Can I Speak With My Spouse During A Pending Domestic Violence Case

Speaking with a Victim in Domestic Violence
Case in Arizona

Am I Allowed to Speak with My Spouse During a Pending Domestic Violence Case?

The answer to this question depends on the release conditions the court gives you when you’re released from custody. In Arizona, under the Rules of Criminal Procedure, it is a standard release condition to say that you’re not allowed to have any contact with the alleged victim. Some courts say that the accused is not allowed to initiate contact with the alleged victim, so it depends on the specific language of your release condition. If it simply says “you shall have no contact,” then it doesn’t matter if the alleged victim reaches out to you. If they call you and you answer the phone, you are in violation of that release condition and you can be taken into custody and charged with failure to comply with the judge’s order.

A private attorney can file a motion with the court asking the court to modify the release conditions. What we normally ask for in those circumstances is for the order to only specify “no uninvited contact.” As a former judge, Attorney Derek Oliverson presided over thousands of domestic violence cases and ruled on hundreds of motions to modify release conditions.  If the court grants that qualification then you are allowed to have contact with the alleged victim, but if it gets to the point where they no longer want contact, you have to cease contact. This at least gives them an avenue to talk, which is important in cases where they have children in common. They need to be able to communicate regarding their kids even while the case is pending.

How Does a Domestic Violence Charge Impact My
Relationship with My Children?

It could have a substantial impact on your relationship with your children, and could also affect a pending family law case. If you are going through a divorce or any kind of child custody issue, it’s something that could be used against you in those proceedings. If you get a domestic violence conviction, the other side is going to use it to try to get the judge to grants us whatever they’re requesting whether it’s restricted child custody or parenting time. If the release conditions state that you are not allowed to return to the scene of the alleged crime and not to have any contact with the alleged victim then oftentimes that means the person cannot go to their house or have any communication with the kids while the case is pending.

What Are Some Defenses in Domestic Violence Cases? Is
Self Defense a Viable Defense?

Self-defense is a viable defense, but it really depends on the facts or circumstances of each case because it’s a defense that requires the defendant to prove that self-defense was necessary at that point. It all depends on the facts, the circumstances, and the evidence available to determine whether or not that will work in court. Other defenses include looking into the alleged victim, their history of either dishonesty or false accusations, and whether there’s a lack of physical evidence. If it’s just a “he said, she said” type case, then the state may not be able to prove the case beyond a reasonable doubt. Oftentimes in domestic violence cases the parties get back together after the arrest and the alleged victim no longer wants to testify or cooperate with the state. That can definitely be used by the defense to get a favorable result.

We look at every possible avenue to determine what the best defenses are and what we can do so that our clients don’t get that domestic violence conviction. If they get that conviction not only is there mandatory counseling, and the stigma of having a criminal conviction on your record, but at that point a federal law called the Grady Law also kicks in. Under the Grady Law, anyone with a domestic violence conviction is not allowed to possess a firearm. You lose your 2nd amendment rights.

Is the Case Automatically Dropped if the Alleged Victim
Doesn’t Want to Press Charges?

No, not at all. In Arizona, the victims do not control the prosecution. Once a person is arrested and charged with a domestic violence offense, the determination of whether or not that prosecution goes forward is strictly in the hands of the prosecutor. The Arizona Constitution say that the victim does have the right to provide input, they have the right to be present for court proceedings, but they do not have the right to force the prosecution to dismiss a case. Oftentimes the prosecutor’s office will assign a victim advocate to reach out and have contact with the alleged victim. The victim’s advocate will inform them of court dates, explain their rights, and tell them what’s going on with the case. If the victim no longer wants to cooperate or is recanting their statement and the victim’s advocate communicates that to the prosecutor, our Arizona DV lawyers can use that in negotiations with the prosecutor in order to get the charges dismissed or substantially lowered.

Still, just because they don’t want it to go forward doesn’t mean the case is going to go away. The prosecutor can subpoena the victim and order them to appear for the trial to testify.

Arizona Domestic Violence Attorney