California is a Mandatory Arrest State

California is a mandatory arrest state when it comes to domestic violence, meaning that police are obligated to make an arrest if there is sufficient probable cause to do so. That means that the arresting officer has no discretion as to whether to arrest you or not if probable cause exists. If you are arrested for domestic violence, do not apologize to the alleged victim or make any statements to the police. Even if you are completely innocent, you cannot “talk your way” out of your situation once the police arrive on the scene. By speaking at all, you are only helping the police find probable cause to arrest you. It is not your job to make their job easier!

Domestic Violence Charges and the Penal Code of California

Domestic violence is a general term for a number of different crimes occurring between people in intimate relationships as described above. The most common type of domestic violence charges involve battery. According to Section 242 of the Penal Code of California, battery is defined as the “willful and unlawful use of force or violence against the person of another,” and under Section 243(e) of the Code, when battery takes place between intimate parties it can be classified as domestic violence. If the violence involved “serious bodily injury,” prosecutors can seek a conviction under Section 242(d). If a “corporal injury resulting in a traumatic condition” was involved, the relevant part of the Code is Section 273.5.

A conviction under 243(d) or 273.5 can put an offender behind bars for up to four years and result in up to $6000 in fines. A conviction under 243(e), while less serious, can still result in prison terms of up to one year and fines of up to $2000. Other consequences of domestic violence may include losing the right to return to one’s home or see one’s children, mandatory counseling, or being put on parole or probation. If an offender has been previously convicted on misdemeanor or felony domestic violence charges, prosecutors can ask for – and get – even harsher sentences.

Probable Cause and Domestic Violence

In the past, police officers in California could only make an arrest if they witnessed an act of domestic violence. By the 1980’s, the law allowed that the presence of visible injuries such as bruises, black eyes and so on was sufficient probable cause to make an arrest. In more recent years, however, the definition of probable cause in domestic violence cases has expanded and it’s enough for one party to state that a domestic partner threatened them or otherwise intimidated them to trigger an arrest. The courts defend this by arguing that probable cause involves something less than certainty but more than suspicion, and to the degree that a law enforcement official suspects that an accused individual may be guilty of domestic violence, they have the right to arrest them. Your domestic violence attorney can tell you more about California’s domestic violence laws and how they apply to your situation.

Defenses in Domestic Violence Cases

The most common kind of defense in domestic violence cases is that of self-defense. This doesn’t mean representing yourself in court; it means that you acted or threatened to act violently in order to protect yourself. Other common defenses in domestic violence cases include:

• The police arrested the wrong suspect
• The allegations made against the defendant are deliberately false
• The other partner consented to the violence
• There is insufficient proof to secure a conviction

There may be other defenses that are relevant. Regardless of the facts, you should speak with your domestic violence lawyer about your case before deciding on an approach to your criminal defense. You have nothing to gain and everything to lose from attempting to make excuses or explain yourself to police.

Emergency Restraining Orders and Protective Orders

Victims of domestic violence are permitted under California law to seek emergency restraining orders and protective orders in both criminal and civil court. It’s not necessary for a defendant to have physically hurt the victim – just being the target of threats and intimidation from a former or current domestic partner entitles an individual to seek protection through the courts. Once such an order is issued, defendants risk rearrest and further charges if they seek to contact the victim. In cases when no domestic violence actually occurred, this can be an understandably stressful experience. It may not seem fair that the courts will grant temporary protective or restraining orders to an alleged victim without the criminal conviction of the defendant, but that’s the law. If you have been served with an emergency restraining order or protective order because of an act of domestic violence, get help – contact us today.