Domestic violence occurs when an intimate partner assaults, abuses, threatens, stalks or intimidates the other. Domestic violence typically occurs between a husband and wife, domestic partners, couples or same sex partners. Domestic violence can also involve children, siblings and others living in the home. My office routinely sees the following charges in domestic violence cases.
- Offensive Touching
- Criminal Mischief
- Endangering the welfare of a child
- Breach of release conditions
- Breach of conditions of bail
- Criminal Contempt (violation of a PFA Order)
A domestic violence prosecution usually begins with a call to 911 by the victim. When the police arrive, they question the victim and suspect and usually photograph any injuries to the victim. The suspect will then be arrested and brought back to the police station for processing. Bail will be set before a Justice of the Peace (magistrate) by video. Bail reform in Delaware has made the bail guidelines more stringent for domestic violence cases. You could be detained on bail depending on the facts of the case. Misdemeanor domestic violence cases will typically result in release on unsecured bail1. As a condition of bail, the judge will likely order “no contact with the victim” and exclude you from where the victim lives and works. If you live with the victim that means you cannot go home. If your kids live with the victim, temporarily you will not be able to see them. You must file for a bail modification as explained below. If the charge involves a felony, a secured bail2 may be required.
In addition to criminal charges, the victim may also go to court and seek a civil Protection From Abuse Order (PFA). The protection from abuse order may give the victim added protection and benefits such as ordering the Defendant to pay money for child support and rent, ordering temporary custody of children to the victim, and extending the period of time for “no contact.”Domestic Criminal Case Process
Misdemeanor domestic violence cases will be heard in Family Court. Felony domestic violence cases will be scheduled for a preliminary hearing in the Court of Common Pleas then proceed to Superior Court. For misdemeanors, your first court appearance in Family Court will be arraignment. After arraignment, you will receive a date for a Family court case review. A case review is an opportunity for you or your attorney to discuss a potential plea with the Deputy Attorney General. If the case cannot be resolved at case review, your case will be scheduled for trial. In Family court you are entitled to a bench trial. You do not have the right to a trial by jury in the Family Court.
A domestic violence case is not something to take lightly. Potential penalties could include
- A permanent criminal record
- Probation or incarceration
- Exclusion from your house
- Preclusion from visiting your children
- Anger management classes
- Parenting classes (if children are involved)
If children are involved, charges related to domestic violence could negatively affect any future custody proceedings. It is important to mount an effective and vigorous defense. After years of criminal practice, I have developed certain techniques and protocols for successfully defending domestic violence charges.* Many of my clients have their charges withdrawn or dismissed at trial or prior to trial.* It is my goal to have the client come out of the prosecution relatively unscathed with minimum impact on their life.Defending a Domestic Violence Case
Below are just a few techniques that I have used in the past to successfully* defend clients in domestic violence cases in Delaware.
Bail Modification Motion. Many clients will come to my office at an all-time low: excluded from their house, living in a hotel and unable to see their family. In appropriate circumstances a bail modification can be used to get my client back into the home and able to see family or kids. If you are excluded from your residence, precluded from seeing your significant other and/or precluded from seeing your children, you are entitled to file a motion to modify your bail. You could have the “stay away” order lifted. The judge has the right to modify the order to “no criminal contact.” This order would allow you to return home to live with your significant other and/or see your kids while the case is pending. However, if police are called for any further “criminal contact” with the victim, you could be jailed, have your bail revoked and/or face new criminal charges.
48(b) Motion for Dismissal. Some domestic violence cases may be dismissed at trial pursuant to Rule of Criminal Procedure 48(b). Typically, the victim is a necessary witness in a domestic violence prosecution. There could be third party witnesses or other forms of evidence that are sufficient to secure a conviction, but by and large, the victim must be present and willing to testify at trial. If the witness does not appear to trial, the defense can move for what is known as a “Rule 48(b) Dismissal.” This means that the case should be dismissed because there was an unnecessary delay in bringing the defendant to trial. This motion will be granted and the case likely dismissed if the victim does not appear. Do not contact the victim and encourage him or her to not show up to court or not testify. This is a crime. If the victim does not wish to testify the Attorney General may dismiss the case or make other arrangements.
Nolle Prosequi After Completion of Conditions. Many times, I will have my client complete conditions in exchange for a nolle prosequi or dismissal of the case. The case will be continued 60 to 90 days and my client will complete conditions such as an anger management course or parenting classes in exchange for a dismissal. Securing an agreement is a better outcome than being placed in the domestic violence diversion program or pleading guilty to the charge. If you are sentenced to probation, you could be violated and jailed for any future domestic violence incidents. By having the charge dismissed you are finished with the case and will not have a criminal record.
Aggressively Defend the Protection From Abuse (PFA) Civil action. In a PFA proceeding, a Family Court judge has authority to
- order a defendant to “stay away” from the victim the victim’s residence and place of work,
- order a defendant to not threaten harass, abuse or stalk the victim,
- award custody,
- make payments for child support or rent etc.
If the victim chooses to file for a PFA, the PFA “no contact order” may overlap or supplement the criminal “no contact order.” It is important to have effective representation in the PFA hearing. The PFA can often set the stage for future custody or divorce proceedings3. In defending a PFA petition, the following are examples of positive outcomes depending on the facts of the case:
- have the court dismiss the PFA petition after a hearing;
- have the victim’s attorney withdraw the PFA;
- have a generic “no contact order” entered without admission and without any additional conditions.
Contact Jason R. Antoine, Domestic violence defense lawyer if you or someone you love has been charged in a domestic violence related incident. It is important to meet with an experienced lawyer as soon as possible. You can set up a free consultation by calling (302) 482-4802.
1 Unsecured bail does not require that you to post any money. If you fail to appear, you would be responsible for the stated amount.
2 Secured bail requires the defendant to post bond in a specified amount to secure their court appearance. The defendant may have to use the services of a bail bondsman make the required bail.
3 My office does not handle custody or divorce cases. I do handle domestic violence criminal prosecutions and civil protection from abuse proceedings
* Past results are not indicative of results in future cases. Characterizing results in past cases can be subjective. Every case is different. You should consult an attorney prior to making any decisions about your case. Reading this web page is not a substitute for live legal advice.