Domestic Violence Attorney

Under PC 13700, "domestic violence" is defined as any form of "abuse" committed against an "intimate partner." The use or threat to use physical force to harm an intimate partner is part and parcel of domestic violence, although abuse against children or the elderly and a few other classes of crimes also fit under the general umbrella term "domestic violence."

An intimate partner is defined as a spouse, fiancé, domestic partner, romantic cohabitant, a dating partner, or the father/mother of one's child OR as someone who formerly fit into any of those categories (an "ex.")

Many types of domestic violence are just like other non domestic violence offenses except for the fact of whom the crime was committed against. For example, battery becomes domestic battery if committed against a current or past intimate partner. 

As domestic violence charges can affect child custody battles and upon conviction can lead to jail or prison time, victim restitution, restraining orders, forced entry in a batterer's program, loss of gun rights, deportation for immigrants, and the creation of a criminal record that makes it difficult to find a good job or even a good apartment - it is critical that a skilled defense lawyer with specific experience in this practice are handle your case.

The exact penalties for a domestic violence crime vary, of course, from particular crime to particular crime - and we've mentioned some examples under the dozen types of DV crimes we covered just above.

In general, you can expect jail or prison terms of from one to several years, probation, fines, victim restitution, batterer's counseling or similar programs, the loss of child custody rights, the loss of Second Amendment rights, and a variety of other possible serious consequences upon a conviction.

Here is a little more on the possible sentencing elements and other consequences:

• There are mandatory minimum jail terms in many California counties for domestic violence offenses - often, of 30 days even for a misdemeanor offense.
• Probation is often obtainable for a first offense and where bodily injury caused, if any, is not very severe. Probation is more likely to be granted for misdemeanors than for felonies and it can be revoked at any time if probationary terms are violated.
• Victim restitution in the form of paying for medical expenses of the victim, counseling sessions, lost income, and property damage will be assessed.
• It will also be required to pay into California's domestic violence fund, which pays for various programs designed to deter or help people recover from domestic violence.
• It is almost universally required that even first time offenders and those let out on probation attend a batterer's counseling program for at least 12 months.
• Those convicted of a domestic violence crime will generally lose child custody rights, but that doesn't mean they will necessarily lose visitation rights.
• Gun ownership and possession rights are lost following a domestic violence conviction in California. For misdemeanors, gun rights are lost for 10 years, while for felonies, they are lost for life.
• If a domestic violence crime counts as a "crime of moral turpitude" under federal law or is an "aggravated felony," then it can result in either deportation or loss of admissibility to the US as an immigrant.
• The criminal record created by a domestic violence conviction can make it difficult to find gainful employment since most employers now run background checks on all applicants.

It all begins when the police or 911 receive a domestic violence call, maybe from the alleged victim or maybe from a neighbor. Upon arrival, there is a makeshift interview of the parties and/or witnesses where police try to decide who is the aggressor, what exactly happened, and if anyone needs to be arrested. 

Sadly, it's not uncommon for the wrong person to be arrested or for a fake story to be believed and charges pressed. Police simply don't have time to figure it all out on the spot - even if they could, and they choose to err on the side of caution to make sure no one is hurt, or hurt further.

Next, a police report is filled out and a citation and court date issued to the defendant. If arrested for a felony, you may not get out of jail before your arraignment unless you pay bail.

Police will continue to investigate between the arrest and the filing of formal charges in the "pre-filing stage." Witnesses will be interviewed more fully, evidence collected, and a determination made as to whether they have "a good, winnable case." If they think they do, then the D.A. or city attorney will review the complaint and police report and file an official criminal charge.

If it's a misdemeanor allegation against you, then you might be asked to attend a city attorney hearing. At such a hearing, you may have a chance to resolve the matter informally - out of court. It could lead to a dismissal of the charge and/or to a settlement being made that would avoid a full-out criminal investigation and criminal court case. It could also end with the case being kept "on hold" for up to a year or with it being determined that a court battle is necessary after all.

At your first court date in the domestic violence case, called an "arraignment," the complaint against you will be formally presented and you will have the chance to plead "guilty" or "not guilty." If you want to go to court, plead not guilty, while if a plea deal has been worked out, you might want to plead guilty. But you have to understand the plea deal's requirements and consequences before you accept it. Also at the arraignment, the presiding judge will determine whether or not bail will be permitted and, if so, at what it shall be set. Additionally, a determination will be made in regard to establishing a protective order, and if so, what kind.

Next, there will be one or a series of pre-trial conferences that allow further opportunity for a settlement of some kind to be reached. About 95% of the time, domestic violence cases end here, in the pre-trial phase. You want an experienced lawyer arguing and negotiating in your behalf at this point because it can strengthen your case, persuade the prosecution to come to terms, and in general help achieve a more favorable result. Of course, the settlement will only be valid if you choose to agree to it.

If no settlement can be reached, then a trial date will be set. But just before the trial actually occurs, there is the chance for your lawyer to file a pre-trial motion that could help you win your case. It's possible, for example, to get evidence obtained by illegal search and seizure banned from consideration in court with a pretrial motion. Or, there might be a motion filed to allow the alleged victim's history of making false 911 calls to be brought into court. Many times, what happens pre-trial has a big impact on what happens during the trial and how it turns out in the end.

During the trial itself, both sides will present their arguments, evidence, and witnesses. They will try to undermine whatever their opponent is relying on to win the case. It is a true tug of war, but with much more at stake than just games. However, a skilled defense attorney can often win an acquittal, a dismissal, or a reduced charge/sentence even when things seem to be going against you. Remember that the prosecution has the burden to prove all elements of the alleged crime "beyond all reasonable doubt" - and that's a hard burden to meet. An experienced domestic violence crimes defense attorney will know how to counter every move the prosecution makes and even anticipate their next move before they make it.

It's never a good idea to go into a domestic violence case without the assistance of a skilled lawyer. The process is full of legal requirements and "insider's rules" that only a well seasoned lawyer will know about and know how to navigate to your greatest possible benefit.