Domestic Violence Attorney Arizona

What is Domestic Violence?

Under Arizona law, “Domestic Violence” (“DV”) is not a crime, it is an enhancement.  It is vital for you to understand “Domestic” and “Violence” are separate words.

Domestic” is defined by the relationship.  The types of relationships are:

  • (1) Married, or have been married, or merely lived together at any time.
  • (2) Have a child in common.
  • (3) Either defendant or victim is pregnant by the other person.
  • (4) Related by blood or through law (i.e. marriage): Parent, grandparent, child, grandchild, sibling. Including “step-“parents, grandparents, children, and siblings.
  • (5) Victim is a child who currently or formerly lived with the defendant AND related to defendant’s former spouse OR to any person who has lived with the defendant.
  • (6) Current or Former romantic/sexual relationship (i.e. significant others).
    • Factors that may be used to determine if the relationship qualifies:
      • (a) Type of relationship.
      • (b) Length
      • (c) How frequent the victim and defendant interacted with each other.
      • (d) How long has it been since the relationship ended (if it ended).

Domestic Violence

Violence” is behavior or criminal acts.  Arizona identifies several crimes, both felonies and misdemeanors.  Some of the several crimes are: assault; criminal damage; disorderly conduct; and even first-degree murder, which Arizona law can attach a DV enhancement.

What do you mean ‘enhancement?’  There are several ways an offense can be identified as DV, but the enhancement(s) are the most important because, here, enhancement is synonymous with direct and collateral consequences.

  • Pursuant to R.S. §13-3601.02, any (misdemeanor or felony) DV enhanced crime can be a class 5 felony “Aggravated [DV]” (§3601.02(F)) if the defendant:
    1. Commits a 3rd or subsequent DV violation within 7 years either in Arizona or anywhere else in the United States, including tribal courts.[1] §3601.02(A).
      1. Must serve “not less than [4] months in jail” before being placed on community supervision (parole or probation), pardoned, or received a commuted sentence. §3601.02(B).
    2. Commits a 4th or subsequent DV violation within 7 years either in Arizona or anywhere else, must serve “not less than [8] months in jail.” §3601.02(C).
  • Arizona uses the offense date(s) to determine the 7-year gap. §3601.02(D).
  1. Understand this enhancement is offense-date driven, not conviction date, is crucial. I cannot tell you how many clients meet with us and are shocked to learn this is the only reason their offense (usually a misdemeanor) is being charged as an Aggravated felony requiring mandatory jail time.
  • Pursuant to 3601(L) and (N):
    1. If the victim was pregnant at the time of the offense, the “court shall [] consider[] the fact . . . and may increase the sentence.”
    2. If the defendant committed a felony against a pregnant person and knew the victim was pregnant, “the maximum sentence SHALL be increased by [2] years.”
  • Collaterally, the defendant WILL LOSE THEIR GUN RIGHTS. Yes, even for the defendant’s first and only misdemeanor DV offense.  Pursuant to 18 U.S.C. §922(g)(9), “It shall be unlawful for any person who has been convicted in a court of a misdemeanor crime of domestic violence to . . . possess any firearm or ammunition. . . .”  More commonly known as part of “The Brady Handgun Violence Prevention Act” which was signed into federal law on November 30, 1993.

Offense Classifications and Punishments

Arizona’s laws afford a variety of punishments, many of which focus on rehabilitation.  Noted, all punishments will require the defendant to pay the victim restitution.

Misdemeanors:

  • Arizona has 3 misdemeanor classes, the highest is a class 1 and is punishable by up to: 6 months jail, 3 years on probation, and $2,500.00 in fines and fees.

Felonies:

  • Arizona has 6 felony classes, other than first-degree murder (class 1), the highest is a class 2 felony. Felonies have a wide range of punishments including: not less than 1 year in prison, probation, and fines and fees.

Misdemeanors and some felonies are eligible for “Diversion” programs.  Diversion programs are designed to focus on two things: 1) rehabilitate the defendant: provide the defendant with tools to prevent the behavior from being repeated; 2) make the victim whole: ensure the defendant financially reimburses the victim for any financial loss incurred as a result of the defendant’s behavior.  Upon successfully completing a diversion program, the defendant’s case is dismissed with prejudice (the charges can never be brought again).

Victims

When police officers are called to a DV situation, the police are required to give the potential victim a written document which provides information.  The information includes: obtaining an Order of Protection or Injunction Against Harassment; phone numbers for local police and local emergency services; and website addresses for local DV resources.  §3601(J).

Also, Arizona codified specific Victim’s Rights in the Arizona Constitution, known as the “Victim’s Bill of Rights.”  AZ Const. Art. 2 §2.1.  While there are several Rights, I am going to highlight what are arguably the most important.

  • To be informed when the defendant is released from custody or escaped.
  • To be present at all criminal proceedings where the defendant has a right to be.
  • To be heard at any proceeding involving a release, plea agreements, and sentencing, and post-sentence hearings such as probation violation or release on parole.
  • To refuse any pre-trial defense interviews.
  • To receive prompt restitution from the defendant.
  • To a speedy resolution.

Victims are heard.  The Arizona Constitution requires all criminal courts and prosecutors afford the victim an opportunity to give input.  Victims are encouraged to maintain an active role in the case and communicate with the prosecutor, usually through a Victim’s Advocate.  As mentioned above, victims do not have the authority to dismiss the case; prosecutors charge cases and judges dismiss them.

Some victims choose to hire an attorney to fight for, and protect, their guaranteed Rights.  Victimization of any kind is an emotional experience.  Certainly, being the victim of DV is no exception to those emotions.  We represent DV victims for various reasons.  Some victims feel their voice is not being heard and want an attorney to appear on their behalf; victims want motions filed on their behalf; victims love the defendant and want the defendant to receive help instead of punishment.  Whatever the reason, the attorneys at the Attorneys For Freedom Law Firm support and fight for Victim’s Rights.

[1] Every case is unique; this advice is not directed to any specific person or set of facts.  This advice should be relied upon only for foundational purposes.  Contact an attorney, if you can/have time, before you do anything.

[2] Statistics are only taken from criminal activity actually reported.  Not all criminal activity is reported to law enforcement.

[3] To determine if the out-of-state conviction qualifies as DV under Arizona law, Arizona applies the out-of-state’s statute(s) to the Arizona Revised Statutes.  Said another way, even if the conviction was not considered a DV offense in another jurisdiction, Arizona may consider the offense a DV offense and apply it accordingly.