Accused of domestic violence in the state of California?
You are in for a wild ride. False allegations of domestic violence are more common than in any other area of criminal law.
Even worse, the scales of justice are tipped in favor of the accuser, more so than almost any other type of crime. Arrests are mandatory, protective orders don't require a hearing, and even when the accuser later decides they don't want to press charges, dropping charges is nearly impossible.
But there ARE ways to beat this lopsided system and defend yourself against a domestic violence allegation.
In this article, we will talk about the unique injustices of domestic violence charges, the frightening consequences of failing to put up a good fight, and how you can protect your rights and come out of the whole thing with a better chance of being unscathed.
California criminal lawyer Joseph Tully, a criminal law specialist certified by the California State Bar Board of Legal Specialization, helping people charged with domestic violence in Alameda County, Contra Costa County and across Northern California looks at the challenges, charges and your options to beat the criminal charges.
Beware False Domestic Violence Allegation Epidemic
In Contra Costa County, Alameda County, San Francisco County and throughout Northern California where we practice law, we have seen steady increases in the number of false allegations of domestic abuse every year.
Millions of individuals make false domestic violence accusations against people each year. According to data compiled by S.A.V.E. – Stop Abusive and Violent Environments – up to 80% of all abuse claims are false. One study of couples involved in custody disputes found that 59% of domestic violence allegations “could not be substantiated by the courts as true.”
SAVE estimates that 1.2 to 1.8 million individuals are wrongfully accused of domestic violence each year, with approximately 70% of restraining orders issued each year being unnecessary or false. An analysis of domestic violence restraining orders issued in West Virginia concluded that 81% were unnecessary or false.
False domestic violence claims are also expensive. It costs an estimated $2000.00 in taxpayer dollars to issue, service and adjudicate a single restraining order.
According to a study conducted by the Massachusetts Trial Court Office of the Commissioner of Probation, approximately 50% of restraining orders result from calls in which physical assault is not even alleged.
In 2005, Santa Fe District Court Judge Daniel Sanchez granted a television viewer, Colleen Nestler, a temporary restraining order against TV celebrity David Letterman because she claimed he was beaming code words at her and tormenting her through the television.
The American media portrays domestic violence as an abhorrent crime, yet continually fails to highlight just how susceptible a domestic violence allegation is to false accusation. Domestic violence cases, more so than other cases, demonstrate how very wide the net is in terms of people getting caught up in the system who really don't deserve to be there.
Unlike other crimes, even a mere allegation of domestic violence can damage your ability to gain employment, housing, child custody and other important necessities of life. Judges in 48 states must consider allegations or findings of domestic violence before awarding child custody. No conviction is required.
Identify Motives behind False Domestic Violence Allegations
Every individual who alleges they have suffered domestic violence has a motive for doing so. One of those motives is that the allegations are warranted.
However, there are other common very common motives for falsely accusing someone of domestic violence including, but not limited to:
- The accuser likes playing the “victim” role and wants the attention
- The accuser is seeking revenge against their spouse for having an affair
- The accuser wants a bigger chunk of the divorce settlement
- The accuser wants custody of the kids
- The accuser is suffering from mental health problems
- The accuser wants to get the person out of their life
- The accuser wants to keep the apartment or get their hands on the accused's belongings
Divorce is a big instigator for domestic violence allegations. Allegations of domestic violence are made in an estimated 25% of divorces.
An angry partner mixed with faulty police work and a biased legal system can be a lethal concoction, leading to many innocent people being wrongly convicted of domestic violence.
Charges of domestic violence are difficult to fight, namely because the procedural deck is already stacked against the alleged offender. The civil definitions for domestic violence in 32 states include being afraid, fearful, apprehensive, or experiencing emotional distress – very vague elements to work with. Penalties apply at the point of arrest instead of the point of conviction.
In a California domestic violence call, an arrest will almost always be made, a protective order will almost always result, and charges will NOT be dropped once filed – even when the accuser decides to recant their accusations. We see this repeatedly here in the San Francisco Bay Area from San Francisco proper to Concord in Contra Costa County.
