In any sentencing, a Judge is required to consider four sentencing guidelines or "Toohill Factors" in deciding on a sentence. In deciding a sentence, a Judge must always consider probation first and may consider other options if they find probation inappropriate. The sentencing factors, ranked from most to least important are:
- Protection of Society
- Risk Reduction through Rehabilitation
- Deterrence of the Defendant and the Public
In crafting an appropriate sentence, a Judge will always look to protect society first, make sure they are doing what they can to rehabilitate the defendant, deter the defendant and the general public from committing any new crimes, and lastly punish the defendant. In Domestic cases, with a good mitigation plan, our team can often help make sure that any sentence handed down is more structured around rehabilitation than punishment. The following are possible or likely outcomes if a person pleads guilty or is found guilty after a trial. Many of our cases resolve with dismissals or acquittals, but let's look at the different possible outcomes of a guilty verdict on a charge-by-charge basis.
- Misdemeanor Domestics
All misdemeanor domestic cases are the result of an argument that did not leave any marking or injury. As a result, they are generally treated as rehabilitation rather than punishment cases. Often these cases are put into a specialty court called Domestic Violence Court. This is a county-specific result, but some Idaho counties have Judges that specialize in domestic violence cases and work with prosecutors, defense attorneys, and probation officers to set up a treatment plan specific to each defendant. Because probation is always a misdemeanor Judge's first goal, and rehabilitation is a higher priority that punishment, the Court will often not impose much jail time or a fine, but rather focus on lots of treatment. That treatment can include:
- Supervised Probation - this will usually entail a probation officer being assigned to your case to make sure you are staying on track with your plan. They may require you to prove that you are not drinking or using drugs, employed or in school, and have stable housing. While supervised probation is not ideal, a probation officer can be treated as a resource rather than a burden, and after showing an officer that you plan to succeed on your treatment plan, they will usually do what they can to support you in your success.
- Unsupervised Probation - the only requirements of unsupervised are to complete your treatment plan by the end of probation and not get in trouble. No probation officer here.
- Domestic Violence Evaluation - this is required by statute unless the defendant agrees to the full 24 modules or one year of weekly treatment. An evaluation will recommend either six-months or twelve-months of treatment. The evaluations are pricey, however, and sometimes an attorney may recommend agreeing to a period of treatment rather than wasting money on an evaluation. That is a case-by-case decision, however. Court approved evaluators can be found here, and domestic violence programs here.
- Twelve-Week SAMHSA Anger Management Treatment - this may be recommended by the State or ordered by the Judge. A workbook for that class can be found here.
- Substance Abuse Evaluation - if alcohol or drugs were involved in the incident, the Court may order a substance abuse evaluation and that you comply with its recommendations. Approved evaluators and providers can be found here.
- Mental Health Evaluation - if the incident came out of a mental health crisis, or the Court believes the defendant could benefit from counseling, they may order a full evaluation to get an idea of what treatment is necessary. These evaluations are expensive and often the provider requested by the Prosecutor is someone who is not treatment focused but may rather recommend incarceration. If necessary, we can facilitate an evaluation with an approved provider who is kind, respected by the Courts, and treatment oriented. If mental health is a concern, you can often get around the need for a full evaluation by starting individualized counseling. You can find a counselor in your area that takes your insurance by using this site.
- Discretionary Jail Time - when punishment is not the primary goal of the Court, but the Court wants to give a probation officer a stick to go along with their carrot, they can award discretionary jail time. Usually ordered as 90 days, this is time that you do not have so serve unless you mess up. If you miss a meeting with a probation officer, use drugs while on probation, miss a domestic violence class, or mess up in a different way, then the probation officer can put you in jail. A probation officer can usually only hit you with two days of discretionary time at a time, but at a maximum, no more than three. The benefit to discretionary time is that you do not have to serve it unless you mess up, and it gives the probation officer the ability to punish you while on probation without having to resort to a full probation violation.
In any misdemeanor case in Domestic Violence Court, the Court may approve financial assistance for the evaluation, treatment, or court ordered obligations. That form to apply for assistance can be found here: English/Spanish.
