Nebraska Domestic Violence Lawyer
A domestic assault charge is a serious violation that can carry with it both criminal and collateral consequences. This is a violation that can be categorized as a misdemeanor or felony depending on the circumstances of the incident, as well as the defendant’s prior record.
Domestic assault is a very common call that law enforcement receives. If you or someone you know has been charged with a domestic assault, it is important to understand the various facts and nuances about this charge. This article will delve into the different circumstances of domestic assault and what it means for the defendant.
What is Considered Domestic Violence in Nebraska
Domestic assault is not just between a husband and a wife; this is a common misconception. The state of Nebraska utilizes a commonly used concept that encompasses a broader scope of relationships. Many decades ago, domestic assault could not be charged if it was only between a boyfriend and girlfriend; however, as different relationship dynamics have evolved, so too have the laws that involve them.
According to Neb. Rev. Stat. section 28-323, a domestic assault can be charged if a person knowingly and intentionally causes bodily injury to their intimate partner; additionally, if they threaten bodily injury or threaten in a menacing manner, they can be charged with domestic assault. This description captures the charges that would be considered a misdemeanor, unless there is a prior conviction of domestic assault. If there are prior convictions, the defendant may be charged with a felony.
Nebraska defines an “intimate partner” as the following:
(8) For purposes of this section, intimate partner means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together at any time; and persons who are or were involved in a dating relationship. For purposes of this subsection, dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.
If a person uses a “dangerous instrument” to commit a domestic assault, they may be charged with a Class IIIA felony.
Lastly, if a person causes serious bodily injury in the course of committing a domestic assault, they may be charged with a Class IIA felony. Serious bodily injury is defined as the following under Neb. Rev. Stat. section 28-109:
(21) Serious bodily injury shall mean bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body;
For example, if someone sustains a bruise on their arm or wrist, that would not be considered a serious bodily injury. However, if someone loses their ability to see out of one of their eyes after being struck, that could potentially be considered a serious bodily injury.
How Serious as a Domestic Violence Charge
A domestic assault charge is a very serious charge. Although there is no minimum mandatory for Class I misdemeanors, there is still potential for jail time depending on the circumstances and defendant’s history. Additionally, if the circumstances of the incident itself arise to any of the felony charges, it becomes a much more significant charge.
Additionally, due to the strong correlation between homicides and domestic abuse, there are federal laws that will prohibit a defendant from possessing a firearm if they are convicted.
What are the Other Consequences of a Conviction
One of the collateral consequences of a domestic assault conviction is a Brady Disqualification. Under 18 U.S.C. SS 9 (d)(8), a person who is convicted of a domestic assault will never be allowed to purchase or possess a firearm.
Even if your case is reduced to a lesser offense such as disorderly conduct or assault, you may still potentially be ineligible to purchase a firearm. This is due to the provision that also prohibits those who have been subject to a no-stalking/harassing order, or any variation of a restraining order that arises from a domestic assault charge.
What are the Defenses to a Domestic Assault Charge
There are multiple approaches a defense attorney may take to defend their client against a domestic assault charge.
In a domestic assault, there must be a victim. However, if a domestic assault situation is actually a mutual affray, it is challenging to identify a victim. A mutual affray is an assault in which both parties intend to cause harm, and neither are acting in self defense. If one party is acting in self defense and is striking back or using other methods to legitimately defend themselves, that is not a mutual affray.
Another defense is in some instances where one party will wrongfully call the police on their partner out of some sense of revenge. In these circumstances, once that party realizes that their decision was likely made in the heat of an argument while emotions were high, they may recant their statement. If their statement and complaint is recanted, it will be challenging to identify them as a victim.
It is important to note that a party in a domestic assault should not be dishonest if they intend to recant their statement and complaint. If they know they wrongfully called law enforcement, they should consider recanting.
Do I Need a Lawyer For a Domestic Violence Charge
Yes. A domestic assault is a serious charge which can carry serious consequences. These are also charges that are commonly brought by law enforcement. Therefore, due to their extensive practice, both law enforcement and prosecutors should in theory be highly skilled at investigating and prosecuting these crimes.
In order to stand a chance against experienced police officers and seasoned prosecutors, a defendant should seriously consider retaining a defense attorney. It is wise to find an attorney who has experience defending against domestic assault charges. These can be very complicated cases and require experienced attorneys.