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Know and Protect Your Rights in a Criminal Defense Matter



Download Our Free Guide

Know and Protect Your Rights in a Criminal Defense Matter





What Steps Should I Take If I Am Facing A Domestic Violence Charge?

First and foremost, you want to make sure that you are following the court order to not have contact with the alleged victim. Even simply calling to apologize or to tell them that you love them is not allowed. Now, if the victim takes it upon themselves to voluntarily contact you then that’s a different story and your attorney will work on making arrangements for the victim to come to court to speak ask the judge to modify the order once you’ve hired. You do not want to appear as if you are trying to tamper with the witness or intimidate them in any way. You want to remain compliant with the orders of the court to stay away from the victim as long as the orders are in effect. That’s the first step.

The second step is to hire an attorney. Domestic violence cases are definitely not the types of cases you want to handle on your own. There are communications that can take place about the legal process through an attorney’s investigator that cannot take place without an attorney. Other than that, you are going to want to start gathering any sort of evidence that may be helpful to your attorney. For instance, if your defense is that it was self-defense and your spouse punched you in the eye and you had bruising, then you want to get photographs of that for your defense attorney. That way, it can be used to negotiate or work towards a dismissal of your case. Complying with the orders, hiring an attorney and compiling evidence for your defense are the first three steps.

Can Prosecution Use Past Instances Of Domestic Abuse In A Pending Case?

Yes, and they typically do. Even if the prior conduct was unreported (they never called 911) and didn’t result in a conviction or an arrest, the prosecution can still use it against the defendant. This type of information often comes directly from the victim of the crime, who might say something like “This is not the first time that this has happened to me. My spouse has hit me in the past. I just didn’t call the police because I was scared and I was being threatened.” The underlying assumption is that the typical response of victims in these types of domestic violence situations is to not report the conduct out of fear, love, or perceived necessity. However, unreported conduct from the past can still be used.

What Are The Penalties For A Domestic Violence Conviction?

The penalties for a domestic violence conviction always include exposure to being put in custody and having to pay a fine. If a person receives a misdemeanor charge and has already spent some time in jail, then they may get credit for that time. They may also receive additional jail time. Alternatively, they may be ordered to wear electronic monitoring equipment or enter a sheriff’s work alternative program. Whether or not a defendant is eligible for those types of alternatives really depends on the situation. If a defendant is the sole income provider for their family, and their family would be put in a more detrimental situation if they went to jail, then they may allow that person to participate in an alternative program instead.

There may be some sort of custodial time, and whether or not it actually has to be served in jail depends on negotiations. There will usually be an anger management class in the form of a 52-week batterer’s treatment program or domestic violence counseling that is required. In addition, if the victim does not want to have contact with the defendant, then the court will order that the defendant have no contact with the victim in any way (electronic, phone, mail, etc.) and stay 100 yards away from them. If the victim does want to have contact, then it will usually be a peaceful contact order, which allows the defendant to speak to and be in the presence of the victim so long as all of that contact remains peaceful; the defendant cannot harass, annoy, or molest the victim. Beyond counseling and custodial time, there may be some fines.

If it’s a felony, then there is a possibility of a state prison sentence; however, it can sometimes be negotiated down to the county jail or some other alternative but that depends on the defendant’s background and whether or not there are any prior convictions. Prior violent offenses or domestic violence offenses can enhance the penalties for this particular type of charge.

What Role Does Evidence And Witnesses Play In A Domestic Violence Case?

Most domestic violence cases are “he-said she-said” matters that occur in the privacy of somebody’s home and are not witnessed by other people. Because of this, there can be some doubt as to who is telling the truth, whether the alleged victim was actually the primary aggressor rather than the accused, and whether the defendant was acting in self-defense. Having witnesses or evidence in the form of videos or photographs can either help or hurt the defendant in a case. If the evidence or witnesses will make it more difficult for the District Attorney to prove their case beyond a reasonable doubt then we regularly encourage clients to exercise their right to a jury trial if the facts and evidence weigh in their favor. We are passionate about domestic violence cases and our attorneys have had a great deal of success in securing dismissals in domestic violence cases before trial and have successfully defended our clients at trial resulting in acquittals (NOT GUILTY).

Does An Alleged Victim Have To Be Injured For Domestic Violence Charges To Be Brought?

No, an alleged victim does not have to be injured for domestic charges to be brought. There are two different types of domestic violence charges that typically occur. One is a PC 273.5, which is corporal injury to a spouse or significant other. For a PC273.5 to be charged, a serious or traumatic injury has to occur. However, for a PC 243(e)(1) to be charged, a physical traumatic injury does not have to occur. Instead, it can be charged if somebody puts another person in an emotional or mental state that would constitute abuse or traumatize them in some way.

