Top FAQ For Those Arrested for Domestic Violence

After interviewing hundreds of people who have been recently arrested for criminal domestic violence in South Carolina I have put together a list of the top questions I most often hear. I recommend that everyone who has themselves or had a loved one arrested for domestic violence learn as much about the law as they can.

To start you off the right way, we have answered some of the most common questions concerning domestic violence arrests:

When I am hired to represent someone for CDV my job is to help them avoid a criminal conviction in Court. If you would like to meet with me about your case call my office anytime at (888) 301-6004.

1. What constitutes criminal domestic violence in South Carolina?

Domestic Violence, or DV, is a unique crime in South Carolina. The law was written to authorize the police to arrest as many potential abusers as possible. No one must actually be hurt in order to violate the law. It is violated by either touching your partner in a way they don't like, trying to touch them in a way they wouldn't like or telling them or acting like you are going to touch them. Because of the way the law is written in covers everything from throwing a pillow and missing, to actually punching or kicking the other person.

In order to qualify as a domestic violence charge there must be a special relationship between the alleged victim and the defendant. This is called household member. Under current South Carolina law that includes people who have been married to each other, who have children together, or a man and woman who have romantically lived together.

2. Did the police have enough evidence to arrest me?

DV is treated as a "zero tolerance" offence by most South Carolina police agencies. This means that the police are instructed that they must arrest someone whenever there is any indication that a DV crime occurred. The legal standard to justify an arrest is called probable cause and it usually exists when the police see physical signs of an argument or are told by anyone that there was physical contact, attempted physical contact or the threat of physical contact made. It is important to understand that probable cause is a much lower standard the beyond a reasonable doubt which is what is supposed to be applied by the Court. Many times police make arrests when later on a jury in a trial disagrees, and finds someone not-guilty.

3. At Bond Court the judge told me not to have any contact with my partner. Will anyone be monitoring this? What happens if I violate this order?

Many police departments have officers who follow up on DV arrests to make sure that the defendant is following the no contact order. This may include unannounced visits at the home of the defendant or the alleged victim. It may also include direct questioning of the alleged victim to see if there has been any contact. The police and Court will consider contact to be any communication whether in person, by telephone, text message, e-mail or even through websites. If you are found to have violated the order you can receive up to thirty days in jail automatically (no ability to post bond again) for first offense DV charges. You also may owe the bondsman the full value of your original bond (which may be $5,000 or more).

4. How long does the no contact order last?

The restriction will last until the conclusion of your case (when you are found either guilty or not guilty by the Court) or until it is specifically modified by the Court.

5. What is involved in getting the Court to lift the no contact order?

There are procedures to have the no contact bond lifted. Typically this is done in cases where the defendant is challenging their arrest. The alleged victim will need to consent and it involves a hearing in front of a judge. Only a judge can modify the no contact provisions of the bond. We can help file the necessary paperwork and request the hearing.

6. My partner did not want me to be arrested. They are planning on asking for the charge to be dropped. Will this happen?

There is a state-wide "no drop" police in place for all DV charges. This means that the police or prosecutor is not allowed to drop charges at the request of the alleged victim. This rule is in place to break the perceived cycle of domestic abuse victims seeking to drop the charges. Unfortunately it applies in all domestic violence cases, even ones based on no actual physical harm or threat of harm.

7. What are the chances the Court would find me guilty if I go by myself?

Depending on the facts of your case it may not be good. Because of the way South Carolina law is written it can be very easy to technically violate the law. When a judge finds that the law was violated, even a little, this will result in a guilty verdict. Facts such as it was the first time the police were ever called, it was the first time you were ever arrested, no one was hurt or your partner wants the charges dropped are not legal defenses. When you go to Court by yourself unless you are as knowledgeable as a criminal defense attorney about the law, rules of evidence and Court procedures you will be at a substantial disadvantage to the police and prosecutors.

8. What will happen to me if the Court finds me guilty?

If you are found guilty of first offense DV you will face a fine of up to $5,000 and/or up to ninety days in jail. This will also come with a publicly available criminal record and a restriction on your ability to possess or purchase a firearm. You may also not be able to travel into certain countries, and may face the loss of employment or any professional license.

9. I don't think I deserve to be arrested. Can I go talk to the judge and get him to dismiss my case without having to go through the wait and expense of a trial?

South Carolina judges are not allowed to discuss pending cases with either the prosecution or the defense without the other side being present. This rule will prevent the judge from being able to take your phone calls or meet with you before your Court date to discuss your case. South Carolina law also prohibits judges from dismissing cases pending in the Magistrate, Municipal or CDV Court prior to trial. Your only opportunity to directly discuss your case with a judge is often in the context of a trial - where you run the risk of being convicted and immediately sentenced.

10. Do I really need to hire a lawyer?

Neither the police or the Court is allowed to give you legal advice or tell you how to defend yourself from this charge. Hiring a lawyer will provide you access to legal strategies, such as the availability of a jury trial, pre-trial discovery and motions to exclude unreliable evidence. Further a lawyer will be aware of all possible resolutions to your case, such as counseling in lieu of trial, that can help you avoid a criminal conviction and having the DV on your record. Because DV is such a serious offense everyone who has been arrested should at least consult with a lawyer to learn all of their options before appearing in Court.

11. Do I have record for domestic violence even if I haven't been to court yet?

South Carolina has a public arrest record. This means that as soon as you are arrested your case becomes a public record. If you were taken to jail at the time you were arrested (as almost all DV defendants are) the jail will report your arrest to SLED in Columbia and your pending case will show up on an official background check within just a few days. The fact that you were taken to bond court will also be publically available to anyone who searches for your name on your county's court website. This is true even for cases that haven't gone to court yet. But the record will only say you were arrested- it will not show that you were found guilty or not guilty at that point.

