San Diego Domestic Violence Defense Lawyer
Being accused of domestic violence can make you feel like your world is coming undone. A charge may be enough to prevent you from seeing your kids or lead to a series of restraining orders. While assault and battery charges are serious under California law, violence against someone you live with is often viewed as a more severe offense. Therefore, domestic violence cases are often complex and may involve a history of trouble.
False Domestic Violence Allegations
Domestic violence is not the right answer to settling a conflict, but unfortunately in many cases, the situation can be exaggerated, misunderstood, or entirely made up. Spouses, roommates, and others in domestic partners may use criminal charges as an unfair way to get back at someone. Especially in cases where it is one person’s word against another’s, along with false testimony in court, these cases can lead to false imprisonment and forever change a person’s life.
Every domestic violence situation deserves extensive scrutiny, but unfortunately, prosecutors are typically so interested in gaining a conviction that they may overlook important pieces of evidence. The accusers’ character and history and the circumstances at the time of the dispute will all play a major role in whether or not a defendant is convicted.
Anyone who has been in a domestic violence situation knows that when police are called its likely someone will be arrested. The police who come out may be city police or sheriff’s department depending on where you live.
Usually police will separate the parties involved and make sure that any children in the home are safe. If there has been any violence or threats of violence police will take statements and photo’s of the scene. There is often a difficult choice for police who have a situation where both parties were being violent or threatening violence. Often its not the person who called police that gets arrested for domestic violence.
Following an arrest the arresting officers must compile a report of the incident with statements from all parties. These statements along with photo’s of the scene and any injuries will go into an incident and arrest report. This report is crucial in determining how a domestic violence case will proceed. Statements from a victim and the person arrested are often filled with inaccuracies and misstatements due to the contentious nature of the event.
A defendant has no input into what will go into the officer’s report before it is sent to the prosecution. Once in the hands of a prosecutor it is their job to decide if formal criminal charges should be filed.
Professional investigators can often be the difference in having a case that is dismissed or even obtaining a dismissal at trial. Evidence of domestic violence and initial statements made to police can be devastating to a defendant. Having experts who seek information early in the process can save a case that otherwise would be impossible to bring to a Jury.
Number of Reported Domestic Violence Cases in San Diego (1986-2015)
Types of Domestic Violence
In the state of California, many different crimes fall under the banner of domestic violence. Injuring a spouse, child, or cohabitant in a violent way is considered a criminal act. Even if you grabbed someone’s arm too hard during an argument, you could be charged with domestic violence. Child abuse, child endangerment, rape, sexual assault, criminal threats, and elder abuse are also considered criminal offenses. If you cause physical harm or threaten to harm anyone in the household, you could face an uphill battle of domestic violence charges that could change your life forever.
In San Diego, domestic violence cases are often filed with little or no contact between investigators and the alleged victim. A defendant who suffers an arrest for domestic violence can feel helpless, as though the entire system is setup to place blame and guilt without considering the actual facts of the case.
The work of a criminal defense lawyer begins by speaking with the client to establish the true facts of an incident. Building a strong defense to any case takes years of experience and knowing where to find the answers. Arrest reports written by police can be strongly biased against one party and often leaves out crucial details that can be the difference between a dismissal and a serious conviction.
The category of crimes which are felonies require something more than simple touching by the defendant. A serious injury must have taken place for felony charges. Either a traumatic condition or some internal injury beyond what is often seen in domestic violence cases. The consequences for any felony conviction of this nature can include prison time. A felony conviction can easily exclude professionals from keeping their license. Military personnel and many other workers can have their livelihood list after even a felony arrest.
These trials involve not only serious consequences but complex law. Experts and psychologists are often very important in cases where there is a history of mutual fighting between the parties. Issues such as drug and alcohol use can be critical in how a case proceeds.
When there are felony charges in any case one goal is to test the evidence of the prosecution through expert witnesses. In these cases every allegation can add years to a sentence. The types of injury’s involved and how they were caused is key to the evidence at trial. Physician experts and domestic violence experts are invaluable when trying to prove certain aspects of the event.
The injury in these cases is also defined as a “traumatic condition.” This language means that the injuries caused don’t have to be visible but are in fact serious and not merely bruises or emotional distress. Domestic violence laws now include strangulation as a specific offense that can be charged as a felony. Injuries in these cases can be difficult to examine and explain. The use of experts by the prosecution is almost guaranteed in any case that goes to trial. Understanding how and when to use domestic violence experts is crucial to any defense. A domestic violence lawyer who has tried such cases will know which experts should be consulted for the best defense.
CA PC 243(e) or Domestic Battery
This is the law defining misdemeanor domestic violence. Many defendant’s who get arrested for felony domestic violence are ultimately charged with PC243(e)1 in Court. The choice of what crime to charge lies with the prosecutor. However many cases can be defended with early investigation into the true nature of the incident. Misdemeanor domestic battery is the lesser offense for domestic violence.
Domestic battery is the same crime as a normal battery committed on someone you have a relationship with. Battery itself is any harmful or offensive contact. The standard for arrest in these cases is quite low and does not require actual physical harm being done to the victim. Even slight contact in the context of a fight or dispute can be cause for arrest. Prosecuting these cases again comes down to witness statements and past history with police and domestic disturbances.
