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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27419
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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The DA is requiring my spouse to finalize our divorce and then

Customer Question

The DA is requiring my spouse to finalize our divorce and then he will drop my spouses probation revoke on a drinking charge.....the 2 cases are unrelated, how is that ethical?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.

My name is ***** ***** I am an experienced criminal lawyer.

Obviously there's a much more complex backstory than the one sentence you've provided here. But a DA has the complete discretion to prosecute a case, or not, as he sees fit.

Was there a rearrest, or did your husband just drink in violation of probation's regulations?
Customer: replied 2 years ago.

My spouse and I had been having problems, we got into a big fight April 29th and he went to the bar and got drunk. Our fight carried over the next day turned into a domestic dispute no charges filed, a complaint in the mean time came in from a bar member that my spouse had been there drinking so when they motioned to revoke he hired an attorney.....he signed up for the step up prof ran 7 days jail to avoid a revoke and the DA agreed/made that deal with him. While he had an attorney he also filed for divorce. On his 6th day of jail time the DA put a warrant on him with a motion to revoke on the grounds of being at a bar! The DA is now offering to drop the revoke when the divorce is finalized......both his attorney and my attorney can't belive it's ethical or constitutional. We have 7 children together and have been married 19 years. We have had 2 previous domestic issues over that span of time.

Expert:  Zoey_ JD replied 2 years ago.
Are you saying that the DA required your husband to file for divorce?
Customer: replied 2 years ago.

No he filed May 1st, but they are telling him if he does finalize it they will drop the probation reboke. If he doesn't finalize then they will pursue legal action with the revoke

Expert:  Zoey_ JD replied 2 years ago.
I agree that conditioning a defendant's probation revocation on going through with a divorce is over-the-top. However, regardless of what the prosecutor asks for, your husband would be entitled to a hearing on that revocation, where his lawyer can make the constitutional/ethical argument before the court. The judge is not required to rubber stamp the wishes of the prosecutor. He can overrule the DA and for that matter, probation as well, and restore your husband to probation in the interest of justice.

Apart from that, unfortunately, as you probably have been told already, prosecutors have immunity from suit or prosecution regarding the exercise of their discretion. You could file a grievance with his licensing authority and let the bar investigate him, but beyond that, your options are limited.
Customer: replied 2 years ago.

Thank you, ***** ***** been told we can file a complaint however we were also told to get ready to move outta town because it will open up something that may get worse than what it is now.

Expert:  Zoey_ JD replied 2 years ago.
That's an overstatement. However if you can it would be best to wait until the case is over before going after the DA fortress prosecutorial misconduct.