What are the important terms to understand?
The following definitions apply to the domestic violence law:
1) “Household member” means a person who is a spouse, former spouse, or a person who has a child in common (regardless of whether they have been married), or a person with whom a person is cohabiting, whether or not they have married or have held themselves out to be husband or wife.
2) “Traumatic injury” means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force.
Can you be charged with a felony and what are the penalties?
Yes. Any household member who inflicts a traumatic injury upon any other household member may be guilty of a felony.
A felony domestic battery conviction is punishable by imprisonment for a term not to exceed ten (10) years, by a fine not to exceed ten thousand dollars ($10,000), or by both fine and imprisonment.
Can you be charged with a misdemeanor and what are the penalties?
Yes. A household member who commits an assault on another household member that does not result in traumatic injury may be found guilty of a misdemeanor domestic assault.
A first such conviction is punishable by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not to exceed six (6) months, or both.
Can the sentence be aggravated if you have any prior domestic violence convictions?
Yes. Any person who pleads guilty to or is found guilty of an assault or battery and who previously has pled guilty to or been found guilty of a violation or of any substantially conforming foreign criminal violation, notwithstanding the form of the judgment or withheld judgment, within ten (10) years of the first conviction, may be found guilty of a misdemeanor. The enhanced punishment is imprisonment in the county jail for a term not to exceed one (1) year, a fine not exceeding two thousand dollars ($2,000), or both a fine and imprisonment.
Any person who pleads guilty to or is found guilty of a violation who previously has pled guilty to or been found guilty of two (2) violations or of any substantially conforming foreign criminal violation or any combination thereof, notwithstanding the form of the judgment or withheld judgment, within fifteen (15) years of the first conviction, may be found guilty of a felony. The enhanced punishment is imprisonment in the state prison for a term not to exceed five (5) years, a fine not to exceed five thousand dollars ($5,000), or both a fine and imprisonment.
Can the sentence be aggravated if children are present?
The maximum penalties are doubled where the act of domestic assault or battery for which the person is convicted or pleads guilty took place in the presence of a child. “In the presence of a child” means in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic assault or battery. A “child” for these purposes is a person under sixteen (16) years of age.
What if you have a prior felony domestic violence conviction?
Notwithstanding any other provisions of the law, any person who previously has pled guilty to or been found guilty of a felony violation or of any substantially conforming foreign criminal felony violation, and who within fifteen (15) years pleads guilty to or is found guilty of any further violation of this section, may be guilty of a felony and subject to imprisonment in the state prison for a term not to exceed ten (10) years, a fine not to exceed ten thousand dollars ($10,000), or both a fine and imprisonment.
Can you lose your right to carry firearms?
Yes. Under federal law, if you are convicted of a domestic violence misdemeanor or felony, you lose your right to carry firearms for life. This also applies to domestic violence charges that are pled down to assault, battery, or even disturbing the peace. This is a very serious disabling law that is enforced by the federal government. If a person convicted of domestic violence is caught possessing a firearm it is a federal felony punishable by up to 10 (ten) years in prison.
There are ways to work around this federal law so never plead guilty to domestic violence case without the advice of a knowledgeable attorney.
The Crime of and Penalties for Attempted Strangulation.
Any person who willfully and unlawfully chokes or attempts to strangle a household member, or a person with whom he or she has or had a dating relationship, is guilty of a felony punishable by incarceration for up to fifteen (15) years in the state prison.
No injuries are required to prove attempted strangulation.
The prosecution is not required to show that the defendant intended to kill or injure the victim. The only intent required is the intent to choke or attempt to strangle.
“Dating relationship” is defined as a social relationship of a romantic nature. Factors that the court may consider in making this determination include:
1) The nature of the relationship.
2) The length of time the relationship has existed.
3) The frequency of interaction between the parties.
4) The time since termination of the relationship, if applicable.