Domestic Violence Answers
NO 48 HRS
NO 24 HRS
NO 12 HOURS
NO MANDATORY
HOLDING PERIOD, PERIOD.
You are not alone – or crazy – in thinking there is a mandatory “holding” period. It is my opinion and the opinion of others, that there was legislative intent to create a holding period when the statutes were amended. There are also old materials I have found, issued by Alabama task forces and committees which reference the statutes below, restating them in plain language declaring there is a mandatory holding period.
In order to understand why there is no mandatory holding period, you have to break down the 2 applicable statutes.
48 Hours?
First, let’s look at
§ 15-10-3. Arrest without warrant — Generally; written report; protection orders.
(The blue text below will be our focus)
(a) An officer may arrest a person without a warrant, on any day and at any time in any of the following instances:
(1) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.
(2) When a felony has been committed, though not in the presence of the officer, by the person arrested.
(3) When a felony has been committed and the officer has probable cause to believe that the person arrested committed the felony.
(4) When the officer has probable cause to believe that the person arrested has committed a felony, although it may afterward→ appear that a felony had not in fact been committed.
(5) When a charge has been made, upon probable cause, that the person arrested has committed a felony.
(6) When the officer has actual knowledge that a warrant for the person’s arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued in accordance with this chapter. However, upon request, the officer shall show the warrant to the arrested person as soon as possible. If the officer does not have the warrant in his or her possession at the time of arrest the officer shall inform the defendant of the offense charged and of the fact that a warrant has been issued.
→(7) When the officer has probable cause to believe that a felony or misdemeanor has been committed by the person arrested in violation of a protection order, including a domestic violence protection order or an elder abuse protection order, issued by a court of competent jurisdiction.
→(8) When an offense involves a crime of domestic violence, including domestic violence in the first degree, pursuant to Section 13A-6-130, domestic violence in the second degree, pursuant to Section 13A-6-131, domestic violence in the third degree, pursuant to Section 13A-6-132, interference with a domestic violence emergency call, in violation of Section 13A-6-137, or domestic violence by strangulation or suffocation, pursuant to Section 13A-6-138, or elder abuse as defined in Section 38-9F-3, and the arrest is based on probable cause.
→ (c) If the defendant is arrested under this section for committing an act of domestic violence, including domestic violence in the first degree, pursuant to Section 13A-6-130, domestic violence in the second degree, pursuant to Section 13A-6-131, domestic violence in the third degree, pursuant to Section 13A-6-132, interference with a domestic violence emergency call, in violation of Section 13A-6-137, or domestic violence by strangulation or suffocation, pursuant to Section 13A-6-138, in violation of a domestic violence protection order, or an act of elder abuse in violation of an elder abuse protection order, the defendant shall be held in custody until brought before the court within 48 hours for the purpose of enforcing the protection order and for consideration of bail in accordance with Section 15-13-190 and the applicable rules of criminal procedure, pending a hearing. If the defendant is not brought before the court within 48 hours, the defendant shall be subject to bail according to the Alabama Rules of Criminal Procedure.
The blue text is the important part. It lays out what crimes are to be included when applying the rules for Arrest without a Warrant (DV 1, 2, 3, 9-1-1, DVSS)
In 8 & 8(c) it states: That the enumerated crimes must be committed IN violation of a domestic violence protection order or if elder abuse, IN violation of an elder abuse protection order.
This means if there is probable cause that the listed crimes have been committed in violation of the respective protection order, a defendant can be arrested without a warrant, HOWEVER…
This type of defendant “shall be held in custody until brought before the court within 48 hours for the purpose of enforcing the protection order and for consideration of bail in accordance with Section 15-13-190 and the applicable rules of criminal procedure, pending a hearing.
The defendant can be arrested but shall be held until brought before a court within 48 hours for a hearing.
The hearing is to specifically address conditions of bond “for the purpose of enforcing the protection order and for consideration of bail” because this is a violent offender and a repeat violent offender – as these were committed in violation of a PFA.
What happens next is important! If the defendant is not brought before the court within 48 hours, the defendant shall be subject to bail according to the Alabama Rules of Criminal Procedure.
