Sunday, August 30, 2015
FIRST NONPROFIT LAW FIRM IN WASHINGTON TO HANDLE CIVIL MATTERS FOR CLIENTS WITH MODERATE INCOMES
During my years as a criminal defense attorney handling a variety of criminal cases, including domestic violence cases, clients needed to either obtain or defend themselves against a Domestic Violence Protection Order or a Civil Anti-Harassment Order. The public defender will not handle these matters because they are technically not part of the criminal case. Fees for a private attorney to handle these matters can be expensive and many people with limited financial means cannot afford legal services and are forced to face protection order hearings alone and unrepresented by a competent lawyer. I just wanted to announce that Puget Sound Center For Law is the first nonprofit law firm in the State of Washington to handle civil matters for clients of moderate incomes between 125% and 600% of the federal poverty level. The civil matters the firm handles include protection orders (restraining orders),expungements, landlord-tenant law, employment law and wills/trusts & probate. All of the fees are at substantially reduced rates, making civil legal services and the justice system within the reach of the average person with moderate income. The firm has already begun taking clients and the firm's website is at www.pscfl.org
Sunday, March 7, 2010
MAKING FALSE REPORTS OF DOMESTIC VIOLENCE: ONCE YOU CALL 911, THERE'S NO TURNING BACK
After receiving several phone calls from alleged victims in domestic violence cases who say that they made up stories when they called 911 and don't want the defendant prosecuted, I thought I should write a post about that sort of situation. The reasons why people fabricate allegations of domestic violence vary. Many people get upset with their spouse or significant other and call 911 “just to teach them a lesson,” thinking that the charges can easily be dropped later. Much to their surprise, they find that there is a no-contact order in place, forbidding any contact with the defendant, the prosecutor refuses to dismiss the charges, the police want to interview them, and they are being subpoenaed to testify under oath in court at a trial.
The “victims” realize that they simply cannot call the whole thing off. Politics are involved in domestic violence cases and the prosecutors do not want to appear to be soft on domestic violence. Once a 911 call is made or an affidavit is signed, the decision to have someone prosecuted is largely out of the victim's hands. The courts and prosecutors take domestic violence allegations very seriously and know that the alleged victims may just be changing their statements out of fear of retaliation from the accused or to protect the accused and remain in an abusive relationship.
I have been asked before by alleged victims if they can nullify their sworn statements. I tell them that if by "nullify an affidavit," they mean tell the police and prosecutors that they lied about what happened, then they are looking at a possible charge of false reporting.
If you have made false allegations of domestic violence and the police or prosecutor want to interview you, you should tell them that you want to have your lawyer present. Your lawyer will advise you not to answer certain questions, as you would be incriminating yourself. If you refuse to talk to the authorities, you may be looking at an obstruction of justice charge by hindering or delaying an official investigation. If you are subpoenaed to testify, you must appear, but again you would have to assert your Fifth Amendment right to not incriminate yourself.
The decision to charge a person with domestic violence belongs completely to the prosecutor. Even if you tell them that you made a false police report, they may decide that you were truthful at the time the report was made and that now you are being untruthful. DO NOT think that you can call 911 just to get even with someone and then have everything dropped. I have seen plenty of people make a mess of their lives by making this mistake.
The “victims” realize that they simply cannot call the whole thing off. Politics are involved in domestic violence cases and the prosecutors do not want to appear to be soft on domestic violence. Once a 911 call is made or an affidavit is signed, the decision to have someone prosecuted is largely out of the victim's hands. The courts and prosecutors take domestic violence allegations very seriously and know that the alleged victims may just be changing their statements out of fear of retaliation from the accused or to protect the accused and remain in an abusive relationship.
I have been asked before by alleged victims if they can nullify their sworn statements. I tell them that if by "nullify an affidavit," they mean tell the police and prosecutors that they lied about what happened, then they are looking at a possible charge of false reporting.
If you have made false allegations of domestic violence and the police or prosecutor want to interview you, you should tell them that you want to have your lawyer present. Your lawyer will advise you not to answer certain questions, as you would be incriminating yourself. If you refuse to talk to the authorities, you may be looking at an obstruction of justice charge by hindering or delaying an official investigation. If you are subpoenaed to testify, you must appear, but again you would have to assert your Fifth Amendment right to not incriminate yourself.
The decision to charge a person with domestic violence belongs completely to the prosecutor. Even if you tell them that you made a false police report, they may decide that you were truthful at the time the report was made and that now you are being untruthful. DO NOT think that you can call 911 just to get even with someone and then have everything dropped. I have seen plenty of people make a mess of their lives by making this mistake.
