Information about Oregon Domestic Violence Charges & Criminal Defense
If you, a friend, or a relative have recently been arrested and charged with a crime of Domestic Violence in Oregon, then your head is probably spinning. You want to know what is going on, what will happen, and how to deal with this difficult event.
If you are reading this, then you or someone you care about has likely been arrested for an Oregon Domestic Violence crime. The most common misdemeanor Domestic Violence charges are Assault IV (Assault 4), Harassment, and Strangulation. The most common felony Domestic Violence charges are Coercion, Assault IV Felony (Felony Assault 4), Kidnapping, and Unlawful Use of a Weapon.
Being arrested for a Domestic Violence charge will result in a mandatory no-contact order being issued. This order will continue until the case is resolved, regardless of the wishes of anyone involved. This can result in people being forced to leave their home, families, and children.
This guide is here to help. By reading the following, you will learn about the Oregon’s criminal domestic violence process, from arrest to trial, to possible consequences. Hopefully, the information here can point you in the right direction and give you some answers. If you have further questions, or an upcoming court date, it is strongly suggested that you contact an experienced Portland Domestic Violence Defense Attorney as soon as possible.
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Table of Contents
How does Oregon define “Domestic Violence?”
Under Oregon law, a crime is considered a crime of domestic violence if it happens between “family or household members.” In simpler terms, it means either that there is, or there has been a physically intimate relationship between the parties, or that they are related by blood or marriage.
In Oregon, “Domestic Violence” is a modifier that can be attached to criminal charges. For example, if someone punches another person at a bar, that would likely be charged as “Misdemeanor Assault IV.” But if someone punches a family member, or a person with whom they have been physically intimate, then they would likely be charged with “Misdemeanor Assault IV – Constituting Domestic Violence.”
Generally, only “person crimes,” such as assault, robbery, or coercion can be charged as “Constituting Domestic Violence.”
Oregon Views on Domestic Violence
Even as recently as 10 years ago, Domestic Violence charges were frequently ignored or swept aside, often with tragic results However, growing awareness of this issue caused the pendulum to swing the other way. Now, hyper-vigilance by law enforcement, prosecutors, and other state agencies has led to equally unfortunate results, including
The destruction of families
Long-term government interference with personal affairs (gun rights, family contact, etc)
The consequences of aDomestic Violence arrest, not to mention those of a conviction, are very serious. Because of Oregon’s focus on these crimes, anyone dealing with an allegation of domestic violence should contact an attorney immediately.
False Allegations & Oregon’s Domestic Violence Mandatory Arrest Rule
One of the greatest problems in Oregon Domestic Violence cases comes from false allegations and the requirement of arrest. While the law is well-meaning, its actual effect is incredibly broad and invasive. Under Oregon Revised Statute 133.055(2), if the police respond to a “domestic disturbance” and have probable cause to believe that either 1) an assault has occurred; or 2) one person has placed the other in fear of imminent serious physical injury, then “The officer shall arrest and take into custody the assailant or alleged assailant.”
The first part of the statute is relatively straightforward. If an assault has occurred, there is usually some evidence of that. Even though this is straightforward, this does not mean an arrest is justified or that prosecution is warranted – see the discussion on Self Defense below.
It is the second part of this statute that causes great concern. Essentially, what this means is that, in Oregon, if one person calls the police and says that the other person frightened them, then the police must arrest that other person. This is true even if there has been no physical altercation. All it takes is an allegation.
Clearly, this law is designed to spur police action, and to err on the side of caution. While this is an understandable sentiment, the Oregon Domestic Violence Mandatory Arrest law is subject to flagrant abuse. Imagine a situation where two people have an argument, as happens in many relationships. If one of the partners decides to escalate the situation by calling the police, and tells police that the other party was threatening them, then the other party will be arrested.
And, as the statute makes clear, it will be an arrest. The police will not just separate you, or give you a ticket. They will put you in handcuffs and take you to jail. If you are arrested, or you know someone who is in this situation, it is strongly recommended that they speak to an attorney as soon as possible.
Police Investigation in the Domestic Violence Criminal Case
When the police arrive at an “domestic disturbance,” they will almost always separate the parties. The police will question each party, and then compare notes. If there happen to be any witnesses, then the police should talk to them as well. If there is any physical evidence, the police may collect it, or take pictures of it. And then, they will make an arrest.
It is a generalization, but also a true statement, that if the police respond to a domestic disturbance involving a man and a woman, 9 times out of 10, if not more, the man will be arrested.
If you believe that you are a suspect in a domestic disturbance, it is highly recommended that you DO NOT TALK TO THE POLICE WITHOUT A LAWYER. Almost anything you say will be written down, and the prosecutor may try to use it against you later. If the police have responded to a domestic disturbance, tempers between the two parties have likely risen quite high, and anything you say in anger can come back to hurt you down the road.
