After a domestic violence arrest, one question is commonly asked. How do I make this go away? People want a single answer, and there is not one, because a domestic violence case can be ended at several different points, by different means, for different reasons, and at different stages. What ends a case before charges are filed is not what ends it at trial.
So the honest and useful way to answer the question is by stage. A case can be stopped before it is ever filed, dismissed after filing but before trial, or ended at trial itself. Each stage has its own tools, its own strategy, and its own kind of victory. This article walks through all three, with real past cases from our practice at key point points in the process.
Getting A DV Case Dismissed: The Short Answer
There are three points at which a domestic violence case can end in the defendant’s favor. Before filing, a prosecutor can review the case and decline to file it, which is functionally a dismissal before a case even exists. After filing, the prosecutor or the court can dismiss the filed case, sometimes outright and sometimes through a negotiated “earned dismissal.” Finally, at trial, the case can be dismissed when the evidence collapses, or end in an acquittal by the jury.
The sections below explain how each one works.
| Stage | How The Case Ends | The Mechanism |
|---|---|---|
| Pre-Filing | Prosecutor declines to file a criminal case in court | Reinvestigation and a mitigation package presented before the filing decision; the arrest can be treated as a detention only |
| After Filing, Before Trial | Dismissal of the filed case | Outright dismissal on the evidence, or a negotiated “earned dismissal” after voluntary mitigation |
| Trial | Dismissal or acquittal | The evidence collapses, a key witness does not testify, or the jury finds reasonable doubt |
Stage One: Before Charges Are Filed
The best way to “dismiss” a domestic violence case is to make sure it is never filed, and we have written an entire article on how that is done, which explains the mechanics in full. The core principles are worth restating here because this is where the quickest and best outcomes happen.
The key fact is that the police do not file charges; the prosecutor does. Between the arrest and the prosecutor’s filing decision is a window, and a focused defense in that window can persuade the prosecutor not to file. That work rests on a genuine reinvestigation of the incident, mitigation showing who the accused actually is, and possibly post-incident steps like counseling, all assembled into a package presented to the prosecutor before the decision is made.
A point of precision about language, because it matters legally. When people say a case was “dismissed” before filing, that is not technically what happened. There was no case to dismiss, because nothing was ever filed in court. The accurate terms are that the prosecutor rejected the case, declined to file, or reviewed it and decided not to file. This is the functional equivalent of a pre-filing dismissal, and for the client it is the best possible result, but the distinction carries a real benefit. While the DA’s decision to not file is usually the final decision, the DA may rarely decided to later file – before the statue of limitations expires – when they receive additional new evidence of guilt
When a prosecutor reviews an arrest and decides not to file, the arrest can be deemed a detention only, rather than an arrest, under Penal Code section 849.5. That is a meaningfully better record than a filed case that is later dismissed, which remains an arrest on the record and may require a separate step to seal. We address how to clean up an arrest or a dismissed case from your record in our article on clearing a California criminal record. The short version is that a case rejected before filing leaves the lightest footprint of any outcome, which is one more reason the pre-filing stage is the one to fight hardest.
A Past Case At Vijay Law
In a past case at Vijay Law, our client was a woman on an H-4 visa, from India, married to a man here on an H-1B. She was the one who called the police. She told us later that she had called expecting the kind of response she was used to hearing about in India, where police faced with a couple who intend to stay together will often talk to them, advise and warn them, and leave, with no arrest and no record.
That is not what happened here in California. When the officers arrived, she tried to explain the whole history of the relationship, an arranged marriage of two years, a six-month-old child, ongoing disputes about their parents’ involvement and about childcare. The officer cut her off. He wanted to know only about that day, and what had happened that day. She described a fight, with some minor pushing and slapping. With that, the question became who the dominant aggressor was. Her husband had a small scratch on his forehead. He wanted to avoid an arrest and she ended up being the one who was arrested.
She hired Vijay Law, and we went to work in the window before filing. Her husband did not want the case filed either, but he was unwilling to give any further statement about the incident, except to say he wanted it to go away, and he was willing to start couples therapy. We told our client, strictly, not to discuss anything about the alleged abuse, the arrest, or any specific incidents, and she began intensive couples counseling. Over two weeks, they completed several sessions. Her husband then provided a statement that he did not want the case filed, that the police had misunderstood what was said, that they were in counseling, and that a criminal case was not warranted.
