Let's say there has been an incident between you and your girlfriend and someone has called the police.

What was a private matter is no longer private. Now you have to explain yourself to a third party.

It is often a "she said, he said" matter. Unfortunately for men, usually the police will choose to believe the woman.

Who will become the victim and who will become the defendant often depends on who called the sheriff or police or who claims to have been injured.

Of course, sometimes things are not that simple, and it is always best to stay out of the system to begin with. Do not let anyone tempt you into making physical contact first. If your girlfriend is hysterical and slapping you, run the other way, get out the door, drive away: do anything but let things get to the point where you do something causing the police to be contacted.

If you think the other person is going to call the law enforcement, often the best defense is offense: call the cops yourself.

Whatever you do: never physically attempt to stop your partner from calling the police. This will be become an additional charge.

Now for some really bad news: Even fi the victim later decides not to press charges, this will not help you in many California counties today.

The D.A. decides to bring charges, no one else—not the court, not the police, not the victim.  District Attorneys are motivated to do things that the public will perceive as punishing offenders and protecting society. Once the cops are called the process begins. The D.A. may feel the victim has been coerced into changing her (or his) story. Most D.A.'s assume the original claims are true.

Despite this, it is extremely helpful to defense counsel if the assaulted or abused party indicates to the police and D.A. that she or he does not want to cooperate with the prosecution.

Temporary Restraining Orders

Domestic violence and TRO's go hand in hand.

Many clients have been surprised at how quickly a TRO was issued against them.

The D.A.'s office can and often does request a "Protective Order" against you from being near or even contacting the other party (victim).To avoid this you need to hire a lawyer as soon as practicable to communicate to the D.A. that you pose no threat to the victim and the victim is not in fear for her/his life. Often, in response, the D.A. will settle for a "No Harass" order—merely prohibiting annoying or harassing the victim.

Typical Charges in Domestic Violence Cases

The closest to a dismissal is a sentence for "disturbing the peace." This is a very minor criminal offense, a Penal Code sec. 415 violations for "loud and unreasonable noise."

The second least serious charge is a Penal Code sec. 240 offense, simple assault. This is an "unlawful attempt to commit a violent injury on another person."

Finally there is the charge of  battery, which is "an unlawful use of force on another."

Domestic violence is a form of battery where the victim (usually) is a girl friend or spouse. Penal Code sec. 243(e) covers common domestic violence and Penal Code sec. 273.5 applies when the victim can demonstrate some form of injury, even just a bruise or a scratch.

If any children were present at the incident, the D.A. may also file a Penal Code sec. 273.5 charge of child endangerment.

Typical Sentences in Domestic Violence Cases

• 3 years of supervised probation with minimum 18 months of regular meeting with probation officer
• 10 to 90 days in jail; this is in lieu of up to 6 months you could be sentencing for domestic violence without injury and one year in jail for domestic violence with injury
• An experienced criminal defense lawyer can make all the difference in minimizing your sentence. For instance, all jail time can be avoided if the D. A. allows you to do your time in the Sheriff's Work Program.
• Fines range from $1000 to $3000 in most cases.

In addition, you will be required to attend domestic violence classes for up to 52 weeks. You may be well advised to take the proactive step of enrolling before the sentencing.

The consequence of a domestic violence conviction can be more serious than commonly thought. Domestic violence can be charged as a misdemeanor or as a felony—making it a "wobbler" offense.

In custody fights, the effect on child visitation and custody can be very significant.

Domestic violence and protective orders

Domestic violence can consist of threats, phone calls that annoy or frighten, stalking, unwanted sexual advances, and slapping or punching. Child endangerment charges are often added on if a child witnessed the "violence." Arrests commonly occur following violation of the terms of a TRO.

Following a domestic violence incident the alleged victim will often ask for a protective order preventing any contact with any children involved, especially if the couple is divorcing or is separated.

A lawyer can seek to modify a TRO or other protective order. This office has been able to prevent protective orders from being issued in the first place.

Assault and battery

Assault and battery against anyone is against the law of course, but in California and in many other states the law gives special attention to girl friends, children, spouses, and other family members—who are seen as particularly vulnerable.

The Battery can be almost anything, a touch for instance, and often the arresting officers do not even ask for proof. Assault is one crime, and battery is another, and the two crimes are not always charged together. Assault is an attempt to hurt or touch someone whereas battery is the completion of such an act.

A threat over the phone can constitute an assault.

If you have been charged with domestic violence in the San Francisco Bay Area, contact the Law Offices of Doug Slain online, or call Douglas Slain toll-free at 888-998-5558.