Allegations and Filing Domestic Violence
In order to receive protection or legal recourse following an incident of domestic violence, an individual must contact law enforcement. Generally, law enforcement becomes involved in one of two ways:
- Someone (either the victim or someone witnessing the incident) places a 911 call to police, followed by an arrest (after which the police file charges or issue a DV warrant); or
- The alleged victim of domestic violence files a domestic violence complaint (after which law enforcement will charge the defendant and issue a warrant.
Ohio Domestic Violence Allegations Information Center
- What happens after a 911 Call?
- Can a victim notify law enforcement after the domestic violence incident?
- Can a victim drop the domestic violence charges after filing?
- What happens if the victim does not appear in court?
In the most common scenario the call goes out to the police that domestic violence is going on somewhere. The police are going to show up and do an investigation. If, during that investigation, they see that one of the two people has injuries consistent with domestic violence (perhaps a black eye, a fat lip, a bloody nose, scrapes, bruises, red marks, etc.), and if there is evidence that the other person caused these injuries, then that other person is going to be arrested, taken from the home, and will spend the night in jail. There are almost no exceptions to this rule.
This seems unfair and in some ways it is. Many domestic violence situations feature two people, both giving as good as they are getting. Not every person arrested and carted off to jail on the night in question will be convicted of domestic violence. But they will certainly spend a day or so in jail.
But there are several reasons for this rule. First, it makes sense to separate the parties and separate them in a manner which makes it impossible for them to get back together to continue to escalate their fight. This cooling down period is very important.
Second, if the perpetrator of the domestic violence is removed from the situation, then the victim gets some breathing room and the time and space to calm down and make important decisions based upon rational thought and not upon fear or desperation. If you know that the person who hurt you is not going to return for 48 hours or so no matter what, then you can pack up your stuff, get your finances together to get a new place, and do it without being in a desperate rush while fearing for your life if the other person comes home in the middle of it.
A victim of a domestic violence incident does not need an attorney to file a domestic violence complaint. There are two forms generally needed to file a DV complaint. First, the victim would complete a “Confidential Victim Information” Sheet, specifying whether the victim was injured, and whether there are of photos and/or property damage. The victim would also provide a detailed description of the incident, and whether there is a need for a further restraining order. The victim may also complete a “Voluntary Statement Detailing Prior History of Domestic Violence.”
Upon receipt of the victim’s information, the court’s staff prepares the DV complaint, including the date of the alleged incident and detailed information based on the alleged victim’s claims. The county sheriff then serves the accused with the DV complaint or issues an arrest warrant.
The accused will most likely be arrested, booked, and jailed until bond is posted. If the accused cannot be located, a warrant will be issued, the defendant eventually will have to either have the domestic violence warrant lifted / set aside or turn him/herself in to the local jail, and an arraignment or bond hearing before a judge or magistrate will take place on the following day.
Once a person is charged with domestic violence, only the prosecution has the ability to drop or reduce the charges. Also, the prosecutor, not the victim, determines whether a plea bargain will be accepted. The reason is simple: domestic violence is a criminal offense, and the State, not the victim, is the party bringing the charges. The State, not the victim, is enforcing the laws.
Because domestic violence is such a serious issue, the State takes the position of “protector” of the victim. The prosecution believes that the victim has been beaten down so much that he or she no longer knows what is in his or her best interest, and therefore as the protector, the prosecution cannot let the alleged offender continue to cause harm to the victim.
If the victim fails to appear in court, the judge may issue a subpoena to compel his or her appearance. The subpoena may be served by mail or in person. If the victim does not respond to the subpoena, he or she may be charged with contempt, which is punishable by up to thirty days in jail.
Contempt charges are not typically issued if the victim does not appear after the issuance of a subpoena by mail. Instead, the charges may be dismissed. Prosecutors become frustrated when the alleged victim repeatedly fails to appear while continuing to file domestic violence charges. If an alleged victim has a pattern of this activity in response to mail subpoenas, the prosecutor may issue a personal subpoena. If the victim ignores the personal subpoena, it is possible that he or she will be arrested and charged with contempt.
When the accuser wants to drop the charges and refuses to participate in the prosecution. If that happens, the prosecution must proceed without the alleged victim’s testimony. Unless there was a witness to the physical altercation between the alleged offender and victim, there is little evidence for the prosecution to offer. Statements made to the police at the time of the arrest may be the only evidence the prosecution has. Do not speak to the police without an attorney, because your statement may be the only evidence of the alleged domestic violence.
A written statement made by the accuser cannot be submitted as evidence unless the accuser testifies that he or she made the statement and that the statement is accurate. A friend or relative of the accuser cannot testify to the alleged domestic violence unless he or she witnessed the actions firsthand. A witness cannot testify that the victim told him or her about the violence because a conversation is not firsthand knowledge. Such testimony would be considered hearsay, which is inadmissible in court, and would not substantiate a claim of domestic violence.
If domestic charges have been filed, the prosecution will often proceed with the case regardless of the victim’s desire to drop the charges. The prosecution moves forward as though the victim’s inclination to withdraw the charges merely demonstrates a pattern of abuse and an unhealthy, dangerous reliance on the accused. The prosecution often believes it is acting in the best interest of the victim.
Unless the victim sought medical attention or photographed any of the alleged injuries, physical evidence typically does not exist. Many times, if the victim refuses to appear in court, the prosecution has no evidence to support the charges. If there is no physical evidence and the victim fails to show, the prosecution will be unable to prove their case. If the prosecution cannot prove their case, the charges against you will be dismissed.
In a criminal action, a defendant has the right to confront witnesses. Without the alleged victim’s presence in the courtroom, the defendant is not afforded that right. Mere statements cannot be introduced without authentication from the person making such statement. When the victim does not appear in court, the court may grant a continuance to allow time to locate the victim and compel him or her to testify. However, if the victim refuses to aid the prosecution, there is a good chance the case against you may be dismissed.
Joslyn Law Firm | Franklin County Domestic Violence Lawyer
Immediately following any domestic dispute which results in law enforcement involvement or criminal charges, it is imperative to consult a domestic violence attorney. Generally, following law enforcement involvement,an arrest quickly occurs. From there, your legal issues have just started. An experienced criminal defense attorney will work tireless to achieve the best result in your case.
Brian Joslyn of the Joslyn Law Firm is an experienced domestic violence defense attorney. He has dedicated his legal practice to representing individuals with complex criminal issues.
Should you or a loved one be faced with domestic violence charges, contact the Joslyn Law Firm at (614) 444-1900 or send an online message to schedule a free consultation.
Brian Joslyn represents individuals with domestic violence charges through Ohio, including Delaware County and the surrounding counties, including Pickaway County, Madison County, Franklin County, Licking County and Fairfield County.