Are Domestic Violence Charges Bondable Offenses?

A domestic violence charge can be a misdemeanor or a felony. If it’s a misdemeanor, it’s usually because no actual physical violence took place against the other person; instead, maybe you snatched the cell phone out of your partner’s hand and smashed it to the ground and intimidated them. Something like that might be charged under Penal Code section 243(e)(1). Perhaps you disciplined your child but there is a question about how over-the-line that discipline went that may be charged under Penal Code section 273a. If a serious injury was involved, then it could be charged under Penal Code section 273.5, which is a misdemeanor but depending on the gravity of the injuries it could be charged as a felony. For example, if you strangled someone and put them in the hospital or suffocated someone with a pillow, then you are likely looking at a felony charge.

Oftentimes, a suspect will be arrested by an officer and their arrest charges will be felonies. Then, after the DA has had an opportunity to review the police report and weigh the gravity of the conduct or injury, they decide if it’s going to proceed as a felony or a misdemeanor. You won’t necessarily be held in jail without a bond; that typically happens if you were on probation at the time of the new offense so a no-bail hold is put on you or if you’ve actually ended up killing the other person. But then it would be charged as a murder. What happens is you will appear in court for your first appearance and a determination will be made about what your bail should be set at. It’s going to depend on whether or not it’s a felony or a misdemeanor, how many charges there are, and what the guideline bail schedule suggests in the county where the case is filed.

After bail is set a criminal protective order will be issued, preventing you from seeing or contacting the victim of the crime. Even if it’s your spouse who you are married to and live with, you will not be allowed to go home unless your spouse indicates to the court that they want to reconcile a relationship with you and have peaceful contact with you. The court may then modify the order. As far as your children are concerned, if they are named as protected parties then you will not be able to see them unless an order is issued allowing visitation.

How Is Domestic Violence Defined In California?

In California, domestic violence is an offense that occurs between two people who have some type of intimate relationship with one another. An intimate relationship is defined as one shared between a parent and child, a boyfriend and girlfriend, husband and wife, or ex-partners. Domestic violence occurs when the victim has experienced abuse or sustained an injury at the hands of the alleged defendant in the case.

Why Is It Critical To Retain An Experienced Attorney To Handle A Domestic Violence Case?

Our attorneys know what type of evidence is going to exculpate you or mitigate your situation. That means we know what type of evidence will likely support your innocence or make your position better. If the victim wants to eliminate a criminal protective order (restraining order), we can work with the victim’s attorney (if they have one) in getting a letter sent to the DA about whether or not that person still wants to testify or is cooperative in the proceedings and we can make arrangements for the victim to come to court to express whether they want the order in place or not.

We can also analyze what a good resolution of your case would be and strategize about the benefits of pushing the case all the way to trial. If there is insufficient evidence, you have a viable defense, or you maintain your innocence, then we may suggest taking it to trial. Alternatively, if it’s a case that’s best resolved by way of a plea and negotiating a disposition, we will work on reaching a resolution that’s beneficial to you in both the short run and long run.

What Are The Long-Term Collateral Effects Of Having A Domestic Violence Conviction On Record?

One of the long-term collateral effects of having a domestic violence conviction is the immigration consequence. Having a domestic violence conviction can lead to deportation or removal proceedings. Seeking the advice of an immigration attorney is advisable in those types of situations. The other collateral consequences are in a family court actions. Specifically, there is a rebuttable presumption in family court that custody of children should lie with the non-offending parent, which means that the person who did not commit the active domestic violence is the person who presumably should have custody of the children and that a person who committed domestic violence should not be awarded spousal support. A domestic violence conviction can also have a negative impact on a person’s ability to obtain professional licenses for employment.

Both a protective order issued in criminal court and a domestic violence restraining order issue in civil court can result from a domestic violence conviction. The latter addresses things such as custody, support, control over the property, whether or not there should be a property restraint made on any money in shared bank accounts, and whether or not the guilty party should be responsible for the payment of any debts if they have to move out of the home. There are several collateral consequences that can ensue from a domestic violence charge and it’s crucial that you have an attorney in your corner that will listen to you, ask the right questions, and educate you on the applicable areas you may be exposed to.

Is Self-Defense A Viable Defense In a Domestic Violence Case?

Self-defense is always a very good defense, and you would be surprised how often it is used in these types of cases. It is not uncommon for the alleged victim to fail to mention that they slapped the other party first or that they were throwing things at the other party. If that information is revealed, then we see that the accused was simply trying to avoid being hit when the accuser was struck by a defensive type of movement. Self-defense is a very realistic and arguable defense in these types of cases. We actually won our last domestic violence trial on a self-defense theory and the client was acquitted of all charges.

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THE NIEVES LAW FIRM
Oakland Criminal Lawyer