When it comes to a domestic violence arrest, many questions come up for the person facing the charges. How serious are the charges? What can be expected? Does he or she have any rights or a possible defense?
How Serious Is Domestic Violence?
A domestic violence charge is normally a misdemeanor, but this category does not mean the offense is not serious.
Even though most arrests are misdemeanor domestic violence offenses, a conviction for domestic violence requires mandatory jail time and can affect other rights of the person charged.
One of these rights is the right to own or purchase a firearm. Under federal law, a person who has been arrested and convicted of a domestic violence charge is disqualified from owning firearms under federal law.
Therefore, if someone has been arrested for a domestic violence offense, it is extremely important that he or she talk to an attorney regarding that person’s rights and how to proceed.
What Is Considered Domestic Violence?
Any use of force, even a small push, can be considered violence under domestic violence laws. An argument can become heated and escalate into pushing or slapping.
Many people believe that if the force used is not that significant it should not be considered domestic violence. However, the law dictates that even a small use of force qualifies.
This issue becomes a problem after the police are called following a domestic dispute, and one party admits to using minor force against the other. That admission of even a small push in anger is an admission to battery and can and will be used against that person in a later case.
Domestic violence involves an incident that occurs within a “domestic” relationship, which the state defines broadly. It does not just include romantic relationships but can include familial ones, as well.
What Happens if the “Victim” Agrees to Not Press Charges?
This situation happens a lot. A domestic incident occurs, the police are called, and the “victim” says he or she will not “press charges.” The instigator may mistakenly believe the charges will just go away.
However, whenever the police are called, it does not matter if the victim does not want to pursue the charges. The district attorney is ultimately the person who makes that decision, and once the wheels get rolling, the case may not be able to be stopped.
Understanding Requests of the District Attorney
At court, the district attorney may request sixty days, and the defendant will be given a new date to come back to court.
What this means is the district attorney has not yet filed a criminal complaint. The State technically has one year from the date of the incident to file the complaint. If the district attorney says that the charges were “denied,” this means that he or she has chosen to not file charges in the case.
However, even after the district attorney has denied the charges, so long has the one year time limit has not passed, he or she can still file charges later.
Temporary Restraining Order or No Contact Order
If the defendant has a domestic violence case pending or has pleaded guilty or no contest to a domestic violence charge, a “no contact order” may be issued. Under these orders, the defendant may not have any contact with the alleged victim in person, by phone, email or text message, until the case is closed, or the no contact order is lifted by the judge.
A temporary restraining order (TRO) is a different type of protective order issued by a hearing master in Family Court. Violating a TRO can result in a contempt charge or separate prosecution for violation of a TRO, which is a separate criminal offense.
Sometimes a no contact order may be in place at the same time as a TRO. Lifting the no contact order has no effect on the TRO, however, since they are in two different courts.
He Said, She Said
Many times, these domestic violence cases are a matter of his word versus her word of what happened. One matter to keep in mind is the standard that is required for filing charges versus the standard of proof to win the criminal case.
The police need what is known as “probable cause” to charge someone with a crime. Many times, the in-person statement made by the “victim” of the domestic violence is sufficient to meet this low standard.
However, once the charges are filed, it is up the prosecutor to wine the case beyond a reasonable doubt, which is a much higher standard. Therefore, he or she will need more than just the one word of the victim against the word of the instigator. Other evidence will likely need to be submitted to win the case successfully.
What If the Victim Fails to Appear?
In a domestic violence case, if the victim does not show up at trial, the charges may end up being dismissed. Depending on the evidence the prosecution has, however, the case may go forward without the victim’s testimony. However, that does make the case harder to win.
If the victim does not appear and it is later found that he or she did not come because the defendant threatened him or her, that can result in a serious criminal charge.
The prosecution may also be able to compel the witness to appear by obtaining a material witness warrant to get the victim to testify.
Contact Us Today
If you are the victim of domestic violence or have been accused of committing a domestic violence battery, let Dan and his team go to work for you. Call 24/7 to schedule a free consultation: (702) 848-5000.