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I got aressted for assualt. But I didnt assault anyone. And…

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I got aressted for assualt...
I got aressted for assualt. But I didn't assault anyone. And my gf isent pressing charges. Theirs no witnesses. And the cops spelled my gfs last name wrong on my undertaking paper. Is this serious? Can this be voided? The cops are trying to charge me by them selves.
Submitted: 6 years ago.Category: Criminal Law
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3/7/2012
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 30,908
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Hi Jacustomer,

Unfortunately, what you describe happens all the time. Many years ago, the police had discretion. You could call them in to a domestic dispute, just to calm people down and then they would leave. That hasn't been true in a long while. With the emphasis on domestic violence if the police are called to the scene, regardless of how they may privately feel about what they witness, regardless of whether or not they believe the complainant is in danger, and regardless of the wishes of the couple involved, they have no discretion any more. They must make an arrest. Once you (or a witness) get the authorities involved, the case is not yours any more. It belongs to Arizona to do with as they wish.

If your girlfriend does not want to cooperate in your prosecution, could go to the prosecutor and tell him that she does not wish you to be prosecuted, that she doesn't need a protective order, that this was a huge mistake and the two you you just want to be left alone to work this out and that she wants the case against you dismissed.

In my experience, the odds are close to 100% that the prosecutor will tell her that it's too late for that and that once a domestic violence matter is filed with the court, it becomes the state's case and not hers any more. The state can choose to go forward with the case whether the original complainant cooperates or not. He will also tell her that if she refuses to cooperate, he can subpoena her, bring her into court in handcuffs, if necessary, put her on the stand and require her to testify against you. All of these facts are perfectly true.

Realistically speaking, however, unless there are other witnesses or medical evidence, prosecutors usually can't win their domestic violence case without the cooperation of their key witness -- the complainant. So if your girlfriend sticks to her guns and refuses to change her mind, many of them will eventually opt to cut their losses, once they are sure that nobody has forced her into changing her mind, and once they are sure that the complainant is going to be safe.

So, as soon as the prosecutor turns her down she needs to talk to your lawyer and let him know that she has tried to drop charges against you but that the prosecutor won't let her. She should then ask for your lawyer's help with the prosecutor. Your lawyer will talk to the prosecutor for her, as your lawyer and she want the same thing: for the case against you to be dismissed.

Not always but usually, when the complainant and the defense lawyer join forces to double-team a prosecutor to convince him to drop charges, something favorable to the defendant, even if it's not a direct dismissal, can be worked out. In part, this is often because the judge will get impatient and eventually get into the act and tell the prosecutor that he ought to resolve this and stop wasting the court's time with a case that is clearly going nowhere.

So tell her to go talk to the prosecutor. If the prosecutor won't budge, make sure you have a lawyer when you go to court. plead not guilty and let him push for the dismissal. If you can't afford a lawyer plead not guilty, and then ask the judge to appoint you a public defender. He should know how to do the rest. Don't take a plea to anything just to get rid of this case, as that can give you a record. Wait to have the benefit of your lawyer's advice before you make a decision that you may later regret.

Good luck!
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Customer reply replied 6 years ago
They spelt her last name wrong on my undertaking. Is that a mess up?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hi,

Sorry, no. It's a typo, and the judge will have it corrected if someone brings it to his attention. It will not so much as cause a ripple in your case.
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Customer reply replied 6 years ago
So I'm actually from morden manitoba canada. And my gf didn't call the cops. The nieghbors did. And no one ever said anything about assault. Thses small town cops just assumed. And my freinds gott off their charges because the cops mispelt name and dates.I have a no contact orerd for 30days until court. Do you think something like this will go on? If theirs no proove or evidance or even someone charging me. I'm just confused
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hello Jacustomer.

There's a difference between what the police need to make an arrest, and what the DA needs to get a criminal conviction. They are really quite extreme. To arrest you they only need probable cause. All that is is a reasonable belief that an assault may have occurred and that you may have been the one to commit it. The words of a credible-seeming witness -- even if he's a liar -- can give an officer probable cause. Here, if the neighbors overheard what they thought was an assault in progree they could call 911, which would give the police probable cause to come over. The rest I've mentioned above.

You need to note that in Arizona, you do not have to actually hit or physically harm someone to be charged with an assault. It is enough that in the situation she has reasonable fear that she faces such injury. You can see the assault statute here.

Now at trial, the states burden is much, much heavier than for an arrest. There they must prove all of the elements of an assault against you beyond a reasonable doubt, or you must be acquitted. There is no heavier burden in law than a criminal prosecutor's, and that's where -- if this gets that far -- all of the background you've given can help you.

