The state of New Hamshire may weaken existing domestic abuse/violent laws if a proposal by one of its lawmakers comes to fruition.

Under existing law in New Hampshire, if an officer arrives at a home and sees a victim who displays clear signs of having been battered, the officer is allowed to arrest the perpetrator based on probable cause. State Rep. Dan Itse (R), the sponsor of two new bills (HB 502 and 503) that would modify that law, wants to require the victim to file a complaint before an arrest can take place.

Rep. Itse’s stated concern is that this warrantless arrest is in violation of the Constitution. A quick reading of the New Hampshire Constitution does not reveal any strict prohibition against warrantless arrests though it does provide guidelines as to when warrants may be issued.

What is important to remember here is that in common law warrantless arrests could be made by a law enforcement officer for felonies and for misdemeanors committed in their presence which were a breach of peace.

There are two important points here about misdemeanor arrests without warrants.

One is that the purpose of a warrant in the first place is to fully inform the arrestee of the nature of…and the basic facts behind…his arrest. In West Virginia when such warrantless arrest is made our Constitution mandates that a written warrant be issued forthwith.

Now unless some case law has arisen since around 1982 there is no judicial expression of what exactly “forthwith” means. It was around that year when I successfully had a client’s drunk driving arrest nullified and the case dismissed because while he had been properly arrested during a traffic stop by Morgantown police, he languished in jail with no warrant issued for a full weekend because the municipal judge was not available until Monday.

My argument, which was a winning one, was that while forthwith may not mean immediately upon say arrival at the station house, it certainly meant as soon as practical which would require a judge being available, on call if necessary.

Point two is that if an officer were required to procure a warrant before making such an arrest, the time it would take simply to appear before a judge to have said warrant issued even if currently on duty, would necessarily result in the defendant-to-be absconding.

So even old by the book UMOC acknowledges that such arrests are perfectly legal if the warrant falls within a short time after the arrest.

In a domestic violence case the victim is often likely to be willing to press charges and see her/his abuser jailed if it happens immediately after the incident. To expect a battered woman to follow up after the police leave and file a proper complaint flies in the face of reality.

Victims are notoriously reluctant to follow through on charges and the reasons for and exploration of why this is so would fill volumes. In fact in recent years police in most jurisdictions have been empowered to proceed with an arrest given the proper set of circumstances establishing probable cause for an arrest even if the victim does not wish to have the offender taken into custody.

Another personal example can illustrate what can happen when an abused woman has second thoughts.

About twelve years ago I was present in a private club in the early evening when one of the female members came rushing in obviously distraught and obviously having been punched. As others were comforting her she blurted out that her husband had become violent and that he was in their house with a loaded gun threatening to shoot himself. I asked if she wanted me to call 9/11 for the law and she said yes.

Sheriff’s  deputies responded and she told them what had occurred and they went to arrest him while one stayed behind to get witness information from me, since I had made the call.

Later I was contacted by an assistant prosecutor who asked what knowledge I had of the incident. Of course I had not personally seen the attack but both parties had been in the club earlier and after the wife left, the husband said a few ugly, derogatory things about her, though he did not threaten her.

I received a subpoena to testify when the case came up in magistrate court. By then I had heard the wife was refusing to cooperate despite the fact that the law did not permit her to simply drop the charges. I made my appearance, testified truthfully to what I had witnessed and left. He was convicted.

The next time I saw her at the club was late one night and she was drunk and followed me outside when I was leaving and cussed me out something fierce for having “lied” in court and expressing disgust that now Bob couldn’t have guns for hunting due to his conviction.

That is the sad truth about too many victims of domestic violence who will make excuses for their attacker and far too often return to him only to be abused again.

So if Rep. Itse expects that after the police leave a domestic violence scene without arresting the miscreant that the victim will willingly then file the proper complaint to put the man in jail, he has a hell of a lot to learn about this problem.

I believe the law there as currently written and applied passes muster with federal and state Constituiions and should remain as is. And we need to be on the alert in our own home territories for any effort to weaken these laws.

Domestic bliss may not be the outcome but less domestc abuse will be.

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