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Domestic Violence – Is It A Felony Or Misdemeanor?


May 25, 2014

Domestic violence is defined as the crime where an intimate partner is using a pattern of abusive behavior to overpower and control the other person in a relationship. Domestic violence is considered a very serious offense and in California, it is considered a wobbler case. A wobbler case is a case where the prosecutor is the one who decides whether the crime is charged as either a felony or a misdemeanor.

What is the difference between a felony and a misdemeanor?

Crimes that are charged as felony are crimes that are very serious and have devastating effect on the victims, the crime is a blatant disregard for the law and crimes committed against minors. For example, if the injuries sustained by the victim are life threatening, then it will most likely be charged as a felony. Cases that are not as serious as previously discussed are charged as misdemeanors. Apart from this, the punishments are also different between the two. In misdemeanor cases, if proven guilty, will carry prison sentence no more than one year along with fines and probation. On the other hand, felony charges carry prison terms that is more than one year along with heftier fines and longer probation. More on this can be found at Randy Collins website.

What circumstances would make a domestic violence case charged as a felony instead of a misdemeanor?

Normally, when domestic violence results to a little scuffle, the charge will be a misdemeanor. However, there are a lot of cases when a domestic violence is charged as a felony. The discretion in deciding whether a domestic violence case is charged as either a felony or misdemeanor is the prosecutor. The prosecutor usually looks at the aggravating factors of the case and when one or more of these aggravating factors is present, then a felony case is charged.

The aggravating factors to look at are:

  1. Severe bodily harm and injury to the victim. When the act in domestic violence is so severe that it has resulted to severe bodily harm and injury to the victim and especially is the injuries sustained is life threatening, then it will most likely be charged as a felony.
  2. Domestic violence that results to injuries to minors can also result to a felony charge.
  3. The use or involvement of dangerous weapons like knife and gun, even if it was only used as a threat, during a domestic violence case will also result to a felony charge.
  4. If the domestic violence case also includes another crime like sexual assault and/or rape, then the charge will most likely be felony.

A domestic violence case can be a complicated case so hiring a legal representation is a must. An expert and experienced domestic violence defense attorney can help make a strong defense to prevent a guilty verdict and the punishment and consequences with it. The most important part in a domestic violence charge is to not get charged with felony. An experienced lawyer can make sure that the prosecutor see the case as a whole and negotiate for the case to be charged as a misdemeanor. That is the first important step. So as soon as you are charged, it is imperative that you immediately contact a lawyer.

Domestic Violence Defenses

An argument between a couple can escalate rather quickly. Before you know it, the police show up at the door. When a dispute between two people living in the same residence escalates to the point where one of them sustains a harsh threat and/or injury, it is an indicator of domestic violence. Domestic violence is a serious offense in Los Angeles, CA and throughout the state of California. Police are regularly called to handle all sorts of domestic violence cases ranging from minor to severe. Consequently, the person who gets arrested for domestic violence can face misdemeanor or felony charges. The exact charges will depend on the severity of the harm or injury and the circumstances involving the domestic violence.

When charges for domestic violence are brought against you, it is crucial to hire a domestic violence attorney who represents clients in Los Angeles, CA and surrounding areas. An experienced domestic violence attorney can assess your particular case to determine the best defense. A knowledgeable domestic violence attorney recognizes how the issue at hand can significantly impact the lives of those involved. As such, it is important to seek a skilled domestic violence attorney as soon as possible to help mitigate matters and develop an effective and strategic defense.

Contrary to what many may believe, it is possible to defend against domestic violence charges. A skilled domestic violence attorney knows how to dissect their clients’ cases to build a strong defense. There are several possible defenses in domestic violence cases. The defenses employed will be based on the findings, research, and investigation done by your attorney. Some of the most common types of defenses include self-defense, burden of proof, and false allegation.

Self-Defense

Self-defense is one of the most common types of defense. It can be used when the person being accused of domestic violence was trying to protect themselves from the other person involved in the altercation. Sometimes, the person who gets arrested for domestic violence was only acting out of self-defense. They were exercising reasonable force to protect themselves. Reasonable force is sometimes necessary. For instance, if spouse A tries to hit spouse B, and spouse B pushes spouse A to avoid the hit, they are using reasonable force. Hence, it is self-defense.

Burden of Proof

In Los Angeles and throughout California, domestic violence allegations are often the result of one person’s word against another. It is important to remember that in order to be convicted of domestic violence, the prosecution carries the burden of proof. In other words, the prosecution must prove beyond a reasonable doubt that the defendant is guilty. If the evidence in a domestic violence case does not coincide with the allegations or there isn’t sufficient evidence, then there cannot be a conviction. Therefore, burden of proof is a powerful defense.

False Allegation

False allegations of domestic violence usually arise from anger, retaliation, or to gain some advantage over the accused. Such instances typically occur in hostile divorces or separations when a spouse wants to deny the other spouse child custody or visitation rights.

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About the Author

At the Law Offices of Top Gun DUI Defense Attorney Myles L. Berman, our experienced team of DUI / Drunk Driving defense lawyers are dedicated to aggressively defending people arrested for DUI.