Domestic violence convictions carry serious collateral consequences, fines and possible jail or prison time. Hiring the right Provo/Orem domestic violence criminal defense attorney can make the difference.
Provo/Orem domestic violence charges are cases that go to trial more than other types of criminal charges. Due to the extreme emotional complexity and credibility problems of witnesses, all domestic violence cases have a decent chance at going all the way to a jury trial.
Hiring an experienced domestic violence criminal defense trial lawyer can make the difference.
(1). How many jury trials have you conducted as the first chair criminal defense trial lawyer?
(2). How long have you been practicing criminal defense in Provo/Orem, Utah County?
(3). Do you just practice criminal law, or are you a general practice lawyer, doing lots of different types of law to make a living?
As mentioned above, domestic violence cases have a higher chance of going to a jury trial than lots of other criminal charges. Therefore, hiring an attorney who is comfortable in the courtroom and has real trial experience under their belt is critical.
Many newer attorneys simply don’t have the trial experience needed to vigorously defend your legal rights. In today’s criminal defense context, less and less criminal cases are being tried and as a result, there are fewer attorneys who have actually been there, trying jury trials and winning.
When you hire an attorney who regularly practices criminal defense along with maybe one other practice area, you generally are getting a specialist. People who are in the courts all week long defending people accused of crimes will know the prosecutors and judges better. Law is a relationship business where reputation and skill matter.
The crux of any Utah domestic violence crime is the complaining witness must be a cohabitant. Or in other words, the alleged victim must be a family member or significant other. Utah’s primary domestic violence frame work is found at Utah Code Ann. 77-36-1 (2018). “Cohabitant” is defined for purposes of Utah’s domestic violence law to mean:
A person who is 16 years of age or older who:
(a) is or was a spouse of the other party;
(b) is or was living as if a spouse of the other party;
(c) is related by blood or marriage to the other party;
(d) has or had one or more children in common with the other party;
(e) is the biological parent of the other party’s unborn child; or
(f) resides or has resided in the same residence as the other party.
If the complaining witness in your criminal case is one of the above listed people, the crimes will be charged as a domestic violence offense. Often called the DV Tag.
If the police arrest you for any of the following Provo/Orem criminal charges, and the complaining witness is a cohabitant, you will be charged with domestic violence.
(a) Aggravated assault, as described in Section 76-5-103;
(b) Assault, as described in Section 76-5-102;
(c) Criminal homicide, as described in Section 76-5-201;
(d) Harassment, as described in Section 76-5-106;
(e) Electronic communication harassment, as described in Section 76-9-201;
(f) Kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections 76-5-301, 76-5-301.1, and 76-5-302;
(g) Mayhem, as described in Section 76-5-105;
(h) Sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and Section 76-5b-201, Sexual exploitation of a minor — Offenses;
(i) Stalking, as described in Section 76-5-106.5;
(j) Unlawful detention or unlawful detention of a minor, as described in Section 76-5-304;
(k) Violation of a protective order or ex parte protective order, as described in Section 76-5-108;
(l) Any offense against property described in Title 76, Chapter 6, Part 1, Property Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6, Part 3, Robbery;
(m) Possession of a deadly weapon with intent to assault, as described in Section 76-10-507;
(n) Discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle, as described in Section 76-10-508;
(o) Disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly conduct is the result of a plea agreement in which the defendant was originally charged with a domestic violence offense otherwise described in this Subsection (4). Conviction of disorderly conduct as a
domestic violence offense, in the manner described in this Subsection (4)(o), does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Sec. 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.; or
(p) Child abuse as described in Section 76-5-109.1.
Any attempt, conspiracy, or solicitation to commit a criminal offense involving domestic violence also counts for charging the offense with the domestic violence Tag.
Like DUIs, and drug possession charges, domestic violence charges are enhanceable. Meaning if you have prior convictions within the statutory look back period the charge can be enhanced one grade. So, a normal Class B Misdemeanor domestic violence can be enhanced to a Class A Misdemeanor.
If you have a prior domestic violence conviction within the past five years of the new domestic violence charge, your new charge can be enhanced one grade. A prior conviction for domestic violence can have occurred in Utah, or any other state or district, possession or territory of the United States.
Example: You have a prior Class B Misdemeanor for Assault & Battery, Domestic Violence. This conviction occurred in the Provo Justice Court. This conviction occurred within the last five years. Your new charges are Assault & Battery, Domestic Violence. Normally, Assault & Battery, Domestic Violence is a Class B Misdemeanor, but since you have a qualifying prior domestic violence conviction, the new charge will be enhanced to a Class A Misdemeanor.
Most every domestic violence conviction carries mandatory firearm restrictions for the person who was convicted of domestic violence in Utah. Federal Law under the Laughtenberg Amendment requires that all domestic violence crimes of violence that incur a conviction prohibit that person from using firearms. The language of the Laughtenberg Amendment is very broad, to include sale, transfer, possession, etc.
