1. Why am I charged with Felony Assault in the Fourth Degree?

Domestic Violence can encompass many crimes. The most common of these crimes is Assault in the Fourth Degree and Harassment. However, Oregon law provides that certain factors “aggravate” the crime of Assault in the Fourth Degree from a misdemeanor to a felony. These factors are:

A. the assault was was witnessed or committed in the immediate presence of a minor child of the Defendant or the Victim or a minor child residing with Defendant or Victim;
B. The Defendant has three or more prior convictions for Domestic Violence in Oregon or any other state;
C. The Defendant was previously convicted of Domestic Violence against the same Victim.

Given these factors, it is possible to be charged with Assault in the Fourth Degree, both as a Felony and as a Misdemeanor.

2. The Judge ordered me not to have contact, but I need to be home with my family. Is there something that I can do?

Something can be done, but it is not something that you, the Defendant, can do. It is up to the alleged victim to initiate.

The alleged victim can contact the DA’s office to arrange to take a class on Domestic Violence. Once that class is completed, the Victim can ask the class coordinator to file a motion with the court to lift the No Contact Order. She/he will then appear in court and explain to the judge both what she/he learned in the class and how she/he plans to utilize this learning, and also why it is necessary and/or important for the Defendant to return to the home or to have contact.

Sometimes a court will modify the No Contact Order to fit certain circumstances, such as parenting time or to permit a Defendant to run a business with the Victim. These decisions are entirely up to the court, however. The court will be looking for

• assurances that future violence will not occur;
• that current or future orders will be obeyed;
• that the Defendant will not try to improperly influence or coerce the Victim or any witnesses, etc.

3. But I never hit her!

It is possible to not have committed any act of violence and yet still be subject to a criminal charge of Domestic Violence. For example, if, during a domestic squabble (non-violent argument) the wife expresses a desire to call the police and husband yanks out the phone cord, it is possible that he may be charged with Interfering With Making a Report. Or perhaps a wife, out of anger or frustration, shoves her husband in an offensive manner yet no injury results. This would be the crime of Harassment.

In such a case, “hitting” as it is commonly understood need not have occurred for a crime to be considered “Domestic Violence”.

4. No, I mean I never did anything to her!

It happens quite often that a report of Domestic Violence is purely fabricated. A lie.

These are highly emotional circumstances and sometimes good people think in very abnormal ways. Sometimes, in an effort to control the other spouse, one spouse may call the police and report violence where none has been committed.

This kind of thing might happen where one spouse tries to take advantage of the other spouse in a divorce or restraining order context. Quite often there is money or property involved, which can be a substantial motivation to fabricate a story to the police.

It is very unfortunate that this happens, and often it is difficult to distinguish true domestic violence from something like this. The police did not see it happen, so they simply must take the word of the complaining party. It is demeaning to those who are truly the victims of actual domestic violence. However, with an adamant and insentient accuser, it can be very difficult for the legal system to decipher and often is treated as true.

People in this situation should immediately seek the assistance of a knowledgeable and competent Domestic Violence Defense attorney to aid and assist in preparing an adequate defense to these spurious charges.

5. Am I going to jail?

Jail certainly is on the table here. However, the determination of whether or not you will go to jail is a determination based upon such factors as the seriousness of the conduct alleged, your criminal history, the nature of the charges filed, and so forth.

Those who take the Deferred Sentencing Program will likely not face jail time, unless they are revoked from the program for one reason or another.

6. I heard that I cannot possess guns. Does this mean I can’t hunt?

Yes, it’s true. Under the laws of the State of Oregon and United States federal government, one accused of or convicted of a crime constituting domestic violence must be prohibited from possessing firearms and ammunition. Possession also means “access to”, so that if your wife suddenly finds herself the beneficiary of a nice gun collection, you will still be found in violation of this law as you have access to these weapons. Oftentimes this violation would be a matter for state laws, but if serious enough, could result in federal prosecution.

There are many collateral consequences for someone facing or suffering from the effects of a criminal charge or conviction for domestic violence.

7. What if I’m convicted of this? Does that mean I can’t hunt forever?

Not exactly f-o-r-e-v-e-r. Under federal law, anyone convicted of a crime constituting “domestic violence” cannot possess firearms or ammunition. However, the federal law provides a mechanism, called Restoration of Rights, whereby you can apply to be allowed to possess guns … and thereby resume hunting again.

