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Fresno Domestic Violence Defense Attorney | Fresno Criminal Defense Attorney | Husband - Wife or Boyfriend - Girlfriend | Domestic Partner Assault or Battery Charges

Posted by Jonathan Rooker | Dec 12, 2017 | 0 Comments

Who should I hiret o represent me for my Domestic Violence (DV) charge?  I got arrested for DV, what happens now?  Who should I hire to defend me against an accusation of Domestic Violence?   My wife isn't going to testify, will they (the prosecutor) drop the charges?  Will the prosecutor dismiss charges if my wife wants them too?  My husband had me arrested for Domestic Violence, what

Domestic Violence Blog

Many times the victim of Domestic Violence or complaining witness decides they do not want to go forward with prosecuting the defendant in domestic violence cases.  Clients often ask the prosecutor if the charges will be dismissed if they ask the District Attorney no to continue with the prosecution of their spouse, boyfriend, girlfriend, wife, husband,  fiance, or significant other.  The answer is highly dependent upon the factual circumstances of the alleged offense.  Police Officers, with certain criteria being met, may testify to hearsay in the preliminary hearing.  Also, there are exceptions to the hearsay rule, that allows some witnesses testimony to be admitted in trials as well.

How can the Officer Testify to Hearsay at the Preliminary Hearing, I thought Hearsay was inadmissible?

There are several factual scenario's that may allow an officer to testify to hearsay at a preliminary hearing.  Once could be that the officer was trained as how to testify to hearsay while in the police academy.  Another may be years in service, after 5 years they(the police officers) become qualified to testify to hearsay at preliminary hearings.  However, the one of the most fact dependent and variable situations is whether or not the hearsay, which is defined as an out of court statement being offered for the truth of the matter asserted, falls within one of the numerous exceptions to the hearsay rule.  If it falls within one of the exceptions, the testimony can be offered at trial or preliminary hearing in support or in defense of a criminal accusation.

Will the DA Dismiss my DV case if the victim doesn't testify?

Sometimes, the DA will decide to dismiss a case due to evidentiary problems.  One of the evidentiary problems that has caused dismissals on certain, factually specific occasions is the reluctant or unwilling witness or victim.  Unwilling or reluctant witnesses or victims make for a factually weak case for the prosecution.  The jury can sense the reluctance, and may interpret it in one of many different ways.  They may view it as the witness has been threatened not to testify or forced to recant.  A second interpretation is that the witness or victim lied in their original of subsequent statements to police, investigators, or even the district attorney prosecuting the case. Many times the Victim will admit that the victim was actually the aggressor in the incident, or that they are the ones who initiated the abuse, and the defendant was only defending his/herself against the proclaimed victims attacks. However, the general rules is that the People of the State of California are the prosecutors, and they make the decision to prosecute, negotiate, or dismiss a criminal complaint.   However, I routinely hear the DA's say that they can't give a better offer because the victim is upset and wants more.  Yet, when I point out the Victim does not want the client prosecuted, the DA's routinely tell me it is not the victims choice.

Could the Judge Dismiss my Case?

Simply put, Yes, the Judge could dismiss your case.  Judges may dismiss a case in the interest of justice.  If the Judge feels that justice would not be served if prosecution of the case continued, they may dismiss in the interest of justice.  The reasons for the dismissal shall be stated orally on the record, making a permanent history of the reasoning behind the action taken. This is referred to as a PC 1385, the section of the Penal Code(set fourth below)  this allows the Judge to dismiss a case.  Judges may also dismiss a criminal complaint after a preliminary hearing if they feel the evidence does not warrant holding the defendant to answer to the allegation and binding the defendant over for trial, this is referred to as Not Held To Answer (NHTA).   It is less common, but following a defendant's preliminary hearing, and the Judge holding the defendant to answer, the prosecutor may see a case, fact pattern, or issue that leads them to dismiss the case on their own motion.  I have had at least one client that comes to mind where this occurred, and that client, who was charged with battering an officer while in a prison institution was very happy that she was not going to receive an additional prison sentence of multiple years for the alleged offense.

Text of PC 1385:

1385. (a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.

(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.

(c) (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).

Should I hire a lawyer for my DV case?

