Ryan M. Black, Attorney at Law
Trust an Experienced Domestic Violence Lawyer!
Idaho's laws regarding domestic violence can be confusing. Whether you or a family member has been charged with a crime, or if you are a victim of domestic violence, it is important to know your rights and options. Before we go in for a full deep dive, it is important to know some terminology. We have compiled the following information to try to help. If you or someone you know has been charged, please give us a call for a free consultation.
Learn More About Domestic Violence in Idaho
Terminology and Charges
Here are some common terms used when dealing with domestic charges:
- Battery – Not a AA or a 9-volt; battery is any touching of another person without their consent. It may be a defense that the touching was on accident or by mistake. Idaho Courts, however, have defined battery as a general intent crime. This means that using “accident” as a defense can get tricky! The Prosecutor will only need to prove that someone intended to do the thing that touched someone else, not that the act was done with the intent to touch. For example, if someone's intent was to throw a bowl of soup at the wall, and some of that soup splashed off of the wall and hit someone else – that is a battery. In trial, the State will only need to show that the person had the general intent to throw the soup, not that they had any specific intent that the soup hit anyone.
- Assault – To scare someone – by actions or words – when it looks like you could actually follow through on what is threatened. For example, if I say I am going to shoot someone, but it is clear that I do not have a gun, that may not rise to the level of assault because I do not have the ability to immediately follow through on my threat. However, if I point a gun at someone, even if I do not say anything – that is assault. Now, assault is a specific intent crime, so the State will need to show that the word or action was done with the intent to threaten but not necessarily to scare. This makes assault more difficult to prove. For that reason, we rarely see domestic assault charges.
- Domestic Battery – Any assault or battery done to a household member.
- Household Member – A current or past spouse, someone you are living and in a relationship with, or someone you had a child with. Current custody or parental rights of the child do not matter, the State only needs to show that the charged and the victim had a child together.
- In the Presence – A domestic charge is in the presence of a child if it happened somewhere that a child “could have” seen or heard the battery or assault. The child does not actually need to see or hear anything.
- Attempted Strangulation – Any attempt to choke or strangle a household member or someone you are or were in a relationship with. This is another general intent crime and does not require that there be any injury as evidence of the strangulation. Accordingly, we see this charged quite often, as it does not require much for the State to allege.
Here are the common domestic charges and their maximum penalties:
- Misdemeanor Domestic Battery/Assault – Any assault or battery against a household member. A first conviction under this charge is punishable by up to six months in the county jail and a $1,000 fine. A second conviction within ten years is punishable by up to one year in the county jail and a $2,000 fine. A third conviction within fifteen years becomes a felony punishable by up to five years of prison and a $5,000 fine.
- Misdemeanor Domestic Battery/Assault in the Presence of a Child – Any assault or battery against a household member that a child “could have” seen or heard. The “Presence of a Child” is a sentencing enhancement that works to double the possible maximum sentence. That means that a first charge of misdemeanor domestic battery in the presence of a child has a maximum sentence of one year in the county jail and a $2,000 fine.
- Felony Domestic Battery – A battery against a household member that left a traumatic injury. This is a felony punishable by up to ten years of prison and a $10,000 fine.
- Felony Domestic Battery in the Presence of a Child – A battery against a household member that left a traumatic injury that a child “could have” seen or heard. Again, the “Presence of a Child” sentencing enhancement doubles the possible penalty making this punishable by up to twenty years of prison and a $20,000 fine.
- Felony Attempted Strangulation – Any attempt to choke or strangle a household member or someone you are or were in a relationship with. This charge is punishable by up to fifteen years of prison and a $50,000 fine.
How to Defend
Defending against a domestic charge can be tricky and it is important to choose a team you like and trust to help you through the process. Please give us a call and see if we would be a good fit for your case. Working a domestic case generally goes through two steps: mitigate then fight.
Crafting a defense against this type of charge can be county specific, but the following should help regardless of where you were charged. With any misdemeanor or felony domestic, the first thing you should do, after you find an attorney, is begin treatment. While these charges are often he-said, she-said in nature, the possible penalties associated with a conviction are terrible. For that reason, we always try to get charges substantially reduced or dismissed before we go to trial. Mitigation serves a few purposes. It never hurts to work on yourself, and showing the prosecutor and the Judge that you can succeed in counseling or classes can go a long way to getting your case reduced or convincing a Judge to give you a much lighter sentence.
