When a defendant is charged with domestic battery, the first thing to remember is that the charge is being brought by the state, not the victim. This comes as a surprise to many people. If the police are called to the home and there is an allegation of domestic violence, they will arrest the accused.
Once an arrest has been made for battery constituting domestic violence, there are some key things that you can do in order to protect your rights. Of course you should contact legal counsel to represent you right away. In addition to the lawyer, you can also take the following steps:
3. A “touching” for purposes of a battery charge can include spitting in someone’s face or touching someone through his or her clothing. Knocking an object out of someone’s hand is an offensive touching since the object was connected to your body unless it was accidental.
The first court appearance will be a bond hearing in front of a judge. Many people are surprised to learn that they cannot post bond at the police station like all other misdemeanors. When a person is charged with domestic battery, he or she must be brought before a judge. That might be the next morning, or it might mean the day after that.
This comes as a surprise to many people. If the police are called to the home and there is an allegation of domestic violence, they will arrest the accused. It does not matter that the victim did not want him or her arrested, but just called the police to get that person out of the house.
The first court appearance will be a bond hearing in front of a judge. Many people are surprised to learn that they cannot post bond at the police station like all other misdemeanors. When a person is charged with domestic battery, he or she must be brought before a judge.
If they believe it is a serious allegation they may take another date to try to contact the victim. Or, if the defendant gave a written statement to the police admitting to the crime and they have other evidence such as other witnesses, physical evidence, or pictures of the injuries, they can still proceed with the case.
At this hearing, the complaining witness must come to court and the state will generally subpoena him or her. Should the complaining witness not come to court, the State MIGHT dismiss the case at this time. I say might because, again, it is the State’s case. They do not have to dismiss it.
After that, when they go in front of a judge, there is a state statute that prohibits the parties from having contact for seventy-two hours.
This basically means they are homeless. When someone gets arrested, they never get arrested with their wallet, keys and everything ready to go. This means that when they get out of jail, they are in this huge problem because they have seventy-two hours where they cannot go home. Usually, the person will be out on bond.
That does not sound like a big deal. However, because there is so much negative stigma associated with domestic battery, and it has ancillary consequences of losing constitutional rights, every time there is domestic battery allegation and someone gets arrested it’s a big deal.
What it really comes down to is that a person can be found guilty or convicted of domestic battery if there is an unprivileged or unwanted touching between household members or a romantic couple if done in a rude, angry or insulting manner.
If an injured person goes to the hospital and it looks like domestic violence, the medical personnel must fill out a police report. Accidents are not intentional acts of battery and therefore are a defense.
Domestic battery charges require the assistance of an experienced lawyer. Even if the accuser decides to drop the charges, the District Attorney’s office takes all these charges seriously and they will likely pursue the case regardless.
California’s Penal Code Section 243 (e) (1) pc: When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer’s treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution [ ↩]
If you have a prior Penal Code 243 (e) (1) conviction on your criminal record, the court will order you to serve a minimum sentence of 48 hours in county jail.
In California, there are two types of domestic violence crimes that you can be charged with. Domestic Battery” pursuant to Penal Code Section 243 (e) (1) which is the least serious, or. Corporal Injury To A Spouse or Co-Habitant.
If probation is granted, the court will require you to successfully complete the following. A batterer’s program for a minimum of 1 year 12. The defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense 13.
When James’ wife started beating their daughter Sarah for misbehaving, James pushed his wife out of the way to prevent her from battering the daughter, which caused the wife to fall on the floor and hit her head on the refrigerator.
Even though James suffered no injury, Kathy can be charged with domestic battery under Penal Code Section 243 (e) (1) pc, because even the slightest touching can be enough to commit a battery if it is done in a rude or angry way.
A domestic battery charge under penal code 243 (e) (1) is always a misdemeanor. However, a domestic violence charge under penal code 273.5 is a wobbler which means it can be charged as either a misdemeanor or felony depending on the circumstances of the case and level of injury.
Battery Constituting Domestic Violence charges can often be the most disruptive, emotionally difficult charges to fight. It can result in marital counseling, domestic violence counseling, anger management, alcohol classes, restraining orders, and jail often times when the parties themselves don’t even want such results.
