Top FAQ For Those Arrested for CDV
After interviewing hundreds of people who have been recently arrested for criminal domestic violence in South Carolina I have put together a list of the top ten questions I most often hear. I recommend that everyone who has themselves or had a loved one arrested for domestic violence learn as much about the law as they can. To start you off the right way, we have answered some of the most common questions concerning domestic violence arrests:
- What constitutes criminal domestic violence in South Carolina?
- Did the police have enough evidence to arrest me?
- At Bond Court the judge told me not to have any contact with my partner. Will anyone be monitoring this? What happens if I violate this order?
- How long does the no contact order last?
- What is involved in getting the Court to lift the no contact order?
- My partner did not want me to be arrested. They are planning on asking for the charge to be dropped. Will this happen?
- What are the chances the Court would find me guilty if I go by myself?
- What will happen to me if the Court finds me guilty?
- I don't think I deserve to be arrested. Can I go talk to the judge and get him to dismiss my case without having to go through the wait and expense of a trial?
- Do I really need to hire a lawyer?
- Do I record for CDV even if I haven't been to court yet?
- What can I do about this record? Can I have it expunged?
- How long does an expungement take?
- What is the difference between being arrested for CDV and convicted of CDV?
- What action is my employer allowed to take against me?
- Do I have to testify against my spouse?
- Does no contact apply if I own the house?
- If I can't afford an attorney what should I do?
- Will CDV make my car insurance rates go up?
- Can I sue my ex for having me arrested?
- Should I worry about my ex suing me for CDV assault?
- What exactly does a CDV defense attorney do to help?
- If I hire you, can you guarantee me a specific result?
When I am hired to represent someone for CDV my job is to help them avoid a criminal conviction in Court. If you would like to meet with me about your case call my office anytime at (888) 301-6004.
1. What constitutes criminal domestic violence in South Carolina?
Criminal Domestic Violence, or CDV, is a unique crime in South Carolina. The law was written to authorize the police to arrest as many potential abusers as possible. No one must actually be hurt in order to violate the law. It is violated by either touching your partner in a way they don't like, trying to touch them in a way they wouldn't like or telling them or acting like you are going to touch them. Because of the way the law is written in covers everything from throwing a pillow and missing, to actually punching or kicking the other person.
2. Did the police have enough evidence to arrest me?
CDV is treated as a "zero tolerance" offence by most South Carolina police agencies. This means that the police are instructed that they must arrest someone whenever there is any indication that a CDV crime occurred. The legal standard to justify an arrest is called probable cause and it usually exists when the police see physical signs of an argument or are told by anyone that there was physical contact, attempted physical contact or the threat of physical contact made. It is important to understand that probable cause is a much lower standard the beyond a reasonable doubt which is what is supposed to be applied by the Court.
3. At Bond Court the judge told me not to have any contact with my partner. Will anyone be monitoring this? What happens if I violate this order?
Many police departments have officers who follow up on CDV arrests to make sure that the defendant is following the no contact order. This may include unannounced visits at the home of the defendant or the alleged victim. It may also include direct questioning of the alleged victim to see if there has been any contact. The police and Court will consider contact to be any communication whether in person, by telephone, text message, e-mail or even through websites. If you are found to have violated the order you can receive up to thirty days in jail automatically (no ability to post bond again) for first offense CDV charges. You also may owe the bondsman the full value of your original bond (which may be $5,000 or more).
4. How long does the no contact order last?
The restriction will last until the conclusion of your case (when you are found either guilty or not guilty by the Court) or until it is specifically modified by the Court.
5. What is involved in getting the Court to lift the no contact order?
There are procedures to have the no contact bond lifted. Typically this is done in cases where the defendant is challenging their arrest. The alleged victim will need to consent and it involves a hearing in front of a judge. Only a judge can modify the no contact provisions of the bond.
6. My partner did not want me to be arrested. They are planning on asking for the charge to be dropped. Will this happen?
There is a state-wide "no drop" police in place for all CDV charges. This means that the police or CDV prosecutor is not allowed to drop charges at the request of the alleged victim. This rule is in place to break the perceived cycle of domestic abuse victims seeking to drop the charges. Unfortunately it applies in all CDV cases, even ones based on no actual physical harm or threat of harm.
7. What are the chances the Court would find me guilty if I go by myself?
Depending on the facts of your case it may not be good. Because of the way South Carolina law is written it can be very easy to technically violate the law. When a judge finds that the law was violated, even a little, this will result in a guilty verdict. Facts such as it was the first time the police were ever called, it was the first time you were ever arrested, no one was hurt or your partner wants the charges dropped are not legal defenses. When you go to Court by yourself unless you are as knowledgable as a criminal defense attorney about the law, rules of evidence and Court procedures you will be at a substantial disadvantage to the police and prosecutors.
8. What will happen to me if the Court finds me guilty?
If you are found guilty of first offense CDV you will face a fine of up to $5,000 and/or up to thirty days in jail. This will also come with a publicly available criminal record and a restriction on your ability to possess or purchase a firearm. You may also not be able to travel into certain countries, and may face the loss of employment or any professional license.
9. I don't think I deserve to be arrested. Can I go talk to the judge and get him to dismiss my case without having to go through the wait and expense of a trial?
South Carolina judges are not allowed to discuss pending CDV cases with either the prosecution or the defense without the other side being present. This rule will prevent the judge from being able to take your phone calls or meet with you before your Court date to discuss your case. South Carolina law also prohibits judges from dismissing CDV cases pending in the Magistrate, Municipal or CDV Court prior to trial. Your only opportunity to directly discuss your case with a judge is often in the context of a trial - where you run the risk of being convicted and immediately sentenced.
