One of the biggest issues facing both a defendant and a victim in an Oregon domestic violence case is a no-contact order.
The difficulties caused by a no-contact order begin with an arrest for domestic violence. Due to Oregon's tough stance on domestic violence, the majority of domestic disturbances that involve the police will result in an arrest.
Oregon laws mandate that if a law enforcement officer investigating a domestic disturbance finds probable cause that an assault has occurred, or even that one person involved in the disturbance has placed the other person in fear of physical harm, the officer must arrest and take the alleged assailant into custody. In other words, an arrest is mandatory in an Oregon domestic disturbance case any time there is evidence of an assault or even a threatened assault.
There doesn't need to be physical contact to trigger an arrest. All it takes is a single allegation that a threat of violence was made or that one party was frightened that violence would occur and someone is going to jail. Under the law, the police have no latitude; an arrest is mandatory.
While the mandatory arrest law was designed to eliminate letting alleged domestic violence offenders off with a warning, it's easy to imagine a situation where the law could be abused.
Two people in a relationship can argue. It's happened to everyone. Words are exchanged, and tempers can flare. If at this point, one person decides to retaliate against the other by calling the police and telling them they feel threatened by their partner's behavior, a simple argument involving a hasty decision made in anger will swiftly become a negative experience that may affect both people for months or even years to come.
Once angry words set the law into motion, the results are inevitable and potentially devastating. The person arrested will be handcuffed, booked, and placed in jail.
They will remain in jail until bail is set, paid, and they are conditionally released awaiting trial on the domestic violence charges made against them.
It is at this point that the no-contact order comes into play.
Oregon law also mandates that when a defendant charged with a domestic violence offense is released from custody, the court with jurisdiction over the matter shall include as a condition of release that the defendant has no contact with the victim.
In the majority of cases, the no-contact order remains in effect until either the defendant is sentenced or the case is dismissed.
It should be noted that upon conviction for domestic violence the court can make a no-contact order a condition of probation. This means that the defendant will continue to be precluded from having contact with the victim as long as they are on probation, usually up to one year.
This will obviously continue any hardship the victim experiences as a result of the pretrial no-contact order.
The same Oregon statute that mandates no-contact orders in domestic violence situation also provides a way for the orders to be waived.
This involves a two-step process:
These requirements make waiving a no-contact order difficult. Not only must the victim initiate the process, he or she must show that not only is the waiver in the best interest of the parties, it is also in the best interest of the community at large.
It is not enough to demonstrate to the court that the no-contact order is causing the victim hardship. It must also be shown that the no-contact order is also impacting the community where the victim lives.
Many victims are unlikely to be willing to petition the court to modify a no-contact order. This is especially true in cases where the victim used Oregon's mandatory domestic violence arrest rule to retaliate against the victim. They may be afraid that petitioning the court to waive the no-contact order will allow the prosecutor and the judge to see that they lied to the police about the defendant's conduct.
Furthermore, it is likely that the prosecutor assigned to the case will oppose a waiver of the no-contact order and will argue against the victim's Petition. After all, it was the victim who provided the evidence that gave the police probable cause to arrest the defendant.
That evidence makes up a large part of the state's case against the defendant. Allowing a waiver of the no-contact order to proceed may undermine their contention that the defendant is guilty of an act of domestic violence. After all, if they were, wouldn't the victim want nothing to do with them?
The State of Oregon takes domestic violence seriously. This means that you need to take any domestic violence charges against you seriously as well. An arrest or conviction for a domestic violence crime will include a no contact order that can have negative repercussions that could last quite some time. Take the time to contact our office today for a free and confidential consultation to discuss your options.
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