Tag Archives: violence

Domestic Violence Divorce: How Abuse Charges May Affect Your Separation

January Jan, 2019 Matthew Leyba Leave a comment

Washington State treats all domestic violence accusations as serious matters. In part due to the strict enforcement of legal measures against alleged perpetrators, and in part due to Washington State’s broad definition of what domestic violence is, individuals who find themselves facing a charge or allegation of domestic violence might not know where to turn.

In Washington State, domestic violence is defined by the legislature as either physical or emotional harm as well as stalking. Due to the broad definitions of the law, someone stating that they are fearful of you can potentially be enough to warrant a legal accusation of domestic violence.

If someone alleges they are afraid of you, the process of achieving an order of protection can begin. In Washington, all an individual needs to obtain a preliminary protective order is an allegation of abuse. After a temporary order is issued, a hearing date will be scheduled for both parties to present their facts. It’s very important, if you find yourself the subject of a temporary restraining order, to attend your hearing and present your evidence that you are innocent. Once a protective order is granted, it can be for any set duration of time, according to the Judge’s ruling.

During this time, you are legally barred from contacting the victim, going within a specified distance of the victim and owning any firearm, even if they were legally owned by you prior to the issuance of a protective order. Protective orders, by effect, can remove you from your home, limit your contact with your children and potentially cause you to lose your professional position if your employment requires the use of a firearm.

The other three recognized divisions of domestic violence in Washington are sexual abuse, economic control, and neglect. Combined with the passing of in VAWA 1994, a federal law that has implications to each state within the United States regarding how to process any claim of domestic violence, more individuals are seeing financial and emotional repercussions following a claim made against them. Under VAWA, any individual granted a restraining order in one state is guaranteed that the restraining order will be upheld in any state for the lifetime of the order. The provisions in the VAWA has also lead to the advent of ‘mandatory arrest’ states, where an alleged perpetrator of domestic violence is arrested based solely on the alleged victim’s claim prior to investigation.

In Washington, law enforcement officers are required to make an arrest if they have probable cause an incident of domestic violence occurred, as well as if someone has violated a no-contact or civil protection order. Once an arrest occurs and charges are filed, only the prosecutor can drop the case. Washington classifies domestic violence severity by three levels: misdemeanor ( up to 90 days in jail and a $1,000 fine), gross misdemeanor ( up to 365 days in jail and a $5,000 fine), and felony (one year or more in jail.) In addition to financial sanctions and jail time, individuals can be forced to attend batterer intervention classes, anger management therapy, or even pay financial restitution to their victims. The financial aspects of any of these measures are expected to be paid by the person who is an alleged abuser.

The potential impact of a domestic violence charge does not end with personal criminal records. In Washington, a divorce judge may take a charge of domestic violence into consideration when making decisions regarding child custody, maintenance payment allocation, and asset division. Washington also funds programs designed to aid domestic violence victims in navigating family court. While you will be required to pay for your own legal representation, your opponent will be able to take advantage of legal aid, and assistance free of charge. Even if your domestic abuse allegation does not rise to the level of legal prosecution, you may be ordered into parenting classes, personality tests, alcohol, and drug screenings or supervised visitation with your children while your case is being heard in court.

To err on the side of caution, most judges, when domestic violence is alleged they may issue at minimum a no-contact order between the parties and require the accused party to vacate the residence. As continuity in children’s lives is a universal factor in determining custody through divorce proceedings, you may be placed at a disadvantage for obtaining primary custody in your divorce in this instance.

With a better understanding of the expansive impact, domestic violence can have on your personal and professional life, it’s clear that you need a competent attorney to represent you. Leyba Defense is prepared to help you. Our team of professional, knowledgeable attorneys can help you navigate the tricky legal field to reduce or dismiss a domestic violence accusation. Contact us for a consultation with one of our experts in the field of defensive law.

Blog, Domestic Violence

Domestic Violence Charges: Felony or Misdemeanor?

January Jan, 2019 Matthew Leyba Leave a comment

Domestic violence. It’s a term that typically brings a lot of different images to mind—some truthful, but many of them shrouded in misconceptions. While we hope that you never have to deal with a charge like domestic violence, if you’re reading this then it’s likely that you’re either being charged, or you might be facing charges in the future. As such, you probably want to know more about exactly what DV is, and how charges like these could affect your future. Read on to find out more about domestic violence and the options you may have.

Is Domestic Violence a Felony?

Without a doubt, one of the main questions people have when they are first charged with DV is whether or not domestic violence is a felony. Since this can seriously affect what sort of punishment you might be facing later, it is definitely important to understand the difference.

Typically, a domestic violence case can be charged as one of two things—a felony, or a misdemeanor. There’s no easy, clear-cut way to know which is which. It all depends on two main factors: the specific circumstances of the incident, and the criminal history of the suspect.

Misdemeanor Domestic Violence

A domestic violence charge might be considered a misdemeanor if the incident and overall damage are considered negligible. Misdemeanor domestic violence incidents can involve things like verbal abuse, simple assault (where a victim is pushed or struck but suffers no damage) or a restraining order violation—if it’s the first offense.

