In addition to fighting for the right to a jury trial for people in Nevada who have been accused of battery constituting domestic violence, I’ve begun a new attack on the constitutionality of NRS 200.485 and NRS 33.018 because prosecutions for domestic violence violate the separation of powers doctrine. Here’s why. NRS 200.485 says, in relevant part:
“7. If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other reason unless he knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial. A court shall not grant probation to and, except as otherwise provided in NRS 4.373 and 5.055, a court shall not suspend the sentence of such a person.”
Contrast this section with Article 3, Section 1 (1) of the Nevada Constitution which provides that “[t]he powers of the Government of the State of Nevada shall be divided into three separate departments, the Legislative, the Executive, and Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.” This is Nevada’s Separation of Powers Doctrine.
I have a huge problem with subsection 7 of NRS 200.485 because the Nevada Legislature is ordering prosecutors not to reduce or dismiss a domestic violence charge if the prosecutor can prove the case. This violates the Separation of Powers Doctrine and the individual duty of the prosecutor to seek justice and not convictions (See American Bar Association, Standard 3-1.2, The Function of the Prosecutor). There are three independent branches of our state government: the executive, legislature, and judiciary. It’s the duty of the legislature to write the law, the executive to enforce the law, and the judiciary to interpret the law. The problem with NRS 200.485(7) is that the legislature overstepped its bounds by tying the hands of the prosecutor and preventing him or her from seeking justice.
Here’s an example. Let’s say two college roommates get drunk and get in a fight. The police arrest one of the roommates and charge him with battery constituting domestic violence in violation of NRS 200.485. Unfortunately for this roommate, battery constituting domestic violence includes not only husband/wife relationships, but roommates as well even were there is no sexual relationship. Most prosecutors will look at this type of case and want to make a fair offer recognizing that it’s not as serious as a typical domestic violence case where a husband is accused of hitting his wife. But, under subsection 7, the prosecutor can’t reduce or dismiss the charges because the Legislature says he can’t.
But my attack on this statute doesn’t end there. What the Nevada Legislature did when it prohibited prosecutors from reducing or dismissing domestic violence charges that it can prove was create a “Bill of Attainder”. A Bill of Attainder is completely illegal and unconstitutional. A Bill of Attainder means that someone can be convicted without having had a trial. So when a prosecutor dismisses or reduces a domestic violence case he or she can prove beyond a reasonable doubt, that prosecutor can be convicted automatically of a misdemeanor without having had the benefit of a trial! That’s a Bill of Attainder and is prohibited by both federal and state constitutions. A prosecutor’s act of dismissing or negotiating domestic violence cases is prohibited by subsection 7 of NRS 200.485. This statute does not state a specific punishment for the prosecutor’s forbidden act. NRS 193.170 states, “Whenever the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the committing of such act shall be a misdemeanor.” Therefore, by law, the prosecutor’s forbidden act of reducing or dismissing a domestic violence case he or she can prove is a criminal misdemeanor offense for which there is no trial for that prosecutor!
I’ll keep you updated on my battle on behalf of my clients to find NRS 200.485(7) unconstitutional.
If you’ve been arrested or are being investigated for battery constituting domestic violence, contact me immediately and I’ll show you how I can help you.
The Legislative mandate prohibiting prosecutors from dismissing or negotiating to a lesser offense any DUI case is an unconstitutional Bill of Attainder under both the United States and Nevada Constitutions.
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