Domestic Violence And The Spousal Privilege: Do I Have To Testify Against My Spouse.

Any Orange County Domestic Violence Lawyer will tell you that a
typical domestic violence arrest in Orange County consists of one spouse being
arrested for some form of domestic violence, be it Criminal Threats,
Domestic
Battery or Corporal
Injury, against the other spouse. When the police respond to a domestic
violence call, they take a statement from the victim and arrest the defendant.
The police forward the report containing the victim spouse’s statement to the District
Attorney’s office.

The DA then reviews the report and files a Complaint with
the court, listing the domestic violence charges against the defendant spouse.
However, the police report, and the statement made by the victim spouse, is NOT
admissible as evidence in court. A statement made out of court is called “hearsay”
and is objectionable to the defendant’s Domestic Violence Attorney in Orange County. In order to prosecute
the defendant spouse at trial, the DA will need to put a witness on the stand
who actually saw the domestic violence occur. In most cases, the only witness
is the victim spouse.

Often, by the time the trial rolls around, which is
typically months after the domestic violence occurred, the victim spouse no
longer wishes to prosecute the defendant spouse. The victim spouse usually does
not want to send their spouse to jail or to have their spouse bear a conviction
for misdemeanor or felony domestic violence. However, it is not up to a victim
of a crime to decide whether prosecution should occur. It is entirely up to the
DA to decide to prosecute for a crime. At this point the victim spouse is
merely a witness to the crime of domestic violence and the DA will subpoena
this reluctant witness to testify against their spouse.

But what about the marital privilege? Doesn’t the law
prohibit forcing one spouse to testify against the other? This is a question we
Domestic Violence
Lawyers in Orange County get all the time. Well yes…sort of. There is a
marital privilege in California, as in many states, which prohibits forcing a
spouse to testify against the other. This privilege is found at Section 971 of
the California Evidence Code and it states:

 

Except as
otherwise provided by statute, a married person



whose spouse is a
party to a proceeding has a privilege not to be



called as a
witness by an adverse party to that proceeding without



the prior express
consent of the spouse having the privilege under


this section
unless the party calling the spouse does so in good faith without
knowledge of the marital relationship.

And if this privilege hadn’t been amended by the legislature
it WOULD prevent forcing one spouse to testify against the other in a domestic
violence trial. However, this privilege WAS amended by Evidence Code Section
972 which specifically states that the marital privilege is not available in a
criminal action where one spouse is accused of committing a crime against the
other. Therefore, criminal defense lawyers in Orange County can no longer rely on
the marital privilege to keep a reluctant spouse off the witness stand in a
domestic violence trial.

If you have been charged with a domestic violence offense,
call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and
confidential telephonic consultation. You can also visit our website at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Domestic Violence: Counseling For The Victim

When a defendant is convicted of Domestic Violence
in Orange County, either by a trial or through a plea deal negotiated by their Orange County
Domestic Violence Lawyer, the law requires that, as a term of probation,
the defendant must successful complete a domestic violence counseling program.
This domestic violence program is either a 52-week batterer’s treatment program
or an anger management program, depending on the charge they were convicted of.
In this way, the law ensures that someone who has committed domestic violence
is given counseling and a chance to break the cycle of domestic violence.

Of course, mental health experts tell us that the cycle of
domestic violence is most often perpetuated by both the defendant AND the
victim. Thus, it would be best to provide counseling to both the defendant and
the victim in order to break the cycle of domestic violence. However, since the
victim is no on probation, it can be difficult for the court or the defendant’s
Orange County Domestic Violence Attorney to convince the victim to
attend counseling.

In order to address this problem the court has come up with
a creative solution. You see, when a defendant is convicted of domestic
violence, they are usually served with a Protective Order
(restraining order)
by the court which prohibits the defendant from having any contact with the
victim. However, the victim of domestic violence can petition the court to
modify a protective order to allow the defendant to have peaceful contact with
the victim. Since the defendant and the victim are often married, and often
even have children together, such a modification is usually granted.

But granting such a petition lies within the sound
discretion of the court. And judges in Orange County will often require the
petitioner (the victim of domestic battery) to attend counseling before the court
will grant modification of a protective order.

Domestic
Violence Lawyers know that the most common counseling required by the
Orange County court is the Personal Empowerment Program. This program consists
of ten sessions (once a week for ten weeks). Each session is two hours long.
The program is designed to teach victims how to help break the cycle of
domestic violence. And in Orange County it is typical for a judge to require a
victim to complete some or all of the ten sessions before the judge will modify
the protective order to allow for peaceful contact between the defendant and
the victim.

If you or a loved one is charged with domestic violence, Criminal Threats,
Corporal Injury,
or any other crime of violence, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced Orange County criminal defense lawyer.
You can also visit us at www.ejeaquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92675.

DUI Probation: One-Year Mandatory Suspension For Driving With A 0.01%.

If you are
convicted of a DUI in California, the law requires that as a term of your DUI
probation you not drive with any alcohol in your system. Any DUI defense lawyer in Orange County worth their salt will tell you that
it doesn’t matter if it is a first-offense DUI or if you have one or more prior
DUI convictions within ten years. Your DUI probation MUST contain the condition that you not
drive with any alcohol in your system. Of course, the length of your DUI
probation does depend on whether it is a first-offense DUI or whether you have
prior DUI convictions.





