Is Domestic Violence a Misdemeanor or a Felony Offense?
After being faced with DV charges you might be wondering “is domestic violence a misdemeanor.” Whether or not a domestic violence defendant is charged with a misdemeanor or felony domestic violence largely depends upon the specific actions committed by the defendant.
What is a Misdemeanor & What is a Felony?
Misdemeanors refer to crimes in which one is sentenced to a maximum of twelve months in prison, while felonies are crimes in which one is incarcerated for a period exceeding twelve months. With that said, you’re probably wondering “is domestic violence a felony or misdemeanor for my case?” Because every claim is unique, the best way to find out is to use an attorney that offers free case evaluations.
As there are several forms of this offense, the state of California has implemented multiple laws. Depending upon which law a defendant breaks, they can be charged with either a misdemeanor or a felony.
“Wobbling” Between a Misdemeanor and a Felony
There exists a very thin line between misdemeanor and felony when it comes to domestic violence. For an individual to be found guilty, one must commit an act of ‘abuse’ against someone with whom they have a ‘domestic’ relationship with. In the state of California, one does not necessarily have to be a family member or a spouse for the crime to be termed domestic.
The law acknowledges crime against a roommate, spouse, a parent to a defendant’s child, people who are dating, people that used to date and family members as a violation under certain circumstances.
These offenses charged and punished in different ways depending on a number of things. These include the circumstances of the case, the location in which the arrest was made, the nature of the relationship, the criminal history of the accused and the attorney representing the accused.
Serious incidents are charged as felonies while those that are less serious are considered to be misdemeanors under the law. There are also some cases referred to as wobblers in which the prosecutor assigned to a defendant’s case decides whether they will be pursuing a felony or misdemeanor charge.
Which Violations are Felonies and Which are Misdemeanors?
Penal Code Section 273.5 is a commonly charged offense. This criminal offense entails inflicting physical injury on a cohabitant, spouse, fellow parent or someone that the accused has dated. This is considered a wobbler and the District Attorney can decide to reduce the crime to a misdemeanor if the injuries do not rise to the felony level.
The accused can receive a sentence of twelve months or less and can be required to pay a fine amounting to six thousand dollars.
Penal Code 243(e) is another commonly charged offense in California. This is a criminal offense in which one is accused of committing battery against a cohabitant, spouse, fellow parent or someone that the accused has dated. This kind of domestic violence is charged as a misdemeanor. Although battery may sound bad, it can be committed without creating a physical mark on the victim.
There are incidences where a husband or wife will forcefully push the other and it results in a PC 243(e)(1) conviction.
Penal Code Section 245 is often a felony charge. A domestic violence felony claim can be devastating. It is a strike under the Three Strikes Law in California and a conviction can result in stiffer and enhanced sentencing either in the present or a future case. However, this penal code is still a wobbler and could be reduced. You will want to do whatever possible to avoid domestic violence jail time. An attorney can advise you as to your options.
If this is a first offense that would mean the accused has never been convicted of a domestic abuse charge, which includes spousal abuse, domestic battery, assault or battery. Punishments for a first offense can be enhanced if one of the participants incurred serious injuries or requires medical treatment. If one of the participants incurred great bodily harm, the sentence could be even harsher.
Some prosecutors or courts may impose much more serious sentences if the defendant is believed to have struck out in ways that could be deemed abnormally violent, cruel. The courts do not want to go easy on offenders who pose a significant threat to society.
Whether a domestic violence offense is charged as a misdemeanor or a felony might or might not have an impact on the defense strategy. Many prosecutors charge crimes as felonies because it gives them leverage. They expect the accused to accept a misdemeanor conviction rather than risking a felony conviction.
Whether it makes sense to negotiate for a misdemeanor when a felony has been charged depends on the facts of the case. An accused who is innocent should never be convicted of anything. An accused who is likely to be found guilty of a felony if the case goes to trial should give serious consideration to accepting a misdemeanor conviction if there are no defenses that will lead to a dismissal.
When a prosecutor charges a felony to gain an advantage in negotiating, the strategy may backfire. If the evidence in support of the felony is weak, an accused may want to ask a jury to return a not guilty verdict rather than making a plea bargain.
When the prosecutor charges a misdemeanor, the accused is in a better position to seek an outcome that will not result in a conviction. A first offender who is willing to participate in anger management counseling might be able to avoid a conviction if the crime is not serious.
Choosing the right strategy requires a combination of experience, skill, and knowledge of the law. A Southern California domestic violence defense lawyer can recommend a strategy that is best suited to the facts of the case. If you’re in need of an attorney for your case, or if you have been falsely accused of domestic violence, an experienced attorney could be your best bet.
Need legal representation for your domestic violence charge? Call (888) 250-2865 today to receive a free consultation from compassionate, experienced legal professionals.