Sentencing Alternatives

Drug cases, more than any other type of cases, recognize that treatment is far more appropriate than jail or prison in helping people deal with a drug problem. But if you have been arrested for a drug-related offense, there are different treatment options, each with its own pros and cons. Alternatives include Diversion, Drug Court, and Proposition 36.

Each of these choices has different requirements for their successful completion. The accused may be eligible for one or more of these alternatives. A knowledgeable Southern California Criminal Defense Lawyer who cares about your personal situation will be able to help you make the best decision about which avenue to take. Criminal defense lawyers who emphasize drug possession cases and drug sales cases should be aware that alternative sentencing programs are available to those individuals charged with drug-related cases. Diversion, drug court, and Proposition 36 are the three most popular alternative sentencing programs in California. However, there are negatives associated with each, and a criminal defense lawyer may be able to avoid all of these programs by the aggressive defense of the underlying case.

It is a fundamental concept in criminal law that there are two phases to a conviction: the guilty plea (or verdict), and the sentence which is imposed by the judge. In criminal cases, nothing is final until the time of sentencing. It is the sentence being imposed which creates the criminal record, not the guilty plea or even the finding of guilt by a jury. Diversion, for example, involves a person entering a guilty plea, but not being sentenced by the judge. Instead, the case is continued for a period of time, during which the accused participates in various educational programs. If these programs are successfully completed, the case is dismissed and no conviction is ever entered in the record. However, there are dangers associated with this course of action as well. During the course of the educational programs random drug tests are given. If a diversion participant tests positive for drugs while the case is pending, diversion may be terminated and the case returned to court. In that scenario, the judge already has obtained the guilty plea, and the only thing left is for the person to be sentenced.

Typically, these types of drug cases usually involve lengthy jail terms. This is why it is vital that a criminal defense lawyer use every means that are legally appropriate to attack the underlying case. This may be through a Motion to Suppress Evidence, or through a negotiated plea to a non-drug-related offense.

While all of the sentencing alternative described here have tremendous value, it is critically important that a criminal defense lawyer has the opportunity to carefully scrutinize your criminal case to determine which, if any, of these sentencing alternatives are appropriate in a given situation.

The Kavinoky Law Firm is 100% dedicated to the defense of criminal cases, and would be happy to provide a consultation to you at no cost or obligation.

There are two common situations where the custody of one’s child will come into play with respect to domestic violence in California. The first is if one is convicted of domestic violence (either against his or her intimate partner or against his or her child) and the second is if a child’s parents are divorcing or separating and one parent has an alleged history of intimate partner abuse. Under either scenario, it is imperative that an individual who would like custody of his or her child(ren) hires a qualified criminal defense lawyer and a family lawyer who will help favorably resolve child custody issues.

In California, domestic violence laws apply to all crimes that are committed against a spouse, former spouse, a child, the person with whom one lives or lived, the person with whom one has children, or a significant other or former significant other. When convicted of this type of crime, significant jail and/or prison time may await. If an individual who has a child is sentenced to imprisonment, the custody of that child will become a major issue.

When a court rules on child custody issues, it asks only one question – what is in the best interests of the child? Preference is usually given to both parents, unless one or both of the parents have demonstrated that they are unfit to parent. When a parent has been convicted of D.V. and is sent to jail or prison, his or her child will at least temporarily be taken out of that parent’s custody and, if the judge determines that it is safe, the child will be placed with the other parent or with a friend or family member if the convicted individual is a single parent. If there is no qualified friend or family member, the child will be taken into protective services. If the parent was convicted of a DV crime against his or her child, otherwise known as child abuse, he or she will definitely lose custody of his or her child until the court is convinced that the parent has been rehabilitated and will no longer pose a threat to his or her child.

Child custody will also be an issue when parents go through a separation or divorce. A recent study indicated that most contested custody mediation cases in California, regardless of demographics, involve a history of inter-parental violence or intimate partner abuse. Unfortunately, a history of domestic violence, even if there was never a conviction, can devastate a parent’s chances of getting custody of his or her child. When divorce proceedings are initiated, Family Court Services offers mediation services to try to resolve custody issues.

