Domestic Violence Charges Misdemeanor or Felony

When I get a call from someone who has been arrested for domestic violence, they often tell me that they were arrested for “Felony” domestic violence. What they don’t understand is that arresting agencies typically will call it a felony at the time of arrest, but it is up to the District Attorney whether or not they will file it as a felony or a misdemeanor.

As mentioned above, domestic violence can be filed as either a misdemeanor or a felony. When the district attorney is deciding how to file the case, they will look at the circumstances surrounding the incident, the relationship between the accused and the “victim”, the criminal history, if any, of the accused and the severity of the injuries, if there were any.

One of the more common arrests for domestic violence is for Penal Code 243(e). It involves battery upon a spouse, co-habitant, etc. This is a misdemeanor domestic violence charge. Another more common charge for domestic violence is Penal Code Section 273.5. This is a “wobbler” and can be filed either way. Arresting agencies typically will arrest a suspect for felony 273.5 but once it reaches the district attorney, will be reduced to a misdemeanor.

Penal Code section 245 is one of the more serious domestic violence charges. This is a criminal charge that is considered a serious and violent felony and not limited to domestic violence cases. A conviction of this charge could result in a strike and could increase the sentence in the present case, as well as any future cases. Even though this is a felony charge, it can be reduced to a misdemeanor.

Unfortunately, it is not uncommon for someone to be falsely accused of domestic violence when in fact it was just an argument that escalated and got out of control. Especially where alcohol is involved. For example, a common situation might be that a couple, who have been drinking get into an argument. Due to the consumption of alcohol, both parties are not rational and the argument escalates. One party decides to take the keys and leave. The other party tries to stop them from leaving by trying to take the keys away. As they are struggling over the keys, one party falls to the ground. Now, if the police get called out, the story will be told this way: “My boyfriend and I got into an argument. I tried to leave but he stopped me and tried to grab the keys from my hand and when I wouldn’t let go he pushed me to the ground. But, the real story is that he tried to stop her from leaving because they had been drinking and she was about to get into her car and drive off, while intoxicated.

Another scenario that I have come across is where an argument starts, my client attempts to leave and the woman he is arguing with tries to stop him from leaving by holding on to him. The male pushes her off of him so that he can leave, and she falls to the ground. My client leaves and drives away. Because the woman was so emotional and/or angry, she called the police and reported that he had pushed her down following an argument. Next thing he knows, he’s being arrested for domestic violence.

Many times, those types of cases become “he said/she said” and, if there are no visible marks on either party, the District Attorney will reject the case as it is just one word against the other.

But, any time there are visible marks on a person, the police agency will always arrest and the District Attorney will more likely than not, file the charges. Depending upon how serious the injury is will determine whether it is filed as a misdemeanor or a felony.

If you would like to know more about domestic violence and the consequences of being convicted of a domestic violence charge, visit my domestic violence site.