A domestic violence charge starts with a 911 call. Officers arrive to take the victim’s statement. The police do not investigate the defendant’s innocence. Their investigation is completed in a few minutes. The decision to arrest is made in a split second. Mississippi law requires an arrest when the officer has probable cause to believe an act of domestic violence was committed within 24 hours of the first report. Domestic violence laws were originally enacted to protect women from men. However, recent studies show that a significant percentage of domestic violence victims are men. Restraining orders are routinely granted without hearing your side of the story. Under a restraining order, the defendant may have to stay away from his home, his family and his property. Domestic violence can be charged as a misdemeanor or felony.
Mississippi law broadly defines personal relationships subject to the domestic violence law and restraining orders. Domestic violence victims include:
- Current or former spouse;
- Current or former domestic partner;
- Current or former dating partner;
- Anyone related by blood or adoption to the defendant;
- Foster parents;
- Step parents;
- Anyone who currently resides or used to reside with the defendant; or
- Grandparents, parents, children or grandchildren of the defendant.
A charge of domestic violence carries serious consequences. A conviction for domestic violence becomes an invisible punishment more serious than the criminal penalties. Loss of civil liberties include:
- Domestic Abuse Protection Orders (DAPO) including:
- Domestic Abuse Protection Order;
- Temporary Domestic Abuse Protection Order; and
- Final Domestic Abuse Protection Order;
- Domestic Violence restraining orders frequently prohibit contact with spouse, children, family, and firearm possession. The defendant may have to reside outside the family home while the case is pending. Violation can result in fines, jail time or both;
- Mandatory anger management classes at your expense;
- Probation or house arrest at your expense;
- Money damages;
- Family consequences including loss of custody and visitation. A conviction for domestic violence can weaken your custody and visitation rights and eligibility to adopt or become a foster parent;
- Employment. More and more employers are making domestic violence a disqualifying factor for certain types of employment. Present and future employers can access domestic violence court records. Background checks can disqualify employment pertaining to the care of the elderly and young or any job requiring firearm use such as military, law enforcement and security. A domestic violence conviction can restrict or prohibit professional licensing or security clearance;
- Under federal law, even a misdemeanor domestic violence conviction means a lifetime ban on possession or ownership of guns and ammunition. There are no exceptions for sporting, home defense or employment;
- Immigration consequences. A conviction for domestic violence can result in removal or exclusion from citizenship and denial of re-entry;
- Housing consequences. Both private landlords and public housing authorities can run domestic violence background checks and disqualify tenants; and
- Loss of education opportunities. A conviction for domestic violence can affect eligibility for certain degree programs. A domestic violence conviction may be taken into consideration for admissions and awards, particularly in study for degrees required for certain professions. Some educational programs may exclude domestic violence offenders.
Many courts have a “Zero Tolerance” or “No Drop” policy meaning victims cannot drop charges, particularly if the charges were brought by law enforcement. Notwithstanding a victim’s request to drop the case, prosecutors may still try to convict on domestic violence charges if they believe:
- the victim is scared of the defendant;
- the victim wants to drop charges solely because the defendant supports the victim and pays the bills;
- the victim is embarrassed about the social stigma of being a domestic violence victim; or
- the victim fears retaliation from the defendant, his relatives or friends.
Prosecution of domestic violence involves considerations beyond concern for the real victim. Courts and prosecutors receive federal money grants to manage domestic violence cases. “No Drop” policies result in more prosecutions. Better statistics mean more grants, even if the real victim wants the case dismissed. Cases can get prosecuted regardless of hardship on the entire family.
There is a clear difference between (1) an abusive spouse who repeatedly commits violent acts, and (2) a nonviolent relationship where a single argument goes too far. Every couple has encountered financial and emotional stress. Every couple with children has faced tense situations. The real victim may have been involved in an argument that got out of control. Even if everything is calm afterwards and the real victim does not want to prosecute, the government’s good intentions can overrule common sense. The goals of the government are not always the same as the goal of the family. Sometimes the government knows more about destroying families than it does about healing them.
