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What is domestic violence in the presence of a child? By a Utah Criminal Defense Lawyer

criminal defense lawyer, domestic violence, domestic violence in the presence of a child

Domestic violence in the presence of a child

As a criminal defense lawyer, the most concerning problem with the law on domestic violence in the presence of a child that most of my clients face is the fact that a person may be charged with the crime even if the act of domestic violence was committed without the child ever witnessing it.

While I empathize with the victim, what’s much more likely is a situation something like this:

Husband and wife put kid down to sleep. Tension in the marriage has been building for weeks and the only time they really have to talk is late at night. The conversation escalates into an argument about whether one spouse has been faithful or not. One party (just as often the wife as the husband) grabs the phone and smashes it on the ground.

That act is criminal mischief, a Domestic Violence offense, and is not a crime in and of itself, rather, an act tagged as domestic violence.

But this act having happened while a child was asleep in the other room opens up the parties to an ADDITIONAL charge (very unwarranted and really against the intent of the law) of domestic violence in the presence of a child even though no child was ever made a witness or was put in harm’s way.

What is domestic violence in the presence of a child? A Utah criminal defense lawyer explains

Utah Code 76-5-109.1 defines domestic violence in the presence of a child as having committed domestic violence (a) in the presence of a child; or (b) having knowledge that a child is present and may see or hear an act of domestic violence.

Without knowledge that a child is present and may see or hear an act of domestic violence, DV only becomes a tag or a label to a variety of crimes including criminal mischief, disorderly conduct, battery, etc. (for the complete list of crimes that can be tagged as Domestic Violence Crimes, please read our previous post).

Domestic violence is not a crime in and of itself. Domestic violence in the presence of a child is a crime.

What is the penalty for conviction of a domestic violence in the presence of a child crime?

In Utah, domestic violence in the presence of a child is usually charged as a Class B misdemeanor. However, this charge can be enhanced to third-degree felony if the underlying charge is an “aggravated” charge.

When convicted of this crime, you can face serious consequences such as jail time, fines, cancellation of your right to possession of firearms for life, and denial of a bail.

Fines

Under Utah Code Ann. 76-3-301 (a)(b) and Utah Code Ann 51-9-401, if you are convicted for domestic violence crimes in the presence of a child as enhanced to third-degree felony, you are slapped with a fine of not exceeding $5000 plus a surcharge of 90%.

Under Utah Code Ann. 76-3-301 (1)(d), and Utah Code Ann, 51-9-401, fines for domestic violence in the presence of a child as Class B Misdemeanor is not exceeding $1000 plus a surcharge of 90%.

Imprisonment

You can also be put in jail for a period not exceeding 5 years for third-degree felony, and not exceeding 6 months for class B misdemeanor.

Note that if you are convicted of domestic violence in the presence of a child where more than one child is present, you will be guilty of the offense and will serve the penalty for each child.

Suspension of Gun Rights

The Federal Gun Control Act of 1968 bans the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence or MCDV. For more on this, please read our previous post.

What should you do when you are accused of having committed domestic violence in the presence of a child?

If you have been accused of domestic violence crime in the presence of a child or other crimes, contact Attorney Thomas Weber, (801) 845-0691, a leading criminal defense lawyer in Salt Lake City, Utah.

Attorney Thomas Weber is an experienced, aggressive, and careful criminal defense lawyer who understands the intricacies and nuances of domestic violence in the presence of a child crime and other domestic violence crimes and how to defend against these charges to be stripped of the DV label.

Don’t delay. Avoid a conviction. Contact Utah Criminal Defense Lawyer Thomas Weber today.