Santa Barbara Domestic Violence defense lawyer Hogan Ganschow explains why the law is set up to make getting convictions easier and what you can do to avoid the worst consequences
In California, certain crimes like battery, vandalism, making threats, and violating a restraining order can carry additional consequences if the relationship between the defendant and victim is a domestic relationship. Under the Family Code, a domestic violence crime is any offense where the victim is the defendant’s spouse, former spouse, cohabitant, former cohabitant, dating partner, former dating partner, co-parent, child or family member within two degrees of separation, including grandparents, brothers, sisters, and grandchildren.
How domestic violence is investigated differently
Domestic violence offenses are not only punished differently than regular crimes, they are also investigated and prosecuted differently. Typically, when an officer is called to the scene of a misdemeanor, they may not make an arrest unless the misdemeanor was committed in their presence. But domestic violence offenses are an exception to this rule. In fact, any time the police are called to a domestic dispute and decide to make a report recommending charges, they will always arrest the person they believe is the aggressor, even if the crime is a misdemeanor and the act was not committed in the presence of police.
Police often approach domestic disputes with the goal of separating the parties to calm nerves and get statements. Because domestic disputes often involve alcohol or other drugs, police will not only be noting what the individuals say, but how they say it. When physical evidence is scarce and each party blames the other, police will make a judgment call about who is the “dominant” or “primary” aggressor: Who called the police, who is physically bigger, and who has prior calls or arrests will factor into their judgment. Because domestic disputes are often the result of passion and acute anger, police will often make an arrest to prevent another violent incident and let tempers cool.
Additionally, once the police decide to make an arrest, they will ask the person they think is the victim whether they want an emergency protective order. If the alleged victim wants an emergency protective order, the person arrested will be informed not to contact them in any way until the defendant is arraigned in court. If the defendant does not post bail, the arraignment will occur within two days.
How domestic violence is prosecuted and punished differently
Alleged victims often seek to have the domestic violence charges dropped against the defendant. Supervisors instruct prosecutors not to dismiss the case even if the victim witness refuses to cooperate. My clients learn to their surprise that prosecutions proceed when the alleged victim testifies for the defense.
While challenging for an inexperienced prosecutor, most prosecutors put forward expert witnesses who testify that the alleged victim is caught in a “cycle of violence” that motivates them to cover for their abuser. This sort of testimony is often accepted as a matter of course by judges in domestic violence trials, as is propensity evidence, such as prior acts by the defendant of domestic violence, both charged and uncharged within the past 10 years.
When defendants are convicted of domestic violence offenses and given probation, by law the probation must include 52 weeks of domestic violence classes, a protective order for the benefit of the victim, community service, and additional fines and fees.
Follow these simple steps before contacting a domestic violence lawyer to improve your chances of beating the charges
Domestic violence convictions are not only costly in time and money, but they carry with them a significant negative social stigma and can impact one’s ability to get employment or, in the case of immigration, can impair the likelihood of obtaining resident status or citizenship.
If you’ve been charged with a domestic offense, here are three things you can do to improve your chances of getting a favorable result:
- Do not, under any circumstances, violate the terms of the emergency protection order. Though this should go without saying, many underestimate the stress that simply having a pending charge can put on a relationship, and how that can sometimes cause people to say or do things out of desperation. Jail phone calls are scrutinized intensely by prosecutors, as are any recorded communications between the defendant and alleged victim. If you have a pending case and the judge allows contact between the parties, they will also, at the very least, require that the contact be peaceful. Angry name-calling and empty threats take on a much different texture when a case is pending against one of the parties. I have seen clients suffer convictions for domestic restraining order convictions even when the underlying offense that gave rise to the restraining order is dismissed, simply because they couldn’t abide by the terms the judge imposed. Take these orders seriously. They will be enforced.
- Just because you’ve been arrested, that doesn’t mean you should plead guilty. Most prosecutors will admit that even with the additional tools they have at their disposal, domestic violence cases are some of the hardest for them to win in front of a jury. If you’ve been charged with a domestic violence offense, get an attorney with experience at every stage of the process to help you get the best possible outcome.
- Write out a detailed account of what happened from your perspective and save it somewhere private and safe. Domestic cases can sometimes drag on for months before a resolution happens and memory can fade with time. Frequently with misdemeanor domestic battery charges, there is no physical evidence of any violence or injury, and the allegations amount to pushing. In these kinds of cases, if you’re going to try to explain that what happened was not a battery, you will need a detailed account of the dynamics that lead to the police getting called. If your story is not coherent, even if it is true, it won’t win over a jury. Writing out what happened will also give you the opportunity to soul search and see what you might need to address any issues that gave rise to the incident, whether they be anger issues, substance abuse issues, or both. If the case against you is strong, the more you do to address the underlying issues that lead to the incident, the more likely you are to get a favorable disposition as part of a plea agreement.