Husband was picked up for DV and I need advice please.

[stealth2]

I don't. However, if i'm to presume his innocence as the law states, then I must presume that the chair broke in a manner that did not include any violation of the law until it can be proven* contrary.

Uh huh... sure.

 

[CdwJava]

You must take into heavy consideration the fact that Police are required to make an arrest if someone claims a domestic violence incident.

No, they are not. It is a common fallacy that an arrest "MUST" be made at a DV call. The call is not important, probable cause to believe a crime occurred is. Most states have pro-arrest policies, but they encourage an arrest of the primary aggressor and MUST (as a matter of law) be carried out only with the existence of probable cause.

If they must make an arrest they must be able to justify it and they will regardless of the reality or truthfulness of either party. Do you see the problem now? If "probably cause" doesn't exist then they will make it exist.

Not true at all. If it is true in your small part of the world, let us know where that is so that none of the rest of us travel there.

What you are saying is that all the cops you know of are liars, they are criminals, and they regularly violate people's rights.

You're entitled to your opinion. Now convince 11 other Jurors that a crime had taken place that night without any evidence of domestic violence other than a loud arguement and a broken chair.

Read the sections again and you will find that they are not all that difficult to prove. But, an arrest does not require an officer to convince anyone but a judge that probable cause existed to make the arrest.

Is there a video of her husband breaking the chair or throwing it at anyone?

Probably not. But, the officer's observations and the wife's admission would generally be sufficient.

Did her husband admit to any wrong doing?

Don't know. But, he probably admitted that he broke the chair ... whether he indicated why or not, who knows?

Would the fact that he was under the influence affect the validity of his testimony? Due to the psychological strain, emotional intensity, and influence of alcohol; could he have admitted to comitting a crime that never actually occured.

Sure. I suspect the officer's did not observe some form of horrendously inebriated behavior indicating that he was incoherent and out of his mind. We get drunken statements admitted all the time. The defense is free to try and claim that he was too blotto to know what he said. Good luck with that.

Note that some people do confess to crimes they never truly committed out of some emotional or psychological struggle.

Not important for the arrest. And if the defense wants to argue that at trial, they are free to do so. That is IF the matter goes to trial. If there is a filing, there will probably be a plea bargain anyway.

Was the OP under the influence as well and if so couldn't that also affect the validity of her own testimony? Especially if she was upset and frustrated with her husband. False or unclear and clouded accusations do occur. Thankfully we have a court system that allows defendants, plaintiffs, and victims to come forward with much clearer evidences and testimony.

Th defense can make any claim it wishes. And since DV victims recant in more than 75% of cases, the state expects it to happen. Some states and counties are more aggressive at pursuing these matters even without the victim's testimony. But, what it tends to do to the victim is render them forever impotent to protect themselves. When they recant at trial, they become an unreliable witness ... "Are you lying now, or were you lying then?" ... as such, their abuser will have greater control because the victim is unlikely to be believed at any future court hearings because she will be a proven liar. Sadly, while the victim thinks that by recanting they are protecting their abuser (because he is a changed man and he is really, really sorry) all she tends to do is cement their roles in the relationship, and increase his control.

She doesn't need to hide or be intimidated by you, or the DA, or her husband.

Who said she did?

If there truly is a problem she certainly knows how to handle it and can cooperate with the DA.

If she seriously thinks that lying or not testifying is an option, she does NOT know how to "handle it." Unfortunately, too many victims change their tales for many reasons, most having to do with the dynamic of victim-abuser relationships.

The best thing she can do is take the stand and tell the truth. But, as most DV cases are either dropped or plead out, chances of any trial coming about are slim.

 

[double-trouble]

No, they are not. It is a common fallacy that an arrest "MUST" be made at a DV call. The call is not important, probable cause to believe a crime occurred is. Most states have pro-arrest policies, but they encourage an arrest of the primary aggressor and MUST (as a matter of law) be carried out only with the existence of probable cause.

I am glad that you acknowledge the fact that "pro-arrest policies" do exist. Obviously they can influence the Officers.

Not true at all. If it is true in your small part of the world, let us know where that is so that none of the rest of us travel there.

