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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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What can a first-time domestic violence offender who was ...

Resolved Question:

What can a first-time domestic violence offender who was cited and released immediately after arrest, expect if he pleads guilty at the initial hearing?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 5 years ago.
That depends on the extent of the injuries, who the victim was and the circumstances under which the offense was committed.

The fact that the defendant was cited and released would seem to indicate that the case is not as serious as many are. Nevertheless, a domestic violence conviction can have potentially long term consequences. No one should ever plead guilty to such a charge at a first court appearance without having discussed the case with an attorney. If this person cannot afford to hire an attorney, he should ask the court to appoint the public defender's office to represent him.

Jim Reilly
Customer: replied 5 years ago.
There were no injuries, "victim" was the spouse,
circumstances were: defendant was witnessed by police dragging spouse to car, and spouse had a torn shirt. Location of incident was a remote highway many miles from town. Spouse and defendant argued, and spouse decided to, "walk home." Defendant could not leave her there in danger, and attempted to physically return her to the car, accidentally tearing her shirt. Spouse sat, refusing to move, so defendant pulled her arm, dragging her a few feet, which was witnessed by police.
Expert:  Jim Reilly replied 5 years ago.

If the police report accurately reflects these facts, it is possible that the DA will not even file charges. Assault on a spouse can be considered domestic violence under Arizona law, but assault is defined by Arizona Revised Statutes section 13-1203 as follows:

13-1203. Assault; classification

A. A person commits assault by:

1. Intentionally, knowingly or recklessly causing any physical injury to another person; or

2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult or provoke such person.

B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.

An excellent argument can be made that the described conduct does not meet this statutory definition. If charges are filed, there is no way the husband in this situation should plead guilty at the first court appearance. He should consult with a criminal defense attorney before doing anything. If he cannot afford a lawyer, he should ask that the public defender be appointed to represent him.

And, if charges are filed, at the very least this would seem to be an appropriate case for deferred prosecution.

Jim Reilly

 

Customer: replied 5 years ago.
Thanks so much! One more thing: What about sections 13-2904 and 13-3601? These are the basis of the charges.
Expert:  Jim Reilly replied 5 years ago.

ARS 13-2904 is the disorderly conduct section and reads:

13-2904. Disorderly conduct; classification

A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

1. Engages in fighting, violent or seriously disruptive behavior; or

2. Makes unreasonable noise; or

3. Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person; or

4. Makes any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession; or

5. Refuses to obey a lawful order to disperse issued to maintain public safety in dangerous proximity to a fire, a hazard or any other emergency; or

6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.

B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 is a class 1 misdemeanor.

On the facts you described, I don't see how the prosecutor could prove "intent to disturb the peace or quiet" of any neighborhood or even the spouse. This was a real stretch to cite to begin with. I would be amazed if the prosecutor elected to proceed with this charge.

ARS 13-3601 is the domestic violence section. It is quite long and you can see it in its entirety at:

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/03601.htm&Title=13&DocType=ARS

In the first paragraph, it incorporates the assault section (13-1203), so proving 13-3601 still requires proving an assault was committed under section 13-1203. As described in your question, this will be a tough case for the prosecutor to prove. If charges are filed, this still looks like an appropriate case for deferred prosecution.

Jim Reilly

 

Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
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