Sam J. Polverino Attorney at Law  - San Jose Criminal Defense 
Located at: The Singletary Mansion, 1565 The Alameda, Suite 100 | San Jose,  CA  95126
Phone: (408) 295-3330 

Domestic Violence
DOMESTIC VIOLENCE LAWS IN CALIFORNIA
In the state of California, assault or battery against any person is a crime, but when the assault or battery is directed toward a family member, spouse, romantic partner, fiancé, child or an elderly person, then special laws apply. Sam J. Polverino is an informed, experienced, and dedicated attorney who can guide you through the process of dealing with a domestic violence charge.
TYPES OF DOMESTIC VIOLENCE
A domestic violence charge can be a felony or a misdemeanor. The most common form of domestic violence is an allegation where a person has a dating relationship with another. This can include a spouse, boyfriend, girlfriend, or significant other. What distinguishes "domestic violence" from a "battery" is the use of force causing a "traumatic condition" as defined in California Penal Code section 273.5. A "traumatic condition" is an injury of a minor or a significant nature caused by a physical force. Merely raising one's voice or yelling at someone is not domestic violence. It may constitute some other crime but it is not domestic violence. Also, the fact that an individual has in some way struck or battered their partner or other relative does not necessarily mean their case is lost.
Domestic violence charges have become more prevalent over the last several years primarily because grant money directed at this offense has become more available to prosecutors.
More often than not, the person arrested for domestic violence will have made a statement to the police; this statement is often used against them. There is a misconception about the Miranda rule that anything one says to the police officer requires this admonition. This is not accurate.
The key to domestic violence cases is retaining a lawyer early. Domestic violence cases are the type where a lawyer can intervene and persuade the prosecutor not to file or to dismiss the case under certain circumstances. If filed as a felony, reduction to a misdemeanor is often achievable. It is often the case that an individual is arrested on a felony but after review by the district attorney, the case is rejected or issued as a misdemeanor. Even though a case is issued as a battery, it can still result in punitive consequences which should be discussed with a lawyer well versed in this area of the law.
 
There are a number of types of domestic violence which can be charged by the prosecution. They include:
 
Corporal Injury to a Spouse or Cohabitant (Penal Code section 273.5):
It is illegal for any person to willfully inflict bodily harm or injury to a spouse, former spouse, cohabitant, or the mother / father of his / her child that consists of corporal injury resulting in a traumatic condition. A person can violate this law by striking his / her partner and causing visible injury. This charge can be a felony or a misdemeanor.
 
Criminal Threats (Penal Code section 422):
It is illegal for any person to willfully threaten to commit a crime that could result in death or serious harm to another person. Many people are not aware that this crime can be charged even if there is no intimate relationship between the defendant and the victim. Criminal threats are serious allegations that can result in "strikes;" however, it can also be one of the most difficult charges to prove. A claim of "criminal threats" can be reduced to a misdemeanor or other less serious charge. These allegations can be dismissed where there is a failure of proof. Often the lack of a prior criminal record and a showing of good character make a major difference in the outcome.
 
Battery (Penal Code section 243(e)(1)):
If a battery is committed against a spouse or a person with whom the accused is involved in a dating relationship, the prosecution will frequently charge the offense as a battery. A battery is any offensive touching if done in a rude or angry way. But these types of cases are often defensible. Among the applicable defenses is self-defense. Battery does not require an injury. A battery is punishable by a fine and imprisonment up to one year, or both.
 
Child Abuse / Child Endangerment (Penal Code sections 273(d) and 273 (a)):
It is illegal for any person to willfully inflict harm on a child or minor. This charge can also be filed against a person accused of committing an act of violence if the minor or child is nearby when the violent act occurs. However, the law does permit persons to administer "reasonable discipline."
 
Elder Abuse (Penal Code section 368):
Elder abuse is considered a domestic violence crime. Anyone who inflicts physical harm or emotional abuse, neglect, endangerment, or financial fraud against a victim 65-years or older can be prosecuted under this law.
 
The state of California has enacted preventive measures to protect its residents from falling victim to domestic violence. But some of these measures have unintended consequences. Some people are wrongfully accused of serious crimes and suffer life-altering consequences. Prosecutors make the final decision regarding prosecution but they are often influenced by the victim's wishes who may want to "drop the charges" or recant their accusations.
No one thinks about the technicalities of domestic violence when you are in the heat of a disagreement and emotions are running high. For example, in some divorce cases, it is not uncommon for one party to falsify a claim of domestic abuse in order to gain the upper hand in child custody proceedings. Unfortunately, police or law enforcement agencies may not spend the time necessary to carefully analyze the evidence, survey the scene, or initiate further investigation to include alternate explanations for the claims. In some cases, the person making the accusation is actually the original aggressor.
 
The emotional nature of a domestic violence case requires a sensible examination of the motive of the aggressor. It also requires thorough knowledge of the nuances of the domestic violence statutes and the defenses available. To protect yourself, you should to consult with an experienced and effective attorney. Sam J. Polverino can defend you and protect your rights. He understands how devastated you may feel when facing criminal charges, especially when money, custody, alcohol or ulterior motives pertaining to damaged relationships are at the heart of the accusations. An experienced lawyer is essential to successfully defend domestic abuse charges.