Beware: Never meet with a Criminal Law Firm that has you do your initial consultation with a Non-Attorney Salesperson, instead of a Licensed Attorney! At DM Cantor, you will always meet with at least one Partner/Board-Certified Criminal Law Specialist when receiving legal advice while having your initial consultation on a Felony Domestic Violence or Aggravated Assault Charge. This is vastly different from Law Firms that attempt to have a non-lawyer “sell” that firm’s legal services. At DM Cantor, we would never put our clients at risk.
Tempe Domestic Violence Charges and Their Elements
There is a 1-year Statute of Limitations under Arizona law in which to bring charges for legal issues regarding Misdemeanor Domestic Violence, Assault, and 7-years to bring Charges for Felony Aggravated Assault. We have seen many cases involving Allegations which occurred years earlier, and now the Alleged Victim is bringing up these accusations. This usually occurs while they are in “therapy,” and we have been able to successfully fight some of these charges based on “False Memory Syndrome.”
Domestic Violence Penalties on a Tempe Domestic Violence Assault, and Felony Aggravated Assault conviction are very severe, and the Assault Defense Team at DM Cantor knows the rules regarding Allegations of Prior Convictions or “Multiple Offenses Committed on Different Dates,” and how these rules can dramatically affect the Sentencing Range. At DM Cantor, each Tempe Domestic Violence Lawyer will have a litany of Defenses at our disposal in which to either have the charges not filed in the first place, or Dismissed entirely if they are already filed.
See the information below regarding the elements of both Misdemeanor Threats and Assault, and Felony Aggravated Assault, and their possible punishment.
Definition: Class 1 Misdemeanor Assault is committed by the intentional, knowingly or recklessly causing any physical injury to another person. Class 2 Misdemeanor Assault is committed when somebody intentionally places another person in reasonable apprehension of imminent physical injury. Class 3 Misdemeanor Assault occurs when a person knowingly touches another person with the intent to injure, assault or provoke such person.
Felony Aggravated Assault – ARS 13-1204
Definition: In Arizona, per ARS 13-1204, Felony Aggravated Assault occurs when a person commits a Misdemeanor Assault, and there are one of the following elements present: there is physical injury; a deadly weapon or dangerous weapon is used; temporary but substantial disfigurement, loss of impairment, or a fracture of any part of the body; the victim is bound or otherwise physically restrained; it occurs in a private home with intent to commit the Assault; the assailant is 18 years of age or older and the victim is 15 or younger; it occurs during the violation of an Order of Protection.
In addition, Aggravated Assault occurs if the victim is a First Responder, healthcare worker, prosecutor or public defender, park ranger, or a judicial officer. Lastly, it can also occur if there is an attempt by a person to obtain control of a firearm or an instrument utilized by either a Police Officer or a First Responder. Depending on the severity of the injury, or other factors, the punishment can range anywhere from the most serious of Class 2 Felony, to a less serious Class 6 Felony.
Domestic Violence Designation
In Arizona, per ARS 13-3601, an Assault can be classified as a Domestic Violence Complaint with a “Domestic Violence Designation” if one of the following conditions is met: the Defendant is related to the victim by marriage or former marriage; they reside in the same household; they have a child in common or are expecting a child; have any other legal relationship as a parent, grandparent, brother or sister, etc. In addition, a child of a boyfriend/girlfriend who is also residing in the house qualifies. Lastly, if the parties have had a previous romantic or sexual relationship (or current relationship), this can possibly qualify, depending on the length of the relationship and whether it was terminated or not.
The Domestic Violence Designation can cause very serious collateral consequences that go above and beyond a standard conviction of a Misdemeanor Assault, or Felony Aggravated Assault. If you have been accused in Tempe AZ of Domestic Abuse or physical abuse, and you need a Criminal Defense Specialist or Criminal Defense Law Firm to discuss your defense strategies, then contact the Top-Rated Arizona Lawyers at DM Cantor for a Free Consultation today!
Misdemeanor Punishment
Assault per ARS 13-1203(A), (B), or (C)
[A] Class 1 Misdemeanor Punishment per ARS 13-1203(A).
- Possible punishment can range up to 180 days in jail. In addition, there can be a fine of $2,500 plus surcharges, and mandatory domestic violence counseling classes.
[B] Class 2 Misdemeanor Punishment per ARS 13-1203(B).
- Jail time can range up to 120 days in custody, a $750 fine, plus surcharges and anger management classes.
[C] Class 3 Misdemeanor Punishment per ARS 13-1203(C).
- Possible jail time is up to 30 days incarceration, plus a $500 fine, plus surcharges, and anger management classes.
