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Sam
Sam, Attorney at Law
Category: Legal
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Experience:  More than 20 years of experience practicing law.
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simple assault will dropping charge dismiss case, can the

Resolved Question:

simple assault: will dropping charge dismiss case, can the arrest record be expunged?
i was hit first, would that be self defense?
Submitted: 5 years ago.
Category: Legal
Expert:  Sam replied 5 years ago.

Sam :

Hi


 

Sam :

If you were hit first and felt in fear for your life or concern for your safety, then if you hit it can be considered self defense. But only to the extent that the force used is no more than is necessary to stop an

Sam :

assualt on you

Sam :

Once a report is filed, then only the District Attorney may dismiss charges

Sam :

So you will need to discuss it with the District Attorney. If the matter is dismissed by the DA, then you may petition to have the arrest expunged

Sam :

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

Customer:

so the person who filed the charge has to contact the D.A. to drop the charge, and the D.A. will decide based on what whether to dismiss the charge? There is a court date set. Is it possible to do the above before the court appearance takes place and if so, would the court appearance still be necessary?

Sam :

Yes, the person who filed would need to contact the DA

Sam :

It will depend on whether it is an "isolated incident"

Sam :

If there was injury to either party

Customer:

it is isolated and there was injury

Sam :

and the totality of the circumstances of the incident

Sam :

What type of injury and to whom? What are the circumstances, briefly? Is this man v man or woman v woman or man v woman?

Customer:

would voluntarily entering into an anger management course be recognized in some way? ok will briefly describe

Sam :

It may help, but not to get the matter dimissed. But it could help to show good faith

Sam :

and as a first offender it could be a probation matter

Customer:

scratch to shoulder and knee of wife b/c she was nude on pavement and was tripped in an attempt to be subdued after hitting her husband. later in house husbands sister punched him in the back of the head and he used force to remove her from the room after asking her to leave

Customer:

2 charges of assault

Sam :

Hi

Sam :

I see. On these domestic violence matters, it is rare that the DA will dismiss

Sam :

The reason is, because if at a later date someone should really get hurt they can hold the DA responsible

Sam :

So the DA will proceed on the charges. However,

Sam :

as a first offender, they can get probation, with anger managerment courses

Sam :

or some sort of family counseling. And, if alcohol is involved

Customer:

no booze

Sam :

Alright. Then no substance abuse awareness

Customer:

even though the women both hit the man first?

Sam :

Charges may be filed agains the women, too.

Sam :

The DA has that discretion. They all can be on probation

Sam :

and have to do anger management

Sam :

But it will not hurt anything to have the "victim" request the charges not be pursued

Sam :

Contact the Victim/Witness unit of the DA's office

Sam :

Explain isolated incident. Never happened before

Sam :

Won't happen again. Thats all you can do

Sam :

The DA will decide. Perhaps it can be placed on an inactive docet


 

Sam :

Where if no more incidents for 12 to 18 months, it will not be prosecuted

Sam :

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

Customer:

we have all decided we don't want charges and the police told the women their would only be 'paper work involved' and the man wouldn't be in trouble. the man later went to police station and was given a voluntary witness report form to complete, he asked, " am i charged with something" and the officer responded he did not know. the man did not complete the form and was subsequently arrested and 'processed' but not asked any questions beyond name, contact, ss etc. does that sound like proper procedure?

Sam :

Hi

Customer:

he was not morandized

Customer:

mirandized

Customer:

he transported himself to station

Sam :

he does not have to be given Miranda unless he was arrested.

Customer:

he was arrested

Sam :

And only then

Sam :

is it necessary if they are going to get more information for evidence.

Sam :

If he was not given Miranda then any information he provided can not be used as evidence

Sam :

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

Customer:

he was given the form first, asked if he was charged with something got an "i don't know" and didn't complete the form, then was arrested and not asked any questions for evidence, does that sound like proper procedure?

Sam :

Yes. THere is nothing wrong with that procedure. He had an opportunity to state what happened. He did not have to and didn't

Sam :

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

Customer:

if he had filled out the form and was later arrested would that statement be admissible?

Sam :

Yes. Because he was not arrested at the time.

Sam :

Its the same as when police question without arrest

Sam :

You dnt have to give them information they dont have t

Sam :

or need to arrest

Sam :

They need probable cause. They had it without his statement.

Sam :

But sometimes they dont

Sam :

If you have further questions, you may post them here and i will continue to assist. Otherwise, even if you have a subscription with JA please remember to ACCEPT my answer as that is the only way I can get credit for my time and information in this matter. Thank you and Good luck

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