Basically the defining characteristic of battery domestic violence is the offensive touching must be done upon a person that the alleged offender had a close, personal relationship with either by blood, marriage or another type of relationship that is considered domestic.
1-15 years in state prison, a mandatory fine of $10,000. Contact a Las Vegas defense lawyer if you are charged with battery constituting domestic violence charges. The penalties are significant so you should get a lawyer right away so you can put forth a defense to the charges immediately.
Generally, the restraining order will prohibit contact with the alleged victim and keep you from returning to the home even if you want to collect your belongings. Do not violate the terms of the restraining order.
Of course you should contact legal counsel to represent you right away.
You need to fight the false allegations of domestic violence as they can negatively impact you for the rest of your life. They can affect your immigration status, right to own a firearm, employment opportunities, etc.
The reasons for arrests over false allegations include: The police expect to make an arrest when they are called out for domestic violence. Even if the alleged victim does not want to prosecute, usually the police will make an arrest out of safety concerns.
3. A “touching” for purposes of a battery charge can include spitting in someone’s face or touching someone through his or her clothing. Knocking an object out of someone’s hand is an offensive touching since the object was connected to your body unless it was accidental.
A prosecutor will review any statements made by the defendant and victim. In some cases, a victim will make a verbal statement that is noted by police followed by a written one that will contain inconsistencies that an experienced defense attorney will exploit to challenge the veracity and credibility of the victim.
If a physician testifies that the injuries were not serious, or that the victim was exaggerating the symptoms, then this could convince the prosecutor to at least file less serious charges relating to the incident. 2. Inconsistent Statements. A prosecutor will review any statements made by the defendant and victim.
If you hugged your ex-fiance without her consent or put your arm around an ex-girlfriend, your act is likely insufficient to rise to the level of offensiveness or harmfulness to constitute a battery for domestic violence purposes.
having a motive to fabricate the incident because the parties are embroiled in contentious custody or property distribution battle. This might convince a prosecutor that there is insufficient evidence to convict the defendant and to decline to file the charges.
There may be a lack of evidence regarding how the traumatic injury was caused. If you pushed someone down a flight of stairs and the person suffered a broken leg, then the injury was a natural and probable consequence of pushing the person down a stairwell even if you did not intend the victim to break his or her leg.
The lack of visible injuries does not necessarily mean that a domestic battery did not occur and is not required in order for a defendant to be charged with domestic battery. All the prosecutor needs in order to charge you is evidence of a harmful or offensive touching.
Calling Police for Domestic Abuse. When you call 911 to report abuse, the police must respond. What happens after that depends on what you tell them, and the extent of your injuries. When the police arrive, they should talk to you where you can speak outside of your partner’s range of hearing and sight.
In criminal cases, the prosecutor represents the people of the city, county, or state and, specifically in this case, you, the victim. To file a civil action for injury compensation, divorce, or for financial support, you will probably need to retain a private attorney.
More than 12 million men and women are victims of rape, physical violence, or stalking by an intimate partner every year. That’s an average of 24 victims of domestic violence every minute. ¹. Domestic violence, also called Intimate Partner Violence (IPV) is generally described as abuse within a partner relationship where one partner asserts control ...
Isolation: Abusers isolate their targets as a means of control, to prevent them from seeking advice, shelter, and financial assistance from friends and family members; to keep their partners from looking for legal advice, and to prevent their partners from gaining access to domestic violence help organizations.
Domestic violence restraining order: A domestic violence restraining order lasts longer than emergency or temporary restraining orders, possibly for several years.
1-800-656-4673 [24/7 hotline] Women’s Law. Legal information for victims of abuse, including information on protective orders. Office for Victims of Crime, Directory of Crime Victim Services. Offers links to programs and services available to crime victims. VictimConnect.
An abusive intimate partner causes more than half of all violent victimization reported to law enforcement, yet domestic violence is highly underreported. Many victims are afraid to report their abuser. ². Domestic violence occurs in every kind of partnership, from marriages to dating relationships.