Felony Punishment
Felony Aggravated Assault per ARS 13-1204
- Felony Aggravated Assault can range from a Class 2 felony down to a Class 6 Felony. A Class 2 Felony is the most serious offense, and a Class 6 is the least serious of all Felonies – but it is still a Felony, and is considered life-altering. There are numerous statutory reasons which distinguish which Class of Felony and individual can be charged with. It is important to have a highly skilled Criminal Defense Attorney or Tempe Domestic Violence Lawyer review the charges in order to make sure you’re not being “overcharged”, per the statute.
[A] Class 2 Felony Punishment.
- Class 2 Felony Punishment would require a minimum of 3 years in prison; a presumptive of 5 years in prison; and a maximum of 12.5 years. This involves situations that usually involve a victim 15 years of age or younger, or an Assault on a law enforcement Officer.
- Warning: If a Dangerous Instrument (such as a car) or Deadly Weapon is used (such as a gun), then the range jumps up to 7 years minimum in prison; 10.5 years presumptive in prison; and maximum of 21 years in prison.
[B] Class 3 Felony Punishment.
- Class 3 Felony Punishment for Aggravated Assault normally involves an Assault on a Police Officer, First Responder, teacher, healthcare worker, prosecutor or public defender, or other judicial officer or law enforcement agent. The mandatory minimum for a Class 3 Felony is two years in prison; a presumptive term of 3.5 years in prison; and a maximum term of 8.75 years in prison.
- Warning: If a Dangerous Instrument or Deadly Weapon is used, then the mandatory minimum is 5 years in prison; the presumptive is 7.5 years in prison; and the maximum is 15 years in prison.
[C] Class 4 Felony Punishment.
- Class 4 Felony Punishment is normally reserved for injuries resulting from an Assault to a Peace Officer or employee. The minimum in prison is 1 year; the presumptive is 2.5 years in prison, and the maximum is 3 years. Also, the judge can instead decide to impose Jail time of anywhere to 0 days in Jail up to 1 year in Jail as a condition of Probation.
[D] Class 5 Felony Punishment.
- Class 5 Felony Punishment is usually reserved for Assaults on Police Officers or their employees that do not result in physical injury. Punishment for a Class 5 Felony includes a minimum of 6 months in prison; a presumptive term of 1.5 years in prison; and a maximum of 2.5 years in prison. In the alternative, the Judge can oppose Jail time of anywhere to 0 days in Jail up to 1 year in Jail as a condition of Probation.
[E] Class 6 Felony Punishment.
- In Arizona, Class 6 Aggravated Assault occurs if there is a Misdemeanor Assault against somebody who is bound or physically restrained; if it occurs in the private home of another with the intent to commit Assault; if it is against a minor under 15 years of age; if there is an order of protection in place; if it is against a first responder, teacher, healthcare worker, prosecutor or public defender, judicial officer, or park ranger; or, if a person attempts to take control of a firearm or an instrument utilized by Police Officer or first responder. In addition, there can be no serious physical injury involved in order to be categorized as only a Class 6. The minimum in prison is 4 months; a presumptive term of 1 year in prison; and a maximum term of 2 years in prison. In the alternative, the Judge can impose Jail time of anywhere of 0 days in Jail up to 1 year in Jail as a condition of Probation.
Warning: A Judge can also impose hefty fines and mandatory counseling as a condition of any Felony conviction. In addition, the Arizona Domestic Violence Laws contain serious collateral consequences can result from a Felony Assault/Domestic Violence conviction that can continue long after you have served your time, or after you have been released from Probation.
Collateral Consequences of a Domestic Violence Conviction
If you are convicted of a Domestic Violence Assault, or Felony Aggravated Assault, the Collateral Consequences can be very serious. Even after you are done with any jail or prison sentence, or after you are released from Probation, there are still certain restrictions that can follow you for the rest of your life. For example, you may not be allowed to ever own a firearm while living in Arizona.
Other Collateral Consequences of a Domestic Violence Assault or Felony Aggravated Assault conviction can include restrictions on what type of job you are able to secure, restriction and revocation of professional licenses, restrictions on being able to live in certain apartments or on college campuses, and other serious consequences. If you are looking to hire a Tempe Domestic Violence Defense Attorney or an Aggravated Assault Defense Lawyer to handle your Domestic Violence Offense or criminal charges, you need to first find a Board-Certified Criminal Defense Attorney who routinely handles Assault Defense.
The 17 Best Domestic Violence Defenses In Tempe, Arizona
1-4: Affirmative Defenses
Self-Defense
Per Arizona Revised Statute 13-205, it is a Defense to Assault if you can show you were Justified. In order to do this, you must prove by a Preponderance of the Evidence (i.e., more likely than not) that you were Justified in using force to defend yourself against an Actual Assault, or an Impending Assault. This is one of the most common Defenses in Arizona and is very common in bar fight situations. It is also very common in domestic situations where one person begins hitting or scratching the Defendant during an argument.
