Does Other Evidence Exist
The prosecutor’s decision of whether to proceed with the prosecution will often depend on the strength of other evidence in the case. Such evidence might include photographs of the spouse’s injuries, such as bruises, scratches, or black eyes. Even if the victim won’t testify, police officers and medical professionals may testify as to any injuries they observed on the spouse. In some states, witnesses may testify to statements made by the spouse to police, medical providers, and others.
What Is Domestic Violence
Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship . It is also when the abused person and the abusive person are closely related by blood or by marriage.
The domestic violence laws say abuse is:
- Physically hurting or trying to hurt someone, intentionally or recklessly
- Sexual assault
- Making someone reasonably afraid that they or someone else are about to be seriously hurt OR
- Behavior like harassing, stalking, threatening, or hitting someone disturbing someones peace or destroying someones personal property.
The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.
Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal , emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused. Read more about domestic violence and abuse. If you live in a tribal community in California and are experiencing domestic violence, click to get more information.
How Does A Misdemeanor Affect My Record
Misdemeanor convictions do not have the same severe consequences that felony charges do.
However, a misdemeanor still gives you a criminal record and could make it more difficult to prove your innocence in future criminal cases.
Similarly, if a job application asks if youve ever been convicted of a crime, youll need to answer yes and the misdemeanor will show on your record during the background check.
In some cases, an employer may only request criminal records back a set number of years. However, you dont want to rely on that being the case.
There is no set time for which a misdemeanor will no longer show on your criminal record. It will remain there unless you petition to have it expunged or sealed.
Although most first-time domestic violence charges are only a misdemeanor, it is not something you want to just plead guilty to and accept. You should still hire an attorney to defend you to avoid a conviction.
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Police Response To Domestic Violence
Originally prepared by Jennifer DeCarli, Domestic Violence Legal Coordinator, Empire Justice Center
What will happen if I report the domestic violence to the police?
If the police are called to the scene because you are being abused, they must make an arrest if they have probable cause to believe a family offense misdemeanor or a felony has been committed against you. To determine probable cause, police will look at whether or not there is evidence such as bruises, torn clothing, overturned furniture, witnesses to the violence, etc. In addition, the police must make an arrest if a stay away order of protection has been violated or if a family offense has been committed in violation of an order of protection.
The police are not required to make an arrest if there is only probable cause to believe a violation level crime was committed. However, if a criminal violation has been committed, the police should inform you of your right to press charges or proceed in Family Court by filing a family offense petition .
What should the police do at the scene?
The police are not allowed to ask you if you want your abusive partner or family member arrested. As described above, they must make an arrest in certain situations. However, the police should never ask you if you want your abusive partner arrested. You have the right to request that your abusive partner not be arrested, but the officer should never ask you first.
Defenses To Domestic Violence Charges
Given the severe consequences of a conviction for domestic violence, developing a strong defensive strategy is critical for the accused. Below are some of the most common defenses to a domestic violence charge:
- Accident. To be guilty of the crimes described above, a person must have acted willfully. An accidental act wont support a conviction, as Penal Code § 26 makes clear. However, it is only the act, and not the outcome, that needs to be willful. It is no defense that a person didnt intend to injure another as badly as he or she did.
- Alibi. If the person accused of domestic violence was not present when the alleged violence occurred, then he or she will generally not be guilty of any crime. Establishing an alibithat the defendant was elsewhere at that timewill disprove the alleged crime.
- Consent. In some circumstances, a person may consent to behavior that otherwise could constitute domestic violence. For example, if spouses take a martial-arts class together, they could each be considered to have consented to at least some injuries caused by the other as part of that class.
- Insufficient evidence. As in every criminal case, the prosecution must prove that a defendant committed domestic violence beyond a reasonable doubt. If the evidence is insufficient to support the charge, then the case may be dismissed, or the defendant may be acquitted.
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What Happens On A Domestic Violence Call
What Happens When Police First Respond to Domestic Violence Calls. When a dispute with your partner takes a turn for the worse, someone may the police. … When police arrive, they: Take in all the details of the circumstances leading to the phone to the police, including possible alleged assault and.
