Many CDV arrests are made as the result of false or unfair accusations brought by an angry partner. Just being arrested can create a significant hardship including:
- Spending at least several hours in handcuffs, in the back of a police car and being booked through the local jail
- Costs and expenses of hiring a bail bondsman
- Legal defense fees
- Possible immediate termination of employment
- Loss of contact with minor children
- An inability to return home due to no contact restrictions
- Inclusion on mug shot websites
These are all hardships that can result just by being arrested, and they do not include the penalties that would accompany a conviction to include possible jail time or a fine of over $5,000.
Many of our CDV defense clients are very interested in what can be done against the person who made a false or exaggerated report. This article answers many common questions that I've received. If you or a loved one is currently facing any South Carolina criminal domestic violence charge, you are invited to contact my office for a free consultation at 1-888-301-6004.
Can I file a lawsuit against the person who had me arrested?
Yes. You can file a lawsuit for money damages in certain circumstances. A lawsuit is based on a specific legal claim called a "cause of action." Possible causes of action include abuse of process, malicious prosecution, defamation, intentional infliction of emotional distress, assault, or battery.
You can file a lawsuit in Magistrate Court or Circuit Court. Lawsuits in Magistrate Court are subject to a limit as to how much the court can award of $7,500. There is no such limit in Circuit Court.
For most causes of action relating to a CDV arrest you must first have the case resolved in your favor. This would mean having the case dismissed voluntarily by the prosecutor, or having a trial and being found not-guilty.
Just because you can file a lawsuit doesn't mean that you should. In South Carolina if you file a lawsuit and win your case the court will not order the other person to actually pay you any money. You will receive a judgement, which only entitles you to collect from the person if they have certain assets. It is a difficult process, and many people are "judgement proof" which means that it is impossible to ever collect lawsuit winnings from them.
Always consult with a lawyer prior to filing any lawsuits related to your CDV arrest.
Is there something that my CDV defense attorney can file to automatically have my partner arrested?
No. There is nothing that a lawyer can file with the court to automatically have someone else arrested. Criminal charges (like CDV) are brought by the State, not by a private person. If your partner has committed a crime this would need to be reported to law enforcement and then they would have to be the one to make an arrest.
I do not recommend that you contact the police after your CDV arrest to tell your side of the story. Anything you say can and may be used against you. While you may be allowed to file a police report, the odds of it hurting your case are significantly higher than it doing anything to help your case or to result in your partner being arrested.
What about suits against law enforcement?
Police departments are not legally responsible for someone's legal bills as a result of a criminal charge that was ultimately dismissed. Police can be responsible in certain circumstances though. These would involve extreme and provable violations of someone's rights. Examples might include seriously physically beating someone while in detention or intentionally falsifying evidence. Just because the police didn't do a "CSI" style investigation, doesn't mean that you can successfully sue them.
Can I use a false arrest in Family Court?
Yes. Family Court judges for the most part all know that there are many false and unfair allegations of domestic violence. That is why having someone arrested for CDV by itself is not a short cut to success with a divorce or custody case.
If you have been successful with your defense on a CDV case, and it was resolved fully in your favor, this is something that can be brought up in a subsequent Family Court hearing. If the judge believes that your partner lied, or tried to manipulate the system, they will take this into account in determining what type of decision would be fair to you now.
Can I sue a mug shot website for defamation?
Maybe. A major ongoing problem for people arrested for domestic violence in South Carolina is having their name and photograph featured on mug shot type websites. These sites get their information from public records, and then publish them material on the Internet. That way whenever someone searches for your name your arrest information may come up. This is even if you were later found not guilty or otherwise had your case dismissed.
Under the 1st Amendment to the U.S. Constitution people do have a very broad right to publish truthful information about others. But sometimes these mug shot type sites still may operate in an improper fashion, and this could technically serve as the basis for a lawsuit.
You may have some difficulty in being successful with this type of lawsuit however. It may be difficult or impossible to ever figure out who the owner of the site actually is. Even then they could be located in a foreign country, outside the jurisdiction of American courts. If they are local you may find that they are judgement proof.
My general advice is that you do not ever pay a mug shot site to remove your information. This will only encourage the business model, and may result in your name being put on more websites since they know now that you will pay.
Can I keep the property of someone who had me falsely arrested for CDV?
Many times a CDV arrest is the end of a long relationship. While the people may not necessarily be married, it is not unusual for each to have property belonging to the other. This can really be anything that was left in another's house or car, such as computers, clothes, pictures, or music.
If you are your partner were married the Family Court will have the legal authority to divide the personal property items. You are allowed to keep whatever you choose to, as long as the Family Court doesn't order you to return it.
If you and your partner were not married, the Family Court does not have any legal authority over you. If your former partner seeks the return of their personal items and you disagree, they can go to court and file a special type of lawsuit called a claim and delivery action.
You should know that if you wrongfully keep someone else's property you could potentially be sued yourself for conversion. It also may cause more problems than it is worth, such as by having your former partner or people on their behalf try to contact you at home or at work.
My advice is that if you have anything that does not belong to you that you should try to return it. This is even if you were wrongly arrested. Be mindful of any no contact bond provisions when determining how to return or exchange property after a CDV arrest.