Defense of Others
It is also an Affirmative Defense for a Domestic Violence Charge under ARS 13-205 if you can show you were Justified the use of force in order to defend others. Once again, this must be shown by a Preponderance of the Evidence, which means will more likely than not that your force was Justified in order to address the perceived Assault, or an actual Assault.
Defense of Property
A person is Justified in using force in order to defend their property, as long as it is “reasonable force.” Again, this is sanctioned by ARS 13-205. Once Justification is shown by a Preponderance of the Evidence, then the State must prove Beyond a Reasonable Doubt that the force was not Justified in defending a person’s property. This happens in Domestic Violence cases where one party begins destroying another party’s property during an argument, and force is necessary to prevent or restrain in order to prevent Criminal Damage.
Crime Prevention
Using Justifiable Force during prevention of a crime is a Defense also sanctioned by ARS 13-205. This can include using force to prevent your property from being damaged, preventing somebody from committing a crime against others, restraining somebody if it appears they’re going to Assault others or commit a Kidnapping, and any other type of Crime Prevention you can think of. However, it must be shown by a Preponderance of the Evidence (i.e., more likely than not) that it was necessary in order to prevent an actual or perceived crime. If this is shown by the Defendant, then the burden is on the State to prove Beyond a Reasonable Doubt that the force used was unreasonable, or not necessary.
5-7: False Allegations
The Victim is Lying
This has become very common in Assault cases. Either the Alleged “Victim” is lying about not being the aggressor, or they are making up/exaggerating being Assaulted. Again, this is common in bar fight/drunken street encounters, as well as in Domestic Violence situations. We often see scenarios where the actual aggressor is the one who initiated the attack on the Defendant, but it was the Defendant who was defending themselves who finished the attack. It is also very common in Custody Battles to see these allegations made between spouses who are in the process of getting a Divorce, or who are fighting over Child Custody.
The Witness is Lying
It is common for witnesses who are friends of an individual to lie on their behalf. They can either do this by flat-out not telling the truth, by exaggerating, or by omitting key facts. It is important to have an Attorney who will not only interview these so-called witnesses, but who will also search for any type of surveillance, or video evidence (such as Ring doorbell cameras, surveillance cameras at bars, on the street, etc.).
Mistaken Identity
Sometimes in meles or bar fight situations, people get misidentified as an attacker. This is especially common if a person is a friend of, or was with, the actual person who’s engaged in a fight. This is also becoming more and more common than so-called road rage situations, or situations involving a moving vehicle.
8-12: Causation Defenses
Lack of Causation of Injury
This Defense is quite common. Many times, two people are engaged in an argument, and one person who has been drinking will trip and cause their own injury. In addition, sometimes people report the incident days later, after they have incurred some other type of injury in a different activity. It is important that your Attorney analyze all evidence and interview all witnesses.
Supervening Cause
The Defense of Supervening Cause normally involves a melee or bar fight. Sometimes a fight may break out where the Defendant throws a punch, but then somebody else strikes the Alleged Victim with a Dangerous Instrument or uses a Deadly Weapon. If the Defendant is then accused of causing that secondary injury, it is important to show that they were potentially only involved in a Misdemeanor Assault, and not in a Felony Aggravated Assault. Make sure your Attorney analyzes all medical records and surveillance videos that may be involved in your case.
Lack of Intent
Sometimes a person is not acting intentionally when an injury is caused. This can include situations where a person turns around quickly, and their elbow may strike another person’s body. This usually happens in crowded situations, and many times the Alleged Victim will claim it was done on purpose.
Lack of Recklessness
Even though a person may not “Intentionally” cause an injury, they can “Recklessly” cause one. Examples would be throwing a beer bottle into a crowd, or driving at a very high rate of speed. However, it is the Defense to Assault to show a Lack of Recklessness. If it can be shown that the Defendant was acting the way a “reasonable person would act in similar circumstances,” then the element of Recklessness will not have been met. This is a very powerful Defense to Assault Charges (especially Vehicular Assault Charges).
Lack of Negligence
Although a person may not be acting “Recklessly,” they can still be acting in a “Negligent” manner. It is important to show that a Defendant was not Negligent in their behavior, which may have caused another person injury. What must be shown is the Defendant exercised a level of care that a reasonable person would have exercised in similar circumstances. Again, this is a very powerful Defense for allegations of Assault (especially Vehicular Assault).
13-15: Evidence-Based Defenses
Illegal Search and Seizure
We have defended many cases where the Police have improperly seized evidence without first securing a Search Warrant. We’ve also had issues where the Search Warrant Affidavit was not truthful, or the Warrant was not executed during the proper timelines. This Defense is very important in situations involving Felony Aggravated Assault, and where a vehicle is involved and is impounded. It also applies where there’s a Deadly Weapon or Dangerous Instrument utilized, and where an improper Search of a person or vehicle (or their house) was conducted.