The length
of a first-offense DUI probation period is typically three years. This minimum
length of DUI probation is required by law. For a second-offense or more within
ten years this minimum length of DUI probation increases to five years.
Moreover, Orange County DUI
attorneys know
that if you are on DUI probation you are required to submit to a breath test if
a police officer requests it.



If you are
on DUI probation and you are stopped by a police officer, you are required to
disclose that you are on DUI probation. Moreover, the fact that you are on DUI probation
is available to the police officer through his mobile computer unit. So what
happens if you violate your DUI probation by having some alcohol in your system
while driving? Well, Orange County DUI defense
attorneys will
tell you that first of all you can be arrested. By the very nature of DUI probation
you will have some jail time hanging over your head. And if you are found by
the court to be in violation of DUI probation, the judge can order you to serve
some or all of the jail time remaining.





Also, this
violation is reported to the DMV by the officer by a form called a DS 367,
which the officer fills out and sends to the DMV. The Officer will also seize
your license and give you a pink piece of paper to act as a temporary. Unless
you or your Orange County DUI defense
lawyer calls the
DMV within ten days to request a hearing, your driving privileges will be
suspended for one year. The suspension will begin 30 days after the date of
arrest. If you or your DUI Lawyer do set a  DMV hearing, then a hearing will be set and the DMV must find
evidence to prove the following three issues:

1)      That the police officer had
reasonable cause to believe that you were driving a motor vehicle in violation
of Vehicle Code Section 23152 (DUI), 23153 (DUI
with injury) or
23154 (DUI probation);

2)      That you were placed under lawful
arrest; and

3)      That you were driving a motor vehicle
when you had a 0.01% or more by weight of alcohol in your blood while on DUI
probation.

The
suspension issued for violating DUI probation by having 0.01% or more of
alcohol in your blood is a one year suspension with NO POSSIBILITY of a
restricted license during this period. That’s right! No restricted license for
the entire one-year period.



If you face charges
for a DUI, DUI with injury, or violation of DUI probation, you need to talk to
an experienced Orange County DUI Attorney. Call The Law Offices of EJ Stopyro
at (949) 559-5500 for a free and confidential telephonic consultation. You can
also visit us at www.ejesquire.com. We
have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.

Dismissal Of Criminal Charges: Your Right To Speedy Prosecution

When someone is arrested or charged with a crime such as domestic violence
or hit and run,
they have the right to a speedy and public trial. This means that the DA cant
drag their feet when it comes to moving the case along. However, as an experienced
Orange County criminal defense attorney
I can tell you that it is not uncommon for the DA to take a long time before
filing the criminal complaint, especially in cases of petty theft (shoplifting), drug
possession, and other minor offenses. However, if the delay is not
justified, the defendant may be entitled to a dismissal of the charges.

criminal defense lawyers in Orange County know that the Sixth Amendment
to the United States Constitution, applied to the states through the Fourteenth
Amendment, provides, in part: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial …” The right to a speedy trial is
a “fundamental right granted to the accused and … the policy of the law since
the time of the promulgation of the Magna Carta and the Habeas Corpus Act.” Harris v. Municipal Court (1930) 209 Cal. 55, 60; 285 P. 699.
The constitutional right to a speedy trial is triggered when a defendant
becomes “an accused.” Under the United States Constitution, a person becomes an
accused in a misdemeanor case on arrest for the charge, (be it DUI,
assault and battery, Domestic Battery or any other misdemeanor), or when a misdemeanor
complaint is filed, whichever occurs first. Serna
v. Superior Court (1985) 40 Cal.3d 239, 262; 219 Cal.Rptr. 420.

If the delay in
prosecuting the defendant for domestic violence, hit and run or other
misdemeanor involved is less than one year, then the defendant’s Orange County
Domestic Violence Lawyer should
file a motion and the court should engage in a balancing process and include
consideration of: 1) the length of the delay; 2) the justification, if any, for
the delay; 3) defendant’s assertion of the right; and 4) prejudice, if any, to the defendant.  (Barker v. Wingo, (1972) 407 U.S.
514, 530-532; 92 S.Ct. 2182.)
 However, if the delay exceeds one year in a misdemeanor case, prejudice
is presumed, and if no justification is shown the case must be dismissed.
 (Serna v. Superior Court, supra, 40 Cal.3d at p. 254.) 

So, for example, if you are arrested for misdemeanor DUI,
you are typically released either on your own recognizance or on bail with a
date to appear in court for your arraignment. But, as any Orange County DUI Attorney knows,
when the court date comes, the DA often has not yet filed the criminal
complaint in the case. Thus, when you or your criminal
defense lawyer show up for court, your name will NOT be on the calendar. If
this happens, you or your defense attorney should get a date stamped paper from
the DA’s office showing that you or your defense attorney showed up for the
original court date. The burden is then on the DA to notify you of a new court
date or to bring you before the judge on the new court date.

If there is substantial delay before the DA notifies you or
your criminal
defense attorney of a new date, then your lawyer should file a motion
asking the court to dismiss the charges because of the substantial delay. If
the delay is more than a year in a misdemeanor case, then you may be entitled
to a dismissal of the charges as a matter of law.

If you face criminal charges in the Orange County court,
call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation with an experienced Orange County criminal defense
lawyer. You can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.