With the South Carolina Domestic Violence Reform Act of 2015 the legislature created a new tiered system of domestic violence charges. Gone are the simple days of CDV 1st, and in its place are three new charges: DV 1st, DV 2nd, and DV 3rd degree. The 1st, 2nd, or 3rd, don’t refer to prior convictions. Instead they refer to part of the allegation triggering an enhancement. What we are now seeing is many clients being overcharged with DV 2nd degree.
Why is this significant? DV 2nd degree is a very serious criminal charge. It carries a penalty of up to three years in prison (even for those with no prior criminal record and with no actual physical injury). It may be considered a felony for background check purposes. It also is prosecuted by the Solicitor’s office in General Sessions. This is the same court that handles major felonies, and DV 2nd defendants will share appearance dates with others charged with offenses such as murder, armed robbery, drug trafficking, and child molestation.
Why are people being overcharged? Area law enforcement has been instructed to make DV 2nd arrests whenever possible, even if a lesser charge might be a better fit. If you’ve been charged with DV 2nd degree you should consult with an attorney as soon as possible after your arrest. DV 2nd.
Common allegations where DV 2nd may be overcharged:
- Children in the home (even though they were not a part of any argument, and may not have even been aware an argument took place).
- Cell phone involvement (for example, grabbing the phone out of someone’s hands to look for text messages even though no one was prevented from contacting law enforcement)
- False or surprise pregnancy claim (where the police are told that the alleged victim is pregnant, although this may be unknown to anyone else and\or false).
- False or exaggerated choking claim (when the police think that someone was choked when that didn’t happen)
When these circumstances are present and a DV 2nd charge is made, the defendant is at risk of a maximum sentence 36 times as severe as under the old CDV 1st law. For this reason it is imperative that an attorney is contact as soon as possible after an arrest. Hiring a defense attorney, such as James Snell will provide access to the legal procedures and defense strategies that can help avoid a false or unfair conviction.
You should also know that since a DV 2nd charge is in General Sessions, if you are charged with a no-contact order violation (such as by talking on the phone or texting), you are subject to be held in the county jail until the end of your charge. That may take months (or longer), especially if you intend on pleading not-guilty.
James R. Snell, Jr., operates the website CDVLawyer.com, and provides domestic violence defense services through The Law Office of James R. Snell, Jr., LLC. He is also the author of Challenging CDV. This book, now in its 2nd edition, was written to tell you what you need to know to obtain success with your case. Request your free copy today. Call us at 1-888-302-5840 when you are ready to get started with your case.