Each case is factually specific, you may want to consult with an experienced criminal defense attorney to help you with your case.  Reasons for hiring a lawyer or attorney to represent you include having a person that you picked, relate to, and communicate with that can explain your case and your options on how to proceed with your defense.  It is also important that your case evaluated, to give your options and explain how the facts, elements, and underlying situation can lead to certain outcomes.  You lawyer can also perform investigation, propose offers for settlements, and/or dismissals to the district attorney and help resolve your case.  To have any real measure of success in gaining dismissals, conditional sentences, or reductions in the charging document an attorney must give reasons for the District Attorney to agree.  This could be witness statements, new factual information, or agreements to attend classes for anger management, batterers treatment program, or remain free of new arrests for a stated time period.  A quality defense attorney will make every effort to tailor the defense's offers around a factual scenario that is best for the client.

What are the Four D's?

The "Four-D's" are a series of events that can occur with any given situation, the first in what can be a series of life changing events is a person's life.  They can come in any order, and they can each occur more than once.  There are certain factors that increase the likelihood of the other events occurring, and each of them increase the likelihood of each of the other events.

1.  DUI: I will start with a DUI.  A DUI can cost a person their job or career.  It can cause a person to lose their drivers license, thus burdening those around them with having to assist or being unable to count on that person to perform their role within the family system. The stress from this situation permeates from the accused and to those around that person, raising the stress level of a household or family unit.  No Valid Drivers license, means they are not legally allowed to perform common household of family chores or activities such as picking the kids up in a motor vehicle, driving them to any location including daycare or school, or even drive themselves.  Financial stress, fines, fees, insurance, and other DUI related costs add up.  This places a financial and psychological burden on the family unit, and the person who was cited for DUI.

2.  Discharge from Employment:  Sometimes, a person will lose their job, either because they are required to maintain a valid drivers license, or they have to travel to and from work.  Other reasons include driving in the course of employment, licensing, and background checks.  A criminal conviction, DUI, Domestic Violence, or any other could have an effect on the career possibilities open to the person, which may become unavailable with a criminal conviction.  Even current employment can be negatively affected by the DUI, and employers will commonly terminate employment if a drivers license or clean driving record is a factor in their employment situation or job related duties.

3. Domestic Violence: Any of the above, or below events can place a tremendous stress on a family unit.  A marriage can have its ups and downs, and criminal allegations can truly test people and relationships. Arguments, blame, financial stress, resentment, employment issues, along with the already difficult life factors that we all have to deal with on an everyday basis can push a relationship into a bad place.  Domestic Violence tends to increase with these other factors.  An accusation of domestic violence will add even more of the same issues as a DUI.  There is a threat of jail or prison time, defense related costs, investigation, statements, worry, blame, and many other factors that will tear a marriage of relationship apart.  Trust is often the first issue, as the victim may feel their trust was violated if they were or believe they were a victim of a domestic assault or battery.  The accused may lose trust in the alleged victim, especially if the incident was over reported by the alleged victim or contained some factually inaccurate information.  many times the police report does not exactly match what the alleged victim believes they reported, which leads to a further erosion of trust.  Even the thought that a spouse would testify against their own husband or wife is often enough to cause serious strain to even the best of marriages.  Don't let yourself slip into this situation.  If you find yourself in this situation, call a criminal defense attorney to assist you with your needs.

4. Divorce:  One of the happiest moments in life, for anyone, is when they enter into a marriage.  The pictures, the family members present, the words of commitment are truly a once in a lifetime event.  However, the above events can test that marriage.  When DUI's, Discharge from Employment, and Domestic Violence enter into the picture, it turns into something ugly, and often time different than what either person expected or wanted.

Risk Factors:

There are many risk factors that can increase the odds of any or all of these events occurring.  Rather than going through them all, I will simply point out that if any of the above events occur in your life, don't let the rest of them happen along with the first.  People can ruin their lives in an instant, but most times it involves a series of events, choices, and actions.

It one of these events occurs, you may evaluate refraining from alcohol or drug use at least until the situation is resolved.  This will decrease the likelihood of a repeat of the triggering event, or a succession of bad events, such as the "Four-D's" destroying and you family. Ideally, we would evaluate our lives prior to the first event, and adjust to avoid the first situation from occurring.  I advise exactly that course of action.  However, as a Fresno Criminal Defense Attorney I tend to enter the equation after at least one of the triggering events has occurred.  I feel it is important to help clients move forward, helping good people through bad times, therefore I have added this section to help clients self-evaluate and avoid the tragedy of the "Four-D's" entering their life.

About the Author

Jonathan Rooker

Fresno DUI Attorney & Criminal Defense Attorney Jonathan Rooker is an experienced and aggressive attorney. His education and work ethic help him separate himself from the other attorneys. He provides quality legal defense at an affordable rate.

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