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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16870
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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What is the possibility (probability) of this case get dismissed

Customer Question

What is the possibility (probability) of this case get dismissed by court:

- 243[e][1]
- Spousal battery case in San Diego [ california]
- Husband called 911.
- Operator spoke to wife. Wife said no issues and asked operator not to send cops. Wife spoke to operator in a clam voice (there is no sign of fear).
- Still cops showed up
- Husband explained what happened , fight between husband and wife. Husband pushed wife , so is wife
- Wife explained the same [ husband and wife provided reports to two different cops ]
- Cop talked to kids [ 10 & 14 ]. Based on kids stattements , cop thought Husband was aggressive and might have slapped wife [in fact husband has paper in in his hand , while pushing it seemed like slap for kids ]
- No injuries or sign of injuries to both husband and wife
- Husband was arrested and bailed out same night by wife
- Both Husband and Wife undetstands the situation now [ calling cop was wrong choice by husband ]



What will happen based on above.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.
Hello,

My name is XXXXX XXXXX I am a criminal lawyer.

When the police are called to a house to check out a possible domestic violence matter, they are not allowed to use their own discretion. They MUST make an arrest. Once upon a time, that was not the case. Back then, police could look at a situation, size it up and just leave if they thought everything was fine and under control.

Because of the national focus on domestic violence, howver, that is simply no longer the law. If a spouse calls the police because of what the other spouse is doing or threatening to do, there will always be an arrest..

From there the police turn the matter over to the prosecutor. At that point, the case no longer belongs to the complainant -- she may have started it, but she doesn't get to decide who finishes it - but to the prosecutor who brings charges on behalf of all people in the state.

As if the above isn't bad enough, the DA does not have to drop the charges just because the two of you now want her too, and they will probably tell her that. Although she should go to the DA's office and speak to the assistant DA who is assigned to prosecute the case against you, and tell him/her that this whole thing was a mistake, that she doesn't want the case to go forward, that she wants to drop charges so that the two of you can work your problems out together without the help of the court, in my experience, the DA will almost certainly tell her that they can prosecute this case whether she likes it or not, and that they won't drop it. No judge or DA these days wants to look soft on domestic violence and so they will try to keep the case alive for as long as they possibly can.

Realistically, though, if there are no witnesses or injuries, even though the DA may take a hard line, he will have great difficulty winning his case with a reluctant star witness. So, if the prosecutor refuses to drop the case against you, your wife will need to enlist the aid of your lawyer to double-team the prosecutor and see if he can help her to get the charges dropped. Your lawyer will be willing to assist her because you both want the same thing -- that the case against you gets dismissed.

Usually when the complainant starts holding hands with the defense attorny and both push for a dismissal, something highly favorable to the defense can be worked out.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16870
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 3 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks for the answers. I was expecting possible ways this case go into :


 


- Will be dismissed


- Will be reduced to [ Community service + Battery class ]


- Will be considered as felony


 


In addition, I was worried about kids statement, how does this affect the case.

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

You are basically correct about the way this case can go. This is pretty much true of all cases. They can be dismissed, reduced or indicted. With domestic violence however, and other witnesses besides yourself and your spouse, in this case, your children, a dismissal right out of the box is unlikely. If you don't have an arrest history or any history of domestic violence and there are no significant injuries involved in the case, in my experience a reduction is the most likely outcome here. You might even be able to get the charges dismissed after the completion of the supervision and classes.

Otherwise, if you want to go to trial on the case, the kids' statements constitute evidence against you. The 12 year old and the 10 year old may be able to testify against you, if they check out as to their capacity to observe and understand and to be able to recognize the difference between the truth and a lie.

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Zoey_ JD
Zoey_ JD
Criminal Lawyer
16870 Satisfied Customers
Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.