ANATOMY OF DOMESTIC VIOLENCE DEFENSE, PART 2: Arrest, First appearance, Bond levels, conditions of pre-trial release, temporary and extended restraining orders, consequences of any violations.
I have listed a series of frequently asked questions (Q) with the applicable answers (A) below; and
we will begin with some of the remedial information that overlaps from Part 1 – i.e. The Arrest stage
ARREST
Q – Do the police HAVE TO arrest you if they believe you committed domestic violence?
A – No – unless three things apply:
# 1 – it was a battery constituting domestic violence
# 2 – They can determine the aggressor
# 3 – No mitigating circumstances exist
Q – How likely is it that the police make an arrest after showing up to my house on a domestic violence-related call?
A – It is EXTREMELY likely that at least one person will be arrested.
Q – So in the unlikely event they DO NOT arrest me – what happens?
A – They can give you a NOTICE TO APPEAR, or they can forward a police report to the prosecutor’s office for review – which may or may not result in any charges being filed.
Q – So what if the prosecutor files the charge?
A – Then, they may attempt to send you a Notice to Appear in court if they have your address, but they do not HAVE TO – otherwise they just issue an arrest warrant.
Q – Are prosecutors and police REQUIRED to tell me about a warrant for my arrest?
A – No
***The applicable statutes are below***
NRS 171.137 Arrest required for suspected battery constituting domestic violence; exceptions.
1. Except as otherwise provided in subsection 2, whether or not a warrant has been issued, a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon his or her spouse, former spouse, any other person to whom he or she is related by blood or marriage, a person with whom he or she has had or is having a dating relationship, a person with whom he or she has a child in common, the minor child of any of those persons, his or her minor child or a person who is the custodian or guardian of his or her minor child.
NRS 171.1771 Issuance of citation when person detained by peace officer. Whenever any person is detained by a peace officer for any violation of a county, city or town ordinance or a state law which is punishable as a misdemeanor and the person is not required to be taken before a magistrate, the person shall, in the discretion of the peace officer, either be given a misdemeanor citation, or be taken without unnecessary delay before the proper magistrate. Any such person shall be taken before the magistrate when the person does not furnish satisfactory evidence of identity or when the peace officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court.
(Added to NRS by 1973, 156)
NRS 171.1375 Arrest of person suspected of battery upon certain persons.
1. Whether or not a warrant has been issued, a peace officer may arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon:
(a) A person with whom he or she is actually residing;
(b) A sibling, if the person is not the custodian or guardian of the sibling; or
(c) A cousin, if the person is not the custodian or guardian of the cousin.
2. Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section.
(Added to NRS by 2019, 1805)
FIRST APPEARANCES
After the police have come and gone, usually taking someone with them, there is a requirement that an arrestee be brought before a magistrate within 72 hours. Bail or release conditions will be set then. You will also be given a 48 Probable Cause Hearing, which bail or release conditions may be imposed at that hearing as well. This is typically over a video hearing and depending on the court, may be a time where they pressure you to plea out with an early offer with a release; or deny you an O.R. release and impose bail. Many people plea at this time with the promise of getting out. This tends to haunt people later on who realize the plea will affect them for the rest of their life.
***This requirement is for 72 Judicial Hours. It DOES NOT INCLUDE weekend days.***
Q – So what is the longest amount of time I could stay in jail without a hearing before a Magistrate?
A – Hypothetically – If you were arrested at or just after midnight on a Tuesday into Wednesday, and thus didn’t reach your 72-hour mark until just after midnight from a Friday into Saturday – when the Magistrates do not hold hearings – you could end up being in jail until Monday without any violation of the 72-hour requirement, when in actuality you were in jail for about 120 hours.
PRE-TRIAL RELEASE CONDITIONS
Q – So what type of things can the Magistrate tell me to do or not do upon my release?
A – The Court may impose Reasonable Conditions (see 178.484.11 below) to ensure the safety of the public.
Q – What are the TYPICAL things ordered by magistrates?
A – No contact with the alleged victim, no alcohol, stay out of trouble (no new arrests).
Q – What if the alleged victim tries to contact me?
A – You are REQUIRED to ignore them, you cannot pick up the phone, answer texts, or use any type of social media to communicate with them in ANY WAY. You cannot ask someone to relay a message for you. Anything like that is a violation.
Q – Can the alleged victim get in trouble for trying to contact me?
A – No – but it frequently hurts their credibility in subsequent adversarial hearings, if they are claiming to be “terrified of you” i.e. in a return hearing on an injunction or a jury trial on the underlying charge.