Defense Attorneys for Child Abuse Law

Family Court Services (FCS) will review both parents’ histories of alleged domestic abuse to protect the safety of a child. The FCS staff will perform an extensive background check to ensure the safety of any party or child in the proceedings and may include criminal background checks, checks for restraining orders issued against either parent, a review of any criminal charges and their subsequent resolutions, telephone interviews, and information from attorneys, shelters, hospital reports, Child Protective Services and/or any other sources deemed relevant to the investigation. If one’s partner can prove a history of violence in the home, the offender’s chances of getting custody could be defeated and visitation rights may not even be granted. The judge will allow visitation only if he or she believes that proper measures can be taken to ensure the safety of the child and of the partner.

If facing an intimate partner violence charge and/or a divorce, it is critical for a person who wishes to maintain custody of his or her children to contact the experienced domestic violence attorneys at the Kavinoky Law Firm to provide the best defense possible with respect to the criminal charge and to obtain referrals for exceptional family law attorneys. Click here for a free consultation.

An infliction of injury charge or case is primarily defined in the same way by both civil and criminal courts. Willful infliction of injury, more commonly called “spousal abuse,” is a California domestic violence crime (in criminal courts) or cause of action (in civil courts) that applies to intimate partners. In a criminal court, these partners may be married or divorced, living together or formerly living together, or have children in common. In a civil court, partners who are or were dating are also included. The laws of both courts apply to heterosexual couples and same-sex partnerships. With respect to both civil and criminal law, an individual is either guilty (in criminal court) or liable (in civil court) for this crime or cause of action if he or she willfully inflicts any injury, no matter how minor, upon the body of an intimate partner. This “charge” can be brought against an individual even if he or she barely touched the intimate partner.

In a criminal court, if a defendant is charged with infliction of injury, he or she faces a felony, punishable by up to four years in prison and a fine of up to $6,000. In a civil court, the person who is found liable for committing this wrong is subject to several different heavy fines but cannot be sentenced to jail or prison.

There are several differences between the procedures involved in civil and criminal courts with respect to infliction of injury. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the victim, as many incorrectly believe. In a civil case, it is the alleged victim (who becomes known as the “plaintiff”) who sues the alleged abuser. Another difference is that it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50% chance” that the defendant caused the plaintiff’s injury. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil infliction of injury lawsuit, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for infliction of injury may also have a Civil Protective Order issued against him or her. In general, a Civil Protective Order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, depending on the circumstances, the order can be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of infliction of injury. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon his or her being accused of this wrong. The criminal defense lawyers at The Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the devastating consequences that are associated with an infliction of injury conviction. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

Witness intimidation is a California domestic violence charge involving alleged threats to an intimate partner. Any type of couple can be considered an intimate partnership – the individuals can be straight or gay and may be married, divorced, living together, have children in common, or have dated at any time.

California domestic abuse law defines witness intimidation as any attempt to prevent an intimate partner from making a police report, answering the questions of law enforcement, or testifying in a court proceeding. The offense can be charged as a misdemeanor punishable by up to one year in jail. However, if the defendant is accused of using or threatening force, if the intimidation is part of a conspiracy, or if the intimidation is for financial gain, he or she will be charged with a felony punishable by two to four years in prison. The success or failure of the offender’s attempt is irrelevant to this charge, meaning that it doesn’t matter whether the intimate partner was actually intimidated.

When a suspect is arrested for intimidating a witness as a misdemeanor, bail is set according to the bail schedule but can be raised or lowered based on an application that can be submitted by the defendant, by anyone on behalf of the defendant or by the arresting officer. However, if the suspect is arrested on a felony witness intimidation charge, the law forbids the defendant from being released on bail in an amount that is either higher or lower than that contained in the bail schedule or on his or her own recognizance (commonly called OR) without first having a court hearing.

If there is a bail hearing, the judge will consider the defendant’s prior criminal history, his or her flight risk, and the facts of the pending case to determine whether to raise or lower the set bail amount or to release the defendant OR. When the judge makes decisions about bail, he or she presumes that the accused is guilty and makes a decision keeping that in mind, which is why it is so important to appear with a criminal defense lawyer who has experience with every phase of an intimate partner abuse case.

