California Domestic Violence Laws
Domestic Violence (DV) is a broad term to classify criminal offenses which can be charged and punished in several different ways depending upon the circumstances of the case, the nature of the relationship, the location of the arrest, the accused's criminal history, and the attorney who represents the person who has been arrested or chartged. Serious domestic violence incidents are charged as felonies. Less serious domestic violence incidents may be charged as misdemeanors. Some domestic violence charges called wobblers may be initially charged as a felony, but subsequently reduced to a misdemeanor.
The most common domestic violence charge is Penal Code Section 273.5. This criminal offense involves inflicting injury on a spouse, cohabitant, fellow parent or person the accused has dated. The offense is a wobbler. Frequently, the police arrest a person for felony 273.5 and the District Attorney reduces the charge to a misdemeanor if the injuries do not rise to the level of felony conduct.
Another commonly charged domestic violence offense is Penal Code Section 243(e). This criminal charge involves committing a battery on a spouse, cohabitant, fellow parent or person the accused dated. This criminal domestic violence charge is a misdemeanor. Sometimes the police arrest a person for a felony domestic violence charge and the District Attorney charges the offense as a misdemeanor domestic battery violation.
Among the more serious domestic violence charges is Penal Code Section 245. This felony criminal charge is not limited to domestic violence cases. This criminal charge is considered a serious and violent felony and is a strike within the meaning of California's Three Strikes law. Because Penal Code Section 245 is a strike, it can lead to stiffer or enhanced sentencing either in the present case or in any future case. However, Penal Code Section 245 is a wobbler and may be reduced to a misdemeanor.
A domestic violence case is considered a first offense domestic violence case if a person arrested has never been convicted of a domestic violence related charge, which includes domestic battery, spousal abuse, assault or battery. First offense domestic violence convictions can carry a wide range of specific consequences. The punishment imposed can be predicted by an attorney experienced in domestic violence cases and the particular county in which the domestic violence arrest occurred.
First offense domestic violence punishments can be more severe (enhanced) if one of the participants required medical treatment or had serious injuries. The consequence will be even more severe if one of the participants suffered great bodily injury. Some courts or prosecutors will impose an even more severe consequence if there were multiple incidents.
It is important to know that a domestic violence case may be charged as a felony or a misdemeanor depending upon the extent of the injuries. As well, there are other enhancements which can imposed if great bodily injury (serious injuries) occurred.
Here’s what typically happens if the police or sheriff's department are called to responde to the report of domestic violence:
- Officers are required to complete a crime report and they must forward a copy of that report to the district attorney for action. Ask the officers for a case number before they leave. The victim has a right to receive a free copy of the face sheet of the report within 48 hours of the incident and the full report within five days.
- The police or sheriff's deputies must make an arrest when there is visible injury, no matter how slight.
- The officers must remove all firearms from the home. This is a new law, intended to protect women. Officers should ask if there are guns in the house.
- Officers must make an arrest on violations of a domestic violence restraining order, whether or not that violation occurred in the officer’s presence. Formerly only county protocol (and almost never enforced), this is now California law. Law enforcement is also required to maintain a record of all restraining orders and inform officers responding to a domestic violence call when there are restraining orders in force. (It is against the law for a person with a domestic violence restraining order against them to possess, own or purchase a firearm.)
- Officers must offer the complainant an Emergency Protective Order [pdf] which officers can issue on the spot, and which is valid for one week, giving time to obtain a more permanent order.
- In cases where both parties show signs of injury, the police must identify and arrest the primary aggressor, i.e., the most significant aggressor, regardless of who started the fight.
- Officers must carry out a complete investigation of the crime, including a full history of previous domestic violence, interviews with all witnesses, photos of injuries and the scene, placing the 911 tape, medical records in evidence, etc. This complete investigation will make the case less dependent on the victim’s testimony alone.
Experienced Domestic Violence Lawyer
The stakes are high in a California domestic violence case. A criminal conviction for domestic battery or criminal threats in California may result in jail, large fines, mandatory domestic violence counseling sessions which meet weekly for one year, mandatory alcohol education classes, personal conduct orders, stay away orders, temporary restraining orders, and other punishment. For that reason, it is critical that that a person charged with domestic assault, domestic battery, criminal threats or stalking have only a qualified domestic violence defense lawyer to handle the case from the earliest possible moment.
Contact The Office
Robert Tayac is recognized as being among the top domestic violence lawyers in California and represents clients in criminal cases related to domestic violence, assault and battery, and applications for and responses to restraining orders. Attorneys, investigators and experts working with this highly specialized law office represent clients in the Northern California criminal courts located in San Francisco, San Mateo Marin, Alameda, Santa Clara, Contra Costa, Sonoma and Napa counties. Additionally, lawyers of this law firm represent clients seeking or defending against temporary restraining orders and no harassment orders before the superior courts of San Francisco, San Rafael, Redwood City, South San Francisco, Napa, Oakland, Palo Alto, Walnut Creek, San Jose and Santa Rosa. The firm accepts only California domestic battery cases, California temporary restraining order actions or California driving under the influence cases.
The stakes are high in a California domestic violence case. An arrest for domestic battery, domestic assault, criminal threats or stalking in California may result in actual jail, large fines, mandatory 52 weeek batterer's treatment program, mandatory alcohol education classes, and other punishment. For that reason, it is important that you have only a qualified California criminal defense lawyer handling your domestic violence case from the beginning. If you or someone you know has been or may be accused of domestic violence, we invite you to read the information contained in this website and welcome you to call our office and discuss your case with a domestic violence lawyer. If you prefer, you may submit a confidential case questionnaire which will be reviewed by a member of our firm and receive a prompt response.
If you hire Robert Tayac to handle your
case, you will know your case is being properly handled by a knowledgeable, experienced, and trustworthy California criminal defense lawyer.
Office Locations and Areas We Serve
Mr. Tayac represents clients who have been arrested in the following counties as well as other cities throughout California and can meet clients at one of several office locations in Northern California.
This website is about California’s domestic violence laws and the
San Francisco and Bay Area courts.
Domestic violence cases in California frequently must be fought. Many people
arrested for domestic violence are innocent. A person doesn't have to commit a crime to be taken to jail by the police, especially in domestic abuse cases.