How can misdemeanor charges be dropped?

Asked almost 5 years ago - San Jose, CA

I was charged with misdemeanor for domestic violence. I did not hurt my wife neither she hurt me. She bailed me out right away but I have been told even my wife doesn’t want to do anything still DA will try to convict me. This is my first offence, and I never been convicted or arrested before. What should I and my wife do to drop the charges? Thanks

Attorney answers (3)

  1. Joseph Briscoe Dane

    Pro

    Contributor Level 20

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    Answered . Unfortunately, it's not up to your wife to "press" or "drop" charges. Those decisions are left solely to the prosecutor. Your wife can certainly let them know of her desire not to have charges filed in any way. The DA may take her feelings into consideration in making their decision, especially if it's a very low-level offense.

    You should be contacting a criminal defense attorney - I wouldn't wait to see what happens with the DA. There is the very real possibility they will file charges and you're then left scrambling to get an attorney you're comfortable with. The first court appearance - your arraignment - is an important date. The DA could ask for a restraining order against you, to have you kicked out of your house, etc. An attorney can protect you.

  2. Brian Richard Dinday

    Contributor Level 16

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    Answered . I have litigated a couple of domestic violence cases in Santa Clara County, and yes, they do make a lot of noise about how it is not up to the victim to drop the charges and they will convict you no matter what, and they will force her to testify, (blah, blah, blah).

    The truth however, is that with an uncooperative witness and good representation, the D.A. will often back down and dismiss, but they'll make you work for it and it takes expert guidance.

    Step #1: It does not help you for either of you to talk to the D.A. or their investigators or the police;

    Step #2: Hire an experienced domestic violence lawyer NOW. Don't wait. He might be able to help convince the D.A. not to file charges in the first place.

    Step #3 Hang tough. Don't believe the stories that "you better take a deal now, or we'll never offer it again".

    Step#4: Fight the charge until they dismiss it or you are acquitted. (found not guilty), though I doubt your case will ever go to trial.

    Step #5: Once you have your dismissal, you are not done. Seek a finding of "factual innocence", which is a court order stating that you didn't just get a dismissal because they had witness problems but because you were in fact totally innocent. That results in your arrest record being sealed and then actually physically destroyed.

    Even though a prosecutor never files charges or files charges and then dismisses them and you have no record of conviction, you probably can't imagine how much harm just the arrest record itself will do. Most employers do background checks now, and imagine how anxious an employer with female employees will be to risk a lawsuit because he hired a "woman beater". You can see that this arrest can make your entire work life a constant struggle, with the good jobs always slipping away.

    You should learn more about your situation, but do it quickly. Here are some articles on false domestic violence charges:


    http://lawyer-domestic-violence.com/domestic_vi...

    http://lawyer-domestic-violence.com/results.htm

    To learn more about the PFI, (Petition for Factual Innocence) you can read the articles on my website here, or call me for a free consultation to see if I can help you:

    http://lawyer-expungement.com/petition.htm

    And

    http://lawyer-expungement.com/results.htm

    You are correct to take this problem seriously. I have a court date right now for a factual innocence petition in San Jose. My client was arrested on a felony assault due to her husband's complaint. He had seven stitches and the D.A. was even threatening to charge a "Great bodily injury" accusation to ensure she got state prison time. We fought the case and they eventually dismissed the entire case. Now I believe our petition will be granted and she will have a totally clean record again.

    If you would like a free telephone consultation, I would be happy to speak with you to get some background and advise you what I think can be done for you. Please do NOT plead guilty to anything, and do not wait until after your first court date. You will have lost a chance to prevent charges from ever being filed at all. Good luck.

  3. Edward Jerome Blum

    Contributor Level 16

    Answered . Mr. Dinday has given a comprehensive review of the strategy to handle this and I concur. I just want to add that it makes sense for your wife to hire a lawyer too. This way she is protected against the DA coming back after her for not cooperating if she chooses not to do so. Also, in negotiating your wife's lawyer creates the appearance that the DA is not going to have an easy time railroading you into a bad plea.

    Edward J. Blum

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