If the defendant does not have that hearing, then the defendant SHALL be subject to bail according to the Rule of Crim Pro. The SHALL is important. At 48 hours, the rules kick in.
Here’s my take:
The defendant is a repeat offender, He/She knows the system, has a bondsman and has a momma. If the defendant does not appear for a hearing, but yet a bond is issued by a Judge (standing order or staff coordination) and an Order of Release is signed (the document which has the conditions), the defendant cannot be held any longer. If the defendant comes in on hour 1, then at hour 2, the standing-order is put into place along with an order of release is issued. At that point, the defendant’s momma calls bondsman, as they are standing by the defendant can be released very easily in hour 3. This is why we cannot tell victims they have 48 hours to get out!
Prosecutors: if a hearing is not held, (check the record) I think you can argue for an alteration of bond conditions not due to change in circumstances or new event, but rather because the statute is very clear – SHALL be brought before the court for the purpose of enforcing the protection order and for consideration of bail. If that didn’t happen, argue it.
After the warrantless arrest, 15-13-190 comes into play.
First, let’s address an arrest with a warrant:
The 24 Hour- Part
§15-13-190. Procedures upon Arrest;
Conditions of release or bail.13-190.
Procedures upon Arrest;
Conditions of release or bail.
• (a) A person arrested for domestic violence in the first degree, pursuant to Section 13A-6-130, domestic violence in the second degree, pursuant to Section 13A-6-131, domestic violence in the third degree, pursuant to Section 13A-6-132, interference with a domestic violence emergency call, in violation of Section 13A-6-137, or domestic violence by strangulation or suffocation, pursuant to Section 13A-6-138, OR a violation of a domestic violence protection order, may not be admitted to bail until after an appearance before a judge or magistrate within 24 hours of the arrest, and if the person is not taken before a judge or magistrate within 24 hours of the arrest, he or she shall be afforded an opportunity to make bail in accordance with the Alabama Rules of Criminal Procedure.
Like the sections above, (a) lays out what crimes are considered when applying the rules for 15-13-190 (DV 1, 2, 3, 9-1-1, DVSS OR VOP. (Elder abuse PFA is not referenced)
This defendant may not be admitted to bail until after an appearance before a judge or magistrate within 24 hours of the arrest” “[A]nd if the person is not taken before a judge or magistrate within 24 hours of the arrest, he or she shall be afforded an opportunity to make bail in accordance with the Alabama Rules of Criminal Procedure.”
What the judge or magistrate should consider or as the code states: “may ” consider:
15-13-190 continued…
(b) The judge or magistrate may impose conditions of release or bail on the person to protect the alleged victim of domestic violence or the person protected by a protection order, and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include, but need not be limited to, the following:
• (1) Enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim.
• (2)a. Restraining and enjoining the defendant from contacting the victim.
• b. For the purposes of this subsection, contacting includes, but is not limited to, communicating with the victim verbally or in any written form, either in person, telephonically, electronically, or in any other manner, either directly or indirectly through a third person.
• (3) Prohibiting the person from possessing a firearm or other weapon specified by the court, except when such weapon is necessary for employment as a peace officer or military personnel.
• (4) Issuing any other order or modification of orders required in this section to protect the safety of the alleged victim or to ensure the appearance of the person in court.
Because Bond Conditions are considered a Protection From Abuse Order see 13A-6-141, the following is required:
• (c) If conditions of release are imposed, the judge or magistrate shall issue a written order for conditional release, immediately distribute a copy of the order to the law enforcement agency having custody of the arrested or charged person,
• place information pertaining to the order in the domestic violence protection order registry, and provide the law enforcement agency with any available information concerning the location of the alleged victim in a manner that protects the safety of the victim.
• Law enforcement shall provide a copy of the written order to the victim within 24 hours of receipt, provided that the victim provides law enforcement with current and accurate contact information.
