someone you know, is accused of a crime of Domestic Violence in Nevada and has any desire or interest in their second Amendment rights to own and possess firearms, they should take all lawful steps to avoid any conviction for a crime involving domestic violence factual allegations.
9) An Alleged Victim Cannot “Drop the Charges” in a Battery Domestic Violence Case.
Unlike many other jurisdictions (states and cities) in the United States, in Nevada, an alleged victim of Domestic violence cannot make the decision to “drop charges” and not proceed with prosecution. Any time a report of Domestic Violence occurs in Las Vegas, the police have to investigate and make an arrest if warranted. The case is then submitted for prosecution to either the City (the Municipal Court) or the State (through the DA’s office). If a charge is approved by the prosecutorial agency, Nevada law dictates that the prosecutor seek a conviction for that charge. The prosecutor alone has the ability to make decisions about whether the case will proceed and if there is enough evidence to take the case to Trial. The victim cannot make that choice. In many cases the victim may well not want the case to go forward. If however, the prosecutor chooses to continue the case in Court, the case will go forward. If a victim refuses to testify, the Court has the ability to Order them to do so. Failure to comply with the Courts order can mean that the victim faces jail time for contempt in not following the Court’s Order.
10) In most Battery Domestic Violence cases in Nevada you do not get a jury.
Most incidents involving a Battery Domestic Violence incident do not proceed to Trial. In the ones that do however, the vast majority are not eligible to be decided by a jury. Instead, under Nevada law, the matter will be decided by a Judge, either a Magistrate (a Justice of the Peace) or a sitting Judge in Municipal (City) Court. This is commonly referred to as a Bench Trial. There are good and bad elements to this rule. Many times judges who have seen and heard numerous cases will make a decision on fact or law, rather than on emotion, which can sometimes control the thinking of a juror. However, there are drawbacks as well. In the case of the proper filing of a Motion to Suppress for example, the same judge who rules to exclude evidence will ultimately make the decision about guilt or exoneration. This places the judge in a difficult place.
This does not apply in allegations of third offense Battery Domestic violence, crimes involving an allegation of Strangulation or a deadly weapon or where this is a substantial injury, as those charges are Felony level offenses. All Felony crimes require the availability of a jury in Nevada.
Anyone accused of a crime of Battery Constituting Domestic Violence should discuss their trial rights, defenses and strategies with a knowledgeable and informed Las Vegas Domestic Violence lawyer to determine if any matter should proceed to Trial before making such a critical decision.
LAS VEGAS DOMESTIC VIOLENCE DEFENSE ATTORNEY
If you, a loved one, or someone you know has been investigated, arrested or charged with a crime involving an accusation of Domestic Violence, you should be aware of the 10 things on this page, and many more, before you say or do anything. The best bet in defending such a charge is to immediately contact a Las Vegas Domestic Violence Defense Attorney today. Attorney Josh Tomsheck can walk you through the confusing criminal justice system and fight hard to win your case. Call us today