Often these charges, whether they are true or not, come out of a night of drinking. If that is the case in your situation, you should seek out some substance abuse counseling and/or begin individualized counseling. We work with a couple of licensed substance abuse evaluators and are happy to facilitate your evaluation and treatment in that area. If you have health insurance, you can use this site to help you find a counselor near you that fits your insurance plan.
Any conviction under a domestic violence or attempted strangulation charge will require domestic violence treatment. This is generally offered as a weekly class that you must enroll in for six months to a year. Some providers allow you to start classes before you plead or are sentenced and we can help facilitate that as well.
The amount of treatment and mitigation you need to do in your case will be specific to the charges and facts. Please give us a call for a free consultation and we can help you set up a mitigation plan.
If mitigation does not work, you need to find an attorney that has experience and success litigating these charges at trial. There are many attorneys in Idaho that build practices off of mitigation work alone with no trial experience. If you consult with an attorney and they say they are “so good they never have to go to trial,” they are lying. Some cases just need to be tried, and any good criminal defense attorney should be routinely doing so to make sure they are pushing the boundaries and getting the absolute best results for their clients.
- For Felonies:
In a felony domestic case, your first substantive hearing is called a preliminary hearing. Often that hearing is the decider for whether a case will resolve or go to trial. At the preliminary hearing, a defendant has the right to challenge the State's evidence and have a mini-trial. Your attorney will need to evaluate the evidence carefully before helping you decide whether to have this hearing or not. There are a few things we always consider before deciding when to start fighting a case:
- Victim Support –
- If the victim DOES NOT support the charges – we will often push the case forward to a preliminary hearing UNLESS the victim gave a statement to a doctor or a paramedic. If the victim does not show up to the preliminary hearing, the State may be forced to dismiss the charges. If, however, the victim gave a statement to a doctor or paramedic, that person can testify instead of the victim under the Idaho Rule of Evidence 803(4). Whether to have a hearing in that circumstance is a case-by-case decision and needs to be discussed with an attorney.
- If the victim DOES support the charges – we may take the case to a full preliminary hearing. Sometimes, however, we will give up the preliminary hearing because we do not want the victim testifying on the record early in the case. If the victim does testify at the preliminary hearing, and then does not show up to the later trial, their earlier preliminary hearing testimony may be used by the Prosecutor at trial. If we believe that the victim will withdraw support from the case over time, we may recommend waiving the preliminary hearing and then setting the case for trial at the District level. Again, this is an intensively strategic decision that must be made after review of the police reports and discussion with an experienced attorney.
- Nature of Injury –
- Especially in cases of attempted strangulation where there are no injuries, we would look to hire a medical expert to help support your defense.
- Substance Use –
- If substances were involved, often that is not a one-way-street and the victim was just as inebriated as the person charged. If this is the case, it is important to do research and use our private investigator to help see if the victim has any documented history of substance abuse issues. If so, that may be helpful in negotiating the case. Otherwise, use of substances at the time of an instance can be relevant to whether someone is correctly remembering what happened.
- Fabrication –
- If it is a case where the victim is fabricating the claims, we may want to push the case out a few months before moving forward with a preliminary hearing. The most difficult thing about lying is being consistent. A victim that is making up a story is often caught up in inconsistencies, and the longer we wait to have them testify after the reported incident, the more time they have to forget the exact details reported to police.
- We have an investigator that will interview any witnesses to the incident and attempt to do a follow-up interview of the victim. That interview is often critical to showing inconsistencies in their statement as well as judging whether the victim will be believable as a witness.
- For Misdemeanors:
Most of the advice above applies as well, but there is no right to a preliminary hearing in a misdemeanor case. Therefore, an investigator and aggressive attorney are even more important. You need access to as much evidence to support your defense as possible, and when you will not get the opportunity to challenge that evidence prior to a trial, you need a creative team to help you craft a defense.
Regardless of the level charged, these cases quickly get convoluted and untangling the truth takes experience and dedication. Please give us a call so you can see how our legal team can help you prepare a mitigation plan and defense to get you the best possible resolution of your case.
A victim of a domestic charge in Idaho has the following Constitutional Rights:
- Without a Request to the Prosecutor:
- To be notified about all hearings scheduled in their case.
- To be present at all hearings.
- To communicate with the prosecutor – Often prosecutors will not communicate with victims directly, but will use a victim witness coordinator instead. If you need help reaching a prosecutor in a case, please let us know and we can help facilitate.
- To give a victim impact statement at any hearing where a defendant pleads guilty, is sentenced, or is released from jail or prison.
- To have the defendant pay for any doctors bills from the domestic violence incident.
- To refuse to talk with the defendant or their attorney.
- To read pre-sentence reports prepared for sentencing in a felony case.