Thursday, December 31, 2009
UNAVAILABILITY OF A COMPROMISE: ONE MORE REASON DOMESTIC VIOLENCE CHARGES ARE SO SERIOUS
In Washington State, we have what is called a "compromise of misdemeanor" that is available for many misdemeanor offenses. It is a way to get the case dismissed without having to go to trial. The legislature was careful to make this option unavailable in domestic violence cases.
Under Washington State law, when a person is charged with a misdemeanor, and a civil remedy exists, the defendant can repair the harm done, and if the victim acknowledges, in writing, that he or she has received satisfaction for the injury, the court may dismiss the case. The court's decision is discretionary, but it usually decides to dismiss the case when the victim acknowledges full satisfaction.
The compromise of misdemeanor is frequently used in theft cases and hit and run cases where the defendant compensates the victim fully before trial. It is even available in misdemeanor assault cases...unless the assault is characterized as domestic violence.
There is a Washington statute that says that when the defendant is charged with the crime of criminal street gang graffiti, any crime against a police officer, any crime committed with the intent to commit a felony and any domestic violence crime, a compromise of misdemeanor is unavailable.
The courts and the legislature punish domestic violence harshly and the unavailability of the civil compromise in a domestic violence case is just one more factor that makes penalties series in these types of cases.
Under Washington State law, when a person is charged with a misdemeanor, and a civil remedy exists, the defendant can repair the harm done, and if the victim acknowledges, in writing, that he or she has received satisfaction for the injury, the court may dismiss the case. The court's decision is discretionary, but it usually decides to dismiss the case when the victim acknowledges full satisfaction.
The compromise of misdemeanor is frequently used in theft cases and hit and run cases where the defendant compensates the victim fully before trial. It is even available in misdemeanor assault cases...unless the assault is characterized as domestic violence.
There is a Washington statute that says that when the defendant is charged with the crime of criminal street gang graffiti, any crime against a police officer, any crime committed with the intent to commit a felony and any domestic violence crime, a compromise of misdemeanor is unavailable.
The courts and the legislature punish domestic violence harshly and the unavailability of the civil compromise in a domestic violence case is just one more factor that makes penalties series in these types of cases.
Sunday, November 22, 2009
THE CRIME OF RECKLESS ENDANGERMENT
In addition to assault, harassment, and violations of no-contact orders, reckless endangerment is another crime that is frequently charged as domestic violence. Washington State law defines reckless endangerment as an act of recklessly creating a substantial risk of death or serious bodily injury to anther person. There used to be two degrees of reckless endangerment, but what used to be 1st degree reckless endangerment is now called "drive-by shooting." In all other cases not amounting to a drive-by shooting, a person will be charged with reckless endangerment, which is a gross misdemeanor.
An important thing to remember about this charge is the element of intent. To be charged with this crime, you do not have to intend to commit any act that may cause harm to someone else; you merely need to act recklessly. What does "reckless" mean? Ultimately, that is a question for the jury. In criminal law we have three different levels of intent: criminal negligence, recklessness, and malice. "Criminal negligence" is a gross deviation from the ordinary care you would expect the average person to exercise. "Malice" means that you specifically intended to commit a certain act or crime. "Recklessness" falls somewhere in between criminal negligence and malice.
So although it is a crime where no one is actually harmed, reckless endangerment is not an attempt crime like attempted murder. That is because you only need to be acting recklessly- no specific intent to carry out any act is necessary to be charged with this crime.
It is also important to note that the Washington statute says that reckless endangerment means you created a substantial risk of serious bodily injury. That means you must of created a risk of harm that is beyond the sort of harm that occurs in a 4th degree assault.
Another important thing to note about the crime of reckless endangerment is that you can be charged mulitple times for a single act if you created a substantial risk of serious harm to more than one person. In State v. Graham, the Washington State Supreme Court held that charging a person more than once for a single act is constitutional and separate charges can be justified when more than one person is endangered.
Let's say you are driving a vehicle with your spouse and three children after leaving a holiday party. Let's say you had a few drinks at the party and your blood alcohol content is .28. A police officer notices you swerving on the road and decides to stop you. Here, in addition to DUI, you could be charged with FOUR counts of reckless endangerment- one for each passenger. Not only that, but the charges would be considered to be domestic violence because the victims here are family members.
Whether or not the charges of reckless endangerment would stand depends on whether your driving and whether your level of intoxication rose beyond criminal negligence to the level of recklessness and whether the risk you created to the passengers in your vehicle was substantial.
