Dealing with a Domestic Violence Case Can Be Emotional and Challenging

The legal process behind dealing with a domestic violence case can be emotional and challenging. Though SDD’s founder, Daniel Smith says,” if there is one thing that my father, a judge for 20 years, taught me about DV cases, it is that an arrest is not an automatic indication of guilt. Officers are instructed to neutralize the possibility of escalated violence, and an arrest, if the parties are likely to be together over the next 24 hours, is often the best way to do so. No officer wants to hear that one of the people involved seriously hurt or killed the other person just hours after they left.”

Most domestic violence incidents are isolated one-time problems that counseling and/or soul searching can prevent from happening again. Yet California law addresses defendants as repeat offenders, ones who will keep committing these acts – unless the criminal justice stops them first.

For every domestic violence case, at arraignment the judge issues a criminal protective order , where the defendant is ordered not to strike, harass, molest or otherwise negatively bother the alleged victim. In a worst-case scenario for the defendant, the judge may also order what is referred to as a full protective order, meaning the defendant cannot have any contact whatsoever with the alleged victim and must move out of the home they share.

Several steps can be taken to fight these cases.

Step One – Felony or Misdemeanor

Domestic violence charges are found in Penal Code section 243. Whether or not the case is tried as a misdemeanor or a felony depends on the extent of the injury. If the victim suffers none, it results in a misdemeanor, whereas an injury results in the more serious felony charge. The more severe the injury, the more likely the prosecution will add allegations to the charges, worsening punishment and resulting in a strike on the defendant’s record.

Step Two – Going to Trial

Most domestic violence cases are a matter of she said versus he said, meaning it often becomes an issue of credibility. An experienced domestic violence defense attorney will examine whether:

• The accuser made false claims of abuse by the defendant or other persons in the past.
• The injuries are consistent with the accuser’s account of what happened.
• Anyone heard an argument or fight.
• An alibi can be established showing the defendant was not present.
• The victim took back or recanted their accusation.

This last factor comes up in many domestic violence cases for two reasons: the alleged victim lied about the attack OR after finding out about everything a domestic violence case entails (the stay away order, possible jail time, and a yearlong domestic violence class), the accuser then decides they do not want to move forward. **

** It is important to note that the accuser recanting does not mean that the case will be dropped. The prosecution almost always assumes that accusers recant to avoid all the problems that come with a domestic violence case, not because they initially lied. In fact, an “expert” witness will often testify to the jury at trial that domestic violence victims recant all the time and that it does not mean the attack didn’t happen.

Step Three – Working Out a Plea Deal

If the domestic violence case is not winnable at trial, your lawyer needs to switch to minimizing the punishment you face. Can a felony be avoided? Is there a way to plea without the yearlong domestic violence class? Can jail or prison be prevented? Often most importantly to the family, can the defendant move back home?

All of these factors play into dealing with a domestic violence case. It is critical to have a lawyer who is experienced in handling these types of cases, like the lawyers at San Diego Defenders, in order to get the best result. It is equally as important to have a lawyer who is familiar with the prosecutors who handle the domestic violence cases. The better your lawyer knows the prosecutor and the better they know what arguments and strategies work with that prosecutor, the better your chance of a good resolution to your domestic violence case.

Local lawyers, such as San Diego Defenders lawyers, know which prosecutors are assigned to the “family protection unit” and can talk to them one-on-one about the specific situation each case presents. Often SDD lawyers will call the family protection unit lawyers prior to the case being filed, because charges can automatically make anyone in law enforcement, or the military lose their job for the simple reason that the protective order prevents them from carrying a firearm or even ammunition.

Dan Smith recalls that many years ago he called his father, then a sitting judge in another county, and asked him of a possible solution. Judge Smith replied, “your grandfather taught me that sometimes a false imprisonment charge will satisfy the prosecutor and allow your client to keep his job…try that, it worked for your grandfather during the Prohibition, and for me when I was a defense lawyer, maybe the third-generation lawyer can make it work too!”

There is no substitution for experience in criminal defense, and San Diego Defenders has carried on the tradition of saving families, jobs and the future happiness of many clients over three generations.