Aggressive Domestic Violence Defense
Are the Charges Fabricated?
Women are Increasingly Arrested for Domestic Violence
Women are also charged with domestic violence, though not nearly as often as men. When women are charged with domestic violence, it becomes very important to hire an experienced domestic violence attorney. Having a family law or civil attorney handle a complicated domestic violence case can cause major problems and may result in you to be excluded from your residence, lose custody of your children and even lose your job
Ms. Ramirez – A True Case
Ms. Ramirez ,a university graduate, school teacher and mother of 3 beautiful children was tired of her philandering husband beating her and abusing her 3 children. Despite being barely only 5 feet tall, she gathers the courage to verbally confront him about him slapping their eight year old daughter in the face. Her husband doesn’t like what he hears and a physical confrontation ensues. Although she was much smaller, she won the confrontation. The husband, with his ego bruised and face scratched, decides to call the police and report her as being the aggressor. The deputies arrive and do a horribly bad investigation and arrest Ms. Ramirez (the husband had injuries and Ms. Ramirez didn’t) Being in a jail for the first time, Ms. Ramirez was fearful. Fearful for her safety, her children’s safety and she wanted to make sure her criminal record stayed clean as she valued her job. Besides, she heard the stories of women being beaten and raped inside the jails by other inmates. Being a school teacher with no criminal record was no match for the seasoned criminals she’d be forced to live with. To make matters worse, she was arrested on a Friday meaning that she’d have to spend the entire weekend in jail. Her arraignment would be in the Compton Courthouse the following Tuesday. Her family had no money to bail her out and she didn’t have the money to hire her own attorney. At her arraignment she went with the court-appointed attorney who “very quickly” read the police report, told her that she must plead guilty to get out of jail.
She takes his advice and (1) the judge orders her to stay away from the house that she owns, where her clothes and personal belongings are, (2) restrained from seeing her young school-age children, (3) order to take a 52 week domestic violence class, (4) pay fines, (5) the children are taken out of her home by social services and placed in foster care, (6) her husband moves in his new girlfriend into their house, (7) they begin to sell her items at a garage sale, (7) she is forced to live at motels and with family members, (8) she loses her job because of the conviction, and (8) the husband files for divorce and uses the domestic violence conviction to better position himself to get custody of the children and (9) the house goes into pre-foreclosure as the husband refuses to pay the mortgage. The end result from the over-worked attorneys bad advice is that Ms. Ramirez had to attend Criminal Court proceedings, Family Court proceedings and Dependency Court proceedings.
Ms. Ramirez goes back to criminal court to withdraw her plea of guilty, but the request falls upon deaf ears. The Dependency Court allowed her to have ‘monitored’ visits with her children while she rented a room in a local apartment. After over a year of classes and court appearances in criminal court, dependency court and divorce court, she finally has her children back with her in her house.
Tragically, this could’ve all been avoided if she had an aggressive and caring attorney with her at her 1st court appearance.
Domestic Violence is controversial and has gained considerable attention in the news. Going to court without an attorney with domestic violence charges can cause serious problems at home, at work and with your family. Pleading guilty or no-contest to false reported domestic violence allegations places the alleged victim in an undeserved position of power over you, your children and your life.
Sometimes it is very tempting to plead guilty to fabricated charges just to get out of jail or to ‘move on’ with your life. However, the impact a domestic violence charges has on your future job prospects and family life can be devastating. Sometimes the easy way out isn’t the best way out.
Pleading guilty to get out of jail can also cause you to lose your residence…at least temporarily. You need a skilled attorney to make sure that your decision to resolve your domestic violence case is wise and legally sound. Being your own attorney or going with an attorney the court gives you may come back to haunt you. Would you want an overworked and underpaid lawyer “fighting” for you?
DOMESTIC VIOLENCE RESTRAINING ORDERS
Temporary and permanent restraining orders in domestic violence cases case cause serious problems. They may require you to have no contact with your children, spouse, loved ones. Even worse, they may require you to move out of your life-long residence. The court has the discretion to impose a restraining order in domestic violence cases. Hire a lawyer who is experienced in arguing domestic violence restraining order.
