Second Degree Domestic Violence: Assault 2nd Alabama

By: Whitney Polson and Mark Polson – Bringing Over 60 Collective Years of Aggressive Criminal Defense Experience to the Table

Second degree domestic violence in Alabama is a Class B felony. It is most often charged when a person commits assault in the second degree against a protected family or household member. Under Alabama law, second degree domestic violence carries 2 to 20 years in prison. Repeat offenders face a mandatory minimum term of imprisonment. A domestic battery defense attorney starts by testing whether the charge fits the facts at all.

The charge arises when the conduct meets the elements of Assault in the Second Degree. The same section also reaches intimidating a witness, stalking, burglary in the second or third degree, and criminal mischief in the first degree. The alleged victim must also fall in a protected group. That group includes current or former spouses, parents, and children. They also include step-parents, step-children, grandparents, step-grandparents, grandchildren, and step-grandchildren. The list also covers a person with whom the defendant shares a child. It covers current household members. It also covers a person who has or had a dating relationship with the defendant.

A conviction carries the full Class B felony sentencing range. This range is not less than 2 years and not more than 20 years. For a second or later domestic violence conviction, the defendant must serve a minimum term of imprisonment of six months. The defendant cannot receive probation, parole, good time credits, or any reduction in time. That mandatory minimum doubles in two cases. One is willfully violating a protection order and committing the offense in the process. The other is committing the offense in the presence of a child under 14. That child must be a child of the victim or defendant, or must live in or be visiting either household.

By comparison, strangulation or suffocation domestic violence is a separate Class B felony offense, punishable as provided by law. At the other end, first degree domestic violence is a Class A felony. It can bring life or up to 99 years in state prison. That charge applies when deadly conduct, or acts that may cause serious injury, occur against a protected person.

Protective Orders and Restraining Orders in Alabama DV Cases

A domestic violence arrest in Alabama often triggers a civil case alongside it. That case is brought under the Protection From Abuse Act. The alleged victim may ask the court for a protection from abuse (PFA) order. A judge can issue a temporary order the same day, without the other side present. That happens before the accused has any chance to respond.

A final hearing must follow within 10 days of service, or sooner if the defendant asks for one. At that hearing, the petitioner must prove the claims by a preponderance of the evidence. That is a lower bar than the "beyond a reasonable doubt" the criminal case requires. The respondent has the right to attend, present evidence, and cross-examine the petitioner. A final PFA order is of permanent duration unless the order specifies otherwise. A later court order can also change it.

A PFA order can also hit the criminal case hard. A no-contact order limits where the accused may live and work. Violating a PFA is a separate criminal offense under Alabama law, classified as a Class A misdemeanor for a first violation. A second conviction carries a mandatory minimum of 30 days that may not be suspended. A third or later conviction is a Class C felony. The court must also order an extra $50 fine for the Domestic Violence Trust Fund. And second degree domestic violence committed while willfully violating a protection order doubles the mandatory minimum sentence.

Domestic violence restraining order defense takes careful timing between the civil PFA case and the criminal case. Statements made at a PFA hearing can be used in the criminal case. A domestic defense attorney weighs whether to fight the PFA hard or accept limited conditions. The goal is to avoid a record that weakens the criminal defense.

Elements of Assault 2nd Under Alabama Law

To convict on an Assault 2nd domestic violence charge, the State must prove two things. First, the defendant committed Assault in the Second Degree. Second, the alleged victim falls in one of the protected groups the second degree domestic violence statute lists.