Miranda Rights Violations
If the Police improperly questioned a suspect who is in custody without first reading them the Miranda Rights, then these statements can be “Suppressed.” Very often, we have found cases where Police Officers will interview an individual, then Mirandize them, and then ask the same questions all over again (on video). If this occurs, all those statements can be “Suppressed” (along with all evidence obtained because of those answers), if a proper Motion is filed.
Exaggeration and Bias by the Police and Sloppy Reporting
Many times, a Police Officer’s written report will not match what is captured on body-worn “Axon” cameras. In addition, if a video is not available, it is important to interview all witnesses who were not only listed in the report, but who also may have been ignored by Police. You need to have a skilled Defense Attorney who can locate and interview all potential witnesses in order to counteract a sloppy or biased Police report.
16-17: Diminished Capacity and Mental Health Issues
Autism and Spectrum-Based Defenses
If a Defendant is accused of Assault (whether its Misdemeanor or Felony Aggravated Assault), it is important for your Criminal Attorney or Phoenix Domestic Violence Lawyer to obtain all past medical records and diagnosis of Autism or Spectrum-Based issues. Not only can this serve to “Mitigate” any charged crime, but it can be used to have charges Dismissed (or not filed at all). Make sure to let your Defense Attorney know of any diagnosed conditions.
Bi-polar, Schizophrenia, Break from Reality, and other Diminished Capacity Defenses
It is quite common for people who have diagnosed mental issues to be accused of Assault due to misunderstandings regarding their situations. Any pre-existing diagnoses, or medical scripts that a Defendant is currently possessing, need to be thoroughly explored during legal representation by their Defense Attorney. In addition, if there has not been a previous diagnosis, it is important to get the Defendant in with a Doctor in order to perform a Neuro-Psychological Exam, or Psychiatric Evaluation. Even if this does not serve as an outright Defense to get charges Dismissed, it is commonly used to reduce the charges and “Mitigate” them so there is no jail or prison time.
Mitigation
“Mitigation” is a process utilized by DM Cantor in order to attempt to keep Charges from being filed, or to get them greatly reduced. It can also reduce the amount of Punishment if there is a particular Sentencing Range that is mandated by the Reduced Charge. During this process, we will gather as much information about the Defendant’s background history.
This can include not only medical records, but also counseling records. Many times, we will utilize Polygraph Examinations; Neuropsychological Evaluations; and Rehabilitation/Counseling records in order to produce our “Mitigation Package.” Lastly, we may also include a “Proportionality Review,” which will include the Denial of Charges, or greatly Reduced Charging decisions, involving other Defendants who are similarly situated to our Client.
What We Do When a Dm Cantor Tempe Domestic Violence Lawyer Represents You
At DM Cantor we always keep our “Core Purpose” in mind. In other words, “We are here to help people navigate through the toughest times of their life.” We accomplish this by keeping these three principles in mind: (1) Do Hard Work; (2) have Excellent Trial Skills, and (3) – and most importantly of the three – have High-Touch Client Service.
If you have retained DM Cantor to represent you during the “Pre-Charge” or “Pre-Indictment” phase of your case, then the first thing we will do is have you come into our office in order to conduct a “Timeline Meeting,” and a “Bio Meeting.” We will get all relevant factors as to what happened in the actual case, and a complete story of your life in order to start building our Mitigation Package. This is normally done with the Attorneys in our office, but sometimes we will also utilize the services of a Private Investigator.
If you’ve already been Charged, we will still conduct a Timeline and Biographical Meeting with you. We will also seek to Modify your Conditions of Release, if you live out-of-County, or out-of-State, and the Judge ordered you to remain in-county during your Initial Appearance. If we do succeed with our Motion to Modify Conditions of Release, you will need to maintain contact with DM Cantor, and also sign an Affidavit Acknowledging each new Court date as the case progresses. See us for more details if you are in this situation.
Beware: Many so-called Assault Defense Law Firms will assign a case to a brand-new Associate who has never conducted a Bench Trial or Jury Trial regarding a Domestic Violence Assault charge. It is critical to your Defense of Misdemeanor or Felony Aggravated Assault Allegations that you have at least one Board-Certified Criminal Law Specialist on your Defense Team.
DM Cantor has 2 Board-Certified Criminal Law Specialists (all Partners), who are available to work on your case. Penalties involving Domestic Violence can literally effect a person’s ability to own a gun, or obtain employment for the rest of their life. This is why it is necessary to have a highly experienced Tempe Domestic Violence Lawyer from the Best Legal Team – DM Cantor – represent you on these Charges.