10. Do I really need to hire a lawyer?
Neither the police or the Court is allowed to give you legal advice or tell you how to defend yourself from this charge. Hiring a lawyer will provide you access to legal strategies, such as the availability of a jury trial, pre-trial discovery and motions to exclude unreliable evidence. Further a lawyer will be aware of all possible resolutions to your case, such as counseling in lieu of trial, that can help you avoid a criminal conviction and having the CDV on your record. Because CDV is such a serious offense everyone who has been arrested should at least consult with a lawyer to learn all of their options before appearing in Court.
11. Do I have record for CDV even if I haven't been to court yet?
South Carolina has a public arrest record. This means that as soon as you are arrested your case becomes a public record. If you were taken to jail at the time you were arrested (as almost all CDV defendants are) the jail will report your arrest to SLED in Columbia and your pending case will show up on an official background check within just a few days. The fact that you were taken to bond court will also be publically available to anyone who searches for your name on your county's court website. This is true even for cases that haven't gone to court yet. But the record will only say you were arrested- it will not show that you were found guilty or not guilty at that point.
12. What can I do about this record? Can I have it expunged?
Yes. You can qualify to have your CDV arrest removed (called expunged) from your record in one of three ways:
- By being found not-guilty after a trial.
- By participating in a counseling in lieu of trial program (called PTI).
If you were convicted in court and have no other criminal record, you can wait five years and then apply for the expungement.
13. How long does an expungement take?
Your record will be removed from all publically available government records and background searches within 2-6 months (approximate time depending on the backlog at your county court and also SLED in Columbia).
14. What is the difference between being arrested for CDV and convicted of CDV?
An arrest means that you have been officially accused or charged with CDV. At this point that is all it is, an accusation. Legally, the police only need a low standard of evidence called probable cause to charge you and take you to jail. Being arrested is not the same thing as being convicted.
You are only convicted if one of three things happen:
- You go to court and plead guilty.
- You go to court and plead no-contest (it is the same as a guilty plea).
- You have a trial and are found guilty by the court.
You will not be convicted if your case is dismissed, referred to pre-trial intervention (PTI), or if you have a trial and are found not-guilty. If you are not convicted you will qualify for an expungement.
15. What action is my employer allowed to take against me?
Generally speaking most employees in South Carolina are considered at will, meaning that they can be terminated for nearly any reason. So most employees can be displined, suspended, or fired just for being accused of CDV or any other crime. Many employers withold judgment however until the case is over, so the best way to avoid employment problems is to avoid losing your case by being convicted of CDV.
16. Do I have to testify against my spouse?
South Carolina has a spousal privilege law that will protect you from being required to testify against your legal spouse. The privilege only applies to statements or things that you were told. It does not cover events that you personally observed. If you and the judge disagree about whether you are entitled to claim privilege on any specific question you could be helpd in contempt and fined or put in jail yourself. For this reason it is a good idea for you to consult with an attorney before going to court to make sure your rights are protected.
17. Does no contact apply if I own the house?
A no contact order that you received in bond court will prevent you from going around the alleged victim in your case. Most no contact orders don't pertain to a location - just the other person. If your partner is staying in a home that you own or you are renting you will not be allowed to return (other than to pick up belongings when they are not home). If your partner won't leave your home and you want them out you will have to file for an eviction.
18. If I can't afford an attorney what should I do?
CDV is a very serious criminal charge that can have lifelong consequences for anyone who is convicted in court. The fine, even for a first offense, can be higher than what an experienced CDV defense attorney would charge. So we recommend that anyone charged make every effort to adjust their budget to afford an attorney. If you cannot afford an attorney, and meet court indecency thresh-hold, you will qualify for a public defender.
19. Will CDV make my car insurance rates go up?
Many first and second offense CDV charges in South Carolina are issued on blue traffic ticket forms. Although your CDV ticket might look an awful lot like a speeding ticket, its not a traffic offense. So your insurance rates will not go up and no points will be assessed against your license. Keep in mind that while the CDV ticket might look like a regular traffic ticket it is actually much, much more serious.
20. Can I sue my ex for having me arrested?
At the conclusion of your case if you were succesful with your defense, yes you can sue your ex for making a false CDV allegation against you. But you will likely spend more in legal fees for that case than you did on your original CDV defense. And even if that case is succesful, and you receive a judgment in your favor, you are not guaranteed that you will ever collect a dime. In fact most people in South Carolina are judgment proof, meaning that you can never collect lawsuit winnings against them.
21. Should I worry about my ex suing me for CDV assault?
Most people shouldn't worry about being sued due to the practical limitations of these cases (see the answer above). But if you are truely wealthy then you might have some concerns, especially if you weren't succesful with your CDV case and were convicted in Court.
22. What exactly does a CDV defense attorney do to help?
Our job is to assist clients in avoiding a conviction for criminal domestic violence. We do this by first understanding the law that will apply to your case. This includes not only CDV law, but also criminal law in general, court procedure, and rules of evidence. We are also experienced with negotiating with police and professional domestic violence prosecutors. This enables us to either negotiate out of court resolutions for clients (such as reduction in charges or entrance into a diversion program), or challenge the case in court seeking a not-guilty verdict for our client.
23. If I hire you, can you guarantee me a specific result?
Ethically no lawyer can ever make you any promises about how any criminal case will be resolved. Lawyers in South Carolina are also specifically ethically prohibited against making guarantees in any criminal defense matter. What we can promise is that we will do our best work to see that your case is favorably resolved.
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Criminal Defense Attorney James Snell of Lexington, South Carolina, represents clients charged with all levels of CDV. Initial appointments in his office are provided on a confidential and no-cost basis. To schedule your appointment call (888) 302-5840. Appointments are held at 316 South Lake Drive in downtown Lexington.