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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15944
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I reside in New Jersey. I am on probation for theft by deception

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I reside in New Jersey. I am on probation for theft by deception (which took place in Philadelphia,PA) but since I reside in NJ I am doing probation here. I am also on probation for buying 3 percocets in New Jersey for a year (this happen during my probation). My husband is a drug addict and addicted to alcohol. I called the cops last week because my husband wanted my prescription Xanax and I would not give him them. So I called 911 screaming on the phone my husband was chasing me with a hammer which he was. I locked myself in the car until police came. When they arrived they arrived my husband was out front with the hammer and I got out of the car and came in house. My husband inflicted these wounds on himself so they can lock me up so he can have my xanax. I spend 5 days in jail until my daughter came up with the 5,000 for bail. When, I got out, I sent my husband right to a 30 day rehab. He wrote and spoke to the domestic prosecutor admitting that he set me up, and he don't want charges pressed on me. I was arrested for aggravated assault/with a deadly weapon ( he claim I hit him with the hammer) As I said he had the hammer when police came and I called 911 screaming. And, I did hear my husband say he don't want to press charges and he does not want a restraining order. Why did they arrest me and what do u think will happen at my court hearing? He is coming now that he is out of rehab..I don't qualify for PD cause make to much money so state says, and I can not afford a attorney. Just wondering what might the prosecutor do since he retraced his statement.
Submitted: 9 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 9 months ago.
Hello,

My name is XXXXX XXXXX X am an experienced criminal lawyer.

You wonder why you got arrested when your husband lied about what happened and admitted he'd lied. I can tell you.

Once upon a time the police had discretion not to act under these circumstances. They would get a call from a neighbor or from the husband or wife and they could walk in, see that everything is fine, hear that nobody was interested in pressing charges and walk back out again. Or they could see that something did happen, but if the people involved had changed their mind about the police and the situation was calm and stable, the police would just go.

Those days have been gone for many years now. WIth domestic violence in the limelight, the laws have toughened. The police have no discretion and if there's a domestic complaint they must make an arrest. In this case, your husband showed as having injuries. That was good enough for the police to you in because they don't need much more evidence for an arrest. They just need to believe that it was likely that a domestic assault occurred and that you probably committed it.

Once the matter from there is turned over to the prosecutor the case no longer belongs to your husband but to the prosecutor who brings charges on behalf of all people in the state. They do not have to drop the charge just because your husband thinks they should, and they will tell him that.

Am I saying this is how it should be? Absolutely not. But as it is now, the police were acting appropriately within in the scope of their duties and are immune from suit or prosecution absent negligence or misconduct, neither of which appear in your rendition of what happened to you.

If your husband wants the charges dropped he ought to find the prosecutor assigned to his case and talk to him or her before the court date and tell him what really happened. He should let the state know that he does not feel he is at risk, needs no protective order against you and does not with to go forward with a prosecution.

. The odds are very good, however, that he will be told that the State can and will go forward without him. From there, he will have to enlist the aid of your lawyer to double-team the prosecutor and see if charges can be dropped.

You can go to your first court date and plead not guilty and see what will happen. That is, if your husband's attempt to drop the case has been successful, the case can be dismissed in court. But if it isn't, you'll be expected to either take a plea or to fight the case, maybe as far as trial. And while you have facts in your favor, without a lawyer, you are not likely to prevail and can end up with a conviction and a criminal record. So you should try to get a lawyer -- many will take credit card payments, which can be helpful as you can pay them off -- if this case has to be fought to be disposed of safely.

I am sorry to be the bearer of bad news, but it's best to be safe rather than sorry when your record is concerned.
Customer: replied 9 months ago.

Fran, you stated the following:


 


If your husband wants the charges dropped he ought to find the prosecutor assigned to his case and talk to him or her before the court date and tell him what really happened. He should let the state know that he does not feel he is at risk, needs no protective order against you and does not with to go forward with a prosecution.


 


He did all this from rehab he was there 30days for drug use. He faxed the domestic prosecutor notarized, witness with his license telling him, he is in rehab and made the story up. He also spoke to him directly from rehab.


 


So since he did this I am wondering what are they odds if they will dismiss the charges. Also, if they dismiss the charges for aggravated assault/with a deadly weapon can they get me on something else that would indict me or give me more probation time?

Expert:  Zoey_ JD replied 9 months ago.
Hi,

Domestic violence has become a social policy offense. That is what I tried to convey earlier when i spoke of police discretion. No judge wants to look soft on domestic violence and neither does any prosecutor. It can cost them their reappointment/reelection in today's climate.

So generally when a victim recants his testimoney and says he made this all up and tries to get the prosecutor to drop charges, they won't do it. There are always exceptions, and this may be one of them. But you can't count on it and that can mean big trouble fo you..

Unfortunately, if you are on probation, a new conviction can be the basis for a violation. If the state chooses to indict this matter, probation will certainly violate you and probably seek go have your probation revoked. If they dismiss it, probation will likely leave you alone. This is another reason why having a lawyer is critical. You likely already have a lawyer who represented you when you took the plea that got you probation in the first place. You need to call him/her, because in my experience, regardless of what your husband is now saying to the authorities, it may be too little too late.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15944
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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