LaBre on Law: The other side of domestic violencePublished 8:11pm Tuesday, October 9, 2012
By William L. LaBre, J.D.
Editor’s note: All characters and conversations are fictional, and are used only to illustrate points of law. Any resemblance to real persons or events is purely coincidental.
“I’m in trouble,” he said.
“I’m charged with domestic violence and the criminal bond says that I can’t have any contact with my wife. My wife got a personal protection order against me and the personal protection order doesn’t let me go in or by my house. I can’t see the kids; I can’t get my clothes. I’m like a ‘skid row bum.’ What do I do?”
“Tell me what happened,” I replied.
“Well, my wife and I have been going through hard times and there have been a lot of arguments. Two nights ago we had another argument, and she lost it. She started yelling and screaming, putting her head only inches from mine and yelling in my face. I was angry too, and I pushed her away.
“You pushed me!” she said. “I’m going to call the cops!” And she did. I just went outside and walked around to cool down.
“About 30 minutes later, the squad car arrived. They saw me walking around in the driveway and questioned me. I told them what I told you. They then went into the house and spoke with my wife. When they came back out, they read me my rights, arrested me, and took me to the jail.
“Two days after I got out of jail, and a day after I was served with my wife’s PPO, she called me on my cell phone and said that she wanted to work things out.
“What do I do now, and what can I do now?”
“Well,” I said, “the criminal offense — and the PPO — are separate matters and have different consequences. Let’s start with the criminal offense. Have you ever been convicted of any crime of domestic or any other type of violence before?”
“Then, the prosecutor may offer you a plea bargain where you plead guilty, but the judge takes your plea under advisement. You have to attend anger management classes, and go for a year without getting into any trouble. If you do that, at the end of the year the case is dismissed, and you don’t have it on your record.”
“But all I did was push her away from being in my face! I didn’t hit her, throw her down or do anything else. What I did was in self-defense. Why do I have to plead guilty to that?”
“You don’t have to plead guilty. You have the right to a jury trial, and the prosecutor must prove that it was not self-defense beyond a reasonable doubt. Of course, jury trials are expensive.”
“What happens if I’m found guilty?”
“You could get up to 93 days in jail plus costs, or be put on probation and still be required to attend anger management courses or any combination.
“But, there’s another hidden danger. If you are convicted of domestic violence, federal law says that you may not possess any guns for the rest of your life. You can’t even buy a gun for the rest of your life. If you like to hunt or shoot, that can be a real problem. But, if you take that plea I told you about, and do all that you are required to do, then there’s no conviction on your record and the federal gun ban doesn’t apply.”
“What about the PPO?” he said.
“You must file a petition to terminate the PPO” within 14 days of the day you were served with it. If you don’t timely file that petition, then the PPO continues until its expiration date.
“However, there’s also a risk if you file the petition to terminate. If you simply let the PPO continue until it expires, it doesn’t affect your gun rights. But, if you file the petition, and lose, then the same lifetime federal prohibition of possession or buying firearms applies. So the problem isn’t the hearing, it’s the extremely serious federal consequences of trying, but losing.”
“I understand what you’ve told me. But couldn’t I talk to my wife and have her drop everything?”
“If you talk to your wife, you bond could be revoked, and you’d be back in jail until the trial. That would certainly affect your ability to keep your job.
“Similarly, if you go by the house, you could be found in contempt, and then, again, land up back in jail.”
“But she wants to talk to me. She’s the one who now keeps calling me.”
“Too bad. If you respond to her, you can end up back in jail.”
“I thought this State was pro-marriage. This sounds like its pushing divorce to me.”
“You’re probably right. But the law doesn’t allow any kind of domestic violence at all. The legislature has determined that, no matter the degree of any domestic violence, whether you’re a ‘wife beater,’ or simply defending yourself, any domestic violence, even the slightest push, puts the person in the same category as a wife beater. If that causes a divorce, too bad. If the wife changes her mind, too bad. She called the cops, she got the PPO. Now you can’t talk to her, even if she wants you to.”
“What could she do?”
“Well, first, you can’t be the one to tell her anything, nor can you send someone else to tell her. Even if you send someone else, you go back to jail.
“But, she could go the clerk and fill out papers to terminate her own PPO. She could also ask the prosecutor to dismiss the criminal charges.
“However, the prosecutor can, and often does, tell the woman that, if she tries to recant and have the case dismissed, then he’ll prosecute her for filing a false police report.”
“Well, what should I do with all of this?”
“I’d suggest that you hire an attorney for both cases. We can discuss whether you want to take a plea bargain, or file a petition to terminate the PPO. Your attorney can talk to your wife prior to the PPO hearing; maybe she’d want to voluntarily dismiss the PPO. We can also see if, through a plea bargain, the case can be resolved in a way that doesn’t risk your gun rights. And, we can always go to Trial. But doing nothing will almost certainly drag things out for such a long time that the possibility of reconciliation becomes small.”
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