Domestic Violence – What happens once police is involved?

Domestic Violence – What happens once police is involved?

Summit Attorneys can help you avoid charges!

The law places quite strict obligations on police officers. Basically, if they are called to a home or other place where there is an allegation that domestic violence has occurred, they must:

 

  • respond to every call requesting assistance in relation to domestic violence;
  • determine who the ‘dominant aggressor’ is;
  • make an arrest if there is probable cause that an offense has been committed;
  • avoid making a dual arrest wherever possible;
  • speak to all the occupants of the home, including children;
  • give the alleged victim information about their rights, and assistance available;
  • ensure that the proper domestic violence reports are completed; and
  • forward report and recommendations to the District Attorney’s office.
  • issue Emergency Protective Orders in some instances

 

What does the law require the police to do?

Once the police become involved, the complainant loses control of the situation.

 

When the police respond to a domestic violence call, they must follow the policies under the law, and make an arrest wherever there is probable cause. In fact, the ‘Guidelines for Law Enforcement Response to Domestic Violence’ specifically state that an officer should not take into account the complainant’s “preference that an arrest be made, or not be made”.[9]

They also state that they should not take into account further factors including:

  • Speculation that the complainant may not follow through with the prosecution,
  • Speculation that the case may not result in a conviction,
  • Complainant’s history of prior complaints, or
  • Verbal assurances that the violence will cease.

These policies severely hamper police discretion. They mean that even in a case where the complainant insists that they want no action taken, the conflict is over, and the police think that there may not be enough evidence to sustain a conviction, they may still be required to make an arrest!

We deal with many cases where, by the time our clients call us, they and their partner wish that the police had never been called. Often, the alleged victim regrets reporting the matter, but it’s not up to them to drop the case. Both parties feel powerless once the police have stepped in. This is where we can help – a Summit Defense attorney can help you by speaking to the alleged victim if there’s a temporary order in place that prevents you from communicating, and we can let the police and the DA know that they will have an uncooperative victim that does not want to testify against their partner.

If you are either the defendant or the alleged victim in a domestic violence matter, and you want a say in what happens with your case, the best way to do that is to engage an attorney from Summit Defense – we cannot change the fact that someone was arrested, but we can influence the next stage in the proceedings. We will find out which DA is dealing with your case, present mitigating or exculpatory evidence, and work to head off the filing of charges.

 

Should I try to explain things to the police?

No, you should not. If you are accused of an offense, there is usually no point in trying to explain things to the police. Given the policies that we have outlined above, the police will make their own decision about the incident based on the statement of the alleged victim and any other evidence or witnesses at the scene– regardless of what the accused person might say to them.

The best thing to do if the police arrive at your home in relation to an incident, or otherwise speak to you about a domestic violence allegation, is to say nothing. You should hire a lawyer immediately, and have them speak for you.

 

What should I say to the police if I am arrested or questioned?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

In many domestic violence matters, the police will respond and arrive at your home very quickly after receiving a complaint – either from the alleged victim, or perhaps a neighbor who has heard an argument. When you have just been involved in a dispute with your partner, emotions run high and it can be a tense situation. The police will separate and talk to both you and your partner, they will want to know what happened, and they will often act as if they are just trying to help you sort out the disagreement. The police might try to ask you questions about what has happened, and any allegations made against you, without first arresting you – which means they don’t have to tell you about your right to say nothing.

This can lead people to believe that the matter is simply a ‘misunderstanding’ that can be ‘cleared up’ with a brief explanation. However, this is never really what happens – and anything that is said, even in an informal conversation, can be used as evidence against you. If any kind of allegation is being made against you, you should never answer any questions from the police without first getting legal advice, and you should always have an attorney present when speaking to the authorities.

If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them.

Being charged and going through the arrest process can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. Summit Defense Attorneys defend many cases and it is almost never a good idea for a suspect to talk to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.

