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Defense Against Allegations Of Domestic Violence

The lawyers at Platt, Thompson and Buescher have an emphasis in defending against crimes of domestic violence. “Domestic violence” is not a crime per se. It is a designation. Domestic violence exists when a household or family member commits a particular crime against another household or family member. RCW 10.99.020(5). A household or family member includes but is not limited to those who have been in a dating relationship, have lived together, are related by marriage or blood, have a child together, former or current spouses, stepparents, or stepchildren. RCW 10.99.020(3).

Possible Consequences Of Crimes Of Domestic Violence

Crimes of domestic violence can have serious consequences. Many crimes of domestic violence are gross misdemeanors. Gross misdemeanors are punishable by up to 364 days in jail and a $5,000 fine. RCW 9A.20.021(2). Consequences may also include a loss of the right to possess a firearm. See, e.g., RCW 9.41.040(2)(a)(i). For many people, including those in the military, the loss of firearm rights or a conviction of a crime of domestic violence alone, may threaten employment. For others, the loss of firearm rights may mean the loss of beloved recreational activities such as hunting.

Special Challenges Concerning Domestic Violence Charges

Domestic violence cases also pose special challenges for both the accused and the defense attorney. When a person is charged with a crime of domestic violence the law requires the court to determine whether a no-contact order prohibiting contact with the other household or family member should issue. RCW 10.99.040(2)(a). The governing law indicates that the decision whether a no-contact order should issue is discretionary with the court. But unfortunately many courts issue no-contact orders automatically in virtually every case where domestic violence is alleged. This may cause major hardship on the accused because most no-contact orders prohibit the accused from returning to their own home. Most no contact orders will also prevent spouses or those in committed relationships from communicating with each other directly, indirectly, through third persons, via phone, or other electronic means. This can cause issues in terms of dealing with finances, debts, property, and even discussing the care of children. Such circumstances can make domestic violence cases difficult and challenging for both the accused and the alleged victim.

Steps can be taken to terminate no-contact orders or obtain other relief. The defendant can request that the no-contact order be terminated, modified, or may otherwise request a civil standby that will allow the defendant to retrieve needed personal items from the home. The alleged victim may also file a protected person’s motion to rescind or modify the no-contact order. However, many courts may remain reluctant to terminate or modify a no-contact order regardless of whether the alleged victim requests it. Courts typically require a substantial “cooling” period before lifting no-contact orders. Some courts may even refuse to terminate no contact orders until the case is resolved. The filing of a protected person’s motion to rescind a no-contact order can be helpful regardless of whether a court may deny it.

Complainant-Accused Alliance Scenario

Most domestic violence cases begin with an argument. During an argument, the alleged victim or complainant may state things in the heat of the moment out of anger that are not true. And unfortunately, in Washington, the law requires police officers to make an arrest in most cases where domestic violence is alleged. See, e.g., RCW 10.99.30(6)(a). As a result of such circumstances, many domestic violence charges are without merit. Oftentimes the complainant recants his or her story after having an opportunity to calm down. This type of scenario is common in domestic violence cases. Later the complainant’s interests may actually be aligned with the accused – the complainant may not want the prosecution to proceed.

However, such a complainant-accused alliance does not mean charges will be dropped. The prosecution has authority to continue on with the prosecution regardless of the complainant’s position. A protected person’s motion to rescind or modify the no-contact order may provide the complainant with an opportunity to inform the prosecutor and court of his or her position. Reasonable prosecutors oftentimes take such statements into consideration. Such statements may also be useful should the case proceed to trial.

Complainant-Accused Adversarial Scenario

Oftentimes in domestic violence cases the interests of the complainant and accused are not aligned. The complainant may have personal bias against the accused beyond the immediate facts surrounding the charge. It is important to understand such facts in order to show bias or demonstrate exaggeration or untruthfulness. The right to confrontation and cross-examination is critical in such cases.

The evidence in many domestic violence cases is based only on the word of the complainant against that of the accused. The arresting officers almost never witness the alleged domestic violence. The officers may feel pressured to make an arrest because of the mandatory arrest requirement. See, e.g., RCW 10.99.30(6)(a). They typically rely on one person’s word over another when making the arrest decision. In such a case it is important to remind prosecutors that the burden of proof is beyond a reasonable doubt, that the officers have no personal knowledge, and that testimonial hearsay of the complainant is generally not admissible absent cross-examination of the complainant at trial. Crawford v. Washington, 541 U.S. 36 (2004). If a reasonable resolution cannot be reached without trial counsel may argue to the jury that one biased person’s word against that of the accused is not enough to establish the allegation beyond a reasonable doubt.

Other Common Legal Issues In Domestic Violence Cases

Many domestic violence matters involve the home. Oftentimes, officers make nonconsensual warrantless entries into the home when responding to domestic violence complaints. However, in the absence of exigent circumstances, police may not make a warrantless, nonconsensual entry into a home even when making a felony arrest. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371 (1980). And the Washington Supreme Court has declined to find exigent circumstances in situations where the state cannot prove each of the following:

  1. (1) The police subjectively believe someone needs assistance for health or safety concerns;
  2. (2) A reasonable person in the same situation would similarly believe that there was a need for assistance;
  3. (3) There is a reasonable basis to associate the need for assistance with the place being searched;
  4. (4) There is an imminent threat of substantial injury to persons or property;
  5. (5) State agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and
  6. (6) The claimed emergency is not a mere pretext for an evidentiary search.

State v. Schultz, 179 Wash.2d 746, 754, 248 P.3d 484 (2011). This is a heavy burden. In many situations where police make a nonconsensual warrantless entry into the home the state will be unable to prove exigent circumstances justifying such an entry. Evidence must be suppressed if the court finds the officers made an unlawful entry. Suppression may cause a domestic violence case to be dismissed.

Other common legal issues exist in domestic violence cases as well.

Contact Platt, Thompson and Buescher today to discuss your domestic violence charge with a criminal defense lawyer serving Oak Harbor, Island County, Burlington, Mt. Vernon, Skagit County, Seattle, King County, Bellingham and Whatcom County. Call 360-474-3994 or contact us online.