It would be best if the case is thrown out. The case could likely result in a slap on the wrist: fine, probation, "classes" and dismissal.... Read this opinion on deferred proceedings and diversion:
http://www.tn.gov/attorneygeneral/op/2004/op/op9.pdf
The potential deportation due to a domestic violence case is the possibility that it will be deemed an aggravated felony under 8 .S.C. 1101(a)(43)(F) as a "crime of violence" under.
18 U.S.C. Sec. 16. Crime of violence defined
The term ``crime of violence'' means--
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a
felony and that, by its nature,
[based on the maximum sentence, your charge does not fall under this]
involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense.
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18 USC § 3559. Sentencing classification of offenses
(a) Classification.— An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;
(2) twenty-five years or more, as a Class B felony;
(3) less than twenty-five years but ten or more years, as a Class C felony;
(4) less than ten years but five or more years, as a Class D felony;
(5) less than five years but more than one year, as a Class E felony;
(6) one year or less but more than six months, as a Class A misdemeanor;
(7) six months or less but more than thirty days, as a Class B misdemeanor;
(8) thirty days or less but more than five days, as a Class C misdemeanor; or
(9) five days or less, or if no imprisonment is authorized, as an infraction.
(b) Effect of Classification.— Except as provided in subsection (c), an offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense.
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If an actual conviction results it should not lead to deportation.
Tennessee Code:
39-13-111. Domestic assault.
(a) As used in this section, domestic abuse victim means any person who falls within the following categories:
(1) Adults or minors who are current or former spouses;
(2) Adults or minors who live together or who have lived together;
(3) Adults or minors who are dating or who have dated or who have or had a sexual relationship, but does not include fraternization between two (2) individuals in a business or social context;
(4) Adults or minors related by blood or adoption;
(5) Adults or minors who are related or were formerly related by marriage; or
(6) Adult or minor children of a person in a relationship that is described in subdivisions (a)(1)-(5).
(b) A person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.
(c) (1) Domestic assault is punishable the same as assault in § 39-13-101.
(2) In addition to any other punishment that may be imposed for a violation of this section, if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200). The additional fine shall be paid to the clerk of the court imposing sentence, who shall transfer it to the state treasurer, who shall credit the fine to the general fund. All fines so credited to the general fund shall be subject to appropriation by the general assembly for the exclusive purpose of funding family violence shelters and shelter services. This appropriation shall be in addition to any amount appropriated pursuant to § 67-4-411.
(3) A person convicted of a violation of this section shall be required to terminate, upon conviction, possession of all firearms that the person possesses as required by § 36-3-625
39-13-101. Assault.
(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.
(b) (1)
Assault is a Class A misdemeanor unless the offense is committed under subdivision (a)(3), in which event assault is a Class B misdemeanor; provided, that, if the offense is committed against a law enforcement officer under this section, then the maximum fine shall be five thousand dollars ($5,000).
(2) In addition to any other punishment that may be imposed for a violation of this section, if the relationship between the defendant and the victim of the assault is such that the victim is a victim as defined in § 36-3-601(8), and if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200). The additional fine shall be paid to the clerk of the court imposing sentence, who shall transfer it to the state treasurer, who shall credit the fine to the general fund. All fines so credited to the general fund shall be subject to appropriation by the general assembly for the exclusive purpose of funding family violence shelters and shelter services. Such appropriation shall be in addition to any amount appropriated pursuant to § 67-4-411.
36-3-601. Part definitions. -
As used in this part, unless the context otherwise requires:
(8) “Preferred response” means law enforcement officers shall arrest a person committing domestic abuse unless there is a clear and compelling reason not to arrest;
Tennessee Code > Title 40 > Chapter 35 > Part 1 > § 40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors
(e) The authorized terms of imprisonment and fines for misdemeanors are:
(1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;
40-35-302. Misdemeanor sentencing Rehabilitative program credits Probation Supervision of defendants on probation.
(a) In imposing a sentence for a misdemeanor, the court may conduct a separate sentencing hearing. If the court does not conduct a separate sentencing hearing, the court shall allow the parties a reasonable opportunity to be heard on the question of the length of any sentence and the manner in which the sentence is to be serve. .......
(e) The court has authority to place the defendant on probation either:
(1) After service of a portion of the sentence in periodic confinement or continuous confinement; or
(2) Immediately after sentencing.
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The initial decision about sentencing all offenders is made by a Judge, in compliance with the laws of the State of Tennessee and Tennessee probation laws. Decisions to issue a warrant, revoke or reinstate the community supervision status, are made about probationers by the Court, and about parolees by the Board. While on probation or parole the offender must generally reside in a certain location, be employed, and obey particular rules called “conditions.” The offender being supervised is to report to, accept advice and instructions from, and maintain contact with a Probation/Parole Officer.
Probationers who have been released but who violate the conditions, must go back to the sentencing Judge who may decide to revoke the probation status and send the offender to prison to serve the full suspended sentence, with no credit given for time on probation. If successful on probation, offenders must continue reporting to the P/P Officer until the Judge releases them from the obligation.
Tennessee Code Annotated 40-35-313 deals with expungement but it is
not applicable to immigration and certain other purposes.
1. What is an expungement?
Expungement is the Process by which a record of criminal conviction and/or arrest are removed by order of the court. The expunged records are deemed not to exist and the person who is the subject of the records may deny their existence,
however, they may be used to impeach them or as character evidence in future proceedings.
2. Do the records just disappear?
No. For an expungement granted under TCA § 40-32-101, the release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request. Non-public records may be maintained for determining eligibility for alternative sentencing under TCA § 40-35-313. If a person granted expungement later assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record, the non-public records are also admissible for the following purposes:
(1) A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and
(2) A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the non-public records retained by the court shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction. TCA § 40-32-101
Further references:
•Expungement of records where there was no conviction - Tenn. Code Section 40-32-101
•Expungement of criminal records after deferred proceedings - Tenn. Code Section 40-35-313
•Expungement of criminal records for certain first-time offenses - Tenn. Code Section 40-32-101
•Pardon - Tenn. Code Section 40-27-109
