You were accused of domestic violence, and you have never been arrested before in your life. Your spouse called the police during an argument and when the officers arrived, almost before anyone had explained anything, they put you in handcuffs. You bailed out, and the paperwork in your hand says you have a court date in a few weeks or maybe a couple of months. Now your worst fears set in. Maybe you are on a visa and terrified of what a criminal charge could do to your status. Maybe you are worried about your job, your career, your reputation. Maybe your spouse never even wanted you arrested and is already saying they want to "drop the case." And the question running through your mind is the one that matters most: Can this just go away? Can the case not be filed at all? The answer is that, in the right circumstances, yes it can. There is a window, after an arrest but before the prosecutor decides whether to file a criminal case in court, when the right work by an attorney can result in no charges being filed at all. This article explains how that works, why the window is real, and what it takes to prevent domestic violence charges from being filed. Can A Domestic Violence Case Be Stopped Before Charges Are Filed In California? Yes, and understanding why requires understanding a distinction most people do not know: in California the police do not file criminal charges. The county prosecutor’s office does. When the police arrest you, they are not charging you. They are investigating, documenting, detaining and possibly arresting you. The decision whether to actually file a criminal case and what to charge belongs to the prosecutor’s office who makes it after reviewing the police report. This gap between arrest and the filing decision is the opportunity. While the law strongly pushes police toward arrest in domestic violence situations, there is no equivalent rule forcing a prosecutor to file a criminal case in court. The prosecutor has discretion and where there is discretion, there is the ability to persuade. A focused defense effort during that pre-filing window which includes a thorough reinvestigation, uncovering exculpatory evidence, and a carefully assembled mitigation package presented to the prosecutor before they decide can result in the case never being filed. The rest of this article explains the two halves of that picture: why you were arrested in the first place, and how charges can be prevented from being filed.
Why Were You Arrested For A Domestic Violence Criminal Case In California?
Many people arrested in a domestic violence case are stunned by how fast it happened and how little the officers seemed to weigh their side. There is a reason for that, and it is rooted in how California law directs police to respond to domestic violence accusations. Lawyers often call it a "mandatory arrest" policy for domestic violence cases. That phrase is a useful shorthand, but the precise law is more nuanced and understanding the nuance is part of understanding how to fight back.
Under California Penal Code section 836, a peace officer has the authority to arrest without a warrant when there is probable cause to believe a person committed a qualifying criminal offense. Separately, Penal Code section 13701 requires every law enforcement agency in California to adopt written domestic violence response policies, and it directs that those policies "shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. “In practice, police department policies built on that directive turn "encouraged" into very nearly automatic: if officers find probable cause that a domestic violence offense occurred, an arrest will almost certainly follow. A couple of consequences of this matter enormously to you in whether you are arrested or not. Does The Victim Decide Whether Someone Is Arrested In A Domestic Violence Case? Even if your spouse tells the police they do not want you arrested, the officers will arrest anyway if they believe there is probable cause. The decision whether to arrest is not the alleged victim’s to make. It is a very common situation where police are called to the scene of an alleged domestic violence incident, they take statements from both sides, decide to arrest one of the two individuals, and the other non-arrested party is seen literally begging the police not to arrest their domestic partner but to no avail. Is It Easy To Demonstrate Probable Cause To Make A Domestic Violence Arrest? Probable cause is a very low bar, often what an officer takes to be a credible accusation of domestic violence is sufficient for an arrest to occur. Officers do not decide guilt at the scene. They decide whether there is probable cause, which can be satisfied by little more than one person's account. That is why an arrest can feel so one-sided: it is a fast, low-threshold, scene-level judgment, not a considered determination of what actually happened. This is also why the history related to this matters for California domestic violence arrests. California's approach dates to reforms beginning in 1980s, when the law deliberately moved away from treating domestic violence as a "private matter" which police could decline to act on, and toward a policy of intervention to protect victims. That history explains the system's strong push toward arrest, a push that protects genuine victims, but that also sweeps in people who should never have been arrested at all. What Happens When Both People Say They Were Hit In A Domestic Violence Case? One of the most important and least understood parts of this system arises when both people claim they were the one who was attacked. California law discourages "dual arrests" which involves arresting both parties and instead directs officers to identify the dominant aggressor: not the first aggressor, but the person determined to be the most significant aggressor in the incident. Per California Penal Code Section 836, in determining who the dominant aggressor is, police officers are directed to consider the intent of the law to protect domestic violence victims from continuing abuse, any threats creating fear of physical injury, the history of domestic violence between the parties, and whether either person acted in self-defense. Here is the critical reality: this is a judgment made quickly, at a chaotic scene, often by officers working from incomplete information and it is frequently made wrong. The genuine victim who fought back, the person with the language barrier, the quieter party, the one without a visible injury, any of them can be misidentified as the dominant aggressor and
arrested in place of the actual aggressor. Studies and accounts have repeatedly documented victims being arrested because a rushed, surface-level scene assessment got the dominant- aggressor determination backwards. However, that error is not the end of the story. It is precisely the kind of thing a careful pre- filing reinvestigation is built to expose and correct before the prosecutor ever makes a filing decision.
What Does A Pre-Filing Defense Look Like In A Domestic Violence Case?
