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Common Domestic Violence Issues and Considerations
A common saying I have is “DUIs and domestic violence are so common that someone you know, at some point in your life, is likely to be involved and/or prosecuted, whether you know about it or not.” We all know how prevalent DUIs are and why they occur. Some statistics state that around 40% of men and women experience some form of domestic violence in their lifetime. I’ve represented clients in hundreds of domestic violence cases in Los Angeles, Riverside, Orange, and San Bernardino counties.
Hiring an experienced criminal defense attorney as soon as possible is extremely important to almost any domestic violence case. Not only can law enforcement fail to provide adequate investigation during a domestic violence incident or witnesses be unreliable due to numerous factors, but the consequences of domestic violence charges are often severe and can be felt immediately (even immediately after arrest). Thus, it’s important to work with expediency and consult with an attorney (even if it’s not me) when anyone has the potential to be charged with domestic violence.
A Quick Note on “Pressing Charges”:
A common complaint/issue I see in domestic violence cases is that I am contacted by an alleged victim or am told by my client (or even law enforcement in their reports) that the alleged victim did not want charges pressed nor consequences for the person alleged who have committed the crime, and thus people believe the case should be dropped. The fact is that law enforcement, and law enforcement alone, makes the determination on whether or not to charge someone with a crime. That means if the alleged victim does not want the person prosecuted, it does not matter. The ball is already rolling. The government, through the police department and eventually the district attorney/prosecutor’s office, will now determine whether the person should be charged. Of course, they may take into consideration a person’s desire to not want the person prosecuted, but discretion to continue a case always rests with the government, not the alleged victim.
The Most Common Types of Domestic Violence
Domestic violence often involves people who are married or have a dating relationship, but can also include anyone that “cohabitates” (lives with) with someone, including relatives. Here are the three most common types of domestic violence I deal with:
Penal Code section 273.5 – Corporal Injury Resulting Injury- The most common type of domestic violence, this can be either a felony or misdemeanor (and is usually charged by the police as a felony and carries with it a $50,000 bail requirement). This involves using violence against someone causing a traumatic injury (to law enforcement: any injury, including a scratch or small bruise). I’ve read police reports where officers have alleged that scratches from household cats that were clearly multiple days old used as evidence of a Penal Code section 273.5 violation. One felony charge could potentially result in 4 years in prison if the injury is severe enough.
Penal Code section 243(e)(1) – Corporal Injury – The second most common type of domestic violence, this is a misdemeanor (and is usually charged by the police as a felony and carries with it a $50,000 bail requirement). This involves violence but does not require any sort of injury. Any allegation of someone using force can result in a 243(e)(1) charge, and it requires no physical evidence because it doesn’t require injury. Aside from this being a straight misdemeanor vs. a felony, the consequences of a conviction can last a lifetime, in addition to up to a year of jail time.
Penal Code section 422 – Criminal Threats – Although not specifically relegated to the realm of domestic violence, it is a common occurrence and often accompanies charges based on actual violence. It can be either a felony or misdemeanor and carries up to a 3 year prison sentence in most cases. However, it can also be used as part of California’s Three Strikes law, and be used to sentence someone up to life in prison. The law prohibits threatening a crime which result in death or great bodily injury to someone that is meant to be taken as a threat by the person to whom the threat was made, despite intent. Often goes hand-in-hand with Penal Code section 646.9 (stalking; can also be a felony/misdemeanor).
Consequences of Domestic Violence Arrests, Charges, and Conviction
The fact is that when someone is charged with domestic violence, whether in Los Angeles, Orange, Riverside, or San Bernardino counties, not only is jail or prison time on the table, but there are a slew of other consequences that often accompany these types of charges at various stages of a case’s lifetime.
At Arrest – Generally, immediately after law enforcement is called and an arrest is made for an offense such as Penal Code section 273.5, 243(e)(1), or 422, officers will ask the victim if they desire an “emergency protective order” (EPO for short). This type of restraining order only lasts 5 days in general, which should give the victim time to go to civil court for a civil restraining order. These restraining orders may also require that firearms be surrendered until the time designated on the order. It will prevent future contact and interaction between the two parties unless the contact is through a lawyer. It should also be noted that “passing messages” through other people to the other party, including electronically, are also prohibited and can result in prosecution under Penal Code section 166. Records of this arrest can also reach a potential employer and result in suspension or termination.
At Arraignment/Court- On the first day of court, which is typically 48 hours after arrest for those who haven’t bailed out (see my blog post about bail for some considerations which could be helpful here), charges are announced and a plea of not guilty (usually) is entered. However, aside from officially starting the court process for someone accused of domestic violence, the prosecutor will ask the court for a Criminal Protective Order (or CPO). Like an EPO, these restraining orders can prohibit all contact between the alleged victim and the person being charged with a domestic violence crime. It does not matter if the alleged victim does not want a restraining order. As referenced earlier, the government will act in what it deems to be in the best interest of the alleged victim, and the court will often go along with a prosecutor’s request to prevent all contact (more on restraining orders later). These types of orders also prohibit firearm ownership, and firearms must be surrendered or transferred to a firearms dealer or other entity.