If the defendant is denied an OR release – which is very common in domestic abuse cases – and must post bail, release from jail can be obtained through one of two methods: Posting cash bail or posting a bail bond. To be released on cash bail, the defendant must post the full amount of bail in certified funds or cash with either the arresting agency or with the Clerk of the Court. If the accused attends every court appearance, the cash will be returned within 60-90 days after the case is resolved. However, if the defendant fails to appear, the cash bond is forfeited to the court.

A bail bond is a contract with a bail agent where the agent agrees to post a bond for the full bail amount. The bondsman will generally charge ten percent of the bond amount as his fee. The bondsman may also require collateral (usually a car, house or something else of considerable value) to secure the bond. This means that if the defendant does not repay the bond, the bondman has the legal right to keep or sell the defendant’s collateral. Once the case is over, the bond is exonerated, and the collateral is then released.

A witness intimidation conviction carries severe penalties. The defendant’s reputation, career, family and freedom are jeopardized the minute the arrest is made, which is why it’s critical to contact a skilled California defense attorney immediately after being arrested. In order to secure the best representation from a firm who has successfully defended countless individuals charged with domestic abuse crimes, contact the unparalleled attorneys at The Kavinoky Law Firm for a free consultation.

Civil Penalties and Sexual Battery

Sexual battery is a California domestic violence crime that applies to any intimate partners – either heterosexual or homosexual, married, divorced, living together, parents of children, or dating or formerly dating. Anyone who touches his or her intimate partner against that person’s will for the purpose of sexual arousal, sexual gratification or sexual abuse can be charged with misdemeanor sexual battery. Even slight touching, either directly, through the clothing of the accused, or through the clothing of the accuser can constitute sexual battery, even among partners in an ongoing relationship.

When charged as a misdemeanor with no aggravating circumstances, sexual battery carries a maximum of a six-month jail sentence and a $2,000 fine. However, if the accuser was 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 the state prison and a $10,000 fine.

In civil court, an individual who is found “liable” for committing this “wrong” or “tort” can face heavy fines but cannot be sentenced to jail or prison. The penalty that can be imposed is the primary difference between a civil suit and a criminal case.

There are also differences between the procedures involved in civil and criminal courts with respect to sexual battery. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the victim, as many incorrectly believe. In a civil case, it is the alleged victim, also known as the “plaintiff,” who sues the alleged abuser.

Another difference between criminal and civil cases is the burden of proof – it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50 percent chance” that the defendant sexually battered his or her intimate partner. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil lawsuit for sexual battery, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for sexual battery may also have a civil protective order issued against him or her. In general, a civil protective order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, depending on the circumstances, the order can be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of sexual battery. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon a sexual battery accusation. The criminal defense lawyers at the Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the devastating consequences that are associated with a sexual battery conviction. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

The Definition of Sexual Battery

Sexual battery is an offense that can be charged against any intimate partner in a California domestic violence case. California law defines ‘intimate partners’ quite broadly – the couple can be heterosexual or homosexual and may be married, divorced, living together, have children in common, or be currently or formerly dating. Sexual battery is considered a “wobbler” offense, which means that it can be charged as a misdemeanor or a felony depending on the facts of the case.

Anyone who touches an intimate partner against that person’s will for purposes of sexual arousal, sexual gratification or sexual abuse can be charged with misdemeanor sexual battery. Any physical contact, however minor, can be considered touching in a sexual battery case. It doesn’t matter whether the touching is accomplished directly or through the clothing of the accused or the accuser. Sexual battery may be charged even against a partner involved in an ongoing, intimate relationship.

Misdemeanor sexual battery with no aggravating circumstances carries a maximum of six months in jail and a $2,000 fine. However, if the touching occurs 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 the state prison and a $10,000 fine.

Every crime has specific elements or 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 sexual battery, the prosecutor must prove three elements.

• The first element is that the accused touched an intimate part of his or her intimate partner. Note that this element doesn’t make any mention of injury. This is because a battery is simply any unwanted touching and has nothing to do with whether or not an injury was sustained by the offended party. The jury must only find that the defendant actually touched the accuser.
• The second element is that the touching was against the will of the person touched. As just mentioned, any unwanted touching is sufficient. This element will probably be the most difficult for the prosecution to prove because of the inherent sexual relationship that exists between intimate partners. In order for the prosecutor to prove this element, he or she must prove that the alleged victim made it clear that he or she did not want to be touched.
• The final element in this charge is that the accused touched the partner to specifically cause sexual arousal, gratification or abuse. This element’s proof will be likely based on the exact circumstances of the physical contact.

