Domestic violence is defined very broadly under Arizona law as violence against any person you’ve lived with or any person you have a child with. Most people think of a spouse, though the definition can also include a past partner, such as a person you had a child with eight years ago. Domestic violence can include anything from a serious verbal argument (perhaps including a death threat) to actual physical violence itself. It can also include harassment, so a person who calls over and over again or makes threatening gestures toward an individual while driving by their home is committing a domestic violence offense.
The scope of domestic violence charges ranges from misdemeanor level offenses, where there’s no actual physical altercation, to felony level, where there’s actual serious bodily injury (a broken orbital bone, a burn mark, or anything to that effect).
What’s most interesting and what affects most people in Arizona is the restraining order component of domestic violence crimes. All a person has to do is file a form for a restraining order in Arizona and tell the judge they’ve been threatened. The process can include an ex parte hearing, meaning the accused party does not even need to be present. Upon that evidence and that evidence alone, a restraining order can be issued.
Once the restraining order is issued and then served on the opposing party, that person immediately loses many rights, including the right to possess firearms, which affects a lot of people in Arizona. And in order to get that right back, the person has to request a hearing. As such, it’s imperative that a person facing these kinds of charges hires a lawyer. Your attorney can start investigating the charges and immediately request a review hearing from a judge in order to get your rights back as soon as possible.
I’m Facing Domestic Violence Charges. What Exactly Am I Being Charged With?
In the most basic sense, domestic violence is just assault, though it can include actions like making threatening gestures, involving a person you have a child with, a former dating partner, a former spouse, or a current spouse. Let’s say you threaten to punch or stab somebody—that’s domestic violence. Let’s say you push somebody down, punch somebody, or shoot somebody (or any other act of physical violence)—that’s obviously domestic violence, as well, as long as that somebody fits the category of someone you’ve lived with or been involved with.
When Police Are Called to the Scene of a Domestic Violence Incident, How Do They Determine Who the Aggressor Was and Who Will Be Arrested?
In most cases, the police get involved because someone calls 911. They typically presume that the person who called for help is the victim. The other person, therefore, is the aggressor, unless there are obvious, clear signs that that isn’t the case. Because the police tend to list the caller as the victim, this can obviously lead to false allegations and other detrimental effects for the alleged aggressor. People who phone for help can just as easily have been the instigator, so it’s not correct to assume which party is the victim. Again, this is why it’s imperative to hire a lawyer immediately.
Is an Order of Protection or a Restraining Order Automatically Put in Place After Domestic Violence Charges Are Filed?
There are two different types of restraining orders: civil and criminal. After a lot of domestic violence calls, the police will tell the alleged victim that they need to get a restraining order, which involves the alleged victim seeking a civil restraining order from a judge.
If the police believe there are serious enough issues to refer charges, they’ll ask the prosecutor’s office to file charges for that particular case. The prosecutor’s office then reviews the incident, and it’s that office, not the police, who will decide to file charges. If an indictment is issued, whether through a grand jury or through a paper indictment, then a criminal restraining order will be issued. Unlike a civil restraining order, a criminal restraining order carries criminal implications, so it can severely aggravate a case.
For sentencing, the judge looks at the presumptive sentence as a starting point (which I’ve mentioned before). The judge can go above that presumptive sentence if there’s an aggravation or below the sentence if there’s a mitigation. Let’s say you have a serious domestic violence assault that has a presumptive prison sentence of two years. If the offender violates a criminal restraining order, that could aggravate their potential prison sentence to three and a half years, which would be very detrimental to their case.
If Someone Is Charged With Domestic Violence Against a Spouse, Do They Still Have Access to Their Children?
The alleged offender’s ability to still see their children would depend on the circumstances of the case. With both civil and criminal restraining orders, the judge can make a finding that you also have to stay away from your children, but in order to make such a finding, the judge has to determine that the children are personally at risk. Just because a person acts out against a spouse, doesn’t mean that they’ll also act out against the children. If there is evidence that the offender acted out in the presence of the children or brandished a firearm in the presence of children, then the children would probably be listed on the restraining order. In short, restraining orders do not automatically apply toward children; they have to be specifically listed in the order after the judge has just cause.
In Addition to Sentencing Requirements, What Are the Other Ramifications of a Domestic Violence Conviction in Arizona?
There is a wide range of ramifications for domestic violence convictions. In cases involving a child, the victimized spouse could use the conviction against you in a child custody matter or a child support order. You lose your right to bear arms, your Second Amendment Right. If it was a felony offense, you can lose your right to vote. You can also potentially lose out on receiving state benefits, like welfare or medical benefits. Worst of all, you can completely lose your liberty, which means prison time.
One thing that affects a lot of people occurs in domestic violence incidents where the parties have still been living together. The restraining order will potentially kick one of those parties out of the home completely, so now you also have to find a new place to live. I’ve seen many cases where a person is literally living in their car for a couple of days until they can rent an apartment. These are just the immediate consequences of a conviction.
For more information on Domestic Violence Cases in Arizona, a free case evaluation is your next best step. Get the information and legal answers you are seeking by calling (480) 637-0240 today.