An arrest for domestic violence can be a humiliating and distressing experience. The best time to begin your defense is immediately after arrest. Below are some factors to consider.
1. Was the defendant present?
- Was the defendant at the scene or found near the scene?
- Does the defendant have an alibi?
- Are there witnesses who place the defendant at the scene?
2. Did law enforcement exaggerate the victim’s injuries?
- Are the victim’s injuries consistent with the defendant’s version?
- What about inconsistencies between the defendant’s version of events and information in the report?
3. Was it an accident?
- Where are the inconsistencies? Does the physical evidence fit the victim’s version of what happened?
- Does the victim admit to violence?
- Does the victim say why he/she was violent? Did the victim express fear of imminent harm?
- Did the police investigate the defendant’s account of events?
- Were the victim’s injuries consistent with the defendant’s version? Are the victim’s injuries consistent with self-defense? Does the victim show defensive injuries?
- Where are the inconsistencies in the victim’s version?
- Do the defendant’s statements support a self-defense claim?
5. What does the proof show?
- Is the state’s case based solely on the victim’s testimony?
- Did the defendant have defensive injuries?
- Did the officer document the scene, such as damage to the defendant’s and victim’s property?
- Did the argument involve both parties? Was the physical assault actually mutual? Does self defense apply equally to both spouses?
- Was there physical evidence establishing assault by defendant?
- Did the defendant make any statements at the scene or to investigators?
- Did the police investigation include all facts and circumstances consistent with innocence?
6. Did the victim cause or contribute to the actions subject to arrest?
- Did the victim’s drug addiction, bi-polar or violent temper prompt the 911 call to the police?
- Does the arrest report accurately record the victim’s role?
- Is there corroborating evidence that should have been collected?
7. Is the investigation complete and accurate?
- Did officers conduct a custodial interrogation without a Miranda warning or with incorrect Miranda warnings?
- Did the defendant request counsel?
- Did police question the defendant after the right to remain silent was invoked?
- Did police have probable cause for a search?
- Did the incident have sufficient emergency circumstances to allow a search without a warrant?
- Did the officer do a thorough investigation? Did the officer ask the suspect for an account of events before making the arrest?
- Did the incident involve physical evidence? Did the police thoroughly collect and properly inventory the evidence?
- Did the investigator question every witness at the scene?
- Did the police report describe the incident in full detail with supporting observations?
- Did the officer’s investigation include all evidence consistent with innocence or mitigation?
- If the police photographed the victim’s injuries, did they also photograph the defendant’s injuries consistent with self-defense?
If you have been charged with domestic violence or family disturbance in Mississippi, it is time to get started on your defense. Focus on the immediate problems but plan for the big picture.
Anyone charged with domestic violence needs to remember:
- Talking to the prosecutor without your attorney present is the worst thing any defendant can do. In most cases, the victim and possibly the defendant have already given statements to the police. Talking to a skilled, experienced prosecutor without your attorney present is not going to solve anything.
- A domestic violence charge is not going to go away. Neither the defendant nor the victim can talk their way out of the charges. You will not be able to explain away the arrest.
- The government prosecution is going to consider its own self-interest before disposition of the case. The legitimate request of the real victim is never sufficient to warrant dismissal of your domestic violence charge. Court watchers from the local women’s center sometimes meet privately with prosecutors to object to dismissal until their own goals are met. The government prosecutor and everyone else receiving federal grant money claims to know what is best for the real victim, family and children.
- Domestic Violence charges are different from other types of charges. They are filed differently, prosecuted differently and the consequences are different and degrading.
The best Mississippi domestic violence lawyers understand the importance of protecting your reputation. You won’t get a second chance to make a first impression in court. If you have been charged with domestic violence, call the Law Office of Rufus Alldredge at 228.863.0123 for an appointment.
If you have already pled guilty or were convicted, received a deferred sentence, or deferred adjudication, call us. In many cases, we have been able to get the domestic violence arrests and convictions expunged.