California’s domestic violence crimes fall under three categories: Misdemeanors, felonies and what are known as “wobblers.” Misdemeanors are crimes that are punishable by fines and/or up to one year in a county jail. Felonies are crimes that are punishable by fines and/or incarceration in a state prison. Wobblers are crimes that, depending on the circumstances that surrounded the alleged incident, may be prosecuted as either a misdemeanor or as a felony. The expungement of a domestic abuse conviction is possible but will depend on how the crime was charged.

Expungement refers to the cleansing of one’s criminal record. It is a process by which one’s court file is sealed and it allows an individual to honestly claim, under most circumstances, that he or she has never been convicted of a crime. Expungement is most helpful to individuals who are seeking employment, housing, higher education and simply peace of mind.

Persons convicted of Domestic Violence offenses, whether they were sentenced as misdemeanors or as felonies without prison time, are entitled to an expungement. If probation was granted in a misdemeanor conviction or in a felony conviction where a prison sentence was not imposed, the individual may be entitled to withdraw his or her plea of “Guilty” or “No Contest” and enter a plea of “Not Guilty” or may have a “Guilty” verdict set aside if he or she was convicted following a trial. Either way, the court must dismiss the charge if the defendant’s probation was terminated early or if he or she fulfilled all of the probation terms, and is not serving a sentence for any other offense, on probation for any other offense or charged with any other offense. If, however, while on probation, the offender incurred a probation violation, the court may decide whether or not to dismiss the charge. For strategic reasons, a skilled criminal defense lawyer will first ask the court to reduce a felony conviction that is a “wobbler” to a misdemeanor before asking the court to dismiss the charge.

It should be noted that even if a conviction is expunged, there are certain times that it will still be relevant and/or must be disclosed. For example, an individual must still report his or her conviction if he or she is applying for public office, for licensure by any state or local agency or for contracting with the California State Lottery. In addition, expungement does not lift the requirement that a registered sex offender must remain registered for life or lift any firearm restrictions that were imposed upon conviction. Finally, if a person subsequently suffers another DV conviction, the prior conviction will still be used to increase the sentence in the pending case if the defendant is ultimately convicted.

An individual with a felony intimate partner violence conviction that resulted in a state prison sentence will seek relief through a Certificate of Rehabilitation and Pardon. This certificate is applicable to an individual who has lived in California for at least three years and who leads an honest life, free from any additional criminal convictions for a specified period of time, depending on the intimate partner abuse crime that he or she committed. If granted, the certificate is forwarded by the court to the Governor and acts as an application for a pardon. A Governor’s Pardon will only be issued when an individual demonstrates that he or she is reformed and has become a useful, productive member of society.

Only a qualified criminal attorney should petition for expungement or for a Certificate of Rehabilitation and Pardon. The experienced attorneys at The Kavinoky Law Firm specialize in California domestic violence law and know all of the evidentiary issues, both pre-trial and post-conviction, that are applicable to this technical area of the law. For unparalleled assistance in cleansing one’s domestic abuse conviction, contact The Kavinoky Law Firm today for a free consultation.

Infliction of Injury

Willful infliction of injury, also known as “spousal abuse,” is a California domestic violence offense that can be applied to any type of intimate partners. This can include couples who are married or divorced, living together or formerly living together, or have children in common. The laws apply to both heterosexual couples and same-sex partnerships. If an individual willfully inflicts any injury, no matter how minor, upon the body of an intimate partner, he or she can be charged with a felony, punishable by up to four years in prison and a fine of up to $6,000. This charge can be brought against a defendant even if he or she barely touched the intimate partner.

Every crime has specific “elements” (facts) that the prosecutor must prove beyond a reasonable doubt in order to obtain a conviction against the defendant. Each element of the charge must be independently proved or else the jury must vote “Not Guilty.” In order to find the accused guilty of infliction of injury, the prosecutor must prove three elements.

The first element is that the defendant inflicted bodily injury upon his or her intimate partner. This means that the “victim’s” injury resulted from direct force applied by the accused. It doesn’t matter how slight the force was, only that some amount of force was used.