Alabama law defines several ways a person commits Assault 2nd:

• Intent to cause serious physical injury. The defendant intended to cause serious physical injury and did cause serious physical injury to any person.
• Deadly weapon or dangerous instrument. The defendant intended to cause physical injury and did cause physical injury by means of a deadly weapon or dangerous instrument.
• Reckless conduct with a deadly weapon. The defendant recklessly caused serious physical injury by means of a deadly weapon or dangerous instrument.
• Assault on protected public servants. The defendant intended to prevent a peace officer, detention officer, correctional officer, emergency medical worker, utility worker, or firefighter from performing lawful duties. The defendant must have caused physical injury.
• Assault on educators. The defendant intended to cause physical injury to a teacher or an employee of a public educational institution during or as a result of their duties.
• Assault on health care workers. The defendant intended to cause physical injury to a health care worker during the course of their duties.
• Administering harmful substances. The defendant intentionally caused stupor, unconsciousness, or impairment by administering a drug or substance without consent. The purpose must be other than lawful medical or therapeutic treatment.
• Assault on social workers. The defendant intended to cause physical injury to a Department of Human Resources employee, or to an employee performing social work, during or as a result of that duty. The defendant must have caused physical injury.
• Assault on letter carriers. The defendant intended to cause physical injury to a letter carrier during or as a result of that duty. The defendant must have caused physical injury.
• Assault on a child in an educational environment. The defendant was at least 19 and was not employed by or enrolled in the entity tied to that educational environment. The defendant intended to cause physical injury to a child there, and did cause physical injury.

Standing alone, Assault in the Second Degree is a Class C felony. When the victim is a protected family or household member, the charge becomes second degree domestic violence, a Class B felony.

Two definitions matter in most Assault 2nd DV cases. "Serious physical injury" means physical injury that creates a substantial risk of death. It also means injury that causes serious and protracted disfigurement. It also means injury that results in protracted impairment of health. It covers protracted loss or impairment of the function of any bodily organ as well. A penetrating gunshot wound from a firearm also meets the definition. "Deadly weapon" means a firearm or anything manifestly designed, made, or adapted to inflict death or serious physical injury. Whether a given object counts as a "dangerous instrument" is often a fight over the facts.

Speak With an Alabama Second Degree Domestic Violence Defense Attorney

If you or a family member faces a second degree domestic violence charge in Alabama, act now. The time before the first court date matters most. A defense lawyer who starts early may affect bond conditions, no-contact terms, and whether key evidence is saved.

Polson & Polson, P.C. is a firm of Alabama criminal defense attorneys. The firm handles domestic violence cases in Jefferson County and nearby courts. Our domestic violence attorneys know how these cases move through the system. We can start building a defense from day one.

Payment plans are available. Call (205) 401-3171 for a free case review. Every case is different. The facts of yours may open defense options that no one sees without a close look.

Penalties for Second Degree Domestic Violence in Alabama

Second degree domestic violence is a Class B felony. Under Alabama law, a Class B felony carries a set prison term of not less than 2 years and not more than 20 years. If a firearm or deadly weapon was used, or its use was attempted, the floor rises to not less than 10 years.

For a first-time offender with no prior DV convictions, the court may suspend the sentence and order probation. That power does not reach a sentence of more than 15 years in the penitentiary. Repeat offenses change the picture.

Mandatory Minimums for Repeat DV Convictions

A second or later domestic violence conviction requires a minimum term of imprisonment of six months. The defendant cannot receive probation, parole, good time credits, or any reduction in time.

That mandatory minimum doubles if either of two aggravating factors is present. The first is that the defendant willfully violated a protection order and committed DV 2nd in the process. The second is that the offense happened in the presence of a child under 14. The child must be the victim's or defendant's child or step-child. Or the child must live in, or be visiting, either household. "In the presence of a child" means the child was in a spot to see or hear the act. The court must make a written finding on this factor. A jury returns a special verdict on it.

Firearm Prohibitions

A domestic violence conviction can trigger a federal firearms ban under federal law. A felony conviction qualifies. So does a misdemeanor domestic violence conviction with force as an element. That means the use or attempted use of physical force, or the threatened use of a deadly weapon, against a qualifying family member or partner. The ban bars the person from having, receiving, or transporting any firearm or ammunition. It runs with no end date. But an expungement, set-aside, pardon, or restoration of civil rights lifts it. Federal law also restores firearm rights five years after a single qualifying misdemeanor that involved a dating relationship.

Collateral Consequences

Beyond prison time, a second degree domestic violence conviction may affect child custody, a professional license, housing, and work. Non-citizens face possible deportation. Domestic violence offenses are generally treated as removable offenses under federal immigration law.

