Do not gamble with your future. Accusations related to domestic violence can be devastating to you, your family and your career. Once an accusation is made, it is critical that you have a knowledgeable expert on your side.
DOMESTIC VIOLENCE LAW FREQUENTLY ASKED QUESTIONS
Domestic violence can happen to any person regardless of age, race or gender. While considered to be a common crime, the consequences of a domestic violence conviction are severe. The California District Attorney has a dedicated department whose sole purpose is to seek conviction, either felony or misdemeanor, in each case where charges have been filed — even when the accuser does not wish to prosecute. If you’ve been accused of domestic violence, you need a criminal defense attorney immediately. We have attorneys available to answer your questions and help you get past the crisis.
What should I do right away?
Don’t give up hope! Although there is some degree of bias against alleged batterers, a domestic violence attorney can raise a reasonable doubt as to your guilt. You need to take immediate action, and realize the seriousness of your situation. If you are unsure about which attorney to hire, the California Bar Association can be a helpful resource in determining whether any complaints have ever been lodged against an attorney or firm. (The Law Offices of Nicola Fitzgerald is proud to say that none of our attorneys have ever received a bar complaint.) Regardless of who you select, your attorney can take steps right away to mitigate damages and in some cases even prevent charges from being filed.
Building a Domestic Violence Defense Legal Strategy with Your Domestic Violence Attorney
The Law Offices of Nicola Fitzgerald will begin building your defense right away. He or she may even ask that you assist in your own defense by compiling relevant facts pertaining to the case or a time line while events are still fresh in your mind. You may be asked to obtain photos of the crime scene as that can sometimes be helpful, or statements by the victim or witnesses (the arresting officer or neighbors). Your domestic violence attorney will obtain a copy of the police report at the earliest possible opportunity. If there is a restraining order your attorney will work to get that lifted. The prosecution and the police are working together to build a case against you. They will record the facts helpful to their case and ignore the facts that are not; they have no reason to assist you in your defense. Your attorney will study the opposing side’s version of the facts and the evidence they will use, as an aid to help you tell your version of the story.
We ask that you NEVER speak with the police or prosecutor without us present as your words can be misinterpreted or taken out of context. Having your lawyer handle communication with the accuser and the prosecution is always advisable and contrary to popular belief, this is never seen as an admission of guilt or adversarial but rather often calms the situation and protects your rights and reputation.
Should I use a Public Defender?
A public defender is a lawyer who is employed by the government and represents people charged with a crime who cannot afford a private attorney. In order to qualify to use a public defender, you must be considered to be indigent which generally applies to people who are unemployed.
While many public defenders are quite competent, there are a few drawbacks to using one. Due to government cutbacks, they are some of the most overburdened lawyers in the profession and often do not have the resources to investigate all the facts of your case from the start.
While you may persuade the public defender to look more closely at your case, through repeated requests or visits to his or her office, the PD cannot afford to give you the kind of close attention that a private attorney can. A private criminal defense attorney can give you thoroughly reasoned, expert advice on what is likely to happen to you and what your best options are. A private attorney has a better chance to stand up against the many motions the DA can file, and can strategically gain a position from which to bargain effectively. If at all possible, you should hire a private attorney to represent you.
By calling The Law Offices of Nicola Fitzgerald as soon as a domestic violence situation occurs our professional team can take control of the situation and begin protecting your rights. Protecting you is our priority, restoring peace is our approach.
What is the definition of Domestic Violence in California?
Domestic Violence, also called Domestic Abuse, is physical or emotional violence directed towards a spouse, ex-spouse, boyfriend or girlfriend, child, or other relative. It also includes threats, sexual abuse, verbal abuse, and economic coercion. It is the leading cause of injuries among women age 15-44, with an estimated three million victims in 1988. However, domestic violence is not a phenomenon based on race, gender, socioeconomic standing, or sexual orientation. For example, some studies show that women resort to physical violence about as often as men do.
Surveys in 1998 and 2000 show that one out of three women has experienced domestic violence at least once in her lifetime. Estimates vary widely, as domestic violence is an underreported crime. In 2001, domestic violence accounted for 20% of all violent crime against women that year. One influential study found that six percent of women had been abused by a current or former intimate partner or relative in any given year.
