What is Domestic Violence?
Grisly statistics regarding the rate of domestic violence in Nevada as resulted in aggressive legislation and prosecution of domestic violence cases. Nevada law, NRS 330.18 defines domestic violence very broadly. Specifically, domestic violence occurs when someone does any of the following:
- Battery
- Assault
- 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. “Coercion”
- Sexual assault
- A “knowing, purposeful or reckless course of conduct intended to harass someone” including stalking, arson, trespassing, larceny, destruction of private property, carrying a concealed weapon without a permit, injuring or killing an animal
- False imprisonment
- Unlawful entry into his or her residence or forcible entry into his or her home if there is a foreseeable risk of harm to him or her from the entry.
To any of the following people:
- Spouse, current or former
- Girlfriend or boyfriend
- Person you are casually dating
- Family member, whether related by blood or marriage
- Cohabitant
- Any other person with whom you have a child in common
- Any minor child(ren) of that person
- Any appointed custodian or guardian of that child(ren)
Basically, if you are accused of (1) hitting, pushing, shoving, grabbing, or even throwing something at, (2) sexually abusing, and/or (3) stalking or harassing someone who you have had an intimate relationship with, either in the past or present, your children, the person’s children, family members, and anyone you did or currently live with, including a roommate, you can be charged with domestic violence.
Examples
Ashley and Josh are dating. They got into a verbal argument. In the course of the argument, Ashley threw a television remote at Josh’s head. Fortunately, Josh was able to duck, and the remote hit the wall behind him. If Josh called the police on Ashley, theoretically, Ashley could be arrested for and charged with domestic violence. How so? First, she has a dating relationship with Josh. Second, throwing the remote at Josh’s head was an assault in two ways: (1) in doing so, Ashley attempted to use force against him (NRS 200.471(1)(a)(2)), e.g. throwing an object at his head, and (2) Ashley’s actions placed Josh in fear of immediate bodily harm, e.g. he feared the remote would hit him in the head/face, as evidenced by his ducking (NRS 200.471(1)(a)(2)). Because Ashley committed an assault against a person with whom she has a dating relationship, she can be charged with and convicted of domestic violence.
Mary and Daniel were married and have two children together. A year ago, they divorced. Daniel has never been happy with the family court’s custody order. One day, he asked Mary if she would go to lunch with him to discuss a possible agreement to another custody arrangement. Because they had been getting along since the divorce, Mary agreed. Daniel picked her up and they went to a nearby café. Daniel and Mary had not yet reached a resolution by the end of lunch. When they arrived at Mary’s house, Daniel pulled the car up to the curb but placed a child-lock on all the doors, preventing Mary from exiting the car. Mary demanded that Daniel open the door and let her out. Daniel refused to do so until Mary agreed to give him more time with the kids. If Mary calls the police, even though he didn’t lay a hand on her, Daniel could nonetheless be arrested for and charged with domestic violence. But how? First, Daniel and Mary are former spouses. Second, preventing Mary from exiting the car when she wanted to amounts to false imprisonment because he confined/detained her in the car against her will without the legal authority to do so (NRS 200.460). Second, refusing to let her leave until she agreed to his demands constituted coercion because he had the intent to make her do something (agree to changing the visitation arrangement) that she didn’t have to do (because she has a custody order already in place). Because Mary is Daniel’s former spouse and he committed an act constituting false imprisonment and/or coercion, he could be liable for a domestic violence charge or charges.
Jon and Sam are college roommates living in a dorm on UNLV’s campus. One night, Jon and Sam have been drinking and begin to argue about something. Jon decides to leave to cool off but Sam is standing in front of the door. Jon shoves Sam to the side with his shoulder and leaves the dorm room. They’re just roommates so this couldn’t be domestic violence, right? Technically, if Sam reported to the police that Jon shoved him, the police could arrest Jon for domestic violence. First, a battery is any unlawful use of force or violence upon another. NRS 200.481(1)(a). When Jon shoved Sam with his shoulder, he used force and maybe violence (depending on how hard it was) against him without legal authority to do so. Second, Jon committed a battery against someone with whom he lived, which is a relationship covered under Nevada law. In an ironic twist, if Jon did not shove Sam and Sam continued to block the door after being asked to move, Sam may be guilty of Domestic Violence for committing False Imprisonment and/or Coercion. If Sam hid the phone so that Jon couldn’t call the police, Domestic Violence due to coercion because John has a right to use the phone.
