Experienced Domestic Violence Defense Lawyer – Frequently Asked Questions

By May 29, 2014 November 21st, 2019 blog post

What is domestic violence?

Domestic violence is considered to be a pattern of learned behavior in which one person uses physical, sexual, and emotional abuse to control another person. Domestic violence can include assault, battery, sexual assault, sexual battery, stalking, kidnapping, false imprisonment, and other criminal offenses that result in physical injury or death. False or exaggerated allegations sometimes results in domestic violence charges.

What is a domestic relationship?

Under Michigan law, a person has a domestic relationship if any of the following apply: spouse or former spouse, dating relationship or former dating relationship, a child in common, resident or former resident of the same household.

What can happen if I’m convicted of domestic assault?

Domestic violence first offense is a misdemeanor punishable by up to 93 days in jail and a $500 fine. There are many different forms of domestic violence offenses, and the penalty for a domestic violence crime depends on many factors, including the laws of the jurisdiction, the severity of the act, whether previous offenses have occurred and whether the victim was injured. First-time offenders are often placed on probation, required to serve a few days in custody, perform community service or complete a counseling program. However, many jurisdictions have begun aggressively prosecuting domestic violence crimes, and a prosecutor may seek jail time even for first offenses without serious injury. Others penalties can include significant fines, domestic violence counseling, restitution and anger management classes. The quality, experience, and persuasiveness of the defense attorney can make a monumental difference in the severity of the penalty ultimately imposed by the court. In some cases, an attorney may be able to negotiate a plea bargain whereby the gets dismissed.

If I plead guilty under the Domestic Violence Statute (MCL 769.4a), will the conviction go on my record?

No. The law provides that the court may take a plea without entering a judgment or conviction. The charge is dismissed after successful completion of probation, and no conviction will ever enter. Probation can be up to 2 years for a misdemeanor and up to 5 years for a felony and will likely include a multitude of terms and conditions. A great domestic violence attorney will do what is necessary to minimize the term of probation, and the conditions of probation, to maximize his client’s chances of obtaining a dismissal of the case at the earliest possible time.

Can my domestic violence charges be dismissed?

Possibly. It is remarkable how many clients’ say, “I want my domestic assault charge dismissed.” It is probably not shocking to you that everyone wants their case dismissed. A defense lawyer maximizes the probability of dismissal by putting up an aggressive and credible defense, by being proactive and intelligent in developing a defense strategy, and by maintaining a reputation of being a fighter in court. Prosecutors are very reluctant to dismiss a domestic violence charge and only do so in rare circumstances.

If my wife or girlfriend believes she made a mistake when she called the police, can she have the domestic violence charges against me dropped?

No. The prosecutor makes the charging decision, not the alleged victim. Domestic violence “victim” commonly recant statements made to police, claim they lied to the police, or attempt to “drop charges.” Prosecutors assume that the victim may be pressured to change his or her story. Because domestic violence frequently recurs, the prosecutor generally will file the charges if there is sufficient evidence of domestic abuse — even if the victim changes his or her story. An alleged victim cannot “drop charges.”

Can I be arrested for domestic abuse if the injury is minor?

Yes. No injury at all is required. Minor physical injuries, an allegation of unconsented physical contact, and even the threat of violence alone may result in an arrest in a domestic violence case. The severity of the injury may influence the specific charge brought and the potential penalty. Many people do not realize that there need not even be physical contact for a charge of domestic violence in Michigan.

Is my girlfriend or wife pressing charges against me?

No and, unfortunately, there is no way for her to “drop charges” because she is not the one pressing charges. It is a very common misunderstanding that the alleged victim is “pressing charges.” In actuality, the complainant (alleged victim) is a witness in the case and the State of Michigan or the charging city or township is the one pressing charges.  The prosecutor represents the government and not the alleged victim.  In many cases, the alleged victim is not the one that calls the police and never asks that the defendant be charged.  The charging decision is made by police and the prosecutor exclusively.

What if my spouse doesn’t show up in court?

It is a common misconception that if the victim does not show up in court, the court will dismiss charges. Prosecutors do not generally dismiss cases because the complainant fails to appear. For most court dates, including arraignment on a warrant and pretrial conferences, the victim presence is not requested or required. When a complainant fails to appear for trial, the more common outcome is that a material witness warrant is issued for her or, in the alternative, the prosecution gets an adjournment of the case.

What type of counseling could I be required to attend?

Counseling for those convicted of domestic violence typically focuses on anger management, especially understanding the reasons for violent behavior and learning how to resolve problems without using violence. The court usually monitors attendance and can impose a jail sentence if the offender fails to attend counseling sessions. Defendants usually must pay for court-ordered counseling sessions. If alcohol or drugs are involved or there is a history of drug or alcohol abuse, a court also may require the defendant to attend alcohol or drug treatment programs. The cost of these programs and the time commitment can be overwhelming.