- With a Request to the Prosecutor:
- To be notified of the sentence imposed.
- To be notified if the defendant is released from custody.
A victim of a domestic charge in Idaho also has these additional rights:
- To request a civil penalty of up to $5,000 in a felony domestic or attempted strangulation case.
- To request to modify a no contact order and be heard by a Judge about that request within fourteen days. The form to modify a no contact order can be found here.
Possible and Likely Outcomes
In any sentencing, a Judge is required to consider four sentencing guidelines or “Toohill Factors” in deciding on a sentence. In deciding a sentence, a Judge must always consider probation first and may consider other options if they find probation inappropriate. The sentencing factors, ranked from most to least important are:
- Protection of Society
- Risk Reduction through Rehabilitation
- Deterrence of the Defendant and the Public
In crafting an appropriate sentence, a Judge will always look to protect society first, make sure they are doing what they can to rehabilitate the defendant, deter the defendant and the general public from committing any new crimes, and lastly punish the defendant. In Domestic cases, with a good mitigation plan, our team can often help make sure that any sentence handed down is more structured around rehabilitation than punishment. The following are possible or likely outcomes if a person pleads guilty or is found guilty after a trial. Many of our cases resolve with dismissals or acquittals, but let's look at the different possible outcomes of a guilty verdict on a charge-by-charge basis.
- Misdemeanor Domestics
All misdemeanor domestic cases are the result of an argument that did not leave any marking or injury. As a result, they are generally treated as rehabilitation rather than punishment cases. Often these cases are put into a specialty court called Domestic Violence Court. This is a county-specific result, but some Idaho counties have Judges that specialize in domestic violence cases and work with prosecutors, defense attorneys, and probation officers to set up a treatment plan specific to each defendant. Because probation is always a misdemeanor Judge's first goal, and rehabilitation is a higher priority that punishment, the Court will often not impose much jail time or a fine, but rather focus on lots of treatment. That treatment can include:
- Supervised Probation – this will usually entail a probation officer being assigned to your case to make sure you are staying on track with your plan. They may require you to prove that you are not drinking or using drugs, employed or in school, and have stable housing. While supervised probation is not ideal, a probation officer can be treated as a resource rather than a burden, and after showing an officer that you plan to succeed on your treatment plan, they will usually do what they can to support you in your success.
- Unsupervised Probation – the only requirements of unsupervised are to complete your treatment plan by the end of probation and not get in trouble. No probation officer here.
- Domestic Violence Evaluation – this is required by statute unless the defendant agrees to the full 24 modules or one year of weekly treatment. An evaluation will recommend either six-months or twelve-months of treatment. The evaluations are pricey, however, and sometimes an attorney may recommend agreeing to a period of treatment rather than wasting money on an evaluation. That is a case-by-case decision, however. Court approved evaluators can be found here, and domestic violence programs here.
- Twelve-Week SAMHSA Anger Management Treatment – this may be recommended by the State or ordered by the Judge. A workbook for that class can be found here.
- Substance Abuse Evaluation – if alcohol or drugs were involved in the incident, the Court may order a substance abuse evaluation and that you comply with its recommendations. Approved evaluators and providers can be found here.
- Mental Health Evaluation – if the incident came out of a mental health crisis, or the Court believes the defendant could benefit from counseling, they may order a full evaluation to get an idea of what treatment is necessary. These evaluations are expensive and often the provider requested by the Prosecutor is someone who is not treatment focused but may rather recommend incarceration. If necessary, we can facilitate an evaluation with an approved provider who is kind, respected by the Courts, and treatment oriented. If mental health is a concern, you can often get around the need for a full evaluation by starting individualized counseling. You can find a counselor in your area that takes your insurance by using this site.
- Discretionary Jail Time – when punishment is not the primary goal of the Court, but the Court wants to give a probation officer a stick to go along with their carrot, they can award discretionary jail time. Usually ordered as 90 days, this is time that you do not have so serve unless you mess up. If you miss a meeting with a probation officer, use drugs while on probation, miss a domestic violence class, or mess up in a different way, then the probation officer can put you in jail. A probation officer can usually only hit you with two days of discretionary time at a time, but at a maximum, no more than three. The benefit to discretionary time is that you do not have to serve it unless you mess up, and it gives the probation officer the ability to punish you while on probation without having to resort to a full probation violation.
In any misdemeanor case in Domestic Violence Court, the Court may approve financial assistance for the evaluation, treatment, or court ordered obligations. That form to apply for assistance can be found here: English/Spanish.