In our mitigation letter to the district attorney, we made the case that she was not the dominant or primary aggressor. She was much smaller and weaker than her husband. She was the one who had reached out for help. She had been trying to tell the officers that she had been battered on prior occasions, before she was cut off and redirected to the events of that day alone. She had voluntarily completed an online class, and we documented the couples counseling. With her husband’s statement, that package persuaded the district attorney not to file.
Stage Two: Case Filed, Pre-Trial
Many people reading this are past the pre-filing stage, because the case was filed despite everyone’s hopes. This is the common situation, and it has its own paths to dismissal.
Once a case is filed, the government must turn over its evidence to the defense: the police reports, the body camera footage, the 911 recordings, the photographs. With that material, the defense conducts its own investigation, interviewing or re-interviewing the witnesses, including the alleged victim where appropriate to build the case that no crime was committed or that the case cannot be proven.
It is at this point that real strategy may arise. When the defense uncovers evidence that undermines the alleged victim’s account, impeachment evidence, it faces a genuine tactical choice about whether to reveal it now, to try for a dismissal, or hold it for trial. The two goals can conflict.
If the alleged victim supports a dismissal, then impeachment evidence that undercuts their original account, the account that produced the arrest, is usually best turned over as part of a mitigation package, because it helps persuade the prosecutor to dismiss. However, if the alleged victim wants the case prosecuted, revealing powerful impeachment evidence early may not produce a dismissal at all; it may simply hand the prosecutor time to prepare around it, when that same evidence, saved, could win the case at trial through cross-examination. In that situation the defense may choose to hold its strongest material rather than spend it on a dismissal request the prosecutor will refuse. Any disclosure must comply with reciprocal discovery obligations and court orders. Every case is different and the evidence must truly be impeachment evidence, and getting this judgment right, when to disclose and when to save, is one of the most consequential decisions in a domestic violence defense.
A filed case can also change or end because of a legal motion. A successful suppression motion, a felony motion to set aside an information, or another procedural defect does not automatically require dismissal in every case, but it can remove critical evidence or materially alter the prosecution’s ability to proceed.
The earned dismissal. There is also a crucial reality about how prosecutors say no. A “no” to a dismissal request is often not final. It can become a yes after further negotiation and mitigation, and one of the most valuable forms it takes is what attorneys often call an “earned dismissal”. What we call and “earned dismissal” is an informal negotiated prosecutorial resolution. Its availability and terms vary by case and office. In a typical earned dismissal, the defendant agrees to do certain things voluntarily, complete a domestic violence class, perform community service, and let a period of time pass with no further arrests, and in exchange the prosecutor agrees to dismiss the case.
Two things make the earned dismissal powerful. There is no admission of guilt, and the resulting dismissal is the same as any other dismissal, exactly as if the prosecutor had concluded the defendant was innocent and dismissed the case on that basis. And it fills a specific gap in the law. A person accused of a domestic violence offense is not eligible for the misdemeanor diversion available for many other offenses under Penal Code section 1001.95. The earned dismissal operates as the functional equivalent of informal prosecutorial diversion, and in one respect it is better, because the agreement is directly between the prosecutor and the defendant rather than imposed and supervised by the court. We explain the formal diversion programs, including the mental health diversion that can in some circumstances reach a domestic violence case, in our article on diversion in California.
Stage Three: Dismissal At Or After Trial
If the prosecutor will not dismiss the case, whether outright or through an earned dismissal, then the remaining path to obtain a dismissal runs through trial: a dismissal once the case is set for trial and the evidence falls apart, or an acquittal by the jury.
The most common way a domestic violence criminal case collapses at this stage involves the alleged victim. When a case is set for trial and the alleged victim cannot be subpoenaed, or refuses to appear despite a subpoena, or refuses to testify once in court, the prosecutor will sometimes dismiss. To be clear, sometimes when the case is dismissed in this manner it can and is refiled by the district attorney. We explain the rules that govern that situation, including the protection against jailing a domestic violence victim for refusing to testify, in our article on whether a victim can drop the case.
However, no one should assume an uncooperative victim ends a case, because prosecutors routinely try domestic violence cases without the alleged victim’s testimony. The question is how they prove a case without the victim, and the answer is that the victim’s live testimony is only one form of evidence. The prosecution can rely on the 911 call, which often comes into evidence even over a Confrontation Clause objection when it was made during an ongoing emergency and survives hearsay challenges; on photographs of the victim’s injuries; on the defendant’s own statements; on third-party witnesses; and on circumstantial evidence. The clearest proof that a victim’s testimony is not required is that prosecutors routinely try domestic violence homicide cases, where the victim obviously cannot testify and the case is proven entirely through other evidence. A defense built on nothing more than “the victim won’t testify” is incomplete, which is why the trial itself has to be prepared and won on the whole body of evidence.
