Domestic Violence: ARS 13-3601
What is Domestic Violence in Arizona?
Domestic violence in Arizona criminal law is usually not a crime in itself, but rather is a special category that can be attached to other crimes because of the relationship between the defendant and the victim. This means that most crimes can be categorized as "domestic violence" crimes, such as assault, criminal damage, disorderly conduct, and threatening or intimidating. A.R.S. 13-3601 is the Arizona statute that defines domestic violence.
When these crimes are committed against strangers, they are prosecuted as regular crimes. But if the victim is related to or living with the defendant then these crimes can be designated as "domestic violence."
This is important because a crime that carries a "domestic violence" designation can have additional consequences for the defendant. For example, a domestic violence conviction can cause a defendant to lose their gun rights, even if the conviction is for a misdemeanor crime. It also requires the defendant to undergo special counseling.
Furthermore, if a defendant receives two domestic violence convictions within 7 years, then the third domestic violence case can be charged as felony aggravated domestic violence, even if the underlying criminal act is a misdemeanor.
A.R.S. § 13-3601 Defined
Under Arizona's domestic violence law, a crime is a "domestic violence offense" if any of the following apply:
- (1) The relationships between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household; or
- (2) The victim and the defendant have a child in common; or
- (3) The victim or the defendant is pregnant by the other party; or
- (4) The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law, or sister-in-law; or
- (5) The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who has resided in the same household as the defendant; or
- (6) The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship.
In determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship, the court looks to the following 4 factors:
- The type of relationship.
- The length of the relationship.
- The frequency of the interaction between the victim and the defendant.
- If the relationship has terminated, the length of time since the termination.
Aggravated Domestic Violence: ARS 13-3601.02
If a person is convicted of a third domestic violence offense within a 7-year period, then the defendant may be charged with a crime known as "aggravated domestic violence." This is a class 5 felony.
A person who has been convicted of aggravated domestic violence is not eligible for probation, pardon, or suspension of their sentence until they have served at least 4 months in jail, even if this is the defendant's first felony offense.
Possible prison sentences range from the following depending on how many prior felony convictions the defendant has:
- First Time Offender: .5 to 2.5 years
- Second Felony Conviction: 1 to 3.75 years
- Third Felony Conviction: 3 to 7.5 years
One of the most significant aspects of the crime of aggravated domestic violence is that it can change what would otherwise be a misdemeanor charge into a felony charge if the defendant has two prior domestic violence convictions.
Example: Assume that a person is charged with misdemeanor assault and misdemeanor criminal damage, both charged as domestic violence offenses. Misdemeanor convictions do not carry as heavy of penalties as felony convictions, such as prolonged prison time or the forfeiture of your civil rights, such as your right to vote. However, if a person commits a third misdemeanor crime within 7 years, such as a criminal damage charge for throwing his wife's cell phone, then the state may charge this third offense as "felony domestic violence," and the defendant will face serious consequences for what would otherwise be a relatively minor offense.
Increased Penalties when the Victim is Pregnant
ARS 13-3601 also states that if the defendant commits a domestic violence offense against a pregnant victim and knew that the victim was pregnant, or if a defendant commits a felony offense causing physical injury to a pregnant victim and knows the victim is pregnant, then the maximum sentence that the defendant faces is increased by up to two years.
Consequences of Domestic Violence Charges
Because domestic violence is generally not a crime in itself (with the exception of aggravated domestic violence) the possible punishments for a domestic violence crime are closely tied to the underlying criminal charges. So if the underlying charge is a misdemeanor, the domestic violence charge will also be a misdemeanor. Likewise, a felony charged as domestic violence will still be a felony of the same class as the underlying crime (e.g., class 6 felony; class 5 felony).
Special penalties for domestic violence crimes include needing to take domestic violence classes.
Also, as described above, if a person is convicted of three domestic violence charges, then a fourth charge may be charged as aggravated domestic violence, which is a felony even if the underlying crime would have been a misdemeanor.
Any of the following crimes may be considered "domestic violence" crimes:
- Second-degree murder
- First-degree murder
- Threatening or intimidating
- Aggravated assault
- Custodial interference
- Unlawful imprisonment
- Sexual assault
- Unlawful disclosure of images depicting states of nudity or specific sexual activities
- Trespassing (first, second, and third-degree)
- Criminal property damage
- Interfering with judicial proceedings
- Disorderly conduct
- Cruelty to animals
- Preventing the use of a telephone in an emergency
- Using electronic communication to terrify, intimidate, threaten, or harass
- Aggravated harassment
- Aggravated domestic violence
- Child or vulnerable adult abuse
Is "Diversion" an Option for Some DV Cases?
If this is your first criminal offense, even if it is domestic violence related, you may be eligible for a court-approved diversion program. Such programs are offered by some prosecutor's offices in Arizona for first-time offenders. They usually involve taking a certain number of domestic violence classes. After those courses are completed by the defendant, the prosecutor agrees to then dismiss the case with prejudice. This has the same effect as an acquittal and is usually a very favorable outcome if your attorney can get a diversion offer.
Defenses to Domestic Violence
- No Legal/Blood Relation: Because the "domestic violence" designation in a crime depends on the relationship between the victim and the defendant, a defense to such a designation would be to show that there is no legal or blood relationship which would qualify for the designation under ARS 13-3601. Furthermore, a court can determine whether a relationship exists depending on such factors as the type of relationship, its length, and when it ended.
Example: A man goes on one date with a woman and the couple wind up sleeping together. They do not meet each other after that, and for all intents and purposes the affair could be described as a one-night stand. The man is then charged with a crime against the woman five years later. Technically, the crime may be charged as domestic violence because the man and the woman previously had a sexual relationship. However, there is a good defense to the domestic violence charges given the very brief nature of the relationship and the length of time that had elapsed since the sexual encounter
- Defenses to Underlying Charges: If the nature of the domestic relationship is not at issue, there still exists possible defenses to the underlying criminal charges. These can include such things as violations of Miranda rights, violations of right to counsel, illegal search and seizure, and other defenses depending on the nature of the crime.
How Salwin Law Can Help You
If you've been charged with a domestic violence offense, an experienced criminal defense attorney at the Salwin Law Group can help you with your case today. Stewart Salwin provides free consultations on domestic violence related charges. Call today to see how we can help you get the best possible defense to your charges.
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