12. What can I do about this record? Can I have it expunged?

Yes. You can qualify to have your DV arrest removed (called expunged) from your record in one of three ways:

By being found not-guilty after a trial.
By participating in a counseling in lieu of trial program (called PTI).

If you were convicted in court and have no other criminal record, you can wait five years and then apply for the expungement.

13. How long does an expungement take?

Your record will be removed from all publically available government records and background searches within 2-6 months (approximate time depending on the backlog at your county court and also SLED in Columbia).

14. What is the difference between being arrested for DV and convicted of DV?

An arrest means that you have been officially accused or charged with CDV. At this point that is all it is, an accusation. Legally, the police only need a low standard of evidence called probable cause to charge you and take you to jail. Being arrested is not the same thing as being convicted.

You are only convicted if one of three things happen:

You go to court and plead guilty.
You go to court and plead no-contest (it is the same as a guilty plea).
You have a trial and are found guilty by the court.

You will not be convicted if your case is dismissed, referred to pre-trial intervention (PTI), or if you have a trial and are found not-guilty. If you are not convicted you will qualify for an expungement.

15. What action is my employer allowed to take against me?

Generally speaking most employees in South Carolina are considered at will, meaning that they can be terminated for nearly any reason. So most employees can be displined, suspended, or fired just for being accused of DV or any other crime. Many employers withold judgment however until the case is over, so the best way to avoid employment problems is to avoid losing your case.

16. Do I have to testify against my spouse?

South Carolina has a spousal privilege law that will protect you from being required to testify against your legal spouse. The privilege only applies to statements or things that you were told. It does not cover events that you personally observed. If you and the judge disagree about whether you are entitled to claim privilege on any specific question you could be held in contempt and fined or put in jail yourself. For this reason it is a good idea for you to consult with an attorney before going to court to make sure your rights are protected.

17. Does no contact apply if I own the house?

A no contact order that you received in bond court will prevent you from going around the alleged victim in your case. Most no contact orders don't pertain to a location - just the other person. If your partner is staying in a home that you own or you are renting you will not be allowed to return (other than to pick up belongings when they are not home). If your partner won't leave your home and you want them out you will have to file for an eviction.

18. If I can't afford an attorney what should I do?

DV is a very serious criminal charge that can have lifelong consequences for anyone who is convicted in court. The fine, even for a first offense, can be higher than what an experienced defense attorney would charge. So we recommend that anyone charged make every effort to adjust their budget to afford an attorney. If you cannot afford an attorney and are legally indigent you will qualify for a public defender.

19. Will DV make my car insurance rates go up?

Many DV 3^rd degree and 2^nd degree charges in South Carolina are issued on blue traffic ticket forms. Although your DV ticket might look an awful lot like a speeding ticket, it's not a traffic offense. So your insurance rates will not go up and no points will be assessed against your license. Keep in mind that while the DV ticket might look like a regular traffic ticket it is actually much, much more serious.

20. Can I sue my ex for having me arrested?

At the conclusion of your case if you were successful with your defense, yes you can sue your ex for making a false DV allegation against you. But you will likely spend more in legal fees for that case than you did on your original CDV defense. And even if that case is successful, and you receive a judgment in your favor, you are not guaranteed that you will ever collect a dime. In fact most people in South Carolina are judgment proof, meaning that you can never collect lawsuit winnings against them.

21. Should I worry about my ex suing me for DV assault?

Most people shouldn't worry about being sued due to the practical limitations of these cases (see the answer above). But if you are truly wealthy then you might have some concerns, especially if you weren't successful with your DV case and were convicted in Court.

22. What exactly does a defense attorney do to help?

Our job is to assist clients in avoiding a conviction for criminal domestic violence. We do this by first understanding the law that will apply to your case. This includes not only DV law, but also criminal law in general, court procedure, and rules of evidence. We are also experienced with negotiating with police and professional domestic violence prosecutors. This enables us to either negotiate out of court resolutions for clients (such as reduction in charges or entrance into a diversion program), or challenge the case in court seeking a not-guilty verdict for our client.

23. If I hire you, can you guarantee me a specific result?

Ethically no lawyer can ever make you any promises about how any criminal case will be resolved. Lawyers in South Carolina are also specifically ethically prohibited against making guarantees in any criminal defense matter. What we can promise is that we will do our best work to see that your case is favorably resolved.

24. Can you still be arrested if you weren't married?

In July, 2017, the South Carolina Supreme Court held that the portion of the domestic violence law applying to unmarried people without children together was unconstitutional. You may have seen this reported on the news. After realized the impact that this change would have on police and current prosecutions, the court quickly back-tracked their ruling (a legal process called a stay). So for that reason it is important for a lawyer to object to a DV prosecution between unmarried individuals who don't have children in common, but legally those cases are still allowed to be prosecuted as domestic violence.

25. Do police over-charge people with serious DV charges on purpose?

Yes, in our opinion police regularly use higher-level DV charges than necessary. A big reason is that lower-level DV 3^rd degree charges have to be prosecuted by the police officers themselves in Magistrate or Municipal Court. When a higher-level charge is brought the cases are referred to in General Sessions and are handled by the prosecutor. This may be especially appealing to municipalities who then no longer have to pay for the prosecution; it would be handled for "free" from the solicitor's office. Another reason is that police may think that by charging at a higher-level it will increase the chances that the defendant will plead guilty to a lower level charge.

Criminal Defense Attorney James Snell of Lexington, South Carolina, represents clients charged with all levels of domestic violence. Initial appointments in his office are provided on a confidential and no-cost basis.

To schedule your appointment call (803) 359-3301. Appointments are held at 123 Harmon Street in downtown Lexington.