Lovestruck: Diversion and Domestic Violence

January 23, 2019

By Keffer Hirschauer LLP

Lovestruck: Diversion and Domestic Violence

Charges claiming an individual has committed domestic violence can be potentially devastating not only to that individual’s family, but it can also have broad reaching professional or job implications. A conviction for domestic violence could mean the end or a significant change in a career an individual spent decades building. That change could mean less money or less earning potential.

Because charges of domestic violence often only involve few people, usually two, they often turn on the credibility of those one or two people. Consequently, law enforcement officers responding to a domestic violence call often try to get statements immediately from individuals who were present at the alleged incident. If obtain correctly and lawfully, that statement can be used against the individual at a later trial. Oftentimes, this evidence is obtained when people are distraught or confused about why they are speaking with police. While each case is different and should be analyzed independent, an individual facing charges of domestic should seriously question and resist the urge to make a statement to law enforcement at the scene without consulting or speaking with an attorney first. In many instances, without a statement, the State can find it difficult or impossible to prove certain claims beyond a reasonable doubt. If you are being investigated for a domestic violence case in Indiana or Indianapolis, you should immediately call an experience Indiana domestic violence criminal defense attorney.

A crime of domestic violence is defined by statute as “an offense or the attempt to commit an offense that has as an element” the use of physical force or threatened use of a deadly weapon, committed against a person who was cohabiting with or had cohabited with the defendant as a spouse, parent, or guardian. I.C. § 35–41–1–6.3.

Staples v. State, 959 N.E.2d 323, 324 (Ind. Ct. App. 2011). As outlined by statute, a crime of domestic violence is defined as having particular elements committed against persons who have a particular relationship with the defendant. I.C. § 35–41–1–6.3. A conviction for domestic battery is not a prerequisite for a determination that the defendant committed a crime of domestic violence.

The stakes of an individual facing a domestic violence investigation or charges are high. The possible penalties for a charge of domestic violence can range from a misdemeanor to a major felony. In addition to losing your physical freedom, a conviction for domestic violence has other collateral consequences. For example, a crime of domestic violence prohibits an individual from lawfully possessing a firearm unless their rights have been restored.

The 1968 Gun Control Act and follow up aments outlined in 18 U.S.C. 921 preclude anyone convicted of a misdemeanor crime of domestic violence from possessing a firearm. The statute defines “misdemeanor crime of domestic violence” as any state or federal misdemeanor that has as an element the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by whom the person shares a child in common, is cohabiting, or similarly situated to a spouse, parent, or guardian of the victim.

Unless and until an individual’s rights have been restored by a court, an individual with a domestic violence conviction is a prohibited person and cannot possess a gun either directly or constructively. To be sure, the potential consequences for a domestic violence allegation can be far-reaching and significant. Moreover, those consequences are not necessarily immediately or readily apparent to the individual facing that investigation or those charges.

If you or a loved are facing domestic violence charges or a domestic violence investigation, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized history. Act now and contact us today at (317) 857-0160.