Is it true that Police use certain tactics, trickery, including lying during an investigation in order to influence a suspect? Don't tell us its not true. It does happen on occasion.

What you are saying is that all the cops you know of are liars, they are criminals, and they regularly violate people's rights.

Sir, that is not what I am saying. You are trying to put words in my mouth or you are simply misinterpreting the conversation. I never claimed that all cops were liars. Again, we both established the fact that "pro-arrest policies" exist and thus they can influence an officers decisions especially if he is directed to make an arrest by a superior officer, whom often do not interview the suspects at the scene.

Read the sections again and you will find that they are not all that difficult to prove. But, an arrest does not require an officer to convince anyone but a judge that probable cause existed to make the arrest.

I was obviously refering to the possibility of a trial if the case is not dismissed by the DA. See how easily things can be misinterpreted?

Probably not. But, the officer's observations and the wife's admission would generally be sufficient.

The Officer did not witness anything. He made an arrest based on the OP's accusation and a broken chair.

Don't know. But, he probably admitted that he broke the chair ... whether he indicated why or not, who knows?

Is breaking or dismantling a chair a crime?

Sure. I suspect the officer's did not observe some form of horrendously inebriated behavior indicating that he was incoherent and out of his mind. We get drunken statements admitted all the time. The defense is free to try and claim that he was too blotto to know what he said. Good luck with that.

The testimony that will make or break this case will be that of the victims. If the victim admits testimony that there was no real crime then reasonable doubt exists.

Not important for the arrest. And if the defense wants to argue that at trial, they are free to do so. That is IF the matter goes to trial. If there is a filing, there will probably be a plea bargain anyway.

The defense will not have to argue much of anything. Again, the victim's own testimony will make or break the case. No one should ever take a plea bargain if they are not guilty of a crime.

Th defense can make any claim it wishes. And since DV victims recant in more than 75% of cases, the state expects it to happen. Some states and counties are more aggressive at pursuing these matters even without the victim's testimony. But, what it tends to do to the victim is render them forever impotent to protect themselves. When they recant at trial, they become an unreliable witness ... "Are you lying now, or were you lying then?" ... as such, their abuser will have greater control because the victim is unlikely to be believed at any future court hearings because she will be a proven liar. Sadly, while the victim thinks that by recanting they are protecting their abuser (because he is a changed man and he is really, really sorry) all she tends to do is cement their roles in the relationship, and increase his control.

You are assuming there is an abuser in this case and that is for a jury to decide.

If this is a serious and provable DV case then it will be successfully prosecuted.

I understand the points you are making and they are valid ones. What you said maybe the reality for some spouses or family members in homes where serious domestic violence assaults occur. However this may not be the case here.

Who said she did?

Other posters made commentary that she may try to hide the truth.

If she seriously thinks that lying or not testifying is an option, she does NOT know how to "handle it." Unfortunately, too many victims change their tales for many reasons, most having to do with the dynamic of victim-abuser relationships.

I agree that thinking you should duck a subpoena or lie is not the right way to handle anything. Just to clarify she was refering to "spousal privilege." Remember though, she said there was no real domestic violence to begin with. If it were me, i'd simply state the truth and to a jury if need be.

note: Just as easily, someone could lie to try and ensure a domestic violence conviction for a variety of reasons.

The best thing she can do is take the stand and tell the truth. But, as most DV cases are either dropped or plead out, chances of any trial coming about are slim.

In the end we agree. Unfortunately though, most DV charges cannot be set aside or reduced which may have the opposite affect as intended by the law makers. It may possibly compel even guilty parties to turn down a plea bargain and possibly compel real victim's to lie in order to save their family members constitutional rights, his or her employment, the costs and possible jail time involved, and so on.

 

[CdwJava]

I am glad that you acknowledge the fact that "pro-arrest policies" do exist. Obviously they can influence the Officers.

Many things influence officers. But, pro-arrest statutes and policies (as we have in CA) does not circumvent the basic legal principles that already exist. What they are meant to do is encourage a custodial arrest in a situation that might otherwise result in a discretionary separation of the parties or a citation and thus allowing the problem to continue to fester rather than afford the victim an opportunity to seek aid.

