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Domestic Violence: in the Presence of a Child


Domestic Violence in the Presence of a Child: Attorneys

Domestic Violence in the Presence of a Child - Attorneys

Legal Definition:

Domestic violence in the presence of a child is the commission or attempt to commit domestic violence in the presence of a child by one cohabitant against another.

Domestic Violence in the Presence of a Child

Utah Code §76-5-109.1

Degree

Depending on the facts, domestic violence in the presence of a child can be charged as a 3rd degree felony or a class B misdemeanor.

Elements

A defendant commits a 3rd degree felony domestic violence in the presence of a child when they commit domestic violence in the presence of a child if the defendant commits or attempts to commit criminal homicide, against a cohabitant in the presence of a child.
(Utah Code Ann. §77-36-102, §76-5-109.1(2)(a), §78B-7-102)

A defendant commits a 3rd degree felony domestic violence in the presence of a child when they intentionally cause serious bodily injury to a cohabitant or use a dangerous weapon or force likely to produce death or serious bodily injury against a cohabitant, in the presence of a child.

A defendant commits a class B misdemeanor domestic violence in the presence of a child when, under circumstances not amounting to a 3rd degree felony domestic violence in the presence of a child, commits an act of domestic violence in the presence of a child.

Fine

3rd degree felony: A fine not to exceed $5,000, plus a 90% surcharge.
(Utah Code Ann. §76-3-301(a)(b), Utah Code Ann. §51-9-401)
Class B misdemeanor: A fine not to exceed $1,000, plus a 90% surcharge.
(Utah Code Ann. §76-3-301(1)(d), Utah Code Ann. §51-9-401)

Restitution

The court may order the accused to pay restitution if convicted of this crime.
(Utah Code Ann. §77-38a-301)

Imprisonment

3rd degree felony: A term of imprisonment not to exceed 5 years.
(Utah Code Ann. §76-3-203(3))
Class B misdemeanor: A term of imprisonment not to exceed 6 months.
(Utah Code Ann. §76-3-204(2))

Enhancement: If the Utah Courts find that a dangerous weapon was used in the commission of a felony, the minimum sentence will be increased by one year. (A minimum sentence of 0 years becomes a minimum of 1 year). Additionally, the maximum sentence for a 2nd or 3rd degree felony may be increased by 5 years.
(Utah Code Ann. §76-3-203.8(2))

Bail

Because of the unique and highly emotional nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of an offender who has been arrested for domestic violence, it was the finding of the Utah Legislature that domestic violence crimes, are crimes for which bail may be denied if there is substantial evidence to support the charge, and if the court finds by clear and convincing evidence that he alleged perpetrator would constitute a substantial danger to an alleged victim of domestic violence if released on bail.
(Utah Code Ann. §76-6-2.5(12))

Addition Sentence for Domestic Violence

In addition to penalties otherwise provided by law, the court may:

  • Order defendant to participate in an electronic or other type of monitoring program; and/or
  • Order defendant to pay all or part of the costs of counseling incurred by the victim and any children affected by or exposed to the domestic violence offense;

The court will:

  • Order cost of any services or treatment provided to the victim and affected children of the victim; and
  • Order the defendant to obtain and satisfactorily complete treatment or therapy in a domestic violence treatment program, that is licensed by Utah’s Department of Human Services, unless the court finds that there is no licensed program reasonably available or that the treatment or therapy is not necessary.
    (Utah Code Ann. §77-36-5(3)(4) and (5))
DNA Specimen Analysis

A defendant convicted of a 3rd degree felony domestic violence in the presence of a child must provide a DNA specimen.
(Utah Code Ann. §53-10-403(2))

Firearms

A defendant convicted of domestic violence in the presence of a child may not posses, use or have control of a firearm or ammunition for life.
(18 U.S.C. §922(g)(9))

Note

A charge of domestic violence in the presence of a child is separate and distinct from - and is in addition to - a charge of domestic violence where the victim is a cohabitant. Either or both charges may be filed by the prosecutor.

A defendant who commits a violation of domestic violence in the presence of a child when more than one child is present, is guilty of one offense of domestic violence in the presence of a child regarding each child present when the violation occurs.
(Utah Code Ann. §76-5-109.1(4))


Other Criminal Charges

Learn more about crimes related to Child Abandonment (Domestic Violence). If you have any questions, please feel free to call our office at (801) 505-1586.