If you’re arrested for a family violence or domestic violence charge in Bexar County, there are common mistakes that people make that make it harder to get their cases dismissed.
1. Talking
Talking to officers or other people can hurt your case in two ways. First, an officer has to have probable cause to arrest you for an offense. Basically, that just means that they have to believe that you probably committed the crime they are charging you with. If you are being accused of committing a family violence charge, like assault or terroristic threat, don’t talk to the cops. You have the right to remain silent and you have the right to an attorney, and you should exercise those rights. When the officer starts asking you any questions, demand an attorney, tell the officer you’re not answering any questions, then don’t say anything else. When the officer asks you what happened, he is listening for any admissions that you make, and he will try and twist any answers around to make it sound like you’re guilty.
Second, your statements can be brought into court and used against you. Generally, statements that are made outside of court are called hearsay and can’t be brought into court. Statements made by the defendant can be brought in though and used against you. Any admissions that you make will be used against you in court. Even if you say that you hit someone because they hit you first, they can use your admission that you hit the other person to try and convict you and say you were lying about the other person hitting you first.
You should also avoid talking to anyone else about your case. Your conversations with your attorney are privileged, which means that a court can’t force me to testify about what a client of mine said. In family violence cases, there are no other privileges for communication. In other types of cases, there is a spousal privilege, which means the state can’t force your spouse to testify against you. In family violence cases, there is no spousal privilege.
2. Hiring the Wrong Attorney
If you’re charged with a family violence case, you need an attorney who regularly handles these types of cases in the court that your case is going to be in. Many people either hire whichever attorney they know (from a previous divorce or bankruptcy) or let the court choose your attorney for you.
This is not the time to hire someone that dabbles in criminal defense. You could end up in jail and this charge could follow you around for the rest of your life. When you are hiring an attorney, make sure that the attorney regularly handles these types of cases and have a plan for getting a good result.
If you don’t hire an attorney or can’t afford one, the court will appoint an attorney to represent you. I am in court almost every day and I see attorneys regularly recommend that their clients accept the state’s offer on the first setting. For a misdemeanor in Bexar County, an appointed attorney only makes $180. There’s only so much time an attorney can spend on a case and still have it make sense to accept $180 for a case. There are certainly some good attorneys that take appointments, but most likely you’re getting a pretty new attorney or one who has so many clients that they are going to spend much time on your case. It’s also important that you have an attorney that you trust. When you hire an attorney, you get to choose an attorney who you trust.
3. Taking a Plea at the First Setting
I rarely recommend that a client take an offer on a misdemeanor family violence case. I have never recommended that they take an offer at the first setting. Even if a case looks bad at the first setting, the case may ultimately end up being dismissed. We also probably haven’t received all of the evidence on the case. There’s probably still some video, pictures, or report that we haven’t received yet.
If you take the offer at the first setting, it’s almost impossible to undo that plea and it could set you up from not successfully completing probation and for this charge to follow you around for the rest of your life.
4. Not Knowing the Consequences
The consequences in a misdemeanor domestic violence case are more severe than any other misdemeanor. In addition to the maximum jail time, the judge will also likely make a finding of family violence whether you plea or if you’re found guilty at trial. A finding of family violence has four huge impacts.
First, you cannot have your criminal record cleaned up. In most of these cases, the state will offer deferred adjudication. Usually deferred adjudication is a good deal, because after you complete probation, you can have your record sealed. In a family violence case, you can never have your record sealed. This means that this charge will always show up on background checks and may keep you from getting the job or the housing that you want in the future.
Secondly, if you’re ever charged with family violence in the future, that charge can be enhanced to a felony. A domestic violence charge, which would normally be a misdemeanor, can be upgraded to a felony if you’ve been convicted of family violence or had deferred adjudication on a family violence case.
Third, you will never be able to own or possess a firearm again. There are state and federal laws that prevent a person from owning or possessing a gun if there’s been a finding of family violence. For some people that’s not a big thing, for others it is, but you should be aware of it either way.
Lastly, if there’s ever a custody case, a judge can hold a family violence finding against you when deciding whether or not to grant you custody of your child.
If you have any questions about these mistakes or if you’re being charged with a family violence case call me at (210) 900-2806 or click below to schedule a FREE consultation.
Sean Henricksen Law Firm
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