Law Offices of Erik Steven Johnson

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The Truth about Domestic Violence

Sunnyvale Domestic Violence Defense Lawyer

San Jose Defense Attorney Reveals the Truth About Domestic Violence Cases

Innocent people are often prosecuted for domestic violence simply on the false accusation of the other spouse, partner or significant other. This can be done out of anger, suspicion and jealousy, or as a strategy to deny the accused child custody in a divorce proceeding in family court.

It is important to have an attorney immediately investigate such cases, contact the prosecuting attorney and litigate the issue early to prevent the filing of criminal charges. If charges are filed, all defenses must be examined and pursued, including:

  • Self-defense or defense of others
  • Mistake of fact or perception
  • Wrong suspect
  • Deliberate and intentional false allegations
  • Factual or legal impossibility

If the police are called to a home on an accusation, they will arrest someone. California law requires an arrest on the mere assumption by the police that some abuse occurred. You must act quickly to preserve your rights and avoid a conviction that could result in severe penalties, loss of job, jail and family.

Divorce And Child Custody

A charge of domestic violence can result in a "presumption" in family court that the accused is "an unfit parent," and that it is not in the best interest of the child to live with that parent. (Family Code section 3011.) What happens in criminal court may have a direct impact on a divorce and child custody fight.

A domestic violence conviction in criminal court may lead any of the following in divorce proceedings:

  • Loss of custody
  • Court-ordered supervised visitation or loss of visitation rights
  • Loss of spousal support (Family Code section 4325)
  • Restraining orders for up to 10 years
  • Exclusion from the family home
  • Court-ordered parenting and anger management classes.

Immigrants And Domestic Violence

For non-citizens, a conviction for domestic violence can lead to deportation and exclusion from readmission to the United States. As a result, this can tear up a family, a career and a life. We have successfully argued cases to avoid these potential consequences and to put people back onto the path to citizenship.

Professional Licenses

Domestic violence charges are "crimes of moral turpitude" and can lead to a loss of professional license. Doctors, nurses and other professionals must fight accusations of domestic violence to avoid losing their rights to practice their chosen professions. You may have the right to an administrative hearing, but need to act immediately to preserve your rights.

The Law Of Domestic Violence

California law allows for the prosecution of domestic violence under many different scenarios. Many such crimes may be charged as misdemeanors or felonies and include the following:

Penal Code section 273.5: Willful infliction of corporal injury. This can be charged as a felony offense punishable for up to four years in prison or as a misdemeanor with one year of county jail. In such cases, the prosecutor must prove that the victim sustained a "traumatic condition," as a result of the defendant's physical conduct.

Penal Code section 243(e): Domestic battery. This is a misdemeanor offense and punishable for up to one year in county jail. The prosecutor has the burden of proving that the defendant touched the victim in a harmful or offensive manner.

Penal Code section 646.9: Stalking. This can be charged as a misdemeanor or a felony. If the prosecutor can prove that the stalking was done when there was a restraining order in effect, the charge can be punishable for two, three or four years in state prison. It can also be charged as a strike offense.

Penal Code section 422: Criminal threats. Any threat to commit a crime that may result in death or great bodily injury can be charged as a misdemeanor or felony. As a felony, it is a strike offense pursuant to California Three Strikes Law.

Penal Code section 273a: Willful harm or injury to a child. As a felony, this can result in a prison term for two, four or six years.

Penal Code section 136.1(b): Intimidation of a witness. It is illegal for one spouse to "knowingly and maliciously" dissuade the alleged victim of a domestic violence from calling the police or otherwise making a police report. As a felony, this crime is punishable up to three years in state prison.

Tireless Representation in Santa Clara County, CA

Attorney Erik Johnson brings his years of experience to each and every case. Contact our Santa Clara County office at 408-246-3004 to let the Law Offices of Erik Steven Johnson get to work defending your rights through this extremely stressful experience.

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