 

If I am arrested, will I go to jail?

No, not necessarily – most criminal defendants are entitled to bail. In some cases, bail is not necessary and you can be released on your own recognizance. But in more serious cases, such as where physical violence is alleged, bail will be required – and it may be set at a relatively high amount. If you are not able to immediately secure your release, we will do everything to ensure that you are released on bail as soon as possible following an arrest. Summit Defense’s first priority will be to use every effort to keep you out of custody.

Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you. Once it is paid, you will be free to leave the custody of the police.

One additional factor that is relevant to domestic violence cases is the issue of restraining orders. At times, a defendant is released from the police station but there is a restraining order in place that makes it illegal for them to return home, or to have any contact with their partner or children. We explain more about restraining orders in this section of our site, and outline what your Summit Defense attorney can do for you if the conditions of the restraining order are too restrictive.

Can I settle this out of court?

Yes – it is often possible for us to settle your matter out of court. How we can assist you will depend on where your case is procedurally, and the exact nature of the accusations against you. Some of the things that Summit Defense Attorneys can do in your case include:

  • Finding out who the DA is in your case;
  • Securing representation for the victim in some cases;
  • Suggest resources like family counseling or anger management classes;
  • Present exculpatory and positive character evidence to the prosecution, before charges are filed;
  • Make the DA aware of problems with their case before charges are filed.

As we have discussed, the priority of law enforcement and the DA in these cases is very often an arrest, followed by the swift filing of charges, and obtaining a restraining order. So for our efforts to be most effective, it is essential to contact us as soon as possible.

I’m not a US citizen – will the involvement of police raise immigration issues for me?

Yes, unfortunately it will. If you are not a citizen and you are accused of committing a domestic violence offense, you need to contact Summit Defense Attorneys immediately – we are the only defense firm in the Bay Area that with a Criminal/Immigration specialist on our team, and he is involved in every case where a person’s immigration status is at risk.

If you are an immigrant, it is especially critical that you have an attorney who is prepared to defend your matter aggressively as the consequences of a Domestic Violence conviction can be severe. We know that many people come to the Bay Area from all over the world to live and work, and many are not US citizens but are on visas, such as the H1 or H1B visa, or have green cards. We know that if you’re not a US citizen, you need extra assistance to protect against negative immigration consequences. Our clients are educated, hard-working professionals and we do not want to see them suffer the loss of their job, their good reputation, or their immigration status. We bring both our immigration and our criminal defense expertise to the table, and fight to get charges dropped.

 

If I’m not a citizen, can I leave the country with a domestic violence case pending?

Every case is different – but if you leave the country, it is possible that the Immigration and Naturalization Service (the INS) will not let you back in if you have a case pending. Our specialist immigration attorney can advise you on the best course of action to take in your case.

Immigration issues affect many of our clients, which is why we have an expert immigration attorney at Summit Defense team. He is part of the team for every case where our clients are facing immigration issues, and works with our criminal defense attorneys to develop the best strategies to preserve and protect our clients’ immigration status.

 

What if I go to court without a lawyer?

Having legal representation is not only your right, but your best chance of fighting the case against you. Summit Defense Attorneys have handled many domestic violence matters where we have been able to influence the process by presenting mitigating evidence to the DA to have charges dismissed, and where we have also been able to assist our client, and their family, access services to help them deal with conflict in a more positive way in the future.

People accused of domestic violence cannot afford to ignore the allegations, or think that they are something minor that can be sorted out privately. The policies and the laws behind them make it very clear that the police will take action in almost all cases, and the prosecution will fight for a conviction. The operation of these policies make it vital that anyone who is accused of a domestic violence offense have a skilled and experienced legal representative – this is not something that anyone should try to deal with by themselves.

You should seek legal representation because these cases can have very serious repercussions. A domestic violence charge exposes you to the risks of a criminal record, large fines and jail time, as well as the humiliation and damage to your reputation, and the difficulties of living with a restraining order and being separated from your family. If you are not a US citizen, you face the additional risk to your immigration status – which is why we have an expert immigration attorney on our team.

