Domestic Violence for Professionals – Part I – The Arrest, Initial Appearance & Arraignment

If you are a licensed professional, serve in the military, hold security or access clearances, or need to carry or handle a firearm for your job, domestic violence charges, even if later dismissed, can alter your career trajectory.

In this blog series we will talk about some of the obstacles, and hidden traps, for those facing domestic violence charges, together with some possible solutions.

What is Domestic Violence

In Arizona, “domestic violence” is not a substantive crime, but rather a denominator, that enhances penalties and triggers restrictive consequences See ARS §13-3601 et. seq. As a denominator it attaches to a host of substantive crimes against persons and property, including most commonly misdemeanor Assault ARS §13-1203, Criminal Damage ARS § 13-1602, Disorderly Conduct ARS § 13-2904, and as well as other Title 13 offenses.

Stated another way, domestic violence is simply an allegation that the purported victim of enumerated Arizona offenses has a special relationship with the defendant. The domestic relationship is either through marriage, common children parentage , cohabitation, close sanguinity (parent, grandparent, sibling, and more) or participant in a “romantic or sexual relationship” recent in time. Note that this definition of the domestic relationship, is broader than the federal definition. It nets a surprising surplusage of college roommates, old flames, step-children, and the like. More about this below.

Custodial Arrest for Misdemeanors

One of the hallmarks of a domestic violence misdemeanor investigation is that the police in Tucson, responding to a residential 911 call-out almost always gain access to the dwelling, and make a custodial arrest of one of the participants. This means, in short, that when 911 is called, and police come out, someone often goes to jail for the night. This can sometimes be an unintended and surprising consequence.

Jail & Release Conditions—No contact orders

If have been arrested for a common misdemeanor domestic violence offense such as assault, criminal damage, or disorderly conduct, you will be booked into the Pima County Jail, usually held overnight, and brought before a Judge for your initial appearance.

In setting your release conditions a judge my likely order that you 1) do not have any contact with the “victim(s)”; 2) that you not possess firearms or that you surrender your firearms ; and 3) that you do not return to the “scene of the crime.” Each one of these restrictive conditions of release carries its own set of problems.

Problematic No Contact Orders

In Arizona, “victims” of domestic violence enjoy, under the Arizona statutory, constitutional and procedural law, extensive rights that affect the case from the very start, including release conditions. One of the first problems defendants run into is that the initial appearance judge often orders the defendant upon release have “no contact with the victim.” And until lifted, no contact means no contact of any sort, whether direct or through third parties, whether by phone or social media. This may be the case even if the victim did not want the arrest, does not want to prosecute, wants contact, and is fully supportive.

It is important to note, and I’ll repeat, that when a no contact order is in place, that the defendant not initiate or respond to contact with the victim, unless and until the trial court lifts or modifies the order.

This may significantly inconvenience co-habitators, especially those with minor children in common or otherwise in the household. And a judge at appearance may issue a no contact order as a safe default position, unless the victim appears at the initial appearance and speaks about contact, as his her right

Where a no contact order has been issued at initial appearance, I have seen victims file their own pro se motions to “modify” the defendant’s conditions of release. Some judges will not entertain such motions, but under the Victim’s Bill of rights, it seems likely that the victim has a right to be heard as an independent and crucial voice, with our without representation at all stages in the proceedings, including initial and pretrial conditions of release.

Often, such motions to permit contact are heard on or after the next common scheduled appearance in misdemeanor domestic violence cases, the “arraignment.”

Domestic Violence Court & Arraignment

For domestic violence misdemeanors, the arraignment often takes place ten days after the initial appearance. This is a good time for the victim to appear, for a variety of reasons, discussed below, but initially to move to modify the no contact order.

In most courts of limited jurisdiction within Pima County the defendant must be present at arraignment. Two courts, notably Pima County Consolidated Justice Court, and Tucson City Court, funnels their domestic violence filings to specially seated domestic violence specialty judges, who preside over domestic violence courts. These courts are specially equipped and empowered to hold domestic offenders accountable and to ensure that victim’s are heard. Defendant participation is not voluntary, but controlled by the prosecutor, and to a lesser extent, the domestic violence judge.

At the misdemeanor domestic violence arraignment in Pima Couty Consolidated Justice Courts, or Tucson City Court, the prosecutor makes a largely unilateral decision to “move or keep your case in Domestic Violence Court, or have it assigned to a regular rotation trial judge. If moved out of domestic violence court into the regular rotation courts, the case is usually concomitantly reassigned to a general assignment prosecutor (Justice Court) or to a domestic violence prosecutor who floats between general assignment trial judge.

As a matter of course, the prosecutorial decision at arraignment to keep the matter in domestic violence court, or to move it out to the general trial bench, can be, sometimes outcome determinative.

It is for these reasons, and more, that the victim may want to appear at the arraignment.

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Michael Harwin

About Michael Harwin

Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books