By: Mark Diaz
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What Percentage Of Domestic Violence Cases Get Dismissed?
When you know that Texas laws take domestic violence, or “family violence” as it is referred to in Texas very seriously, you probably expect that the percentage of cases that get dismissed will be pretty low. After all, the Texas Department of Public Safety (DPS) arrests almost 225,000 offenders for family violence, which refers to an act of physical harm or threat of harm against a member of the family or household. A breakdown of this figure reveals that:
- Almost 95% of all arrests are for assault, with simple assault being the most common.
- Sex offenses represent 3.4% of all domestic violence cases.
- Almost 2,500 people are charged with kidnapping or abduction.
Therefore, you might assume that the vast majority of these individuals will face serious penalties in a domestic violence case. It might come as a shock to learn that many do not result in the worst-case scenario that you expect. A dismissal, acquittal, or another favorable outcome may be possible with help from a Galveston domestic violence defense attorney. In addition, a summary of the relevant legal concepts is useful.
Two Types of Domestic Violence Cases in Texas
Before getting to the issue of dismissals, you should first understand that there are two separate types of proceedings linked to domestic violence:
Criminal Domestic Violence
An attack or other act of violence is criminal regardless of the relationship between the offender and victim; however, the crime is considered domestic violence when the relationship involves a family member, housemate, current or ex-spouses, or people in a current or prior dating relationship. There are four forms of unlawful conduct that may constitute domestic violence crimes:
- A person commits domestic assault by intentionally making physical contact with a victim, which causes injury or which the offender knows the victim would find offensive.
- The crime is aggravated domestic assault if the assailant caused serious bodily injury or used a deadly weapon to commit assault in such a way as to put the victim in fear of injury or death.
- If you choke a family or household member, you could face charges for a specific type of domestic violence. Using physical contact or force to impede breathing is a more serious crime.
- The charge of continuous domestic violence applies when someone commits two of the above types of domestic assault within 12 months.
The outcome of a criminal domestic violence case will be a finding of guilty or not guilty unless the charges are dropped during the pretrial stages.
Civil Domestic Violence
Under certain circumstances, a victim of domestic violence does not want to press criminal charges against the alleged assailant but seeks the court’s protection against future attacks. That person can file a petition for a protective order, sometimes called an injunction or order of protection. The remedy is civil in nature because there is no verdict of guilty or not guilty.
Instead, the outcome of the case is a “win” for the petitioner if the judge enters a protective order. This is the likely result under most circumstances because of how the process works. The alleged attacker, i.e., the respondent, will usually not be present in court to contest the petitioner’s claims. A petitioner can obtain an ex parte order of protection without providing notice of the hearing to the respondent. However, the protective order can only be in place for 20 days before the next hearing, during which the respondent has the opportunity to defend the allegations.
Standard of Proof for Dismissals
In a criminal case, including domestic assault, the prosecutor must prove the highest burden of proof in the practice of law: Proof of guilt beyond a reasonable doubt. Any question or uncertainty in the mind of the jurors requires a verdict of not guilty. Keep in mind that the government is required to establish each element of the domestic assault offense in accordance with this standard. The prosecution may face challenges with:
- Proving state of mind, since your actions only constitute domestic violence if you acted intentionally, knowingly, and or recklessly.
- The victim’s state of mind as it pertains to what contact could reasonably be deemed offensive.
- Evidence showing that the victim’s injuries were serious.
- Proving two or more cases of domestic violence in the past 12 months, which is necessary to pursue charges for continuous domestic assault.
If the prosecutor does not have sufficient evidence to meet the burden of proof, the domestic violence charges should be dismissed. Galveston domestic violence defense attorneys can often get them dropped through a motion to dismiss before trial, but you will also get a chance to fight the allegations at trial. Technically, this strategy does not involve a dismissal of the case, but rather an acquittal, i.e., finding of not guilty.
How Domestic Violence Cases Get Dismissed
There are many different defenses and strategies that could lead to a dismissal or acquittal, so keep in mind the following:
- In a criminal domestic assault case, the government is the plaintiff, and the alleged offender is the defendant. The victim is not a party but acts as a witness. If the alleged victim does not cooperate, there may not be sufficient evidence for the prosecution to meet its burden.
- If the accuser has a history of pressing charges based upon false allegations of domestic violence, the prosecutor may elect to dismiss the charges.
- When a judge has entered a protective order related to domestic violence, the respondent will be required to avoid contact and communication with the alleged victim, among other conditions. However, if the victim engages in acts that put the respondent in violation of the order, the allegations of criminal domestic assault are weakened.
- Emotions can run high during a domestic altercation, so the victim may also be to blame for how the incident escalated. In such a case, he or she may claim the right against self-incrimination under the Fifth Amendment. The prosecutor cannot rely on the victim’s testimony, so the charges may be dismissed for lack of evidence.
What Happens When a Domestic Violence Case is Not Dismissed
In a civil domestic violence case, the court will enter a final protective order if the case is not dismissed. This injunction may be in effect for up to two years. If a criminal case involving domestic assault is not dismissed and a jury finds guilt beyond a reasonable doubt, the penalties vary according to the severity of the offense.
The basic charge for domestic assault is a Class A Misdemeanor punishable by up to a year in jail, up to a $4,000 fine, and prohibit the accused from owning or possessing a firearm. The specific offense, your criminal history, underlying circumstances, and many other factors can lead to more serious charges:
- For a Third Degree Felony, you face a mandatory minimum sentence of two years incarceration and a $10,000 fine. However, a judge could order up to 10 years in prison.
- If convicted for a Second Degree Felony, the two-year mandatory minimum also applies but the maximum term is 20 years of incarceration.
- Aggravated Domestic Assault is a First Degree Felony, punishable by life in prison OR five to 99 years’ imprisonment.
Penalties for Violating Orders of Protection in Texas
A protective order may be a civil remedy for domestic violence, but it carries some aspects of criminal law that you should note. The order of protection is basically a private statute that applies to you alone. Intentionally violating it is breaking the law. You could be arrested for contacting the victim, going to that person’s home or place of employment, or engaging in other acts prohibited by the order. A first-time conviction is a Class A Misdemeanor, and a subsequent violation of a protective order is a Third Degree Felony.
Take Action if You Were Arrested for Domestic Violence
One of the best ways you can support your rights is by reaching out to a Galveston domestic violence defense attorney for help immediately after being arrested. Additional tips on what to do about a domestic assault case include:
- Never resist arrest.
- Avoid the person accusing you of domestic violence, even in the absence of a protective order.
- Do not speak to police or answer questions, regardless of innocence.
- In the heat of the moment, avoid making any statements TO the alleged victim. If officers overhear you, this information could be used against you in court.
Consult with Our Galveston Domestic Violence Defense Attorneys Right Away
Your situation may seem grim if you were arrested for an altercation with a family or household member, so the above information should be encouraging. With qualified legal help, it is possible to obtain a positive result in a domestic violence case. Even if the charges are not entirely dismissed, there are defense options and strategies for supporting your rights.
For more information about fighting domestic violence charges in Texas, please contact Criminal Defense Attorney Mark Diaz. Individuals in Galveston County and Greater Houston can call (409) 515-6170 to speak to a member of our team and set up a free initial consultation. After learning more about your circumstances, a Galveston domestic violence defense lawyer can explain what to expect with your case.