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.

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.

DOMESTIC VIOLENCE AND ASSAULT

As a Seattle domestic violence lawyer, I have noticed that when someone is arrested for domestic violence, the underlying offense is very often assault. Most assaults are charged as misdemeanors. There are 4 different types of assault under Washington State law. The type of assault that is charged as a misdemeanor is 4th degree assault. 1st, 2nd, and 3rd degree assaults are all felonies. In order to understand what 4th degree assault is, we have to know what the other kinds of assault are.

1st degree assault occurs when you INTENDED to inflict great bodily harm AND you used a deadly weapon or use actually did inflict great bodily harm. 2nd degree assault can be a number of things. Mainly, it is an assault where you did not use a deadly weapon and did not intend to inflict great bodily injury. If you cause great bodily injury to someone, it will most likely be charged as 2nd degree assault. Another important part of Washington State law is that strangulation is always charged as 2nd degree assault. The Washington State legislature commented that strangulation occurs frequently in domestic violence cases.

3rd degree assault is usually dependent on who you are accused of assaulting. 3rd degree assault includes assaulting bus drivers, police, officers, doctors, and nurses while they are performing job-related duties. Theoretically, if your wife is a nurse and you’re accused of assaulting her while she is working, you could be charged with domestic violence because the alleged victim is your spouse and the charge would be 3rd degree assault, a felony. I’ve never seen this happen before, but it’s possible. You could also be charged with 3rd degree assault if you negligently injure someone with a deadly weapon or negligently cause great pain to someone that lasts for a considerable time.

Finally, we get to 4th degree assault, the kind of assault that I see most frequently in domestic violence cases. Under Washington State law, 4th degree assault is all other assaults that do not fit under the categories of 1st, 2nd, or 3rd degree assaults. There is no statutory definition for the word, “assault” in the Washington criminal statutes, but the courts use the civil definition of assault and battery when they apply the criminal statutes. The civil definition of “battery” is any offensive or harmful touching. “Assault is either 1) an attempted battery or 2) intentionally putting another person in fear of immediate harm. If you do any of these things, you could potentially be charged with 4th degree assault.

Keep in mind that you can still be charged with assault, even if you did not touch another person, as long as you put them in fear of immediate harm or attempt to touch them in an offensive or harmful way. This would include something like raising your hand as if you were going to slap someone just to scare the other person. 4th degree assault is a gross misdemeanor, which means it is punishable by up to 1 year in jail. Assault charges are serious, especially the felony assault charges. Get help if you have been charged with domestic violence or assault.

WHAT MAKES A CRIME DOMESTIC VIOLENCE

Domestic violence charges usually involve assault or harassment. But there actually isn't a specific crime that constitutes domestic violence. It all depends on who the accuser is in determining whether the crime you're being charged with will fall under the category of domestic violence or not. Assault involves actually physically touching someone. In the most minor assault cases, it is a gross misdemeanor, meaning a maximum sentence of 1 year in jail. If a person is injured, there was use of a firearm, or an intent to inflict injury, the assault will most likely be charged as a felony.

Harassment can be charged in several different ways under Washington State Law. Perhaps the most common form of harassment is threats of physical violence. But there is also another type of harassment called telephone harassment that does not necessarily involve any threats whatsoever. This is where you must be careful. Telephone harassment could be making a single obscene phone call. Probably the form of telephone harassment you must be mindful of is the repeated phone calls. Under Washington law, making repeated phone calls to someone, whether you make any threats or not, can be considered harassment. Harassment, like assault, is a gross misdemeanor and carries a maximum sentence of 1 year in jail. In some cases, merely making a phone call or several phone calls can be charged as felony harassment.

Under Washington's domestic violence laws, virtually any crime committed against a spouse, family member, or person you live with can be considered domestic violence. It does not have to be assault or making threats of physical harm. It could be property damage, theft, or a number of other crimes.

Why is this so important? Because if you're charges are characterized as domestic violence, there are many other adverse consequences that go along with the underlying charges of assault or harassment or whatever the case may be. The first of these is that the police are generally required to make an arrest by law when responding to a domestic violence call. Next, if you are arrested, you CANNOT be released on bail until your arraignment if it is a domestic violence charge.

But one of the biggest ways a domestic violence charge can disrupt your life is a no-contact order. There is a variety of no-contact orders that the prosecutor and the court may want to issue against you. The court may issue a no-contact order that forbids you from going home where your accuser lives. This could be a huge disruption in your life, as you now may be homeless.

A domsetic violence charge can also affect your gun rights, which are guaranteed under the Second Amendment to the U.S. Constitution. What would be a low level offense is elevated dramatically when your accuser happens to be a spouse, family member, or person you live with. The crime they are accusing you of does not even have to happen at home for it to be considered domestic violence. It all depends on who is accusing you.

As a domestic violence lawyer, I've encountered many DV related issues in the State of Washington. If you are charged with domestic violence, you need to contact a domestic violence lawyer for your own protection. The accusers often make false reports or claim things that never happened. This can cost you your freedom, your ability to go home, and your right to own a gun, among other things. You need to have a domestic violence lawyer by your side to fight the no-contact order and get the charges dropped.