In fact, district attorneys have a higher win rate in trial when the complaining witness comes to court and recants, admits that she lied, than when she comes to court and testifies it happened!
Brush Up On California Domestic Violence Laws
California Penal Code §§ 240-248 e. seq. and §§ 270-273.75 et. seq. define domestic violence as a criminal act within one of the following relationship types:
- Spouses or former spouses
- Cohabitants or former cohabitants in a home
- Parents of the same child
- Partners in a dating or former relationship
The term “domestic violence” encompasses a number of crimes that happen within those listed relationship types (“relations”). Crimes of domestic violence include:
- Corporal injury to a spouse or cohabitant (PC § 273.5): Willfully striking a relation in a violent way that causes visible injury.
- Domestic battery (PC § 243(e)(1)): Willful and unlawful, harmful or offensive touching of a relation in a violent way, even without visible injury.
- Child abuse (PC § 273(d)): Physically injuring or inflicting cruel physical punishment on a minor.
- Child endangerment (PC § 273(a)): Allowing or causing a minor to suffer unjustifiable mental suffering, physical pain, injury or placement in a dangerous situation even without physical injury.
- Elder abuse (PC § 368): Endangerment, neglect, physical abuse, emotional abuse or financial exploitation of an individual 65 years of age or older.
- Criminal threats (PC § 422): Specific, unambiguous threats (written, verbal or recorded) to physically harm or kill a relation, causing fear for their safety or the safety of others, even without intent to carry out the threat.
Other charges that are frequently associated with domestic violence crimes include:
- Damaging a telephone line (PC § 591): Cutting or otherwise damaging phone equipment.
- Aggravated trespass (PC § 601): Making a criminal threat with intent to scare the relation, then unlawfully entering the relation's residence or workplace within 30 days of making the threat.
- Revenge porn (PC § 647(j)(4)): Intentionally distributing sexual photos of the relation online with the intent to cause emotional distress.
- Indirect electronic harassment (PC § 653.2): Using an electronic device to communicate information about a relation with the intent to incite a third party to harass or harm the relation.
- Threatening or dissuading a witness (PC § 136.1): Knowingly and maliciously preventing or dissuading a witness or victim from attending or giving testimony at any trial or inquiry authorized by law.
Penalties for California Domestic Violence
Penalties for a domestic violence conviction can be severe. Domestic violence cases can be wobblers, meaning the same act can qualify as a felony OR misdemeanor depending on the extent of the injuries, criminal history, risk of bodily harm and other facts of the case.
Prosecutors will normally file the case as a felony charge if there is visible injury like a bruise or broken bone. Lesser injuries will usually qualify as a misdemeanor.
In general, misdemeanors are punishable by up to one year in county jail and/or a fine of up to $1,000 to $6,000, depending on the specific charge. Felonies are punishable by up to 3 to 6 years in prison, depending on the specific charge.
Unfortunately, cops are reviewed on how many felony arrests they make each year. More felony arrests mean more promotions and bonuses.
Because most cops value these benefits over treating someone fairly, 99.9 times out of 100, someone is going to be arrested on a felony rather than on a misdemeanor. This means higher bail and greater long term consequences.
In California, a domestic violence conviction will normally bring a minimum three years of probation, a 52-week mandatory batterer's treatment program (unless you are sentenced to prison time) and a protective order. California Penal Code § 1203.097 also requires a $400 payment to go toward funding domestic violence programs.
If you are not a U.S. citizen, a domestic violence conviction can result in denial of naturalization or deportation, even with resident status.
Obey Your Domestic Violence Protective Order
Charges for domestic violence will usually result in a court order. If you are charged with a domestic violence crime and the court has reason to believe that harm or intimidation of an alleged victim” (legally referred to as a “complaining witness”) is likely to occur, the court may issue an order to protect the complaining witness and/or their family.
