How is Domestic Violence Defined? – There are a variety of common definitions of domestic violence. The legal definition in California is broad: “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”
Arrests for domestic violence can lead to devastating and life-changing collateral consequences. If you are trying to obtain the best possible outcome from a charge of domestic violence, it is important to hire an attorney who is aware of the implications of any deal that might be made with the prosecutor, and the likely results of a conviction.
Two common domestic violence charges in criminal court are “corporal injury to a spouse or cohabitant” (California Penal Code section 273.5) and “domestic battery” (California Penal Code section 243(e)).
In a “corporal injury” case, any physical injury perpetrated on a spouse or cohabitating intimate is charged as a crime. If convicted, the accused faces heavy fines, probation, mandatory participation in a diversion program, and imprisonment for one year in county jail or for four years in a state prison.
“Domestic Battery” is the willful and unlawful use of force or violence upon a domestic partner. The victim need not have visible injuries for domestic battery to be charged. Those convicted may be subject to fines, participation in a treatment program, and one year in a county jail.
The criminal case may be followed by a case in which the victim asks for a civil restraining order. Charges of domestic violence may also lead to family law and child custody proceedings. There might also be a civil case brought by the victim against the accused for additional monetary compensation.
When the accused is a professional licensed by a state agency, a complaint of domestic violence can lead to investigation and disciplinary action by the agency that issued the professional license to the accused. Some common professions where this occurs are nursing, medicine, law, and education. Domestic violence convictions can also result in particular hardships for those who use guns for their professions, and for immigrants.
Domestic Violence Investigation Procedure
1. Police arrive and take photographs and statements to determine who the primary aggressor is
2. The second step in the domestic violence investigation procedure is an arrest if the police determine it necessary
3. The police report is forwarded to the DA who decides if someone should be charged
Many domestic violence arrests occur when a couple is fighting and the police have been called. The police must read a Miranda admonishment to the person who is arrested and advise him or her of the right to silence. In some cases, this results in a one-sided report.
The police report is forwarded to the District Attorney. He or she must decide whether to charge a person based on the conclusions drawn by the police, accurate or not. Once the process is started, it is unlikely that the charges will be dropped. A good criminal defense attorney with experience in domestic violence cases may be able to bring pre-trial and evidentiary motions on behalf of the accused to try to get the case dismissed or the penalties reduced, or reach a deal with the prosecution.
However, if the District Attorney prevails in his or her case, the sentencing phase may include heavy punishments and deterrents such as: jail, significant fines, mandatory domestic violence counseling sessions, personal conduct orders, stay away orders, and temporary restraining orders. If obtaining the best possible outcome is important to you, choose a knowledgeable and nonjudgmental domestic violence attorney to represent you in these proceedings.
If you or someone you love has been charged with domestic violence, the experienced Napa domestic violence attorney Douglas Pharr can help. Call us at (707) 674-5868 for a consultation.