TEMPORARY RESTRAINING ORDERS FOR PROTECTION AGAINST DOMESTIC VIOLENCE
Q – After I was released I got served with a RESTRAINING ORDER from the alleged victim – what is this all about?
A – These are covered in Nevada Revised Statute 33 and include protection sought by victims of stalking, harassment, sexual abuse, sexual assault and any crimes against children. There are no filing fees for restraining orders and neither party is REQUIRED to have a lawyer.
They are almost always initially granted so long as the accusations by the petitioner are legally sufficient. The order is then temporarily granted (for 30 days) Ex Parte, which, when translated from Latin to English means : “with respect to or in the interests of one side only or of an interested outside party.” In other words, you don’t get to tell “Your side of the story”. The person who sought the injunction (petitioner) has to choose whether they want it to become EXTENDED, (which would last for one year) and if so – it is set for a hearing. You must be NOTICED as to all of this – or the opposing party and law enforcement must make at least a “Good-Faith effort” to serve you at your last known address. These are civil, and their requirements typically OVERLAP the conditions of your release as specified by the magistrate in the criminal case, and you are responsible for abiding by the conditions as to BOTH sets of conditions.
Q – Isn’t this double jeopardy?
A – No – because restraining orders are civil in nature, not criminal, and double-jeopardy protections only apply in criminal cases. Also, this is only a temporary order and you can fight to keep it from becoming EXTENDED.
Q – How do I fight it?
A – Show up in court on the date listed, present your case, argue. (We HIGHLY recommend hiring a lawyer).
Q – Isn’t there any way out of this – do I have to fight it – can’t we NEGOTIATE with the alleged victim?
A – Possibly – and sometimes we do, and sometimes the petitioner agrees to REQUEST that the prosecutor drop the criminal case.
Q – How do we do that?
A – You can hire us to do it – SOMETIMES we can pull this off. This happens most-frequently when there is a divorce pending between the parties, there are no serious injuries and the defendant has no prior convictions.
Q – Is the prosecutor required to listen to the alleged victim and drop the criminal case?
A – No – but they sometimes do – and even if they do not – it tells them the case is going to be difficult to prove, that the alleged victim can no longer be counted on to appear and/or or testify and gives them incentive to lower the charge to something like disorderly conduct, so they get SOMETHING out of the case instead of nothing.
Q – What is the standard of proof that the Petitioner is held to in a TRO hearing?
A – Preponderance of the evidence
Q – What does Preponderance of the evidence mean and how is that APPLIED?
A – The greater weight of the evidence required in a civil (non-criminal) case for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.
Q – What is harassment in Nevada?
A – Under NRS 200.571, a person commits the crime of harassment if: (a) Without lawful authority, the person knowingly threatens: (1) To cause bodily injury in the future to the person threatened or to any other person; or (2) To cause physical damage to the property of another person; or (3) To subject the person threatened or any other person to physical confinement or restraint; or (4) To do any act which is intended to substantially harm the person threatened or any other person with respect to his physical or mental health or safety; and (b) The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out.
Q – What is stalking and aggravated stalking?
A – Under NRS 200.575(1), a person commits the crime of stalking if: Without lawful authority, the person: (1) Willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, harassed, or fearful for the immediate safety of a family or a household member, and (2) Actually causes the victim to feel terrorized, frightened, intimidated, or fearful for the immediate safety of a family member or household member. A “family or household member” means a spouse, a former spouse, a parent or other person who is related by blood or marriage, or is or was actually residing with the person.
Under NRS 200.575(2), a person commits the crime of aggravated stalking if: The person commits the crime of stalking and threatens a person with the intent to cause him or her to be placed in reasonable fear of death or substantial bodily harm.
Q – What are crimes involving children ?
A – Under NRS 33.400, crimes involving children are defined as follows: (1) A crime involving physical or mental injury to the child of a nonaccidental nature; or (2) A crime involving sexual abuse or sexual exploitation of a child. NRS 432B.100.
Q – What is sexual abuse?
A – “Sexual abuse” includes acts upon a child constituting: 1. Incest under NRS 201.180; 2. Lewdness with a child under NRS 201.230; 3. Sado-masochistic abuse under NRS 201.262; 4. Sexual assault under NRS 200.366; 5. Statutory sexual seduction under NRS 200.368; 6. Open or gross lewdness under NRS 201.210; and 7. Mutilation of the genitalia of a female child, aiding, abetting, encouraging or participating in the mutilation of the genitalia of a female child, or removal of a female child from this State for the purpose of mutilating the genitalia of the child under NRS 200.5083. NRS 432B.110.