An important thing to remember about this charge is the element of intent. To be charged with this crime, you do not have to intend to commit any act that may cause harm to someone else; you merely need to act recklessly. What does "reckless" mean? Ultimately, that is a question for the jury. In criminal law we have three different levels of intent: criminal negligence, recklessness, and malice. "Criminal negligence" is a gross deviation from the ordinary care you would expect the average person to exercise. "Malice" means that you specifically intended to commit a certain act or crime. "Recklessness" falls somewhere in between criminal negligence and malice.
So although it is a crime where no one is actually harmed, reckless endangerment is not an attempt crime like attempted murder. That is because you only need to be acting recklessly- no specific intent to carry out any act is necessary to be charged with this crime.
It is also important to note that the Washington statute says that reckless endangerment means you created a substantial risk of serious bodily injury. That means you must of created a risk of harm that is beyond the sort of harm that occurs in a 4th degree assault.
Another important thing to note about the crime of reckless endangerment is that you can be charged mulitple times for a single act if you created a substantial risk of serious harm to more than one person. In State v. Graham, the Washington State Supreme Court held that charging a person more than once for a single act is constitutional and separate charges can be justified when more than one person is endangered.
Let's say you are driving a vehicle with your spouse and three children after leaving a holiday party. Let's say you had a few drinks at the party and your blood alcohol content is .28. A police officer notices you swerving on the road and decides to stop you. Here, in addition to DUI, you could be charged with FOUR counts of reckless endangerment- one for each passenger. Not only that, but the charges would be considered to be domestic violence because the victims here are family members.
Whether or not the charges of reckless endangerment would stand depends on whether your driving and whether your level of intoxication rose beyond criminal negligence to the level of recklessness and whether the risk you created to the passengers in your vehicle was substantial.
Monday, November 2, 2009
INTERFERING WITH A REPORT OF DOMESTIC VIOLENCE
In domestic violence cases, there is frequently a charge of assault, harassment, or malicious mischief. In addition, defendants are also frequently charged with the crime of interfering with a report of domestic violence, which is a gross misdemeanor in Washington State. The statue that defines this particular offense states:
1) A person commits the crime of interfering with the reporting of domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and
(b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official.
Note that a crime of domestic violence must have been committed first before an allegation of interfering with a report of domestic violence can be supported. Alleged victims often make false allegations for a variety of reasons and if there is not sufficient evidence to prove that you committed a crime against the person who has accused you, than you cannot be convicted of interfering with a report of domestic violence.
There are some situations where the defendant may try to prevent someone from calling 911 when there has been no act of domestic violence committed and the person accused knows that the person attempting to make the phone call is going to make a false allegation. In this situation, it would not be considered to be interfering with a report of domestic violence because there was no actual crime to report.
RCW 10.99.020 also requires the alleged victim to be a family member or household member in order for a crime to be domestic violence. If you are accused of assaulting someone who is not a family member or a member of your household, you cannot be convicted of interfering with a report of domestic violence even if you do attempt to prevent them from calling 911.
This particular crime is separate from the underlying domestic violence allegation and, if the case goes to trial, this charge is usually brought to a jury in the same case as the underlying offense. The prosecutor will have to prove this charge apart from the underlying charge and the court will require separate jury instructions for each charge.
1) A person commits the crime of interfering with the reporting of domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and
(b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official.
Note that a crime of domestic violence must have been committed first before an allegation of interfering with a report of domestic violence can be supported. Alleged victims often make false allegations for a variety of reasons and if there is not sufficient evidence to prove that you committed a crime against the person who has accused you, than you cannot be convicted of interfering with a report of domestic violence.
There are some situations where the defendant may try to prevent someone from calling 911 when there has been no act of domestic violence committed and the person accused knows that the person attempting to make the phone call is going to make a false allegation. In this situation, it would not be considered to be interfering with a report of domestic violence because there was no actual crime to report.
RCW 10.99.020 also requires the alleged victim to be a family member or household member in order for a crime to be domestic violence. If you are accused of assaulting someone who is not a family member or a member of your household, you cannot be convicted of interfering with a report of domestic violence even if you do attempt to prevent them from calling 911.
This particular crime is separate from the underlying domestic violence allegation and, if the case goes to trial, this charge is usually brought to a jury in the same case as the underlying offense. The prosecutor will have to prove this charge apart from the underlying charge and the court will require separate jury instructions for each charge.