In a recent case that we defended, our client was a prominent attorney who, in the course of a night out drinking, got into an argument with his wife. On the way home, the fight escalated and, by the time the police arrived at his home later that night, they found his wife with some injuries, the most serious being a bloody nose. The police arrested him for Penal Code 273.5 inflicting injury on his spouse – a felony – and took him to the police station. He secured bail, but because the police had applied for an emergency restraining order, he was unable to return home and prohibited from contacting his wife.

Our client told us that he had been arrested despite his wife’s insistence that they were both responsible for the argument. She had tried to explain the situation to police, and that they both had suggested that he spend a night at a friend’s house to let things cool down instead of the police arresting anyone. The police had ignored them both, however, and arrested our client.

We immediately went to work on our client’s case. Our attorney:

 

  • spoke to our client’s wife, who assured us that she was also responsible for the fight, and that she wanted her husband to be able to come back home;
  • made contact with the DA who was handling the matter;
  • at the first court appearance, persuaded the judge to change the restraining order to a peaceful contact order, so as our client could return home and communicate with his wife;
  • presented mitigating and character evidence to the DA;
  • told the DA about the problems they would have in their case – primarily, that our client’s wife would not be co-operative, would not speak to the DA, and would not testify against her husband; and
  • referred the couple to counseling.

Due to our attorney’s work in presenting this case in the most positive light, and bringing the serious difficulties with the case to the attention of the DA, we were able to persuade the DA to drop the case. This case demonstrates how much a skilled attorney can influence the process in your case, especially when involved at the pre-file stage.

 

What does the law require the police to do?

As we have explained above, the law places quite strict obligations on police officers. Basically, if they are called to a home or other place where there is an allegation that domestic violence has occurred, they must:

  • respond to every call requesting assistance in relation to domestic violence;
  • determine who the ‘dominant aggressor’ is;
  • make an arrest if there is probable cause that an offense has been committed;
  • avoid making a dual arrest wherever possible;
  • speak to all the occupants of the home, including children;
  • give the alleged victim information about their rights, and assistance available;
  • ensure that the proper domestic violence reports are completed; and
  • forward report and recommendations to the District Attorney’s office.

Once the police become involved, the complainant loses control of the situation.

When the police respond to a domestic violence call, they must follow the policies under the law, and make an arrest wherever there is probable cause. In fact, the ‘Guidelines for Law Enforcement Response to Domestic Violence’ specifically state that an officer should not take into account the complainant’s “preference that an arrest be made, or not be made”.[9]

They also state that they should not take into account further factors including:

 

  • Speculation that the complainant may not follow through with the prosecution,
  • Speculation that the case may not result in a conviction,
  • Complainant’s history of prior complaints, or
  • Verbal assurances that the violence will cease.

These policies severely hamper police discretion. They mean that even in a case where the complainant insists that they want no action taken, the conflict is over, and the police think that there may not be enough evidence to sustain a conviction, they may still be required to make an arrest!

We deal with many cases where, by the time our clients call us, they and their partner wish that the police had never been called. Often, the alleged victim regrets reporting the matter, but it’s not up to them to drop the case. Both parties feel powerless once the police have stepped in. This is where we can help – a Summit Defense attorney can help you by speaking to the alleged victim if there’s a temporary order in place that prevents you from communicating, and we can let the police and the DA know that they will have an uncooperative victim that does not want to testify against their partner.

If you are either the defendant or the alleged victim in a domestic violence matter, and you want a say in what happens with your case, the best way to do that is to engage an attorney from Summit Defense – we cannot change the fact that someone was arrested, but we can influence the next stage in the proceedings. We will find out which DA is dealing with your case, present mitigating or exculpatory evidence, and work to head off the filing of charges.