The second element that must be proved is that the infliction of injury was willful. “Willful” means that the individual had the willingness to inflict force. Willingness has nothing to do with the amount of force used or the physical result of the force; it only deals with the willingness to simply carry out the act. In a situation where the accused willfully used force in self-defense or in the defense of others, he or she is not guilty of this crime. It is the prosecutor’s burden to prove that the willful force was unlawful and not for one of the reasons stated above.

The final element of this charge is that the injury resulted in a “traumatic condition.” A traumatic condition means that the accused’s force caused an external or internal injury to his or her partner. The injury could be minor or serious. Basically, this means that any injury, no matter how slight, that wasn’t there before the defendant applied the force to his or her partner’s body will qualify.

Remember, in order to convict a criminal defendant on any charge, the prosecutor must prove every element of the crime beyond a reasonable doubt. In addition, a criminal conviction requires that all twelve members of the jury must be convinced that the charges are true. That means that if just one juror isn’t completely convinced of the defendant’s guilt, the jury cannot return a conviction. An experienced criminal defense lawyer will aggressively defend the accused partner’s rights and sow the seeds of reasonable doubt in the minds of jurors.

An infliction of injury conviction is no joke. An accusation can be devastating emotionally and financially, and a conviction carries severe penalties. To best avoid these consequences, it is imperative that an accused hires a skilled defense attorney who knows the most effective ways to refute this crime’s elements. In order to secure the best representation from a firm who has successfully defended countless domestic abuse cases, contact the attorneys at The Kavinoky Law Firm for a free consultation.

Domestic Violence Protective Orders

In California, domestic violence laws apply to disputes between intimate partners. These partners may be married or divorced, cohabiting, have children in common, dating or formerly dating. The laws apply to both heterosexual couples and same-sex partnerships.

Under domestic abuse law, temporary and permanent restraining orders specifically prohibit an individual from engaging in specific acts of abuse, returning to his or her home and/or acting in a manner specifically forbidden in the order. The orders protect all victims of intimate partner abuse. California offers four types of protective orders that apply to domestic abuse situations:

• Emergency protective orders
• Temporary restraining orders
• Criminal protective orders
• Civil harassment restraining orders

An emergency protective order is issued by the court when, based on a law enforcement officer’s assertions, it finds that reasonable grounds exist to believe that an individual is in immediate and present danger of intimate partner abuse, that a child is in immediate and present danger of abuse or abduction by a family member, or that an elder or dependent adult is in immediate and present danger of being abused by a family member and that the order is necessary to prevent the occurrence. An emergency protective order is valid between five and seven days.

A temporary restraining order (commonly called a TRO) is an order that is issued by a judge and instructs the restrained party to stop the abuse or face serious legal consequences. Unlike an emergency protective order that is issued based on an officer’s belief that it is necessary, a victim may personally apply for a TRO if he or she believes that protection is immediately necessary. The individual may apply for the TRO “ex-parte,” which means that the partner doesn’t need to be present. The temporary order will last up to 15 days, or until the protected party is assigned a court hearing, which will usually be set about three weeks out.

Longer protective orders are available after the victim has a court hearing and can last up to five years. These orders are designed to keep an abuser from threatening, harassing, or abusing his or her partner. Upon its expiration, the court can extend the order another five years, or even permanently, if it believes that the protected party has a reasonable fear that the partner will continue to threaten, harass, or abuse again beyond the original timeframe. It should be noted that new incidences of abuse are not required in order to get the order extended.

Civil protective orders are similar to the above three criminal orders, except that they are issued by a civil judge, not a criminal judge. The orders may include the same restrictions as the other orders but usually expire on a specified date. If the order has not been dated, it expires three years after it was issued. It is a good idea for a victim to ask for both types of orders (criminal and civil) because the criminal order may expire under certain circumstances while the civil order does not terminate until its specified date.

A protective order issued against an accused severely impacts the relationship with his or her spouse, children, family and friends. If found in violation of that order, the defendant will additionally suffer jail time and/or fines. A knowledgeable criminal defense lawyer will investigate the criminal charge and help explain the accused’s side of the story. The experienced attorney will expose false charges, highlight discrepancies between witness accounts and address any extenuating circumstances that may have led to the violation.

