There is a provision in the Wisconsin Statutes that can increase your maximum penalty for a domestic abuse related offense. In this post, criminal defense attorney Benjamin Van Severen explains what a domestic abuse repeater is. He’ll also explain how the DV-repeater works in concert with other repeater statutes.
Domestic Abuse Repeater
The DV-repeater statute is found in Wisconsin Statute §939.621. The statute defines a domestic abuse repeater as one of the following:
- A person who commits an act of domestic abuse that constitutes the commission of a crime during the 72 hours immediately following an arrest for a separate domestic abuse incident. The 72-hour period applies whether or not the victim waives the no-contact requirement.
- A person who was convicted on 2 or more separate occasions of a felony or a misdemeanor crime of domestic abuse within the 10-year period prior to the commission of the crime for which the person is being sentenced. Whether the sentence is stayed, withheld, or suspended is irrelevant. It does not matter that the person received a pardon, unless it was based on the ground of innocence. Finally, time that the person spends in actual confinement serving a sentence does not count towards the ten year period.
Let’s explain this in plain English. When there is an arrest for a crime of domestic abuse, there is a 72-hour no-contact provision between the offender and the alleged victim. The alleged victim can waive this no-contact provision. However, a waiver of the provision does not affect the domestic abuse repeater classification. Therefore, if the offender commits another crime of domestic abuse within that 72-hour no-contact period, he would qualify as a domestic abuse repeater.
The second provision is the more common scenario. Here, a person must have two or more domestic abuse related convictions within the past 10 years. And the two or more convictions must have occurred on separate occasions. The convictions must also remain valid. If the offender meets these conditions he qualifies as a domestic abuse repeater.
The sentencing judge may increase the maximum penalty for the underlying offense by up to two years. Additionally, this provision increases the penalty classification from a misdemeanor to a felony.
Prosecutors sometimes use the domestic abuse repeater statute in conjunction with other penalty enhancers. For example, a person could qualify as both a domestic abuse repeater and a general repeater. This post here explains the general repeater statute. A person who commits the act of domestic abuse can even face a penalty increase under the Use of a Dangerous Weapon statute.
For example, let’s say a person has a conviction for battery – domestic abuse from three years ago. One year later, so two years ago, the same person commits criminal damage to property-domestic abuse. Finally, the same person commits retail theft (non-domestic abuse related) six months ago.
With the present offense, there is an arrest for battery-domestic abuse while possessing a dangerous weapon. Normally, he would face 9 months in jail and the crime would be a misdemeanor. However, he has two convictions on two separate occasions of crimes of domestic abuse, all within the past 10 years. Therefore, his maximum penalty increases to 2 years 9 months. Further, it increases the crime from a misdemeanor to a felony.
But there’s more! Because the offender possessed a dangerous weapon, his maximum penalty increases by an additional 4 years. Now he faces 6 years 9 months. But we can’t forget fact the offender has three misdemeanor convictions within the previous 5 years. As a result, he meets the standard for a general repeater under the Habitual Criminality statute. Under this penalty enhancement, the court may increase his maximum penalty by another 2 years. Therefore, he ultimately faces 8 years 9 months incarceration.
What the State Must Prove
In State v. Gavin S. Hill, the Court of Appeals clarified what is required to prove an offender is a domestic abuse repeater. Prosecutors show an offender’s domestic violence repeater status two ways:
- The State must prove the prior convictions beyond a reasonable doubt;
- The offender must personally, directly, and specifically admit the prior convictions;
These are the same requirements to prove the general repeater statute. In the Hill case, the Court ruled that a guilty or no contest plea to the charge containing the domestic abuse repeater equates to an admission to the prior convictions.
Navigating the various penalty enhancer statutes can be confusing. The criminal defense attorneys at Van Severen Law Office know how the statutes interact with each other. We will hold the prosecutors to their burden of proving all penalty enhancers. If you have been charged with a crime of domestic abuse, call one of our attorneys today for a free consultation.