Criminal Defense Lawyer Mark Caldwell Answers Domestic Violence FAQs
If you have questions about the criminal defense process for domestic violence, you’re in the right place. In the video below, Mark Caldwell shares legal insight on domestic violence defense gathered from the most frequently asked questions he receives from clients. That said, each case is unique so if you are looking for counsel involving your specific situation, we’d encourage you to contact us for a free domestic violence legal consultation where Mark Caldwell will be able to address and answer any concerns you may have.
Domestic Violence Law & Criminal Defense Video Transcript
“When I get a phone call regarding a domestic violence there’s a lot of possibilities that we have for criminal defense:
1. Michigan’s 729 Diversion Program
One of the biggest possibilities is that people will take advantage of is Michigan’s 729 Diversion Program. This is a program you have to be accepted into. And to be accepted, you have to have approval from the victim of the domestic violence. If the victim will not approve of it, then you’re not going to be accepted into the diversion program. Furthermore, this option is only available for first time offenders.
The Michigan 729 Diversion program is when the judge put you on probation, which is typically one year after you successfully have completed the program. Then the charge goes away like it has not happened.
I would say about 80% of the cases I get for domestic violence end up in the diversion program.
2. Case Dismissal – Control Non-Jury
The other strategy we take is moving to get the case dismissed.
In order to get the case dismissed, you kind of have to have the prosecutor and the judge on board as well as the victim. How that works is called a “control non-jury.” We set it for a non-jury trial and then they subpoena the victim. If the victim does not show up on the subpoena, then the case will be dismissed. However, the victim will be, threatened with jail and or fines if they fail to comply with the subpoena.
This is much more rare as a lot of people are afraid to not show up on the subpoena, but you should still know that the option exists and has been successful in several cases. But again, you have to have the prosecutor and the judge on board for this option to even have a chance. And sometimes (if they’re really gung ho) the prosecutor will subpoena the victim and set up for another court date.
3. Going to Trial
The other option on a domestic violence case is going to trial.
If you go to trial, obviously you’re not getting a diversion. And you sometimes will risk getting a harsher punishment from the judge due to that decision. So that’s why I work closely with each client to evaluate their specific case and determine if it’s strong enough to take to trial.
What kinds of domestic violence cases have the best chance for success?
Typically, the best case is to take to trial and win is a “he said, she said” kind of scenario; meaning there were no witnesses when the incident occurred and no injuries that are visible.
4. “Pleading Straight Up”
If you don’t go to trial or take the diversion, there’s only one other option: “pleading straight up.” This is a term attorneys use to describe when the defendant enters a guilty plea in court without any plea agreement or negotiation with the prosecutor. It means they’re essentially admitting guilt outright and leaving the sentencing decision entirely up to the judge, with no guaranteed recommendations or limitations on the potential punishment.
While there are a wide range of judges in West Michigan, when you plead straight up to the domestic violence you’ll typically be looking at around 12 months of probation, and then community service on top of it.
No Contact Orders
With domestic violence cases, you’re also going to have a no contact order.
Typically, that order stays in place for the duration of the case. Sometimes it can be taken off while the case is pending but only if the victim chooses to show up in court and let the judge know that they don’t want the no contact order.
Most judges will not release the no contact order until at least the sentencing date, and some judges will even keep the no contact order in place during the duration of probation.
5. Full Case Dismissal
The final option with domestic violence defense cases is the best for the defendant: getting the case dismissed.
That’s rare that this happens because it’s not up to the victim whether or not they bring charges. It’s up to the prosecutor. And so the victim may recant their story to the prosecutor, which is different from what they said in the police report.
However, most prosecutors will continue to pursue the charges and not dismiss it.
Felony Domestic Violence Charge
Once you start getting more domestic violence charges, the severity of punishments increase as the penalties get more and more severe with each additional domestic violence. If you accrue enough of these, you’ll be charged with felony domestic violence.
The victim will be contacted when the charges are brought, there’ll be allowed to talk to the prosecutor and decide on how they want the case to proceed.”