Current Legislation Has Removed Any Discretion The Police Would Normally Have In Trying To Resolve A Dispute Between Two People In A Relationship In Westchester County
Interviewer: So in years past, the police would attempt some counseling instead of an arrest?
Michael Kramer: In many situations, even outside domestic violence, the police had the discretion to settle disputes. There are consequences now if the police make a judgment call and act as an Attorney and the next night or a week later something tragic happens. They dont want to take the chance.
The district attorney can no longer say, Well we dont need an order of protection here. We dont have to have the husband move out of the house. We think its just typical dispute and they can get on with their lives. There are consequences if something tragic happens.
Those are the cases that make the news and those are the cases that cause bad law to be made and police to make an arrest under any circumstance, without using any judgment. This is why the number of domestic violence cases and the need for domestic violence attorneys have risen to dramatically.
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What Happens When Police Are Called For A Domestic Violence Case
The laws that determine police protocol when they are called to a domestic violence incident differ from state to state, and the procedure is particularly unique in Tennessee. It is worth understanding how police are told to act when they arrive on the scene and how this could affect your case if you are accused of domestic abuse. Most importantly, the consequences that you face as a result of domestic violence allegations can be severe. Therefore, it is crucial that you hire an experienced criminal defense attorney to make sure your rights were not violated during the arrest and help you determine the best strategy for defending against these charges.
Commonly Domestic Violence Laws In California
In California, there is not just one statute that makes domestic violence a crime. Instead, there are several statutes that define different types of domestic violence as separate crimes, such as:
- Crimes against intimate partners
- Crimes against elders or dependent adults.
Crimes Against Intimate Partners
Two of Californias most commonly used domestic violence laws, domestic battery and willful infliction, only apply when the alleged victim is an intimate partner of the accused. Under those statutes, an intimate partner is:
- A spouse or former spouse
- A person with whom the accused person is cohabiting
- A person who is the parent of the accuseds child or
- A person with whom the accused person currently has, or previously had, a dating or engagement relationship.
California law defines battery broadly. According to Penal Code § 242, battery is any willful and unlawful use of force or violence upon the person of another. Willful means that an act was done willingly or on purpose, not accidentally or through negligence.
The legal standard for force or violence is a low one. California courts have said that the least touching can qualify as battery, even if it causes no pain or physical injury. What matters is that the touching was done in a harmful or offensive manner. To illustrate, some examples of battery can include:
- Pushing or shoving someone
- Gripping a person by the wrist or
- Spitting on someone.
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Investigations Into Domestic Violence Allegations
When the police respond to an alleged domestic violence incident, they are required to investigate. They will want to talk to those involved and any witnesses separately. It is normal for more than one officer to arrive and that they attempt to interview parties in different rooms. After all parties are interviewed, the police will discuss what they have heard with each other.
If there is evidence present, such as blood or damage to property, the police may designate it a crime scene. They may bring in photographers, investigators, and supervisors to process the scene. Police will generally ask if the alleged victim needs medical care. Their injuries are likely to be photographed.
While the polices job is to stay impartial and be fair to all parties involved, in many cases the cards are stacked against a person charged with domestic violence. That is one reason that we strongly recommend talking to a domestic violence attorney in Irvine CA before making any statements to the police. You can contact Law Office of Michael L. Fell at 585-9055 for a free legal consultation.
Victim Witness Assistance Center
If you are a victim of a violent crime, you have the right to get money for medical expenses, lost wages, and counseling for yourself or your children.
The victim witness assistance center can help you get:
- Emergency services, like food, shelter, clothes, and transportation
- Someone to be with you at court and
Find your local victim witness assistance center.
If, as the victim, you do not want a criminal restraining order to be issued, you can explain to the district attorney why you believe it would be best, given the circumstances, not to pursue a criminal restraining order. You can also tell the judge your reasons for not wanting a criminal restraining order, and the judge will make the final decision.
