Domestic violence in California is taken very seriously by law enforcement. If the police suspect any violence or abuse between partners or people in the same household, they will almost always arrest at least one of the people involved. In some cases, they may make a dual arrest.
Once there has been a domestic violence arrest, it is up to the prosecutor to go for a domestic violence conviction. Even if you change your mind and take back any accusations, it may be too late. The prosecutor can try and convict the defendant even without your cooperation.
No one should carelessly throw around accusations of abuse because taking it back may not be enough. An innocent person can face criminal charges for a false accusation of abuse. If you were falsely accused of domestic violence in California, don't just assume the truth will set you free.
A conviction for domestic violence can hurt your reputation, cost you thousands of dollars, and leave you with a permanent criminal record. If you are arrested for domestic battery in Oakland or the East Bay, talk to an experienced California criminal defense attorney for legal advice.
Should I Contact My Ex to Ask Them to Take Back the Accusations of Abuse?
After an arrest for domestic violence (DV), you should NOT contact them to try and get them to take back the accusations. After the arrest, the alleged victim or the court can issue a protection order that prohibits contact between you and your ex. If you try to contact them, it could be a violation of the no-contact order. Violating a restraining order could result in additional criminal charges.
If there is something you want to communicate, talk to your criminal defense attorney first. Your lawyer can explain your rights and legal options. Your attorney can protect you from additional criminal charges after a domestic violence arrest.
California Mandatory Arrest for Domestic Violence
California was one of the first states to institute mandatory arrest policies for domestic violence. If the police have probable cause that there has been domestic abuse, the police department policies require the police to make an arrest.
According to the Commission on Police Officer Standards and Training (POST), "California Domestic Violence legislation encourages the creation of agency policies that promote arrest where there is reasonable cause or probable cause that a domestic violence offense has been committed."
Officers are supposed to avoid using certain factors in deciding to make an arrest, including:
- Whether or not the suspect lives on the premises with the victim
- Lack of protective orders
- Alleged victim's preference that an arrest be made or not be made
- Occupation, community status, and/or potential financial consequences of arrest
- Alleged victim's history of prior complaints
- Promises that there will be no more violence
- Alleged victim's emotional state
- Non-visible injuries
- Location of the incident (public/private)
- Speculation that the alleged victim may not follow through with the prosecution
- Speculation that the case may not result in a conviction
- Assumptions that violence is more acceptable in certain cultures
- Immigration status
- Sexual preference/orientation
If the police show up to your apartment after a report of domestic violence and they see a bruise on your partner's arm, they may use that as evidence of potential abuse. Even if your partner pleads not to arrest you, the police may still make an arrest if they have probable cause that abuse has occurred.
How Can I Show False Allegations of Abuse?
It can be difficult to prove that something didn't happen when there is no proof that you didn't commit a crime. There isn't much evidence you can point to to show that something didn't happen. If the false accuser retracts their statement of abuse, it may not be enough to stop a criminal prosecution.
If the alleged accuser wants to take back what they said, the prosecutor may not believe them. If the prosecutor has independent evidence of possible abuse, they can go forward with the charges without the cooperation of the alleged victim. Evidence may include:
- Police officer testimony
- Medical records of injuries or abuse
- Threatening messages
- Witness testimony
What Are the Penalties for Domestic Violence in California?
Domestic battery can be a misdemeanor or felony in California. In most cases, domestic battery under Penal Code section 243(e)(1) is a misdemeanor. The penalties include fines of up to $2,000 and up to one year in county jail. However, there are additional consequences of a domestic violence conviction, including:
- Victim restitution
- Batterer's treatment program
- Payment to a battered women's shelter of up to $5,000
Domestic battery resulting in a traumatic injury can be a felony. The penalties for felony domestic battery causing traumatic injury include up to 4 years in prison and a fine of up to $6,000. A second or subsequent conviction is punishable by up to 5 years in prison and a fine of up to $10,000.
Domestic violence convictions may also result in losing your gun rights. The court can prohibit you from owning or possessing a firearm.
How Can a Domestic Violence Defense Lawyer Help?
Don't rely on the alleged victim to recant their accusations. You need to be proactive in protecting your rights. Even if the alleged victim takes back what they said, you may still need a strong legal defense because the prosecutor can go forward with criminal charges without the victim's testimony.
There are several legal defenses to accusations of domestic violence. Your attorney can review your case and identify the best legal defenses available in your case. These defenses include false testimony, self-defense, and defense of others.
California attorney Lynn Gorelick has more than 40 years of East Bay criminal defense experience and understands how much is at stake for people accused of domestic violence. She understands how to approach the individual facts of each case for the greatest chance of success in avoiding a criminal conviction. If you are facing DV charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.