All 805 Does Is It Reduces the Ability of Prosecutors to Get Enhanced up to Life Sentences on People
Video Transcribed: My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for Wirth Law Office in Cherokee County and I posted a video a little while back, I think it was a week ago, about State Question 805 and not really pro or against it, but to kind of explain some stuff around it, and we had a comment by someone named LG, had a whole bunch of questions. I’m going to break this up in a couple videos, otherwise it’s a 20 minute video answer.
The first set of questions LG had was about the opposing side claims, people who are opposed to State Question 805. The first question is will this basically override the domestic abuse with prior pattern of physical abuse, and would it hurt future legislation because this is a constitutional amendment?
Well, as to the constitutional part, Constitution changes all the time for stuff, we’ve seen that over the past few years. There are processes. When talking about Constitution, we’re talking about Oklahoma’s State Constitution.
There are processes just like any legislative process where you can amend, you can repeal, pull something out, you can propose new constitutional changes, it’s never written in stone, it just requires that you follow the correct procedures to change.
Now, as it relates to domestic what past pattern of physical abuse, that’s actually a better charge for prosecutors to charge. The State Question 805 doesn’t impact their ability to charge that at all, all 805 does is it reduces the ability of prosecutors to get enhanced up to life sentences on people.
Past pattern of physical violence, there we go, on domestic abuse is located under Title 21, Section 644.1, and why I say it’s a little bit better is for this reason I’m getting ready to read, who it defines as a family member for domestic abuse.
This can be a current or former spouse, a present spouse of a former spouse, parents, foster parent, child, person otherwise related by blood or marriage, that’s the one I’m going to point out in a second, person with whom defendant is in a dating relationship, individual with whom the defendant has a child, person who formerly lived in the same household as the defendant, a person living in the same household as defendant, a current intimate partner of a former intimate partner or any combination of.
This is really the old definition of domestic abuse relationship and November 1st, 2019 it changed. The new definition as it relates to what a household member is, is much more limited. Currently domestic violence if it’s charged is just a regular domestic violence, either misdemeanor or felony.
Can only be charged if the victim is a parent, grandparent, step-parent, adoptive parent or foster parent, children including grandchildren, stepchildren, adopted children and foster children and here’s the one that really catches, persons otherwise related by blood or marriage living in the same household.
Now, that used to have an or instead of an and, that first set I read to you, that past pattern of domestic violence that is you heard had an and in it, it says, had an or sorry, a person otherwise related by blood or marriage and then it stopped and then personal person living in the same household, so now you have to have blood or marriage relation and live in the same household for domestic.
This past pattern is actually a better charge for prosecutors to charge against people if they’re wanting to have a much more broad scope of who a victim in it is, also it carries 10 years and the regular domestic assault and battery felony only carries four years.
Now, one thing the prosecutors do have to prove with this, that they don’t have to prove with a regular domestic, is you have to show the past pattern of incidents, have to be shown by a third party witness or direct evidence.
It can’t just be, he said, she said for this, but it does go up to a 10 year penalty on it. It is open to a much, much more broader range of people and so this is a charge that carries a lot more teeth to it than the regular domestic assault and battery charge.
So, no it’s still there. It can still be used, prosecutors can still file it. Once again, 805 only impacts the punishment, so like domestic assault and battery, felony is going to be limited to a four year DOC sentence. This past pattern is limited to a 10 year, you’re not going to be able to get life on one of these.
That leads into the next question by LG, which was whether this would shorten the length of sentences to a maximum of three years and eliminate the possibility of jail time altogether? No. This misdemeanor or felony both carry imprisonment time or incarceration time I should say, the misdemeanor carries up to a year in the county jail, the felony like I said carries up to four years in DOC.
I’m not sure where you got the three years domestic assault and battery by strangulation as a first offense felony, meaning that you don’t have to have a prior domestic if you commit a strangulation domestic violence, it’s a felony when you’re first charge.
That carries three years, so maybe that’s where the confusion was. But the penalties for domestic violence, or first domestic violence offense, a misdemeanor is up to a year, second one is up to four years in prison, if it’s strangulation, it’s up to three years in prison. If you can show the past pattern and meet all the requirements of that statute, it’s up to 10 years in prison.
What State Question 805 does is, it doesn’t allow those prison years to increase, so if you have prior convictions for other felonies, like the video I’ve did on taking trees. If you have a prior felony for illegally cutting timber, for not returning rental property, then your domestic violence charge doesn’t get enhanced at 10 years or life sentence.
The final part in this opposing claims that LG talks about is statutory defined violent offenses are more difficult to prosecute. That’s a yes and a no. No, they’re not more difficult just because they’re a violent crime, it’s just because violent crimes are sometimes the more intense type of crimes.
They maybe require a little bit more proof. So for example, it’s kind of a common sense thing on that, I understand this is an opposition claim, but if someone has been charged with murder, then the prosecution and the state are going to have to do more to prove that than if they’ve been charged with a speeding ticket.
The part of proving this isn’t more difficult because it’s a violent crime, it’s just because what we list as violent crimes are usually the more serious offense which require more investigation of. Sex offenses for instance, those require a lot more investigation and to take it to a jury trial, it requires more proof of it to get a jury to convict than let’s say a misdemeanor, shoplifting or something.
You’re going to have to lay more evidence on because you’re asking for more time than prison, you’re asking for a felony conviction, so you’re not more difficult because they are or not on the violent crime list. It just depends on what the charge is.
All crimes one thing you tell a jury to explain this is, it’s like a cake. All crimes you have elements that you have to put in and at the end if you’ve proven all of them, you get a conviction. Just like a cake, you put in all the proper ingredients in the right way, at the end you get a cake. If I am proving that it was intentional and willful, unlawful physical contact with a person who is in a relationship or a household member, then I’m going to get a domestic conviction there.
It really goes back to whatever the charge is rather than the violent crime, par State Question 805 doesn’t have anything to do with that. Prosecutors would still have the same burden on them to prove a murder under the laws that is now as they would under 805. They would still have to prove everything the same. The only differences is they wouldn’t be able to ask for more time in prison than what the charge carries for a nonviolent offense.
If they’re trying to prove a nonviolent offense like a grand larceny, they still have to prove everything the same as they would. Now, the only differences is when the jury goes to a assigned punishment, the jury doesn’t get to go up to 10 years or life on it. They’re bound by whatever the actual punishment is in the statute.
Those are all the opposition claims. I’ll do another video with the supporting claim questions you had LG, but if you have questions about this, feel free to give us a call, hit up our website, tahlequahattorney.com, to speak with a Tahlequah attorney. If you find yourself needing legal representation and need some help with these type of issues. Thank you.