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Len
Len, Lawyer
Category: Criminal Law
Satisfied Customers: 444
Experience:  15 years practice in criminal and employment law.
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Criminal Law
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I've been charged with misdemeanor assault

I've been charged with a... Show More
I've been charged with a simple misdemeanor assault. The charge was placed by my 17 year old son. He grabbed and held me by my wrists, and was accidentally scratched when I escaped his hold. I did not assault him and his injury was unitentionally incurred as I tried to escape him. What can I do? I plan to plead not guilty, but what am I facing? Is there any hope of getting this dismissed when there is a scratch? (Iowa)
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While it is only a misdemeanor, it is likely charged as a Battery or Assault upon a Household Member, due to the family relationship. It is more serious than other misdemeanors, because it also carries restrictions on firearm ownership. These cases also typically come with mandatory counseling.

When you go to the initial appearance, plea not guilty and request the appointment of an attorney, if you can't afford one.

You do have exposure to jail time, but with a first offense and no other convictions, it is likely that you would receive probation. However, given the other consequences, it would be far better to negotiate the case down, beat the charge, or otherwise,have it dismissed. Domestic violence is being taken very seriously by prosecutors, but in your situation, (self defense), it sounds as though you will be fine.

For now, don't make any further statements and follow the advice of your attorney. In the meantime, obey the no contact restrictions, if any are in place. Your attorney can seek to have the charges dismissed.

Len

Customer reply replied 8 years ago.
There isn't a no-contact order in place. I had a prior simple misdemeanor charge 12 years ago that I accepted a plea bargain on, had a reduced sentence that was a deffered judgement. Is that going to enhance this, even though it isn't the same charge? The police explained to me that this charge isn't considered domestic assault since he is not yet 18 and it isn't considered child abuse since he is over 15. I'm not sure if that is true or not, I guess that is a question for you.
Well, let's make sure of what they charged you with. Do you have the statute number. It will be on the citation or summons that you were served with.
Customer reply replied 8 years ago.

This time - 708.2(6) Assault (SMMS)

Last time - 708.2A(2)(B) Dommestic Abuse Assault w/o intent causing injury (SRMS) that was in 1995 and it was an adult involved.

Well, the police certainly charged this as domestic assault. Since your other misdemeanor is so old, you could receive a deferred sentence. There is a minimum confinement of two days, and as I suspected, a conviction under the statute, (or deferred), is going to require enrollment in a batter's intervention program. Here is the full statute which fairly easy to understand.

http://www.legis.state.ia.us/IACODE/1999SUPPLEMENT/708/2A.html

As such, you really need to work closely with an attorney and make this go away under a self defense theory, or in the alternative, get this negotiated down to simple assault without the added penalties. Of course, you should always pursue a deferred as opposed to straight conviction.

Take Care,

Len
Customer reply replied 8 years ago.

Isn't that section applicable to the old charge only? It has the A in the code, but this new charge does not. Yet, when I look up just 708.2 (no A) there isn't a whole lot of information http://www.legis.state.ia.us/IACODE/1999/708/2.html I am confused as to which link applies to me right now, and if it is the one I've included here - then it doesn't really explain what I'm facing. Sorry to be having so much trouble "getting it".

Nope. I quoted you the right section. First, there is no Iowa section 708.2(6) other than the one found within 708.2A. The (6) that the officer wrote down is a subpart found within Domestic Assault 708.2A. The 708.2, (without the A), doesn't have a subpart 6.

Second, the charge has to be the one that is closest in terms of the facts. Please note that at the beginning of 708.2A, it calls for assault as defined in 708.1 and "domestic abuse" defined at 236.2. Put the two together, and you are being charged under Domestic Assault 708.2A of the Iowa Code.

Even though the officer messed up the subpart, your charge will ultimately be decided under 708.2A(2), a first offense. Your old charged cannot be used due to its age.

So, when we put it all together, you could be facing a minimum of two days incarceration. However, you will be given first offender status with the age of your old charge. This means that you will be ultimately charged and faced with 708.2A(2) exposing you to a simple misdemeanor. On the bright side, you are still eligible for a deferred sentence. Again, work closely with your lawyer to avoid 708.2A altogether based upon self defense, or just good negotiating skills.

I wish you the best.

Len