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Can I refuse to testify? Served subpoena as the victim in a DV case. I dont want him charged as he is not violent-LIVE IN CANADA

Ontario, CA |

my boyfriend of 9 years and I got into an exremely heated fight on a public street. He got incredibly angry as I said I didnt love him anymore. He went to get my cell phone out of my purse and tore my bag as he was removing it from my shoulder. He then began to scream in my face and spit in my direction. He refused to leave (at this point we were on my mom's drive way). He also had my cell phone in his hand and refused to give it back. There was a neighbour across the street whom I asked to call the police.
The police came and I gave my statement. I honestly did not want him arrested I just wanted him to leave without incident. They noticed my purse was ripped and I told them what happened.. He is now being faced with a DV charge and a mischief charge.
We were intoxicated at the time.

Attorney Answers 4

  1. Disobedience of a lawful subpeona could subject you to civil and possible criminal penalties. However, it is unlikely that this would follow you to Canada.

  2. The cycle of Domestic Violence: I suspect you are in the honeymoon phase.

    As a former prosecutor in Florida, I can tell you that we brought victims in from other countries all of the time. You should contact the Victim Advocate in the case and tell them your feelings. She may be able to arrange a phone call with you, the Victim Advocate and the prosecutor.

    If your boyfriend is truly non-violent and loves you, he would agree to couples counseling and anger management. I hope you insist and that he agrees.

    Sent from my iPad | The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Florida. Responses are based solely on Florida law unless stated otherwise.

  3. You can hire a lawyer to assist you with this if you wish. A criminal subpoena is valid for a 150 mile radius from the court which you will testify. So if you were not personally served within the 90 mile radius, the subpoena was not properly served.

    BUT, a judge can issue an order in addition to the subpoena which would reach further than the 150 miles. Ok with that said - if you don't show to court you could be held in contempt and put in jail. If you - but preferably an attorney would file what is known as a motion to quash the subpoena. In other words - object to the subpoena, then the court may discharge any obligation which you may have had to attend the court hearing. Also an attorney could write a letter to the DA explaining that you did not want to participate.

    Secondly, in California the victims of DV cannot be put in jail for NOT TESTIFYING. Only can they land in jail if THEY FAIL TO SHOW UPON A SUBPOENA which had valid service. The judge could fine you for contempt if you refuse to testify but not put you in jail.

    As a practical matter, most DA's don't go to trial if the named victim is not willing to testify. However some do. It really depends on the extend of the DV - the greater the crime - the more likely the DA would want to pursue the case even without your assistance.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.

  4. You're question came up in California, not Canada, so you are getting answers that are correct in the state of California. The law is different up there, so you need to address your question to Canadian lawyers. Good luck to you.

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