A Critical Decision

Reports of domestic violence are taken very seriously. When responding to a domestic violence call, it can be difficult for law enforcement to know who is the victim and who is the abuser. Nevertheless, responding officers often make an arrest to prevent further violence from taking place. Being arrested for domestic violence can result is some serious consequences, so it is crucial for responding officers to identify and arrest the dominant aggressor. The dominant aggressor is defined as the person who is determined to be the most significant aggressor, which may or may not be the initial aggressor. In making such a determination, the police will consider how to best protect the alleged victim from continuing violence, the threats between the two parties, the history of domestic violence between the two parties, and whether either party was acting in self-defense.

Police officers are highly trained in how to respond to domestic violence responses according to protocol. Domestic violence incidences can be highly volatile; this is especially true when it is not clear who the dominant aggressor is. So, how does law enforcement know whom to arrest? It all starts with the domestic violence report. Many domestic violence reports are taken from 911 calls either from the victim or witnesses. These calls are recorded and can be used later in the case to identify the perpetrator. Once law enforcement responds to a domestic violence 911 call, the officer(s) must investigate the incident. This typically involves a combination of visual observations as well as questioning the parties involved and the witnesses. Sometimes it's clear who the dominant aggressor is, and the decision to arrest that person is easy.

In cases where it isn't clear, police will do their best to identify who they need to arrest. If it is evident there was mutual violence, they will typically attempt to identify who the dominant aggressor was and arrest that person.  Law enforcement should also inform the alleged victim of his or her right to make a citizen's arrest.

Police do not have to automatically make an arrest without probable cause. Most agencies have a policy, however, for when arrests are mandatory. When responding to domestic violence calls, police typically must make an arrest with or without a warrant if there is evidence that an assault or other violent offense or violation of a protection order has occurred in the last four hours. The police officer does not have to witness the offense.

In most cases, however, that evidence is present, and the police will make an arrest. These mandatory arrest policies are said to serve many benefits including ensuring no further violence will occur and to give both parties time to “cool off” after the altercation. Unfortunately, the person who is arrested faces lasting consequences of having a domestic violence arrest on his or her record.

Fortunately, you can petition (i.e. ask) the law enforcement agency that arrested you to seal your arrest record if you were never convicted of a crime. If the agency finds you factually innocent, it will seal the record of your arrest, and the record along with that of the petition will be destroyed after three years. Once your arrest record has been sealed, such parties as employers, rental agencies, or lenders cannot access it. You cannot ask the agency to seal your arrest record, however, if you suffered a conviction.

If you were arrested for a domestic violence offense, you should speak with an experienced California domestic violence defense attorney immediately. Just because you were arrested doesn't mean you will face charges or will be convicted. It is important to remember that an arrest is not a conviction. You should speak with an attorney about how to proceed in your particular case. An attorney can advise you on what you can to do if you believe the arrest was unlawful and what you should do if you are now facing charges. Your attorney can also help you petition the law enforcement agency that arrested you to seal and destroy the record of your arrest if you are found factually innocent.

The consequences of a domestic violence arrest are significant, but those for a domestic violence conviction are life long. If you find yourself facing charges for a domestic violence offense, you have a lot more than an arrest record to worry about. You could be facing jail time, steep fines, and a bevy of other consequences of a conviction. For this reason, it is vital to have an attorney help you with your defense.

Are you facing domestic violence charges and worried about the consequences? If so, contact attorney Christopher Martens and his legal team for expert counsel. Experienced in domestic violence defense, our Visalia area legal team can advise you of your rights and help you achieve the outcome you want. With over ten years of criminal defense experience, Christopher Martens will aggressively defend your rights at trial and help you get the outcome you want. Call our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] for a free consultation.