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In other words, if there is not enough evidence to make an arrest, the fact that the victim is asking for arrest is not enough. Also, thinking about how the parties are related is not relevant, if there is no probable cause for an arrest. If both parties claim to be the victim, then the officer first has to identify the primary physical aggressor, considering:
Courts can order any of the above terms as bond conditions, subjecting an accused person to severe restrictions before they have even been convicted of any domestic violence charges. That seems like the opposite of ‘Innocent Until Proven Guilty’, but if you do not follow those conditions, you are violating the protective order and can be charged with a separate crime.
Experienced Atlanta Domestic (Family) Violence Defense Attorneys
The Atlanta Criminal Defense Team Vigorously Defends Against Domestic Violence AccusationsWhen people hear the phrase Domestic Violence, or Family Violence, they tend to picture a relationship with constant mental and physical abuse. In reality, it takes very little to be arrested for a domestic violence offense. Typically, a small argument can quickly escalate to a domestic violence arrest. And although a lot of domestic violence charges are misdemeanors, courts take them very seriously and often impose harsh sentences. When you have a pending domestic violence case, do not hesitate to protect yourself and your reputation. Hire the Atlanta Criminal Defense Team because we have the best domestic violence defense lawyers in Atlanta.
Georgia’s Family Violence Act: What are Domestic Violence Charges?Many people think that only those in romantic relationships (boyfriend and girlfriend or husband and wife) can be charged with a domestic violence offense; however, that is not true. In order to lawfully arrest and charge a person with any domestic violence offense, a two-part analysis must be completed. First, the accused and the victim have to be in a specific type of relationship. Second, only certain offenses fall under the purview of the Family Violence Act.
Defining the Relationship
Georgia’s Family Violence Act applies when the victim and the accused are:
- Have a child (or children) together
- Parent and child
- Step parent and step child
- Foster parent and foster child
- Currently living in the same household; or
- Previously lived in the same household
Determining the Offense
Georgia’s Family Violence Act applies to the following offenses:
- Simple Battery
- Simple Assault
- Criminal Trespass
- Criminal Damage to Property
- Any Felony Offense
Example of a Family Violence Charge
Male and female were in a relationship and lived together, but recently broke up because the female found out she was pregnant, which led to a lot of disagreements between them. The male was gathering the last of his things when they got into an argument. During that argument, the female grabbed a kitchen knife and, while waving it around, told the male she was going to cut him. She never actually touched him with the knife and no one was physically hurt during this argument. However, the male reported this incident to the police and the female was arrested on a domestic violence charge. Her arrest is lawful because the male and female previously lived in the same household and the female committed an assault when she waved the knife around and threatened to cut the male.
Example of a Battery Charge that is NOT Family Violence
You and your cousin get into a heated debate about politics over Thanksgiving dinner, which quickly devolves into a screaming match. Before you know it, your cousin comes around the table and punches you in the face, so you call the police. The police interview all the witnesses and arrest your cousin for Family Violence Battery. Even though your cousin committed the offense of battery by punching you in the face, his arrest for Family Violence Battery is unlawful because your relationship is not included in the Family Violence Act. Therefore, your cousin’s charge should be amended from Family Violence Battery to Battery.
How the Police Conduct Domestic Violence Investigations and Make ArrestsThere is a section in the Georgia Code that specifically addresses police investigations of domestic violence incidents and the arrests that follow. When an officer responds to a domestic violence call, that officer cannot make an arrest only because:
- The victim requests that an arrest is made; or
- The victim agrees with an arrest being made; or
- The relationship of the parties.
- Whether there are prior family violence incidents involving either party;
- Which person appears to have worse injuries;
- How likely is either party to injure the other in the future; and
- Whether one of the parties acted in self-defense.
Once the primary aggressor is identified, the officer does not have to arrest anyone else, even if they committed an act of family violence during the incident. Every police officer that investigates a domestic violence case is required to write a Family Violence Report, even when no one gets arrested. At a minimum, each Family Violence Report has to include the following information:
- Name of the parties
- Relationship of the parties
- Sex of the parties
- Date of birth of the parties
- Time, place, and date of the incident
- Whether children were involved in, or witnessed, the incident
- Type and extent of the alleged abuse
- Existence of substance abuse
- Number and type of weapons involved
- Existence of any prior court orders
- Type of police action taken, reasons for officer’s determination of the primary physical aggressor, and mitigating circumstances why no arrest was made
- Whether the victim was apprised of available remedies and services
Because the police keep written reports of all domestic violence calls, they have access to your personal information and details about what happened for years after the incident. So, even if you are lucky enough not to get arrested that time, if the police are called out again, you are most likely going to jail. Not to mention the fact that these records are available and can be used against you in other proceedings, like during a divorce or child custody hearing.
Family Violence Protection Orders and the Reasons You Should Not Violate Them
With these orders, the Courts can:
Courts in Georgia have the authority to issue protective orders whenever a person proves that family violence has already occurred and may occur in the future. There are two different types of protective orders:
- Civil Family Violence Order: any temporary or permanent protective orders issued at the request of a petitioner.
- Criminal Family Violence Order: any conditions of bond or probation when you have been either arrested for, or convicted of, a domestic violence charge.
- Direct the accused to not have any violent contact with anybody, including the victim.
- Direct the accused to have absolutely no contact with the victim.
- Direct the accused to physically stay a certain distance away from the victim.
- Require the accused to get counseling or complete an intervention program about domestic violence.
- Allow one party to continue to live at their residence and tell the other party that they must leave.
- Require one party to provide a place to live for a spouse, former spouse, parent, and children.
- Give temporary custody of the children to one of the parties and establish visitation rights.
- Make either party pay child support.
- Make either party pay spousal support.
- Determine how the personal property of the parties should be divided.