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In this blog I will take a break from my series on Homicide cases to discuss the defense of Domestic Violence cases.  If you or a loved one has been accused of Domestic Violence you can give us a call as soon as possible.  We can help you get through this as I have for many hundreds of other clients over more than 14 years of Criminal Law work.  As a former probation officer, deputy district attorney, and adjunct criminology instructor I have the know how to help you through this.

 

THE CRIME OF DOMESTIC VIOLENCE

The crime of domestic violence can be charged either as a Misdemeanor or a Felony. 

The Misdemeanor crime has the following elements.

1. The defendant committed a Battery upon the Victim

2. At the time of the Battery, Victim was the defendant's spouse or fiance, or an individual with whom defendant currently has, or has had a dating relationship.

 

DEFENSES TO THE MISDEMEANOR DOMESTIC VIOLENCE

The following are not meant to be an exhaustive list only a brief overview of some of the defenses to domestic violence.

FALSE ACCUSATION

We have seen sadly many times where the accusation is simply made up where the police are called in the middle of a heated discussion something is said and someone goes to jail believe it or not with no evidence other than an accusation.

One thing you have to do at the beggining of a case is get any witness statements other calls for service, etc. to show what has really happened. 

SELF DEFENSE 

Many times we have found that the person arrested was defending themselves when they are arrested.  Sometimes they will even have wounds on themselves much worse than the person who was not arrested we once had a case where the husband was arrested with obvious defense wounds on his hands.  We had to  have a medical doctor look over the wounds which he indicated were very obvioulsy defensive wounds.

FELONY DOMESTIC VIOLENCE AND DEFENSES

THE CRIME OF FELONY DOMESTIC VIOLENCE CONSISTE OF THE FOLLOWING ELEMENTS

1. Defendant willfully inflicted corporal injury upon a spouse.

2. Victim was either

Defendant's spouse or former spouse

person with whom he or she is or was cohabitating with

fiance or or someone with whome offender has or had a previous dating relationship with

the mother of his or her child

3. corporal injury resulted in a traumatic condition.

DEFENSES TO FELONY DOMESTIC VIOLENCE

The defenses to Felony Domestic Violence are much the same as the defenses to Misdemeanor Domestic Violence.  There could be a false accusation, there could be a self defense situation, or just plain lack of evidence.

Many times in these instances there will be no independant witnesses

no prior instances of violence between the parties

an alleged victim that does not want to testify and

no 911 call.

The District Attorney will evaluate the case in between the arrest and the filing of charges to look at the above mentionend factors looking at body cam evidence from the officer that responded looking at the 911 call photos, extent of injuries, priors, willingness of the victim, etc.

If there is a victim that is not cooperative and there is not a 911 call, or a body cam, then there could be problems with the prosecution bringing the case altough I have seen instances where even under these circumstances charges were still brought and cases filed.  Sometimes the cases will be dismissed at a later time sometimes they are not depending on a lot of circumstances.  All cases are individual and if you have questions about your particular set of circumstances you should call.

559-4411418.

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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