The Stages Of A Domestic Violence Criminal Case In California

A domestic violence criminal case often does not feel like a clear process to the person going through it. It feels like chaos: an arrest, a night in a cell, a court date, a piece of paper ordering you to stay away from your own home, and a sense that everything is happening to you with no map. However, there is a clear map.

Every domestic violence criminal case moves through the stages in the same order, and knowing what they are, and what can happen at each one, is the difference between navigating the case and being dragged through it.

This article lays out those stages from the first phone call to a jury trial verdict, with the many ways each stage can unfold and end before one reaches any further stage. The chart below is the whole journey at a glance. The sections after it explain each stage in depth.

The Stages Of A Criminal Domestic Violence Case At A Glance

Stage One: The Incident & The Arrest

Most domestic violence criminal case begins with someone alerting the police, and in our experience the call comes from a wider range of sources than most people imagine. Each one shapes the case that follows.

Most often, the alleged victim calls during or right after an incident. However, we have seen every other version. Sometimes the person who ends up arrested is the one who called, hoping for help and not realizing that under preferred arrest policies the police may arrest the caller if they deem the caller to be the primary aggressor. Sometimes a neighbor calls, reporting shouting or sounds through a wall. Sometimes a child inside the home calls, which produces some of the most painful cases of all. Sometimes another adult in the home calls, a roommate, a parent, a sibling. Sometimes a mandatory reporter calls, such as a doctor or nurse who learns of an injury and is legally required to report it. Sometimes a public eyewitness calls after seeing an incident in a parking lot, a restaurant, or on the street. Finally, sometimes no one calls at the scene at all, and the alleged victim walks into a police station days later to report what happened after the fact.

Once police respond, domestic violence is different from most calls, because officers usually operate under preferred arrest policies. Where there is probable cause that domestic violence occurred, the old practice of calming things down and leaving is gone, and an arrest is likely, a history we explain in our article on whether an alleged victim can drop the case. The officer also determines a dominant aggressor rather than simply arresting whoever called or whoever has a visible injury, a determination we discuss in our article on preventing domestic violence charges. By the end of this stage, someone has usually been arrested, and the case enters the window that is often the most important and the least understood.

Stage Two: Pre-Filing Stage

Here is the stage that decides more cases than people realize, and it happens before there is a court case at all. After an arrest, the police forward their police reports to the District Attorney (DA), and the DA, not the police, decides whether to file a criminal complaint and what to charge. Between the arrest and that decision is the pre-filing window.

What happens in that window depends heavily on whether the arrested person is released or held.

If The Person Bails Out If a person bails out or is quickly released on a promise to appear at a future potential court date without first going to court, which is common for misdemeanor arrests, there is often a gap of days or weeks before the DA makes a filing decision. That gap in time is an opportunity. A defense lawyer retained during the pre-filing window can sometimes present information to the prosecutor that heads off charges entirely, before a case is ever filed. This is some of the most valuable work in criminal defense, and we explain it fully in our article on preventing domestic violence charges.

If The Arrestee Is Held In Jail If the person arrested is kept in jail, the timeline is constitutional. An in-custody arrestee must be brought before a magistrate without unnecessary delay and, in any event, within 48 hours of arrest, excluding Sundays and holidays, under Penal Code section 825 and the probable-cause rule of County of Riverside v. McLaughlin. That means the DA must review the case and decide quickly if the arrestee does not quickly bail or is otherwise released from jail. If the prosecution files, the person is arraigned in that window. If the DA cannot or does not file within the required time, the person must be released, and any later prosecution proceeds by other means, typically a warrant obtained after the case is eventually filed, or a notice or letter directing the person to appear once the case is calendared.

The essential point of this stage is that a case not yet filed is a case that can sometimes be prevented, and the pre-filing window is the one moment when the most decisive work happens outside a courtroom entirely.

Stage Three: Arraignment & The Protective Order

The arraignment is the first court appearance, and several things happen at once. The charges are formally known. The court addresses custody and release. A plea is entered, or, very commonly, the matter is set for a further plea date so the defense can review discovery and negotiate. Additionally, in a domestic violence case, one more thing happens that defines the defendant’s daily life: the court considers a criminal protective order.

The criminal protective order, under Penal Code section 136.2, comes in two main forms, and the difference between them is enormous.

No-Contact Order A no-contact order bars the defendant from any contact with the protected person, which often means being ordered out of a shared home and away from a spouse and children for the duration of the case.

Peaceful-Contact Order A so called “peaceful contact order” allows contact, so long as it is peaceful, which lets a family continue to live together and communicate while the case proceeds.

Which order issues matters more to most defendants than almost anything else in the early case, and there is a practical reality worth knowing. If the protected person appears at the arraignment and tells the court they want contact, judges will often issue a peaceful-contact order rather than a no-contact order, provided the court’s safety concerns are addressed. The protected person’s voice matters here in a way it does not on the question of dismissal, which the protected person cannot control. This is one of many reasons an alleged victim with their own goals may benefit from their own attorney,

Stage Four: Pretrial & The Path To Trial

After arraignment, most cases enter a pretrial period of negotiation and motion practice. The defense reviews the evidence, files motions where appropriate, and negotiates with the prosecutor. Many cases resolve here, through dismissal, a reduction, or a negotiated disposition that the defendant is willing to accept.

If the case does not resolve, it is set for the next stage, and which stage depends on whether the charge is a misdemeanor or a felony.

