Mandatory Arrest Laws and Domestic Violence

By Greg Smith and Jordan Haycock posted in Violent Crimes on Friday, September 1, 2017

Older Americans remember the good old days when you would not be arrested for something unless the police actually had “probable cause” for making an arrest. After all, most people are horrified by the thought of being handcuffed, frisked, put in a police car, escorted to jail, posting bail, and waiting several hours to get out. However, the “rules” have changed, and many of our clients feel they can be arrested for sneezing wrong.

In theory (based on what our Supreme Court has stated), there are only some circumstances in which the police may make an arrest:

  1. The police officer personally witnessed a crime;
  2. The police officer has probable cause to believe that person arrested committed a crime.
  3. The police officer has an arrest warrant that has been issued by a judge.

In other words, police officers should not be arresting people just because they “feel like it,” or because they simply think someone might have done “something wrong.” Police officers are supposed to be to justify their arrest usually by showing some substantial evidence that led them to believe that probable cause existed for them to make the arrest.

Based on a recent report, about half the states in America have mandatory arrest provisions in domestic violence cases. While no rational person condones illegal violence towards others, many of our clients feel the new mandatory arrest laws are the cause of countless frivolous and inappropriate arrests. The current legal trend requires (or at least strongly pressures) police officers to make an arrest first and ask questions later no matter the consequences.

Utah is one the states leading this trend. Utah Code Ann. § 77-36-2.2. In Utah, many of our clients feel if the police are called, someone (most likely the boyfriend or husband) is going to jail. They feel the police often make the arrest on a quick biased judgment and without adequate investigation, and that they err on the side of caution to protect their own career and to avoid negative publicity. This causes innocent individuals and families to suffer a lifetime of penalties in instances when no crime occurred, and costly legal fees.

The police (and prosecutors) often assume the following types of behaviors are criminal domestic violence when they may not be:

  • Briefly blocking the path of a lover, spouse, or household member;
  • Saying hurtful and mean things to a lover, spouse, or household member;
  • Yelling at your lover, spouse, or another household member, even if the neighbors hear it;
  • Using profanity during an argument with a lover, spouse, or household member;
  • Restraining an intimate partner to prevent them from hurting themselves or another family member;
  • Holding the arm or hand of a lover, spouse, or household member while arguing;
  • Engaging in horseplay, wrestling matches, and pillow fights or similar mock combat even if accidents result; or
  • Using self-defense to stop a lover, spouse, or household member from attacking you.2

The distressing reality is that many people in these situations simply presume they have been properly arrested and charged. Then, they plead guilty and suffer the myriad of consequences when in fact they were not guilty of anything.3 Human beings make mistakes, yell, argue, and act immaturely at times. However, it is absurd to classify a single, out-of-character, nonviolent act as “criminal.” Further, being “angry” is not an element of domestic violence, and typically, those who get arrested were those who simply expressing their anger.

Our best advice: follow the officer’s advice when he arrests you: “Anything you do or say can be used against you”.   Do not resist the arrest. Stop talking because you’re not going to talk your way out of the arrest and by blabbing you’ll run the very real risk of having your words taken out of context.  So, bite your tongue, and hold it together till you or your family hires a lawyer and you can speak with to us.

Call us now at 801-651-1512 for a free consultation.


2. https://www.ejfi.org/DV/dv-20.htm Paul G. Stuckle
3. Id.

Tags: domestic violence, violent crimes, criminal defense

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