Perhaps the most emotionally charged criminal situation involves domestic violence. Co-habitants are often married couples, and daily stresses as well as many shared experiences lead to terribly stressful situations when everything breaks down and emotions override judgment. Most who have been involved in situations like these feel deep regret and a desire to take back whatever happened.
Unfortunately, it’s also a serious criminal charge in Missouri. If you have been arrested and charged with anything related to domestic violence in Missouri, you face a difficult legal challenge.The best way to begin the process of protecting your rights is by contacting Attorney John Anthony Picerno for a full consultation, as Attorney Picerno has been serving his clients as a domestic violence attorney for many years.
Below is a look at two issues as they relate to domestic violence charges in Missouri:
Missouri Laws on Assault and Battery
Missouri statutes define assault as “purposely or knowingly placing or attempting to place another in fear of physical harm” and battery as “purposely or knowingly causing physical harm to another with or without a deadly weapon.” Each of these offenses independently are serious charges, but they are only exacerbated when imputed into a domestic violence situation.
If an assault or battery occurs in a domestic violence context, the victim not only faces serious charges, which are detailed below, but the victim is entitled to immediate remedies, including:
- The right to transportation to a safe location provided by police, including to the prosecutor’s office;
- The police are required to make an arrest if they are called twice within a twelve-hour period to handle a domestic violence situation;
- Help from the Clerk of Court in filing an immediate protective order;
- Possession of the residence in question.
Felony vs. Misdemeanor Laws in Missouri
Aside from the remedies available to the alleged victim of abuse, you will have a significant legal challenge in front of you courtesy of the court system if you are arrested for domestic violence. For instance, there are two degrees of assault in Missouri – first and second degree. The difference between the two is state of mind, whereby second degree assault is usually the charge if the alleged offender assaulted the victim “under the influence of sudden passion.” However, in regards to your rights, there isn’t much difference, as both are felonies. The same rules apply for domestic battery, and if a defendant has a prior conviction for related charges, no suspended sentence can be doled out by the judge.
As you see, this is not only an emotional, but also a serious situation. If you have been charged with any domestic violence-related offense, contact Attorney John Anthony Picerno immediately for a consultation.
565.072. 1. A person commits the offense of domestic assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a domestic victim, as the term “domestic victim” is defined under section 565.002.
2. The offense of domestic assault in the first degree is a class B felony unless in the course thereof the person inflicts serious physical injury on the victim, in which case it is a class A felony.
565.073. 1. A person commits the offense of domestic assault in the second degree if the act involves a domestic victim, as the term “domestic victim” is defined under section 565.002, and he or she:
(1) Knowingly causes physical injury to such domestic victim by any means, including but not limited to, use of a deadly weapon or dangerous instrument, or by choking or strangulation; or
(2) Recklessly causes serious physical injury to such domestic victim; or
(3) Recklessly causes physical injury to such domestic victim by means of any deadly weapon.
2. The offense of domestic assault in the second degree is a class D felony.
565.074. 1. A person commits the offense of domestic assault in the third degree if he or she attempts to cause physical injury or knowingly causes physical pain or illness to a domestic victim, as the term “domestic victim” is defined under section 565.002.
2. The offense of domestic assault in the third degree is a class E felony.
565.076. 1. A person commits the offense of domestic assault in the fourth degree if the act involves a domestic victim, as the term “domestic victim” is defined under section 565.002, and:
(1) The person attempts to cause or recklessly causes physical injury, physical pain, or illness to such domestic victim;
(2) With criminal negligence the person causes physical injury to such domestic victim by means of a deadly weapon or dangerous instrument;
(3) The person purposely places such domestic victim in apprehension of immediate physical injury by any means;
(4) The person recklessly engages in conduct which creates a substantial risk of death or serious physical injury to such domestic victim;
(5) The person knowingly causes physical contact with such domestic victim knowing he or she will regard the contact as offensive; or
(6) The person knowingly attempts to cause or causes the isolation of such domestic victim by unreasonably and substantially restricting or limiting his or her access to other persons, telecommunication devices or transportation for the purpose of isolation.
2. The offense of domestic assault in the fourth degree is a class A misdemeanor, unless the person has previously been found guilty of the offense of assault of a domestic victim two or more times, in which case it is a class E felony. The offenses described in this subsection may be against the same domestic victim or against different domestic victims.
565.079. 1. As used in this section, the following terms mean:
(1) “Assault offense”, the offenses of murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter in the first degree, assault in the first degree, assault in the second degree, assault in the third degree, assault in the fourth degree, domestic assault in the first degree, domestic assault in the second degree, domestic assault in the third degree, domestic assault in the fourth degree, or an attempt to commit any of these offenses, or the commission of an offense in another jurisdiction that if committed in this state would constitute the commission of any of the listed offenses;
(2) “Persistent assault offender”, a person who has been found guilty of two or more assault offenses, where such two or more offenses occurred within ten years of the occurrence of the assault offense for which the person is charged;
(3) “Prior assault offender”, a person who has been found guilty of one assault offense, where such prior offense occurred within five years of the occurrence of the assault offense for which the person is charged.
2. No court shall suspend the imposition of sentence as to a prior or persistent assault offender pursuant to this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011 to the contrary notwithstanding, nor shall such person be eligible for parole or probation until such person has served a minimum of six months’ imprisonment.
3. The court shall find the defendant to be a prior assault offender or persistent assault offender, if:
(1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior assault offender or persistent assault offender; and
(2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior assault offender or persistent assault offender; and
(3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior assault offender or persistent assault offender.
4. In a jury trial, such facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.
5. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.
6. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.
7. The defendant may waive proof of the facts alleged.
8. Nothing in this section shall prevent the use of presentence investigations or commitments.
9. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.
10. The findings of guilt shall be prior to the date of commission of the present offense.
11. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilt, to assess and declare the punishment as part of its verdict in cases of prior assault offenders or persistent assault offenders.
12. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon.
13. The court shall sentence a person who has been found to be a prior assault offender and is found guilty of a class B, C, or D felony under this chapter to the authorized term of imprisonment for the class one class step higher than the offense for which the person was found guilty.
14. The court shall sentence a person who has been found to be a persistent assault offender and is found guilty of a class C or D felony under this chapter to the authorized term of imprisonment for the class two steps higher than the offense for which the person was found guilty. A person found to be a persistent assault offender who is found guilty of a class B felony shall be sentenced to the authorized term of imprisonment for a class A felony.