When you are charged with a crime of Domestic Violence in Provo/Orem, or anywhere in Utah, you will not be released from jail unless you sign a Jail Release No-Contact Order. The underlying law concerning Jail Release No Contact Orders can be found at Utah Code Ann. 77-20-3.5 (2018).
In essence, you will not be released from booking at the Utah County Jail unless you sign a Jail No Contact Order. This Jail No Contact Order expires automatically at midnight after your first court appearance on your Provo/Orem domestic violence charges.
Just because the Jail Release No Contact Order automatically expires at midnight, the court, the prosecutor or the complaining witness can ask the court to continue a No Contact Order with a Pretrial No Contact Order.
With input from the complaining witness (alleged victim) the prosecutor will often ask the Justice Court or District Court where the Provo/Orem domestic violence was charged in to continue a No Contact Order through a Pretrial Protective Order.
Pretrial Protective Orders continue during the pendency of the domestic violence criminal proceedings. The complaining witness, often the wife, or girlfriend, can ask the prosecutor, the victim advocate or the court to modify or lift the pretrial protective order.
The complaining witness has a right to be heard in some reasonable fashion by the court. Often the prosecuting attorney will not want the defense attorney, or the defense investigator to speak with the complaining witness and advise them of their rights in the domestic violence criminal proceedings.
The scope of pretrial and jail release no contact orders are broad and can remove you from your own house until it is modified. You can get your clothing and critical items out of your house under a court order or police standby, but ask the judge first.
Just like pretrial protective orders for domestic violence, a court can order as part of your domestic violence sentencing provisions that the No-Contact order continue during the term of your probation.
Sentencing no-contact orders in domestic violence cases expire automatically when your domestic violence case closes.
Utah’s domestic violence statutory scheme can primarily be found in three areas. (1). The Utah Cohabitant Abuse Act. Utah Code Ann. 77-36-1 (2018). (2). Second, the Utah Criminal Code at 76-1-101 holds and describes the various criminal offenses that qualify for a domestic violence tag.
All Utah domestic violence qualifying offenses are listed in Utah Code 77-36-101, definitions section and are listed above in this content.
Domestic violence qualifying offenses are varied and therefore can be charged in the Utah District Courts or Utah’s Justice Courts. The most common Utah domestic violence charges are where couples, significant others, spouses get in verbal and physical fights. Simple domestic violence Assault & Battery is charged as a Class C Misdemeanor.
Sex crimes and aggravated assaults are charged in Utah’s District Courts.
Witness credibility.
When defending a Provo/Orem domestic violence case, often the jury’s verdict will turn on the credibility of the complaining witness. Prosecutor’s call the complaining witness a “Victim.” Provo/Orem criminal defense lawyers call the alleged “Victim” a complaining witness because there is no crime proved yet. A person can only be a “Victim” legally when the criminal defendant has been convicted of a crime.
Any Provo/Orem domestic violence defense attorney will run background checks on the complaining witness and all witnesses in the case for that matter. Simple criminal and court involvement checks can be run through Utah’s paid subscription database called “Xchange.” It can be found here.
Private investigators can be hired to make a better investigation into the credibility of the complaining witness. The ability of the criminal defense attorney to interview or speak with the complaining witness is a touchy subject. Prosecutors and police feel they have the absolute right to speak with their alleged victims in preparing and prosecuting their cases. But the minute a Provo/Orem criminal defense attorney calls a witness, they can be accused of witness tampering. Witness tampering starts at a 3rd Degree Felony.
Utah Constitutional Husband-Wife Privilege.
Under Utah’s State Constitution, it is constitutionally unlawful to require a spouse to testify against the other s
pouse in a criminal proceeding over the objection of one of the spouses. The prosecuting attorney can call the complaining witness in a domestic violence case to the witness stand and that spouse can refuse to testify under the Utah Constitutional provision against it.
Utah’s evidence rules have specific contrary provisions that try to make it unlawful for a spouse to refuse to testify. Evidence rules are trumped by constitutional provisions every day. There is a hierarchy of laws and state constitutions beat state statutes each time. Just like the United States federal constitution trumps federal and state codes provisions to the contrary.
Primary aggressor police judgment call.
When reading your police report, the investigating police officer will often state that one party is the primary aggressor and, therefore, will charge that person. This leads to a significant judgment call that the police officer has to make regarding a charge of domestic violence and often it is a flip of the coin on who the police officer thinks is the primary aggressor.
Utah criminal defense lawyer Jake Gunter has been defending people for nearly 15 years. He has 14 jury trials under his belt and many more as the second-chair attorney. He has been in the courtroom representing people with at least 1,000 court hearings to his name. He has tried to judgment over 100 bench or evidentiary hearings.