Is it true that Police use certain tactics, trickery, including lying during an investigation in order to influence a suspect? Don't tell us its not true. It does happen on occasion.

If you think you know the answer why ask?

Of course there are tricks that we can use, but they are limited by legal constraints. Whatever methods used cannot be seen by the court as potentially compelling an otherwise innocent person to confess to an offense they did not commit. But, we rarely have to employ such deceptions as the direct approach tends to work followed by confronting a suspect or witness with inconsistencies. It is very rare that we have to do anything unusual to try and elicit a potentially damning statement.

Sir, that is not what I am saying. You are trying to put words in my mouth or you are simply misinterpreting the conversation. I never claimed that all cops were liars.

Here is what YOU wrote: "If they must make an arrest they must be able to justify it and they will regardless of the reality or truthfulness of either party. Do you see the problem now? If "probably cause" doesn't exist then they will make it exist."

This statement - the last sentence in particular - does, indeed, imply that the police will make up evidence or lie. If you did not intend to imply this, then perhaps you should reconsider your own statement and rephrase it.

The Officer did not witness anything. He made an arrest based on the OP's accusation and a broken chair.

And, very likely, the suspect's admission to breaking the chair.

Is breaking or dismantling a chair a crime?

In the context of the state laws charged, and coupled with what was likely threats (again, given the offenses charged), apparently it is.

The testimony that will make or break this case will be that of the victims. If the victim admits testimony that there was no real crime then reasonable doubt exists.

Not necessarily. The state can cast doubt on the victim's testimony at trial by suggesting a motive for her to lie to protect her abuser. very often that motive is financial, or it can be emotional. A skilled prosecutor can usually discount the victim's flip flop and present expert testimony that will demonstrate the greater reliability of the statement provided at the scene.

However, in misdemeanor cases, most prosecutors are not going to to the mat. If the victim wants to be a human punching bag, sometimes all that can be done is to allow it. But, we do not have to permit the children to remain in the home to witness it. Very often the avenue to stopping the cycle of violence is to lay the groundwork to potentially seize the children should the violence continue. Often that is sufficient to compel one or both parties to change their ways.

The defense will not have to argue much of anything. Again, the victim's own testimony will make or break the case. No one should ever take a plea bargain if they are not guilty of a crime.

Of course they should not take a plea if they are not guilty. The reason most people plead is that they ARE guilty and they do not risk the greater sentence at trial.

Other posters made commentary that she may try to hide the truth.

Which is very common in some 75%+ of DV related cases.

I agree that thinking you should duck a subpoena or lie is not the right way to handle anything. Just to clarify she was refering to "spousal privilege."

Which does not exist in many cases for DV.

Remember though, she said there was no real domestic violence to begin with. If it were me, i'd simply state the truth and to a jury if need be.

Because she is claiming he never HIT her. But, he has not been charged with striking her, he has been charged with menacing. You forget the code sections he is charged with violating.

In the end we agree. Unfortunately though, most DV charges cannot be set aside or reduced which may have the opposite affect as intended by the law makers.

I don't know about your state, but in mine they certainly CAN be set aside, reduced, appealed, and even expunged! The only thing that cannot be done in some states is expungement. Not all states have a process to do this.

It may possibly compel even guilty parties to turn down a plea bargain and possibly compel real victim's to lie in order to save their family members constitutional rights, his or her employment, the costs and possible jail time involved, and so on.

Yes, very often the victim will lie in order to follow the false notion that by doing so they will save the family, or, maybe save their financial situation, or, just as likely, in the false belief that he will change his ways (assuming a pattern of behavior). Sadly, we find that the stats show we will be to the home again ... and again ... DV is rarely a one time event.

 

[Ohiogal]

There is certainly a possibility that he can serve jail time.

Jail is NOT prison -- different places entirely. How familiar are YOU with the Ohio courts? How much jail time?

He can certainly lose out on employment opportunities as well if he has a record of DV. He may certainly have to pay a fine and pay for counceling etc.

he may have insurance that would cover his counseling.