You must wait 5 years before you can take advantage of this procedure. There are also some other conditions which you must meet. A CAPETTI GROUP attorney can help you with this to help you determine if you are eligible. Call today for a consultation.

8. I don’t need to worry because she’s too timid to testify in front of everybody. She won’t show up for trial.

WRONG! We can almost guarantee you that she will be there and she will sing like a bird! In fact, we can predict with almost perfect accuracy whether or not a Victim will show up by whether or not a prospective client tells us that we don’t have to prepare for trial because she won’t show up (this really means that the prospective client doesn’t want to pay a trial fee!)

At The CAPETTI GROUP Law Offices, we take cases with one of two strategies in mind: fight all the way to trial, or negotiate the best deal for your given facts and criminal history. We never allow a client to divert our attention from the fact that a trial is looming (and we must be ready) with the idea that we could win just by the Victim not showing up. They almost always do. And we’re always ready for them.

9. What happens if the Victim doesn’t show up?

There are two ways to look at the answer to this question:

First, if the Victim has not been subpoenaed to your trial, then nothing will happen to him/her, and your case should be dismissed for lack of a complaining witness (though this isn’t always true).

Second, if the Victim did receive a subpoena for your trial, then not showing up is tantamount to contempt (because it is an order from the court). The DA may prosecute him/her for disobeying the court’s order. Most DA’s have the couth not to do that, but some DA’s are more interested in beefing up their prosecution statistics and will prosecute the proverbial ham sandwich—including the reluctant domestic violence victim. That’s too bad that they are so narrow sighted.

IF the Victim does not show up, then the DA doesn’t have a complaining witness/Victim and your case will be dismissed. Again, as stated above, this isn’t always true, though.

IMPORTANT NOTE: It is never proper for anyone to interfere with a witness in a litigated matter—causing them to change their testimony or fail to appear in court—as this constitutes the crime of “Witness Tampering”, which is a class C Felony (5 years prison and a fine of $125,000.00 maximum). At The CAPETTI GROUP Law Offices, we advise our clients and other witnesses never—but NEVER—try to improperly influence a witness, even if that person is a wife, husband, son or daughter.

10. What if my spouse says that he/she will not enforce the No Contact Order?

You will still be in violation if you have contact with him/her. In small communities, the cops who arrested you will probably remember this for some time. And believe me, he knows of the No Contact Order. Chances are good that he’ll be checking up on you from time to time.

Not only that, but if things got out of hand once, perhaps they might get out of hand again. And there you sit, in violation of a court order to stay away, and she’s/he’s steamed at you, ready/willing/and able to hurt you. You do the math.

11. The cops didn’t get the story straight. Who do I go to to tell what really happened?

You go to the DA’s office—or the cop who took the report—but you don’t go alone. In these situations, it is often a good idea for a “victim” to get his/her own attorney. He/She will quickly learn that the DA is not his/her attorney and that no one is really acting on his/her behalf or best interest.

A more simple means might be to write out your story, or document what exactly it was the police got wrong. You can sign it in front of a Notary Public and provide copies to both the DA (or the cop) and the defense attorney. Be sure to date it so that no one can say that you never tried to correct the incomplete or incorrect story.

11. How did you get my name?

One of the most common questions that come up in this context is “How did you get my name?”

Because we’ve been defending domestic violence cases for many years now, we have come to see too many cases where folks come to us way too late for us to be as effective as we know we could be. So we took it upon ourselves to go out and find YOU, so that we could send you some very vital information of which you may not be presently aware.

On a regular basis we go to almost every police department, Detox unit, court, and jail in the area to learn who was recently arrested for domestic violence. Sometimes you can find this information in a newspaper or on the Internet.

Another common question is “Why did I get two letters?”

Due to the volume of information we get from the various police agencies, jails, courts, and Detox units, sometimes we will get the same name twice (or more). On more rare occasions, we will get information that you have two addresses (this often happens in a combined situation where a person gets a DUII and a charge of Domestic Violence and is required to relocate) and then we will send a letter to each address.

In any case, our objective is solely to ensure that you get the valuable information contained within those letters. We hope that you found the information contained within our letter to be useful, informative, and helpful. We look forward to assisting you further. Please call today to arrange for a time for us to explain what your options are and what we can do for you.

12. But I didn’t find you in the phone book!

We can explain this, but it take a little bit more than we like to allow in this limited space. Click here to understand one of the most fundamental reasons why we're not listed in QWEST DEX.