If the defendant is in violation of pre-existing conditions whether bond or probation:
• (d) In cases in which the defendant has been placed on conditional release or bail pursuant to this section or is in violation of probation from another case and is arrested on a probation violation warrant, a violation of written condition of release pursuant to this section, or a violation of a prior protection order, the court shall consider revocation of probation, conditional release, or bail.
• Should the court order continue probation, conditional release, or bail, the court shall order additional conditions imposed on the defendant to provide protection to the victim of domestic violence or the person protected by a protection order. Additional conditions shall be included in a written order.
• (e) A person who willfully violates a condition of pretrial release provided in this section, when the original arrest was for an act of domestic violence, shall be subject to the penalties provided in Section 13A-6-142 and shall receive an enhanced penalty and additional sentence of imprisonment in accordance with Section 13A-6-142.
• WHAT is Section 13A-6-142? A Violation of a Protection Order! See next section.
Protection from Abuse Definition § 13A-6-141 is in Article 5A of the Domestic Violence Protection Order Enforcement Act. It is the next chapter after the listing of criminal violations.
Many believe that a “PFA” is the civil order that a victim applied for at the circuit court clerk’s office. However, that is incorrect.
This is the definition as per Alabama Law (notice it lists the Civil Title 30 PFA as a “given”:
As used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) DOMESTIC VIOLENCE PROTECTION ORDER. A domestic violence protection order is any protection from abuse order issued pursuant to the Protection from Abuse Act, Sections 30-5-1 to 30-5-11, inclusive. The term includes the following:
A restraining order, injunctive order, or order of release from custody which has been issued in a circuit, district, municipal, or juvenile court in a domestic relations or family violence case;
An order issued by municipal, district, or circuit court which places conditions on the pre-trial release on defendants in criminal cases, including provisions of bail pursuant to Section 15-13-190;
An order issued by another state or territory which may be enforced under Sections 30-5B-1 through 30-5B-10. Restraining or protection orders not issued pursuant to the Protection From Abuse Act, Sections 30-5-1 to 30-5-11, inclusive, must specify that a history of violence or abuse exists for the provisions of this chapter to apply.
(2) VIOLATION. The knowing commission of any act prohibited by a domestic violence protection order or any willful failure to abide by its terms.
Summary
PFA issued under Title 30
(elder abuse included also)NO CONTACT Orders – restraining order, injunctive order or order of release from custody in a family violence case or domestic relations case issued by circuit, district, municipal or juvenile court.
Order on Pre-Trial Release in Criminal Case by same courts above as condition of bail 15-13-190
Order from other jurisdictions which can be enforced under our PFA Title 30 ( if specified as a PFA)
Order from other jurisdiction not included in (#4 above) BUT has specified a history of violence or abuse
The_Prosecutors_Resource_Forfeiture_by_Wrongdoing
The implications of forfeiture by wrongdoing in domestic violence and child abuse cases.
At the time of the enactment of the Bill of Rights, common law stated that hearsay from unavailable witnesses was admissible when they were “detained” or “kept away” by the “means or procurement” of the defendant.
Application to DV and child abuse prosecutions: preexisting relationship between defendant and the declarant, e.g. Family, intimates, relationship and cohabitation = influence (Reynolds)
Defendant’s actions need not be threatening in order to have influence (bribes or gifts.) It’s seen often in cases where there is trust, affection or authority.
Defendant will argue “I didn’t do anything to make witness unavailable” or “No intent and causation”
Argue “Exploitation”
Vulnerabilities and immaturity, perps seek continued silence
Pre Abuse relationship, progression, statements of abuser
Reason for disclosure, delay and feelings about effects of disclosure
Alabama Rule 804(b)(5)
Even if a “wrongdoing” which makes the declarant unavailable to testify has occurred, the exception only applies when the wrongdoing occurred with the intent of procuring the unavailability of the declarant as a witness.
Pursuant to Rule 104(a), the trial judge must decide, based on a preponderance of the evidence, if all of the elements of this rule are met.
Difference between Davis and Ala Rule 804 “Acquiesced.” Alabama’s rule language does not include acquiesced.
Exceptions:
Crawford – a statement is testimonial “when the circumstances objectively indicate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
For Example: A statement made by the defendant’s wife during police interrogation is testimonial in nature.
