Any time the police respond to a domestic violence call, they are duty-bound to arrest the aggressor. They very often do this on the basis of the size of the parties involved in the dispute and any visible injuries. Often, there may not be any visible injury, but the physically larger person will be taken to jail.
In addition, even if the person who called in the incident or the victim doesn’t want it to happen, the police will often issue a restraining order preventing the aggressor from talking to or coming within 100 feet of the victim.
It doesn’t matter whether the people in question live together or not. The law enforcement agencies and the District Attorney’s offices are allowed to exercise this discretion to protect victims and potential victims.
If you find yourself accused of domestic violence, you will probably be taken to jail immediately after the police arrive on the scene. They will ask you what happened. They will advise you of your rights, most importantly the right to remain silent and the right to have a lawyer present when they question you, whether or not you can afford one. In my practice, the most difficult thing is defending someone who has given a statement to the police admitting wrongdoing.
Here’s my advice for those accused of domestic violence: Do not say anything to the police; they are not your friends. They are not trying to help you when you are the accused. They are trying to build a case against you so that you can be effectively prosecuted for your crimes.
Exercise your right to be silent and say nothing. The police will keep you in custody either until you can post bail or for up to 48 hours. The law requires an accused person to be brought before a judge within two court days to be arraigned. That means that a judge will inform you of the nature of the charges with which you are accused. You have the right to have a lawyer represent you from this point forward.
In every county, the court must appoint attorneys to represent those people who cannot afford to hire a lawyer. The court will give you time to hire a lawyer if you choose to do so. Even if you think your case is very straightforward, it is often worthwhile to speak to an attorney in order to understand your rights. A competent attorney can often find ways to have your case dismissed or can get you a better disposition.
The criminal justice system can be frightening and confusing. Getting a good lawyer is very important to ensure that you protect your rights.
Naresh Rajan is a graduate of Santa Clara University’s School of Law and an attorney in San Mateo County. Email firstname.lastname@example.org