A Complete Guide to Domestic Battery in Cobb County

For defendants, a domestic disturbance call usually begins a downward spiral that begins with a Section 16-5-23 charge and often seems endless. Life moves so fast that a mandatory 24-hour jail hold, which applies in most cases, often has severe social, vocational, and other consequences.

Unfortunately for defendants, that’s just the beginning. Almost as soon as defendants are released from jail, they receive legal notices which, in many situations, make them feel like a boxer against the ropes.

A Marietta criminal defense lawyer cannot wave a magic wand and make these things disappear. Neither can a lawyer travel back in time and change what happened. However, an attorney minimizes the ill effects of a domestic battery charge, as well as the collateral consequences that come with these charges.

Jail Release

Arrest starts the aforementioned downward spiral. So, when a Marietta criminal defense lawyer immediately addresses this area, it’s almost like calming the storm.

Most law enforcement departments have mandatory domestic battery arrest policies. If officers respond to such disturbances, they must identify the instigator and take that person directly to jail. Do not pass Go and do not collect $200. Officers usually assume the man was the instigator, so they look for evidence to support that assumption. This shortcut is just one of the many shortcuts in this process.

Since domestic battery is a violent offense, even if the alleged victim was barely injured at all, OR (own recognizance) release is usually unavailable. Two other options remain available:

• Cash Bail: Generally, by the time the mandatory hold expires, the sheriff has set a presumptive bail amount, which in a misdemeanor, is usually around $750. If defendants deposit the entire amount with the county, the sheriff releases them, and refunds most of that money when their cases end.
• Bail Bond: $750 is prohibitively expensive for many people. A Marietta criminal defense lawyer could try to lower the amount at a subsequent bail reduction hearing. Or the defendant could work with a bail bond company. The company deposits the money, and if the defendant doesn’t meet the conditions of bail, the company bears the financial loss. Most companies charge about a 10 percent premium for this service.

Pretrial release comes with strings attached. Some restrictions, like remaining in the county, apply to all defendants. Others, like a keep-away order, are offense specific.

Almost everything is negotiable. So, in many cases, a Marietta criminal defense lawyer can cut these strings, or at least loosen the knots.

Pretrial Matters

Once the defendant is out of jail, the real work begins, starting with a thorough evaluation of the facts. This evaluation usually focuses on the tip and the investigation.

Alleged victims normally summon the police. “Crying wolf” tips are very common. Many people call the police almost every time they have an argument with a spouse or significant other. Prior false alarms do not mean the current call is a false alarm as well, but they do affect the tip’s reliability, which is all that matters at this point.

Reliability issues abound if a third party, especially someone sympathetic to the alleged victim, provided the tip. Once again, the information might well be accurate, and in fact, it usually is accurate. However, the tipster is clearly biased and therefore unreliable.

As mentioned, whodunit investigations are usually very perfunctory. Typically, officers look for what lawyers call a scintilla (tiny piece) of evidence. They seize on that evidence, such as the alleged victim’s “he started it” statement, and they ignore contrary evidence, such as defensive wounds on the defendant’s body.

If a Marietta criminal defense lawyer undermines the tip or investigation during a pretrial hearing, the criminal case could collapse like a house of cards. The civil effects, however, are unaffected. More on that below.

Trial Defenses

The alleged victim’s reliability, or more specifically credibility, could be a defense at trial as well. As many as a third of domestic battery allegations are either fabricated or exaggerated.

Alleged victims almost never deliberately lie. But they’re often confused. Many alleged victims were drinking at the time of the incident. Alcohol impairs memory. Other alleged victims have distorted memories, especially if a parallel proceeding, like a divorce, is already pending in civil court.

The alleged victim’s refusal to testify could be a stumbling block, but is no longer a defense. Prosecutors can subpoena witnesses, including alleged battery victims, and force them to testify against their will. But except in extreme cases, they almost never exercise this power.

Protective Orders

At the time of arrest, most law enforcement officers must inform alleged victims of their right ot obtain protective orders. Frequently, a criminal law judge issues a temporary protective order ex parte (without a hearing), based solely on the alleged victim’s statement. Then, the criminal judge transfers the case to a civil judge, who presides at a full hearing.

At these hearings, alleged victims must prove their cases by a preponderance of the evidence (more likely than not). The aforementioned credibility/reliability arguments might be enough to beat these cases, but since the burden of proof is so low, outright victory is unlikely.

So, most Marietta criminal defense lawyers settle these matters out of court. A consent decree contains the same terms as a protective order but avoids the unwanted label. If the alleged victim refuses to accept this offer, that refusal could be admissible to prove bias or prejudice.

Family Law Implications

A few final words about domestic battery cases and implications in future family law proceedings. A decades-old arrest or conviction could change the outcome of a divorce or child custody case.

Pulling the pin is usually the best approach. During these proceedings, the prior adverse information will almost certainly come to light. Admitting the deed shows transparency, a quality many judges and jurors admire. If the former defendant has a good comeback story (e.g. I was drinking then but I’m sober now), that’s even better.

Domestic battery charges have criminal and civil consequences. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start fighting for you.