Q – What is sexual exploitation?
A – “Sexual exploitation” includes forcing, allowing or encouraging a child: 1. To solicit for or engage in prostitution; 2. To view a pornographic film or literature; and 3. To engage in: (a) Filming, photographing or recording on videotape; or (b) Posing, modeling, depiction or a live performance before an audience, which involves the exhibition of a child’s genitals or any sexual conduct with a child, as defined in NRS 200.700
Q – What is sexual assault?
A – Under NRS 200.366(1), a person commits the crime of sexual assault if: The person subjects another person to sexual penetration, or forces another person to make a sexual penetration on him or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct
Consequences of being found guilty of (at trial), or entering a GUILTY or NO CONTEST plea to any restraining order violation(s)
Unless a more severe penalty is provided by law, any person who intentionally violates a Temporary Protection Order is guilty of a gross misdemeanor, which is punishable by not more than 1 year in jail and/or up to a $2,000 fine.
Unless a more severe penalty is provided by law, any person who intentionally violates an Extended Protection Order is guilty of a category C felony, which is punishable by not less than 1 year or more than 5 years in Nevada State Prison and/or up to a $10,000 fine.
If the act that constitutes the violation of a protection order is itself a felony, the violator shall, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment for 1 to 20 years.
In addition, a person who violates a protection order may also be held in civil contempt of court and punished by a fine of up to $500 and/or imprisonment up to 25 days.
Q – Why is a violation of any of these orders considered criminal contempt?
A – Because they constitute a “lawful mandate of the court” (see statutes below)
NRS 199.340 Criminal contempt. Every person who shall commit a contempt of court of any one of the following kinds shall be guilty of a misdemeanor:
1. Disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
2. Behavior of like character in the presence of a referee, while actually engaged in a trial or hearing pursuant to an order of court, or in the presence of a jury while actually sitting in the trial of a cause or upon an inquest or other proceeding authorized by law;
3. Breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of a court, jury or referee;
4. Willful disobedience to the lawful process or mandate of a court;
5. Resistance, willfully offered, to its lawful process or mandate;
6. Contumacious and unlawful refusal to be sworn as a witness or, after being sworn, to answer any legal and proper interrogatory;
7. Publication of a false or grossly inaccurate report of its proceedings; or
8. Assuming to be an attorney or officer of a court or acting as such without authority.
[1911 C&P § 103; RL § 6368; NCL § 10052]
OTHER APPLICABLE STATUTES TO THIS SECTION
NRS 178.484 Right to bail before conviction; exceptions; imposition of conditions; arrest for violation of condition.
1. Except as otherwise provided in this section, a person arrested for an offense other than murder of the first degree must be admitted to bail.
7. A person arrested for a battery that constitutes domestic violence pursuant to NRS 33.018 must not be admitted to bail sooner than 12 hours after arrest. If the person is admitted to bail more than 12 hours after arrest, without appearing personally before a magistrate or without the amount of bail having been otherwise set by a magistrate or a court, the amount of bail must be:
(a) Three thousand dollars, if the person has no previous convictions of battery that constitute domestic violence pursuant to NRS 33.018 and there is no reason to believe that the battery for which the person has been arrested resulted in substantial bodily harm or was committed by strangulation;
(b) Five thousand dollars, if the person has:
(1) No previous convictions of battery that constitute domestic violence pursuant to NRS 33.018, but there is reason to believe that the battery for which the person has been arrested resulted in substantial bodily harm or was committed by strangulation; or
(2) One previous conviction of battery that constitutes domestic violence pursuant to NRS 33.018, but there is no reason to believe that the battery for which the person has been arrested resulted in substantial bodily harm or was committed by strangulation; or
(c) Fifteen thousand dollars, if the person has:
(1) One previous conviction of battery that constitutes domestic violence pursuant to NRS 33.018 and there is reason to believe that the battery for which the person has been arrested resulted in substantial bodily harm or was committed by strangulation; or
(2) Two or more previous convictions of battery that constitute domestic violence pursuant to NRS 33.018.
⮩ The provisions of this subsection do not affect the authority of a magistrate or a court to set the amount of bail when the person personally appears before the magistrate or the court, or when a magistrate or a court has otherwise been contacted to set the amount of bail. For the purposes of this subsection, a person shall be deemed to have a previous conviction of battery that constitutes domestic violence pursuant to NRS 33.018 if the person has been convicted of such an offense in this State or has been convicted of violating a law of any other jurisdiction that prohibits the same or similar conduct.
