Domestic Violence – A General Overview

A criminal arrest for domestic violence is an extremely serious matter and can have long-term impacts on your career, finances, and living situation. It is important that you understand the charges against you and their consequences. It is just as important that you find an attorney that can effectively defend you and your interests.

Domestic Violence Arrest

The first thing that generally happens in a domestic violence situation is that someone calls 911. It might be the alleged victim, it might be a neighbor, it might even be the accused individual. The important point here is that the decision to call the police is generally the last meaningful decision the involved parties are going to be making for a while.

In California when a police officer responds to a call alleging domestic violence or a violation of a DV restraining order, they are required under California Penal Code § 836(c) to make an arrest if they believe probable cause exists. In most cases, the mere fact that 911 was called is enough to give the officer that probable cause. What that means is: Once 911 is called someone is going to get arrested. Arrests for domestic violence can and do occur even in cases where the “victim” meets the officer when he arrives and informs him that nothing happened and that they do not want to press charges.

Once arrested, a defendant will be jailed from 24 to 48 hours during which time they are expected to contact a bail agency and seek legal representation. The default bail schedule for a domestic violence charge can be up to $50,000 and can be higher if the accused has a prior criminal record. The cost of a bail policy is generally 10% of the total bail amount. However, Ryan Leary at Bad Boys Bail Bonds offers a better rate if you call him at 408-493-3664. Defendants who are unable to make bail due to their financial situation are often required to wait in jail until the time of their arraignment. Established law practices such as ours receive a significant reduction to bail premiums for our clients.

Domestic Violence No Contact Order & Temporary Restraining Order

When being released from jail after the initial arrest the police will issue a “temporary restraining order”. This temporary restraining order makes it a criminal offense to have contact with your significant other for a period of time, typically 5 days. A no-contact order is a similar order that is almost always put in place at your first court appearance, the arraignment. This means that many defendants find themselves unable to go home or see their children. A “no contact” order also prevents you from calling or texting the protected party. If you are in such a situation it is important that you seek legal representation. A lawyer can act as a go-between for you and the protected party and can get the ball rolling on getting the no contact order revoked or modified to a “peaceful contact order”. In most cases in Santa Clara County, the protected party will have to take a short “victim counseling” course offered by the county before they can formally request the no-contact order be lifted or modified.

Domestic Violence Arraignment

When a defendant makes bail and is released they will be given a hearing date for their arraignment. This will typically be from one week to one month in the future. At your arraignment, you will be formally informed of the specific criminal charges being brought against you and will enter your plea. It is also at this point that your attorney will present themselves to the court and become your attorney of record. After this point, your attorney will be able to make motions on your behalf, request documents and evidence, and appear for you for certain hearings. At this point, if your significant other is present they may request a modification of the no-contact order. If the protected party is not present to make that request the order will not be lifted. And if they have not attended the “victim counseling” course the modification will probably not be granted.

Possible Domestic Violence Charges & Penalties

There are several different charges that can be brought against you in a domestic violence case. They are differentiated by the degree of severity and the identity of the victim. The following list is presented from most severe to least and does not include cases of child or elder abuse, which are special categories.

Penal Code § 273.5 Typically referred to as “Corporal Injury to a Spouse/Cohabitant”

This statute applies to domestic violence cases where a “corporal injury resulting in a traumatic condition” is alleged. A traumatic condition is a condition that leaves a wound or laceration, internal bleeding, broken bones, or any injury resulting in scarring. Section 273.5(d) specifically adds that that even minor injuries qualify if they are the result of strangulation or choking. A violation of this statute is a felony and can result in severe penalties. If you have been arrested or charged with a violation of 273.5 you should contact an attorney immediately. Penalties for a violation can include:

  • Up to 4 years in state prison.
  • Up to a $6000 base fine.
  • Up to a $5000 fine payable to a local battered woman’s shelter.
  • Legal status as a “domestic violence offender” which can significantly increase spousal support payments and prevent you from receiving joint custody or visitation rights with your children.
  • If a prior conviction for a domestic violence felony or misdemeanor occurred within 7 years an additional prison sentence of 5 years and $10,000 in fines can be added.
  • Remains on your record for life.

