Prosecuting DV Cases
What Happens if the District Attorney Decides to Prosecute My Case?
Many people think that a victim can decide to "press charges" or "drop charges" in a criminal case. While victim’s feelings on this issue are very important – the evidence is the primary focus when determining whether a case can be prosecuted. If the police investigation shows that there is enough evidence to prove domestic violence charges beyond a reasonable doubt at trial, then those charges will be filed.
Charges / Arraignment
The charges supported by the evidence are filed with the court in a document called the Complaint. The defendant is arraigned on the complaint, which is a court appearance where the judge tells him or her what the charges are. At the arraignment, the court will also issue a Criminal Court Protective Order (“CPO”) which can require no contact at all between the defendant and victim during the prosecution or sometimes can be modified to allow for contact that is "peaceful." The judge will also decide if the defendant stays in custody during the prosecution, is released on bail or has other restrictions during this time. The defendant has the right to hire an attorney, or will be represented by the Public Defender's Office if they financially qualify.
If the case is a misdemeanor, it will usually be set for a pre-trial conference to see if the parties can reach a plea agreement. All plea agreements must be approved by the court. In a misdemeanor case, the penalties usually have a maximum amount of jail time of between 6 months and 1 year, but probation is granted in almost all cases. If the parties can’t agree on a plea agreement, the case may go to trial. Victims and witnesses will receive subpoenas (court orders) requiring them to come to court to give testimony.
If the case is a felony, it will first be set for a preliminary hearing where the prosecutor must show a judge that there is probable cause (a strong suspicion) to believe the charges are true and the defendant is the person who committed them. Victims and witnesses may receive subpoenas requiring them to come to court to give testimony, but sometimes a law enforcement officer can give that testimony on the victim/witness’s behalf.
If the judge agrees that there is probable cause, the judge issues a holding order binding the defendant over for trial on particular charges. A second arraignment is held and the new charging document filed by the prosecution is called the Information. The parties work to see if a settlement agreement can be reached in felony cases as well. A case can settle before or after the preliminary hearing and, as with misdemeanors – all felony plea agreements must be approved by the court. Felony cases can be punished by time in state prison, county prison or a combination of county jail and probation depending on the severity of the case and the defendant’s criminal history. Most felony plea agreements involve probation and county jail time.
Domestic Violence Probation & Court
If probation is granted in any case involving domestic violence (felony or misdemeanor), the law requires certain minimum terms which can be found in Penal Code Section 1203.097. These include:
- A minimum period of probation of 36 months.
- A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment and, if appropriate, containing residence exclusion or stay-away conditions. These orders can be valid for as long as 10 years and can be modified only by the court.
- A minimum domestic violence fee of $500.
- Successful completion of a 52 week batterer’s intervention program.
Probation terms are geared toward an offender’s rehabilitation and may contain additional terms intended to address triggers for violence such as substance abuse treatment/counseling and/or mental health treatment/counseling.
If at any time during the probation supervision period the defendant commits a new crime or violates any court-ordered probation terms (including the protective order) – a probation violation can be filed with the court. The defendant can get additional punishment that may include jail or prison time, modified protective orders, counseling/treatment terms and a longer term of probation supervision. The amount of evidence needed to prove a probation violation is less than what is needed to prove new charges at trial. Probation violations are decided by a judge at a hearing.
What is "DV Court?"
Offenders who are determined to be of moderate to high-risk of domestic violence re-offense under the Ontario Domestic Assault Risk Assessment screening tool (“ODARA”) or who commit the offense in the presence of a minor child are required to participate in the County’s special Domestic Violence Treatment Court ("DV Court").
In this court, the offender is assigned to a specially-trained probation officer and has to attend regular court sessions where progress in treatment programs can be monitored and supported. DV Court is also staffed by an experienced prosecutor and public defender. Any probation violations are handled there as well. Victims may attend DV Court in order to let the judge/probation officer know how things are going – including whether the offender is doing well in their programs, if there have been any violations of the probation terms or if there are any changed circumstances that the court should consider in deciding the scope of a protective order.
What Happens if the District Attorney Decides Not to File Criminal Charges?
The case can be reconsidered during the Statute of Limitations if more or different evidence is discovered.
Victims are also encouraged to seek resources and support through one of our community partners. These partners can often provide assistance with safety planning, shelter, support groups, restraining orders, family law issues, immigration issues, employment law issues, property owner-tenant issues, counseling, economic independence and more.