If a victim is seeking a protective order or an accused needs to defend against a protective order, the experienced attorneys at The Kavinoky Law Firm are invaluable. They have successfully helped countless individuals navigate through the criminal justice system with ease, treating each client with compassion and respect. Click here for a free consultation.

Professional Licensing Restrictions and Sexual Battery

Sexual battery is a California domestic violence offense that can be charged in an abuse case involving intimate partners. The term “intimate partners” applies to nearly every type of relationship – it includes straight and gay couples and those who are married, divorced, living together, have children in common, or who are dating or formerly dating.

Under California law, a licensing board may suspend or revoke a license if the license holder has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. It does not matter whether the conviction was the result of a jury trial, a guilty plea, or a no contest plea.

This suspension or revocation may take place once the defendant is placed on probation, once the conviction has been affirmed on appeal, or once the timeframe within which to file an appeal has ended. In addition, there are several professional licensing boards, including physician and surgeon boards, which maintain their own standards and practices related to disciplining their license holders that may be even more restrictive.

In order to defend against a professional license restriction, it helps to have an attorney to argue against its application. An attorney has the knowledge and available resources to articulate why a sexual battery conviction (under most circumstances) is not substantially related to the “qualifications, functions, or duties” of the defendant’s job. In addition, the skilled attorney may recognize when the defendant’s employer is unlawfully imposing such a restriction in an effort to inappropriately fire their otherwise competent employee.

Sexual battery is an offense known as a “wobbler” under California law, which means that it can be charged as either a misdemeanor or a felony depending on the facts of the individual case. Sexual battery charges can be filed against anyone who touches another person for the purpose of sexual arousal, sexual gratification or sexual abuse.

California domestic abuse law defines “touching” as any type of physical contact – however minor – whether it occurs directly or through the clothing of either individual. An individual can charged with sexual battery even when involved in an ongoing, intimate relationship.

When charged as a misdemeanor with no aggravating circumstances, sexual battery is punishable by a maximum of six months in jail and a $2,000 fine. However, if the touching takes place while the accuser is unlawfully restrained, institutionalized, seriously disabled, medically incapacitated or unconscious, the jail sentence may increase to a maximum of one year or the crime may rise to a felony, punishable by a maximum of four years in state prison and a $10,000 fine.

When an individual is convicted for this domestic abuse crime, there are several mandatory penalties that will be imposed and other penalties that may be imposed. One of the possible consequences that a defendant convicted of sexual battery may face is a restriction on his or her professional license.

If either facing a sexual battery charge or if recently convicted of the charge, hiring an experienced, knowledgeable criminal defense lawyer to help guard against a conviction and/or a possible professional license restriction is by far the smartest defense strategy. The skilled attorneys at the Kavinoky Law Firm have successfully defended countless individuals who have been charged with intimate partner abuse and have helped them keep their families, careers, freedom and dignity intact.

Defenses available in a California domestic violence stalking case

In California, crimes that are committed against an intimate partner will be prosecuted as domestic violence crimes. Intimate partners are married, divorced, living together, dating, formerly dating or have children together. It therefore follows that if an individual harasses or pursues and threatens his or her partner, with the intent of placing that partner in fear, he or she will be charged with stalking as a domestic abuse crime. Without any aggravating factors or prior convictions, a defendant faces up to one year in jail or prison for this crime – with them, he or she faces up to six years in prison.

Because the consequences of stalking an intimate partner are so severe, it is critical that the accused hires a criminal defense lawyer who specializes in intimate partner abuse law. The experienced attorneys at the Kavinoky Law Firm have defended many D.V. related stalking cases and have mastered the defenses that are used in conjunction with this crime. They can effectively fight for their clients, based on their thorough understanding of domestic violence law.

