Having talked to many clients as a defense attorney handling domestic violence offenses and to many victims as a prosecutor, I have learned that there is a lot of misinformation out there concerning how the court system handles domestic violence cases. This blog hopefully will clear up some of those misconceptions.
When a defendant is charged with domestic battery, the first thing to remember is that the charge is being brought by the state, not the victim. This comes as a surprise to many people. If the police are called to the home and there is an allegation of domestic violence, they will arrest the accused. It does not matter that the victim did not want him or her arrested, but just called the police to get that person out of the house. It does not matter that the person who was arrested was the one who called the police. It is the State who prosecutes domestic battery criminal cases, not the victims.
The first court appearance will be a bond hearing in front of a judge. Many people are surprised to learn that they cannot post bond at the police station like all other misdemeanors. When a person is charged with domestic battery, he or she must be brought before a judge. That might be the next morning, or it might mean the day after that. At the bond hearing, the only issues to be determined are the bond to be set, whether an order of protection protecting the victim and possibly others is to issue, and any conditions of bond that the judge may order. This means that even if the victim is in court and wants to dismiss the case, the case will not be dismissed by the prosecutor. Bond will be set based upon the defendant’s criminal background, the seriousness of the action alleged, and any factors in mitigation that the defendant offers through his or her attorney. The judge will also order the defendant to surrender any guns he may have and to have no contact with the alleged victim for 48 hours, even if the victim wants to have contact with the defendant.
If the victim is in court and is afraid for her safety from the defendant, she may ask for an order of protection calling for the defendant to have no contact with the victim and/or any of the victim’s dependants. The victim may also ask for exclusive possession of the house, cars, custody of any minor children, and a restriction on visitation of minor children by the defendant. That is why having a competent defense attorney protecting your interest is so important. If a defendant just agrees to the order of protection just thinking he doesn’t want to have contact with the victim anyway, he may be signing away more rights than he realizes. The defendant may want to object to the order of protection at the bond hearing. The judge will then enter an interim order of protection for about a week. The defendant can then come back to court and have a hearing on the issues included in the order of protection.
After the bond hearing, the next hearing will generally be a status hearing. At this hearing, the complaining witness must come to court and the state will generally subpoena him or her. Should the complaining witness not come to court, the State MIGHT dismiss the case at this time. I say might because, again, it is the State’s case. They do not have to dismiss it. If they believe it is a serious allegation they may take another date to try to contact the victim. Or, if the defendant gave a written statement to the police admitting to the crime and they have other evidence such as other witnesses, physical evidence, or pictures of the injuries, they can still proceed with the case. Again, this is why it is so important to have a competent attorney representing you at all stages of a domestic battery case.
If the victim appears in court and wants to testify against the defendant, the case will either be set down for a trial or the defendant, through his attorney, will negotiate with the prosecutor to plead guilty in exchange for a lighter sentence.
I hope this short guide clears up some of the confusion surrounding arrests for domestic violence offenses and order of protections.