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STAGES IN A DOMESTIC VIOLENCE MATTER. How to get charges dismissed and/or obtain the best possible outcome. Former Domestic Violence Prosecutor gives a roadmap of a DV case. Dismissed before court should always be a working goal.

by | Nov 6, 2023 | Firm News |


What Happens After Someone Is Arrested For Domestic Violence Charges

When people call the police to diffuse a situation, they are often surprised to find out that they’re the ones who are ultimately arrested for committing a domestic violence crime. The Police often conduct a quick investigation and conclude who is the aggressor and see a scenario that may contain charges of domestic violence or battery, intimidating or dissuading a witness, false imprisonment, vandalism, and criminal threats (described in greater detail above).

When clients come into my office, they discover not only are they charged with domestic violence, but they have also been charged with one of the usual secondary charges that are associated with DV.  They learn that domestic violence matters can be charged as both a felony and a misdemeanor. No matter what the police arrest you for, you want to be proactive and begin working for the best possible outcome.  When you have been arrested for Domestic Violence, you want to work on getting the best possible outcome.  Get an award-winning former domestic violence prosecutor on your side.  Other defense attorneys get trained on DV defense by our firm.  We have proven results forged by experience.  We have written a published book on Domestic Violence defense.  If you want the best possible outcome, contact (858) 751-4384 to get the ball rolling.

The big question is “What is going to happen now”?  Every case is different (based on the facts of the specific event), but it is important to know the stages of a domestic violence matter.

1. Arrest

When someone is arrested on domestic violence charges, they are taken into custody and booked into jail. In most cases, these people need to get back home and to work, so they post bail. Once that occurs, the police officers may prepare and file an emergency protective order (temporary restraining order) against that person. The individual who was arrested cannot come within 100 yards of the property or the other person who was part of the incident. That could be devastating for the accused and leave him vulnerable.  This person has been arrested and spent thousands on bail, and it is now illegal for him to go back home. An officer will now have to escort the accused to their house to get any kind of belongings they may need. For a week to ten days, this person will have to stay with family or friends—or at a hotel—while that emergency protective order is in place. It is then up to the prosecution and/or judge to decide if that emergency protective order should be extended.

The intended purpose of the emergency protective order, in theory, is to provide the victim time to pursue a restraining order against an abuser.  The victim has around a week to do what she will need to get a restraining order served. The reality is, in many cases, the victim usually does not want any charges filed, and they do not want a restraining order. Even in these cases, it is still illegal for the arrested party to come home while the temporary orders are in effect.

Police officers have varying levels of discretion when it comes to the emergency protective order, which differs from agency to agency. A lot of law enforcement agencies inform their patrol officers to cover themselves and file the emergency protective order in most situations on behalf of the alleged victim.  Hypothetically, if the police officer stands down and no order is in place and the accused returns two days later, badly hurting his partner, that officer could find their job in jeopardy. That potential liability often leads officers to say, “I’m going to cover my butt,” so they place the protective order on the accused. It’s unfortunate, but understandable why the police officers do that. Domestic violence matters usually result in the arrest of a suspect. Once out of jail, the accused needs to begin repairing his reputation as much as possible before going to court or facing unwarranted consequences.

****I find it useful to imagine a person’s file.  That file is now on train and that train is on a track and will make it to its final destination (court).  There are several stops along the way.  In a perfect world, you want to track the progress of the file and do what you can to ultimately try to “stop the train” from getting to the final destination (court), and have the event rejected/dismissed.

2. The case goes to a Sergeant and/or a Detective

After the arrest, a patrol officer will write up the arrest report.  They will package the information to send it to the next phases, which is usually a senior officer who is better seasoned and trained in Domestic Violence matters.  This is when law enforcement looks more in-depth to examine and confirm the patrol officer’s assessment of the event.

Determining Who Is The Aggressor In A Domestic Violence Matter

Each law enforcement agency has basic domestic violence training that may differ slightly from agency to agency, but generally, a patrol officer is supposed to come on the scene and assess who is the aggressor. They quickly decide who is wearing the black hat (the bad person) and who is wearing the white hat (the good person). Unfortunately, the reality is that often the people involved are both wearing gray hats, and both had a hand in the incident. Both crossed lines and neither did anything more than the other.  However, grey does not work for police.  Their job is to label people “aggressor” or “victim”.

Demeanor May Decide Who Is The Aggressor

When the police come to a scene, they’re going to interview both individuals. They usually separate the parties and begin talking to them. Sometimes, the police make very quick assumptions about who is going to be the victim and who is going to be the aggressor. They often base this decision on someone’s demeanor. When the police arrive, someone might be more angry or uncooperative with the police because they are very emotional. It is found out later that the more cooperative person is the aggressor, and they cause most of the situation. At the scene, police do not dig too deep to find out that fact. When the officers investigate the scene, the reality is the calmer person usually feels guilty, retracting after realizing she’s driving against traffic.  However, the police conclude that this person is the alleged victim and arrest the other person.