The elements that are required to prove this crime are the best place to look for defenses, because if the prosecutor can’t prove each element independently, the defendant must be acquitted. To be convicted of stalking, the prosecutor must prove that the defendant “made a credible threat, intending to place his or her intimate partner in fear”. If the defense attorney can show that his or her client never intended to place his or her partner in fear, either because he or she was only joking or because he or she never actually revealed a threat, but only wrote about his or her own private thoughts in a place that wasn’t directed at the partner, that may serve as a defense. In addition, the threat must be made with the “apparent ability” to see it through. If the threat were so ridiculous or so grandiose that its execution would not even be likely, that would also serve as a defense. Along these same lines, if the intimate partner overreacted and it can be proven that a reasonable person in the same situation would not have feared for his or her safety, the defendant would be entitled to an acquittal.

Defenses may often be presented to the prosecutor or judge even before a case goes to trial. Insufficient evidence is one defense that can be raised in an intimate partner abuse stalking case if, for example, the police report didn’t clearly define the crime. Under this scenario, a skilled defense attorney may argue that the charge should be reduced or even dismissed. Similarly, if there were no witnesses to the alleged incidents and/or no proof of the charges, absent the partner’s accusation, the defendant’s attorney may be able to have the case dismissed at the preliminary hearing, thereby avoiding a trial. Mistaken identity could also be raised as a defense if the perceived threat was received in any manner other than face-to-face.

Defenses raised during a trial can include any of the previously stated pre-trial defenses and may also include false accusations. DV often characterizes volatile, highly charged relationships. Oftentimes, either partner does whatever it takes to gain control over the other, as domestic violence statistics reveal that, in many partnerships, both partners are abused and both partners are abusive. Such being the case, a partner may initiate a false stalking charge out of anger, revenge, jealousy or another motive simply to punish the partner. An experienced attorney will bring this type of defense to light by effectively cross-examining any and all witnesses.

The outstanding attorneys at the Kavinoky Law Firm receive ongoing training in intimate partner violence cases and on all of the defenses that are available in these types of special cases. The creative Kavinoky lawyers will customize an intimate partner stalking defense based on each client’s charge and will educate the client about the many additional defenses that may apply to that case. Click here for a free consultation.

 

Domestic violence, in California applies to all crimes that are committed against one’s intimate partner. Intimate partners are both heterosexual and homosexual partners who are married, divorced, dating, formerly dating, living together or have children together. A defendant who is in custody and charged with most DV crimes will have more restrictive release conditions than a person who was charged with something other than an intimate partner related crime. In addition, when charged with a crime of domestic abuse, the defendant faces certain mandatory terms of probation that are imposed on all persons who are convicted of intimate partner abuse charges. These terms include the booking process, fines, classes and/or D.V. counseling, being restrained by a criminal protective order and a host of other penalties, depending on the specific crime. Clearly, it helps to hire a qualified criminal defense lawyer immediately upon an intimate partner’s criminal accusation who can help a defendant navigate the criminal courts system with ease, understanding and, above all, success.

The unparalleled attorneys at The Kavinoky Law Firm specialize in intimate partner abuse crimes and are located throughout the state of California to conveniently serve anyone in need. They receive ongoing training and education in this specific and technical area of the law and are well-equipped to handle any domestic violence case that comes their way.

Domestic abuse cases, although based on different crimes, have certain issues that are common in almost all cases. DV-related crimes have specific evidentiary issues that are only applicable to these types of cases. For example, in most criminal cases, the prosecuting attorney is not permitted to introduce evidence of the defendant’s prior criminal conduct. In an intimate partner abuse case, however, he or she will readily do so, which may lead a jury to conclude that if a defendant acted in a certain manner in the past, he or she was likely to do so again. Another example is with respect to the admissibility of hearsay, which is a statement that was made out of court that is later offered in court for its truth. Hearsay, under most circumstances, is inadmissible as evidence in a criminal trial. However, when a defendant committed a crime against his or her intimate partner, hearsay will be admitted and can be devastating to the defense.