If you are convicted, the court may issue an order preventing you from having contact with the victim for up to 10 years.
A violation of a protective order can result in an additional crime, the most common being criminal threats (Penal Code section 422), threatening or dissuading a witness (Penal Code section 136.1) and violating a court order (Penal Code section 166(a)(4). Both PC 422 and 136.1 can be felonies and, as such, are strikes. Both PC 422 and 136.1 are punishable by up to one year in jail or three years in prison. Violating a court order is punishable up to
Understand the System Favors the Accuser
One of the reasons fighting a domestic violence charge is so difficult is that individuals charged with domestic violence don't have the same rights as individuals charged with most other crimes.
Most crimes like murder or theft invoke procedural rules that are in place to protect the innocent from being wrongly accused. But domestic violence charges trigger a unique set of rules that place the defendant at a disadvantage right off the bat, even if they are innocent.
Legal modifications that apply to domestic violence cases include:
- Decreased ability to drop charges
- Court orders without hearing
- Firearm and ammo rights
- Any and all prior accusations can be used against you
In most domestic violence calls, the cops have to arrest somebody. If they think that they've cooled the matter down and they leave, and someone gets hurt or killed, they view themselves as being liable. Rather than risk that, most always someone goes to jail, right or wrong.
Approximately 700,000 individuals are wrongfully arrested for domestic violence each year. Research findings demonstrate that only 30% of those arrested for domestic violence are convicted. The remaining 70% are wrongfully detained.
In fact, this may be an underestimate since many convictions are the result of a plea bargain. Innocent defendants often agree to plead guilty to a misdemeanor charge in order to avoid prison time.
Decreased Ability to Drop Charges
For most criminal cases, a complaining witness or prosecutor can drop charges anytime they feel winning a case is impossible or the defendant is innocent. But in domestic violence cases, the complaining witness and the prosecutor can't just drop the charges.
There are two reasons for this: First, the state of California treats domestic violence crimes as crimes against the State. Even if the complaining witness recants their allegations, prosecutors may still press charges on behalf of the State. Second, California domestic violence laws assume that the complaining witness will want to protect their abuser.
When a victim later says they lied and no abuse actually occurred, prosecutors will usually continue on, using the complaining witness' original allegations in court and claiming that the “victim” just recanted their allegations because they were scared of their abuser.
Court Order Without Hearing
If the cops have reasonable grounds to believe that someone is in immediate danger, the court may issue an immediate “ex parte” protective order upon arrest – without requiring a hearing. This order prohibits contact between the complaining witness and alleged abuser until the hearing, including kicking you out of your own home. Violating this order can get you arrested for violating a protective order, even if you are acquitted for the original domestic violence charge.
Gun and Ammo Bans
Unless you want to lose gun rights for a decade of your life, you really need to fight domestic violence cases. While a felony conviction is required for most crimes to lose gun rights, under California law, you lose your gun rights for 10 years with a misdemeanor domestic violence conviction. Even a misdemeanor battery under California law triggers a 10-year firearm ban.
Moreover, it's not just all firearms. It's also all bullets. I've had cases where hunters have had domestic violence convictions on their record and the maid is cleaning the closet and leaves stray bullets out on their dresser to be put away later.
If a police or probation officer walks through that house for a probation search and they see even one bullet, the defendant will get a probation violation and/or a new felony charge of “Prohibited Person in Possession of Ammunition.”
Basically, you can get a firearms ban for not having committed any act of violence. This can end a career in the military, law enforcement, or security. A good California domestic violence defense attorney may be able to prevent this by getting a lesser charge or an acquittal.
All Bad Evidence Can Come in Against You
It's a time-honored, even ancient, principle of law that the system can't use prior convictions against you just to prove a new conviction.
This prevents the cops from relying on “the usual suspects” just to close the books on a new crime. For instance, if someone had 3 prior bank robberies in their twenties, that has nothing to do with whether or not they robbed a bank in their fifties.
