Domestic Violence shares the identical elements of an Assault and Battery, but the prosecuting attorney must also establish that the parties were in a “domestic relationship.” The maximum penalty for Domestic Violence charges depends on whether or not the individual has priors, the alleged facts, and other key factors. The range of possible penalties for a domestic violence conviction begins at 93 days in jail, and felony charges are possible based on the alleged facts.
Facing Domestic Violence Charges? Here’s What to Know
Fights between couples can turn into domestic violence charges against one person. If the police are called to the home, one person may be arrested and charged with domestic violence, even if no one is injured. When someone is arrested for domestic violence, they need to hire a lawyer for help immediately. Learn more about domestic violence charges below as well as why you’ll want an attorney to help you through the case.
What Counts as Domestic Violence?
Domestic violence covers any assault or battery against a present or former spouse, a current or former girlfriend or boyfriend, the other parent of the person’s child, or another resident in the person’s household. If the arrested person lives with, is in a relationship with, or was in a relationship with the victim, the case is considered domestic violence instead of assault or battery, and the sentences they face are more serious. It is not necessary for there to be any injuries for a case to be considered domestic violence, as the threat of injuries is sufficient. This is why someone can be arrested after an argument, even if no one is hurt.
Assault Versus Battery
Both assault and battery can fall under domestic violence. Assault is when someone is touched without their consent or where they feel like they’re going to be injured. Battery occurs when the person is struck or hit, even if there are no injuries as a result. If the case falls under domestic violence laws due to the relationship between the defendant and the victim, charges can include either domestic assault or aggravated domestic assault, depending on the severity of the injuries. Though both assault and battery can fall under domestic violence, the terms are often used interchangeably. It is important for defendants to understand the difference, however, so they can determine the exact charges they’re facing and the potential penalties.
Domestic Assault Versus Aggravated Domestic Assault
The two primary charges faced after an incident that’s considered domestic violence will be domestic assault or aggravated domestic assault. Domestic assault does not require the victim to be injured in any way. With these charges, it’s possible to expect fines and/or jail time if convicted. Domestic assault is generally a misdemeanor unless the defendant has prior convictions for domestic violence.
Aggravated domestic assault is the charge used when the victim receives injuries that require medical attention. The potential penalties for aggravated domestic assault are more serious than domestic assault, but it can also be a misdemeanor or felony punishable with jail time and/or fines. The only way to avoid jail time and/or fines for either of these types of charges is through an aggressive criminal defense strategy.
Criminal Penalties for Domestic Violence
Though someone may be arrested for the first time, domestic violence penalties can be severe to discourage future incidents. If someone is convicted of domestic assault, they face a misdemeanor conviction as well as jail time of up to 93 days and up to $500 in fines for a first conviction. If someone is convicted of aggravated domestic assault, they are facing a misdemeanor with up to a year in jail and up to $1,000 in fines. The criminal penalties do increase if someone has prior convictions for domestic violence and both charges can be upgraded to a felony if this is the case.
Criminal Penalties After Previous Convictions
If someone has previous convictions for domestic violence on their record, the potential penalties increase. For domestic assault, a second conviction is still a misdemeanor, but it is possible to receive up to a year in jail and up to $1,000 in fines. For a third or subsequent conviction, the defendant faces a felony conviction with up to two years in jail and up to $2,500 in fines.
For aggravated domestic assault, the second and subsequent convictions will be felonies. This means the defendant faces up to two years in jail as well as up to $2,500 in fines. A strong defense is imperative in these situations to avoid the potential felony record, as well as jail time or fines.
Dealing With Child Custody and These Charges
The process of determining child custody, whether during a divorce or on its own, can be incredibly stressful. When domestic violence charges come into play, it can become far more complex. The courts will look at what’s in the best interest of the child when determining custody, so if one parent has domestic violence convictions on their record or is facing a domestic violence charge, it’s not going to look good during family court. This could lead to less time with the child or the loss of visitation rights, depending on the situation and the severity of the charges.
Domestic Violence and Restraining Orders
Victims of domestic violence in Michigan can seek a domestic relationship PPO (personal protection order). This can be granted before the domestic violence case goes to court, without any arrest or charges pending, or after someone is convicted of domestic violence. If the PPO is approved, the defendant will not be allowed any contact with the victim. If children are involved, custody decisions will determine how visitation works with a PPO in place. If the defendant does contact the victim in any form or violates the PPO in another manner, they face charges for this. This can be on top of domestic violence charges and can lengthen the potential penalties the defendant is facing.
Defenses Against Domestic Violence
Domestic violence cases, especially if there are no injuries, are typically based on what the arresting officers saw and heard, witness testimony, and the testimony of the defendant and the victim. Just because someone is arrested and charged with domestic violence doesn’t mean they will be convicted. There are four general defenses to the charges that may apply, depending on the specific situation and the evidence available.
- Domestic Violence Did Not Occur – It is possible to use the defense that the act of domestic violence did not occur. This can happen if the victim is making up a story to prevent child visitation or as retaliation against the defendant.
- The Defendant Didn’t Do It – It could be argued that the victim was assaulted, but that the defendant is not the one who did it. The prosecution needs to prove beyond a reasonable doubt that the defendant is the one who committed the crime. With poor witness testimony and a lack of other evidence, this may be difficult to do.
- The Defendant Was Justified – A defendant can claim they were defending against an attack by the victim. They may be able to show that they were defending against the actions by the victim in an attempt to protect themselves, which is legal to do.
- Issues With the Investigation – The fourth type of defense is to call into question any of the evidence against the defendant. If there are any issues with the investigation, the evidence collected or used, or anything else used in the case, it’s possible evidence can be suppressed and the charges may be dismissed as a result.