Friday, October 23, 2009
HOW YOU CAN EASILY BE CHARGED WITH 1ST DEGREE BURGLARY IN A DOMESTIC VIOLENCE CASE
In domestic violence cases, acts that would normally be charged as a simple misdemeanor or gross misdemeanor are often charged as felonies. In this posting, I will illustrate how easy it is for the State to charge you with 1st degree burglary if you have a domestic violence case pending or if you are charged with domestic violence in the future.
2nd degree burglary is the unlawful entry into a building with the intent to commit a crime inside the building. You don't need to actually commit the crime inside the building; you just need to enter with the intent to commit a crime. Contrary to popular belief, there is no breaking and entering necessary. You don't have to break into a building to be charged with burglary; you just need to enter without permission or authorization. Residential burglary is a burglary that takes place in someone's home. 2nd degree burglary and residential burglary are class B felonies in Washington. That means that the maximum sentence is 10 years in prison and a $20,000 fine.
1st degree burglary is a burglary in which you are armed with a deadly weapon or you commit an assault inside the building you unlawfully entered. 1st degree burglary is a class A felony. The maximum sentence for class A felonies is life in prison and a $50,000 fine.
So let's say you have a domestic violence case pending and there has been a no-contact order issued prohibiting you from going to your old residence, where your former roommate, the alleged victim in your case, lives. Let's say you get angry at the alleged victim for lying and making a false report to the police by saying that you assaulted him or her and you decide to go over to your old house and break something of theirs to teach them a lesson. By doing this, you will be charged with violating a no-contact order, which is a crime in and of itself. But you would also likely be charged with residential burglary because you are entering someone's home unlawfully (there's a no-contact order making it illegal to enter that person's home) and you enter with the intent to destroy that person's property, which is the crime of malicious mischief.
Let's say that after you enter the alleged victim's home, you decide not to destroy any property. The alleged victim tells you that they plan to make more false reports to the police so you get angry and slap that person. Here, it is already residential burglary because you entered a residence unlawfully with the intent to commit a crime inside that building- malicious mischief. Remember you don't need to actually commit the crime to be charged with burglary as long as you intended to commit the crime when you entered the residence. By slapping your old roommate, you now committed 4th degree assault. If you commit an assault during a burglary, it becomes 1st degree burglary, which is a class A felony punishable up to life in state prison!
What often happens in domestic violence cases is that someone gets upset with a family member, spouse, or former roommate and decides to go to that person's home to settle a score either with verbal threats or with acts of violence. In these cases, it is considered domestic violence because the alleged victim is a spouse, family member, or someone you once lived with. If they tell you that you are not allowed to enter the building, but you do so anyway, you could be charged with criminal trespass at the very least. Often an assault occurs. The prosecutor will want to argue that you entered the home with the intent to commit an assault on the alleged victim. If they can prove this, then you could be charged with 1st degree burglary in addition to the domestic violence assault charge. In this situation, it is absolutely imperative to contact a criminal defense lawyer who handles not only domestic violence matters, but serious felonies as well.
So in a situation where you would ordinarily be charged with a simple misdemeanor, punishable up to no more than 90 days in county jail, you could be facing a class A felony punishable up to life in state prison by unlawfully entering another person's home with the intent to assault that person or commit some other crime. Of course, this can happen in other non-domestic violence situations where there is no relationship between you and the alleged victim that would give rise to allegations of domestic violence. However, I am making this posting in a domestic violence blog because the scenarios I described above typically involve spouses, roommates, and family members. Burglaries that occur when there are no domestic violence charges are usually the types of burglaries where someone breaks into a home or business with the intent to steal cash, jewelry, or other valuable property.
2nd degree burglary is the unlawful entry into a building with the intent to commit a crime inside the building. You don't need to actually commit the crime inside the building; you just need to enter with the intent to commit a crime. Contrary to popular belief, there is no breaking and entering necessary. You don't have to break into a building to be charged with burglary; you just need to enter without permission or authorization. Residential burglary is a burglary that takes place in someone's home. 2nd degree burglary and residential burglary are class B felonies in Washington. That means that the maximum sentence is 10 years in prison and a $20,000 fine.
1st degree burglary is a burglary in which you are armed with a deadly weapon or you commit an assault inside the building you unlawfully entered. 1st degree burglary is a class A felony. The maximum sentence for class A felonies is life in prison and a $50,000 fine.
So let's say you have a domestic violence case pending and there has been a no-contact order issued prohibiting you from going to your old residence, where your former roommate, the alleged victim in your case, lives. Let's say you get angry at the alleged victim for lying and making a false report to the police by saying that you assaulted him or her and you decide to go over to your old house and break something of theirs to teach them a lesson. By doing this, you will be charged with violating a no-contact order, which is a crime in and of itself. But you would also likely be charged with residential burglary because you are entering someone's home unlawfully (there's a no-contact order making it illegal to enter that person's home) and you enter with the intent to destroy that person's property, which is the crime of malicious mischief.
