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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23525
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was sleeping on the couch on night just after I had a accident

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I was sleeping on the couch on night just after I had a accident resulting in me breaking my shoulder. Anyway after she got done rubbing me, I went out to the couch to sleep cause I could not sleep in bed, she came out and was rubbing my leg when It cramped
up and pushed her down while I was sleeping. I was charged with a domestic assault 3rd degree. Am I responsible for my actions when I was sleeping?
Hello,
Here is the Nebraska statute for a domestic assault.
http://law.justia.com/codes/nebraska/2006/s28index/s2803023000.html
As you can see a DV assault in the third degree is a misdemeanor in Nebraska. And as you can also see, the statute requires that you knowingly and intentionally committed the assault or that you physically menace her. If you were indeed asleep, you could not have formed the intent to assault her.
The problem is that if she is not conceding that you were asleep at the time -- and she probably isn't since she called the police on you -- then this is going to be the typical he said/she said domestic case, and it's not going to get thrown out right out of the box because you say you were sleeping when you acted. The case will have to be litigated.
Is she saying that you did this in your sleep? Use the reply tab to let me know.
Customer: replied 3 years ago.
Kayla said I was kind of a sleep but not totally asleep
Hi,
That's my point. So there's a discrepancy in fact that would have to be resolved by the trier of fact, which would be the judge or the jury who presides over your trial.
Does this mean you have to try this case? No, of course not. It only means you can't get the case dismissed by walking into court and saying you were asleep at the time. If you don't want a trial, the prosecutor will offer you a deal, which will at worst consist of probation of some sort and anger management classes. And at best, ***** ***** the offense so that you'll plead to something less potentially damaging to your reputation and then enter a deferred judgment so that you come out without a conviction.
You'll need a lawyer, and you should have one on your court date.
Is there a protective order keeping you apart from Kayla at this point? Is she hell bent on prosecuting you or does she want to drop charges?
Customer: replied 3 years ago.
yes there is a no contact order in place, yes kayla wants this dropped with no charges
Customer: replied 3 years ago.
Kayla has been down to the city attorneys office trying to get this dropped, has been to my public defenders office and wrote a letter to judge to try to get this dropped.
Hi,
Thanks,for the quick reply. Two things you should know:
1) No contact means NO contact, even if she initiates it. If you're caught having any kind of contact, you can be rearrested on a new charge. Police don't have any latitude with an order of protection. If they are called to the scene they must make an arrest. It will not be a defense that it's okay with Kayla. Parties can't forgive each other and ignore the mandates of the court. She will have to get the order lifted or modified before you can have contact.
2)As Kayla has already found out, this is no longer her case but it belongs to the City Attorney. And she has no doubt been told that the state can now go forward with the charges, and that's exactly what the prosecutor intends to do. He will remind her that he can subpoena her and make her testify, and do everything in his power to make her think that she has no say in the matter.
What the City's Attorney says is the truth. The state can prosecute whether you want them to or not. But in point of fact, despite what the prosecutor is saying, they need you to make their case. And no prosecutor wants to go to trial with a reluctant star witness who will probably concede on the stand that yes, you could have been asleep and cost her the case.
So she has to hang in there and stick to her guns and keep letting the City's Attorney know in no uncertain terms that she doesn't want to go forward and have you prosecuted. At some point down the road, when the prosecutor is sure that it's really your decision, that you're perfectly safe and that nobody is forcing you to change your mind, he will be more amenable, especially if she has enlisted the aid of your lawyer, which to her credit, she already has done.
It's been my experience that when the defense attorney and the state's star witness start holding hands and double-teaming the prosecutor, eventually something good for the defendant can be worked out. It may not be an outright dismissal, as some jurisdictions just never allow a domestic complainant to drop charges and will go all the way to trial even where there will be a certain acquittal sooner than look soft on domestic violence. But if it cannot be dropped, it can be resolved in a way that does no real damage to his record.
Good luck!
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