A Protective and Informative Guide by an Experienced Criminal Defense Attorney (Update 2022)
If you’ve been arrested for domestic violence in San Luis Obispo County, the police gathered evidence that they claim pointed to your guilt. Routinely, this evidence is only based on one person’s claims against you. Such police work routinely fails to consider things that help the person accused of domestic violence.
The police then put together the collected evidence, along with their recommendation for criminal charges, in a report that is submitted to the prosecutor’s office. The prosecutor then decides what to charge or whether or not to charge a crime at all.
But what if…
the police report didn’t include the entire description of what really happened?
the police report had inaccuracies?
there are other witnesses who have key information that weren’t interviewed by the police?
there are other critical pieces of evidence the police did not gather?
Just because you were arrested for a felony domestic violence offense, that does not mean that felony charges will automatically be filed against you by the prosecutor’s office.
In today's blog post, I'm going to provide with you some insights we share with our clients when they first contact our law firm wanting to know what they need to be aware of and what their next steps should be.
So let's begin...
Did You Know? Hiring a skilled criminal defense attorney to advocate on your behalf immediately after your domestic violence arrest in San Luis Obispo County, and before the prosecutor’s office files any charges against you, can help your case, and in some circumstances, can lead to the prosecutor’s office deciding to not file charges against you. Yes, you heard me correctly. Just because you were arrested for a felony domestic violence offense, that does not mean that felony charges will automatically be filed against you by the prosecutor’s office. One possibility is that despite your arrest, the prosecutor’s office may choose to not file any charges against you. Another possibility is that despite your arrest for a felony domestic violence offense, if charges are formally filed, the prosecutor’s office could elect to file only a misdemeanor, with far less serious consequences than a felony. |
Consequences of a Domestic Violence Conviction in San Luis Obispo County
California law makes it a crime to commit domestic violence. There are several California Penal Code sections that address domestic violence. The most common charges we see in our law practice in San Luis Obispo County are alleged violations of misdemeanor domestic battery in violation of Penal Code section 243(e)(1) and domestic battery with willful infliction of corporal injury in violation of Penal Code section 273.5(a).
PC 243(e)(1) – “Misdemeanor Domestic Battery”
Section 243(e)(1) of the California Penal Code states that it is a punishable crime “[w]hen a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship”. California Penal Code section 242 defines a battery as “any willful and unlawful use of force or violence upon the person of another.” PC 243(e)(1) may be proved by showing a defendant touched the complaining witness in a harmful or offensive manner and does not require that the complaining witness be injured.
Potential Consequences
PC 243(e)(1) is a misdemeanor and has the following potential consequences:
Payment of fines and/or restitution payments to the complaining witness;
Incarceration in a county jail for a period of up to 364 days (see Penal Code section 18.5(a));
Completion of an approved domestic violence program. Although these programs have traditionally been 52 weeks in length, as of the date of the writing of this article, San Luis Obispo County has been offering some individuals 26-week programs in lieu of 52-week programs;
Issuance of a criminal protective order against you, which could result in:
Issuance of a restraining order,
Loss of state and federal gun rights;
Loss of child custody rights;
Immigration consequences (this can affect both documented and undocumented people);
Negative impact on a professional license. These are licenses required to legally perform certain professional services in the state of California, in such fields as medicine, accounting, engineering, etc.;
Creation of a permanent criminal record;
Placed on probation with the duty to report regularly to a probation officer;
Found in violation of an existing probation order.
PC 273.5(a) – “Domestic Battery with Willful Infliction of Corporal Injury”
Section PC 273.5(a) of the California Penal Code states that it is a punishable crime “when a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship”.
Potential Consequences
PC 273.5(a), at the discretion of the prosecuting attorney, can be charged as either a misdemeanor or felony and has the following potential consequences:
Payment of fines and/or restitution payments to the complaining witness;
Imprisonment in a county jail or prison for up to 4 years. If PC 273.5(a) is charged as a felony and there are other enhancements charged, then maximum potential incarceration time is more than 4 years;
Completion of an approved domestic violence program. Although these programs have traditionally been 52 weeks in length, as of the date of the writing of this article, San Luis Obispo County has been offering some individuals 26-week programs in lieu of 52-week programs;
Issuance of a criminal protective order against you, which could result in:
Issuance of a restraining order,
Loss of state and federal gun rights;
Loss of child custody rights;
Immigration consequences (this can affect both documented and undocumented people).
Negative impact on a professional license. These are licenses required to legally perform certain professional services in the state of California, in such fields as medicine, accounting, engineering, etc.;
Creation of a permanent criminal record;
Placed on probation with the duty to report regularly to a probation officer;
Found in violation of an existing probation order.
