Articles Posted in Domestic Violence

There can be no doubt that domestic violence is a serious matter under Michigan’s Domestic Violence Prevention and Treatment Act. However, you are in a very difficult position if the allegations against you are untrue, exaggerated, or based upon ulterior motives. Unfortunately, false accusations of domestic abuse are more common than you think. They are particularly prevalent in divorce or custody cases when one party is trying to gain an advantage in court. Even when you know you are innocent, anger, frustration, and despair may take the place of logic. Do not allow your emotions get the best of you and potentially affect your case. Talk to a domestic violence defense attorney right away and follow a few tips on what to do about the allegations.

  • Keep Your Distance: Avoid your accuser as much as possible, which may mean moving out if you share a home. Separation gives you both a chance to cool off, and it may be legally required anyway if there is a Personal Protective Order (PPO) in place. Plus, staying away greatly reduces the chance that your accuser will follow up with additional allegations.
  • Know Your Rights During Police Questioning: Domestic violence is a crime, so you have rights that attach after your arrest. You have the right to remain silent, but may be tempted to proclaim your innocence. It is best to not make any statements until you retain an attorney to defend your interests.

Child abuse is defined as any action that causes a child to suffer physical or psychological harm. In addition to physical and verbal abuse, it can include neglect, a parent or caregiver’s failure to provide a child with adequate medical care, and actions that put a child at an unnecessary, unreasonable risk of harm.

When you are facing a child abuse charge, you have the right to defend your case. A child abuse conviction can come with steep fines and a long prison sentence. Even without a conviction, an accusation of abuse can permanently damage your relationship with your child and your social reputation. Below are a few potential defenses to a child abuse charge. Talk to your lawyer about the details of your case to determine which of these, if any, is the right defense strategy for you.

Your Child was Injured in an Accident

Interviewer: If someone says, ‘Hey look, I’m guilty, it happened, I lost control.’ What are some things that could help him, could they voluntarily go into anger management?

Paul Tafelski: We do a lot of counseling with our clients as far as trying to come up with a strategy that will best suit them and get the best result depending upon which judge that they have in their case. So sometimes gathering up statements from other people, attesting to the fact that this is not normally a violent person or getting counseling, getting an assessment done, if alcohol was involved, getting an alcohol assessment to try and demonstrate you don’t have a problem.

It is Important to Customize the Available Programs According to the Needs of the Defendant

Interviewer: When the police are called, will there always be an arrest made?

Paul Tafelski: If somebody claims that the other person touched them in any kind of a way –which could be grabbing them, preventing them from leaving, poking them, pulling their hair, scratching their face, some kind of physical altercation, however brief – there is usually going to be somebody arrested.

Again, that’s the case in most places in metropolitan Detroit, and I mean Wayne, Oakland and Macomb County. However, in some of the more upscale and conservative areas such as Rochester, Troy, Birmingham, Bloomfield, Novi, Plymouth, Canton, Northville, Royal Oak, those areas, they’re going to be arrested almost certainly. In some of the other areas, most likely they’ll be arrested, but may still be a few more old-fashioned officers who will use their discretion to decide whether or not it’s safe to leave the people alone.

Yes, there is a statute in Michigan that is known as MCLA 769.4a, which is a statute specifically pertaining to domestic violence and to first offense domestic violence cases. Under that statute, if the court takes your case under advisement and you successfully complete probation, then the case can be dismissed and not be on your record after you’ve completed probation.

Oftentimes, we try to negotiate a deal that would get the clients’ plea taken under advisement pursuant to that statute so that they can ultimately create a record. Additionally, five years after you were sentenced, if you only have that domestic violence conviction on your record and nothing else, then you would be eligible to petition for an expungement in the State of Michigan.

What Are Some Things That Can Help Me Defend My Case?

Domestic violence means different things to different people. A lot of people think of it as a situation where one person in the relationship beats up the other person, like the Ray Rice incident. However, the majority of cases prosecuted are much less violent and involve either a slap or a push or grabbing somebody against their will.

I have seen an increase in the number of prosecutions, although I don’t think there is really an increase in the number of actual domestic violence cases. It used to be that if someone called the police for domestic violence, the cops would show up and if there wasn’t something really serious, they would make one person leave for the night to cool down. But now, many police departments have a policy where they will arrest somebody. Most of the time it will be the man, but not always.