Several factors affect how long someone stays in jail for domestic violence. One is whether bond is granted, and at what amount. Another is what conditions the court sets, and whether the defendant can meet them. The sentence itself matters too. Time in jail before trial may run days or months, depending on the facts. The mandatory minimums above set the floor after a conviction on repeat offenses. The Class B felony range sets the ceiling at 20 years, unless prior felony convictions raise it.

Working With a Domestic Battery Defense Attorney in Alabama

Your defense attorney handles every phase of an Alabama Assault 2nd DV case. That runs from the first arrest through trial or a plea. Knowing what to expect from the process, and from your lawyer, helps you make good choices at each stage.

Early Case Investigation

The first step is a close review of the evidence the State intends to use. Your defense lawyer gets the arrest report. Your lawyer also gets the 911 call recording and body-worn camera footage. That request covers photos of alleged injuries and written statements from the complaining witness and any others. This review often turns up conflicts, gaps in the proof, or facts that support a defense.

Interviewing witnesses early matters. Memories fade and stories shift. A domestic assault defense investigation may find witnesses who saw the events another way than the police report shows. It may also find witnesses who can speak to the complaining witness's motive to lie or overstate.

Challenging the State's Case

Many second degree domestic violence cases turn on the "serious physical injury" element. If the injuries do not meet the statutory definition, the charge may not hold at the felony level. Defense counsel reviews medical records, photos, and forensic opinions. Your lawyer then tests whether the State can prove this element beyond a reasonable doubt.

Motions to suppress may apply when police entered a home with no warrant and no consent. They may also apply when statements were taken in violation of Miranda. If the court suppresses key evidence, the State's case may fall apart.

Negotiation and Resolution

Not every case goes to trial. A domestic violence defense law firm with Alabama court experience knows how to deal with the District Attorney's office. Talks may focus on cutting a second degree DV charge to a misdemeanor under Alabama law, such as domestic violence third degree. Talks may also aim at a non-DV assault charge. That path avoids the side effects of a domestic violence conviction, above all the federal firearms ban.

Why Early Retention Matters

Anyone charged with domestic violence should hire a defense lawyer before the first court date, so that lawyer can appear at the bond hearing. Your lawyer can argue for fair bond conditions. Your lawyer can also ask the court to change a no-contact order that affects housing or time with your children. Family violence attorneys who get involved early can also save evidence that might be lost. Security video, text messages, and social media posts are all kept for a short time.

Common Defenses to Second Degree Domestic Violence Charges

Every case turns on its own facts. Still, a few defense theories come up again and again in Alabama Assault 2nd DV cases.

Self-Defense

Alabama's self-defense statute says a person is justified in using physical force to defend himself, herself, or a third person. The person must reasonably believe the use or imminent use of unlawful physical force exists. The person must use a degree of force that he or she reasonably believes is necessary.

Under Alabama law, a person has no duty to retreat if two things are true. That person must not be engaged in unlawful activity, and must be in a place where he or she has the right to be. Alabama's Stand Your Ground rule applies in domestic settings. The statute's presumption that deadly force was justified does not apply, though, where the other person lawfully lives in the home. That exception holds when no protection from abuse injunction and no written no-contact order stands against that person.

A defendant may claim immunity from prosecution. The defendant can show by a preponderance of the evidence at a pretrial hearing that the force used was justified. If the defendant carries that burden, the court must find him or her immune and dismiss the criminal charges.

Lack of Intent

Several prongs of Assault 2nd require specific intent. Those include intent to cause serious physical injury. They also include intent to cause physical injury by means of a deadly weapon. If the State cannot prove that mental state, the charge fails on that prong. Contact by accident during an argument may not meet the intent element.

Fabricated or Exaggerated Allegations

Domestic violence claims sometimes arise during a divorce or a custody fight. The defense looks at the timing of the claim and at the complaining witness's motive. The defense also looks at prior inconsistent statements. It checks whether the physical evidence matches the claimed injuries. Body-worn camera footage and medical records are critical in these cases.