If questioned by police, the best strategy is to be calm, polite, and respectful towards them. Tell them that you do not wish to answer any questions without a lawyer present. The police may try to convince you to speak with them by asking for your side of the story. However, you must remember that their responsibility, under the law, is to make an arrest. And if they are questioning you, then you are the target of that arrest.
Unless very unusual circumstances are present, the police will make an arrest. If they do arrest you, continue to say nothing to them. Cooperate and be polite, but do not answer their questions. You should tell them you want to speak with a lawyer, and if given the opportunity, you should call a lawyer immediately.
No Contact Orders During a Domestic Violence Case
If someone is arrested for a crime of domestic violence, there will be a mandatory no-contact order between the person arrested and the alleged victim. This order is put in place to protect people, but as one might expect, this casts an extremely wide and damaging net.
These orders can require someone to move out of the home they have occupied for years. It can mean that person has to leave their family and their children behind and have no contact with them until the case is resolved. Unfortunately, Oregon courts are incredibly resistant in modifying these orders. In Washington and Clackamas counties, it is all but a lost cause. In Multnomah county, under certain extraordinary circumstances, the court may allow some limited contact.
In general, the only way to terminate these orders is to resolve the case. If the case is won at trial, then the order will cease to exist. In certain rare cases, a plea bargain can resolve the case and end the order. Unfortunately, a plea bargain (or a guilty finding after trial) will almost always result in the accused being placed on probation, with all contact being decided by a probation officer. Needless to say, the P.O. is unlikely to be sympathetic.
These reasons are why someone accused of a domestic violence crime should consult with an attorney as soon as possible. Do not rush into a plea or a quick resolution without obtaining expert advice.
The Prosecution Stage of a Domestic Violence Case
After the police make an arrest in a Domestic Violence case, they will forward their reports to the District Attorney’s Office in that county. A prosecutor will then review the reports and decide how to proceed.
The prosecutor will often try to make contact with the alleged “victim” of the case. The prosecutor wants to see if the victim will cooperate with prosecution, and what the victim wishes to have happen. If the victim says that they do want to see the arrested person (the defendant) prosecuted, then the prosecutor will almost always issue charges, as long as the police report has facts sufficient to support that charge.
Sometimes, the victim does not want to cooperate with prosecution. However, this does not mean that the case will be dropped. If the defendant made any statements to police, then those statements can be used in court, to prove the case. This is why, as discussed above, it is critically important not to speak with police.
Sometimes, a there may be a witness to the alleged incident, and the prosecutor feels that the charge can be proved with that witness, even if the victim is uncooperative.
And some District Attorney’s Offices will go so far as to issue a material witness warrant for the victim. This means that the victim can be arrested and forced to go to court, even against their wishes.
Because “Domestic Violence” is such a loaded term in Oregon, many prosecutors are overzealous about issuing cases, regardless of the underlying facts. In addition, most prosecutors do not like to make deals (plea bargains) on these types of cases.
If you have been arrested, and charged with a crime of Domestic Violence, the deck can be stacked against you. It is strongly recommended that you speak with an experienced defense lawyer as soon as you can.
Self Defense in Domestic Violence Cases
We all know that there is rarely any reason to strike another person other than in self-defense. Depending on the dynamics of the situation, it is not at all uncommon to see the police arrest the person who was, in fact, acting in self defense. For example, one partner could try to hit the other partner. The other partner dodges, then hits back, and connects. When the police show up, the person who threw the first punch – the actual aggressor – will be the one with visible injury. This can often lead to the other person – the one who acted in self defense – being arrested.
Not all is lost, however. Self-defense may not keep someone from being arrested, but it can be a big factor at trial. At trial, the state must disprove a claim of self-defense. In other words, to convict you, the state must prove that 1) you purposefully or recklessly injured or harassed someone; AND 2) that person was not the aggressor.
To put it in yet another way, you are allowed to defend yourself from aggression, so long as your defense does not exceed the level of aggression that you face. For example, if someone tries to punch you, you can punch back. But you cannot pull out a gun and shoot them.
A claim of self defense forms the basis for many Domestic Violence trials. An experienced domestic violence lawyer can discuss your trial and defense options with you.
The Domestic Violence Trial
If you have been arrested and charged with a crime of Domestic Violence, you can choose to take the case to trial. The state must prove your guilt beyond a reasonable doubt.
At trial, the state gets to go first. Their evidence will consist mainly of the testimony of the police officers who investigated / arrested you. The police will discuss their observations, and the conversations they had with you and the alleged victim. If you made any statements to them, expect the police to bring those up and to use them against you. This is, yet again, why staying silent in the face of police questioning is so important.
