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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38773
Experience:  I provide family and divorce law advice to my clients in my firm.
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I live in San Francisco, CA. my husband was arrested because

Customer Question

I live in San Francisco, CA. my husband was arrested because I called 911 after a fight, and he was issued an Emergency Protective order (misdemeanor). Can it be lifted before the 7 days are up? Can it be expunged from his record? I overreacted when I called 911, I acted out of anger and he's a great husband and father, I just want to save my marriage and start the healing process with him. He is not a US citizen, I'm willing to do whatever it takes to help him at this point.
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question and thank you most kindly for requesting me to assist you this evening.

Lifiting this protective order may be tough. What exactly happened? I realize that you feel that you overreacted but I am trying to see whether or not what you wish to do is even possible. Were the police on scene? How long ago did all this take place?
Customer: replied 1 year ago.

this happened last night. we had a verbal fight and we both shoved each other, i did first, but he's bigger than me and I ended up on the floor. I was angry more than hurt and thought if i called 911 it would scare him and then i would just tell the police to go away, but when they came (very dramatic, 3 cars!) they said they had to arrest him because i said on the 911 call that he grabbed my neck; I feel like a stupid idiot and of course regret what I did. I am in no danger from him, he is generally a very gentle man and loving husband, and I can't stand the idea of what happened, I absolutely overreacted. I had no idea he would be arrested nor would I ever want an EPO against him. I would like him to be able to come home to me and our daughter asap. Also, we were planning to apply for his citizenship and I am worried a misdemeanor (is he going to have one on his record because of the EPO?) would hinder this. thank you so much for taking the time to help on this day of all days.

Expert:  Dimitry K., Esq. replied 1 year ago.
Nicole,

Thank you for your follow-up. This is a very complex issue--are you willing to contact the police and potentially expose yourself to charges by telling the police that you lied and that he did not assault you? Did he admit to them that he assaulted you? Were there any marks on you from the assault?
Expert:  Dimitry K., Esq. replied 1 year ago.
Nicole,

Could you please respond so I can assist? I am bringing up those questions so you can be sure for yourself what it may mean if you need to recant the report that you made to police. Please advise, so I can answer faster--I do understand this is pressing and emotional for you, so please allow me to assist. Thank you!
Customer: replied 1 year ago.

sorry for the delay, I'm writing this while taking care of my 2 year old.

Customer: replied 1 year ago.

did you get my earlier much longer response?


 

Expert:  Dimitry K., Esq. replied 1 year ago.
Nicole,

I did not--I just received a message that you are typing this up while caring for your child. Can you repost please?
Customer: replied 1 year ago.

oh no. Anyway, it said that I didn't lie, he grabbed my neck and I ended up on the ground. When I called 911 I was very upset, shaken and mostly angry. I didn't lie, but when I saw the EPO it said he "choked" me. I do not remember saying that to the 911 responder. But isn't that the definition of grabbing someone by the neck? Anyway, the police came immediately and separated us, so I don't know what he said to them. they took a photo of my neck but there were no marks that I know of.


 


I would be willing to tell the police that "choked" was an exaggeration. However, hazy as it is in my mind, I believe I didn't use that word on the 911 call. At most, the responder may have paraphrased me something like "so he grabbed your neck and choked you" and I said "yes" -- again, this is hazy, are the recordings of those calls available to callers to hear later? thanks again.

Expert:  Dimitry K., Esq. replied 1 year ago.

Nicole,

Please allow me to be very candid with you. The information is likely not favorable but you need to know this information so you can then choose for yourself what your next step may be pertaining to your spouse.

You personally cannot demand or compel that the state drop the charges. As this is a criminal charge and not a civil claim, only the state can file and only the state has discretion on whether to file or not to file. If you admit that there was contact, and there was unconsented to touching, that defines assault. That is not an exaggeration under law,if there was an illegal touch to which you did not consent, it counts and is considered to be assault. Grabbing your neck and chocking you is the same thing and is likewise a potential assault. The state how can do their own investigation, press charges, and then pursue criminal action.

This is why I brought up recanting the testimony--if the state believes you (which may or may not take place), they can then choose to drop the charges against your spouse, but instead can choose to file charges against you for filing a false police report. The second the police got involved and found enough probable cause to charge, it is now at their discretion whether or not to pursue it or not, and therefore either you contact them and appeal to drop this (which is highly unlikely), or you go on record that previous reporting was somehow false, which opens you to potential problems.

Expungement will not work if found guilty, generally only arrests and charges without convictions can be removed, and even that will cost money to a criminal law attorney who specializes in those petitions. I am afraid that this offense would hinder his citizenship application as it is a violence and fairly serious criminal offense (if found guilty).

Good luck.

Customer: replied 1 year ago.

I am interested in what you say about contacting them and appealing to drop it, no matter how unlikely. how exactly do I do this? I feel it's worth a shot. call the police station or how do I go about trying to get them to drop it?


 


Anything I/he can do to reduce the likelihood of being found guilty? besides him finding a good criminal law attorney? can i help him find the attorney? this will be my last question, thanks again for everything.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Nicole. You are most welcome, truly. To ensure I do not miss anything, I will go line by line with your concerns.

I am interested in what you say about contacting them and appealing to drop it, no matter how unlikely. how exactly do I do this?

You can contact the police department first and see if they already sent it to the DA's office. If they did, request that they provide you with the DA's information and contact that District Attorney directly. You can appeal to the DA to see if he or she can choose to not pursue this further.

 

I feel it's worth a shot. call the police station or how do I go about trying to get them to drop it?

Please see above, that is the fastest approach available.



Anything I/he can do to reduce the likelihood of being found guilty?

I cannot answer that without reviewing all facts, sorry.

 

besides him finding a good criminal law attorney? can i help him find the attorney? this will be my last question, thanks again for everything.

You are most welcome, and yes you can hire him an attorney--the attorney if hired will work for him and have his best interest at heart, but you can potentially hire him in this instance.

 

Good luck.

Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38773
Experience: I provide family and divorce law advice to my clients in my firm.
Dimitry K., Esq. and 6 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

I just wanted to let you know...after about 1000 phone calls and being persistent with the DA's office, they agreed to drop the case against my husband. I can't thank you enough for your help. Thank you for being so competent, patient, and thorough with my answer!

Expert:  Dimitry K., Esq. replied 1 year ago.
Nicole,

That is fantastic news, truly! You must utterly congratulate yourself because what you accomplished is not just amazing but highly unlikely. I wish you and your spouse the best of luck...and what you have done just now is something most attorneys would likely not be able to accomplish. Please be well!

No compliments to me, you deserve them yourself. Good luck!

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Dimitry K., Esq.
Dimitry K., Esq.
Attorney at Law
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I provide family and divorce law advice to my clients in my firm.