Felony Domestic Violence
South Carolina's main felony level domestic violence charge is entitled Criminal Domestic Violence of a High and Aggravated Nature (CDVHAN). Pursuant to S.C. Code § 16-25-65, an individual who commits a violation of the CDV laws is guilty of CDVHAN when:
An assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or
An assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.
Under South Carolina Law almost anything can be a deadly weapon. Courts have held that shovels, BB guns, gasoline, or automobiles are all deadly weapons. Law Enforcement may be quick to charge an individual with felony level domestic violence even in cases with no actual evidence of a deadly weapon. Cases in which there are allegations of choking, or the alleged victim has any marks on their throat, frequently result in CDVHAN charges. Lacerations, substantial bruising, fractures or any substantive medical treatment may also support a CDVHAN charge. All other requirements of the CDV charge remain in place, including the requirement that the alleged victim be a household member.
Criminal Domestic Violence of a High and Aggravated Nature is a felony. It is prosecuted in the Court of General Sessions by the solicitor's office. Anyone convicted of CDVHAN will be sentenced to a period of one to ten years in the South Carolina Department of Corrections. The one year minimum sentence cannot be suspended to a term of probation. Under current Department of Corrections behavior the minimum sentence must be served "day for day." For sentencing purposes CDVHAN is considered a "violent" offense.
In some instances defendants charged with CDVHAN are also charged with other serious criminal offenses. These may included spousal sexual battery,
kidnapping, rape or
criminal sexual conduct. Many times the police will overcharge a defendant in order to attempt to gain a prospective advantage for the Solicitor's office when the case goes to Court.
In addition to CDVHAN 3rd offense Criminal Domestic Violence is also a felony under South Carolina law. This site's Criminal Domestic Violence page has more information about CDV 3rd.
Most CDVHAN charges are brought as a result of a Magistrate signing an arrest warrant. After the warrant is issued it will be served upon the accused (now a defendant) who will be booked into the local jail. Shortly thereafter they will be taken into Bond Court. Those arrested and charged with CDVHAN may be ordered to post a higher cash bond to be released by the Bond Court. They may also have other heightened restrictions placed upon them.
Those who are charged with CDVHAN are entitled to a preliminary hearing if requested within ten days of their Bond Court appearance. At a preliminary hearing the police or solicitor's office must show that more than likely a felony level crime of domestic violence occurred and that more than likely the defendant is the one who committed it. There is a limited opportunity to cross examine the witness who is put forth. Preliminary hearings are conducted by Magistrate judges. If the judge finds probable cause (which is the same standard needed to obtain an arrest warrant) then the case will be ordered as "bound over" to General Sessions. If the judge does not find probable cause it can be dismissed or reduced to a standard CDV charge. The defendant loses the right to their preliminary hearing if they are indicted by the grand jury prior to receiving their hearing.
Before a CDVHAN case can go to trial in General Sessions it must be indicted by the Grand Jury. The Grand Jury convenes in a secret process usually once a month (or before the next term of General Sessions in smaller counties). The Solicitor's office will make a presentation to members of the Grand Jury concerning the allegations. At least 12 of the 18 members must then find probable cause to indict the charges. This is the same standard as applied by the Magistrate when signing the arrest warrant or in the preliminary hearing. The solicitor's office can present cases that have been previously dismissed by the Magistrate at a preliminary hearing. If the grand jury indicts a case after an arrest warrant was issued it is called "true billed.' If the Grand Jury indicts a case with no active arrest warrant, such as in cases where the Magistrate dismissed it at a preliminary hearing, it is called a "direct indictment."
After a CDVHAN case is indicted, the Court of General Sessions will have jurisdiction try the defendant. Defendants have all the rights afforded under the United States and South Carolina Constitutions, including the right to trial by jury, right to remain silent, right to compel witnesses to testify, and the presumption of innocence. It usually takes up to a year, or more, for a CDVHAN case to actually come to trial. During this time the defendant usually appears in Court several times for "appearances" or in smaller counties for "roll call." Defendants must abide by all conditions of their bond while awaiting trial or another resolution of their charges.
Options for Resolving a CDVHAN Charge
After a complete review of the evidence that the State intends on using against you or your loved one in a CDVHAN trial, and after negotiation with the Solicitor's office, it may be possible to have charges resolved in one of the following ways:
Entrance into the pre-trial intervention program (PTI). This will entail community service, a written report, counseling and drug screenings. Successful completion will result in charges being dismissed and the arrest record expunged;
A fully contested jury trial where all allegations and aspects of the charge may be contested;
A negotiated plea arrangement down to misdemeanor CDV or another lesser charge. A CDVHAN charge must be reduced to allow for any possibility of a probation sentence rather than prison.
Most county solicitor's offices have "no drop" policies which will preclude them from dismissing a CDVHAN case even in cases where the alleged victim has recanted their story or requests the charges be dropped.
Call for a Confidential Consultation
If you or a loved one has been charged with a South Carolina felony or any other domestic violence charge please call our office for a no-cost and confidential consultation with James Snell. During your consultation you will receive a full review of your charges and all available legal defenses and an opportunity to ask any questions you may have. Mr. Snell will provide you with an honest assessment of your case and any potential legal strategies that are available for you. He also can assist you in determining if your case is a felony or misdemeanor level. You can call our office at (888) 301-6004.
James Snell is a South Carolina criminal defense attorney representing those charged with felony criminal domestic violence. The following information is designed to provide prospective clients and there family with a general introduction to South Carolina CDVHAN law and procedure. If you are interested in scheduling a consultation about your case please call (888) 301-6004.