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Reasons for Non-Cooperation
Listen for clues as to why not wanting to go forward
Listen for clues as to barriers to leaving
Lack of knowledge about system, assistance, etc.?
Can’t do vs won’t do?
Victim discloses additional information?
Contrary or additional or same but more?
NOTICE that assault requirement is “physical harm.” see (link) 13A-6-138-Strangulation-or-suffocation
(b) A person commits the crime of domestic violence by strangulation or suffocation if he or she commits an assault with intent to cause physical harm∗ or commits the crime of menacing pursuant to Section 13A-6-23, SEE “attempt” in menacing definition:
(A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.)
by strangulation or suffocation or attempted strangulation or suffocation and the victim is a current or former spouse, parent, step-parent, child, step-child, any person with whom the defendant has a child in common, a present household member, or a person who has or had a dating relationship with the defendant. For the purpose of this section, a household member excludes non-romantic or non-intimate co-residents, and a dating relationship means a current or former relationship of a romantic or intimate nature characterized by the expectation of affectionate or sexual involvement by either party.
∗Physical Harm
“Physical harm” necessary for domestic violence by strangulation is not defined by statute, but it is a broad term that includes any measure of physical harm, whether slight or serious.
- (Some definitions consider “pain” as harm.)
Thomas v. State, 214 So. 3d 1211 (Ala. Crim. App. 2015)
Printable document in purple
On or After May 23, 2019
Domestic Violence 1st, 2nd, 3rd
& Strangulation and Suffocation
• Current spouse
• Former spouse
• Parent
• Step-parent
• Child
• Step-child
• Person who has child in common with the defendant
• Present household member
• Person who has or had a dating relationship with the
defendant
A household member excludes non-romantic or non-intimate
co-residents.
A dating relationship means a current or former relationship of a romantic or intimate nature characterized by the expectation of affectionate or sexual involvement by either
party.
Domestic Violence Crimes Underlying 9.24.19 (1)
Domestic Violence Crimes
As of May 23, 2019
Domestic Violence 1st 13A-6-130
• 13A-6-20 Assault 1st
• 13A-6-91 Aggravated Stalking
• 13A-7-5 Burglary 1st
Domestic Violence 2nd 13A-6-131
• 13A-6-21 Assault 2nd
• 13A-10-123 Intimidating a Witness
• 13A-6-90 Stalking
• 13A-7-6, 13A-7-7 Burglary 2nd or 3rd
• 13A-7-21 Criminal Mischief 1st
Domestic Violence 3rd 13A-6-132 (3rd or subsequent conviction is C Felony or prior Felony DV or substantially similar from other state or jurisdiction)
• 13A-6-22 Assault 3rd
• 13A-6-23 Menacing
• 13A-6-24 Reckless Endangerment
• 13A-6-25 Criminal Coercion
• 13A-11-8(a) (only (a) applies) Harassment
• 13A-11-32 Criminal Surveillance
• 13A-11-8(b) (only (b) applies) Harassing Communications
• 13A-7-4 Criminal Trespass 3rd
• 13A-7-22, 13A-7-23 Criminal Mischief 3rd or 2nd
• 13A-7-43 Arson 3rd
Domestic Violence by strangulation or suffocation 13A-6-138
• Commits an assault with intent to cause physical harm
• 13A-9-23 Menacing
• By strangulation or suffocation or attempted strangulation or
suffocation.
Violation of Protection Order 13A-6-142
(3rd or subsequent conviction is C Felony)
• Knowingly commits any act prohibited by a domestic violence
protection order or willfully fails to abide by any term of a domestic violence protection order.
1 Event 3 Crimes
In Alabama, charges can conceivably be filed for child abuse and domestic violence, and if sexual abuse is alleged, sexual abuse as well. The fact scenario would need to satisfy the elements of each crime.
Statement of Facts
Father sexually abuses his 16-year-old child during his visitation time. The father places a pistol on the nightstand near the pillow of the child’s head, each time the abuse occurs.
