A bodily injury is any physical injury to the body. Many victims will allege mental or emotional abuse but that is not a crime—physical abuse is required. Willful means deliberate or on purpose. A “true” accident does not constitute a willful act. A traumatic injury, is a wound or other bodily injury whether, minor or serious. The key here is there must be some visible injury on the person’s body.
How does a DV case typically happen? Generally it starts with a heated argument that becomes physical. The complaining party (or a neighbor) calls the police and the police arrive at the scene. Officers take a statement from the accuser and the accused (if the person decides to speak). They examine the accuser to see if there are any physical injuries and photographs will be taken. They then take reports, confiscate guns (if present) take photographs of the scene and/or injuries. The documentary reports and evidence are then forwarded to the prosecution.
The prosecution determines based on the criminal history, seriousness of injury, and other factors what criminal charges are to be filed. If the injury is not visible, a lesser serious domestic violence of Penal Code 243(e)(1) can be filed.
The consequences of a DV conviction can be severe. PC 273.5 is a wobbler, meaning the prosecution can file the charge as a felony or a misdemeanor. The next question for the accused then becomes, how do I fight a DV charge? Allegations of DV can very difficult for the prosecution to prove. Many times, there was a mutual combat/struggle and the defendant’s actions are excusable under rules of self-defense.
In the course of a heated argument and struggle, it is not uncommon to strike someone or push someone by accident. When you accidentally injury someone, absent the necessary criminal intent or extreme recklessness, you have not committed a crime. False accusations and wrongful arrests occur regularly in the DV context. Some victims may have a motive to lie. A good defense attorney will do the proper investigations to see if any of the possible defenses are present.
What if the accuser wants to drop the charges? The answer is it is up to the prosecution not the complaining party. Once the police are called, the accuser is a witness and the prosecutor has the power to decide whether to proceed. The prosecution will continue so long as they believe the crime was committed and they have evidence to prove the charge. If the accuser is not cooperative, it may assist the defense in getting a better “deal.”
What if the accuser does not show up in court? The prosecution can compel a witness upon showing to the court that the witness was personally served with a subpoena to appear or the judge ordered back the witness to court. If he/she fails to appear, a bench warrant may be issued. What if the accuser goes to court and denies that anything happened? It is not uncommon for witnesses to recant prior statements. There are legal means that allows the prosecution to get the “prior statement/testimony” into evidence.
In Nevada, DV cases cover a broader scope. Under NRS 200.485, Nevada prosecutors can file charges in cases of alleged abuse between any family members, including cousins, and even when the alleged victims shows no sign of physical injury. In contrast, California Penal Code 273.5, applies to more “intimate” relationships.
Immigrants are subjected to deportation of DV crimes. A DV conviction is specifically enumerated as a deportable crime. It may also be classified as an aggravated felony (even when charged and sentenced as a misdemeanor). It also counts as a crime involving moral turpitude. It is especially critical for non-citizens to consult a criminal defense attorney who has extensive experience dealing with domestic violence criminal cases and immigration issues. An attorney versed in both subjects knows that the best way to resolve the case in order to avoid imprisonment and deportation.