DOMESTIC VIOLENCE PROBATION TERMS
Pleading guilty to a domestic violence charge or domestic violence related conduct can also cause serious financial hardship. Generally included in domestic violence probation are mandatory fines, court fees, booking fees, restitution orders and, of course, the dreaded 52-week domestic violence class. Class enrollment fees are quite expensive and they charge per class. 52 classes, each class requiring a separate fee. If you miss too many classes then you will be in violation of your probation and could face jail and be ordered to take the class over again. You class may meet on days or evenings in which you must work. The fact that you may have a medical or family emergency is not the class’s concern. Whether you are about to plead guilty or are looking to get reinstated in your domestic violence class, call me before you go to court. A judge may not give you the time to call an attorney in the courtroom holding cell.
DOMESTIC VIOLENCE ARRAIGNMENT
Don’t go to your arraignment alone because you want to save money. You may actually spend more money on bail that you could’ve otherwise saved had you had an attorney at your arraignment. I’ve had many family members tell me that they are going to post bail before the arraignment. In one case, a distraught mother wanted to pay the bail company $10,000 to bail out her son out of jail. Thank God she spoke to me first. I reviewed the allegations with her and visited her son in jail that night. After getting a better picture of the case I told her to not post the bond and wait until the arraignment as I believed it was a misdemeanor charge at best thereby warranting a $2,000 bail. On the day of her son’s arraignment her son was released with no charges being filed. I saved her $10,000!
PENAL CODE 243(e)(1) Spousal/Domestic Battery
There are two basic ways prosecutor files domestic violence cases, both of which must involve a person committing an act against a spouse/family member, cohabitant, boyfriend/girlfriend, or the mother/father of their child. One important thing to remember is that if convicted of any domestic violence crime, the person will be required to enroll in the 52-week Domestic Violence class, pay expensive fees/costs, and often times abide by a protective order.
The most common way a domestic violence charges is filed against a person is called a “simple battery.” See California Penal Code Section 243(e)(1). The prosecutor must prove beyond a reasonable doubt that the person willfully and unlawfully touched the alleged victim in a harmful or offensive manner. A common misconception is that there must be a visible injury or some sort of pain inflicted in order to prove a battery. The standard of what constitutes a battery is quite low. A slight touching in domestic violence case may be enough if it is done in a rude or angry way. If convicted of a misdemeanor charge, the person faces up to a year in county jail.
PENAL CODE 273.5 (a)
Another way domestic violence charges are filed is for inflicting an injury on the alleged victim that results in a “corporal injury,” or “traumatic condition.” See Penal Code Section 273.5(a). The prosecutor must prove beyond a reasonable doubt that the person willfully and unlawfully used force on the alleged victim that caused a wound or bodily injury.
This charge is commonly referred to as a wobbler, a charge that can be filed as a misdemeanor or as a felony. The manner in which a domestic violence case is filed depends on the conduct alleged and the amount of injury sustained by the victim. The sentence range for domestic violence cases varies dramatically on these factors, but can include state prison if the injuries are significant, or if the accused has a prior criminal record, or a prior history of violence towards the victim.
DROPPING DOMESTIC VIOLENCE CHARGES
In any domestic violence case, don’t be fooled into thinking that the District Attorney will “drop the charges” if the victim doesn’t support prosecution. Most often, the victim’s desire to support prosecution will have little bearing on whether or not a case gets filed and prosecuted. Once the police have been called it is out of your hands. The police will file a police report and forward it to the prosecution.
Did the Domestic Violence “Victim” Lie?
If you have been charged with domestic violence and the alleged victim lied, then you need an attorney right away. Most “victims” in domestic violence cases who lie are afraid to tell the police the truth. Having an attorney advise an alleged victim in a domestic violence dispute is critical.
What if the “Victim” Chooses Not to Testify
If a domestic violence victim is served or acknowledges receipt of a subpoena to come to court, then they must come to court. However, what if the alleged victim chooses not to testify for fear of committing perjury? Anyone who may give testimony that may be incriminating can choose not to testify under the 5th Amendment to the United States Constitution.
If you or a loved one has been charged with domestic violence, then you need to contact Attorney Errol Cook right away!