The first question clients often ask when they hire us in their domestic violence case is “Will I be Permitted to Contact the Alleged Victim?” There are many complications and challenges in a domestic violence case. The no contact order is among the most serious and most immediate.
If you are involved in domestic violence situation, it is important to understand the no contact order and the consequences for violation. The consequences can be severe including jail time, additional charges, and even enhanced felony domestic violence and/or stalking charges.
It is highly advisable that you seek the guidance of an experienced criminal defense attorney that can explain and lead you through the process.
No Turning Back Once Domestic Violence Charges are Filed
Once charges are filed, the prosecutor will rarely just drop the charges even if it is the wishes of the alleged victim.
Many times, the person that made the call to the police quickly realizes the mistake that he or she made. Unfortunately, there is no turning back.
This means that neither law enforcement nor the prosecutor will simply drop the charges because the alleged victim has decided not to pursue the charges. This is the case even if the alleged victim claims that there was no domestic violence and that the call to law enforcement was a mistake.
Instead, the case will proceed through the criminal courts. The first thing that happens in this process is the issuance of a no-contact order. These are very serious orders, violation of which can result in jail time, revocation of conditions of release and even felony charges in some cases.
No Contact Order Issued by Court in Every Domestic Violence Case
Conditions of release are issued in every criminal case. The no contact provision is among them and is taken very seriously by the New Mexico courts.
Upon charges for domestic violence, an a no contact order will be issued. No contact with the alleged victim is invariably ordered as part of the conditions of release for domestic violence cases.
In order to legally have contact with the alleged victim, your attorney must file a Motion for Modification of Conditions of Release. The alleged victim will have to agree to the contact. The prosecutor or a victim advocate will contact the alleged victim to insure that these are in fact his or her wishes. Even then, most judges will require a hearing. A change in the conditions of release cannot typically be entered simply by agreement of the parties.
Lifting of No-Contact Order at Discretion of Judge
The no contact order is not particularly easy to get lifted. It is at the discretion of the judge and almost always requires that the alleged victim appear in court and meet with the prosecutor to provide assurances of the safety of the alleged victim.
It is up to the judge whether or not to allow contact with the alleged victim. Some judges will not allow any contact while a case is pending no matter what the wishes of the alleged victim or the impact on the family.
This position can be very hard on families due to the financial and emotional stress that these conditions place on the family. The result is that the alleged victim, the children and the alleged defendant will all now suffer the consequences of a misguided call to the police.
This is a very sensitive area. You should proceed with great caution. You will find you are in a bit of a Catch 22. You cannot take care of your family, including the alleged victim, without addressing this important issue. You cannot even discuss the issue with the alleged victim without violating the Order of Protection put in place by the Court.
Necessity of Legal Representation for Alleged Victim
It may be wise for both sides to get an attorney so that they can communicate through the attorneys without risk of violation and arrest while also providing some level of assurance to the court that the alleged victim is in fact safe.
This situation can be very difficult for the entire family, including the alleged victim. On the other hand, judges and prosecutors must protect victims of domestic violence. It is not always clear to the judge or the prosecutor whether the alleged victim is recanting due to a lack of domestic violence or some other reason which may actually expose a victim to even greater potential harm.
It is a difficult situation for all, including the judge. The best option may be for the alleged victim to get his or her own attorney so that attorney and the defendant’s attorney can address this thorny situation without risk of violation and arrest while also providing some level of reassurance to the court that the alleged victim is in fact safe.
Seek Legal Guidance
Whether you are the alleged victim or the defendant, it is very important to seek the guidance of an experienced domestic violence attorney. The consequences can be quite grave in case of missteps.
The Albuquerque lawyers at Collins & Collins, P.C. can help. Feel free to contact us for a free case review.