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. Domestic violence charges can be based on actual assaults and, sometimes, these charges can be based on false or exaggerated allegations.
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, 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/or 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 made 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 case is ultimately dismissed at the conclusion of probation.
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 judgement 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. The way a defense lawyer maximizes the probability of a dismissal is by putting up an aggressive, credible defense, 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 girl friend 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 try to “drop charges”. It is generally assumed that the victim may be pressured to change his or her story and 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. In fact, 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/or 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 charges will be dismissed. 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 is either not requested to appear and it is not necessary that that person appear. 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 for these programs and the time commitment can be overwhelming. A highly experienced domestic violence defense lawyer will know what strategies to employ at sentencing to reduce the financial and time burdens that may result from a domestic abuse conviction.
What do I do if domestic violence charges are filed against me?
If you are arrested for domestic violence, contact a great criminal defense lawyer immediately. It is best to involve a criminal defense attorney as soon as possible in your case. If brought in early enough, he or she may be able to arrange a low or personal bond for you, get the charges dropped altogether or take measures that are effective in reducing a sentence that may be imposed. 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 my wife has called the police but I haven’t been charged, what should I do?
Retain counsel immediately. Lawyers with vast experience handling domestic charges on a pre-charge basis often are able to prevent criminal charges from being filed. 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. All juries are instructed that they can convict on the “victim’s” word alone if they are 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 actually go to trial. The overwhelming percentage of criminal cases result in a plea, plea bargain, dismissal or other form of resolution and rarely go to jury trial or bench trial. Some 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 case may not go to trial. Conversely, if the fee is low, 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?
If you are convicted on a domestic abuse charge, you may lose custody of your children and have severely restricted visitation rights. This does not happen in all cases and your divorce lawyer should consult with your criminal attorney to discuss the issues in common with both cases. If the children have actually 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.
What is a “no contact” provision of a bond?
A “no contact” provision in a bond is an order that the defendant not have any direct or indirect contact with the complainant. The “no contact” provision usually extends to the complainant’s home and business. These orders are one-way only meaning that the order prohibits the defendant from engaging in certain conduct while having no effect on 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?
The court does have authority to dismiss a “no contact” provision but 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. It is most likely that a “no contact” condition of bond will be dropped in cases where the complainant wants to have contact, is not afraid of the defendant and testifies that he or she will contact the court or police if needed.
Is domestic violence only applicable to married people?
No. Domestic violence can occur between married people, divorced people, people who live together, people who used to live together, straight couples, gay couples, people from different ethnic and religious backgrounds, couples with children and couples without children. A domestic relationship can also include a family relationship, such as parent/child or siblings.
If I know I am going to plead guilty, should I hire an attorney?
If a case is not going to trial and a plea is going to be entered, the leniency of the sentence that is imposed 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 do everything possible to minimize the terms and conditions of probation, minimize fines and reduce the length of probation. In many cases a good lawyer may be the only hope to negotiate a plea bargain where the case does not end up on the client’s public record. If you do not hire your own lawyer, you will be at the mercy of the court and you will likely find that there is virtually no mercy for a domestic violence defendant.
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 5 years following the conclusion of probation, if the defendant is otherwise eligible. LEWIS & DICKSTEIN, P.L.L.C. offers a free consultation on any case to determine eligibility for an expungement motion (AKA Motion to Set Aside Conviction).
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. This conviction-based ground of deportation is less serious than most others, since it does not trigger mandatory detention during removal proceedings and since it does not stop the clock running towards seven years continuous residence for eligibility for cancellation of removal for lawful permanent residents. Even some experienced domestic violence attorneys are not aware that a plea and dismissal of a charge pursuant to MCL 769.4a is still a full conviction for immigration purposes. If you are lawfully present in the United States on any type of visa, it is imperative that you have an 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 over zealous 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. The attorneys with LEWIS & DICKSTEIN, P.L.L.C. 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.