Third Offense Domestic Violence Can Be a Felony
If a person is charged with Domestic Violence and has two prior convictions, they can face felony charges. Prosecutors and judges are notoriously harsh on felony domestic violence cases.
Domestic Violence Third Offense Felony Charges
Under Michigan law, charges can be raised from a misdemeanor to a felony if a defendant has prior convictions. Charges that carry increased penalties based on prior convictions include retail fraud, OWI/DUI, and domestic violence. Because individuals considered repeat offenders face the realistic potential of lengthy incarceration, the defense must be formidable, persuasive, and zealous.
Elements and Penalty for Domestic Violence Third Offense Felony
Every crime is made up of parts, called elements. The elements of Domestic Violence Felony are:
(1) an assault or assault and battery and
(2) the victim is their spouse or former spouse, an individual with whom they have or have had a dating relationship, an individual with whom they have had a child in common, or a resident or former resident of their household.
A person who commits domestic violence and has two or more prior convictions is guilty of a felony punishable by imprisonment for not more than five (5) years, years of probation, and a fine of not more than $5,000.00.
A person who has prior felony convictions might be charged as a “habitual offender.” A habitual offender with three prior felony convictions could be sentenced to life in prison.
“No Evidence” of Domestic Violence
A common misconception is that domestic violence charges require an injury; however, under Michigan law, a person can be convicted of domestic violence even if there was no contact. For example, a man swings his fist, intending to hit or scare his girlfriend, and he misses. Is there domestic violence? The answer is “yes,” because placing someone in fear of being hit is an assault.
So, if there is no physical evidence or witnesses, can a person still be convicted? Michigan law says that the prosecutor does not have to present any evidence other than the victim’s testimony. If a jury is convinced beyond a reasonable doubt based on the complainant’s testimony alone, that is sufficient for a conviction. The complainant’s testimony is “evidence.”
Defending a “he-said-she-said” Case
Defending against a domestic violence charge when the only evidence is the complainant’s testimony is much more common than you might think. A defense lawyer must be experienced and adept with cross-examination, know how to focus on the slightest weaknesses or inconsistencies in a complainant’s testimony, utilize any legitimate method of discrediting the complainant, and must be capable of thinking “outside the box” to find evidence that support’s the defense. With an aggressive, skilled, and thorough defense, it is possible to get felony domestic violence charges dismissed or achieve an acquittal at trial.
What if the complainant is unwilling or unavailable to testify?
For various reasons, a complainant or victim might be unavailable or unwilling to testify. An absent complainant can present a challenge for either the prosecutor or the defense, depending on the circumstances. In a situation where there are one or more witnesses to an assault, the prosecutor could proceed to trial even if the complainant was legitimately unavailable. An unavailable victim would be a challenge for the defense because that person would not be present for cross-examination.
Conversely, a prosecutor would have difficulty succeeding at trial if the complainant was unavailable to testify and there was insufficient corroborating evidence. A complainant would be unavailable if they invoked their Fifth Amendment right to remain silent because their testimony might be self-incriminating. Any time a complainant or victim faces the possibility of self-incrimination, they should promptly hire an independent attorney.
Although a complainant might prefer not to testify for one reason or another, they can be compelled to testify through a court subpoena. A subpoenaed witness who fails to appear for a misdemeanor or felony domestic violence trial or unjustifiably refuses to testify can be held in contempt and incarcerated.
Does the prosecutor represent the “victim”?
The prosecutor represents the government, not the victim. A state prosecutor represents Michigan, and a city or township attorney represents a local jurisdiction. Although they often act as if they are the victim’s lawyer, a prosecutor does not have an attorney/client relationship with that person. As a result, the prosecutor does not have to listen to the victim, consider their opinions, or honor their request for dismissal or objection to reduced charges. A victim has the right to hire a private attorney to advocate for them in court and with the prosecutor’s office.
What happens if the victim requests dismissal of felony domestic violence charges?
A victim does not have the right to dismiss charges. Because the charges are “brought” by the government, only the government can dismiss the case. A judge also does not have the power to dismiss or reduce a charge at the complainant’s request. The prosecutor has exclusive charging authority. A prosecutor might consider or entirely disregard a victim’s request for dismissed or reduced charges.
Domestic Violence Felony Defense Attorneys
The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience and an unparalleled track record of success defending clients charged with felony domestic violence. Each of the team’s attorneys has the skill, passion, and dedication to aggressively and effectively defend even the most severe charges. We’ve practiced and won in courts throughout Michigan and know how to persuasively seek dismissal of charges or fight convincingly for an acquittal. In cases where a defendant wishes to take responsibility for an offense, our lawyers are proficient at helping the client take steps to mitigate an impending sentence and persuading a judge to focus on rehabilitation, as opposed to punishment.
If you decide to work with LEWIS & DICKSTEIN, P.L.L.C., you will not be judged, and you can rest assured that we will treat you with compassion and empathy. Our entire focus is on helping the client obtain the best possible result, and we will stop at nothing to make that happen.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.