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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





The Difference Between Domestic Assault and Domestic Violence in Oakland

To many people, the difference between assault and domestic violence in Oakland is unclear. Domestic violence is typically charged under two Penal Code sections 273.5 and 243(e)(1).  Penal Code 273.5, which is known as Corporal Injury, occurs when an act of violence is committed against someone who is in an intimate relationship with the defendant that results in a traumatic injury. Penal Code section 243(e)(1) is charged when a battery is committed upon an intimate partner – even if that battery did not result in a traumatic injury.

Domestic violence crimes are distinct from crimes of simple assault or battery because there are added protections and penalties when the violence occurs against an intimate partner such as deportation, denial of naturalization, denial of entry, lifetime bans on firearm ownership, and presumptions about custodial arrangements in family law disputes.

Domestic violence is distinguished from simple battery and assault by the relationship of the parties involved.  When the act is  perpetrated against a spouse, a former spouse, someone who lives with their partner, or formerly lived with their partner, someone they have a child in common, or they were previously or currently in a dating or in an engagement relationship it can amount to domestic violence. If you are facing assault charges for allegedly harming someone who you have an established relationship with, it is essential that you call a local domestic violence defense attorney right away to protect your rights.

Are There Different Penalties for Domestic Violence Cases?

When one is convicted of domestic violence versus an assault, the charges on the surface level may seem similar, sharing many of the same elements for the prosecution to prove to the jury. However, the consequences of a conviction differ from those of an assault. An individual who was convicted of domestic violence may be required to attend a batterer’s intervention program, parenting classes, or other domestic violence counseling, can face a ban on their ability to own firearms for life even with a misdemeanor conviction of Penal Code section 273.5, can face deportation and other immigration consequences, and can be required to pay more substantial fines and fees and even face longer jail sentences especially if the domestic violence crime is charged as a felony.

The severity of the injuries in domestic violence cases often has an effect on the possible consequences and penalties. The more severe the injuries the more likely the crime may be charged as a felony and can even have a Gross Bodily Injury enhancement that will add state prison time exposure to the underlying domestic violence offense.  Domestic violence penalties can get severe rather quickly.

Protective and Restraining Orders

Regardless of whether the alleged crime was a general assault or domestic violence, a criminal protective order may be put in place to keep the accused and alleged victim apart. There might also be a domestic violence situation where a case is going through Family Court at the same time it is being tried in criminal court. When the two parties have a shared child and the Family Court gets involved, different types of domestic violence orders might be put in place to protect the alleged victims or children involved.

It is also common to see that a criminal court may issues a criminal protective order  but the victim of the crime also pursues a Domestic Violence Restraining Order in restraining order/ family court.  This creates added exposure for the accused because they now have to defend against criminal charges as well as a restraining order petition that can be put in place for up to 5 years – and is subject to renewal for life if there is cause to do so.  Domestic Violence Restraining Orders can also encompass orders about custody, visitation, support, control of animals, debt payments, and the like – it is critical to have representation for both actions to ensure that what is said in DVRO court does not affect the criminal action and that the individual’s rights against self-incrimination remain protected.

Knowing the Difference Between Assault and Domestic Abuse Makes a Difference

Domestic violence charges can have serious lifelong long consequences attached, lengthy jail or prison sentences imposed, year long domestic violence counseling requirements, stay away orders, search clauses, and much more. Domestic violence convictions can have an impact on family court dispositions, immigration proceedings, and basic civil liberties like gun ownership – even for misdemeanor PC 273.5 convictions with no ability to restore without a pardon.  The sooner an individual accused of a domestic violence crime contacts an experienced domestic violence attorney – the better.  Enlist the help of a lawyer who can guide you on the various considerations in domestic violence cases and can  help mount a defense that will protect your long term goals and life.

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