In California, the most common charges brought in Domestic Violence cases are:
- Misdemeanor Battery – 1) a harmful or offensive contact with a person; 2) resulting from an act intended to cause the person (or third party) to suffer such a contact; or 3) apprehension that such a contact is imminent.
- Felony Battery.
- Threat to commit a crime involving death or great bodily injury. May be charged as a felony or a misdemeanor.
- Violation of a restraining order. Charged as a misdemeanor.
Any amount of hostile touching is enough grounds for a domestic violence case, whether or not it leaves any visible marks or injuries. Even a tap on the shoulder is enough physical contact to count as a battery. Generally, District Attorneys will only bring felony battery charges where the victim is seriously injured. Since the 1994 VAWA (Violence Against Women Act), domestic violence charges can be brought in either state or federal court, which works to the plaintiff’s advantage.
The government wants to prosecute all potential batterers, with the idea that it’s better safe than sorry, and that it is best to stop domestic violence early. Therefore, in California, the police follow a “mandatory arrest” policy when someone is accused of domestic violence. The police will usually arrest the person who has sustained more injuries, but can also arrest both parties. Because of the state’s interest in domestic violence, the victim has almost no ability to “drop the charges” once the event is reported. Domestic violence is treated as a crime against the government, not against an individual.
It is crucial to realize the seriousness of the situation you or your loved one is in, and how much is at stake. The penalties can be very severe and costly, and having a domestic violence conviction on your record has many effects on your freedom, your rights and privileges.
What are the possible penalties of a domestic violence conviction?
The penalties one faces depend on whether the District Attorney brings a misdemeanor or a felony charge. By California law, convicted batterers who are put on probation face a mandatory penalty of three years of formal probation, a mandatory one-year batterer’s program, and the loss of gun ownership rights. The judge may order other penalties or fines. Possible penalties include:
- Appropriate programs (substance abuse, anger management)
- Restraining order, temporary or permanent
- Loss of child custody
- Not allowed to possess or be around firearms
- Deportation or being denied naturalization or re-entry to the U.S.
- Jail time, with amount depending on the specific charges
What does the process look like? How long does it take?
After the suspect is taken into custody, booked, and has his information entered into the system, an initial court date is set. The suspect, or a friend or relative can post bail, to allow the suspect to go free and ensure his or her appearance in court. Bail is often set excessively high, but your attorney can file a Motion to Reduce Bail and argue on your behalf to set bail at a more reasonable level or even waived based on the individual’s circumstances. In deciding whether or not to lower the bail amount, the court will consider factors such as the individual’s financial situation, the impact the bail amount has on the individual’s life, and his or her criminal history.
From the time of the arrest, it might take several months or longer if a case goes to trial. The case will either be tried in front of a jury in a criminal case, or closed early by a “plea bargain” with the prosecutor. Regardless of what happens, a domestic violence attorney is highly recommended at all times. A lawyer knows the legal merits of your case and can pose a credible challenge to the prosecutor, which raises your chances of a successful verdict or plea bargain.
What is a Restraining Order?
In California, a victim of domestic violence can usually get a temporary restraining order or a preliminary injunction. These temporary remedies can last for ten days or a few weeks, and may or may not require notice to the restrained person. Notice is usually given to the person being restrained by a police officer or other third party, who gives the accused a copy of the restraining order notice and a form for the accused to respond in court. After the temporary restraining order expires, there is another hearing where the judge listens to the restrained party and decides whether to grant a permanent restraining order. A permanent restraining order can last for three or more years.
If both you and the protected person wish to have peaceful contact, the victim must meet with the judge and request a peaceful-contact restraining order. This restraining order only forbids violent contact, allowing you to access your house and possessions. The judge will most likely change the no-contact restraining order to a peaceful contact restraining order, if the judge is convinced that it is in the best interests of all parties involved. If you take no action, you will receive a no-contact restraining order by default.
Judges usually issue restraining orders, which usually means that the accused cannot come within 150 yards of the person or the person’s home, or place of work – even if the accused pays rent for the place that person is living. Violating a restraining order is showing contempt for the court, and can be charged as a felony or a misdemeanor. You will be arrested, and may be forced to pay a fine.
