When most people think of domestic violence, the first thought that comes to mind is battered women who have been suffering years of abuse. While sadly these cases do exist in our community, the great majority of the domestic violence cases that wind up in the court system do not fall into this category. In our experience, many cases occur because the involved parties are in the last desperate throes of a failing relationship, one or both partners had been drinking, or an argument gets out of hand. Regardless of whether there is any history of violence or even any injury, when one party calls law enforcement, the officer is obligated to identify the “dominant” aggressor, and will remove that person by arresting him or her.
The designated “victim” will generally be the person who called 911, but not always. On occasion, the man or woman who calls 911 is arrested, particularly if there is a noticeable injury to the other party.
Unfortunately, the quick assessment made by law enforcement in the aftermath of a heated situation is not always sufficient to correctly identify the main perpetrator. And of course the existence or non-existence of an injury is only part of the story. Further, even if the alleged victim decides he or she does not want to press charges, law enforcement still can and will proceed with an arrest, and the District Attorney’s Office will frequently still file criminal charges against both men and women.
After the arrested party has has been removed, law enforcement will generally offer the alleged victim an Emergency Protective Order (EPO). This is usually a five- to seven-day restraining order signed by a judge restricting all contact between the parties. Third party contact is not allowed unless through an attorney, and all firearms must be removed from the restrained party’s possession. Law Enforcement will personally serve the arrested party with the Order. The alleged victim is not required to ask for the EPO, but they often do so based on the recommendation of law enforcement.
It is not unusual for the alleged victim to regret their request and attempt contact with the restrained party. If you have been served with a Restraining Order, it is very important that you do not contact the victim or respond to any of the victim’s attempts to contact you before the expiration date listed on the order. Do not answer the phone, respond to texts, emails or Facebook contacts, or engage in any other form of direct or indirect contact. If contacted in person, simply leave the area immediately. It is irrelevant that the protected party initiated contact: any contact while the Restraining Order is still in effect can lead to additional criminal charges and may well lead to you being taken into custody.
On the expiration of the Order, contact may be allowed, unless either the alleged victim has filed in the civil domestic violence court for a “Temporary Restraining Order” (TRO), or the criminal court issues a “Criminal Protective Order” (CPO). In both cases contact must still be avoided unless and until the order expires or is dismissed in court by a judge. Regardless of the outcome of the criminal case, when a TRO is issued by the civil domestic violence court, the protected person can ask that the order be made ‘permanent’. Permanent in this instance usually means the order will last up to 3 years initially. Before the court grants the order, the person from whom protection is sought is entitled to a hearing. The court has considerable power to make wide-reaching orders relating to custody of children, access to the family home, and custody of pets. Therefore, it is very important to be represented by an attorney at the civil hearing as well as any criminal proceedings.
An early and proactive defense can be critical in domestic violence cases. Once retained, we can contact the prosecutor in charge of the case, often before the first court date, and provide additional information. Although it is not always possible, occasionally intervention at this early point can prevent charges from ever being filed. If you have been arrested for domestic violence, please contact our office immediately to discuss your options.