If someone calls you about the caseIf someone calls you about the case, ask the caller who they work with. Unless there is a specific court order that says you must talk with the caller, you have the right to talk to or refuse to talk to anyone, including:
- The defendant’s attorney or investigator
- The Public Defender’s Office or
- The District Attorney’s Office or the police
Plea agreementsMost domestic violence cases do not go to trial. Usually, there is a plea agreement. This means the DA’s Office, the defense attorney, and the defendant agree on the charges and the conditions of the sentence.
Disposition of the caseThe victim has the right to ask the district attorney about the outcome of the case.
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Common Domestic Violence Charges In California
In the state of California, domestic violence is a very broad legal term that covers a wide range of different situations. The most commonly charged crimes include:
- Penal Code 273.6 PC violate restraining order.
Other common domestic violence situations include general harassment and posting damaging or harmful information online in violation of California Penal Code 647 revenge porn laws.
If you are facing domestic violence charges, our criminal defense lawyers know how to negotiate with the prosecutor in an effort to obtain the best possible result.
Penalties & Sentencing For Pc 2735
This also allows the court to reduce a felony under this section to a misdemeanor or for your attorney to negotiate it down if you are charged with felony domestic violence.
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There Is An Nco In Place Can I Still See My Kids
If the issue of contact with the children is not addressed in the NCO, it may seriously impair your ability to see your children. If the court issuing the NCO can be convinced that no safety concerns of the victim will be compromised, it may create limited exceptions within the NCO that allow for contact between the parties for the purposes of childcare and visitation. These issues must be addressed at the time of the NCO hearing, however. If it is not, the fact that the contact was made only for purposed of seeing the children will not constitute a defense to a charge of violating the no-contact order.
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For Purposes Of Custody Disputes
The California Family Code has a longer list of people who can be considered victims of domestic violence. In addition to intimate partners, victims can include:
- The defendants child,6 or
- Any other person related by to the defendant by consanguinity or affinity within the second degree, including:
- Brothers and sisters,
These additional categories are important for purposes of California custody laws, discussed in Section 5.5, below.
Is The Police Held Accountable For Domestic Violence
In public, senior police have consistently claimed they hold serving officers to higher standards and even more accountable for committing domestic violence. But behind closed doors, police concede theyre treating badged abusers differently to offenders in the broader community.
If police are called to handle a situation between a couple with children, it is possible that both adults could be arrested. If all caretaking adults are arrested and there are minors in the house, the police will likely call Child Protective Services to take custody of the children.
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For Purposes Of Criminal Law
California domestic violence laws define domestic violence as abuse against an intimate partner. An intimate partner is defined as:
- A current or former spouse,
- A current or former registered domestic partner,3
- A current or former fiancé,
- A current or former live-in romantic partner ,4
- A person with whom the accused has, or has had, a child, or
- Someone the accused is seriously dating or was in a dating relationship with in the past.5
Domestic Violence Statutes In California
There are multiple statutes that criminalize acts of domestic violence in the state. Here is a list and short description of what each one requires that the prosecutor proves.
Penal Code § 136.1
This statute criminalizes dissuading witnesses from reporting crimes, and it may be charged as a misdemeanor or a felony. For the misdemeanor, you could face up to a year in the county jail. If you are charged with a felony, you could face anywhere from 16 months to 3 years in state prison. In order for you to be convicted, the prosecutor needs to prove that you tried to keep either the victim or another witness from reporting what happened to the police. This includes asking people not to show up in court after your case has been filed.
Penal Code § 240-241
This statute criminalizes simple assault, a misdemeanor offense. If you are convicted, you could be sentenced to serve up to a year in jail. To secure a conviction, the prosecutor must be able to prove that you tried to commit a violent injury to someone else at a time when you had the ability to cause harm. This may be charged if you swung at and missed your victim.
Penal Code § 242-243
Penal Code § 273.5
Penal Code § 273.6
Penal Code § 422
Penal Code § 591
Penal Code § 653m
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