Domestic violence cases can lead to severe penalties, especially if the person has been previously convicted of similar charges. If you are facing domestic violence charges, contact a lawyer immediately for help with the case. While it is possible to defend against these charges, the defense needs to begin quickly and needs to be aggressive to help reduce the chance of a conviction and serious penalties.
Frequently Asked Questions About Domestic Violence Charges
Being arrested and charged with domestic violence can be scary and overwhelming, regardless of whether the accusations are true. Many defendants will have a lot of questions about the charges they’re facing, what to expect before and after they meet with a lawyer, and how their case might go. Read the frequently asked questions below to learn a little bit more before speaking with a lawyer about your case.
Should I Try to Talk to the Police?
No. It is not a good idea to try to explain what happened or try to talk the police out of an arrest. Anyone who is facing domestic violence charges will want to have a lawyer with them when they answer any questions or tell their side of the story. Without a lawyer present, it’s too easy to say something that could be incriminating, especially if it’s used out of context in court. Avoid saying anything and ask to speak with a lawyer.
What Happens After the Arrest?
After being arrested, the person will be taken to jail and booked. Within the next few days is the arraignment, where the person is officially charged and may be given bail or released from jail. From there, the path can change depending on how the case is handled. If the defendant pleads not guilty, the case will go to trial. If the defendant pleads guilty, they are convicted and the next step will be sentencing.
What Should I Do After an Arrest?
After an arrest, take photos of any injuries you may have. Then, contact a lawyer for help. Be careful to avoid any orders of protection, as this will just lead to further charges. If the victim tries to contact you, speak with your lawyer and allow them to handle the situation. It may be possible to modify the order or to have it dismissed, depending on the situation, but this does need to be done by a judge to avoid further charges.
Should I Plead Guilty?
Not without speaking with a lawyer first. It may be a good idea to accept a plea bargain, depending on the situation, but it is never advisable to do so without proper legal advice. It may be possible to have the charges dismissed, but if a guilty plea is already entered, the lawyer may not be able to help as much. Even if you are guilty, talk to a lawyer before doing anything else.
Can I Talk to Someone About the Case?
The only person you should discuss the case with is your lawyer. They will be able to provide advice and explanations. Those around you, including family members and friends, may not be informed of the laws and can easily give incorrect advice. If this happens, it could hurt your case and make it more likely you will be convicted. Plus, anything that is said to them may be admissible in court, so it’s better to avoid talking about the case with anyone except the lawyer.
What Should I Do About a Pending PPO?
If you’ve been served with a temporary personal protection order (PPO), talk to your lawyer about defending against it. For the order to become permanent, you and the victim will need to go before a judge, so it’s better if you have legal representation. Even if you don’t intend to have contact with the victim, having a PPO in place can impact your job or your future. Do not do anything that would violate the temporary order, as this can impact the potential for having it dismissed.
What Happens if I am Falsely Accused of Domestic Violence?
Let a lawyer handle the case to defend against the charges. Even though it might seem like there isn’t any hope, there may not be as much evidence as it seems. Prosecutors need to prove their case beyond a reasonable doubt, so if you are falsely accused, they will not be able to do that. A lawyer on your side can help defend against the charges or even have them dismissed if there isn’t enough evidence to proceed.
Can Women be Charged With Domestic Violence?
Yes. Men are more likely to be charged with domestic violence, but women can be, as well. Both men and women will want to seek legal help if they’re facing domestic violence charges to learn how they can defend against them and hopefully prevent a conviction.
What Happens if the Victim Doesn’t Want to Press Charges?
Often, victims will decide they no longer want to press charges. This does not mean the charges will be dismissed. Victims cannot press charges on their own – that is up to the prosecution. If the prosecution believes they have sufficient evidence without the victim’s testimony, the case will likely proceed. If the prosecution is not sure they can secure a conviction without the victim’s testimony, the charges may be dismissed.
What Penalties am I Facing?
The penalties depend on what the charges are and whether there are previous convictions for domestic violence. These cases can be misdemeanors or felonies and potential jail time, depending on the severity, can be up to two years. There may also be up to $2,500 in fines. A lawyer can review the specific charges and the defendant’s legal history to provide a more specific answer.
Can I be Arrested for an Argument With a Spouse?
It is possible to be arrested after an argument if threats of violence were made during the argument. Threats do not have to be verbal. If someone picked up a knife while yelling at their spouse, they could be arrested for domestic violence, even if they didn’t intend to actually do anything. The key is that the victim was afraid the defendant would become violent. However, just arguing with no threats made is not considered domestic violence.
Can I Still See My Children After the Arrest?
This is where cases can become far more complicated. If there are children in common between the victim and the defendant, a judge will need to determine whether contact is allowed and how arrangements must be made for visitation with the children. If the children were present or victims, visitation may no longer be allowed, at least temporarily. If the children were not involved in any way, visitation can likely be adjusted to allow the defendant to see their children. A lawyer is needed to help understand what can and cannot be done and to work towards figuring out a solution for visitation while the case is pending.
Will My Children be Questioned During the Investigation?
If the children were present during the incident, they will likely be questioned as they are considered witnesses. This does depend on the age of the children. Younger children may not be able to answer questions or may not have any idea what happened. Older children, however, may be asked to give a statement as to what happened.
If you’ve been arrested and charged with domestic violence, the time to contact a lawyer for help is now. These are serious charges that can have a long-term impact on your life. A lawyer will be able to provide answers specific to your case, help you understand the charges and potential penalties, and help you understand what to do and what to avoid doing while the charges are pending. Contact Weise Law now to get help with your case and to start defending against the domestic violence charges you’re facing. (616) 931-7030
