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Determining the CDV Primary Aggressor

Determining the CDV Primary Aggressor

-A common allegation in a CDV case is one where both sides have alleged to the police that they were assaulted by the other. When this occurs the police are instructed to comply with S.C. Code § 16-25-70.

Under this provision in the CDV law the police must make a determination as to which side was the "primary aggressor." Once this determination is made the law instructs that the police should not arrest the other party.

In considering which side is the primary aggressor the police are to consider the following factors:

  1. Prior complaints of domestic violence;
  2. The relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
  3. The likelihood of future injury to each person;
  4. Whether one of the persons acted in self-defense; and
  5. Household member accounts regarding the history of domestic violence.

Since CDV is one of the most serious offenses people can be charged with in South Carolina without a full police investigation, it should come as no surprise that when police are confronted with allegations of mutual CDV that they aren't always careful when conducted the required analysis.

Sometimes a case where both sides allege being victim of a CDV the police will only arrest one (and not always the man). Other times the police may arrest both sides, however when this occurs the law requires that the police include in their report that they "attempted to determine which party was the primary aggressor was unable to make a determination based upon the evidence available at the time of the arrest."

At the Law Office of James R. Snell, Jr., LLC we represent men and woman throughout South Carolina who have found themselves charged with any criminal domestic violence charge. Some of the common techniques we employ when confronted with a case where the police either arrested both parties, or our client asserts that they themselves were the true victim, include:

  • Obtaining any relevant medical records, and subpoenaing medical staff to testify regarding any injuries
  • Assisting our clients in obtaining trial exhibit photographic evidence of any bruises, marks or other injuries
  • Requesting the Court conduct a "primary aggressor hearing" to dismiss our client's charges. This hearing, if provided by the Court, will be conducted pre-trial.
  • Evaluating whether or not any stand your ground or self defense arguments are available
  • Presenting to the Court the shortcomings made in the police investigation
  • Interviewing any available witnesses and subpoenaing witnesses as necessary to Court
  • Researching prior complaints of domestic violence made by the alleged victim

This is only a partial list of the defense services that may be provided. If you are interested in scheduling an appointment to meet with a Lexington CDV Defense Lawyer about your case please contact us at (803) 359-3301. We provide free consultations in our office. We accept cases throughout South Carolina including in Greenville, Newberry, Richland, Charleston, and Orangeburg Counties.


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