Their prior bank robbers would not be allowed at their newest trial unless it had a value in proving something else such as, the robber always left a red scarf at a bank robbery and there was a red scarf in the latest robbery or the robber always robbed banks painted blue on a Tuesday and the latest bank was painted blue and was robbed on a Tuesday.
However, in a domestic violence trial, all those centuries of law are thrown out the window in an effort to gain an easier conviction for the prosecutor. If your spouse or partner are friends with your spouse or partner and they commiserate together, the DA will bring in the old spouse or partner to talk about what a horrible person you were and there's nothing you can do about it.
Examine All Potential California Domestic Violence Defense Strategies
The key to beating a domestic violence charge is to fight.
Don't ignore it and hope it will go away.
Domestic violence charges tend to grow worse the more time you give them. You must equip yourself with every possible tool and prepare to do battle. This is where a top rated California domestic violence defense attorney is indispensable. An attorney with decades of experience winning domestic violence cases is going to know every nuance of even the most complex cases and be able to pull out all the stops.
An experienced California domestic violence defense attorney is going to have several powerful defenses available. Common defense strategies used to fight domestic violence charges in California include:
- Disproving the charge
- Factual contradiction
- Defense of others
- Accidental injury
- False accusation
- Mistaken Identification
- Right to free speech
- Illegal search and seizure
- Police misconduct / entrapment
- Prosecutorial misconduct
Disproving the Charge
Each type of violation has a set of elements that the state is required to prove beyond a reasonable doubt. Your California domestic violence defense attorney will attempt to show that one or more of these elements were not present.
For example, for a charge of corporal injury to a spouse or cohabitant, the prosecutor must prove that (1) you willfully inflicted physical injury on another person, (2) that resulted in trauma, and (3) the injured party was a past or present partner or cohabitant.
This defense works well when your defense lawyer can produce evidence contradicting the allegations, like witness statements supporting your claims of innocence or a strong alibi.
In California, if you reasonably believe that you are in imminent danger of being unlawfully touched, killed or injured, you may take reasonable measures to defend yourself. This defense strategy is especially successful when evidence shows the complaining witness initiated an altercation. In this defense, the response to the fear must be proportional to the danger. For example, a self-defense claim may not fly if you stabbed someone for threatening to throw a stuffed animal at you.
Defense of Others
Similar to self-defense, if you reasonably believe that someone else was in imminent danger of being unlawfully touched, killed or injured, you may take reasonable measures to defend them. This defense is often used in cases where a child was present and in potential danger.
This defense can be useful when the defense attorney can show you had no intent to harm anyone, were not acting negligently and were otherwise engaged in lawful activity at the time of the alleged incident.
When your domestic violence lawyer can show evidence that a spouse has a motive behind making false allegations, like greed, anger, jealousy or revenge, this can be a strong defense. This defense is useful in the midst of breakups, divorce, child custody battles or other domestic trials.
When the identity of the person who caused an injury is questionable, a domestic violence defense lawyer can try to demonstrate that reasonable doubt exists regarding the identity of the abuser. Perhaps three people were present in a dark room and the complaining witness can't be certain exactly who injured them.
Right to Free Speech
Since California's criminal threat law does not apply to constitutionally protected speech, mere angry outbursts, which lack the legal elements of a crime, do not qualify for a domestic violence charge.
Illegal Search and Seizure
If the police gathered the evidence used against you in an unconstitutional manner, used an invalid search warrant or searched areas outside the terms of a warrant, that evidence may not be eligible to use against you in court.
This is called a suppression motion or, in California, a PC 1538.5 motion. Don't hold your breath on this though, judges are more apt to cheer prosecutors and police on it in court than rule against them. Still, these motions should be filed where applicable and can also be a valuable source of seeing how the cops act on the stand.