- Felony Domestics
These can range from something as little as a tiny bruise or allegation of choking with no injury all the way up to broken bones. Because the gamut of possible scenarios that felony domestic charges can cover, the possible sentences are also diverse. Here are some possible options from best to worst.
- Rule 11
In a felony domestic, there is often little or no proof of injury and the State is working with a he-said-she-said case. When that happens, we are often able to negotiate a massive reduction in charges to get you into the misdemeanor domestic realm as detailed above. If that happens, you would be agreeing to a “rule 11” plea agreement. In Idaho, all plea agreements are governed by Idaho Criminal Rule 11, but the slang term “rule 11” means an agreement that is binding on everyone: Prosecutor, Defense Attorney, Defendant, and Judge. If we are able to negotiate a twenty year felony down to a misdemeanor charge, the sentence you get would be specific, exact, and detailed. This means that if we are able to negotiate you a rule 11 plea agreement, you will be sentenced to exactly what is written in the agreement. The Judge is not allowed to change anything about it. Usually rule 11 agreements are rehabilitation focused and include domestic violence and other treatment rather than jail time.
- Felony Probation
Felony probation for a domestic usually runs for about ten years. During that period, you would be required to report to a felony probation officer. Felony probation is more intensive than misdemeanor, and would entail you giving up your right to refuse search of your person and property. That means that a probation officer can stop by your house or work at any time and check in on you. You will also be required to routinely show that you are not using alcohol or drugs, that you have a job or are enrolled in school, and that you are not spending time with others on probation or with extensive criminal records. A felony probation officer will also require you to complete the treatment detailed above in the misdemeanor domestic section. They will work with you to make sure that is scheduled and completed quickly.
A rider is a slang term for a retained jurisdiction. This is often the sentence for a more violent domestic felony with substantial injuries, or a conviction on a felony domestic after a trial. While the Court is not allowed to punish or “tax” you for having a trial, if the Court believes that an individual is not going to succeed on probation with more guidance, they can place someone in the rider program. When this happens, the Court holds onto the case for up to a year and sends the defendant to the prison for a few classes. Those classes commonly include Thinking For a Change (T-FAC), Aggression Replacement Training (ART), and if substances were involved Cognitive Behavioral Interventions for Substance Abuse (CBI-SA). As long as the defendant passes those classes, the Judge will schedule another hearing called a “rider review hearing.” At that hearing, the attorneys will be allowed to argue for or against probation, but as long as the defendant performed well, they are usually awarded probation. If, however, someone fails a class, the Judge will usually “revoke” jurisdiction and release that person to the prison. That means that the defendant is then sentenced to a prison term, often without a hearing, and must petition the parole board for release.
Prison is the last option the Court will consider. This is reserved for subsequent offenders, those who have been to prison in the past, or particularly violent offenses. If prison is the offer, the case is often pushed toward trial in order to negotiate a better deal or go for an acquittal.
Regardless of your charge, there are some additional factors that anyone facing a domestic violence charge needs to consider.
- Gun Rights
If you are convicted of a domestic violence charge, then you lose your Federal Second Amendment right to possess a firearm. Getting those rights restored can be difficult, so make sure you consult with an attorney if you are charged with a domestic and your gun rights are a priority.
- Withheld Judgment
If you have no prior criminal history, or have not used a withheld judgment before, you may qualify for one in your case. If the Court grants you one of these, they “withhold” judgment for a period of probation. After the probation is complete, if the Judge is happy with your performance, the Court must “execute” the withheld judgment and dismiss your case. This can be a huge win in a domestic case because it allows you to say that you have never been “convicted” of the charge. While you pled guilty, were sentenced, and placed on probation, the Judge has “withheld” the conviction, and as long as you complete a stellar probation, your case will get dismissed. The Court looks at a number of factors in deciding whether you should get a withheld, and our team has had luck convincing the Courts that some of our clients even qualify for a second withheld judgment because of “extraordinary circumstances.”
Even misdemeanor domestic charges are considered crimes of moral turpitude and will impact a non-citizen's right to remain within the United States. Felony domestic charges will have worse consequences. While we do not practice immigration law, if you are a non-citizen, we consult with a few immigration attorneys regularly and will make sure you are informed of any possible consequences in the event of a conviction in your case.
Free Domestic Violence Consultation
Still unsure if we're the right option? No worries. Give us a call at (208) 314-8888 to set up a free consultation. We'll take a look at your case and tell you what we think your best options are. If that includes hiring us, great. If not, we'll use our extensive knowledge of the legal community to set you up with an attorney who gives you the best chance to win.