A misdemeanor is set for jury trial. A felony is set first for a preliminary hearing, where a judge decides whether there is enough evidence to hold the defendant to answer for trial. The preliminary hearing is a critical stage in a felony case, and one feature matters enormously in domestic violence cases. Under Proposition 115, the prosecution can often prove a preliminary hearing largely through the testimony of a qualified law enforcement officer relating what witnesses said, rather than calling those witnesses live. This means a felony domestic violence case can survive the preliminary hearing and move toward trial even when the alleged victim is uncooperative, because the officer can carry the hearsay at that stage. Whether the case can ultimately be proven at trial, where the rules are different and the Confrontation Clause and hearsay rules applies in full, is a separate question we examine in our article on whether an alleged victim can drop the case.

Stage Five: Trial

If a case is neither dismissed nor resolved, it goes to trial. In a misdemeanor or a felony that has passed the preliminary hearing, the case is tried to a jury, and the prosecution must prove every element beyond a reasonable doubt, the highest standard in law. The defense tests the evidence, cross-examines the witnesses, and holds the prosecution to its burden.

Trial is not always the end of the road it appears to be. Cases can and do resolve even at this last stage, sometimes on the eve of jury selection, and sometimes because a key witness will not testify, as one of the cases below shows. But trial is where a contested domestic violence case ultimately lands, and preparing for it, from the first day of the case, is what shapes every earlier stage. We cover domestic violence criminal trial practice in “how domestic violence cases are won at trial” [Link].

Two Past Cases From Our Practice At Vijay Law

The stages in a criminal domestic violence case are not abstract. Two of our past cases show how they actually play out, at opposite ends of the process.

We handle many cases that end at the pre-filing stage, before charges are ever filed, and one recent case provides a good example of that. Our client had been arrested, but the case was still with us in the pre-filing window, not yet filed by the District Attorney. We investigated, and we took a new statement from the alleged victim that cast real doubt on whether any offense had been committed at all. We presented what we had developed to the prosecutor. The District Attorney decided not to file the case. There was no arraignment, no court appearance, no criminal case at all which is the optimal outcome in any domestic violence criminal case

Another recent past case at Vijay Law went through all of the above stages of a domestic violence case. The District Attorney filed, and despite our efforts, refused to dismiss the case as it progressed. It was then set for jury trial. Then, right before jury selection, the alleged victim refused to testify, and the case was dismissed.

To be clear, this is not the typical or predictable outcome for a case set for trial. Prosecutors frequently proceed to trial without the alleged victim, relying on 911 calls, admissions, and other evidence, as we explain in our article on whether a victim can drop the case. However, faced with a key witness who would not testify, this District Attorney made the calculation many make in that spot: better to dismiss than to risk a loss at a jury trial.

What The Stages Of A Domestic Violence Case Teach

Seen as a whole, the map makes one thing clear. A domestic violence case is not a single event but a sequence, and there is meaningful work to be done, and meaningful outcomes to be reached, at every stage. The best outcomes often come earliest, in the pre-filing window before a case is filed. Critical protections, like a peaceful-contact order that keeps a family together, are set at the arraignment. The felony path runs through a preliminary hearing with its own rules. And even a case that is set for trial can resolve steps can still end there.

The through-line is that these cases reward early, informed action. The defendant who understands the stages, and who has counsel working from the first one, is in a fundamentally different position than the person being dragged through a process they cannot see. We explain the pieces that connect to these stages in our related articles on preventing charges, on whether a victim can drop a case, how domestic violence criminal cases are won at trial, and on how a criminal case interacts with a restraining order.

Frequently Asked Questions About The Stages Of A DV Case

What Are The Stages Of A Domestic Violence Case In California?

Incident and arrest; pre-filing review by the District Attorney; arraignment, where a plea is entered and a protective order considered; pretrial and the path to trial, which for a felony runs through a preliminary hearing; and trial. A case can resolve at any stage.

Can A Domestic Violence Case Be Stopped Before Charges Are Filed?

Sometimes, yes. The pre-filing window, between arrest and the DA’s filing decision, is when a defense lawyer can sometimes present information that prevents charges from being filed at all. It is one of the most valuable stages and the least known.

What Is A Criminal Protective Order At Arraignment?

It is an order, considered at the arraignment, that restricts the defendant’s contact with the protected person. It can be a no-contact order or a peaceful-contact order. If the protected person appears and wants contact, courts will often issue a peaceful-contact order where safety concerns are addressed.

How Long Can I Be Held Before Seeing A Judge?

If you are held in custody, you must be brought before a magistrate within 48 hours of arrest, excluding Sundays and holidays, under Penal Code section 825. If the prosecution does not file within the required time, you must be released, though the case can still be filed later.

What Is A Preliminary Hearing, And Why Does It Matter In DV Cases?

In a felony case, the preliminary hearing is where a judge decides whether there is enough evidence for trial. Under Proposition 115, the prosecution can often use an officer’s testimony about what witnesses said, which means a felony DV case can pass this stage even without the alleged victim testifying.

Can A Case Really Be Dismissed Right Before Trial?

Yes, though it is not guaranteed. Cases sometimes resolve on the eve of trial, including when a key witness refuses to testify and the prosecution decides dismissal is better than risking a loss. Prosecutors do also try cases without the victim, so this outcome is never assured.

This article provides general information and is not legal advice. Every case turns on its own facts, and procedures vary by county. If you are facing a domestic violence case, consult a qualified criminal defense attorney as early as possible, ideally before charges are filed.