Let's say that after you enter the alleged victim's home, you decide not to destroy any property. The alleged victim tells you that they plan to make more false reports to the police so you get angry and slap that person. Here, it is already residential burglary because you entered a residence unlawfully with the intent to commit a crime inside that building- malicious mischief. Remember you don't need to actually commit the crime to be charged with burglary as long as you intended to commit the crime when you entered the residence. By slapping your old roommate, you now committed 4th degree assault. If you commit an assault during a burglary, it becomes 1st degree burglary, which is a class A felony punishable up to life in state prison!
What often happens in domestic violence cases is that someone gets upset with a family member, spouse, or former roommate and decides to go to that person's home to settle a score either with verbal threats or with acts of violence. In these cases, it is considered domestic violence because the alleged victim is a spouse, family member, or someone you once lived with. If they tell you that you are not allowed to enter the building, but you do so anyway, you could be charged with criminal trespass at the very least. Often an assault occurs. The prosecutor will want to argue that you entered the home with the intent to commit an assault on the alleged victim. If they can prove this, then you could be charged with 1st degree burglary in addition to the domestic violence assault charge. In this situation, it is absolutely imperative to contact a criminal defense lawyer who handles not only domestic violence matters, but serious felonies as well.
So in a situation where you would ordinarily be charged with a simple misdemeanor, punishable up to no more than 90 days in county jail, you could be facing a class A felony punishable up to life in state prison by unlawfully entering another person's home with the intent to assault that person or commit some other crime. Of course, this can happen in other non-domestic violence situations where there is no relationship between you and the alleged victim that would give rise to allegations of domestic violence. However, I am making this posting in a domestic violence blog because the scenarios I described above typically involve spouses, roommates, and family members. Burglaries that occur when there are no domestic violence charges are usually the types of burglaries where someone breaks into a home or business with the intent to steal cash, jewelry, or other valuable property.
Sunday, October 18, 2009
CRIMES THAT ARE CONSIDERED TO BE DOMESTIC VIOLENCE
I have written previously that domestic violence can be virtually any crime that is committed against another household member or family member. While that is true, Washington State law says that certain crimes definitely qualify as domestic violence. It is important to know what these offenses are because not all of them are necessarily violent. Under Washington State law the crimes that are automatically considered to be domestic violence include:
Assault in the first degree; Assault in the second degree; Assault in the third degree; Assault in the fourth degree;
Drive-by Shooting;
Reckless Endangerment;
Coercion;
Burglary in the first degree; Burglary in the second degree ;
Criminal trespass in the first degree; Criminal trespass in the second degree
Malicious Mischief in the first degree; Malicious mischief in the second degree; Malicious Mischief in the third degree
Kidnapping in the first degree;
Kidnapping in the second degree;
Unlawful Imprisonment;
Rape in the first degree; Rape in the second degree;
Residential Burglary;
Stalking;
Interference With the Reporting of Domestic Violence
Washington law also says that a violation of a no-contact order is considered to be domestic violence. Not all of these crimes are necessarily violent; most notably criminal trespass, burglary, and violation of a no-contact order. Remember that the Washington State legislature has made the above crimes essentially domestic violence per se, but that does not mean that the list is exhaustive; other offenses that are not included in the above list may still be considered to be domestic violence by the courts nonetheless.
Assault in the first degree; Assault in the second degree; Assault in the third degree; Assault in the fourth degree;
Drive-by Shooting;
Reckless Endangerment;
Coercion;
Burglary in the first degree; Burglary in the second degree ;
Criminal trespass in the first degree; Criminal trespass in the second degree
Malicious Mischief in the first degree; Malicious mischief in the second degree; Malicious Mischief in the third degree
Kidnapping in the first degree;
Kidnapping in the second degree;
Unlawful Imprisonment;
Rape in the first degree; Rape in the second degree;
Residential Burglary;
Stalking;
Interference With the Reporting of Domestic Violence
Washington law also says that a violation of a no-contact order is considered to be domestic violence. Not all of these crimes are necessarily violent; most notably criminal trespass, burglary, and violation of a no-contact order. Remember that the Washington State legislature has made the above crimes essentially domestic violence per se, but that does not mean that the list is exhaustive; other offenses that are not included in the above list may still be considered to be domestic violence by the courts nonetheless.
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