The state may have the alleged victim testify as well. This person must be in court to testify – they cannot submit a letter, or be present by phone. You have an absolute Constitutional right to confront your accuser.
After the state has finished its evidence, you may present evidence, if you wish. In certain cases, you and your lawyer may decide you have a better chance if you do not testify. It is also possible that you will have other witnesses, or other evidence, besides your own testimony to present. You are under no obligation to testify, and you do not have to put on any evidence. The jury will be instructed that it cannot hold this against you.
If you are charged with a Domestic Violence misdemeanor crime, then there will be 6 people on the jury. All 6 must agree on a verdict, whether it is Not Guilty or Guilty. If you have been charged with a Domestic Violence felony crime, then you will have a 12-person jury. Except in murder trials, the jury must vote one way or the other by a 10-2 margin.
Preparing for trial takes a lot of work. The trial itself can be a difficult process. Because you have so much at stake, it highly recommended that you have an experienced attorney. If you have been arrested and charged with a domestic violence crime, then you should speak to an attorney as soon as you can.
Typical Domestic Violence Charges
The most common domestic violence crimes in Oregon are misdemeanors – harassment and Assault IV. Below is a list of the most commonly charged Domestic Violence offenses, and what act each charge alleges.
Assault IV (misdemeanor – ORS 163.160) – intentionally, knowingly, or recklessly causing injury to another
Harassment (misdemeanor – ORS 166.065) – intentionally subjecting another to annoying or harassing physical contact (no injury is required)
Assault IV (felony – ORS 163.160) – committing a misdemeanor Assault IV in the presence of one of the parties’ minor children; OR committing a misdemeanor Assault IV against a party whom you have previously been convicted of assaulting in the past
Coercion (felony – ORS 163.275) – Threatening another person in order to keep that person from doing something to which they are entitled; OR threatening another person in order to make them do something they do not want to do (no injury is required)
Menacing (misdemeanor – ORS 163.190) Intentionally placing another person in fear of imminent serious physical injury
Strangulation (misdemeanor – 163.187) Intentionally or knowingly impeding the breathing or blood circulation of another by applying pressure to the throat or neck
This list does not include all potential crimes. Nor does it include the more serious ones, including Rape, Robbery, and Kidnapping. If you are charged with any crime of Domestic Violence, whether a minor misdemeanor or major felony, you should seek legal advice as soon as possible.
Domestic Violence Penalties
A conviction for domestic violence can carry serious consequences, far beyond jail time. If you are convicted of a misdemeanor domestic violence crime in Oregon, you can expect the following:
Formal (Supervised) Probation, typically lasting 24-36 months
Fees and court costs of $750 or more
Forfeiting your right to own, purchase, or possess firearms and ammunition
5-30 days jail time or more
An intensive “Batterer’s Intervention Program,” which usually lasts about 48 weeks (with an absolute minimum of 36 weeks)
Fees for classes and treatment
No contact with the victim, regardless of the victim’s wishes (known as a “No-Contact Order”)
The “Batterer’s Intervention” program is a big deal. The programs are very strict, and failure to attend class or make appropriate progress can lead to a probation violation hearing, where you can be sent to jail for maximum allowable time on your case.
Since, by their very nature, Domestic Violence allegations occur between family or household members, the no-contact order can result in you having to move out of your home, and having no contact with your family, regardless of their wishes.
Felony Domestic Violence convictions carry roughly the same penalties, except that, depending on the charge and your past criminal history, there is the potential for substantial prison time.
These are serious consequences, and they can forever impact your life and your future. If you are in this position, or if you have questions about Oregon’s domestic violence laws, seek legal help as soon as you can.
Domestic Violence Diversion Programs
These Diversion programs are only available to people charged with misdemeanors. You must also not have any convictions for person crimes (whether or not those crimes constituted Domestic Violence or not). If you want to go into the program, you are required to plead Guilty.Â No Contest pleas are not allowed.
Much like DUII Diversion, you will not be sentenced at the time of your plea. You will be required to attend the 36-48-week Batterer’s Intervention Program described above, along with paying all required fees for the program. If you complete it successfully, then you may withdraw your plea and the charge will be dismissed from your record.
However, if you slip up, even a little bit, you will fail. These programs are incredibly strict. Your plea will be entered, and you will be convicted, without a trial. Because Domestic Violence cases can be difficult for the state to prove, and because the consequences of failure are so high, it often makes more sense to take your case to trial, rather than enter the program. This guide is not a substitute for legal advice, so if you are facing a difficult decision, you should contact an attorney as soon as possible.
This is a courtesy information site, provided by Edward Kroll.
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