I'm not venting or whining. I'm simplying discussing an alternative view. You and others have an issue with it apparently. But thats what happens when you don't go along with the rest of the crowd. If your IQ was a little higher i'd enjoy having this conversation with you.

What is your legal background? You have no clue. NONE.

Please go back and carefully read some of the commentary here. People are already making statements such as: "elements of the law were broken." And "if your husband is TRUELY remorseful, then you will not try to hide his actions but be forthcoming with them. He needs to follow the restraining order, attend anger management, and IF the order is lifted conditionally, you need to help yourself by helping him not break the order." I think I am the only person thus far who has presumed innocence under the law as its stated.

No you are not.

He will also no longer be restrained if the OP makes that request to a judge or to the DA.

Wrong. The OP making a request is NOT going to lift the restraining order.

By my logic serious crimes should be thoroughly investigated without prejudice. The Court will presume innocence until it is proven to the contrary. While your alone in jail being treated like a caged animal and in harms way.. you are completely on your own regardless of whether or not your innocent.

Really? In jail he is treated like a caged animal? Is he in jail? I didn't see where he is in jail at all now.

 

[Ohiogal]

You realise that a Juror who can be anyone over 18 years of age, any ethnicity or race, employed or unemployed, ultimately decides whether or not the police or the attornies or even if the law itself is fair. I'm looking at this from a Jurors point of view.

Just because you are a cop or an attorney does not ultimately make your interpretation of a situation factual or more correct. Ultimately a Juror will consider the evidence and decide. The Juror can also judge the law itself.

Are you an attorney who seeks Truth and Justice or "how many prosecutions" can I win this week? Are you a Police Officer who protects and serves or do you play "How many arrests can I make this week?!"

You do realize that most DV trials do NOT have juries? They are BENCH trials normally.

 

[Ohiogal]

I'll state the facts again. A Juror will Ultimately weigh the evidence and decide. A Juror can also judge the law itself. Jurors can be anybodies and they are the ultimate authority. Re-read this until it sinks in that thick skull of yours.

You are a MORON. You know nothing. How much jury trials are done in misdemeanor cases? How do you know this is going to be a jury trial? How do you know that this is not going to be a bench trial. You are making a heck of lot of assumptions without having a clue of Ohio law.

 

[Ohiogal]

I don't. However, if i'm to presume his innocence as the law states, then I must presume that the chair broke in a manner that did not include any violation of the law until it can be proven* contrary.

WRONG. WRONG. WRONG. You know nothing. Now quit posting your idiocy or you will start having ALL of your posts reported.

 

[cyjeff]

Further, jurors do NOT decide on the validity of law.

Jurors decide if the facts presented fit the charged offenses.

Lastly, there won't be a juror in sight.

 

[Artemis_ofthe_Hunt]

If there is an order of protection against your husband.. you can contact the va or da's office and ask that it be lifted. this is a very simple process. the court will simply check it off the list of his OR agreement. Its as simple as asking honestly.

Did your husband admit to anything? Or did he wisely remain silent..? Do you have a copy of the police report?

I think I can help . Let me know.

Nope... WRONG. The VICTIM doesn't have to press charges in these cases... the DA's office does, if the case bears proof needed to proceed. So the VICTIM is not a party to the proceedings as such, the DA's office files the charges ON BEHALF of the victim. Does NOT require the victim to do anything necessarily.

I am not an expert.

Obviously.

However; I have been through a similar situation and after all, this person is only asking for advice. Advice does not require that one act in accordance with it. I'm not suggesting this person does anything. This is simply my point of view.

Not a point of view situation or forum. This is a LEGAL FORUM and arguing with an attorney who practices LAW in Ohio is an exercise in futility since you obviously don't know how to interpret the law.

"...a person who made an arrest for the alleged violation or offense under section 2935.03 of the Revised Code may file on behalf of the alleged victim, a motion that requests the issuance of a temporary protection order as a pretrial condition of release of the alleged offender, in addition to any bail set under Criminal Rule 46."

It is possible that a temporary order of protection could be part of the alleged defendants OR agreement. The poster said she did not require nor wanted one against her husband.