This is where the case is won or lost for many people: in the weeks between the arrest and the prosecutor's filing decision. A pre-filing defense is a deliberate effort to give the district attorney every reason not to file and it rests on three pillars. A past domestic violence criminal case we handled at Vijay Law will help you understand the pre-filing process better. A client came to us after being arrested for felony domestic violence under California Penal Code section 273.5. They were a technology professional from China, in the United States on an H-1B visa, with no prior criminal record. My client began arguing with their spouse with whom they shared a two-year old child. The spouse then called the police and alleged that my client had grabbed and struck them with a broom. The spouse had bruises and after both parties were interviewed by the police, my client was arrested. However, the scene the officers worked from was badly incomplete. Both parties primarily spoke Mandarin, spoke limited English, and no interpreter was used. My client's elderly parent had been present in the home and had witnessed part of the incident and the officers never interviewed them. My client said they had actually been the one attacked. None of that made it into the picture and my client was arrested. After my client hired me, we went to work in the window before filing. Using a qualified interpreter, we interviewed the parent who had witnessed the incident and documented a translated statement describing what they saw, an account consistent with my client not having committed a crime. We assembled pre-incident mitigation: a stable job, character references attesting to my client's peaceful reputation, a record of community involvement. Then we arranged for my client to begin individual counseling and an educational course promptly. We compiled all of it into a single package and submitted it to the district attorney's office before a filing decision was made. The case was never filed. For a non-citizen, that is the best possible outcome, no charge, no conviction, nothing to trigger removal, legal status and employment preserved. This case illustrates the three pillars of a successful pre-filing defense: What Can A Lawyer Do To Prevent Domestic Violence Charges From Being Filed? The most powerful thing a defense can do before filing is demonstrate that no crime was committed, or that a far less serious offense occurred than the arrest suggests. For example, that a case booked as a felony is, at most, a misdemeanor. This is the product of a genuine reinvestigation: the defense attorney (or an investigator) locating and interviewing witnesses the police never spoke to, reinterviewing witnesses, obtaining statements from third parties, and, where appropriate, consulting expert witnesses. As the case above shows, an un- interviewed witness or an unaddressed language barrier can completely change the picture but only if someone does the work to surface it.
A critical boundary here, and one you must understand: this reinvestigation is done by your attorney, through proper and lawful channels. You must not do it yourself. Which brings us to an important caution in this article. Why The Arrested Party Should Not Communicate About The Case With The Alleged
Victim After A Domestic Violence Arrest
It is inadvisable to attempt to communicate with the alleged victim – about the domestic violence allegation – if you were the arrested party. Do not have anyone contact them on your behalf. Do not attempt to get them to change their statement, recant, or "drop it." There are two reasons, and both are serious. First, if an emergency protective order or other no-contact order has been issued against you, which is common in domestic violence arrests, contacting the alleged victim is itself a new crime, and it can lead to fresh charges that are far harder to fight than the original charge. Second, and even more seriously, any attempt to persuade or pressure a witness to change or withhold their account can constitute the crime of dissuading a witness under California Penal Code section 136.1 which is a felony in many circumstances, and exactly the kind of conduct that destroys your case and your credibility. Interviewing the alleged victim or other witnesses is something only your attorney or their investigator may do, voluntarily and through proper channels. The line between a lawful defense reinvestigation and a crime is sharp, and it is one of the central reasons you need an attorney rather than trying to fix this yourself.
What Is Pre-Incident Mitigation Evidence?
The second pillar of pre-filing defense in a domestic violence case shows the prosecutor the person behind the police report. Evidence that the arrested person is a stable, peaceful, contributing member of the community with steady employment, character references, community involvement, the absence of any prior record provides the prosecutor a fuller and more accurate picture than the one-sided snapshot that often exists in a police report. It reframes the question from "another domestic violence arrestee" to "a person whose life and record are inconsistent with what is alleged."
What Is Post-Incident Mitigation Evidence?
The third pillar is forward-looking. Voluntarily undertaking counseling, an educational class, or therapy after the incident does not admit that anything criminal occurred and the package makes that explicit. What it does is demonstrate good faith and substantially reduce the likelihood of any future incident, which is exactly what a prosecutor weighing the public interest cares about. Two cases can look identical on paper; the one where the arrested person proactively took constructive steps stands apart from the one where nothing was done. It gives the prosecutor a reason, and the comfort, to decline to file. We routinely refer clients to appropriate classes and counseling for this purpose.
Putting It Together: The Mitigation Package
These three pillars are assembled into a single, organized submission to the district attorney often called a “mitigation package” and presented before a filing decision is made. This package consists of exculpatory evidence and argument that no crime, or a lesser crime, occurred; pre-incident mitigation establishing who the client was before the alleged crime;
and post-incident mitigation showing the constructive steps taken since the alleged crime took place. Delivering this information to the prosecutor with a persuasive argument as to why no criminal case should be filed can make the critical difference in preventing the case from being filed in court. With pre-filing defense work in a domestic violence case, timing is everything. This work has to happen in the window between arrest and the filing decision which is often just a few weeks. Once charges are filed, the opportunity to prevent them is gone, and the case becomes a matter of defense rather than prevention. That is why acting immediately, with counsel, is so important.
Can the Alleged Victim Drop Domestic Violence Charges?
This is one of the most common questions, and the answer surprises people: no, not on their own. Because the decision to file and prosecute belongs to the district attorney and not the alleged victim a spouse or partner who wants the case to end cannot simply "drop the charges." Prosecutors regularly proceed with domestic violence cases even when the named victim asks them not to. That said, an alleged victim's account does matter, and a victim who voluntarily provides a fuller or clarifying account to the defense through your attorney can be an important part of a reinvestigation. The point is not that the victim's wishes are irrelevant; it is that they are channeled through the prosecutor's discretion, which is exactly what a pre-filing defense is designed to influence. What Should You Do After A Domestic Violence Arrest But Before Charges Are Filed? If you have been arrested for domestic violence and no charges have been filed yet, you should understand three things. The filing decision belongs to the prosecutor, not the police and not your accuser which means it can still be influenced. There is a real but closing window to present exculpatory evidence and mitigation before that decision is made. The window does not stay open long. If you are in it, the time to act is now with an attorney who can do this work properly before the prosecutor decides.