Challenging the Protected Relationship

Second degree domestic violence requires that the victim fall in one of the protected groups. If the alleged victim is a non-romantic, non-intimate co-resident, that person does not count as a "household member" under the statute. A dating relationship must be romantic or intimate in nature. It must be marked by the expectation of affection or sexual involvement by either party. If no such relationship existed, the domestic violence enhancement does not apply.

First-Time Offense Considerations

A first time offense for domestic violence in the second degree does not lower the Class B felony class. A defendant with no prior felony convictions faces the same 2 to 20 year range. Prior felony convictions raise that range under Alabama's habitual felony offender law. But first-time status may affect plea talks and sentencing. A defendant with no prior record may have more room to seek a reduction. That defendant may also draw a lighter sentence within the statutory range. The mandatory minimum jail rules apply only to a second or later DV conviction. A first-time offender may be eligible for probation at the judge's discretion, so long as the sentence is not more than 15 years.

Hiring an Alabama Domestic Violence Lawyer Near Me

The first 48 hours after a domestic violence arrest set the tone for the whole case.

In Jefferson County, a person arrested on a Class B felony domestic violence charge will go before a judge. That hearing is often at Hoover Municipal Court, Birmingham Municipal Court, or Jefferson County District Court. It serves as the first appearance and the bond hearing.

Bond amounts for Class B felony domestic violence charges vary with the facts and the defendant's record. The court also has a say in the amount. Nearly every DV bond includes a no-contact term. That term bars the defendant from contacting the alleged victim. Breaking it is a separate criminal offense and may cost the defendant bond.

A lawyer who is there at the first appearance can argue for a fair bond amount. Your lawyer can ask the court to ease terms that go further than the case needs. Some terms keep a parent from going home or from seeing their children. Your lawyer can also start gathering evidence right away. That means asking for body-worn camera footage before it is taped over. It means finding and interviewing witnesses. It means getting the medical records.

Polson & Polson, P.C. handles domestic violence defense cases across Jefferson County and nearby areas. If you face a second degree domestic violence charge, call (205) 401-3171 to talk it through. The facts of every case are different, and the outcome may turn on the steps taken early.

Frequently Asked Questions

What Is Second Degree Domestic Violence in Alabama?

Second degree domestic violence is a Class B felony. A person is most often charged when they commit Assault in the Second Degree against a protected partner. Protected partners include current or former spouses, parents, and children. They also include grandparents, household members, co-parents, or dating partners. A conviction carries 2 to 20 years in prison.

Is Assault 2nd a Felony in Alabama?

Yes. Assault in the Second Degree is a Class C felony. It carries 1 year and 1 day to 10 years in prison. When the victim is a protected domestic relationship partner, the charge elevates to second degree domestic violence. This upgrade changes the classification to a Class B felony with a range of 2 to 20 years.

What Is the Mandatory Minimum Jail Time for a Second Domestic Violence Conviction in Alabama?

A second or later DV conviction requires a minimum term of imprisonment of six months. The defendant cannot receive probation, parole, good time credits, or any reduction in time. That minimum doubles if the defendant willfully violated a protection order and committed the offense in the process. It also doubles if the offense happened in the presence of a child under 14. That child must be a child of the victim or defendant, or must live in or be visiting either household.

What Does a Defense Lawyer Do in an Alabama DV Case?

Your defense lawyer reviews all the evidence. That includes arrest reports, 911 recordings, body camera footage, and medical records. Your lawyer interviews witnesses, files motions to suppress evidence taken unlawfully, and seeks charge reductions from prosecutors. Your lawyer also prepares for trial if needed. Hiring early lets that lawyer appear at the bond hearing and protect your rights from the start.

Can Second Degree Domestic Violence Charges Be Reduced or Dismissed in Alabama?

A second degree DV charge may be cut to a lesser offense, such as third degree domestic violence or a non-DV assault charge. Dismissal is possible if the evidence does not support the elements of the offense. If the injuries do not meet the "serious physical injury" threshold, for example, the charge may be dropped. A self-defense claim that wins at a pretrial immunity hearing may also end the case. Every case depends on its own facts.