Criminal Defense Q&A: If the Victim Contacts the D.A., Will the Domestic Violence Charges Go Away?

Say that, after an argument, one person calls the police and tells them that she was struck by her boyfriend. After things cool off, can the caller go to authorities and ask for the charges to be dropped?

Question:

Will it make a difference if a victim talks to the DA to say the battery was a misunderstanding? My friend has been a victim of DV twice with the same person. Recently, she called the cops and said he pushed her. However, she said that she was taking Zoloft and was crying for everything and was taking things out of proportion. Now, she doesn’t want him to get time for something that was really nothing. Will they drop charges if she goes to explain the situation to the DA or will it make things worse? For her or for him or both? There was also a DV court order as well but they got kids together.

Answer:

Even if the alleged victim chooses to speak with authorities, much depends on the evidence that the police and prosecutors already have against the accused.

For instance, the prosecutor can confront the alleged victim with past statements that she gave to police regarding the incident in question. Or the prosecutor can ask the alleged victim about prior incidents of domestic violence between the parties. Evidence Code section 1109(a)(1). Or the prosecutor can show photos of any injuries that the alleged victim sustained or play the call that she made to 911 immediately after the incident.

All of this can serve to neutralize an alleged victim’s after-the-fact statement recanting her original statement.

If the incident occurred while a criminal protective order was in effect, then the accused may be also face a charge for violating a restraining order, which is a misdemeanor punishable by up to 1 year in jail, up to a fine of $1,000, or both jail time and the fine. See Penal Code §§273.6(a), (c); 166(c)(1).

Contacting an alleged victim while a restraining order is in effect is a violation — even if she invites the restrained person to contact her. This is because only the Court can modify a restraining order, not the alleged victim. See Penal Code §13710(b).

It would be prudent for the accused in this matter to retain and consult with a criminal defense attorney, especially if he has been involved with prior incidents of domestic violence.

A first-time DUI conviction results in a driver’s license suspension of six months. California Vehicle Code 13352(a)(1). A restricted license, once obtained, lasts for five months. See California Vehicle Code section 13353.7(a)(3).

Reading other criminal defense attorney answers at Avvo: Will it make a difference if a victim talks to the DA to say the battery was a misunderstanding?