Domestic Violence Involving a Firearm

Prosecutors treat domestic violence crimes seriously, especially when a gun is involved. If you are charged with domestic violence involving a firearm, you should discuss your case with Phoenix domestic violence lawyer James E. Novak. As a former prosecutor, he leverages his insights from his prior work experience to strongly defend clients charged with domestic violence and other crimes.

Domestic violence occurs when a perpetrator commits specific violent crimes, and the victim and the perpetrator share a domestic or family relationship. These people may be married, parents of the same child or children, cohabitants of a household, or in a romantic or sexual relationship. Domestic violence may also occur when the victim or perpetrator of violence is impregnated by the other or where the victim is related to the perpetrator by blood or court order as a grandparent, stepparent, grandchild, step-grandchild, or in-law. When a victim is a child who lives or has lived in the same household as the perpetrator and is related by blood to the perpetrator’s former spouse or someone who lives in the same household, the crime will also count as domestic violence.

Under Arizona Revised Statutes (A.R.S.) section 13-3601, if an officer comes to your house due to a suspected domestic violence situation, he can question you and anyone else present to determine whether a firearm is present on the premises. If the officer finds the firearm because you consented to a search or the firearm was in plain view, the officer can temporarily seize the firearm if the officer reasonably believes it would expose the victim or someone else to risk of death or serious bodily injury.

When the firearm is owned or possessed by the victim, the officer is not allowed to seize it unless probable cause exists to believe both of the people independently perpetrated a domestic violence act. For example, if you punched your wife, and two hours later your wife threatened you with her firearm, the officer might have probable cause to seize your wife’s firearm.

Where the domestic violence involves discharge, use, or threatening exhibition of a dangerous instrument or deadly weapon, and the officer has probable cause believe the crime has been perpetrated and the person to be arrested is at least 15, the officer must arrest whether or not there is a warrant. If both parties are to be arrested in connection with domestic violence involving a firearm, the officer needs to have probable cause to believe both parties independently perpetrated an act of domestic violence. Self-defense is not an independent act for these purposes. In the prior example, if your wife immediately holds up the firearm to defend against being punched, this may be considered as self-defense. If you are facing domestic violence charges, consulting with an attorney can help you understand the defenses available in your case.

A prosecutor who has reasonable cause to believe that returning the firearm may endanger the victim, the reporter of the assault, or someone else in the household must file a notice of intent to retain the firearm with the court. The notice must state that the firearm will not be retained for more than six months after the seizure date. To contest the seizure, the owner of the firearm may request a hearing to seek the return of the firearm, to dispute the grounds for seizure, or to ask that it be returned sooner. The court should hold a hearing within 10 days of receiving the hearing request. It must order the return of the firearm unless it decides the return of the firearm may endanger the victim, the reporter of the domestic violence, or someone else in the household.

Most domestic violence charges are misdemeanor charges. However, the sentence for domestic violence misdemeanors can include jail time and fines. The specific penalties depend on whether the prosecutor charges you with a misdemeanor or felony, as well as the class of misdemeanor or felony charged. For example, if you’re charged with class 3 felony domestic violence due to your use of a weapon, you can face 5-14 years of incarceration.

Furthermore, if you’re convicted of domestic violence, you can permanently lose your Second Amendment right to bear arms. You cannot have a judgment of guilt set aside if you were convicted of a crime involving the use or exhibition of a deadly weapon such as a firearm.

In addition to the domestic violence charge, you may face separate charges for firearm offenses, which may carry additional penalties.

If you are charged with domestic violence involving a firearm, you should discuss your situation with seasoned criminal defense attorney James E. Novak. Mr. Novak has years of experience representing people charged with domestic violence and firearm crimes in Phoenix along with Gilbert, Chandler, Mesa, and Maricopa County. Contact him at (480) 413-1499 or complete our online form.