Misdemeanor Domestic Violence in Arizona: ARS 13-3601

Domestic violence charges are very common in Arizona. Police officers are often called to a home with conflicting testimony about a domestic incident. Officers are asked to make split decisions on who to charge, if anyone at all. Unfortunately, police officers routinely arrest the wrong person or make an arrest where no crime was committed. That’s because police make assumptions. They weren’t there, so they quickly evaluate testimony and evidence to make a decision. They will also play it safe by arresting and removing someone from the home.

Tobin Law Office Provides Experienced and Knowledgeable
Criminal Defense in Domestic Violence Cases.

When faced with any domestic violence charge in Arizona, it’s important to hire a qualified and experienced domestic violence criminal defense attorney. Arizona’s domestic violence laws are complex and impose harsh penalties. In addition, a domestic violence conviction has some lasting consequences. Even a misdemeanor domestic violence conviction leaves a criminal record that’s accessible to employers, agencies, and institutions. It also impacts your gun rights, child custody, and employment. If you’ve been charged with a domestic violence offense in Arizona, you should hire a criminal defense attorney that’s familiar with Arizona’ domestic violence laws, as well as the courts and agencies that prosecute domestic violence cases.

What is a domestic violence charge in Arizona?

Timothy Tobin, Your Mesa DUI & Criminal Defense LawyerDomestic violence isn’t technically a crime in Arizona; rather, domestic violence is an allegation that the victim of a crime has a “domestic relationship” with the Defendant.

For example, let’s say a defendant is charged with disorderly conduct and the victim is the defendant’s brother. In that scenario, disorderly conduct can be charged with a domestic violence allegation because they’re related. In other words, they share a specific “domestic relationship” recognized by Arizona law. And there’s a wide range of relationships that qualify for the domestic violence allegation: roommates, boyfriends, spouses, and in-laws are all recognized as domestic relationships under Arizona law.

How does a domestic violence allegation impact a misdemeanor charge?

A domestic violence allegation, under ARS 13-1601, exposes a defendant to increased punishments and additional collateral consequences. When convicted of a domestic violence offense, a Defendant must complete 26 domestic violence classes. In addition, the Defendant can no longer possess or own firearms.

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What must the prosecutor prove in a domestic violence case?

The prosecutor must prove two (2) things in any domestic violence charge:

(1) Defendant has a “domestic relationship” with the victim under Arizona law;

(2) Defendant committed one of the specific crimes listed in the Domestic Violence Statute.

What types of relationships qualify for a domestic violence allegation under Arizona law?

The domestic relationships are listed in Arizona’s Domestic Violence Statute. The following relationships qualify for a domestic violence allegation:

  • Victim and Defendant are married or divorced
  • Victim and Defendant presently (or previously) reside in the same household
  • Victim and Defendant have a child (or unborn child) in common
  • Victim and Defendant are related (by blood, marriage, law, or court order)
  • Victim and Defendant have (or had) a romantic or sexual relationship

As you can see, the Arizona’s definition of domestic violence applies to almost any type of domestic relationship. In some cases, the domestic relationship is unclear making it challenging for the prosecutor to prove the charge. However, in most cases, the domestic relationship squarely fits in one of Arizona’s definitions.

The domestic relationship is most complicated in situations where the Victim and Defendant are only dating. In those cases, it’s questionable whether or not they actually formed a romantic or sexual relationship to justify the domestic violence allegation.

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What misdemeanor crimes can be charged as a domestic violence offense?

Arizona’s Domestic Violence Statute specifically lists which offenses can be charged with a domestic violence allegation. There’s a wide array of charges ranging anywhere from murder and homicide, to disorderly conduct and property damage. For purposes of this misdemeanor domestic violence summary, we’ll stick to the misdemeanor offenses.

These misdemeanor offenses are subject to a domestic violence allegation under Arizona Law:

  • Endangerment; ARS 13-1201
  • Threatening or Intimidating; ARS 13-1202
  • Assault; ARS 13-1203
  • Custodial Interference; ARS 13-1302
  • Unlawful Imprisonment; ARS 13-1303
  • Criminal trespass in the third degree; ARS 13-1502
  • Criminal trespass in the second degree; ARS 13-1503
  • Criminal trespass in the first degree; ARS 13-1504
  • Criminal Damage; ARS 13-602
  • Interfering with judicial proceedings; ARS 13-2810
  • Disorderly Conduct; ARS 13-2904
  • Cruelty to animals; ARS 13-2910
  • Preventing use of telephone in emergency; 13-2915
  • Use of electronic communication to terrify, intimidate, threaten or harass; ARS 13-2916
  • Harassment; ARS 13-2921

What are the Penalties for a Misdemeanor Domestic Violence Charge?