Another reason to hire a defense lawyer who has experience with California’s domestic violence laws is because there are witness issues that frequently arise in these types of trials. Due to the very nature of intimate partner relationships, many D.V. crimes are based on highly charged, emotional incidents that, more often than not, occur in private outside the presence of witnesses. Such being the case, it is crucial to have an attorney who excels in witness examination and cross-examination to make sure that discrepancies in testimony and any false allegations are revealed. On that note, false accusations are, unfortunately, common in intimate partner abuse crimes because, as domestic violence statistics reveal, many times both partners are abused and abusive and will do anything they can to exert power over the other, even if it means filing a false police report out of anger, jealousy or revenge. Keeping the jury in mind, a skilled domestic violence attorney knows how to gently examine a witness when appropriate and when it is perfectly acceptable to take the gloves off and attack.

An experienced California domestic violence attorney will also be familiar with recanting victims and Battered Person’s Syndrome (more commonly called Battered Women’s Syndrome) and the difficult challenges they pose for the defense. A defense attorney without this special knowledge will be at a severe disadvantage if faced with either during a trial.

The consequences facing a person accused of domestic violence are severe and possibly life-altering. One’s reputation, family and freedom are too important to trust to an inexperienced attorney. To contact the attorneys at The Kavinoky Law Firm who specialize in California domestic violence law, click here for a free consultation.

The Incident

California’s domestic violence laws include a variety of offenses that apply to all intimate partners. Intimate partners include both heterosexual and same-sex couples who are married, divorced, cohabitating, dating and who were dating. An intimate partner abuse charge usually begins as a harmless situation that turns out of control and results in an emotional, highly charged incident. The accused is often left feeling very frustrated, either as a result of also being abused or because the accuser is portrayed as blameless. After the arrest, there are several steps that a defendant should take to ensure that a judge and/or jury hear his or her side of the story.

Hiring an attorney

A California domestic violence conviction is extremely serious. To help avoid the many severe consequences that such a charge carries, it is imperative to contact a skilled defense attorney as soon after the arrest as possible to allow the attorney to analyze evidence and question witnesses while the incident is still fresh. An experienced attorney from The Kavinoky Law Firm examines each case and works with the individual to devise the best possible defense.

The first step that the lawyer will take is to try to get the arrested individual out of jail as quickly as possible. A skilled attorney will help guide the accused through the release process whether it involves posting bail, reducing bail or effectively demonstrating to the judge why the defendant should be released without having to post any bail at all. In addition to the obvious benefit of regaining one’s freedom, there are several other significant advantages to defending a case while out of custody, including slowing down the criminal process. Oftentimes, memories fade, witnesses recant and the strength of the prosecution’s evidence lessen over time. An aggressive attorney will note these discrepancies and pit them against the fresh evidence and witness accounts that he or she previously gathered to help highlight the inconsistencies in the case against the defendant.

Keep a diary

As soon as the incident is reported, it is imperative that the accused begins keeping a detailed diary of all the events that led to the incident, the details about the incident itself and about everything that happened after the incident up until the police arrived. Note taking is critical because most domestic abuse charges involve “he said, she said” allegations and it is often the one who clearly remembers and can articulate the events surrounding the incident who is believed. Once written, the defendant should then turn the diary over to his or her lawyer to ensure its safe-keeping.

The investigation

An experienced California defense lawyer may want to work with a private investigator to help gather all the pertinent facts. Private investigators are often former law enforcement officers who know the criminal system inside and out and know how to effectively question witnesses and uncover facts that are essential to the defense case. The investigator submits his or her findings in a report directly to the attorney, helping the attorney to more fully develop the defense strategy.

Gathering evidence

The attorney and investigator will diligently search for and successfully obtain all records, reports and photographs that are related to the accused’s case. This includes any medical reports for the defendant or the accuser, any pictures that were taken by either party or by the police of any physical injury or property damage and any other evidence deemed relevant by the attorney as it relates to the specific charges. Once all the evidence is collected, the skilled defense attorney can develop the most comprehensive and effective strategy to ensure that the defendant’s side of the story is not only heard but also believed.

When arrested for a California domestic violence charge, the defendant faces life-altering consequences, as his or her family, career and freedom are all jeopardized. Contact a highly reputable and qualified defense attorney from The Kavinoky Law Firm as soon as possible to secure the best defense available. Click here for a free consultation.

Domestic battery, which is sometimes called “spousal abuse” or “spousal battery,” is a domestic violence offense that applies to intimate partners in California. Intimate partners can be of the opposite gender or same sex, and may be married, divorced, living together, have children in common, or be dating or were formerly dating.