- Felony Domestics
These can range from something as little as a tiny bruise or allegation of choking with no injury all the way up to broken bones. Because the gamut of possible scenarios that felony domestic charges can cover, the possible sentences are also diverse. Here are some possible options from best to worst.
- Rule 11
In a felony domestic, there is often little or no proof of injury and the State is working with a he-said-she-said case. When that happens, we are often able to negotiate a massive reduction in charges to get you into the misdemeanor domestic realm as detailed above. If that happens, you would be agreeing to a "rule 11" plea agreement. In Idaho, all plea agreements are governed by Idaho Criminal Rule 11, but the slang term "rule 11" means an agreement that is binding on everyone: Prosecutor, Defense Attorney, Defendant, and Judge. If we are able to negotiate a twenty year felony down to a misdemeanor charge, the sentence you get would be specific, exact, and detailed. This means that if we are able to negotiate you a rule 11 plea agreement, you will be sentenced to exactly what is written in the agreement. The Judge is not allowed to change anything about it. Usually rule 11 agreements are rehabilitation focused and include domestic violence and other treatment rather than jail time.
- Felony Probation
Felony probation for a domestic usually runs for about ten years. During that period, you would be required to report to a felony probation officer. Felony probation is more intensive than misdemeanor, and would entail you giving up your right to refuse search of your person and property. That means that a probation officer can stop by your house or work at any time and check in on you. You will also be required to routinely show that you are not using alcohol or drugs, that you have a job or are enrolled in school, and that you are not spending time with others on probation or with extensive criminal records. A felony probation officer will also require you to complete the treatment detailed above in the misdemeanor domestic section. They will work with you to make sure that is scheduled and completed quickly.
A rider is a slang term for a retained jurisdiction. This is often the sentence for a more violent domestic felony with substantial injuries, or a conviction on a felony domestic after a trial. While the Court is not allowed to punish or "tax" you for having a trial, if the Court believes that an individual is not going to succeed on probation with more guidance, they can place someone in the rider program. When this happens, the Court holds onto the case for up to a year and sends the defendant to the prison for a few classes. Those classes commonly include Thinking For a Change (T-FAC), Aggression Replacement Training (ART), and if substances were involved Cognitive Behavioral Interventions for Substance Abuse (CBI-SA). As long as the defendant passes those classes, the Judge will schedule another hearing called a "rider review hearing." At that hearing, the attorneys will be allowed to argue for or against probation, but as long as the defendant preformed well, they are usually awarded probation. If, however, someone fails a class, the Judge will usually "revoke" jurisdiction and release that person to the prison. That means that the defendant is then sentenced to a prison term, often without a hearing, and must petition the parole board for release.
Prison is the last option the Court will consider. This is reserved for subsequent offenders, those who have been to prison in the past, or particularly violent offenses. If prison is the offer, the case is often pushed toward trial in order to negotiate a better deal or go for an acquittal.
Regardless of your charge, there are some additional factors that anyone facing a domestic violence charge needs to consider.
- Gun Rights
If you are convicted of a domestic violence charge, then you lose your Federal Second Amendment right to possess a firearm. Getting those rights restored can be difficult, so make sure you consult with an attorney if you are charged with a domestic and your gun rights are a priority.
- Withheld Judgment
If you have no prior criminal history, or have not used a withheld judgment before, you may qualify for one in your case. If the Court grants you one of these, they "withhold" judgment for a period of probation. After the probation is complete, if the Judge is happy with your performance, the Court must "execute" the withheld judgment and dismiss your case. This can be a huge win in a domestic case because it allows you to say that you have never been "convicted" of the charge. While you pled guilty, were sentenced, and placed on probation, the Judge has "withheld" the conviction, and as long as you complete a stellar probation, your case will get dismissed. The Court looks at a number of factors in deciding whether you should get a withheld, and our team has had luck convincing the Courts that some of our clients even qualify for a second withheld judgment because of "extraordinary circumstances."
Even misdemeanor domestic charges are considered crimes of moral turpitude and will impact a non-citizen's right to remain within the United States. Felony domestic charges will have worse consequences. While we do not practice immigration law, if you are a non-citizen, we consult with a few immigration attorneys regularly and will make sure you are informed of any possible consequences in the event of a conviction in your case.