Is There a Typical Age for the Accused or the Victim?

Even if someone was sober or under the legal alcohol limit and refused a breathalyzer test request from a police officer, the implied consent can cost them their license for one year and adds 6 points to a driver’s license. There is a distinction between the official breath test and one sometimes done on the side of the road, the Preliminary Breath Test. If someone refuses to take that test, it results in a minor civil infraction with 0 points.

It is very important for people who are facing an implied consent violation to know they must request an appeal hearing before the Driver’s License Appeal Division within 14 days of the arrest. If that is not done, the appeal is waived and the suspension will be imposed. If the hearing is requested within that time period, however, the person’s driving license will remain valid until that takes place.

An attorney is needed to help fight the appeal. If the individual wins, that is the end of the implied consent portion of their case. It goes away and the driver’s license will not be suspended.

Interviewer: What are no-contact orders or a protection order or a restraining order? How do they work?

Paul Tafelski: A judge will just order you the conditional bond to have to contact with the complaining witness or any other witnesses. It’s really fairly difficult for the prosecutor or the court to enforce that, but if they do find out about a violation they will often revoke the bond or give the person some time in jail. There are significant consequences, but basically it’s just a court order. They tell you that you cannot have contact in any way, which means by phone, by e-mail, by text, or through a third party. In any way, shape, or form, you’re not allowed to contact or speak to that person.

The main theory behind it is to prevent you from tampering with a witness or talking them into trying not to show up to court or drop the charges and all that, but it’s become a pretty commonplace condition ordered by most of the courts now. You can still occasionally talk a judge into just ordering no negative contact, which allows you to still at least live in the marital home. That’s an important thing.

Interviewer: Could a police officer question a child without the consent of the parent? Paul Tafelski: Typically, when the police are doing those interviews, you’re going to see the complaining witness, meaning, let’s say, the mother (that’s just more common) making a statement and then giving permission for the child to make a statement. You don’t usually see people who call the police being reluctant to give the police statements at that time because they’re in the heat of the moment and they usually do cooperate. Usually, when it comes to interviewing juveniles and questioning juveniles, the police need to either get the permission or have the parent be present. In most of these cases, when there is a child witness, the complaining witness will usually allow it. Interviewer: If the case did not involve a child, will parenting rights still be taken away? Paul Tafelski: No. The parenting rights usually won’t be affected if the case did not involve a child. However, they’re indirectly affected while the case is pending because they won’t let the defendant come to the marital home and that’s where the children live. Then they have to make other arrangements to see the kids and it’s pretty difficult to see them on a daily basis like they normally would. Indirectly, those rights are affected. The other thing is sometimes these cases do lead to the filing of a divorce case, in which case these cases can have a big effect on parenting time because they will usually be used by the person who’s filing for divorce as leverage in their custody battle. It’s just one more reason why this has to be handled in a delicate matter because you never know for sure if this could be the last step in a marital relationship. Interviewer: If someone is charged with domestic violence, could they still get custody of a child? Paul Tafelski: Yeah. That’s going to be handled in a separate court by a separate judge. The judge who usually handles the domestic violence case is not going to be the judge who handles your divorce and custody case. They can look at whether or not you’re a violent person when deciding whether or not to give custody to you or determining how much parenting time to give you. It all kind of ties together even though it’s going to be two separate issues and decided by two separate judges.

Interviewer: What kind of plea agreements are typically going to be offered by the prosecution?

Paul Tafelski: Depends on, each court is a little bit different, each prosecutor is a little bit different but we’ve been able in many cases of first offence situations to negotiate plea deals where if the client successfully completed a period of probation with some anger management they could avoid having a conviction on their record. That’s the most important thing, to come out of this with is no conviction because it doesn’t look too good on employers to see domestic violence convictions. They get nervous about hiring people who have domestic violence convictions or assault and battery convictions because they get scared that if the person became assaultive in the workplace they would’ve been in notice of their assaultive tendencies and therefore perhaps liable so it’s important to keep your record clean and put non assaultive convictions in these situations. We’ve often been able to achieve that, which in the plea bargain round was probably the best thing you can get out of it.

Dismissal of Assault or Domestic Violence Charges in Michigan

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