Domestic Violence
Let's say there has been an incident
between you and your girlfriend and someone has called
the police.
What was a private matter is no longer private. Now
you have to explain yourself to a third party.
It is often a "she said, he said" matter.
Unfortunately for men, usually the police will choose
to believe the woman.
Who will become the victim and who will become
the defendant often depends on who called the sheriff
or police or who claims to have been injured.
Of course, sometimes things are not that simple, and
it is always best to stay out of the system to begin
with. Do not let anyone tempt you into making physical
contact first. If your girlfriend is hysterical and
slapping you, run the other way, get out the door, drive
away: do anything but let things get to the point where
you do something causing the police to be contacted.
If you think the other person is going to call the
law enforcement, often the best defense is offense:
call the cops yourself.
Whatever you do: never physically attempt to stop your
partner from calling the police. This will be become
an additional charge.
Now for some really bad news: Even
if the victim later decides not to press charges, this
will not help you in many California counties today.
The D.A. decides to bring charges, no one else—not
the court, not the police, not the victim. District
Attorneys are motivated to do things that the public
will perceive as punishing offenders and protecting
society. Once the cops are called the process begins.
The D.A. may feel the victim has been coerced into changing
her (or his) story. Most D.A.'s assume the original
claims are true.
Despite this, it is extremely helpful to defense counsel
if the assaulted or abused party indicates to the police
and D.A. that she or he does not want to cooperate with
the prosecution.
Please read this important information regarding domestic violence arrest in California.
Temporary Restraining Orders
Domestic violence and TRO's go hand in hand.
Many clients have been surprised at how quickly a TRO
was issued against them.
The D.A.'s office can and often does request a "Protective
Order" against you from being near or even contacting
the other party (victim).To avoid this you need to hire
a lawyer as soon as practicable to communicate to the
D.A. that you pose no threat to the victim and the victim
is not in fear for her/his life. Often, in response,
the D.A. will settle for a "No Harass" order—merely
prohibiting annoying or harassing the victim.
Typical Charges in Domestic Violence Cases
The closest to a dismissal is a sentence for "disturbing
the peace." This is a very minor criminal offense,
a Penal Code sec. 415 violations for "loud and
unreasonable noise."
The second least serious charge is a Penal Code sec.
240 offense, simple assault. This is an "unlawful
attempt to commit a violent injury on another person."
Finally there is the charge of battery, which is "an
unlawful use of force on another."
Domestic violence is a form of battery where the victim
(usually) is a girl friend or spouse. Penal Code sec.
243(e) covers common domestic violence and Penal Code
sec. 273.5 applies when the victim can demonstrate some
form of injury, even just a bruise or a scratch.
If any children were present at the incident, the D.A.
may also file a Penal Code sec. 273.5 charge of child
endangerment.
Typical Sentences in Domestic Violence Cases
- 3 years of supervised probation with minimum 18
months of regular meeting with probation officer
- 10 to 90 days in jail; this is in lieu of up to 6
months you could be sentencing for domestic violence
without injury and one year in jail for domestic violence
with injury
- An experienced criminal defense lawyer can make all
the difference in minimizing your sentence. For instance,
all jail time can be avoided if the D. A. allows you
to do your time in the Sheriff's Work Program.
- Fines range from $1000 to $3000 in most cases.
In addition, you will be required to attend domestic
violence classes for up to 52 weeks. You may be well
advised to take the proactive step of enrolling before
the sentencing.
The consequence of a domestic violence conviction can
be more serious than commonly thought. Domestic violence
can be charged as a misdemeanor or as a felony—making
it a "wobbler" offense.
In custody fights, the effect on child visitation and
custody can be very significant.
Domestic violence and protective orders
Domestic violence can consist of threats, phone calls
that annoy or frighten, stalking, unwanted sexual advances,
and slapping or punching. Child endangerment charges
are often added on if a child witnessed the "violence."
Arrests commonly occur following violation of the terms
of a TRO.
Following a domestic violence incident the alleged
victim will often ask for a protective order preventing
any contact with any children involved, especially if
the couple is divorcing or is separated.
A lawyer can seek to modify a TRO or other protective
order. This office has been able to prevent protective
orders from being issued in the first place.
Assault and battery
Assault and battery against anyone is against the law
of course, but in California and in many other states
the law gives special attention to girl friends, children,
spouses, and other family members—who are seen
as particularly vulnerable.
The Battery can be almost anything, a touch for instance,
and often the arresting officers do not even ask for
proof. Assault is one crime, and battery is another,
and the two crimes are not always charged together.
Assault is an attempt to hurt or touch someone whereas
battery is the completion of such an act.
A threat over the phone can constitute an assault.
If you have been charged with domestic violence in
the San Francisco Bay Area, contact the Law Offices
of Doug Slain online, or call Douglas Slain at 707-658-4437.
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