Michigan Criminal Defense Lawyer Blog
As a Criminal Defense Attorney practicing in Macomb, Oakland and Wayne Counties, I know that most people do not think of themselves as wife-beaters or spouse abusers. Most people, in fact, are not. Yet this is precisely the label most people fear, and face, when they suddenly find themselves charged with the Misdemeanor offense of Domestic Violence.
While no two cases are alike, most cases follow one of several common patterns. By far, the most typical of all cases starts out with a domestic argument. Often, but not always, inhibitions are lowered because one or both parties has had a little to drink. Somehow, the argument escalates and an object is thrown by one party at another, or there is a push, or a shove, or sometimes even an outright smacking of one party by the other. Perhaps a neighbor or nearby observer hears the argument and calls the Police; other times, one of the disputing parties calls them.
If you are facing, or ever have faced this charge, you know what happens from here. The Police arrive and talk to each party separately. Sometimes, they have the (alleged) victim and/or any witnesses write out a statement. After all the talking and sorting things out, somebody leaves in handcuffs.
In the following days, tempers cool, and regret creeps into both parties’ recollections. By this time, the arrested party has been arraigned by a Judge or Magistrate, and on top of anything else that was ordered as a condition of Bond, the person charged is ordered to have no contact with the (alleged) victim. This often creates family and/or household hardships that no one imagined.
Surprisingly, many of the calls that a lawyer receives from those looking for help are from the (alleged) victim. Even when the person charged is the one calling around for a lawyer, one theme runs through almost all of these conversations: Can the Charge be dropped?
The answer is always the same: No.
One of the more enduring misconceptions to which the world of TV and Movies has given rise is the notion that the person who claims to be a victim can “drop” the charges.
Charges are brought by the Prosecutor, not any individual person. Accordingly, only the Prosecutor can “drop” the charges. Usually, the person who called the Police (in most cases the (alleged) victim, or, in some cases, an independent witness, who can sometimes be the investigating Police Officer) is designated as the “Complaining Witness.”
Prosecutors will not, and for lots of reasons, cannot “drop” domestic violence charges. Amongst the strongest reason these charges cannot be “dropped” is a general fear for the welfare of the (alleged) victim. What’s known as “Battered Woman’s Syndrome” tops the list of Prosecutorial concerns because it is generally believed that a “Battered Woman” will try to undo the consequences of her partner’s arrest. This of course means that she will try and have the charges “dropped.”
The real problem here is that so many of the other cases likewise involve an (alleged) victim who wants to “drop” the charges, but not because of any “Battered Woman’s Syndrome,” but because they never expected things to go so far. In many of the cases that I’ve handled, the party calling the Police simply wanted the other party to be told to leave for the night, or to “settle down.” Facing a long and indefinite term of Court-ordered separation, children, families and finances all suffer in the meantime. Not fearing for their safety, or indeed of any repeat performance of the dispute that led to the charges, most people want to put this matter behind them and just move on.
After years of trying to explain how and why it’s almost impossible to have the charges “dropped” in Domestic Violence Cases, I have found it simpler and quicker to just tell the caller that it cannot be done, and to further advise them that it will cost nothing to try. While it may sound callous, in the long run it’s better for the party trying to accomplish this almost impossible task to be told by the Prosecutor or the Police that it cannot be done, rather than trying to explain it myself. Moreover, once the caller has tried, they no longer have to take anything I say on mere faith; they know my assessment was dead-on.
It is beyond the scope of this article to examine what evidentiary issues can arise which can lead to the charges ultimately being dismissed (as opposed to “dropped”). That is a subject for another day.
In those cases where there is little or no likelihood of beating a Domestic Violence charge, and providing the person charged has no prior convictions for Domestic Violence, it is possible to work out a plea deal which will keep the charge from going on their record. In effect, the case is “deferred” or sort of held “under advisement” for a period of time, and if the person charged stays out of trouble, the whole thing is dismissed. The lawyer for the person charged has to first convince the Prosecutor to agree to this deal, and then must convince the Judge to do the same. This is a very common outcome, and the legal fees involved are not overly-expensive. In the end however, a person who can have this kind of deal worked out on his or her behalf can avoid the label of “wife beater” or “spouse abuser.”