What do I do if I’m charged with domestic violence?

Contact a credible, known, and effective criminal defense lawyer immediately. An attorney may be able to arrange a low or personal bond for you, get the charges dropped altogether, or take measures to reduce any potential sentence you may receive. In cases where there is only an allegation of domestic violence, a lawyer may be able to convince the police and prosecutors not to bring charges at all.

If the police have been called but I haven’t been charged, what should I do?

Retain counsel immediately. Lawyers retained on a pre-charge basis might be able to stop the filing of criminal charges. The vast majority of defense attorneys plead most of their clients without any real fight to protect them. When a true trial lawyer contacts the police or prosecutor, they will think twice about charging a weak case.

What if there is no evidence of domestic violence against me?

Unfortunately, there is virtually no chance there is “no evidence.” An alleged victim’s word alone is evidence. The person’s word may be a lie, and all the available evidence may contradict it, but the victim’s word alone is enough for a charge AND a conviction. Judges instruct juries that they can convict on the “victim’s” word alone if the jury is convinced beyond a reasonable doubt. The prosecution is not required to show an injury or have any other evidence whatsoever to proceed with a charge or proceed to trial.

Will my domestic violence case go to trial?

Probably not. Very few cases go to trial. The overwhelming percentage of criminal cases result in a plea, plea bargain, dismissal, or another form of resolution and rarely go to a jury trial or bench trial. Some disreputable attorneys charge one flat fee for handling a domestic violence case. This type of fee structure is very suspicious because so few cases go to trial. If a one time fee is high, it is generally unfair because the lawyer gets paid for a trial that never happens. Conversely, if a one-time fee is seemingly low, it is a sign that the attorney will try to coerce the client to enter a plea, even when the case should go to trial.

Will domestic violence charges affect my relationship with my children?

A domestic violence conviction can result in restricted visitation rights. Your divorce lawyer should consult with your criminal attorney to discuss the issues in common with both cases. If the children have observed the abuse, they may be emotionally and psychologically injured even if they were not physically hurt. If your partner brings false allegations of domestic abuse against you, the motivation may be to gain an advantage in a custody dispute. A family law lawyer should handle only family law cases, and an expert defense attorney will specialize in only criminal defense.

What is a “no contact” provision of a bond?

A bond requiring “no contact” directs the defendant to avoid direct or indirect contact with the complainant. These orders are one-way only, which means that the order prohibits the defendant from engaging in certain conduct. These provisions do not apply to the alleged victim. In many cases, the complainant will not want a “no contact” provision, but the court will order it regardless.

Can the no contact provision in my bond be removed?

Yes, the court does have the authority to dismiss a “no contact” provision, but the judge will likely be very reluctant to do so. Prosecutors frequently fight these requests even when the complainant is also in favor of having contact. Experienced defense lawyers know how to make the most persuasive arguments in favor of dropping these bond prohibitions.

If I am guilty, should I hire an attorney?

Following a plea of guilty, the leniency of the judge’s sentence is often proportionate with the quality of the defense lawyer. The court can impose fines, jail, counseling, community service, drug and alcohol testing, long-term no contact provisions, regular reporting, tether, house arrest, and much more. The best defense attorney will minimize the terms and conditions of probation, minimize fines and reduce the length of probation. A good lawyer may be the only hope for negotiating a plea bargain to avoid a conviction.

How long will a domestic violence conviction stay on my criminal record?

Any criminal conviction for a felony or misdemeanor stays on a person’s record for life. There may be a way to get a domestic violence conviction expunged (removed by court order) after five years following the conclusion of probation, if the defendant is otherwise eligible.

What if I am not a United States Citizen? Can a Domestic Violence conviction impact my immigration status?

Convictions of certain domestic violence offenses trigger deportation. It does not trigger mandatory detention during removal. Michigan Compiled Law (MCL) 769.4a provides for a plea without a conviction. Some experienced domestic violence attorneys are not aware that a plea and dismissal under MCL 769.4a is still a full conviction for immigration purposes. If you are lawfully present in the United States on a visa or with a green card, you must have a great defense lawyer with extensive experience handling domestic violence cases.

What are the Michigan counties that are toughest on Domestic Violence Cases?

Oakland County, Macomb County, Washtenaw County, Wayne County, and Livingston County are notorious for having overzealous prosecutors. The judges in the District Courts and Circuit Courts in these jurisdictions are known for imposing excessive and unfair sentences.

Can LEWIS & DICKSTEIN, P.L.L.C. represent me on a domestic violence assault charge?

LEWIS & DICKSTEIN, P.L.L.C. has a reputation as a top criminal defense law firm in the State of Michigan.  We will do everything possible to make representation affordable for you. If there is a way to help you, they will find it. Every free consultation is confidential and protected by the attorney-client privilege. Please call us at (248) 263-6800 or complete a Request for Assistance Form and we will promptly contact you.  If there is a way to help you, we will find it.

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