Are you accused of committing a Domestic Violence charge? Domestic Violence can be prosecuted as a misdemeanor or felony based on the circumstances, and can be punished with substantial jail time and fines. The attorneys at Bond, Black, & Nightingale have the experience and knowledge to negotiate dismissal or reduction of charges or to provide proven and effective trial defense for your case.
WHAT IS DOMESTIC VIOLENCE (Title 18-901 and 18-903)
Domestic Violence must be against a “household member.” A household member is someone you are married or used to be married to, someone you had a child with, or someone you live with (even if you do not have a child in common).
If you are charged with a misdemeanor, you can be charged with either domestic assault or domestic battery. If you are charged with a felony, you are being charged with domestic battery with traumatic injury. The difference between these charges is simple. If the police think you have threatened a household member but not touched them, that is domestic assault. If the police think that you touched a household member without consent but there are no injuries or marks showing that, you can be charged with misdemeanor domestic battery. If the police think that you touched a household member without consent and there are any injuries or marks consistent with police suspicions, you can be charged with felony domestic battery.
PENALTY FOR CONVICTION OF DOMESTIC VIOLENCE (Title 18-901 and 18-903, etc.)
While the formal penalties are outlined below, generally first time misdemeanor charges under this statute lead to the court ordering treatment rather than a fine or jail time. Unless otherwise ordered by the court, any conviction under the domestic violence statute requires that the person being convicted go through a domestic violence evaluation and then up to 52 weeks of treatment. The evaluation and treatment can be expensive and lengthy, so choosing the right provider is important. We like to recommend A New Path for evaluations and treatment. Your attorney may also be able to negotiate a settlement where the court waives the requirement for the evaluation and the parties agree to a certain number of classes.
Felony domestic violence charges have a much wider array of possible punishments from probation to prison time. If placed on probation, however, the domestic violence evaluation and treatment will be ordered. If you are charged with felony domestic battery, it is even more important to meet with an attorney for a free consultation to go over your options moving forward. Regardless of the charges, an attorney can help you set up a mitigation plan to start working immediately to help minimize the consequences moving forward.
First Conviction- Shall be guilty of a misdemeanor and is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail not to exceed six (6) months, or both.
Second conviction-Within ten (10) years of the first conviction, shall be guilty of a misdemeanor and shall be punished by imprisonment in the county jail for a term not to exceed one (1) year or by a fine not exceeding two thousand dollars ($2,000) or by both fine and imprisonment.
Third conviction within fifteen (15) years of the first conviction-shall be guilty of a felony and shall be punished by imprisonment in the state prison for a term not to exceed five (5) years or by a fine not to exceed five thousand dollars ($5,000) or by both fine and imprisonment.
Conviction of domestic assault or battery “in the presence of a child”-In the presence of a child means in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic assault or battery. For purposes of this section, "child" means a person under sixteen (16) years of age. The maximum penalty shall be doubled.
Notwithstanding any other provisions of this section, any person who previously has pled guilty to or been found guilty of a felony violation of the provisions of the referenced section(s) or of any substantially conforming foreign criminal felony violation, notwithstanding the form of the judgment or withheld judgment, and who, within fifteen (15) years, pleads guilty to or is found guilty of any further violation of this section shall be guilty of a felony and shall be punished by imprisonment in the state prison for a term not to exceed ten (10) years or by a fine not to exceed ten thousand dollars ($10,000), or by both such fine and imprisonment.
(substantially conforming with the provisions of this section. The determination of whether a foreign criminal violation is substantially conforming is a question of law to be determined by the court.
Any person who pleads guilty to or is found guilty of a violation of this section or section 18-923, Idaho Code, shall undergo, at the person's own expense, an evaluation by a person, agency or organization approved by the court in accordance with paragraph (c) of this subsection to determine whether the defendant should be required to obtain counseling or other appropriate treatment. Such evaluation shall be completed prior to the sentencing date if the court's list of approved evaluators, in accordance with paragraph (c) of this subsection, contains evaluators who are able to perform the evaluation prior to the sentencing dates. If the evaluation recommends counseling or other treatment, the evaluation shall recommend the type of counseling or treatment considered appropriate for the defendant, together with the estimated costs thereof, and shall recommend any other suitable alternative counseling or treatment programs, together with the estimated costs thereof. The defendant shall request that a copy of the completed evaluation be forwarded to the court. The court shall take the evaluation into consideration in determining an appropriate sentence. If a copy of the completed evaluation has not been provided to the court, the court may proceed to sentence the defendant; however, in such event, it shall be presumed that counseling is required unless the defendant makes a showing by a preponderance of evidence that counseling is not required. If the defendant has not made a good faith effort to provide the completed copy of the evaluation to the court, the court may consider the failure of the defendant to provide the report as an aggravating circumstance in determining an appropriate sentence. If counseling or other treatment is ordered, in no event shall the person, agency or organization doing the evaluation be the person, agency or organization that provides the counseling or other treatment unless this requirement is waived by the sentencing court, with the exception of federally recognized Indian tribes or federal military installations, where diagnosis and treatment are appropriate and available. Nothing herein contained shall preclude the use of funds authorized for court-ordered counseling or treatment pursuant to this section for indigent defendants as provided by law. In the event that funding is provided for or on behalf of the defendant by a governmental entity, the defendant shall be ordered to make restitution to such governmental entity in accordance with the restitution procedure for crime victims, as specified under chapter 53, title 19, Idaho Code.
If the evaluation recommends counseling or other treatment, the court shall order the person to complete the counseling or other treatment in addition to any other sentence which may be imposed. If the court determines that counseling or treatment would be inappropriate or undesirable, the court shall enter findings articulating the reasons for such determination on the record. The court shall order the defendant to complete the preferred counseling or treatment program set forth in the evaluation, or a comparable alternative, unless it appears that the defendant cannot reasonably obtain adequate financial resources for such counseling or treatment. In that event, the court may order the defendant to complete a less costly alternative set forth in the evaluation or a comparable program.
The materials at this web site have been prepared for informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. These materials do not, and are not, intended to constitute legal advice. Readers should not act upon this information without seeking professional counsel. The information provided at this site is subject to change without notice.