8. A person arrested for violating a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive, or for violating a restraining order or injunction that is in the nature of a temporary or extended order for protection against domestic violence issued in an action or proceeding brought pursuant to title 11 of NRS, or for violating a temporary or extended order for protection against stalking, aggravated stalking or harassment issued pursuant to NRS 200.591, or for violating a temporary or extended order for protection against sexual assault pursuant to NRS 200.378 must not be admitted to bail sooner than 12 hours after arrest if:
(a) The arresting officer determines that such a violation is accompanied by a direct or indirect threat of harm;
(b) The person has previously violated a temporary or extended order for protection of the type for which the person has been arrested; or
(c) At the time of the violation or within 2 hours after the violation, the person has:
(1) A concentration of alcohol of 0.08 or more in the person’s blood or breath; or
(2) An amount of a prohibited substance in the person’s blood or urine, as applicable, that is equal to or greater than the amount set forth in subsection 3 or 4 of NRS 484C.110.
9. If a person is admitted to bail more than 12 hours after arrest, pursuant to subsection 8, without appearing personally before a magistrate or without the amount of bail having been otherwise set by a magistrate or a court, the amount of bail must be:
(a) Three thousand dollars, if the person has no previous convictions of violating a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive, or of violating a restraining order or injunction that is in the nature of a temporary or extended order for protection against domestic violence issued in an action or proceeding brought pursuant to title 11 of NRS, or of violating a temporary or extended order for protection against stalking, aggravated stalking or harassment issued pursuant to NRS 200.591, or of violating a temporary or extended order for protection against sexual assault pursuant to NRS 200.378;
(b) Five thousand dollars, if the person has one previous conviction of violating a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive, or of violating a restraining order or injunction that is in the nature of a temporary or extended order for protection against domestic violence issued in an action or proceeding brought pursuant to title 11 of NRS, or of violating a temporary or extended order for protection against stalking, aggravated stalking or harassment issued pursuant to NRS 200.591, or of violating a temporary or extended order for protection against sexual assault pursuant to NRS 200.378; or
(c) Fifteen thousand dollars, if the person has two or more previous convictions of violating a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive, or of violating a restraining order or injunction that is in the nature of a temporary or extended order for protection against domestic violence issued in an action or proceeding brought pursuant to title 11 of NRS, or of violating a temporary or extended order for protection against stalking, aggravated stalking or harassment issued pursuant to NRS 200.591, or of violating a temporary or extended order for protection against sexual assault pursuant to NRS 200.378.
⮩ The provisions of this subsection do not affect the authority of a magistrate or a court to set the amount of bail when the person personally appears before the magistrate or the court or when a magistrate or a court has otherwise been contacted to set the amount of bail. For the purposes of this subsection, a person shall be deemed to have a previous conviction of violating a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive, or of violating a restraining order or injunction that is in the nature of a temporary or extended order for protection against domestic violence issued in an action or proceeding brought pursuant to title 11 of NRS, or of violating a temporary or extended order for protection against stalking, aggravated stalking or harassment issued pursuant to NRS 200.591, or of violating a temporary or extended order for protection against sexual assault pursuant to NRS 200.378, if the person has been convicted of such an offense in this State or has been convicted of violating a law of any other jurisdiction that prohibits the same or similar conduct.
10. The court may, before releasing a person arrested for an offense punishable as a felony, require the surrender to the court of any passport the person possesses.
11. Before releasing a person arrested for any crime, the court may impose such reasonable conditions on the person as it deems necessary to protect the health, safety and welfare of the community and to ensure that the person will appear at all times and places ordered by the court, including, without limitation:
(a) Requiring the person to remain in this State or a certain county within this State;
(b) Prohibiting the person from contacting or attempting to contact a specific person or from causing or attempting to cause another person to contact that person on the person’s behalf;
(c) Prohibiting the person from entering a certain geographic area; or
(d) Prohibiting the person from engaging in specific conduct that may be harmful to the person’s own health, safety or welfare, or the health, safety or welfare of another person.
⮩ In determining whether a condition is reasonable, the court shall consider the factors listed in NRS 178.4853.
12. If a person fails to comply with a condition imposed pursuant to subsection 11, the court may, after providing the person with reasonable notice and an opportunity for a hearing:
(a) Deem such conduct a contempt pursuant to NRS 22.010; or
(b) Increase the amount of bail pursuant to NRS 178.499.