I don't think this case is going to go very far. If there are only witnesses who heard a loud argument and no proof of any physical injury, the state will probably let your girlfriend drop, later if not sooner.

She needs to go to the prosecutor, say that this was a misunderstanding. YOu may have been having a loud argument but there was no physical violence and she never called the police. Then she should proceed as above and ask for the charges to be dropped.

I think that this case is not going to go the distance, but it probably isn't going to be pitched out of the box. Certainly not on the spelling of your girl friend's name.

If your friends got off because of a misspelled name it was probably a traffic violation. I'd be very surprised if it was a domestic violence misdmeanor.. If you briing it up, the prosecutor will ask the judge to amend it, and that is what will happen.

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Customer reply replied 6 years ago
My gf said she doesent have to show up to court. Only I do.
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hello,

She's correct. This is criminal court. You are a criminal defendant. She is not under court mandate. The state prosecutor is representing her interests on behalf of the people of the state of Arizona.

However, as the alleged victim of the crime she has access to the prosecutor. What she should do before your court date is to see the prosecutor and tell him that she wants to drop the case. If he allows it great. Then you come into court on your date, and your case would be dismissed. If he doesn't allow it, then you have to plead not guilty and get a lawyer and proceed with what I have explained already above.
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Customer reply replied 6 years ago
How would she see the prosecutor? I'm not familiar with the court system
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hello,

She goes to the prosecutor's office that serves the court where you are required to appear. She gets to an information disk and asks to speak to the prosecutor assigned to the case against you. She talks to the person privately and tells him what she'd like to happen, and that's how it works. She can call the prosecutor's office first to get the name of the prosecutor that she needs to talk to and to find out when a good time would be to find her available to talk to her. She can say that she's the alleged victim on their case against you.
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Customer reply replied 6 years ago
Well hopefully this case doesent go to long. The cops said it could take upto a year. If their isent anycharge I don't see how that could be. And if I don't get charged will I have a criminal record?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hi,

Like I said, if she's not interested in prosecuting and you have a lawyer it should not take anywhere near a year to get the judge to realize that keeping the case alive is a waste of time. One the judge starts pushing the prosecutor too, he'lll usually fold quickly.

The arrest would be on your record, but as there would be no conviction it shouldn't hurt you.

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Customer reply replied 6 years ago
So my gfs dad is goin to make a statement againt me. He thinks I pushed her. Becuase he was the one that call the cops. It wasent my gf that call. And he lives in a different province. How will that work?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Jacustomer.

Are you now telling me that this happened in Canada?
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Customer reply replied 6 years ago
Yes I live in morden manitoba canada. Its not on the list of pllaced to pick. And yes when me and my gf were arguing I got punched in the face by her and her freind at the same time.I was bleeding. So I pushed her back to keep them from hitting me. Then she called her step dad in a differenrt provine. And he called the cops. Now he goin to make a statement. Even tho she doesent want to charge me. So now I feel like imm goin to get charged. thissucks
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 years ago
Hi,

I realized you said you were from Canada but your post indicates that the incident happened in the STates, in Arizona. Now it appears that it all happened in Canada.

So forget everything I told you because am not licensed in Canada. I am opting out of this question and I will send it to our Canada Law experts.

Please be patient.
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Customer reply replied 6 years ago
Okay thanks
Criminal Lawyer: Copperlaw, Lawyer replied 6 years ago
Copperlaw
Copperlaw, Lawyer
Category: Criminal Law
Satisfied Customers: 2,019
Experience: Criminal Defense Attorney Retired Cop Drug Expert, Undercover Negotiator Breath Tech Traffic Specialist
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In Canada, the police lay charges. Unlike some jurisdictions in the US, they do not require complainants to "come down to the station and file a charge" or anything similar to that. Although I believe most US states are getting away from that.

 

Canadian Provinces have taken stronger positions on domestic violence, and many have developed strong Mandates requiring police to lay charges where there is any evidence that domestic violence may have occurred. They must have something, whether it is something they observed, such as a mark, something a neighbor saw or said, something your girlfriend told them when they separated you to speak to you both (which I expect they did as this is standard procedure) or from a statement they obtained after they arrested you. They would not lay the charge if there was absolutely no evidence. You may not be aware of what your girlfriend told the police.

 

Unfortunately, you will not know what you're up against until you obtain the disclosure on the charge and review the statements.