Under California law, domestic battery is an offense known as a “wobbler,” meaning that it can be charged as either a misdemeanor or a felony depending on the severity of the individual case. Misdemeanor battery carries a maximum penalty of a one-year jail sentence and a $2,000 fine. However, if serious bodily injury, such as broken bones, loss of consciousness or a concussion occurs, the battery will likely be charged as a felony which carries a maximum of four years in state prison.

Although the penalties just described list the maximum amount of prison time and the highest fine that a first-time offender faces, it is not a complete list of the penalties that ultimately face the accused. Furthermore, a prior battery conviction will likely invoke an even stiffer sentence.

If the defendant is placed on probation (which is usually the case), it will remain in effect for at least three years. There are certain mandatory terms of probation with respect to any California intimate partner abuse crime and include the booking process if the defendant wasn’t booked upon arrest, issuance of a Criminal Protective Order against the defendant, the offender’s participation in a batterer’s class, and an additional fine payable to specific domestic violence funds.

An individual convicted of domestic battery who also has prior battery convictions will serve a mandatory jail sentence of at least 48 hours in addition to any imprisonment ordered in the pending case. This is another reason why it is so important for an accused (especially an accused who has a prior battery conviction) to retain legal counsel who has experience dealing with California domestic abuse cases. Without a competent attorney, a defendant will definitely serve the mandatory time in jail upon a second conviction. However, a skilled defense attorney will aggressively defend his or her client by arguing that imprisoning the defendant does not serve the best interests of justice. He or she further knows what facts and circumstances will help convince the judge accordingly.

A conviction for domestic battery may also bring professional licensing restrictions. Under California law, a licensing board may suspend or revoke a professional license if the license-holder has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. This means that a conviction could potentially end an individual’s career.

Finally, an individual may not only be charged criminally for domestic battery, but may be sued in civil court for the abuse as well. In a civil court, a person who is found liable for committing this wrong is subject to additional heavy fines and a Civil Protective Order but cannot be sentenced to jail or prison.

With such devastating consequences, it is imperative that an individual who has been arrested on a battery charge hires a qualified criminal defense attorney who is familiar with all of the defenses that apply to this crime. The attorneys from The Kavinoky Law Firm have successfully defended countless individuals who were facing intimate partner abuse charges. The lawyers at The Kavinoky Law Firm receive ongoing education and training in this highly complex and technical area of the law, which is directly responsible for their outstanding results. When things are at their worst, the attorneys at The Kavinoky Law Firm are at their best! Click here for a free consultation and for the best representation.

Firearm restrictions in domestic violence cases

In California, domestic violence laws apply to all intimate partners, including both heterosexual and homosexual persons who are married or divorced, living together, have children together, and who are or were dating. When the police are dispatched to a domestic abuse call, they are usually under obligation to temporarily remove any firearms or other deadly weapons from the home or from the scene.

When an offender is arrested for committing battery, sexual battery, intentional infliction of injury, criminal threats, intimidation, the violation of a protective order, or stalking against his or her intimate partner, the obligation to remove any and all deadly weapons applies. In addition, if the accuser obtains a restraining order against the accused, the accused cannot own, possess, purchase, receive or attempt to purchase or receive a firearm while the order is in effect. In fact, possession of a firearm under these circumstances is a crime in and of itself, punishable as a federal offense.

If the police do not take the firearms from the accused’s home, he or she must voluntarily surrender all firearms within 24 hours of being served with a restraining order. “Surrendering firearms” means either selling them to a licensed gun dealer or leaving them with local law enforcement officials (who will likely charge storage fees). In addition, the accused will be required to file a receipt with the court showing that his or her firearms were surrendered to a local law enforcement agency or sold to a licensed gun dealer within 72 hours after receiving the order. Ignoring this mandate or disposing of the firearms illegally will only invite additional criminal charges.