Misdemeanor domestic violence penalties depend on the classification of the charged misdemeanor. A misdemeanor domestic violence charge will be either class 1, 2, or 3.

Maximum jail for misdemeanors under the Arizona Revised Statutes: A.R.S. § 13-707.

  • Class 1 Misdemeanor: 180 days jail.
  • Class 2 Misdemeanor: 120 days jail.
  • Class 3 Misdemeanor: 30 days jail.

Maximum misdemeanor fines under the Arizona Revised Statutes: A.R.S. § 13-802.

  • Class 1 Misdemeanor: $2500, plus surcharges, fees, assessments, and costs
  • Class 2 Misdemeanor: $750, plus surcharges, fees, assessments, and costs
  • Class 3 Misdemeanor: $500, plus surcharges, fees, assessments, and costs

Maximum misdemeanor probation under the Arizona Revised Statutes: A.R.S. § 13-902.

  • Class 1 Misdemeanor: 3 years probation
  • Class 2 Misdemeanor: 2 years probation
  • Class 3 Misdemeanor: 1 year probation

Mandatory Enhanced Penalties for Domestic Violence Convictions:

Any person convicted of a domestic violence offense must complete the State mandated domestic violence counseling program. The Defendant must complete between 26 and 52 sessions of counseling. There’s also additional mandated domestic violence fines.

Collateral Consequences of a Domestic Violence Conviction:

  • Criminal record: A domestic violence conviction, in Arizona, leaves a criminal record that’s accessible to employers, agencies, and institutions.
  • Gun Rights: Federal law prohibits the possession of firearms for any person convicted of a domestic violence offense.
  • Child Custody and Divorce: A domestic violence conviction can be used against a Defendant in a child custody or divorce proceeding.
  • Employment: Many employers are reluctant to hire someone with an assault or domestic violence conviction. Also, if an occupation requires the use of a firearm, a domestic violation conviction makes it impossible to perform one’s job.
  • Immigration: A domestic violence conviction can negatively impact immigration.
  • Exposure to future felony prosecution: If convicted of two domestic violations within 7 years, a third domestic violence offense will be charged as a felony with a minimum of 4 months jail. If convicted of three domestic violations within 7 years, a fourth offense will be charged as a felony with a minimum of 8 months jail.

Tobin Law Office, Lawyer For Arizona Domestic Violence Charges

Frequently Asked Questions About Domestic Violence

Q: Should I contact the Victim when charged with domestic violence?
A: No, you shouldn’t contact the victim in any way shape or form. Contact includes any type of communication made to a victim either through yourself or a third party. Unless and until the Court specifically grants permission to resume contact with the victim, you are not to contact the victim under any circumstance. If you initiate contact with the victim, it can result in additional criminal charges.

Q: When can I return to home after being charged with domestic violence?
A: In many domestic violence cases, the Court will make an order disallowing you to return home where the victim also lives there. This obviously creates disruption and inconvenience to the personal lives of the Defendant and Defendant’s family. Often times, it’s not even what the victim wants. The Court does this in the abundance of caution. The last thing a judge wants is for a Defendant to return home and commit another criminal act.

Q: Is there a way get permission to return home?
A: Yes. A defendant, or defense attorney, can file a motion to modify release conditions. In misdemeanor domestic violence cases, particularly, it’s common for a Court to modify release conditions to allow a Defendant to return home and resume contact with the family. Whether or not the Court grants such a motion is highly dependent on the underlying facts, victim input, and prosecutor input. Typically, if the victim wants the Defendant back home, and the underlying allegations are relatively minor, the Court will allow a Defendant to return home, even when the prosecutor objects.

Q: Can I own or possess guns with a domestic violence conviction?
A: No. Under federal law, if you have a domestic violence conviction, you can no longer own, carry, or possess a firearm. A domestic violence conviction is the only misdemeanor, in Arizona, that can result in the loss of gun rights.