At Conviction- When a case is unable to be dismissed and a person charged with a crime must plead guilty to a domestic violence related offense, there are a number of serious consequences that can/will occur:
- Jail/Prison time depending on the seriousness of the charged offense(s)
- Domestic violence classes (52 weeks)
- Permanent Criminal Protective Order that can last up to 10 years
- Fines and fees, including a $500 fee to the domestic violence victim’s fund
- Immigration consequences that will result in deportation/denial of naturalization for non U.S. citizens
- 10 year California firearm ban for misdemeanors, lifetime firearm ban for felonies (federal law provides lifetime bans for certain crimes)
- Permanent criminal record that is difficult to complete erase, even with an expungement per Penal Code section 1203.4.
Why Hiring an Attorney Immediately Is Important – Dismissals and Restraining Orders
As mentioned throughout this article, domestic violence charges can result in numerous consequences that can begin as soon as an arrest is made. Hiring an attorney immediately has the potential to stop the bleeding and avoid many, if not all, of these consequences.
While it is true that arrested persons must be brought before a judge within 48 hours, most bail out or are released on their own recognizance and given a court date a month or more away. This gives law enforcement and the prosecution enough time to review the evidence, gather more evidence if necessary (such as downloading officer body-worn camera videos, 911 calls, etc.), and determine what charges to file, not file, or add compared to the arrested charges. In many cases, hiring an attorney prior to those determinations can make the difference in whether or not someone is charged or the case is dismissed/refused to be prosecuted by the district attorney’s office. A criminal defense attorney like me can gather witness statements, do preliminary investigations, and most importantly, protect their client from making incriminating or potentially incriminating statements.
A domestic violence case is often littered with poor investigation and poor witness statements due to the nature of these types of cases. The people who unfortunately get involved in these types of situations often are intoxicated, emotional, angry, distressed, agitated, and don’t necessarily make the best witnesses in the heat of the moment. I see domestic violence occur in two types of situations: 1) the controlling, typical portrait of a domestic violence abuser, and 2) the people who are just having a bad day. Most of the cases I see are people having a bad day (and I routinely refuse to represent the controlling abuser, because they won’t listen to my legal advice). Often, when people cool down (and sometimes sober up), they realize they embellished their statements to police (albeit not purposefully, although I have seen a few cases where witnesses admitted embellishing/lying about someone’s actions to the police to get them in trouble). Similarly, when law enforcement are called to these situations they might not be able to adequately investigate (and sometimes they may just not care to).
*Note on City Attorney Hearings
Some cities that use a City Attorney’s Office (a prosecutor’s office different than the District Attorney’s Office) will often ask the victim and accused to come to their office for a “City Attorney Hearing” prior to the official decision to charge the accused in court. At that hearing, a City Attorney employee will typically ask the parties what happened, what the parties want to have happen, and then come to a decision on whether or not to move forward in prosecution. Neither party is obligated to have an attorney present, and often I run into clients who previously thought they could have the case dismissed if they just cunningly explain what happened to the City Attorney. This is often not the case, and I’ve had clients often make the situation worse and find themselves facing charges in court. With proper guidance and representation, a City Attorney hearing that’s successful for a potential defendant can result in no charges, which is why it’s important to have representation should you find yourself getting a letter asking to appear for a City Attorney hearing.
Previously discussed, there are several opportunities for a victim to request a restraining order prior to the first court date. Upon arrest, police officers can obtain a five day emergency protective order for the alleged victim. The victim can then go to civil court to obtain a domestic violence restraining order. But most importantly, and the most difficult to defend against, is the criminal protective order issued at the first court date. However, hiring an attorney prior to that first day of court, where the criminal protective order is almost certainly going to be issued by the judge, can help avoid the negative consequences of a criminal protective order.
Criminal protective orders, when initially issued, usually prevent ALL contact between the parties. That means if the couple is married, lives together, or has children together, life can become extremely difficult. Someone will have to move out. The couple can no longer communicate outside of attorneys. Needless to say, a full criminal protective order can be disastrous to a relationship and to the financial well-being of couples. However, the judge has discretion to order a criminal protective order which will only prevent future violence/harassment, such as stalking, hitting, or verbally abusing. This type of protective order can allow couples to remain together, to talk to each other, and to raise their children together throughout the court process. Obtaining this type of protective order is extremely difficult without guidance prior to the first court date, and I’ve been able to successfully obtain these lower-level criminal protective orders for my clients when hired ahead of a potential first court date.
Domestic violence is an extremely common occurrence and is one of the most common types of cases that I defend. Consequences of a domestic violence conviction can last a lifetime, and those consequences can start immediately upon arrest, which could result in financial hardships, termination from employment, and even loss of child custody. It’s important to hire an attorney like me as soon as possible to give yourself the best shot at minimizing the damage and having the case ultimately dismissed.
Written August 11, 2022