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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16827
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I called 911 to report a dispute between my husband and I.

Resolved Question:

I called 911 to report a dispute between my husband and I. I reported that I punched my husband in the arm in anger and that he then choked me. I grabbed a kithchen knife and told my husband to leave the house. My husband was not present when the police officers arrived, but they contacted him on his cell phone. My husband did not admit to anything. He told the officer he was not injured and that he did not want to press charges. The police officer took two photos of me. The photos were of a small scratch on my chin and neck and a small light bruise on my upper arm. I told the officer I did not want to press charges. Although we have no history of domestic violence, my husband has two criminal felony convictions for robbery in 1991 and 1994. I have no criminal history. No arrests were made. A police report was made. I was told by the officer that the report would then go to the District Attorney's office. My question is...what happens next? Will the DA's office prosecute either of us? How long do they have to prosecute?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.
Hi Jacustomer,

What US state are you in?
Customer: replied 1 year ago.


California

Expert:  Zoey_ JD replied 1 year ago.
Hi Jacustomer,

I am not sure that the DA will bother to prosecute either of you, since they'd have made an arrest by now if they thought that either of you -- or both of you -- were unsafe.

Both of you could be charged with a low level domestic assault, but neither of you is interested in going forward with a prosecution. So this is a cross complaint with two reluctant witnesses. Given that, all things considered it seems like a waste of the court's resources to me.

The statute of limitations on a California misdemeanor is one year from the incident. This is not a case that requires investigation, and there would really be no need for any kind of delay at all. But technically speaking, you wouldn't be out of the woods for a year. After that, this case would be time barred as too stale to be prosecuted.
Customer: replied 1 year ago.

What about the photos taken of the scratches and bruise? Would that be enough for the DA to prosecute?

Customer: replied 1 year ago.
Relist: Other.
I dont wish to wait for a reply if expert is offline or assisting another person.
Customer: replied 1 year ago.

Did not respond to second question.

Expert:  Zoey_ JD replied 1 year ago.
Hello Jacustomer,

Sorry for the delay. I am on the east coast and I turned in for the night.

Once you involved the criminal justice system in your marital disputes and the police turned the file over to the DA, the case ceased to become yours and belongs to the DA who can prosecute whether you and your husband wish to go forward or not. The pictures would be evidence of some contact between you. But even if there were none, your voice on the 911 tape reporting the incident would be enough for them to prosecute if they found the contents of the tape believable.

The reason I think they may not is that your statement makes you and not your husband the aggressor in a domestic assault. And your husband, when contacted, wisely chooses not to make any statements to the police. That means you've established a possible self-defense claim for him, which would, if believed by the trier of fact, ultimately exonorate him completely.

Then too, the pictures of the injuries could possibly be seen as inconsistent with your testiimony that he choked you. The bruising is on your arm and not around your throat. A small scratch on your chin and neck, while certainly evidence that something occurred, does not suggest a choking.

So it looks to me that the state actually has a better case against you than against him, but that because of your injuries they would be unlikely to arrest just one of you but both or none.

I obviously cannot predict the future. Do they have enough to arrest you and/or your husband? Absolutely. They had that the moment you reported the assault to 911. That's all they need for an arrest. But for a conviction, they are required to present enough evidence to prove their case beyond a reasonable doubt, and with two reluctant complainants and no real harm done, they may not find it worth the state's time.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16827
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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