Misdemeanors are less serious than felonies, and the resulting punishment is also less. What’s more, misdemeanor charges are split into two groups—misdemeanors and gross misdemeanors. Usually, a misdemeanor carries with it a maximum jail sentence of fewer than 90 days and a possible fine of up to $1,000. Gross misdemeanors are a little more serious and can get you a year in jail and a maximum fine of $5,000. While misdemeanors still stay on your permanent record, they are much less serious than felonies and do not automatically strip you of legal privileges like a felony conviction can.

Felony Domestic Violence

On the other hand, a more serious domestic violence incident can, depending on circumstances, be charged as a felony. There are many situations where this can happen, including (but not limited to) serious bodily harm or death, violence inflicted on a child, the use of a deadly weapon, acts of a sexual nature, or repeated violations of a restraining order.

Just as the charges for a felony involve crimes of a more serious nature, the punishments that go with a felony are more serious, as well. In Washington, felonies can be further broken down into three classes, class A, class B, and class C. Class C felonies are the least serious of the felony classes and bring with them possible penalties of $10,000 and up to five years in prison. Class B felonies are a step up and can get you a maximum of 10 years in prison and up to $20,000 in fines. Class A felonies, then, are the most serious class of felonies. If you are charged and found guilty of a class A felony, this can get you life in prison, and a possible $50,000 fine, as well.

Previous Criminal History

Just like the weight of your current offense can help determine whether or not you are facing misdemeanor or felony charges, your previous history will affect this as well. If, for example, you are charged with violating a restraining order, this is considered a misdemeanor offense—if it’s the first time. If, however, you have a history of violating these legal barriers, the prosecutor can choose instead to lobby a felony charge instead.

More serious charges can also be filed if you have a history of violence, or if you are a repeat offender who frequently finds yourself in front of the bench.

Alternative Sentencing

If you are facing felony charges, but it’s your first time being charged with a serious crime, the state of Washington has been known to allow a court to consider alternative sentencing. One sentencing alternative is the First Time Offender Waiver or FTOW. The FTOW allows first-time felony offenders who qualify to serve only 90 days in prison, and the other six or twelve months in community custody (aka “probation”). The actual conditions vary on a case-by-case basis and are determined by the judge.

How We Can Help You

If you find yourself facing domestic violence accusations—misdemeanor or felony—then you need experienced legal help in your corner. The attorneys at Leyba Defense know the domestic violence laws in Washington and are ready to work for you to overcome these charges, get them reduced, or see if you can qualify for an alternative sentencing program. Need help? Contact us at Leyba Defense today!

Blog, Domestic Violence

Everything You Need to Know About the Domestic Violence Offender Gun Ban

November Nov, 2018 Matthew Leyba Leave a comment

2ND AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“…shall not be infringed”…except for those who meet the criteria of the Lautenberg Act of 1996, most commonly referred to as the Domestic Violence Gun Ban.

Domestic Violence Offender Gun Ban 101

The basic summary of the federal law is that domestic abuse results in prohibition of the convicted person’s gun ownership, with violations of the ban carrying penalties including up to 10 years in prison and/or a $250,000 fine. While particulars vary from state to state, with some being more strict than others, the federal guidelines come down to two things:

The individual has been convicted (not accused, not charged – convicted) of a felony or misdemeanor domestic violence.
The victim has a restraining order against the convicted individual.

As federal laws rule over the state, no state can write a law that would circumvent these rules. This ban can apply to service members, law enforcement officer personnel, and other government positions that may commonly be armed — which can be a major career impediment. Jobs may be able to work with established employees to find a new position, but it will be far more difficult to obtain employment if the hiring position requires gun use (such as a security guard).

Should you be active duty military, the effects of the ban can have a much bigger impact on your daily life than they would for someone who owns guns strictly for personal use. Your command is obligated to retrieve any issued firearms as well as secure your access to any others. The Command Judge Advocate will review the case to see if your conviction prevents you from using firearms. If so, you will be unable to complete any requirements that require the use of firearms or ammunition. This could result in missing qualifications, such as marksmanship, or being declared non-deployable. The best case scenario is that you could be assigned to a detail not involving firearms. (Large-scale weapons are not considered firearms under the Lautenberg Amendment). The worst case scenario would be involuntary discharge with less than an honorable title due to being unable to perform work duties. This does not include any military punishment should command decide to pursue military law violations in addition to the civilian punishment.

Are There Any Absolute Defenses to the Ban?

An absolute defense is a legal recognition that whatever incident was committed was justifiable enough to not warrant legal involvement (i.e. not paying a contractor who caused damage versus provided the agreed service is unlikely to yield a decision that favors the contractor). There are two defenses, available by statute, to the gun ban.

A person entitled to a jury trial was tried by the jury and made a waiver to the right of counsel.
The conviction has been expunged or is a pardoned offense, unless such expungement, or pardon, expressly states otherwise.

How Long is the Ban Upheld?

