A common issue in defending CDV charges is assisting clients who have been charged with either a 2nd or 3rd offense Criminal Domestic Violence charge. This posting discusses a legal challenge to the court's use of a prior conviction to enhance a new CDV charge. Although legally a CDV 2nd or 3rd is the same as a 1st offense as far as what the government must prove, there is a requirement that a defendant have one or more prior convictions in a ten year period of time.
The difference between a 1st, 2nd or 3rd offense CDV can be substantial though in terms of penalty.
- CDV 1st can result in up to thirty days in jail
- CDV 2nd can result in 30 days to one year in prison
- CDV 3rd can result in one year to five years in prison
And the minimum sentences for a 2nd or 3rd offense are mandatory, meaning that anyone convicted of a 2nd or 3rd offense will be required to be locked up by the judge. No exceptions.
The United States Supreme Court and the South Carolina Court of Appeals have held that not all convictions can be used to enhance a subsequent conviction. The main exceptions to convictions that cannot be used for enhancement are situations where:
1) The Defendant reported to court without an attorney; and
2) The Defendant was taken into custody (meaning sent to jail or at least handcuffed) for some time after being convicted.
If both of these apply to a prior CDV conviction then it cannot be used to enhance a subsequent charge. This can result in a CDV 2nd being reduced to a 1st, or a 3rd being reduced to a 2nd or 1st. Reducing a CDV charge in this manner can make a huge difference in the outcome.
Most convictions for CDV 1st occur when defendant report to court without an attorney, and are subsequently pressured into pleading guilty. Many times these defendants end up being sentenced to jail by the court, either immediately after pleading guilty or by failing to timely remit any court ordered fine (which can be up to $5,250). As a result there are many CDV defendants who are facing an enhanced CDV charge that could be challenged based on this legal issue.
F.A.Q. About Enhanced Penalties
Won't the prosecutor or police look into my record to see if the prior conviction should count?
No. Under South Carolina law the defendant is responsible for conducting this review and raising the issue to the court if necessary. Defendant's ensure that this review is properly conducted by retaining a lawyer, such as those with the Law Office of James R. Snell, Jr., LLC.
Won't the judge look into my record to see if the prior conviction should count?
Not automatically. The judge will hold a hearing on this issue upon request by your defense attorney. At this hearing witnesses may be called (such a court employee) and prior court records may be offered into evidence. If the judge is then satisfied that the prior conviction shouldn't be considered as a matter of law it won't be counted against you.
Since my last CDV conviction I have turned my life around. I no longer drink alcohol, I go to church, have a loving wife, etc. Will this help?
Yes. The fact that you are doing better will absolutely help your case. It is not however a legal reason for the Court to reduce a CDV charge, but it may be a reason that the prosecutor's office would negotiate a reduction or lesser sentence for you.
How do you get the information to determine if a prior CDV should count?
The information we use to asses a client's prior record normally isn't provided by the prosecutor as part of standard pre-trial discovery. Instead we have a staff member physically go to the courthouse to search for your prior case records, or submit a request pursuant to the South Carolina Freedom of Information Act.
Contact Us Today for a Case Review
Do you have questions concerning your CDV case? If so, contact us for a free consultation. You are also welcome to request a free copy of James R. Snell, Jr.'s book, "Challenging CDV", which contains important information about South Carolina domestic violence prosecutions and defense. Click here to request your copy today.