Arrested on Domestic Violence Charges? The Process, Explained
Did you know that if you are arrested for domestic violence, you will likely spend a night or two in jail? Even if you don’t get convicted, you will spend time in jail after your arrest while waiting to see a judge.
Domestic violence charges are very serious and could result in fines, jail or prison time, and orders to stay away from the alleged victim. If you are facing domestic violence charges, read on to learn more about what they entail, how domestic violence is defined, and the potential punishments you face.
What Is Considered Domestic Violence?
There are many different terms used for domestic violence, including spouse abuse, intimate partner violence, and dating violence. According to the North Carolina General Assembly, the term domestic violence encompasses a broad range of behaviors between many different parties.
Domestic violence in North Carolina is the commission of one or more of the following acts against a child or adult with whom the accused has a personal relationship:
- Attempting to cause bodily injury
- Intentionally causing bodily injury
- Placing the aggrieved party (the victim) or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress
A personal relationship is also broadly defined and includes:
- Current or former spouses
- Persons of the opposite sex who live together or have lived together in the past
- Parents and children
- Grandparents and grandchildren
- Those who have a child in common
- Those who are current or former household members
- Persons of the opposite sex who are in a dating relationship or have been in a dating relationship in the past
Dating relationships are defined as one in which the parties are romantically involved with each other on a continuous basis during the relationship.
What Happens if I Am Arrested for Domestic Violence?
Typically, law enforcement officers need an arrest warrant to arrest a person, however, there are some exceptions to this rule. For example, officers can make warrantless arrests in certain situations. If an officer witnesses a crime, they can make a warrantless arrest.
They can also make warrantless arrests for certain crimes that they don’t witness, including felonies (as long as there is probable cause) and some domestic violence offenses, which are most often misdemeanors. Officers can make a warrantless arrest if they have probable cause to believe that the following offenses occurred:
- Domestic criminal trespass
- Simple assault
- Assault with a deadly weapon or inflicting serious injury
- Assault by pointing a gun if a personal relationship exists
- Domestic violence protective order (DVPO) violation
There is also a requirement for a mandatory arrest of an offender when the officer believes that they have violated a DVPO that excludes them from the residence or household of a domestic violence victim.
The 48-Hour Rule
North Carolina also has something known as the 48-hour rule. This means that a judge, not a magistrate, must set the accused person’s bond and release conditions. For most offenses, a magistrate can set these conditions and release will be quick.
However, this rule means that if a judge isn’t available right away, such as if the defendant gets arrested on the weekend, they may have to wait up to 48 hours until a judge is available. Once 48 hours pass, a magistrate may set the release conditions, but not before that.
The 48 hour period begins from the time of the arrest. Once a defendant is released after a domestic violence arrest, typical release conditions include:
- No contact with the alleged victim, including at work, home, school, etc.
- No assault, harassment, or threats to the alleged victim
- Damaging or removing items from the victim’s property is prohibited
- Child visitation may be limited
- No alcohol consumption
Your first appearance before the judge will also set your future court dates, which you must show up for, or a bench warrant will be issued for failure to appear. The judge also may set a bond amount, depending on your prior record and the severity of the case.
If you can’t pay this, you will need to contact a friend or family member or a licensed bail agent. Once you are released, you can speak to an attorney about your charges and the best strategy for your case.
What Are the Penalties for Domestic Violence?
Most domestic violence charges are misdemeanors, but there are some instances where domestic violence will be charged as a felony.
Simple assault includes two different acts: an overt act or attempt and assault by show of violence. An overt act or attempt includes doing something or trying to do something that causes the person to be fearful of harm. This could include kicking, hitting, biting, or striking the victim.
Assault by show of violence requires three elements: the defendant shows that they have the ability to inflict the injury, their actions must be ones that would make a reasonable person fearful of harm, and the victim must take actions that they would not normally take as a result of the fear (for example, leaving a location because the offender is there or taking a different way home so the offender can’t follow them).
Simple assault is a class 2 misdemeanor in North Carolina and carries the potential for up to 30 days in jail for the first offense and up to 60 days in jail for a second or subsequent offense.
Assault With a Deadly Weapon
Assault with a deadly weapon is more serious can be charged as a misdemeanor or felony. Any assault, assault and battery, or an affray with a deadly weapon is a misdemeanor offense that could result in 30 days in jail for the first offense and 60 days in jail for second or subsequent offenses.
Assault with a deadly weapon is a felony when the victim is assaulted and the offender had the intent to kill or seriously injury them. If there was a serious injury or the intent to kill, it is a Class E felony, which could result in 15 to 31 months in prison.
If both elements are present, then it is a Class C felony, resulting in between 44 and 98 months in prison.
Assault by Strangulation
Assault by strangulation is a domestic violence felony charge. It is a class H felony, which could bring between 4 and 25 months in prison. To be convicted of assault by strangulation, prosecutors must prove that the offender committed an assault on the victim and caused an injury by strangulation.
Are You Facing Domestic Violence Charges?
If you are facing domestic violence charges, whether they are misdemeanor or felony charges, you should consult with a criminal defense attorney. Don’t try to navigate the process on your own. An attorney will be able to help you understand your rights, defend you in court, make sure that you receive fair treatment in court, and may even be able to advise you on how to drop your domestic violence charges.
If you find yourself in a situation where you are arrested for domestic violence and can’t afford your bail, contact us at Amistad Bail and Immigration Bonds. We are open 24 hours a day to serve you.