13. An order issued pursuant to this section that imposes a condition on a person admitted to bail must include a provision ordering any law enforcement officer to arrest the person if the officer has probable cause to believe that the person has violated a condition of bail.
14. Before a person may be admitted to bail, the person must sign a document stating that:
(a) The person will appear at all times and places as ordered by the court releasing the person and as ordered by any court before which the charge is subsequently heard;
(b) The person will comply with the other conditions which have been imposed by the court and are stated in the document; and
(c) If the person fails to appear when so ordered and is taken into custody outside of this State, the person waives all rights relating to extradition proceedings.
⮩ The signed document must be filed with the clerk of the court of competent jurisdiction as soon as practicable, but in no event later than the next business day.
15. If a person admitted to bail fails to appear as ordered by a court and the jurisdiction incurs any cost in returning the person to the jurisdiction to stand trial, the person who failed to appear is responsible for paying those costs as restitution.
16. For the purposes of subsections 8 and 9, an order or injunction is in the nature of a temporary or extended order for protection against domestic violence if it grants relief that might be given in a temporary or extended order issued pursuant to NRS 33.017 to 33.100, inclusive.
17. As used in this section, “strangulation” has the meaning ascribed to it in NRS 200.481.
(Added to NRS by 1967, 1451; A 1971, 496; 1973, 1802; 1975, 1201; 1977,
NRS 178.4851 Release without bail; imposition of conditions; arrest for violation of condition.
1. Upon a showing of good cause, a court may release without bail any person entitled to bail if it appears to the court that it can impose conditions on the person that will adequately protect the health, safety and welfare of the community and ensure that the person will appear at all times and places ordered by the court.
2. In releasing a person without bail, the court may impose such conditions as it deems necessary to protect the health, safety and welfare of the community and to ensure that the person will appear at all times and places ordered by the court, including, without limitation, any condition set forth in subsection 11 of NRS 178.484.
3. Upon a showing of good cause, a sheriff or chief of police may release without bail any person charged with a misdemeanor pursuant to standards established by a court of competent jurisdiction.
4. Before a person may be released without bail, the person must file with the clerk of the court of competent jurisdiction a signed document stating that:
(a) The person will appear at all times and places as ordered by the court releasing the person and as ordered by any court before which the charge is subsequently heard;
(b) The person will comply with the other conditions which have been imposed by the court and are stated in the document;
(c) If the person fails to appear when so ordered and is taken into custody outside of this State, the person waives all rights relating to extradition proceedings; and
(d) The person understands that any court of competent jurisdiction may revoke the order of release without bail and may order the person into custody or require the person to furnish bail or otherwise ensure the protection of the health, safety and welfare of the community or the person’s appearance.
5. If a jurisdiction incurs any costs in returning a person to the jurisdiction to stand trial, the person failing to appear is responsible for paying those costs as restitution.
6. An order issued pursuant to this section that imposes a condition on a person who is released without bail must include a provision ordering a law enforcement officer to arrest the person if the law enforcement officer has probable cause to believe that the person has violated a condition of release.
(Added to NRS by 1981, 1584; A 1987, 454; 1997, 3359; 2001, 1226; 2007, 53, 1020)
NRS 178.4853 Factors considered before release without bail. In deciding whether there is good cause to release a person without bail, the court at a minimum shall consider the following factors concerning the person:
1. The length of residence in the community;
2. The status and history of employment;
3. Relationships with the person’s spouse and children, parents or other family members and with close friends;
4. Reputation, character and mental condition;
5. Prior criminal record, including, without limitation, any record of appearing or failing to appear after release on bail or without bail;
6. The identity of responsible members of the community who would vouch for the reliability of the person;
7. The nature of the offense with which the person is charged, the apparent probability of conviction and the likely sentence, insofar as these factors relate to the risk of not appearing;
8. The nature and seriousness of the danger to the alleged victim, any other person or the community that would be posed by the person’s release;
9. The likelihood of more criminal activity by the person after release; and
10. Any other factors concerning the person’s ties to the community or bearing on the risk that the person may willfully fail to appear.
(Added to NRS by 1981, 1584; A 1985, 809; 1997, 3360)
As you can see, there are similarities between DUI and Domestic Violence as applicable to bond conditions. You are not ALWAYS REQUIRED to post bail – however, there is a 12-hour requirement before any release based upon alcohol being in your body.
For more Domestic Violence information see our DV section here.
Call our firm today at 702-895-9111 for a free DV consultation in person or over the phone.