Police Misconduct / Entrapment
If the cops use intimidation, false arrest, racial profiling, brutality to create charges of domestic violence against you, and you can prove it in court, the charges would most likely be dismissed. Again, a typical judge nowadays is more likely to pull out pom-poms and cheer on the prosecutor and/or police officer rather than use a gavel to dismiss their case. But still, these motions must be filed and aggressively fought and they can be won.
This defense is useful if the prosecutor does not follow proper procedure, tries to sway the jury toward a wrongful conviction, or attempts to impose an overly harsh punishment.
A number of other possible defense strategies may exist depending on the specific circumstances of your case. An experienced California domestic violence lawyer will be able to use every applicable defense to help you fight a domestic violence charge.
Consider Getting Domestic Violence Charges Dropped
Getting domestic violence charges dropped is rare in the state of California and usually not even an option. However, under certain circumstances, an experienced domestic violence defense lawyer may be able to persuade the prosecutor to offer a plea agreement, reduce charges to a lesser offense or drop charges altogether if he or she can demonstrate one or more of the following:
- Little to no evidence of abuse
- Complaining witness isn't credible
- Complaining witness has a motive to lie
- Complaining witness chooses to defend alleged abuser
- Complaining witness statements are inconsistent
- Defendant has a strong alibi
- Defendant has no prior domestic violence offenses
Recognize Procedural Tactics Used In Domestic Violence Charges
There are a number of facts about the legal process that are good to know if you have been accused of or arrested for domestic violence or are facing a preliminary hearing or trial.
Domestic violence calls almost always involve a police report, an emergency protective order a potential preliminary hearing if the case is a felony and perhaps a private restraining order from the complaining witness.
Understanding the tactics that cops, prosecutors and your defense attorney use during these steps can help put you in a better position to protect your rights and defend your case.
Police Report: Justifying Arrest
When cops are called to a domestic violence scene, they are going to write their report to create as airtight of a case as possible. The arrest depends on the evidence gathered at the scene and identifying the “abuser” versus the “victim.” The officer will decide who the “victim” is and then record any damage to the premises, take photos of any injuries and record statements from the complaining witness, supposed abuser and any witnesses.
Since an arrest is normally required for a domestic violence call, cops aren't going to leave themselves up for liability writing a report that doesn't justify an arrest.
Otherwise, you could turn around and sue them for false arrest. In their police report, cops will normally guide the conversation with the complaining witness to make it all sound believable and legally accurate.
They (the police) will then write their narrative to justify their report.
Restraining Order: Accuser Tells All…And More
The police may then usually advise the complaining witness if they want to follow up with a restraining order. This is where your defense case starts looking better. Complaining witnesses will usually get a restraining order on their own, or a day or two later, after the prodding of their friends and/or law enforcement.
Whereas the police report is written by a legal professional to sound believable and make the case airtight, the restraining order is written by the complaining witness who usually goes off the rails and starts lying and/or exaggerating.
While the police report may state that the complaining witness said they were “shoved twice,” the restraining order may read, “I was shoved and pushed four times, punched five times. Then once I was on the ground, I and was kicked eight times.”
Restraining orders must be written under oath. This makes them a valuable tool for defense attorneys defending a domestic violence case, who can compare them to the police report and determine if a complaining witness is lying.
Preliminary Hearing: Encouraging Chatter
One thing that people should be aware of in domestic violence cases are the different strategies used by defense lawyers in preliminary hearing versus jury trial. An experienced defense attorney will attempt to obtain every discrepancy in the complaining witness' story at the preliminary hearing.
This means your attorney will induce the complaining witness to talk about the events as much as possible. Every word will then be used to compare with complaining witness statements contained (1) on the police report, (2) in the restraining order and (3) to what the complaining witness testified to under oath in court for the prosecutor.
In many cases of false allegations, at preliminary hearing the complaining witness will exaggerate the injuries and alleged misconduct more than they did in the restraining order, and even more than they did with the police officer.
The defense attorney can pinpoint these discrepancies later and use them to show the jury that the complaining witness is not credible. The three narratives are often very different if not completely inconsistent.
