Domestic Violence Arrest

THE ARREST

In almost every case, where someone calls 911 to report a domestic violence incident someone is going to go to jail.  It doesn’t matter if the person that called doesn’t want the person arrested, it doesn’t matter if there are no injuries or other corroborating evidence, it doesn’t matter if it was self-defense or you were trying to protect the person from harming themselves or driving drunk.    Once the police arrive they decide who they think the aggressor was and make an arrest based on that analysis.  In most cases, police will take photos of any injuries or damage to property and will often audio record the statements of the parties and any witnesses including children who may have been present.      

LAW ENFORCEMENT REMOVAL OF GUNS

Law enforcement officers who are at the scene of a domestic violence incident involving a threat to human life or a physical assault must take temporary custody of any firearm in plain sight or discovered pursuant to a consensual or other lawful search for the protection of the officers or other persons present. Confiscated firearms must be held for at least 48 hours.

EMERGENCY PROTECTIVE ORDER

If the victim requests, an Emergency Protective Order (EPO) will be served on you by a police officer at the time of arrest. The judge will issue the EPO if there are reasonable grounds to believe that there is an immediate and present danger of abuse and the EPO is necessary to prevent the recurrence of abuse (Fam C §6251; Pen C §646.91).  An EPO may include personal conduct restraints, residence exclusion, and stay away orders  (Fam C §§6218, 6252).  An EPO is effective for 5 judicial business days after its issuance or 7 calendar days maximum after its issuance if a weekend or holiday falls within the time period (Fam C §§6256).

POLICE REPORTS SENT TO PROSECUTOR

After the police arrest you, they write a report. This report summarizes the events leading up to the arrest and provides witnesses names and other relevant information. Defendants generally don’t have a right to get a copy of the arrest report, but their lawyers do. This is to protect the identity of witnesses.

VICTIM DOESN’T WANT CHARGES FILED

In almost all first-time domestic violence cases, the complaining witness doesn’t want charges filed.  Unfortunately, once the case gets sent to the prosecutor for review it is out of the complaining witness’s hands.  Although the prosecutor will take into consideration whether the victim wants to pursue the case, the charging decision is still made based on the facts of the case, elements of the crime, and not the request of the parties. Prosecutors are trained to recognize “battered woman syndrome” so the prosecutor expects that the victim will not want to file charges against the alleged abuser.        

PROSECUTOR MAKES CHARGING DECISION

Once the prosecutor receives the police reports they first decide if they are going to file charges, and second, what charges to file. The prosecutor decides whether to charge the crime as a felony or a misdemeanor. The prosecutor can choose to dismiss the case, can file charges on all of the crimes for which the police arrested you, or can decide to file fewer charges or add more charges than were included in the arrest report.  Important factors relevant in the charging decision include extent of physical injuries, nature of threats, and prior criminal or domestic violence history.

FINDING OF FACTUAL INNOCENCE

If you were arrested and either had the charges dismissed, were acquitted at trial, or you believe you were wrongfully arrested and charged, you can file a motion to get the arrest removed from your criminal record.  To do this you file a finding of factual innocence motion.  You first file it with the police department that arrested you.  If they deny your motion, you then file a motion in court.  A hearing will be held in front of a judge to determine if you were factually innocent of the charge and shouldn’t have been arrested in the first place.  If the motion is granted, your arrest record will be cleared so no arrest shows up.    

EXPUNGEMENT

Even if you are convicted of domestic violence, you can still get your case expunged.  All misdemeanors and most felonies can be expunged.    An expungement allows you to lawfully answer that you have never been convicted of a crime.  To be eligible, you must have successfully completed probation, paid all your fines and fees, and completed the terms of your probation.  It is important that you present the best case to the judge hearing your request for a dismissal if you want the judge to grant the dismissal. When you hire our law firm, we will help you with your expungement so that your criminal record and history our as clean as possible.

YOU DON’T HAVE TO PLEAD GUILTY, CONTACT OUR OFFICE TODAY FOR A FREE SAME DAY CONSULTATION

We have successfully represented many individuals accused of domestic violence charges.  Even in tough cases, we are almost always able to get a better resolution in a case then if you handled it yourself, had the public defender, or other private attorney.  Our experienced and aggressive negotiating efforts usually result in dismissed or reduced charges and lesser punishment including less jail days, shorter classes, and smaller fines. Call out office today at (916) 939-3900 for a free consultation.

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