4.6.10 Special Factors in Domestic Violence Cases. In determining whether to apply for a complaint-summons or a complaint-warrant in domestic violence cases, the police officer or assistant prosecutor or deputy attorney general consulted in accordance with Section 3.2 or supervisory officer designated pursuant to subsection 3.3.2 shall give special consideration to the following circumstances relevant to the risks that would be posed to the victim if defendant were to be released on a complaint summons: (1) whether the mandatory detention resulting automatically from issuance of a complaint warrant might exacerbate the domestic violence situation, might discourage a victim from pursuing the charge or cooperating with the prosecution, or otherwise would not serve the interest of justice; (2) whether, given the repetitive nature of domestic violence offenses, it would be appropriate to apply for a complaint-warrant in recognition that if the defendant is charged by complaint-summons and thereafter commits a new crime while on pretrial release, the prosecutor cannot move pursuant to N.J.S.A. 2A:162-24 to revoke release. (See subsections 4.5.2 and 8.4.3. Cf. note 30); (3) whether the victim exhibited signs of injury, and the extent of such injury; (4) whether any type of weapon was used against the victim, or was threatened to be used; (5) whether the defendant has at any time previously violated a temporary or final restraining order, cf. subsection 4.5.2 (creating a presumption of applying for a complaint-warrant if the present offense was committed in violation of a restraining order or release condition), and the nature and seriousness of such previous violation(s); (6) whether there is reason to believe that the defendant possesses one or more firearms that for practical or other reasons cannot be seized or surrendered pursuant to the Prevention of Domestic Violence Act before the defendant’s release from custody on a complaint-summons (e.g., a firearm kept at a location other than the place of arrest such as another residence, or an office or business premises); (7) whether the defendant exhibited suicidal behavior such as excessive sadness or moodiness or threatening self-injury; (8) whether the defendant attempted to or did strangle the victim during an assault or at any point prior thereto; and (9) whether the defendant threatened to or did harm a household pet. The foregoing circumstances shall be considered in determining whether there is a basis to overcome a presumption of issuing a complaint-summons pursuant to subsection 4.3.1. See also subsection
Factor (6) effectively penalizes accused citizens who exercise their right to own a firearm. It also grants too much discretion to the police with vague language that can always apply, i.e. there is always a “practical or other reason.” Regarding factor (8), it is strange to focus specifically on an attempt to strangle as opposed to other assaultive actions that cause just as much of an injury or more serious injuries. With respect to factor (9), it is consistent with the trend in our law to treat animals more like family members than personal property. Note that it does not distinguish between types of pets, thus putting a goldfish or even an ant farm on par with a family dog.