Your Detailed Risk Assessment
With risks at this level, there are a lot of factors a skilled criminal defense attorney needs to understand and consider to protect you and craft an effective defense strategy. This is just the start of things that should be pursued to maximize and improve your defense possibilities. At the Stein-Conaway Law Firm, P.C., in addition to exploring the possible defense strategies, we will have an in-depth conversation with you about your personal situation, so that we are fully aware of the important details not only about the incident, your relationship and history with the complaining witness, but also about what you have at stake. Once we have educated our clients about the law and how it applies to their case, and they have informed us about their concerns and situation, and about what they have at stake, our clients tell us that they feel far less stress and have a much greater understanding of the potential defense options. We are a team with you, perfecting your best course of action going forward.
Elements of the Crime
In order for the prosecuting attorney to prove someone is guilty of violating a domestic violence law, they must prove beyond a reasonable doubt each of the following items, called “elements” in the law:
PC 243(e)(1) – “Misdemeanor Domestic Battery”
The defendant willfully [and unlawfully] touched the complaining witness in a harmful or offensive manner; Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. And
The complaining witness is the defendant's current or former spouse, cohabitant, fiancé, co-parent, someone with whom the defendant has a current or previous dating relationship, or mother/father of the defendant’s child. And
The defendant did not act in self-defense or in the defense of someone else.
PC 273.5(a) – “Domestic Battery with Willful Infliction of Corporal Injury”
The defendant willfully [and unlawfully] inflicted a physical injury on the defendant’s former or current spouse, cohabitant, someone with whom the defendant currently has, or previously had, an engagement or dating relationship, or the mother/father of his/her child. And
The injury inflicted by the defendant resulted in a traumatic condition. And
The defendant did not act in self-defense or in the defense of someone else.
Defending Against Domestic Violence Accusations
Protect Yourself Using Swift Action
If you’ve been arrested, the police gathered evidence that they claim pointed to your guilt. Routinely, this evidence is only based on one person’s claims against you. Such police work routinely fails to consider things that help the accused.
The police then put together the collected evidence, along with their recommendation for criminal charges, in a report that is submitted to the prosecutor’s office. The prosecutor then decides what to charge or whether or not to charge a crime at all.
But what if…
the police report didn’t include the entire description of what really happened?
the police report had inaccuracies?
there are other witnesses who have key information that weren’t interviewed by the police?
there are other critical pieces of evidence the police did not gather?
If the prosecutor’s office doesn’t know about the missing evidence or errors in the police report, then they can’t take it into account when making their decision about whether you should face charges or whether the felony arrest should lead to felony charges or a misdemeanor.
Without the full picture, the prosecutor’s office may not understand that the charges the police are submitting to the prosecutor are not supported by the evidence or are more serious than what is legally appropriate under the circumstances.
Almost always, the best time to collect key information and favorable evidence is at the soonest time after the arrest or after an allegation is made, even if no arrest took place.
At the Stein-Conaway Law Firm, P.C., the sooner clients call our office after being arrested or after learning of the allegation against them, the more successfully we can get to work right away, gathering critical evidence. We then analyze all the evidence we've gathered and collaborate with our clients to make important strategic decisions about how to leverage the evidence in their favor.
We have had many cases where our clients, due to the evidence our team gathered and how we presented that evidence to the prosecuting attorney, ended up not being charged with a crime.
Even if the prosecutor’s office decides to file charges against you, having a skilled criminal defense attorney leading the early advocacy could make the difference between that charge being filed as a felony or reduced to a much less serious misdemeanor.
When our clients don’t get charged with a crime, it ends up being an incredible cost and stress savings to our clients because this type of early and strategic criminal representation can prevent the need for legal representation in the future.
Military Diversion Program
Under California Penal Code section 1001.80, a judge can postpone criminal proceedings for misdemeanor domestic violence charges filed against a defendant if:
The defendant is currently or formerly a member of the US military,
As a result of his/her military service the defendant maybe suffering from one of the following:
post-traumatic stress disorder
sexual trauma
traumatic brain injury
substance abuse
mental conditions.
The defendant agrees to receive treatment for a condition listed above.
Successful completion of a military diversion program, may result in a complete dismissal of misdemeanor domestic violence charges.
Our legal team has experience with getting military service members accepted into a military diversion program. Give us a call (805.748.5243) to learn if a military diversion program is possible for your case.
Exercise Your Right to Remain Silent
You should anticipate that after a domestic violence accusation has been made against you that the police may attempt to convince you to provide a statement about the allegations against you.
They try to convince you that you must talk to them or that it is best for you to talk to them. This is misleading and almost always is the worst thing that you can do. It’s very important that you not make any statements to law enforcement, or anyone else for that matter, until you get legal advice from a qualified criminal defense attorney.
Statements the police try to get can be in the form of in-person or phone conversations, video calls, faxes, emails, text messages, and social media posts & direct messages (dm’s). Don’t do it!
Even if you have already made statements to the police without consulting an attorney, it’s important that you not provide the police, or anyone else, with any more statements or information until you get legal advice from a qualified criminal defense attorney.
