Domestic Violence - Misdemeanor

MISDEMEANOR DOMESTIC VIOLENCE 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.

DOMESTIC VIOLENCE MISDEMEANOR ARREST

If the officers decide that there was minimal contact between the parties and they don’t believe that any of the parties are in danger, they will usually arrest on a misdemeanor DV charge.  This means the bail will usually be about $5000 to $10,000 unlike a felony DV bail which is $50,000 to $100,000.      

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 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.

MISDEMEANOR DOMESTIC VIOLENCE CHARGES

Most domestic violence charges can be filed as either a misdemeanor or felony.  If the district attorney decides to file the charges as misdemeanors, you are in a better situation then if the charges are filed as felonies.        

THE ARRAIGNMENT

The arraignment is the first time you appear in court.  In a domestic violence case, you must personally appear in court even in misdemeanor cases.  At the arraignment, the judge tells you the charges you are facing, advises you about your constitutional rights, and appoints the public defender if you can’t afford an attorney.  The court also reviews bail and release conditions and decides if a protective order should be issued.

ARRAIGNMENT – CRIMINAL PROTECTIVE ORDER

In all DV cases, the prosecutor will ask for a criminal protective order (CPO) to be put in place to protect the victim or witnesses from harm or intimidation (Pen C §136.2).  In almost all cases, the judge will order the CPO to be issued and served on the defendant in court.  The CPO includes personal conduct restraints, stay away orders, and firearm prohibitions.  During the term of the protective order the defendant cannot own, possess, purchase or receive any firearms (Pen C §12021(g)).  The CPO remains in effect until the defendant is no longer subject to the court’s jurisdiction.  The only way not to have a CPO issued is to have the victim appear in court and tell the judge they do not want the protective order to issue.  Even if the judge agrees, a judge may still issue a no harassment order which means the defendant is ordered not to harass, strike, or annoy the victim.            

AFTER THE ARRAIGNMENT – MISDEMEANOR CASE

After the arraignment, there are several pretrial settlement conferences where the judge and lawyers from both sides talk about resolving the case prior to trial.   During this time, the prosecution and defense exchange information which is called discovery.  This includes any investigative statements obtained by the defense from the victim or other witnesses which might get the case dismissed.  Either side can file pretrial motions, including motions to set aside the complaint, to dismiss the case, or to prevent evidence from being used at trial.  If a settlement is reached, the defendant can change his or her plea to guilty or no contest.  If no settlement is reached, a trial date is set.      

BEFORE TRIAL

Before trial, there are several pretrial settlement conferences where the judge and lawyers from both sides talk about resolving the case prior to trial.   During this time, the prosecution and defense exchange information which is called discovery.  This includes any investigative statements obtained by the defense from the victim or other witnesses which might get the case dismissed.  Either side can file pretrial motions, including motions to set aside the information, to dismiss the case, or to prevent evidence from being used at trial.  If a settlement is reached, the defendant can change his or her plea to guilty or no contest.  If no settlement is reached, trial is confirmed.  

TRIAL

Defendants in criminal cases have the right to have a jury decide their guilt or innocence.   Everyone accused of a crime is presumed to be innocent until they are convicted.  It is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. Since the burden of proof is on the prosecutor, the defendant has the right to remain silent and that silence cannot be used against them.

WHAT HAPPENS AT TRIAL

Before the trial starts, the lawyers choose a jury through a process called “voir dire.” The attorneys on both sides ask questions of the potential jurors to make sure the jurors will be fair and impartial.  Before the lawyer’s present evidence and witnesses, both sides give an opening statement about the case.  During the trial, lawyers present evidence through witnesses who testify about what they saw or know.  After all the evidence is presented, the lawyers give their closing arguments.  At the end of the case, the jury decides if the defendant is guilty or not guilty. The jury must find the defendant guilty beyond a reasonable doubt.

VERDICT

If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. Because of “double jeopardy,” the defendant can never be tried again for the same crime. A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal.  If the defendant is found guilty, the defendant will be sentenced.

SENTENCING

Whether you plead guilty, enter a no contest plea or are convicted at trial, at some point in time you will be sentenced in your DV case.  You must be present at your sentencing even in misdemeanor cases because the court is going to order specific probation terms applicable to DV cases including a mandatory batter’s treatment program, gun prohibition, and issuance of a criminal protective order.      

JAIL VS. ALTERNATIVE SENTENCING

Every county handles domestic violence sentences differently.  Some counties don’t allow alternative sentencing for DV cases while others allow alternative sentencing.  If the county allows you to complete your sentence through alternative sentencing, you can complete it by doing work furlough, community service, medical home detention or work project.  If the county doesn’t allow alternative sentencing, you must do your time in jail.        

FORMAL VS. INFORMAL PROBATION

In many counties, you will be placed on informal probation for a misdemeanor DV conviction.  However, in some counties, you will be placed on formal misdemeanor probation on DV offenses because of the mandatory probation conditions.  The difference is that on informal probation you do not have a probation officer while on formal probation you must report to a probation officer who will supervise you. Formal probation can include regular drug/alcohol testing, probation searches, and regular contact with your probation officer.  

DV PROBATION TERMS

If a person is granted probation for a domestic violence crime, the terms of probation are found in penal code section 1203.097 and include:

• At least 3 years formal or informal probation.
• A criminal protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, residence exclusion or stay-away conditions.
• Notice to the victim of the disposition of the case.
• A minimum $500 batterers treatment fund fine.
• Successful completion of a 52-week batterer’s program.
• Completion of community service.

The program shall immediately report any violation of the terms of the protective order, including any new acts of violence or failure to comply with the program requirements, to the court, the prosecutor, and, if formal probation has been ordered, to the probation department. The probationer shall file proof of enrollment in a batterer’s program with the court within 30 days of conviction.

RELINQUISHMENT OF GUNS – DOMESTIC VIOLENCE CONVICTIONS

Requires defendants convicted of domestic violence offenses, to provide proof that they sold or transferred their firearms within specified timeframes after conviction. It also requires assigned probation officers and courts to verify that the defendant complied with this requirement before final disposition of the defendant’s case and authorizes the court to issue search warrants to recover illegally retained firearms from defendants who fail to comply.

VIOLATING DV PROBATION

You will be in violation of probation if you fail to comply with the court ordered probation terms including failing to enroll/complete domestic violence classes, complete community service requirements, appear in court when ordered, or completing your jail sentence.  If probation is violated, the judge will issue a bench warrant which will be sent to law enforcement.  You will then be arrested and brought back to court to answer for the violation of probation.

DV VIOLATION OF PROBATION PUNISHMENT

Violating dui probation results in additional punishment.  This could include actual jail time instead of alternative sentencing, a longer sentence for the VOP that is added to your original sentence, extending your probation term, moving from informal probation to formal probation, and adding additional terms like treatment or community service.              

DV FINES AND FEES

You can expect to pay fines and fees if you are convicted of a DV charge.  Most courts will allow you to make payments.  If you fail to make payments, you will be referred to collections.  If you are referred to collections, your license will be suspended for failing to make payments and you will not be able to get your license reinstated until you pay off the amount you owe.  You may also have your probation violated for not making payments.  In some jurisdictions, you may be able to convert you your fines/fees to alternative sentencing which can save you a lot of money.        

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 our office today at (916) 939-3900 for a free consultation.

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