What Is Domestic Violence?

Any domestic violence lawyer will tell you that a crime of
violence, such as assault, battery, or even threatening a person becomes a
crime of domestic violence when the person committing the crime is in a close
relationship with the victim. This “close relationship” can be one of parent,
domestic partner, spouse, ex-spouse, cohabitant, or even boyfriend or
girlfriend. When a crime of violence falls into the legal rubric of domestic
violence the defendant faces additional penalties, such as possible mandatory
jail time, a year-long batterer’s treatment program, a “protective order” (restraining
order) dictating terms of contact with the victim, and enhanced terms of
probation.

Any experienced domestic violence attorney knows that more
innocent people are arrested for domestic violence than any other crime. Often,
a false accusation comes from the heat of passion. Other times a false
allegation of domestic violence is more calculated and used to gain an upper
hand in a child custody dispute or out of jealousy or spite.

The Innocent Defendant

When one person falsely accuses another of domestic violence
out of anger or indignation, they typically are quick to recant their
allegation. The “victim” in these cases is usually eager to tell the District
Attorney that they no longer wish to press charges. But this desire has little
or no effect on the DA. You see, it is the State and not the victim who is
pressing charges against defendant. Moreover, it is just as common for a real
victim of domestic assault to recant than a false victim. So the DA would
rather leave it to a jury to decide what happened than dismiss a domestic
violence case because of a recanting victim.

When the victim no longer wants to press charges the DA will
usually compel the victim to testify by personally serving them with a
subpoena. This is an Order from the court and if the victim doesn’t show up and
testify the judge will order their arrest.

Is Domestic Violence A Felony Or Misdemeanor?

In Orange County, crimes of domestic violence are usually
"wobblers". This means that the DA can use their discretion to file
the domestic violence charge as either a misdemeanor or a felony. In exercising
their discretion the DA will generally consider factors such as the seriousness
of the injury, the extent of the defendants criminal record, whether the
defendant is also charged with other crimes arising from the same incident, and
whether the defendant resisted or cooperated when arrested.

Should I Consult With A Domestic Violence Lawyer?

Anyone charged with a domestic violence crime, whether
domestic battery (California Penal Code 243), causing corporal injury (Penal
Code Section 273.5), child endangerment (Penal Code Section 273), Elder Abuse
(Penal Code Section 777), or Criminal Threats (Penal Code Section 422), should
definitely consult a domestic violence lawyer. Most reputable domestic violence
attorneys in Orange County provide a free and confidential consultation.

Protective Orders (Restraining Orders)

In most domestic violence cases the court will issue a “protective
order”. This Order sets the parameters of contact that the defendant is allowed
to have with the victim and in most cases the Order allows for no contact at
all. In fact, the protective order will make it a crime for the defendant to be
within a certain distance of the victim. This can be very troublesome when the
defendant and victim live together, especially if they have kids together.
Unfortunately, the victim has little to say about the order at first. And if
the defendant violates the terms of the protective order they will go straight
to jail. If the defendant was out of custody on bail when they violated the protective
order the judge will likely revoke the defendant’s bail and remand the
defendant to custody until the case has been litigated. Furthermore, violating
the terms of a protective order is itself a crime.

The terms of a protective order can be modified by a judge. The
victim must file a petition, usually with the help of the defendant’s criminal
defense attorney, requesting modification. Upon request, a judge can allow for “peaceful
contact” between the defendant and victim. This allows them to cohabitate and
live a “normal” life. But many judges require the defendant to have at least
started the Batterer’s Treatment Program before granting the motion. Also, some
judges will not grant a request to modify the protective order unless the victim
attends a “Personal Empowerment Program” or “PEP classes”.

What To Do If You Face Domestic Violence Charges

First, if you have been served with a criminal emergency protective
order, you must make sure you comply with its terms until your domestic
violence lawyer can bring a petition to have it modified. Extreme caution must
be exercised here as even a text or voice message is grounds for the judge to
revoke your “own recognizance” status or your bail. It is important that you
obey all the terms of the protective order as this is the best way of
protecting your freedom now.

Next, consult with an experienced domestic violence defense
lawyer. Call The Law Offices of EJ Stopyro at (949) 559-5500 to consult
with a seasoned Orange County criminal defense attorney and learn what will
happen in court, the strengths and weaknesses of your case, the possible penalties
for the charges you face and any defenses that you can raise in your case.