What You Need to Know About Violent Assault Cases
With the exception of DUI, assault, and especially domestic violence assault, is probably the most commonly-charged criminal infraction in Cobb County. Roughly a third of all felonies have a domestic violence element. Prosecutors like bringing domestic violence charges whenever possible. They look good politically and have higher conviction rates than non-domestic cases, probably due to juror sympathy.
There are some significant differences between drunk driving and assault. DUI is a regulatory crime, and assault is a crime of moral turpitude. So, an assault conviction often has far-reaching consequences in areas like immigration law. Furthermore, assault prosecutions almost always require non-police witnesses. That dynamic significantly changes the way many defense attorneys approach these cases.
DUI and assault also have some things in common at the arrest stage. Before the DUI crackdown began in the early 1990s, many officers would release drunk drivers at the scene, if they promised to be careful and go straight home. Now, that never happens. DUI laws are much tougher now. Furthermore, if an officer releases a suspect and that suspect causes a crash, the crash victim could sue the department.
Cobb County assault cases usually involve mandatory arrests as well. But these are policy arrests and not ad hoc officer decisions. If officers respond to a domestic violence call, they must decide who instigated the incident and take that person to jail straightaway. About ninety-nine times out of a hundred, police fault the male, even if the man has defensive wounds and a good story.
It’s easy to go to jail for an assault charge and hard to get out. Pretrial Own Recognizance release is pretty much out of the question, especially if the defendant has a record. Furthermore, many judges add no-contact orders as a condition of bail. If the defendant and alleged victim live together, which is common, the defendant must secure other living arrangements to fulfil this condition. Otherwise, he’ll be right back in jail.
Assault Elements in Georgia
Unless the defendant had a weapon and/or caused a serious injury, and these things are very broadly defined, prosecutors nearly always bring charges under Section 16-5-20 of the Georgia Code. A misdemeanor assault is defined as:
- Attempting to inflict injury on someone else, or
- Placing a person in fear of injury.
Note that a physical injury, such as a red mark or a black eye, is not a requirement. In fact, physical contact is not required either. Raising your hand, and perhaps even raising your voice, is enough to bring charges. A physical injury makes the case easier to prove, and if the alleged victim has a medical bill supporting the injury, it’s easier still.
A 16-5-20 offense is a misdemeanor of a high and aggravated nature (maximum twelve months in jail and/or $5,000 fine) if the incident occurred between people who are related by blood or marriage or, in some cases, current or former dating partners or roommates. The non-relationship categories are not charged very often, because the connection is difficult to establish. For example, two people need not be engaged to be “dating partners,” but there must be more than one or two encounters. These items are especially important when it comes to protective orders, as outlined below.
Section 16-5-21 of the Georgia Code is the aggravated assault section. Cobb County prosecutors will upgrade misdemeanor assault charges to felony charges if the assault defendant:
- Intended to commit rape, robbery, or murder,
- Used a deadly weapon and/or caused serious bodily injury, or
- Discharged a firearm from a moving vehicle (drive-by shooting).
Most aggravated assault domestic violence cases involve that second bullet. In general, a deadly weapon is any hard object, like a baseball bat, frying pan, lamp, or coffee cup. And, if the victim obtained treatment at an emergency room (not just went to the emergency room), the victim probably sustained a serious injury.
Collateral Consequences of Domestic Violence Assault Cases
Many alleged victims seek protective orders under Section 16-5-90. Most domestic violence assault complainants qualify for protective orders, since nearly all cases involve persons related by blood or marriage. Things get a bit tricky if the two people were roommates or dating partners. A Georgia protective order can include a wide variety of remedies, including orders that:
- Prohibit contact between the alleged victim and alleged abuser (this requires the alleged abuser to move even if the alleged abuser’s name is on the lease or mortgage),
- Require the alleged abuser to provide alternate housing for the alleged victim,
- Award temporary child custody to the alleged victim, and
- Require the alleged abuser to attend classes.
Protective orders have serious consequences, particularly if there is an ongoing or subsequent family law proceeding.
Additionally, if a child under 18 witnesses the assault, Cobb County prosecutors might bring Section 16-5-70 third-degree child cruelty charges against the alleged abuser. Such charges often mean, at the minimum, a social services investigation. At that point, the county may or may not try to remove the child from the home.
A defense attorney can help in both these situations. If the alleged victim files a protective order, an attorney can often negotiate a solution out of court. And, child cruelty charges are difficult to prove. Prosecutors must prove that the defendant intentionally allowed the child to witness the act.
Defenses to Domestic Violence Assault in Marietta
The old spousal privilege days, in which alleged victims could voluntarily drop charges against alleged abusers, are gone. Nevertheless, assault cases often involve both procedural and substantive defenses.
Procedurally, the court’s subpoena power only extends for 150 miles. If the complainant moves beyond the subpoena jurisdiction, the complaining witness may be unavailable for trial. And in assault prosecutions, if there is no complainant, there is normally no case. In these situations, prosecutors often try to use the hearsay rule’s excited utterance exception to admit pertinent parts of the police report. But alleged victims usually made these statements several hours after the incident. That time delay may torpedo the excited utterance exception.
Substantive defenses, like self-defense, are also available. In general, this defense is available if the defendant had any wounds and used a proportional amount of force. Because of the aforementioned juror sympathy element, self-defense is not easy to establish in domestic violence cases.
Contact a Dedicated Lawyer
Complex domestic violence assault cases require a targeted approach. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We are available for assistance 24/7/365.