Q: Can I restore my gun rights after a domestic violence conviction?
A: Yes, you can file a Motion to Set Aside a domestic violence conviction after completing the terms of your sentence. It cannot be filed until the defendant successfully completes all the terms and conditions of the sentence, including probation, fines, and restitution. If the Judge grants the motion to set aside, federal law would no longer prohibit the ownership of a firearm.

Q: Can I complete a Domestic Violence Diversion Program to avoid a conviction?
A: Also referred to as a deferred entry of judgment, a domestic violence diversion is often a desirable outcome because it avoids a domestic violence conviction and the resulting collateral consequences. In some cases, however, it may become apparent that the State cannot prove the charges, in which case, it might be wiser to reject diversion and fight the charges.

Domestic violence diversion is only offered in certain courts. It typically involves paying a fine and completing about 26 weeks of anger management and domestic violence classes. There’s a fee for each class, so it can get expensive. Upon successful completion of the program, your case would be dismissed.

The diversion program is in the complete discretion of the prosecutor. Your attorney would need to convince the prosecutor that you’re a deserving and qualified candidate. Many factors weigh into the prosecutor’s decision on whether to offer diversion.

Q: Can the Victim Drop Domestic Violence Charges in Arizona?
A: People are often surprised to learn that the State will continue prosecuting even when the victim wants a case dropped. This comes from the misconception that the victim is the one who presses charges. In actuality, under Arizona law, it’s the state that presses charges.

Victims, however, do have a constitutional right to give their input on a case. Usually prosecutors will give weight to the victim’s input on a domestic violence case. However, it’s not entirely up to the victim on whether to dismiss charges, offer diversion, or come to a plea agreement. Those decisions are in the discretion of the prosecutor. In addition, the judge would have to approve any dismissal or plea agreement.

Common Defenses in Domestic Violence Cases:

  • Lack of criminal act: Charges are often fabricated in domestic violence cases. There’s a variety of motives at play: blame shifting, revenge, child custody, divorce, and finances are all common motives to fabricate or exaggerate a domestic incident. Alcohol and drug abuse can also play a part in false accusations. In sum, there’s many reasons why someone might call the police and falsely accuse someone of domestic violence.
  • Lack of criminal intent: Often times a Defendant doesn’t have the required intent for charges to stick. Injuries, disturbances, and property damage can all be the result of an accident or self-defense.
  • Self-defense or defense of others: This is a common defense raised where a Defendant shows that reasonable force was used to defend himself. Often times, the alleged victim will show the police injuries that were only caused by a defendant defending himself.
  • Recanting Victim: While not really a defense, a victim who’s not cooperative with the prosecutor, or who wants the charges dropped, certainly creates an obstacle in the prosecutor’s case. Nevertheless, the prosecutor can force the victim to appear and testify if they serve the victim with a subpoena. If a victim fails to show to up to Court after being served, or changes her story on the stand, the victim could face criminal charges.
  • Constitutional Violations: Miranda, lack of a warrant, lack of probable cause, lack of reasonable suspicion, and denial of the right to counsel are all issues that can be raised in domestic violence cases.

Tobin Law Office provides these benefits in Domestic Violence Defense:

  • Transparent Flat Fees and Payment Plans:  Tobin Law Office in Mesa offers a quality and knowledgeable domestic violence defense at a flat rate. The cost of an effective domestic violence defense is known up front with no surprises or hidden costs.
  • Former Prosecutor: Mr. Tobin is a former prosecutor of two prosecuting agencies. In both those positions he prosecuted domestic violence cases. This provides valuable insight to the other side.
  • Personal Attention and Excellent Communication:  Attorney Timothy Tobin handles all aspects of the domestic violence case. Clients of Tobin Law Office won’t need to go through secretaries or paralegals. Clients all have Mr. Tobin’s direct cell phone and email for communication.
  • Free Domestic Violence Consultations: Reach out to us and you’ll be put in direct contact with Mr. Tobin to discuss your case and have your questions answered right away.

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Tobin Law Office Can Do the Following, and More, in Domestic Violence Cases:

  • Attend court hearings on your behalf so you won’t have to take time from work or family.
  • File a motion to return home or resume contact with the victim or family
  • Raise available defenses
  • File any constitutional motions
  • Negotiate with the prosecutor for a dismissal or reduction in charges
  • Negotiation for a dismissal of the domestic violence allegation
  • Protect gun rights
  • Interview officers and witnesses
  • Investigate the facts and circumstances of the charge
  • Fight the charges at trial, if necessary