Tom and Mary are out for a night on the town. They get into a verbal argument about Tom’s drinking. Tom begins to storm off and Mary grabs his arm to get him to stay. If anyone calls the police, Mary may very well face domestic violence charges. By grabbing Tom, Mary committed Battery by using unwanted force on another. If Mary held on and Tom was stopped from walking away, she prevented him from doing something he had a right to do.
These are less obvious examples of what can constitute domestic violence in Nevada. It can be confusing to someone unfamiliar with the law. Because the law is so broad in this area, it is important to hire an experienced criminal defense attorney to help you.
What are the Penalties?
Nevada domestic violence law has a three-strike system that punishes offenders more harshly each time they are convicted.
First Offense
The first offense is a misdemeanor and if convicted, you will face at least two days but up to six months in jail. NRS 200.485(1)(a)(1). You will get credit for any time you have already served. The court can suspend your sentence and only impose it if you fail to complete other requirements or get into more trouble.
You will also be required to complete at least forty-eight (48) hours and at most one-hundred-twenty (120) hours of community service at a non-profit organization.
You will have to pay anywhere from a $250 to a $1000 fine plus court fees. If you cannot afford to pay the fine, you can often complete more community service hours instead but court fees are rarely if ever waived. You can also satisfy the requirement by paying a portion of the fine and completing more community service hours for the rest.
Finally, you will have to attend and pay for a six-month (or 26-week) domestic violence counseling program. The counseling sessions generally cost around $35 per session but can be more or less depending on the provider. You generally do not have to pay them as you go. You can work out a payment plan with the program once you complete your sessions. The court will not accept inability to pay the session fees as an excuse if you failed to attend them.
When you are sentenced, the court will set a status check to see if you have completed all of your requirements. Some courts will set an early status check to confirm that you have started classes, others will set a date out later when the requirements are due. This means you have to get started right away in order to complete your counseling sessions. If you return to court without completing your requirements, you risk the court imposing the suspended sentence it set.
Second Offense
If you are arrested for and convicted of a second domestic violence offense within seven (7) years of your first conviction, you will receive a harsher penalty. NRS 200.485(1)(b). The second offense is still a misdemeanor, however, the sentence includes at least ten (10) days in jail, instead of two (2). The required hours of community service increase to at least one-hundred (100) up to two-hundred (200). The fine increases to a minimum of $500 and a maximum of $1,000. Finally, you are required to attend a year-long domestic violence counseling program.
Third Offense
If you are arrested and convicted of a third offense within seven (7) years, it is a category C felony and is MANDATORY PRISON. As a category C, the judge can sentence you to a minimum of one (1) year and a maximum of five (5) years in a state prison. NRS 193.130(c). The judge can also order you to pay a fine up to $10,000.
If your accuser claims that you strangled him or her during the altercation, the prosecutor can automatically charge you with a category C felony. NRS 200.485(1)(c)(2). This is regardless of whether it is your first, second, or third offense or whether there was any substantial injury. You can face a sentence of one (1) to five (5) years in prison and a fine up to $15,000.
Plea Agreements, Dismissals, and Trials
Although the law requires minimum levels of punishment, if convicted, for domestic violence offenses, the wide range gives the judge discretion at sentencing. Discretion means he or she has the authority or power to give you the minimum sentence, or alternatively, the maximum. The wide range also gives the prosecutor some leverage in negotiating a deal with you.
In Nevada, the prosecutor is not allowed to negotiate a Battery which Constitutes Domestic Violence to a lesser charge without good legal cause. Because of this, without an experienced attorney to advocate on you, the prosecutor will be less willing and unable to offer you a reasonable plea agreement. It is important to secure the assistance of an experienced criminal defense attorney to represent you. Attorney Martin Hart has twenty years of criminal experience, both in prosecution and defense. As a prosecutor, Martin Hart was assigned to the Special Victims Unit and the Domestic Violence team. His well-rounded experience gives him the ability to assess the strengths and weaknesses of the prosecutor’s case against you. He then can use this analysis in negotiating the best possible plea agreement for you, fight the case at trial, or possibly even obtain a dismissal of the charge or charges outright.
Immigration, Gun Right and Family Law Consequences of a Domestic Violence Conviction
1) Domestic Violence is deemed a crime of moral turpitude by federal immigration law and for all practical purposes prevents a non-citizen from legally residing in the United States.
2) It is illegal to possess a firearm if convicted of Domestic Violence.
3) A domestic violence conviction can have serious implications on child custody.
So if you or someone you know in the Las Vegas area needs assistance with a domestic violence arrest, please call Criminal Defense Attorney Martin Hart at 702-380-HART (4278) for your FREE consultation.