 

As for the undertaking, the error doesn't matter. You signed it and acknowledged it. And arguing the typo won't do you any good if you're locked up pending a bail review after breaching the undertaking.

 

You should be contacting a criminal lawyer in your area and meeting with them to discuss your matter in order to obtain proper legal advice. They will be able to assess your chances once disclosure is obtained.

 

I hope this information is of assistance to you and I wish you the best of luck in this matter.

 

Regards

Jim

 

 

 

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Customer reply replied 6 years ago
Their is no evidance. And no statements made against me. My gf isent pressing charges.and her and I don't want this to continue any further. Is their any way to drop the case? Or is it out of her hands now. This happend march 3rd 2012. If not should I get a lawyer. I need the best way to avoid any charges
Criminal Lawyer: Copperlaw, Lawyer replied 6 years ago
Sorry, I just reread the previous posts before it was sent to this category.

I see you also asked about how long the process will take, whether you will have a record and how your girlfriend's father's report to police will impact you.

Firstly, how long this takes to get through depends on so many factors. If the Crown offers an early resolution offer that is worthwhile, such as a peace bond, then this could resolve in a couple months. If it goes to trial, depending on jurisdiction, case load and court policies, it could take upwards of a year. Again, a lot more will be known once disclosure is received and the Crown screens the file.

Additionally, you said in one of the comments above that her friend was there also. Her friend might have given a statement as well, about you pushing her. They likely left out them punching you.

And your first question indicated you were on an undertaking, however your comment in your 7th reply above states that you feel like you're going to get charged. If you are on an undertaking and have a court date, you've been charged. I assume then you mean "convicted" which is to say being found, or pleading, guilty. Again, a consultation with a lawyer who can review your disclosure will give you a better idea of what is likely to happen.

Finally, you also indicated that your girlfriend said she doesn't need to go to court, only you. She is correct. You are charged, you must make the court appearances. If you set it down for trial, then she will be subpoenaed to attend as a witness at trial. But only then. Additionally, if you're on an undertaking not to communicate with her, ensure you follow that, as if you are breached, you'll have to have a Bail Hearing and be in what is referred to as a "reverse onus" situation, where you will have to show proof of why you should be released from jail, given that you didn't comply with your previous release conditions.

If you are convicted or plead guilty, yes, you will have a record. If you agree to a peace bond, you will not. If they withdraw, you won't. Depends on how it progresses. If you are convicted, you can apply for a Pardon in 3 to 5 years, depending on how they proceeded on the charge.

With regards XXXXX XXXXX call made by your girlfriend's father, his call prompted the police attending. I doubt they based your arrest and charge on anything he said alone. If he gives a statement, it can be used for investigative purposes however it cannot be used in court. He would need to attend and testify.

I just got your other reply as well via email. Most Provinces have taken the discretion away from the police now in terms of domestic policy. Even though your girlfriend doesn't want charges, the police still have to lay them if there is any evidence, even the slightest. Again, the disclosure will tell you much more.

Your girlfriend can go in and talk to the Crown Attorney. If you get a lawyer, she can talk to your lawyer, and he/she can give her guidance in this regard. Some Crown's will not just drop charges because a victim says so, but if there's not a strong case, then it's more likely they may. It's worth her trying, if that's what she wants to do.

It is not necessarily completely "out of your hands" as you asked, but a lawyer will be able to better guide this matter for you in the right direction. They will also set up resolution meetings with the Crown.

As I said, you are charged. Now you want to avoid a conviction. Get a lawyer. If the Crown is not seeking jail on the matter, then you will not qualify for Legal Aid and will have to come up with some money. Many lawyers give initial consultations for free however.

I hope this answers any remaining questions you had. I imagine this has you quite stressed. Take it one step at a time, and definitely see a lawyer about this. Also, if you are satisfied with this answer now, please click on "Accept".

Regards
Jim
Copperlaw
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Customer reply replied 6 years ago
Iv talked to everyone that was their. And the father. No one is making any statements.that's a forsure thing. Their all on my side. This situation got blown out of poportion. So I'm goin to stay without contact with gf. And get a lawyer. and hopefully he can talk to her. Cause I can't contact her in anyway. But her mother speek beween us. And gf wants this to be over with. ill try my best. Thanks
Criminal Lawyer: Copperlaw, Lawyer replied 6 years ago
Sounds like they don't have much to go on. The Crown may want to resolve this quickly then and withdraw it or make some other arrangements so you don't have a record. But definitely talk to a lawyer. You'll get through it.

Good Luck! Glad to have helped.
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