1st Establish Relationship
The child must be under 18 years old for Child Abuse, the child is 16yrs. → CA element
The offender must be the responsible person for CA and for DV the victim is the child. The offender is the father. → CA & DV elements
2nd Establish the Crimes
The crime is sexual abuse, rape, sodomy, production or other sex crime will most likely apply. The type of abuse satisfies → SA
Child abuse occurs under the “willfully abuse” or “willfully maltreat” element(s). It is satisfied because of either the actual abuse or the events surrounding the abuse, e.g., coercion, threats, or bribing the victim. → CA
The placing of the pistol could be argued as Menacing under 13A-6-23 which is an underlying crime of DV 3rd. Menacing is, if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury. The placement of the gun, during each event, is a physical action, that could be argued as intentional – he places it there – not anywhere else – in the victim’s eyesight during the events to “let her know ” he will hurt her if she screams, or fights back. A bullet to the head would lead someone to believe they would suffer serious physical injury→ DV
You can’t charge all this because it’s one incident!
“Aggravated child abuse required proof of two elements that were independent of the underlying homicide, and thus, merger doctrine did not apply, and thus, the court did not err by instructing the jury on felony murder based on aggravated child abuse as a lesser-included offense of capital murder. Contreras v State, 257 So.3d 337 (Ala.Crim.App.2016) PDF ATTACHED, rehearing denied, certiorari quashed, certiorari quashed 257 So.3d 346, dismissal of post-conviction relief affirmed” 2020 WL 3888332.
Blockburger Rule
The government may prosecute an individual for more than one criminal offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not.
Examine the elements, without regard to the evidence.
Each offense has one mutually exclusive element.
DV & CA = father and child; however,
DV = Is the victim any person who is the current spouse, former spouse, parent, step-parent, child, step-child, or person who has a child in common with the defendant, present household member, a person who has or had a dating relationship with the defendant? If yes,…
DV = Did the person by physical action, intentionally place or attempt to place another person in fear of imminent serious physical injury? If yes, DV3d
CA = Child under 18? if yes,
CA = Was the child tortured, willfully abused, cruelly beaten, or otherwise willfully maltreated? if yes, CA.
SA = Was a person sexually abused? Raped? etc. (sometimes more than one crime can be charged for a single incident in sex abuse cases, as well.) If yes, SA
→When a Crime Cannot be Charged←
However, if any one offense is completely subsumed by another (charging theft along with robbery, for example), the two offenses are deemed the same, and punishment is allowed only for one.
Conclusion
Father sexually abuses his 16-year-old child during his visitation time. The father places a pistol on the nightstand near the pillow of the child’s head, each time the abuse occurs.
Charges: DV3rd, CA, and SA
SEE McInvale v State
Intersection of Crimes
Intersection of Crimes
Collecting evidence, asking questions, and understanding each spoke helps create the story of a case, allows for identification of evidence, aids in assisting jurors who ask themselves during deliberation, “How could this happen?”
Domestic violence can affect anyone, any age, gender, race, religion, culture, or sexual orientation.
Domestic violence can take many forms, including abuse that is verbal, physical, sexual, psychological, emotional, and/or financial.
Domestic Violence can include Elder Abuse, Child Abuse, and Exploitation. You must familiarize yourself with the different domestic violence power wheels; however, all of them have one thing in common: Power and Control.
Collection of evidence in domestic violence cases and child abuse cases can be difficult if there is no physical evidence. But most of the time, you will find evidence of power and control. Looking at the wheel, think about collecting evidence or if you are a prosecutor, presenting your case with pieces of each spoke of the wheel.
Each relationship is a little different. With children, whether child physical or sexual abuse; power and coercion occurs. However, the different tactics used by an abuser will vary depending on whether it’s a parent or relative or teacher or preacher. See child abuse wheel.
Children
Collecting evidence, asking questions, and understanding each spoke helps create the story of a case, allows for identification of evidence, aids in assisting jurors who ask themselves during deliberation, “How could this happen?”
Child Abuse: § 26-15-3
(NOT in criminal code §13A)
A responsible person, as defined in Section 26-15-2,
who shall torture, willfully abuse, cruelly beat
or otherwise willfully maltreat any child under the age of 18 years shall, on conviction,
be guilty of a Class C felony.
