What Can Affect A Domestic Violence Charge?


How Often Is The Use Of Drugs And Alcohol Seen In Domestic Violence Cases? Does That Make Any Difference In Terms Of How Hard The Case Is To Defend?

It’s quite often the case that drugs or alcohol are involved. What makes it more difficult to defend is that if they are involved and you want your client to testify, then if there is evidence that they were using drugs or alcohol at the time that affects their ability to perceive what was going on and accurately recall, the judge who is going to decide the case would take that into consideration.

That’s how it would make a witness less credible, be it a client or anybody who is under the influence of drugs or alcohol. But other than that, it wouldn’t matter.

How Much Does Someone’s Past History Affect The Domestic Violence Case, Past Violence Or Assault Charges Or Even A DUI?

With misdemeanors, you have to gauge by the judge since judges decides it.

For the most part, if they have a prior history, it means, number one, they are not eligible for a diversion and if they are not eligible for diversion, it’s a trial.

Again, you’ve got to go on what the facts of the case are and what the judge would do. If the facts are that egregious, then it’s going to get charges, e.g. if it’s an assault, the facts are that egregious, they’re more likely going be get charged with a felony, anyway.

But if they are not, they almost never get a worse sentence after trial than with a plea because usually, the prosecutors get a little carried away with the plea offers and they tend to be worse than they really should be. So you almost never get worse by going to trial.

What the past is, means you don’t get diversion, you’re going to do a trial. That would be a fairly common way of looking at them.

What About False Accusations Or When People Want To Recant Their Accusation?

Taking the example of an assault case, not a serious assault, a minor injury or no injury, but with threats. The police come, and again if the husband’s the aggressor, the mother is the victim. She is upset, the police get a statement from her and they will always get a recorded statement whenever possible now, the days of just them taking down a statement are long gone, they will get a recorded statement.

What happens is they have that statement available. Depending on how the statement is, they can use that with or without the victim’s cooperation. If, for example, it happened immediately afterwards and could be interpreted as an excited occurrence, they could use it that way or if it’s a 911 call and it’s a cry for help, like, “He’s beating me, come get me”, they can use that anywhere.

In case if it’s not, if it’s something that the police respond 45 minutes later and they just take down a witness statement, then generally they can’t use that at trial except in one major circumstance. The circumstance is if the victim shows up for trial and says, “This is false and I was mad at him and none of this took place this way. I just wanted to get him out of the house and that’s why I called the police.”

Then the prosecutors can use that recorded statement as such and give evidence to impeach her, in effect, and get a conviction that way. So, if the victim shows up for court and the state otherwise has a good case, that’s going to be guilty.

The attorney can’t tell a victim not to show up and certainly the client can’t as well. Having said that, if a victim becomes aware of the law, it depends on how the subpoenas are served, e.g. in the City of Phoenix, they just mail the subpoenas out, a victim can’t be held in contempt for not obeying a subpoena that’s mailed because that’s not sufficient mail under Arizona law.

If the victim finds out that they haven’t been properly served and they don’t show up, the case gets dismissed. Whenever possible, if the victim comes in and talks to the lawyer, they’ll make that very clear to them.

The lawyer is not discouraging them from showing up, he’s just telling them what the law is and that happens a lot in domestic violence cases that the victim doesn’t show up. That’s always a good defense and that’s something to keep in mind.

However, when the victims think they can just call the prosecutors and the victims will say, “Well, it’s my case. I’m the one who is the victim, I’m the one who started it”, no. Once the police get involved and there is a criminal case, it’s the prosecutor’s case; it’s no longer the victim’s case.

The prosecutors will proceed with their case even if the victim is reluctant. And for the prosecutors, again, use the analogy with Phoenix, it’s far easier for them to set the matter for trial, have nobody show up and get the case dismissed because then they can say, “Hey, we did our best and it just didn’t work out” as opposed to the victim calls them and says, “Well, I don’t want to go” and the prosecutor says, “Okay, my victim is reluctant” and then two days later, they change the mind and gets prosecuted and then they look silly because they dismissed the case when they shouldn’t have in the first place.

That’s a misperception that a victim can just call up and get the case dismissed – it can’t happen.

If you are facing a Domestic Violence Charge in Arizona, call the law office of Attorney Gordon Thompson for a FREE initial consultation at [number type=”1″] and get the information and legal answers you’re seeking.

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