Penal Code § 243(e) Typically referred to as “Domestic Battery”

This statute applied to domestic violence cases where a battery occurs but the injuries are not severe or “traumatic”. A battery does not require that any actual injury have been caused. All that is required for a charge of battery is that the victim has been touched in a violent or aggressive manner. This can include shoving, grabbing, or restraining. A charge of domestic battery is not a felony but is still a very serious matter. A violation of the statute can result in:

  • Up to 1 year in county jail.
  • Up to a $2000 base fine.
  • Up to a $5000 fine payable to a local battered woman’s shelter.
  • Legal status as a “domestic violence offender” can significantly increase spousal support payments and prevent you from receiving joint custody or visitation rights with your children.
  • Possible prison time and felony status if the battery caused “great bodily injury”.
  • Can be expunged from your record after you successfully complete probation.

Penal Code § 415 Typically referred to as “Disturbing the Peace”

Disturbing the Peace is rarely the most severe charge brought in a domestic violence context. Disturbing the peace can include “fighting ins a public place”, willfully making a “loud and unreasonable noise” or “using offensive words in public”. Penal Code § 415 can be charged as either an infraction with only a fine or as a more serious misdemeanor with a relatively small amount of jail time. While “disturbing the peace” is rarely the primary charge in a domestic violence case, a skillful lawyer can negotiate with prosecutors to lower one of the above charges to a disturbing the peace plea deal. Aside from the obvious benefits of lower fines and jail time, a disturbing the peace conviction does not count as a violent crime and does not count as a crime of domestic violence. Possible penalties include:

  • Up to 90 days in county jail.
  • Up to a $400 base fine.
  • Does not appear on your permanent record.

Domestic Violence Defenses

There are several defenses that can be presented by an experienced domestic violence attorney in order to help you prove your innocence. Some, all or none may apply to your case. Even if none of these defenses apply an attorney can negotiate on your behalf to try to secure a plea deal.

Factual Innocence

Because of the mandatory arrest law on the books, (Penal Code § 836(c)), any time the police are called to respond to a suspected domestic violence case they will make an arrest and this arrest will almost always result in charges being brought. This means that even if a call is made by a neighbor or relative who mistakenly believes that domestic violence is taking place, the arrested party will find themselves having to defend themselves in court. This is actually significantly more difficult than it sounds because domestic violence courts almost approach the issue from a “guilty until proven innocent” standpoint. You will need an attorney to organize witnesses, provide the prosecution with witness statements, and argue your case.

Self Defense

When the police respond to a domestic violence call they will almost invariably arrest the male partner. This is because they know that, statistically at least, men are larger, stronger, more aggressive, and more likely to commit a domestic violence offense than women. However, while this statistic is true in the majority of cases, it is only a statistic and is not always accurate. There are many situations where the defendant is actually the victim and acted only to protect themselves by restraining their attacker or shoving them away while receiving much more serious injuries themselves. Such cases are difficult and often come down to a “he said, she said” situation. Having an experienced lawyer on your side as early in the process as possible can help make the difference between a case dismissal and jail time.

False Claims

Unfortunately, it is not unknown, especially in the middle of a divorce or custody proceeding, for one side to attempt to get an advantage over the other by creating a domestic violence scandal. Because a domestic battery charge does not require that actual physical injury have been caused it is relatively easy for an accuser to fabricate an accusation out of nothing. There is a large incentive for an ex-partner involved in a divorce or custody dispute to make such a claim because of the child custody and spousal support implications of a domestic violence conviction. If this happens to you the best defense is to show that the accuser has a history of lying in a similar situation or that all the other witnesses disagree with the accuser’s version of events. An experienced lawyer can help you present your case in these situations.

Getting a Lawyer

If you or a loved one has been accused of domestic violence, it is absolutely imperative that you seek legal aid. There is no such thing as a “minor” domestic violence charge. Resources for locating a lawyer include a “lawyer referral service” which is typically run by the county bar association. If you are located in the greater bay area you can contact us to schedule a free consultation which will allow us to evaluate your individual case and discuss your options with you.

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