We’re angry people. Most of us keep a lid on it most of the time. But about 10 percent of people regularly lose control and violently express their anger. The target of this anger could be direct, like a family member, or indirect, like the Democrats. In both cases, a household member often bears the brunt of this anger.
Domestic battery claims are usually misdemeanor assault matters, with some felony aggravated assault claims added into the mix. In Georgia, aggravated assault is an assault that causes serious bodily injury (putting someone in the hospital) or an assault with a deadly weapon (baseball bat, frying pan, golf club, or almost any other household object). Occasionally, prosecutors reduce domestic battery to ABC (assault by contact), which is a harmful or offensive touch. This infraction is basically a traffic ticket.
Several procedural and substantive defenses are usually available in assault cases. The criminal case might be the most important part of the process, but it’s not the only part. A good Marietta criminal defense attorney advocates for defendants from start to finish. Furthermore, a good lawyer fully advises domestic battery defendants about all the direct and collateral consequences, so they can make the best possible decisions.
Most local law enforcement agencies have mandatory domestic abuse arrest policies. Officers don’t care if the defendant was letting off steam or angry at the alleged victim. Indeed, in criminal court, prosecutors don’t have to prove malicious conduct. They must only prove intentional conduct. They must prove their state of mind beyond any reasonable doubt. More on that below.
But at this stage a Marietta criminal defense attorney isn’t thinking about a court case. A lawyer, like a defendant, is focused on immediate jail release. Normally, when sheriffs process defendants, they set bail, which is usually about $750 in a misdemeanor and $1,500 in a felony. At this point, most defendants have two options:
- Security deposit, which is paying the entire amount in cash; if the defendant skips bail, the defendant forfeits the cash bond security deposit.
- Insurance policy, which is paying about 15 percent of the cash bond amount for a bail bond; if the defendant skips bond, the bonding company bears the financial risk.
“Skipping bail” means violating any bail condition, such as failing to appear at trial, not updating contact information, leaving the county, or picking up a new criminal case.
Incidentally, the aforementioned mandatory arrest policy usually includes a mandatory 24-hour hold. Usually, the sheriff promptly sets bail. So, if a defendant works with a Marietta criminal defense lawyer and gets all ducks in a row, the defendant walks out once the mandatory hold expires.
Generally, when officers arrest a domestic violence defendant, they must also inform alleged victims of their right to obtain a protective order. Civil and criminal protective orders are available. Both are basically the same.
A judge may issue an ex parte protective order based solely on the alleged victim’s affidavit, if the affiant swears that the defendant committed an assault or might commit an assault in the future, and the judge believes that testimony.
Once upon a time, belief was unimportant. Judges handed out ex parte protective orders like candy on Halloween. For the most part, them days are over.
Most judges now appreciate the fact that defendants have the same civil and criminal rights as alleged victims. So, they scrutinize these affidavits. Furthermore, if the alleged victim and defendant are involved in a parallel family law proceeding, like a divorce or custody battle, many judges defer to that presiding judge.
In Georgia, ex parte orders could be very broad. For example, these orders often contain keep-away and even kick-out provisions. Keep-away provisions require defendants to have no physical or other contact with alleged victims, a restriction that usually disrupts shared custody arrangements. Kick-out orders require defendants to vacate shared residences, even if their names are on the lease, deed, or mortgage.
A subsequent long-term protective order could include the same provisions, as well as financial support and other provisions. Long-term protective orders could last two years or even longer. Fortunately, defendants have a right to notice, hearing, and a Marietta criminal defense lawyer’s representation at this point.
The burden of proof in a protective order matter is only a preponderance of the evidence, or more likely than not. That’s a much lower standard than beyond a reasonable doubt, the standard of proof at trial. Circumstantial evidence is usually enough to prove points in civil court. But in criminal court, the alleged victim must normally provide convincing testimony.
Direct Legal Consequences
The aforementioned conditions of bail often pale in comparison to probation restrictions. Most Georgia criminal defendants receive probation, not because the courts are merciful, but because the state cannot afford to incarcerate defendants. Furthermore, the period of probation is usually long. Unlike most other states, Georgia doesn’t cap probation periods.
These conditions are tricky, so fasten your seat belt for this point. Assume Jeff, who rarely drinks, was intoxicated at the time of the assault, and the judge orders an alcohol evaluation. When Jeff tells his counselor he doesn’t have an alcohol problem, his counselor might say Jeff is in denial and kick Jeff out of the program. That outcome makes probation even messier.
A Marietta criminal defense lawyer can help. First, an attorney helps ensure that Jeff doesn’t get stuck with a bull-headed counselor. Second, a lawyer can file a motion for early discharge from probation. Usually, the judge at least eases the conditions in these situations.
Collateral Legal Consequences
We mentioned family court above. A domestic assault conviction is usually the kiss of death in child custody matters. Most judges won’t even give these individuals full visitation privileges. This problem persists for years or decades, even if Jeff has more children with another woman.
Some resolutions, such as deferred disposition, could allow Jeff to emerge from the criminal law mess without a criminal conviction. Deferred disposition has some significant cons as well, so Jeff badly needs a very good Marietta criminal defense lawyer in his domestic battery case.
Domestic battery is also a crime of moral turpitude. This designation could cause immigration problems. A crime of moral turpitude could be a deportable offense. Furthermore, a CMT conviction creates problems in all civil cases. As a matter of law, people with such convictions usually aren’t reliable witnesses.
A domestic battery criminal conviction has lasting consequences. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.