A responsible person is defined in § 26-15-2
A child’s natural parent
Stepparent
Adoptive parent
Legal guardian
Custodian
or, Any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child.
Child In Common
A Closer Look:
Child in Common
The “child in common” with the defendant aspect seems narrow. However, this can apply to people who never married or who never dated but simply had sex to create the child without any expectation whatsoever.
As the Domestic Violence Resource Prosecutor, I think it could be argued that two individuals who share some sort of legal custody could be viewed as having a “child in common.” If an alleged batterer shares joint legal custody with a grandparent, could they – in theory – have a “child in common?”
Neither code nor case law state a “child in common” relationship must be biological or adoptive. There is not a definition nor any case law. However, this type of custody arrangement is not uncommon and would, in my opinion, be the type of “heightened trust” we look for in domestic violence situations. It also satisfies the “purpose” of the Domestic Violence Code.
Dating Relationship Criminal v. Civil
A Closer Look: Dating Relationship
Criminal v. Civil (Title 30 PFA, only)
For criminal purposes, a dating relationship does not have time parameters. (Compare to a Civil Title 30 Protection from Abuse dating relationship:30-5-2(7)(c).
The best way to think about “dating” for criminal charging purposes, is dating currently or in the past, either will satisfy the criminal code.
HOWEVER, for PFA Civil under title 30, dating excludes couples who broke up 12 months before the date of filing the petition.
Example: Broke up December 2, 2019, and filed for PFA December 2, 2020? More than 12 months, does not qualify for a CIVIL PFA.
Broke up March 1, 2020, filed December 2, 2020? Qualified dating relationship.
TITLE 30 CIVIL Protection from Abuse 30-5-2 Definitions (7)(c) wherein:
An individual who is related in any of the following ways to the person who commits an act of abuse:
(c) Has or had a dating relationship with the defendant. A dating relationship does not include a casual or business relationship or a relationship that ended more than 12 months prior to the filing of the petition for a protection order.
Within the prior 12 months of the filing, (oftentimes referred to as 12 months next to filing) is explained above. This means the relationship had to be intact within the last 12 months from the date of filing for a PFA. Has zero effect on Criminal complaints.
IMPORTANT!
Petitioners for Civil Protection from Abuse Orders may NOT qualify as victims in criminal domestic violence cases!!!
Household Member and Common Law Marriage
CRIMINAL VICTIM v. CIVIL PFA
Compare the 2 code sections.
*Code definition of a household member: excludes non-romantic or non-intimate co-residents
*Code definition of a dating relationship: a current or former relationship of a romantic or intimate nature characterized by the expectation of affectionate or sexual involvement by either party.
Differences between Civil and Criminal Explained
Common law is included in civil but not criminal because people can no longer enter into a common-law marriage in Alabama; however, the addition of “including common-law spouse” language was necessary since it conflicts with the civil marriage recognition. And, because it conflicts with the entire Title 30 Marital and Domestic Relations.
No living arrangement requirement is included because previously, a child/stepchild had to live with the perpetrator. This is no longer required. If a child goes off to college and a parent remarries and begins cohabitation, the new spouse is the stepparent. If a child comes home at Thanksgiving and DV occurs between stepparent and child, a PFA may be appropriate. However previously, despite the two parties being stepparent and stepchild – this relationship would not have qualified because the child did not live with the stepparent.
The same type of situation for a child in common regardless of marital or living status.
A current or former household member is added to civil but not to criminal and there is a time-frame, unlike the dating relationship.
A Relative of a current or former household member who also lived with the defendant is a bit of an outlier for domestic violence situations. I try to impress upon people that DV is about heightened trust and/or intimacy; however, this seems counterintuitive. It is my belief this inclusion reflects many households which have extended family living together. For example, a brother or mother-in-law would be included, if their sibling or child is or was a household member of the perpetrator; however, that person must also satisfy the living with the defendant requirement. Notice it’s a current or former household member, without any time frame limitations.