Sexual battery may be charged under a variety of circumstances. If the touching takes place while the alleged victim is unlawfully restrained by the accused or an accomplice, or if the alleged victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated, then that fact (in addition to the three elements previously defined) must also be proved. In addition, it is a crime for an individual to cause a person who is in one of those situations to masturbate or touch another. If the touching takes place under those circumstances, then that fact must alternatively be proved in addition to the three previously defined elements.

In California, a sexual battery 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 criminal defense lawyer 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 intimate partner abuse cases, contact the experienced attorneys at the Kavinoky Law Firm for a free consultation.

Professional license issues affected by a California domestic violence stalking conviction

Domestic violence laws, in California, apply to all crimes that are perpetrated against intimate partners. Stalking will therefore be charged as a domestic abuse crime if the accused willfully and maliciously followed or harassed and threatened his or her intimate partner with the intent of placing that partner in fear for his or her safety. Intimate partners are persons who are married, divorced, dating or formerly dating, cohabitating or who have children in common. The penalties that face an individual convicted of stalking an intimate partner are severe and possibly life altering, depending on the circumstances that surrounded the alleged incidents and depending on whether the crime was charged as a misdemeanor or as a felony. Although one usually expects criminal punishment to follow a conviction, one usually doesn’t anticipate that his or her career may be jeopardized as well.

California professional license issues are generally regulated by the Business and Professions Code. The code permits a licensing board to either suspend or revoke a person’s professional license under certain circumstances following a criminal conviction. If revoked, an individual must more than likely find a new career in order to financially survive.

Professional license restrictions may be illegally imposed if the conviction doesn’t substantially relate to the duties, functions or qualifications of the defendant’s job. The board may impose a restriction following a criminal conviction, regardless of whether the defendant pled guilty or no contest or was found guilty by a judge or jury and may go into effect once the defendant is placed on probation, once his or her conviction has been affirmed on appeal or once the timeframe within which to file an appeal has lapsed. In addition, there are some licensing boards that may set forth even stricter guidelines when they issue licenses that may call for suspension or revocation upon a conviction for a specified offense. This is simply one reason why it is important for an individual who holds a professional license to contact an attorney immediately upon a stalking accusation. The criminal defense lawyers at the Kavinoky Law Firm will not only vigorously defend their clients throughout their criminal case, but may help resolve post-conviction issues as well. They can help fight against a professional license restriction by arguing against its application to their client’s case when appropriate.

In most instances, a D.V. stalking conviction will unlikely be related to the functions or duties of one’s career. A lawyer has the knowledge and resources to defend his or her client against an illegally imposed professional license restriction. There are many boards that simply may not want a convicted criminal holding their license. The board may try to use the conviction to inappropriately discipline an otherwise competent license holder, which is, in most cases, illegal. However, there are two ways that a restriction may certainly be upheld according to the law. The first is if the defendant who was convicted of stalking his or her intimate partner was ordered by the court to register as a sex offender. Certain professions, including physicians and surgeons, have specific rules about license revocation when a sex offense is involved. The second is if, as a part of the defendant’s job, he or she must carry a firearm (which is probably unlikely in most professionally licensed positions). Firearm restrictions do apply to intimate partner stalking convictions and may therefore legally put an end to an individual’s career.

When charged with stalking an intimate partner, it is critical for the accused to hire a skilled attorney who is familiar with all of the evidentiary issues and post conviction issues that an individual facing an intimate partner abuse stalking charge may encounter. The experienced attorneys at the Kavinoky Law Firm have successfully defended countless individuals who faced DV stalking charges and helped them maintain their dignity, family, careers and freedom. For questions about a stalking charge or about professional license issues, click here for a free consultation.

The Cycle of Abuse in a Relationship Affected by Domestic Violence

Relationships that are affected by domestic or intimate partner abuse all have a common factor – the cycle of abuse. The cycle of abuse is a pattern of behavior that an abuser and his or her victim go through between incidents of abuse. Although domestic violence deals with emotional, financial and physical abuse, the cycle of abuse primarily deals with physical abuse. There are generally three distinct phases of the cycle, and include the tension-building phase, the violent episode, and then apologetic, loving behavior, commonly referred to as the honeymoon phase.