Like I said earlier, the DA's office, should they decide to press charges, doesn't require the VICTIM's cooperation. They may file on BEHALF of the victim.... which is supported by the statute YOU posted earlier, which I bolded.

Its true that I came here seeking advice. Unfortunately I did not receive much of that.

You just didn't hear what you wanted to hear.

Here's the cite for the law you posted:
Lawriter - ORC - 2919.26 Motion for and hearing on protection order.

And the law you posted is the opposite of what you claim. Re-read what you wrote, re-read the law. It does not say that the "victim" can request the protective order be removed. I can't imagine where you got that idea.

In fact, the law specifically shows that the Court may issue a protective order upon its own motion. It doesn't need the alleged victim's consent to do so.

ADDED: Thank you for using OH law to discuss the OH case. That was entirely correct.

double-trouble.... you've been entirely antagonistic in several threads, spouting law (which is good), but not understanding the law as its written. You can argue until you're blue in the face, but it doesn't change the fact that you've not had enough experience interpreting the law to do anyone any good. In fact, you're quoting law which supports what the SENIOR members here have told OP, but YOU are arguing that YOUR interpretation, which is completely FALSE is the correct interpretation. Read, learn and ask questions. Don't offer advice until you've actually understood the law you're quoting.

 

[double-trouble]

Like I said earlier, the DA's office, should they decide to press charges, doesn't require the VICTIM's cooperation. They may file on BEHALF of the victim.... which is supported by the statute YOU posted earlier, which I bolded.

Consider this captian imbicile: The DA presses charges regardless. The Victim goes on the stand and testifies that there was no domestic violence what so ever and no one was injured. Now the defendant says the very same thing. Case dismissed.

Again, a judge can certainly reverse a temporary restraining order at the victims request. I am not wrong sir, you are mistaken.

My unexpert opinion had my own case completely dismissed.

 

[double-trouble]

You are a MORON. You know nothing. How much jury trials are done in misdemeanor cases? How do you know this is going to be a jury trial? How do you know that this is not going to be a bench trial. You are making a heck of lot of assumptions without having a clue of Ohio law.

Again, if your IQ were a little higher I might enjoy talking with you.

This case could certainly be set for a jury trial. I doubt it tho. In my opinion the case will be dismissed.

 

[Proserpina]

Again, if your IQ were a little higher I might enjoy talking with you.

This case could certainly be set for a jury trial. I doubt it tho. In my opinion the case will be dismissed.

So you're clueless AND rude.

How nice.

 

[cyjeff]

The legal term is Jury Nullification. Jurors CAN decide on the validity of the law.

Jurors can also decide if the law itself is fair or wrong.

In Ohio you have the right to a jury trial for petty and serious offenses.

You people need to educate yourselves.

Again... you are incorrect.

I suggest you look up the term "Jury Nullification".

You will see absolutely no mention of a Jury's ability to overturn existing law. Juries simply do not have the training or authority to debate the legality or constitutionality of a law itself.

Allow me to state plainly... no jury has the authority to judge a law as fair or wrong.

they simply do not.

Ever.

Really, if you have no idea what a legal term means, you should look it up first.

 

[double-trouble]

Many things influence officers. But, pro-arrest statutes and policies (as we have in CA) does not circumvent the basic legal principles that already exist. What they are meant to do is encourage a custodial arrest in a situation that might otherwise result in a discretionary separation of the parties or a citation and thus allowing the problem to continue to fester rather than afford the victim an opportunity to seek aid.

This is my point CdwJava, instead of ticketing the individual or asking one of the parties to leave for the night especially in cases involving nothing more than a loud arguement************** the policy is to make an arrest.

If you think you know the answer why ask?

Of course there are tricks that we can use, but they are limited by legal constraints. Whatever methods used cannot be seen by the court as potentially compelling an otherwise innocent person to confess to an offense they did not commit. But, we rarely have to employ such deceptions as the direct approach tends to work followed by confronting a suspect or witness with inconsistencies. It is very rare that we have to do anything unusual to try and elicit a potentially damning statement.

I'm glad we established the fact that police can and will use trickery, including lying in order to insure a confession, or an arrest, or to ultimately strengthen the cause for arrest and successful prosecution.

