Any couple who is in a serious relationship will have disagreements at some point, and sometimes, emotions can get the better of people and lead to loud shouting matches. While these incidents are unfortunate, and probably not the best representative moments of a relationship, having an argument does not automatically translate into physical violence. Being accused of domestic violence is a very serious and damaging claim and requires a vigorous response by an experienced criminal defense attorney. People tend to assume these charges are true, and treat the accused as if he/she was found guilty. An assemblyman in California is facing this situation as three State Republican officials are pressuring him to resign and fold his campaign in the wake of domestic violence allegations from his wife. Assemblyman Roger Hernandez is in the middle of a divorce, and his wife is seeking a restraining order after claiming over 20 violent incidents during their three-year marriage. Having this charge leveled against you can be very overwhelming, but understanding how the law views domestic violence and the restrictions imposed with restraining orders may make moving through the ordeal a little easier.
What Is Domestic Violence?
When someone makes an allegation of domestic violence, California has several provisions in thepenal code a prosecutor could use to bring charges. The first is battery, which is the “willful and unlawful use of force or violence” against another person. The maximum penalty for this offense is a $2,000 fine and/or six months in the county jail. If the prosecutor decides to elevate the charge to one involving violence against a spouse or partner, the possible penalties include fines up to $2,000 and one year in county jail. Alternatively, if the sentence is for probation, there is an automatic condition that the defendant attend a one-year batterer’s treatment program. If the prosecutor chooses to charge a defendant with battery that resulted in serious bodily harm, the sentence is a minimum of one year in jail. Finally, there is an offense for corporal injury to a spouse or partner that is used when the allegations include claims of causing internal and external wounds that carries a sentence of one year in jail and/or a fine up to $6,000 if charged as a misdemeanor, or two to four years in state prison if charged as a felony.
How Do Restraining Orders Work?
Typically, when someone is accused of domestic abuse by a family member, there is also a corresponding petition filed asking for a restraining order. A restraining order essentially limits the ability of a person to interact with a specific individual, and is granted if the petitioner can show there is a threat of or previous abuse. Further, in the context of domestic violence, in order to be eligible to ask for this restraint, the individual filing the petition must be married, living together, divorced, separated, dating, share a child or be related as an in-law through a current marriage to the person named in the petition. Abuse can cover a wide range of behaviors and includes written and spoken communications as well as physical altercations. The primary actions a restraining order will address include:
- requiring the accused to move out of the shared home;
- imposing child and spousal support;
- setting out who gets possession of certain property, such as the family home and car;
- prohibiting contact between the accused and accuser, and any family members that reside with the accuser; and
- blocking the accused from possessing guns or ammunition.
These orders are issued on temporary basis within one business day of filing a petition and remain in effect until a hearing to determine if the order will continue. The court can extend the order up to five years, and if the order is violated, the restrained person can be arrested and charged with additional crimes.
Talk to a Criminal Defense Attorney
Being accused of a crime is a serious situation that requires swift and forceful defense by a seasoned criminal defense attorney who knows how to protect your rights. The Manshoory Law Group, APC, located in Los Angeles, works to bring the best possible results for their clients and can help you with your legal problems. Contact us for a free consultation.