The tension-building phase in the cycle of violence is where emotional abuse, and sometimes even physical abuse, usually begins. This is the phase where tension builds between the abuser and his or her partner or family members who in turn experience high levels of anxiety, fear and anticipation of what will happen next. Although this phase is inevitable, it may begin due to stresses about finances, the couple’s children, trust issues or any other problem that the family might be facing. Many victims of abuse try to calm their partners or other family members down during this phase by claiming responsibility for behavior that isn’t their fault or by shifting attention away from the problem. Once the tension rises to its highest level, the violent episode takes place.

The battering incident, also referred to as the acute battering incident, takes place when the tension-building phase escalates and the abuser then attacks his or her partner or other family member. The episode is unpredictable and may be set off by anything. Once started, only the person inflicting the abuse can stop it. Although one might think that this phase would be incited by an act of the victim, such is rarely the case, as he or she usually has little to do with it. This phase is usually brought on by an external problem or internally within the abuser. There are times, however, when a victim might provoke his or her intimate partner or other family member into this phase, wanting to get it over with, knowing that the honeymoon phase is next. It is during this phase that victims are seriously injured and even killed.

The final phase of the cycle of abuse is commonly referred to as the honeymoon phase. This is where all tension has left the relationship and the bonds between the couple or family are strengthened. During this phase, the abusive partner or family member acts loving, may shower his or her victim with gifts and affection and promises to never hurt him or her again. Both the abuser and the victim want to believe the abuse is truly over and it is because of the grief and devotion that the batterer shows his or her victim during this phase that prevents many victims of domestic and intimate partner violence from leaving their abusive relationships.

A victim who has experienced these cycles of abuse at least twice may be diagnosed with a recognized psychological condition known as battered person’s syndrome. This syndrome can be used as a defense to a crime committed by a battered person or may be used against a defendant in a domestic violence trial if his or her victim recants or refuses to cooperate with the prosecution.

Leaving an abusive relationship may be the only way to end this cycle of violence. California has an abundance of resources that are designed to help victims of domestic abuse leave their abusers and find ways to lead their lives free from fear and violence. The National Domestic Violence Hotline, found online at www.ndvh.org or by phone at 1-800-799-SAFE, is a great place to learn more about the signs and symptoms of domestic violence or to seek referrals for classes, counseling or other programs. Speaking with the compassionate lawyers at The Kavinoky Law Firm may also be helpful to learn about a D.V. victim’s legal rights and remedies. Contact an attorney today for a free consultation to discuss any Domestic Violence-related matter.

Domestic battery, more commonly called “spousal abuse” or “spousal battery,” is a California domestic violence crime that applies to intimate partners. Intimate partners may be heterosexual or homosexual and married, divorced, living together, have children in common, dating or formerly dated.

In a criminal court, battery is what’s known as a “wobbler,” meaning that the offense can be charged as either a misdemeanor or a felony depending on the severity of the individual case. If a person willfully and unlawfully uses force or violence upon an intimate partner, he or she can be charged with battery, which is typically charged as a misdemeanor and carries a maximum penalty of a one year jail sentence and a $2000 fine. This charge can be brought against a defendant even if he or she used the slightest force. Any unwanted physical touching could lead to a battery charge. However, if serious bodily injury results (for example, broken bones, loss of consciousness or a concussion), the battery charge will likely be charged as a felony which carries a maximum of four years in state prison.

In a civil court, an individual who is found “liable” for committing this “wrong” or “tort” is subject to several different heavy fines but cannot be sentenced to jail or prison. Other than terminology, the penalty is the primary difference between a civil suit and a criminal case.

That being said, there are several differences between the procedures involved in civil and criminal courts with respect to battery. In a criminal domestic abuse case, it is the prosecutor who actually files the charge, not the victim, as many incorrectly believe. In a civil case, it is the alleged victim (who becomes known as the “plaintiff”) who sues the alleged abuser. Another difference is that it is much easier to find the defendant liable in a civil suit, as the judge or jury must only believe that there is a “greater than 50% chance” that the defendant battered his or her intimate partner. In a criminal action, the judge or jury must find the defendant guilty “beyond a reasonable doubt” in order to convict.