If owning a firearm is necessary as part of the defendant’s job and his or her employer is unable to temporarily assign the individual to another position, there is a possibility (although generally unlikely) that the order may be modified to allow the defendant to carry his or her firearm at work. Without that modification, an accused may lose his or her job. Contacting an experienced attorney as soon as possible after an arrest (and not trying to handle everything on his or her own) allows a defendant a much better chance of favorably resolving these types of issues.

In addition to denying one’s Constitutional right to bear arms, the confiscation of one’s firearms draws the implication that, in an intimate partner abuse situation, the accused is actually considered guilty until proven innocent – the complete opposite of the very foundation on which our criminal justice system was built! This is just one of the many reasons why it is imperative that a defendant hire a qualified criminal defense lawyer immediately after being arrested on a domestic violence charge.

After the defendant’s firearms have been seized or surrendered, it may be possible to get them back if he or she is subsequently found innocent of the charges or if any protective orders have been removed. The defendant’s attorney can help file an application with the Department of Justice to retrieve the firearms as quickly as possible. It should be noted that knowingly omitting required information or furnishing false information in connection with the application is a separate crime, punishable as a misdemeanor.

There is no reason to go at it alone! The experienced and knowledgeable attorneys at The Kavinoky Law Firm have helped countless individuals successfully defend California domestic violence charges as well as the additional restrictions that usually accompany those charges. Click here for a free consultation and for the best representation.

Recanting Victims and the Violation of a Protective Order

Recanting victims aren’t uncommon in cases of violation of a protective order and other California domestic violence offenses that apply to intimate partners. The term “intimate partners” applies to every type of couple – they may be straight or gay and can be married, divorced, living together, have children in common, or be dating currently or have dated in the past.

Protective orders are issued by courts in California domestic abuse cases to prohibit an offender from engaging in specific acts of abuse, re-entering his or her own home or even behaving in a specified way. A violation of protective order charge is a misdemeanor punishable by a maximum of one year in jail and a $1,000 fine. If the violation results in physical injury to the alleged victim, the offender will serve mandatory jail time of at least 30 days and the fine may rise to $2,000. California courts may even punish an offender for violating an order in California that was issued in another state.

A violation of a protective order charge can be filed against an individual even if the prosecution has no physical evidence, which means it would be easy for an alleged “victim” (the protected party) to charge his or her partner with this crime with little or no evidence. Many times an individual will do this out of revenge, anger, or another motive and may later decide to tell the truth. However, once the police are involved, it is too late to take the allegation back, as only the prosecutor and/or judge can decide to drop the charges. When these are the facts, it is imperative for the accused to hire a skilled criminal defense lawyer from The Kavinoky Law Firm.

If the protected party chooses of his or her own free will that calling the police was a mistake for any reason, it is best for both partners to speak with an attorney to devise a strategy. Many times the accuser thinks that “recanting” (which means to take back or deny) the original story or not cooperating with the police or prosecution will help the defendant. Unfortunately, that is incorrect. In fact, in an intimate partner abuse case, the prosecution expects an alleged victim to recant and knows how to proceed under these circumstances. A genuine recanting victim can be extremely harmful to the defendant if not first guided by an attorney.

When the protected party recants, two major issues arise. The first is that evidence that may otherwise have been inadmissible during the trial will be admissible, and the second issue is that a “recanting victim” gives the prosecution a great argument against the defendant. Beginning with the first issue, when the protected party recants his or her story, the prosecution plays for the jury a recording of the call that he or she placed to the police. The prosecutor will also admit into evidence any statements that the protected party made to the police during the initial investigation. Because these statements were made in the heat of the moment and possibly out of revenge or another motive, these statements can be devastating to the defense. Looking at the second issue, when the protected party recants, the prosecutor usually brings in an expert witness who testifies that the individual is recanting because he or she has either been threatened by the accused into doing so or that he or she is afraid of what further abuse might take place if he or she doesn’t recant. The expert will further explain that recanting is part of the domestic abuse “cycle of abuse” and that the protected party likely suffers from “battered person’s syndrome”.

When an intimate partner chooses to recant his or her allegation, a highly qualified defense attorney from The Kavinoky Law Firm can help both parties navigate through the system with knowledge and compassion. A skilled defense lawyer can outline an effective defense strategy during a free consultation.