San Diego Domestic Violence Attorneys Providing Legal Counsel and Support to Defendants
No relationship is perfect, but when allegations of violence are introduced, it can make an argument into a criminal charge. Domestic violence cases can be especially challenging, and it’s vital that you have experienced legal representation throughout the process. Find out more about how California deals with domestic violence charges and get answers to common questions below.
If you’ve been charged with domestic violence, call the legal team at Kersey Law right away. We’re here to help you defend yourself against these accusations and ensure that you have representation devoted to protecting your rights.
What Is the Legal Definition of Domestic Violence?
While culturally, domestic violence includes actions that could be considered physical, mental, emotional, and financial abuse, the state of California has a stricter definition. To qualify as domestic violence, the action must have been perpetrated against a spouse or romantic partner — either current or former — someone you have a child with, someone who you lived with, or someone that you are related to by blood.
The action itself must either involve physical harm, sexual abuse, intimidation or fear, stalking, destruction of your personal property or something the law refers to as coercive control. This last part is a bit more of a gray area, but this is where things like controlling all the finances or depriving the alleged victim of basic needs come in. It’s important to note that coercive control can be difficult to prove legally and specifically must include a pattern of behavior, not an isolated incident.
Is Domestic Violence a Misdemeanor or a Felony?
In the state of California, domestic violence can be charged at either the misdemeanor or felony level, depending on the circumstances. Some of the factors that can influence what level of charge is brought against the defendant are whether there is a previous history of domestic violence, the degree of the injuries on the alleged victim, and whether a weapon was involved. There may also be other charges, such as assault with a deadly weapon or sexual battery, which can be felony charges.
Can the Alleged Victim Agree to Drop the Charges?
It’s not unusual for the parties involved in a domestic violence case to reconcile after charges have been filed or for the alleged victim to no longer want to participate. However, this doesn’t make the charges go away because the prosecution is bringing the case against the defendant — not the alleged victim. And this means the prosecution is the only party who can drop the charges.
While it may be tempting to try to talk to the alleged victim to try to reconcile, apologize, or ask them to refuse to cooperate with the authorities, this isn’t a good idea. It’s best to avoid all contact with the alleged victim while the case is still pending. If you have children together and need to participate in custody exchanges, you may need to have a third party handle it for you or meet in a public place like a police station until the matter is settled.
Is California a Mandatory Arrest State?
You may have heard the term mandatory arrest when it comes to domestic violence accusations, but what does this actually mean? California is one of the states in which the police must arrest someone if they are called out to a domestic violence incident and have reasonable suspicion that a crime occurred. Officers will talk to both parties involved, as well as any other witnesses who were on the scene, and conduct an investigation to determine who they believe was the primary aggressor. If there are visible injuries or property damage present, the officers must arrest the person they believe to be the primary aggressor.
It’s obviously difficult to determine who was the primary aggressor in these situations from a couple of short on-site interviews and a visual inspection of the parties and property. If one party acted in self-defense, both people may have injuries, and these types of cases are often difficult to prove if there are no witnesses. If you are arrested, stay calm and comply with the officers’ orders. Don’t answer any questions and ask for an attorney to be present. It’s possible that the charges will be dropped if there isn’t enough evidence to prosecute the case.
What Are the Penalties for Violating a Restraining Order?
Restraining orders are often part of domestic violence cases and can be temporary or granted for a longer term. If you have a restraining order against you, it’s imperative that you abide by the terms of the order. Violating a restraining order is a crime and can open up your case to additional charges and penalties.
Violating a restraining order in the state of California is generally a misdemeanor and punishable by up to 1 year in jail and a fine of up to $1,000. However, it’s also possible for violating a restraining order to be a felony if there are extreme circumstances, such as if the perpetrator assaulted the other party or has multiple violations. If you are charged with a felony, you could face up to 3 years in prison and a fine of up to $10,000.
What Kind of Evidence Is Used in Domestic Violence Cases?
The evidence used in domestic violence cases is varied but can include any of the following:
- Witness testimony. Domestic violence cases often hinge on the alleged victim being willing to testify against the defendant in court and give a personal statement on the circumstances leading up to the incident and any injuries they sustained.
- Visual evidence. If officers see injuries or property damage when they arrive on the scene, they will likely take pictures or videos to start documenting what happened. Photos from medical records may also be introduced as evidence to show the extent of injuries.
- Emergency call records and police reports. Calls to 911 are recorded, so if someone called in an emergency, the audio from this call could be used as evidence. The police report for the incident in question as well as any history of prior callouts or reports, can be used as well.
- Phone records. Any communication between the defendant and the alleged victim, such as texts, voicemails, and phone calls, may be used as evidence. Threatening texts or many phone calls in a short amount of time can be especially problematic.
When you are talking with your attorney, it’s important to be open and honest about what evidence there may be, even if it portrays you in a bad light. Your attorney needs to know what is out there for the prosecution to use to be able to work on a defense strategy.
What If It Was Self-Defense?
You do have the right to defend yourself if you believe that your life is in danger or someone has come onto your property threatening you, and this means that self-defense can be a valid defense strategy for domestic violence charges. If you acted in self-defense, your attorney will show the jury evidence that you feared for your life. This could include the same evidence listed above, such as threatening calls or texts or a history of physical altercations and injuries. If the person had attacked or caused your injury before, it provides more basis for you to believe they would do so again.
Can Domestic Violence Charges Affect a Child Custody Case?
If you are currently involved in a custody dispute or have an existing court order that covers custody or visitation, it’s important to know how domestic violence charges can affect these situations. If the allegations do not include accusations of violence or threats against the children, they may have little to no effect on your case. While the courts can consider domestic violence convictions in custody proceedings, many judges choose to separate how a person behaves toward a romantic partner and how they behave toward their children.
However, if there are threats made against the children, violence happens in front of the children, or there are weapons or other factors that may pose a threat to the children, it’s possible for domestic violence accusations to result in loss of custody or having reduced or supervised visitation. If you are worried about how domestic violence allegations may affect your access to and relationship with your children, talk to a defense attorney to get more information.
What Are the Penalties for Domestic Violence?
If you are charged with a felony, such as corporal injury to a spouse, you could face up to 4 years in prison and have to pay a significant fine. You may also be required to attend mandatory domestic violence or anger management classes, and it’s likely that a restraining order will be in place ordering you to stay away from the other party. If you have a previous criminal conviction in the last 7 years that includes domestic violence or assault, you could be sentenced to up to 7 years in prison and face a $10,000 fine. If you are charged with a misdemeanor, the maximum amount of jail time you can face is 1 year. You can also be fined up to $2,000.
Depending on the factors involved in the case, a criminal defense attorney may be able to help you get these sentences lowered. For example, if you have no prior criminal record, you may be able to be sentenced only to probation for a misdemeanor offense.
When Should I Call a Domestic Violence Attorney?
The right time to call a domestic violence attorney is as soon as you are being questioned by authorities or you have been arrested and are allowed to make a phone call. The earlier a criminal defense attorney is involved in your case, the better your chances are of being able to fight the charges. Having an attorney present with you during questioning can ensure that you don’t incriminate yourself or provide the police with additional evidence.
Being accused of domestic violence can be devastating, but it’s important to protect your future and do everything you can to fight these allegations. At Kersey Law, we’re here to help guide you through this process. Call our office today at 619-432-3712 to speak with a member of our legal team to learn more. We can help you schedule a free consultation where you can talk to a defense attorney about your case and get more information on what you should do next.