Consenting to a restraining order may seem easier than fighting it, but being convicted of a restraining order can leave a serious mark on your record. It can keep you from receiving equal custody rights in the event of a divorce, and can make a huge difference. A conviction can also jeopardize your prospects for employment if you have to report it. It can also harm your prospects for becoming a naturalized citizen, or of re-entering the country.
What is Stalking?
Stalking is repeated harassing or threatening conduct. Your attempts to contact someone protected by a restraining order can be construed as stalking, especially if the protected person is afraid of retaliatory violence. In California, an element of stalking is that you must have intended to “follow, alarm, or harass” the accuser. You should be able to prove that you did not intend this, but had something else in mind. You can face civil and criminal penalties for stalking, even a felony conviction. Though stalking usually carries a one year maximum penalty, stalking in violation of a restraining order can put you in prison for four years. Stricter penalties may apply for repeat stalkers. You may also face monitory damages. Therefore, you should do your best to comply with restraining orders, even if the protected person approaches you.
What if it was a very minor injury? Should I try to explain it away to the opposing side?
Usually, it is futile to talk to the prosecution once a domestic violence charge is brought. Remember that the prosecution feels very strongly about physical violence and protecting people who may be trapped in an abusive relationship. It strongly believes that punishment is a necessary measure. Even when the battered spouse or relative tries to persuade them to drop the charges, they will usually ignore him or her, assuming the worst case scenario: that the spouse is a helpless victim who will fall victim to future violence. If anything, they will only use what you say against you.
Should I talk to the victim under any circumstances?
If you are under a restraining order, then do not talk to the protected person for any reason. If he or she tries to contact you while there is a restraining order, state that you are under a restraining order and firmly hang up or end all contact. Keep a record of when the contact was made and a copy of the communication if possible. It is dangerous to try to establish contact or make amends at this time, because you are at the protected person’s mercy. He or she can have you arrested immediately for violating your restraining order, for any reason – just or unjust!
How can I talk to the protected person? Approach the property?
You should not risk arrest for stalking or violating a restraining order! A domestic violence attorney is the best person to use in this regard, since he or she can present your interests and demands to the protected party, without putting you at risk of further criminal charges. An attorney understands the difference between aggressive advocacy and stalking. Our attorneys are skilled negotiators and can often persuade the protected person to ask the judge for a “peaceful contact” restraining order. If you attempt this without legal representation, you should contact the police before getting your personal belongings.
How does domestic violence impact child custody?
If the victim seeks custody, there is a very real possibility that you will lose many or most of your rights to see your children. Courts do not want children to witness violence between their parents or family members due to the potential psychological and emotional damage that could occur. Courts try to do what is in the “best interest” of the child. Thus, if the children saw the violence, or if they are likely to see violence in the future, your custody rights are in serious danger if you are convicted. Being convicted of domestic violence can hurt your chances of receiving custody or visitation rights. Even a restraining order can have an adverse effect on your custody rights.
Can I keep guns?
If convicted of domestic violence, whether misdemeanor or felony, you will be barred from owning or handling. This is a lifetime ban. A person convicted of domestic violence who’s found with a round of ammunition in his or her car can potentially be charged with a federal crime, with a penalty of up to ten years in prison. Therefore, being convicted of domestic violence can also preclude a career in law enforcement. It may also bar you from serving in the military, or be grounds for discharge and loss of benefits to someone already in the military.
You may be able to have a misdemeanor conviction for domestic violence expunged from your record, and thus regain the right to own firearms. If you are concerned about owning a gun, make sure to mention this to your attorney.
How can a domestic violence conviction affect my citizenship status?
A domestic violence conviction may prevent you from being naturalized, renewing your visa, or from re-entering the United States. It might even lead to deportation. This is because a conviction for domestic violence is considered to be a crime of “moral turpitude” and therefore carries a moral stigma and reflects poorly on your record. Though every case is unique, a skilled attorney can handle your case in a way that protects your status or odds of becoming naturalized. If you are not a citizen of the U.S., you should make sure to mention this to your attorney. The Law Offices of Nicola Fitzgerald will refer you to an immigration attorney to consult with on all matters related to your immigration status.