A common scenario is where a husband says something very mean to his significant other. He knows he shouldn’t have said what he said to them. He knows it crossed the line. As a result of the statement, the significant other ends up very emotional. When the husband tries to apologize, they push him away, scratching him in the process. When the police arrive on the scene, the significant other is screaming and emotional. The police see the calm husband with scratches and conclude he is the victim. That significant other could end up being arrested because the officers are making assumptions based on a brief investigation without diving into the full context of what happened.

The detective may or may not contact the “victim”, who I call a complaining witness.

The Impact Of The Other Party (aka Victim) Dropping Charges

A common misconception is if an alleged victim recants domestic violence allegations that the charges will be dropped. In the old days, that was the case and the victim got to decide whether to prosecute or not. However, the logic now is that if that person is in an abusive relationship, they are not able to make a rational decision because of pressure, previous abuse, or potential future threats of abuse. The other party may get pressure not only from the accused but from family, friends, and even society. People will call a victim saying, “What are the kids going to do if the accused loses his job?” Or “Do you want to ruin their life?” This pressure can lead to victims dropping the charges, even when they don’t want to.

For these reasons, the government took the decision-making process away from “victims”. So, does the victim wanting to drop charges carry any weight with the government? It can. The prosecution will take into consideration their opinion when taking in the totality of the evidence and situation. It can carry more weight when it is part of a comprehensive defense.  When you have been arrested for Domestic Violence, you want to work on getting the best possible outcome.  Get an award-winning former domestic violence prosecutor on your side.  Other defense attorneys get trained on DV defense by our firm.  We have proven results forged by experience.  We have written a published book on Domestic Violence defense.  If you want the best possible outcome, contact (858) 751-4384 to get the ball rolling.

3. The case gets to the District Attorney for prosecutor review

Getting Domestic Violence Charges Dismissed Before Court

I am a firm believer in being proactive and encouraging clients to seek out ways to individually grow after a domestic violence (DV) incident. By acting quickly to get an experienced, capable lawyer on your side, many DV charges can be dismissed before they even reach a court. By getting the ball rolling early in the process, you can have the time to challenge the government’s evidence and take steps such as preparing mitigation packets to build your case for dismissal or a reduced charge. Our success in implementing a successful approach can be seen in the many positive reviews, testimonials, and awards our attorneys have received.

Our firm focuses on three distinct areas when developing a legal strategy for a defense:

•          Showing Character. The first step is separating an accused from other defendants. Unfortunately, the Public Defender’s office does not meet with its clients before being appointed. Furthermore, many private defense attorneys focus primarily on the facts of the case and evidence. As a former domestic violence prosecutor, establishing a good character for the accused is vital to get the best possible outcome. You want to show the accused has good character, is trusted by people, and is an asset to the community.

•          Finding Legal Issues And Calling Out all Weaknesses present in the prosecution’s Case.

Examining and scrutinizing the prosecution’s case is the most important area to focus on. It is the base of a comprehensive defense. Knowing the subject matter is crucial to finding what you are looking for in terms of evidence. What is not present in the prosecution’s facts is as important as what they possess. That is why it is key to retain an attorney who has the approach, experience, and success with domestic violence cases.  You want to highlight for the prosecution the proof issues in a case. If the prosecution cannot prove their case, they will be motivated to resolve the matter that ends with the accused winning.

•          Being Proactive. When someone is arrested on DV charges, they quickly realize how much punishment they may be exposed to. As their case evolves, the case begins to fall within a certain area on the spectrum of best- and worst-case scenarios. Once a case starts forming its framework, you want to be proactive. You can utilize this opportunity to get started on tasks that can help bring a favorable resolution.  Proactive tasks can include: taking classes, seeking counseling, volunteering at a nonprofit, etc.

Premier Domestic Violence Law Group is dedicated to always being proactive. In many cases, some unhealthy acts/traits/decisions came out and created actions that led to the arrest. The accused could have said the wrong things that he knew were going to inflame the situation. What was said might not have been criminal, but the words took the event to a whole another level. I often tell my clients, there’s a difference between doing something wrong and committing a criminal act. An accused should want to take the opportunity to make themself and their relationship better. What someone does not want to do is claim they did nothing wrong, declare themselves as a victim, and roll out blame on other people.

