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Five Popular Myths About CDV Cases

Five Popular Myths About CDV Cases

1. If your partner simply asks to have the charge dismissed it will go away.

There is a "no drop" policy in place that applies to domestic violence cases. This rule prevents the police or prosecutor's office from simply dismissing a case at the request of the alleged victim. It is in place to prevent seriously battered people from being pressured by their abuser into dropping the charges. Unfortunately it applies to everyone, even in cases of false or unfair arrests. The "no drop" policy does not prevent a case from being won in Court, or from being favorably resolved in other ways. It does require however that whatever the resolution is that is occurs at the Courthouse as part of formal legal proceedings.

2. Someone has to have been hurt in order to be convicted of CDV.

The South Carolina CDV law uses the term physical harm. This however doesn't actually mean someone was hurt. Our Courts have interpreted this language to include situations where there was simply an unwanted touching, an attempted unwanted touching or a threat of an unwanted touching. Accordingly no one has to be hurt, and there is no requirement that what happened actually could have even possibly hurt someone. The law is the same whether or not someone is punched and given a black eye, or simply had a pillow thrown (and missed).

3. If you have never been in trouble before the judge won't find you guilty.

A lack of a prior police record is not evidence one way or the other to show if someone is or is not guilty of CDV. Plenty of people with no police records are arrested, and convicted of CDV. The lack of a prior police record may be considered by the judge if you are convicted of CDV, and then only to determine whether or not you will go to jail or have another type of sentence. A clear criminal history will not automatically protect you from a false or unfair CDV conviction.

4. If you weren't read your Miranda rights your case will be dismissed.

There is no requirement that Miranda rights be read to someone as part of a misdemeanor or felony criminal domestic violence arrest. Miranda only has to do with whether or not answers to police questions can be repeated in Court. Many times it will not make much of a difference in Court whether or not Miranda was provided. You should also know that if there is a disagreement between someone who was arrested and the police about whether or not Miranda was given, the Court will have to decide who is telling the truth. There is no rule that just because someone in Court says they were never read Miranda that the judge has to believe them.

5. You can't go to jail if it is your first CDV.

The penalty for a first offense misdemeanor criminal domestic violence charge can include up to thirty days in the county jail. If someone has no prior record it might cause the judge to consider a sentence suspended upon payment of a fine ($5,000+). A first offense felony domestic violence ("DVHAN") charge carries a minimum sentence of one year in prison. Anyone charged with any CDV offense has some risk of getting sentenced to jail.


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