Domestic Violence Defenses
The best way to start a defense of any domestic violence case is speaking with an attorney who has tried and won cases in jury trials. Domestic violence cases have many complex elements which require experience to understand. From the early investigation of witnesses and victim statements, to domestic violence trauma experts; everything in these cases matters. The psychology of how a jury receives evidence and can appreciate the story being told is crucial to winning a case.
What can be tragic in these cases is that many times it is the long time victim of domestic abuse who will get arrested. Many domestic violence victims have suffered abuse and harm for years without ever reporting the incidents or filing charges with police. However it only takes the one time to call the police and have them come out and arrest the wrong person. Abuse victims often become enraged and can seek to protect themselves and family following repeated instances of suffering harm. The police of course can’t look back in time at the long history of abuse a person suffered, they only look at the scene they are presented with. Being on the wrong side of a police call for domestic abuse can be devastating.
Domestic Violence and Criminal Protective Orders
In almost all domestic violence cases the city attorney or district attorney will request the court to issue a criminal protective order, often at arraignment. A defendant facing misdemeanor or felony charges for domestic violence or even battery will likely face this type of restraining order. Misdemeanor domestic violence PC 243(e)1 is also known as the domestic battery law. Unlike other misdemeanor offenses, when a client is charged with domestic battery, they are required to personally appear before the court for every hearing. At the arraignment date the accused will be informed of what criminal charges they are facing and when the offense is alleged to have occurred.
A judge will decide to issue a criminal protective order if the Court believes it is reasonable likely to occur or there has been:
- Physical Harm to a victim or witness
- Intimidation or threats to a witness or victim
At felony or misdemeanor arraignment, the prosecutor will ask the judge to issue a criminal protective order under Penal Code Sec. 136.2. The protective order will be granted without a formal hearing. Issuing this order does not require proof that the crime occurred beyond a reasonable doubt or even any evidence being presented. The law requires only a “good cause belief” by the Judge to impose a criminal protective order. The purpose of protective orders is not only to prevent any continuing contact between a defendant and an alleged victim but also prevent communication through third parties. Attempts to influence statements or testimony of people involved in a criminal case is a serious offense.
Which involve a criminal protective order?
- Domestic Violence (Infliction of corporal injury) California Penal Code 273.5
- Domestic Battery, CA PC 243(e)
- False Imprisonment, CA PC 236
- Child Abduction, California PC 278, CA PC 278.5
- Intimidating Victim or Witness, CA Penal Code 136.1
- Violation of Domestic Violence Protective Order, CA PC 273.6
- Rape of Spouse, California Penal Code 262
- Stalking, CA Penal Code 646.9
What if I Violate a Protective Order?
If you are charged with a domestic violence related offense such as battery, aggravated assault or some sexual offenses, the protective order will be in place while the case is in court. This means that you will be restricted from making any contact with the protected party until the outcome of your case is decided.
These restraining orders are used in all felony and misdemeanor domestic violence cases. Special circumstances can be used to ensure that visitation between parents and children can continue.
A violation of a protective order is addressed in California Penal Code 136.1; it is punishable as a misdemeanor or felony (wobbler). Any individual who does or attempts to dissuade a person from attending a trial or giving testimony in a proceeding can be charged with violation of a protective order. If the violation or attempted intimidation is accompanied by use or threat of force or if the individual has previously been convicted of violating CA PC 136.1, the offense can be charged as a felony and punished with significant time in state prison. Such intimidation or violations do not have to be proven specifically but can be alleged as a “continuous course of conduct” offense. The prosecutor can attempt to prove this by showing multiple instances of intimidation, criminal threat under CA Penal Code 422 or stalking under California Penal Code 646.9.
Can A Domestic Violence Arrest be Expunged?
If your criminal defense lawyer is able to get involved in your case early on, then yes it is possible. The first step after a domestic violence arrest is getting in touch with the prosecutors office to discuss the case. Gathering additional statements and evidence from witnesses and victims can be crucial to preventing formal charges.
If a criminal complaint is not filed in court the second problem arises, what to do about the arrest record. Even if you are not convicted of domestic violence the arrest will show up on any background check. Your criminal lawyer must file motions with the arresting agency to request that the arrest record be sealed and destroyed from public access. If the initial request with police under CA PC 851.7 and PC 851.8 is not successful the process moves to the Courts.
A formal motion and hearing must be set in front of a Judge to ask that the arrest record involving domestic violence be sealed and destroyed. Without this relief anyone applying for work or school where a background check is done will have the arrest record revealed.
Domestic Violence Cases and Family Law Court
A domestic violence lawyer often deals with two types of Court’s that overlap. Many criminal domestic violence cases have a long history that comes from the Family Court. Ex-husbands and wives may have domestic disputes that go back years. If a case becomes so serious that someone is charged with a domestic violence crime the past records in Family Court can be used as evidence.
Many individuals with domestic violence cases in criminal court face steep hurdles in their family law cases. Evidence of past restraining orders or reports of abuse can be brought into a criminal trial. It is important for a criminal lawyer to have an understanding of all the court systems which can impact a persons life. Navigating between criminal and family court can be complicated and involves serious consequences for the client.
If you are being investigated for or charged with a count of domestic violence, it is important that you seek the advice of an experienced domestic violence attorney as soon as you can. Contact our office in San Diego today to get started on your defense case against a domestic violence charge.