Here is what YOU wrote: "If they must make an arrest they must be able to justify it and they will regardless of the reality or truthfulness of either party. Do you see the problem now? If "probably cause" doesn't exist then they will make it exist."

This statement - the last sentence in particular - does, indeed, imply that the police will make up evidence or lie. If you did not intend to imply this, then perhaps you should reconsider your own statement and rephrase it.

Sir, please re-read the statement. If both parties are lying, and policy requires an arrest, the Officer will certainly pick an aggressor and paint a picture (in his/her police report) to justify the arrest. The actual facts remain to be proven in court. Never the less it can happen. This isn't just an opinion. There are documented cases of this sort of thing. I don't believe all Peace Officers use such tactics. I don't believe you use such tactics either. But some do.

And, very likely, the suspect's admission to breaking the chair.

Nobody knows this to be the case, and admission doesn't prove any fact.

In the context of the state laws charged, and coupled with what was likely threats (again, given the offenses charged), apparently it is.

A court will ultimately decide whether or not it is a criminal act. None of us know if the victim was really threatened at all and that includes the arresting officers.

Not necessarily. The state can cast doubt on the victim's testimony at trial by suggesting a motive for her to lie to protect her abuser. very often that motive is financial, or it can be emotional. A skilled prosecutor can usually discount the victim's flip flop and present expert testimony that will demonstrate the greater reliability of the statement provided at the scene.

I suppose the states attorney could try and cast doubt upon the victim's testimony. However the DA will only prove his or her own victim cannot be a trusted witness and so I very highly doubt a DA would try this with the kind of case we're discussing. And again, the victim will be testifying under oath and sworn to tell the truth. A skilled defense attorney or a clever thinker for that matter could easily turn this situation around on the states attorney.

However, in misdemeanor cases, most prosecutors are not going to to the mat. If the victim wants to be a human punching bag, sometimes all that can be done is to allow it. But, we do not have to permit the children to remain in the home to witness it. Very often the avenue to stopping the cycle of violence is to lay the groundwork to potentially seize the children should the violence continue. Often that is sufficient to compel one or both parties to change their ways.

I agree that family violence is a shame and I wish it was not a part of our society. But there are extra-ordinary circumstances in many of these cases and they are not black or white. Until we know the testimony and see the evidence involved... it is better to let a guilty man go free than an innocent man be hung.

Of course they should not take a plea if they are not guilty. The reason most people plead is that they ARE guilty and they do not risk the greater sentence at trial.

That maybe true. It may also be the case that the defendant simply does not have the resources to fight the charge. In some cases, the judgement or omission maybe completely set aside and a defendant may never need to make a plea. You and I can only speculate.

Which is very common in some 75%+ of DV related cases.

Sir, please consider the source of the statistics. There is no way of knowing if its truly accurate because there is a bias.

Because she is claiming he never HIT her. But, he has not been charged with striking her, he has been charged with menacing. You forget the code sections he is charged with violating.

Charged with menacing is one thing. Proving it in court is another. And again, if she says she was never in any danger and she wasn't threatened, than they had a loud arguement. Thats not illegal and thus a Jury, or Judge, or DA would be compelled to dismiss.

I don't know about your state, but in mine they certainly CAN be set aside, reduced, appealed, and even expunged! The only thing that cannot be done in some states is expungement. Not all states have a process to do this.

In many states they will not allow a DV crime to be reduced or set aside and in my state it is the law that they shall not set it aside or reduce the alleged crime. It is a very harsh law here.

Yes, very often the victim will lie in order to follow the false notion that by doing so they will save the family, or, maybe save their financial situation, or, just as likely, in the false belief that he will change his ways (assuming a pattern of behavior). Sadly, we find that the stats show we will be to the home again ... and again ... DV is rarely a one time event.

When you put it that way it suggests that a victim's testimony cannot be trusted because 75% of them lie to begin with for whatever reason. I wouldn't make such accusations. Instead I would rely on the evidence and as you said "pattern of behavior" or priors involving DV and even then the benefit of the doubt belongs to the defendant.

Thank you for a healthy debate.