The Domestic Violence Offender Gun Ban is permanent. Once gun rights have been revoked, it is almost impossible to have them reinstated. This is why it is best to lay the groundwork to protect your rights before the first court date.

What is a Deferred Judgment and Sentence?

The defendant of a misdemeanor domestic violence case can sometimes be offered a Deferred Judgment and Sentence. These agreements usually consist of a guilty plea and sentencing, with the understanding that the case will be totally dismissed based on future good behavior. Though these laws are not entirely clear, the general consensus is that gun rights are terminated until the deferment is successfully completed. This means the sentence and good behavior requirements are both satisfied.

What Should you do to Prepare for the Hearing?

You have two options. Trust the system and represent yourself, or speak with an attorney. Things that an attorney can do for you include:

Converse with the claimant directly, even if you are not permitted to.
Request modifications to a restraining order to make it less restrictive.
Directly negotiate with the district attorney to plea bargain gun possession.
Represent you in court to declare your innocence.
Navigate sentencing should there be a conviction.
Perform all of this on the civil side of the law.
Find assistance for serial offenders to help end the cycle of violence.
Tell you exactly what you are to do, and not to do, for each step of the case.

Making wise decisions after an alleged incident can help you keep your gun rights even in the face of a conviction. This is not the time to take uneducated steps. The wrong move could prevent you from being able to keep your gun rights from losing them when you normally wouldn’t have. Be sure to speak with an attorney to help keep the coin toss from landing face down on you. Leyba Defense has trained attorneys in domestic violence cases to ensure you are best represented in the case against you. Contact us today for a consultation or if you have any questions.

Blog, Domestic Violence

False Domestic Violence Allegations: How You Can Avoid Wrongful Allegations

October Oct, 2018 Matthew Leyba Leave a comment

Domestic violence is a very serious allegation. It can carry far-reaching repercussions to your work and personal life. Unfortunately, claims of domestic violence are often difficult to disprove. In some cases, domestic violence can be used to obtain a better severance package or a more favorable outcome in civil court.

For this reason, it is possible that allegations can be leveled against you for gain. If you’re concerned about the possibility of domestic violence charges being used as a tool in legal matters or for financial restitution, one thing that can help your case is by having a criminal defense attorney on your side. Read on for some tips on how you can protect yourself.

Protecting Yourself in a Workplace Situation

Never schedule one-on-one meetings that are in secluded areas or out of the way. While it’s not always avoidable, removing the possibility for abuse to happen can often protect you from allegations. Always try to meet in a group of three or more, and if it must be a one-on-one meeting, try to have others nearby or leave the door to the office open.

You can take the extra step of sending a follow-up email to the individuals involved in the meeting that provides a quick recap of what was discussed and thanking them for their time. While it won’t protect you from every allegation, keeping running, written documentation of meetings can help show inconsistencies in claims that may be made at a future date.

While you can’t avoid all interactions such as friendly lunches or after-hours work meetings, you can further help protect yourself by taking the time to text or call an individual not present during the meeting. These records can then be used to prove a different time frame that is likely to occur in the event of a false allegation.

You should always take steps to be proactive against potential claims. If you find yourself in a workplace situation where a co-worker has made claims, your name has come up in office gossip or you have rejected a co-worker’s advances, it’s necessary to report any and all occurrences to your supervisor or H.R. department. The most important part of fighting false claims is to have a record that conflicts the claimant’s timeline for allegations. Having these records can be the turning point, in any case, lobbied against you.

In Your Personal Life

Invest in a dash cam. These devices record continuously and can provide all the evidence that you need to avoid not only a false allegation of domestic violence in an alleged traffic altercation but can help to protect you in court for all traffic-related legal matters.

Know your state’s recording laws. While some states require two-party consent to record, many states allow recording of any conversation or interaction between two people with only one person’s consent. That person, of course, would be you. If you’re involved in a contentious relationship with someone who you are afraid may make allegations against you, recording all interactions with that person is the best way to avoid these allegations from gaining legal traction. If you do not live in a state where recording is legal with one-party consent, do not record. You could face steep penalties or jail time if you are caught.

If you live in a two-party consent state, there are still methods you can undertake to protect yourself. Attempt to communicate with the person in question only through written methods, such as text and email. If you must meet with the person, insist that the meeting is done in a public area where there will be witnesses.

Remember, if you are holding a meeting in your office or another area, a simple sign notifying people present that the interactions may be recorded is typically sufficient enough to record the events of the meeting in any state.

Avoiding false allegations can be difficult. Taking these precautions may seem extreme, but in the event that you are charged, they could mean the difference between beating the false charges or facing the repercussions that conviction can bring.

You Find Yourself Accused

In the event that you find yourself the subject of false allegations, it’s vital that you seek the help of an experienced attorney immediately. The longer the claims go uncontested, the harder it may be to clear your name and avoid the legal ramifications. An attorney can begin compiling your evidence to contest the charges as soon as you retain them.

It’s important to take the steps needed to arm yourself with the evidence you need to defend any claims. If you have questions or need legal help in a domestic violence case in the Seattle Washington area, contact us. We pride ourselves providing each case we represent our full service and dedication.