A Past Case From Vijay Law
In another past case at Vijay Law, a husband and wife had been married a long time, with a fourteen-year-old daughter living in the home. The wife called the police and made a very quick statement, saying in essence that she needed help because her husband had hit her. When the officers arrived, she gave a full, detailed statement about what had happened that day. My client, the husband, denied touching her and said the argument had been only verbal.
There was no evidence of injury. The daughter told the police she had been upstairs and did not see the incident. The wife claimed she had been slapped.
The district attorney filed and would not dismiss. Our client could not plead to anything, because he held a job where pleading even to a reduced charge, a Penal Code section 415 disturbing the peace, would cost him that job. So we set the case for jury trial.
The wife was not subpoenaed for trial. Our client’s daughter, though, was subpoenaed at her school. At trial, my client did not testify. The witnesses were the 911 dispatcher, who had the 911 call played while she was on the stand, the daughter, and two police officers. The wife was alive, and her whereabouts were unknown to the jury, and that fact hung over the courtroom as the thing no one was allowed to explain.
On cross-examination, the daughter admitted that she had seen nothing, and that the noise she heard could have been any number of things other than a slap. The detailed statement the wife had given the officers in person, after the emergency had passed, was excluded under the Confrontation Clause and Crawford, because she was not there to be cross-examined. In closing, we argued that the case was full of reasonable doubt. The jury acquitted in thirty minutes.
The lesson is one this article has already stated. It is very difficult to convict a domestic violence defendant when the alleged victim is alive but does not testify. That is because the strongest piece of the prosecution’s case, the victim’s own account, will usually not be heard by the jury.
The Three Paths To Victory
The three stages are not really alternatives a defendant picks among. They are a sequence, and the strategy is to end the case as early as possible. Fight hardest before filing, because a case rejected there leaves the lightest record. If the case is filed, pursue dismissal on the evidence and consider an earned dismissal, weighing carefully when to reveal impeachment evidence and when to save it. Finally, if the prosecutor will not dismiss, prepare the case for trial fully, because trial is where a case with an uncooperative victim or thin evidence can still end in dismissal or acquittal.
What ties all of it together is early, informed defense work. The sooner a knowledgeable lawyer is involved, the more of these paths remain open.
Frequently Asked Questions About Getting A DV Case Dismissed
Can A Domestic Violence Case Be Dismissed In California?
Yes, at several points. A prosecutor can decline to file before charges exist, a filed case can be dismissed outright or through a negotiated earned dismissal, and a case can end in dismissal or acquittal at trial.
What Is An “Earned Dismissal”?
It is a term attorneys often use to refer to an agreement in which the defendant voluntarily completes certain steps, such as a domestic violence class, community service, and a period without new arrests, in exchange for the prosecutor dismissing the case. There is no admission of guilt, and the dismissal is the same as any other.
Can I Get Into A Diversion Program For A Domestic Violence Charge?
Generally not the misdemeanor diversion under Penal Code section 1001.95, which excludes domestic violence. In some circumstances, mental health diversion may be available, and an earned dismissal can serve a similar function. We cover this in our article on diversion in California.
If The Victim Does Not Want To Prosecute, Will The Case Be Dismissed?
Not automatically. The victim cannot drop the case, and prosecutors often proceed without the victim’s testimony, using the 911 call, injuries, the defendant’s statements, and other evidence. Sometimes a case is dismissed when a key witness will not testify, but it is never guaranteed.
Is A Case That Is Never Filed Better Than One That Is Dismissed?
Yes. When a prosecutor reviews an arrest and declines to file, the arrest can be treated as a detention under Penal Code section 849.5, leaving a lighter record than a filed case that is later dismissed. A rejected case is the best outcome of all.
What Is The Most Important Thing I Can Do To Get My Case Dismissed?
Get an experienced lawyer involved as early as possible, ideally before charges are filed, and never contact the alleged victim yourself. The earliest stages offer the best outcomes, and they close quickly.
This article provides general information and is not legal advice. Every case turns on its own facts. If you are facing a domestic violence case, consult a qualified criminal defense attorney as early as possible.