It is important to remember that your attorney isn't doing you a disservice by urging the complaining witness to exaggerate their claims more and more and more at a preliminary hearing. This is a technique used to your benefit. A liar will want to keep lying and lying if given the opportunity.
For example, if the witness says, “Yes, this happened during the day time,” and you know for sure it happened during the night, the defense attorney will try to pin the witness down to their day time story.
Lawyer: “So, Witness, you told the police officer that this happened during the day?”
Complaining witness: “Yes, I did.”
Lawyer: “And that was accurate?”
Complaining Witness: “Yes.”
Lawyer: “And you remember it being during the day, specifically?”
Complaining witness: “Yes.”
Lawyer: “And, you remember it being during the day because the sun was out?”
Complaining witness: “Yes.”
Lawyer: “And you specifically remember the sun being out?”
Complaining witness: “Yes.”
Lawyer: “And, you remember it was during the day because you remember there were shadows. The sun was out and it was causing shadows?”
Complaining witness: “Yes.”
Lawyer: “And, you specifically remember seeing shadows caused by the sun because this happened during the day?”
Complaining witness: “Yes.”
Once the witness is pinned down to their lie, when your attorney confronts them later during jury trial with proof that it happened during the night time, they can't change their story and say, “Oh, I misspoke and said day' but I meant ‘night.'”
This is another technique you want your defense attorney to employ during a preliminary hearing on a domestic violence case.
Jury Trial: Just the Facts (And Some Jabs)
Jury trial techniques are the exact opposite. In jury trial, the defense attorney will use a very narrow narrative, staying on the facts of the case and highlighting only those facts that are beneficial to the client.
Your defense attorney will also wait until jury trial to ‘out' the accuser's false statements. No mention of the accuser's false statements will be made during the preliminary hearing.
They will just be allowed to talk and talk. It is only at jury trial that the accuser will be confronted with their inconsistencies between testimony, police reports and restraining order statements.
Hire A Top California Domestic Violence Defense Attorney
Every American citizen, innocent or guilty, has the right to make the legal system prove their guilt beyond a reasonable doubt before being punished for a crime. The role of the domestic violence defense attorney is to protect their client and make sure the government plays by the rules.
A good domestic violence defense attorney has years of experience defending these types of cases and wants to impart that valuable experience to their client.
Domestic violence convictions have dire consequences that can affect an individual for the rest of their life. Without a knowledgeable and experienced attorney on your side who understands how to communicate your side of the story to the judge and jury, the domestic violence system can swallow you whole.
Considering using a public defender or other court-appointed attorney?
While these attorneys are good at what they do, there is no guarantee that they (1) are well-versed in domestic violence defense or (2) can dedicate enough time to your case to successfully fight a domestic violence charge in California.
An experienced California domestic violence attorney is your best bet to achieve the most favorable outcome. Perhaps the biggest downside of using a public defender for a domestic violence case is that a public defender can only help you once you go to court and the judge appoints them.
On the other hand, a private attorney can (1) help you with bail and even get you a discount since bail bondsman recognize someone hiring a private attorney will not skip out on their case, (2) get started right away on defending your case; this includes hiring a private investigator to take pertinent witness statements while memories are still fresh. A vindictive lover can often feel guilty the next day and will welcome speaking to a private investigator to clear the air about the person they just had falsely arrested. A private attorney can also (3) begin negotiating with a district attorney before their office decides whether or not to file charges.
With the right defense attorney with the right investigation, sometimes the DA will decline to file charges altogether.
Even if you don't want to hire a lawyer at all or want to use a public defender, a free consultation with an experienced California attorney who specializes in domestic violence charges can give you invaluable advice on how to best deal with your situation – for free.
If you or your loved one has been accused of, arrested for or charged with a domestic violence crime, get a free consultation from a local domestic violence defense attorney. Those who want a free case evaluation and live in Contra Costa County, Alameda County or elsewhere in Northern California can call our firm. We are happy to help.