In a civil lawsuit for battery, there are three types of monetary damages that may be awarded to the plaintiff. “General” damages are awarded to cover injuries for which an exact dollar amount cannot be calculated. “Pain and suffering” are the most common types of general damages. “Special” damages are awarded to cover the plaintiff’s out-of-pocket expenses. These may include any hospital bills, the cost to replace or repair damaged personal property and reasonable attorney’s fees. “Punitive” damages are awarded over and above special and general damages to punish a losing party’s willful or malicious misconduct.

In addition to monetary damages, a person found liable for battery may also have a Civil Protective Order issued against him or her. In general, a Civil Protective Order will prohibit the restrained individual from coming within a certain number of yards from the protected party in order to prevent further abuse, threats or harassment. However, depending on the circumstances, the order can be much more restrictive. Unless a specific end date is listed, the order will expire three years after being issued.

Clearly there are many consequences, both civil and criminal, that face a person accused of domestic battery. Such being the case, it is imperative that an individual in this situation immediately contacts an attorney upon a battery accusation. The criminal defense lawyers at The Kavinoky Law Firm are experienced at handling every type of California intimate partner abuse case and have successfully defended countless individuals from the devastating consequences that are associated with a battery conviction. In addition, they can provide referrals for civil defense attorneys when necessary. Contact them today for a free consultation.

Hearsay and 911 Calls and their Admissibility into Evidence in a California Domestic Violence Criminal Threats Trial

California domestic violence crimes are crimes that involve intimate partners. Intimate partners include people who are married, divorced, dating, formerly dated, living together or who have children in common. The laws apply to both heterosexual couples and same-sex partnerships. When an individual makes a criminal threat against his or her intimate partner, the crime will be charged as domestic abuse.

“Criminal threats” can be charged when a person threatens to commit a crime against his or her intimate partner, which, if committed, would result in death or serious bodily injury to that partner. The threat can be conveyed in almost any manner as long as the partner receives it and the partner reasonably feared for his or her safety as a result. It is not a defense that the accused didn’t actually intend to carry out the threat. If convicted of this crime, the defendant faces up to one year in the county jail or state prison, depending on whether the crime was filed as a misdemeanor or a felony.

Hearsay is a legal term that refers to “out of court” statements that a lawyer subsequently tries to offer as evidence “in court” during a trial. In order for the statements to qualify as hearsay, they must be introduced for their truth. In a typical criminal proceeding, if the court determines that the statements are, in fact, hearsay, it will likely rule that the statements are inadmissible, the rationale being that a witness should only testify to things about which he or she has actual, personal knowledge. However, California permits hearsay, including 911 telephone calls, to be admitted into evidence in intimate partner abuse trials.

In a criminal threats case, this exception allows into evidence statements that were made by the accuser at the time he or she was being threatened or immediately after the charged incident. The reason that this exception exists for D.V. cases is because it is believed that a victim who is experiencing abuse would lack the opportunity to reflect on or fabricate the facts. Obviously that rationale doesn’t always hold true, as many domestic violence 911 calls have been made based on made-up allegations in an effort to control or punish one’s partner or were placed out of anger, revenge or jealousy. In any event, the statements are allowed into evidence and, as a result, the prosecutor will no doubt play a recording of the 911 call and have the investigating officer read the accuser’s statements to the jury.

As is true with any area of the law, even exceptions have exceptions, which is why is it critical to have legal counsel who is familiar with domestic abuse cases and the evidentiary issues that frequently arise in these types of trials. The skilled criminal defense lawyers at The Kavinoky Law Firm pride themselves on keeping up with current case law and cutting edge trial strategies. They frequently participate in training seminars that relate to intimate partner violence, giving them a leg up on the competition. As a result, when a prosecutor tries to introduce hearsay and 911 calls in a criminal threats trial, they are prepared to effectively argue for their admission or exclusion, depending on which result would provide the most favorable outcome for their client. Because of the complex and technical rules (and the exceptions to those rules) that come into play in a California D.V. case, having an experienced and qualified criminal defense lawyer who knows how to tackle tricky evidentiary issues is critical. An experienced attorney can outline a proven defense strategy to a domestic abuse case during a free consultation.