In the event that the police contact you at your home or anywhere, seeking to obtain a statement, you can respond by saying, “I’m not going to talk with you until I speak to a lawyer”. They most likely will press you for a statement.
Remember that anything you say can and will be used against you in court. Remember also that you have an absolute, constitutional right to make no statement to them! If you feel pressured by the law enforcement, just keep repeating to them the statement: “I’m not going to talk with you until I speak to a lawyer”, and then respectfully disengage from the interaction.
Likewise, if law enforcement attempts to reach out to you by telephone, do not talk to them at all unless you have been advised by a qualified criminal defense attorney. Just keep repeating to them the statement: “I’m not going to talk with you until I speak to a lawyer”. They will stop asking and you will be best served by using this approach.
A Criminal Protective Order and Its Impact on You
After you are arrested and released from custody, you are assigned a date for a court hearing. This first court appearance is called an arraignment.
The purpose of an arraignment is for the court to formally advise you of the crime(s) with which you have been charged.
In cases that involve domestic violence charges, it is common for the arraignment proceeding to include the court imposing on you a criminal protective order (which is issued under California Penal Code section 136.2).
This criminal protective order could:
Prohibit you from living in the same household as the complaining witness.
Prohibit you from having any contact with the complaining witness, your kids, or other family members.
Prohibit you from possessing firearms while the case against you is pending.
There are actions our attorneys can take on your behalf in an attempt to reduce the restrictions the court chooses to impose on you through the criminal protective order.
Other Complicating Factors
Risk of Losing Your Professional License
If you are licensed professional through the State of California and you are arrested for the crime of domestic violence, then your professional license could be negatively impacted.
Having your professional license negatively impacted or revoked could drastically affect your ability to support yourself. It is extremely important that you seek experienced legal advice right away to protect your license.
The Stein-Conaway Law Firm, P.C. has represented doctors, lawyers, teachers, engineers, nurses, and many other types of professionally licensed clients. We have experience collaborating with professional licensing attorneys to craft a strategy designed to protect the professional license you worked so hard to earn.
Immigration Consequences
If you are a non-US citizen (documented or undocumented) and are accused of a crime of domestic violence, then it is critical you seek representation from a qualified criminal defense attorney quickly.
Your defense strategy need is unique. From the beginning, the planning needs to be crafted by a experienced criminal defense attorney who knows the immigration system and who can help protect your immigration status from the harm it is additionally exposed to during each step of the criminal defense process.
Documented People
Documented people, such as lawful permanent residents (green card holders), visa holders, work permit holders, and DACA recipients (Deferred Action For Childhood Arrivals) can have their current status jeopardized by criminal charges. Action is vital to protect against this.
These risks exist even if you have never been in trouble with the law before.
Undocumented People
Undocumented people are those who do not have lawful immigration status in the United States.
It’s important to know that if at some point in the future you want to gain a lawful status in this country, then the outcome of your domestic violence case is critically important. A miscalculation in your defense would place roadblocks on your path to a lawful status in the future.
Use Our Legal Experience To Your Advantage
At the Stein-Conaway Law Firm, P.C. we have proven experience defending our non-US citizen clients against domestic violence accusations and structuring settlements for our clients’ criminal cases in ways that help to save their immigration options for the future.
Another important element you should keep at the front of your mind is that your criminal defense attorney needs to work carefully with your immigration attorney.
If you already have an immigration attorney, then we can work with that attorney. If you don’t have one, then we can connect you with one from our trusted network.
We pride ourselves on how well we work with other attorneys. We understand that the more effective your criminal defense attorney and immigration attorney can work together, the better your chances are of successfully defending against all the risks you face.
Your Privacy
Your conversations with us are totally private and legally protected by the attorney-client privilege. We do our best to create an experience for our clients where they feel safe and comfortable to make it easier to share the details of their immigration situation. Doing so allows us to tailor your defense and lessen the impact on your immigration status. You can know, with confidence, any information you share with the Stein-Conaway Law Firm, P.C. will not be shared with anyone outside our firm without your permission.
Gun Rights Consequences
Under federal law, a domestic violence conviction can result in the permanent loss of your right to possess a firearm, even for a misdemeanor.
In fact, you do not even need to be convicted of the charge in order for your gun rights to be at least temporarily taken away pursuant to California Penal Code section 136.2, Temporary loss of gun rights occurs when a criminal protective order is issued at your arraignment on a misdemeanor or felony domestic violence accusation.
How To Take Action Now
Time is not on your side.
Your next step should be having a live conversation right now with a skilled, experienced, and qualified criminal defense attorney about the details of your case.
Given our depth of local knowledge and proven track record, we think you should contact us first at 805.748.5243 or fill out the online form below to schedule a free case evaluation.
If you don’t choose us, then that’s ok.
Just make sure you reach out to a qualified criminal defense attorney ASAP.
We hope you found this post helpful.
