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Domestic violence is a crime that can be committed by any individual against an intimate partner or someone of close blood relationship. Crimes involving domestic violence do not discriminate by age, race, gender, education level, income level or other demographic data point. This type of offense can involve an allegation of physical violence, threat of violence, harassing communications, or other types of emotional trauma. While similar to assault and battery charges, these crimes become domestic violence when they involve violence against a spouse or former spouse, cohabitating partner, someone you are currently in or used to be in an intimate or dating relationship with, or the mother/father of a shared child.

If you were arrested for or charged with domestic violence or spousal abuse, you could be facing severe penalties that might include jail time at the county level for misdemeanor offenses or state prison time for more serious felony offenses. Domestic violence crimes can also result in significant fines, year long domestic violence counseling (52-week batterer’s treatment program or batterer’s intervention program), anger management, parenting classes, alcohol or drug treatment, weapons restrictions, firearm relinquishment, criminal protective orders, immigration consequences such as deportation, and search and seizure waivers among other things. An experienced Fremont domestic violence lawyer could evaluate your case and help determine the best course of action throughout the legal process that can limit your exposure to incarceration and other serious consequences tied to a domestic violence conviction. As such, it is important to get in touch with an experienced criminal defense attorney if you are facing domestic violence charges. En Español

How is a Domestic Abuse Arrest Made?

Domestic violence cases start after the police receive a report of a domestic disturbance or a call for help. The officers will report to the scene to stop the harm from occurring, take statements, secure photographs and evidence, and make an arrest.  State laws are strict when it comes to domestic violence, so police officers must take someone into custody whenever they believe the crime of domestic violence has occurred.

In addition, law enforcement officers have the authority to issue what is known as an “Emergency Protective Order” on scene if they determine that there may be an ongoing threat of harm to the alleged victim upon release of the suspect. This would result in the alleged abuser not being allowed in the home, even if it is their home, stay away orders that may include any children in the home, and no contact of any kind with the alleged victim. These emergency protective orders usually last for five business days or seven calendar days.  Typically there will be an arraignment date that occurs prior to the expiration of the emergency protective order where the court will issue a criminal protective order that will last longer than the emergency protective order.  These orders are typically in place for the duration of the case and part of probation, or they have an expiration of three years, or they can be terminated or modified early at the request of the victim.

The main problem that arises with law enforcement’s identification of the primary aggressor is that the responding officers rarely see the offense themselves and make their determinations of the jumbled, conflicting stories of the people on scene. Typically, the officers arrive on scene after the alleged act has occurred, if the parties are present they will take statements, if a neighbor called the police they may talk to the neighbor – but oftentimes, the police are just guessing at what they think may have happened based on what they were told.  They do not always get it right and that is where a domestic violence lawyer comes into play.  A Fremont domestic violence lawyer can help pick apart the weaknesses in a case, find the inconsistent statements made by witnesses, and identify where the stories don’t add up.  Just because the police arrested you and identified you as the primary aggressor does not always mean it’s an accurate representation of what occurred.

Another way domestic violence may come to the attention of law enforcement, even though no one called them, is when a medical provider reports injuries that they believe are consistent with domestic abuse or domestic violence.  If they reasonably believe that domestic violence has occurred, they are bound by law to report their suspicions to law enforcement, even if the party denies the injuries were as a result of abuse. Law enforcement will then commence an investigation into the domestic violence allegations.

Felony vs Misdemeanor Domestic Violence

Under California law, domestic violence charges may be filed either as a felony or as a misdemeanor. Typically, the decision is based on the evidence of the case, including the number and severity of any injuries. For example, if there are limited injuries and the injuries are minor, the charges are often filed as misdemeanors, but if the injuries are severe, such as strangulation, fractures,  broken bones, and disfigurement, the charges may be filed as a felony.

Felony charges are the most severe type of criminal offense under state law, and it carries significant penalties such as jail or prison time, fines, anger management classes and loss of relationships with their children and other collateral consequences if there is a conviction. A misdemeanor offense is a less serious type of crime, but it can still be punishable by up to one year in jail, as well as fines and classes, immigration consequences, and a lifetime ban on firearms. The prosecutor can charge domestic violence as a felony or misdemeanor, so it is known as a “wobbler” offense. Additionally, under California Penal Code § 17(b), a judge can reduce the felony domestic violence charge to a misdemeanor.

Having a Fremont domestic violence lawyer throughout the process could help in both misdemeanor and felony domestic violence charges. In a less serious misdemeanor case, an attorney may be able to present a defense that could lessen potential penalties or get the case dismissed. In a more severe felony case, an attorney could aim to receive an acquittal or dismissal, work to have the charges reduced to a misdemeanor, or work to keep the accused out of prison or jail among other goals.

Contact an Experienced Fremont Domestic Violence Attorney

Accusations of domestic violence can have serious legal and personal consequences. Even if the charges are ultimately dismissed, your reputation could be damaged. A knowledgeable Fremont domestic violence lawyer understands the significant effect of this offense and could help defend you against these charges. Call us today at The Nieves Law Firm for your free initial consultation to discuss your case with our experienced domestic violence lawyers. .

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