If there was anger, and your actions were unhealthy, then you should start taking anger management courses. Maybe there is an alcohol problem that negatively affects the relationship. Perhaps existing mental health issues cause anxiety or post-traumatic stress disorder (PTSD) that strains the relationship. In San Diego County, we have a large military contingent. Many active military and veterans are dealing with these issues that stem from their service. In these matters, someone can work with providers and the Veterans Affairs Department (VA) to get help. Premier Domestic Violence Law Group often crafts a resolution that has treatment as part of a favorable outcome, which in many cases ends in a dismissal.

Another option is counseling, which can be an invaluable tool. After the accused can find help for personal issues, we usually recommend seeking relationship counseling, especially if they are staying in the relationship.   However, we do not recommend that start with couples counseling. The accused should first start with personal counseling.  They then can pivot to tackling relationship issues after some time.

An Arrest Can Be A Wakeup Call

When a prosecutor is deciding whether to file charges or not, we want to confidently say, “This has been a wake-up call, and I will not return to a ‘back to business as usual’ mentality.” The prosecutors want to be assured that this isn’t going to be a vicious cycle or happen again in this or a new relationship.

People often swear they’re never going to get into a DV situation again, and things seem to get better for a time. However, bad habits come back and issues start reappearing. DV is often a cycle, going from one phase to another. The cycle of violence is real. We encourage our clients to be proactive and say, “I’ve got to break that wheel.”

The prosecutor will ultimately make a decision to issue charges or reject and dismiss charges.

When you have been arrested for Domestic Violence, you want to work on getting the best possible outcome.  Get an award-winning former domestic violence prosecutor on your side.  Other defense attorneys get trained on DV defense by our firm.  We have proven results forged by experience.  We have written a published book on Domestic Violence defense.  If you want the best possible outcome, contact (858) 751-4384 to get the ball rolling.

4. Arraignment

Arraignment is when you appear in court to hear the formal charges against you and enter a plea (you hopefully will be entering a plea of not guilty). Arraignment is often a quick proceeding, and in almost all cases, you will have to appear in person.

The court tends to act as a mediator while the case is ongoing. After the court has set the bond amount and you plead not guilty to the charges, the judge will give you and your attorney an opportunity to argue for a no-negative contact order or a full protective order.

Protective orders are often issued at the time of arraignment. That’s an order issued by the court preventing you from having any contact with the victim. This will usually cover the timeframe while the case is pending, but it can be amended depending on the circumstances. To me, this is an important part of the arraignment for most people. You want to make sure there is no order kicking you out of the home or restraining you from your significant other (who may want you home).

No Negative Contact Order vs. Criminal Protective Order

The main difference between a no negative contact order and a full criminal protective order is that the former allows you to still be around your spouse during the duration of the case. A full protective order prevents you from coming into contact with your spouse within a certain amount of feet or else you are looking at additional charges for violating this order. Also, full protective orders and no negative contact orders can be modified at any time.

Usually, if the evidence is strong against you it is in your best interest to start doing anger management classes or parenting classes to get the court to minimize the restrictions. Also, a mitigation packet including all the things that show you are a productive member of society helps in arguing for a no negative contact order as well. A full criminal protective order is a way to separate families for long periods of time. They are similar to Temporary Restraining Orders in the civil courts.

5. Pretrial Conferences Phase

After arraignment, there will be a pretrial date set.  A pretrial conference is when the defense attorney is conferring with the judge and prosecutor.  This is usually done in court in the judge’s chambers (in the back area of the courtrooms).  This is a meeting with the lawyers and judges only.  There can be one pretrial conference, while in other matters there may be more. There are usually more hearings to examine the evidence, confer with the prosecution, and talk resolution of the matter. Generally, there is an effort during the pretrial stage to settle the case without going to trial.

In addition to this, there should be a consistent back-and-forth of communication from the prosecution and defense.  It may be emails, phone calls, office visits, etc.  The goal is to work to resolve the matter.

6. Jury Trial

If the parties are unable to come to a resolution, then the matter will proceed with a full trial on the domestic violence charges.

This is the formal proceeding where the prosecution has to prove the charges beyond a reasonable doubt by a unanimous jury. Each side presents evidence, and then the jury will make a decision.  Statistically, very few cases go to jury trial.  However, a good defense works in a trial situation from the outset.  You want to work for the best outcome, but plan and have a solution for the worst-case scenario.

Every case is different. The way to the best possible outcome is to retain an experienced, domestic violence attorney and start getting proactive.

When you have been arrested for Domestic Violence, you want to work on getting the best possible outcome.  Get an award-winning former domestic violence prosecutor on your side.  Other defense attorneys get trained on DV defense by our firm.  We have proven results forged by experience.  We have written a published book on Domestic Violence defense.  If you want the best possible outcome, contact (858) 751-4384 to get the ball rolling.

Call now and let’s get the ball rolling.

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