How Does Georgia Define Domestic Violence? Is There A Specific Criteria?
Georgia has something called the Domestic Violence Act (codified at O.C.G.A. § 19-13-1 et seq.) It basically states that a battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass that is committed to a family member or member of the same household, or in the presence of children, is what they call a Family Violence Act violation.
I’ve Just Been Arrested On Charges Related To Domestic Violence. What Exactly Am I Being Charged With?
You are being charged with what would be normal crimes, such as battery, simple battery, assault, simple assault, or damage to property, but with the added alleged fact that it occurred to a family member or a member of your household or in the presence of minor children.
When An Arrest Has been Made In An Alleged Domestic Violence Situation, What Generally Happens In Those First Few Hours And Days Following The Arrest To The Charged Individual?
Usually, the charged person will be removed from the household and told they cannot return. They will be formally advised of their charges such as battery, assault, or trespass and those charges will be sent to the District Attorney or solicitor’s office to follow up on, depending on which charges are actually pursued. If they are just misdemeanor charges such as simple assault or battery, they will be sent to the state court. If there are felony charges, they will normally be presented to a grand jury and handled in the superior court.
The alleged victim oftentimes will pursue a temporary protective order (“TPO”) under the Domestic Violence Act. They are allowed to ask a superior court judge to issue an order that tells the alleged perpetrator to stay away from them, their household, and their place of employment. That order can also make provisions for staying away from children and it can also require that some kind of temporary support be paid to family members. It can award temporary exclusive possession of a home or a house to the alleged victim.
It is important to consult with an attorney as soon as these types of charges occur. They can have ramifications beyond normal criminal sentencing. For example, if you are convicted of any crime as a result of being charged with a Domestic Violence Act violation, you will then be subject to the Lautenberg Amendment, which will thereafter prohibit you from owning or being around firearms and ammunition. The Lautenberg Amendment is a widely known amendment to the federal Gun Control Act that prohibits the possession of firearms by individuals who have been convicted of domestic violence misdemeanors.
For military members, exposure to firearms is a prerequisite to your job. If you lose that right, you are likely to lose your job. A lot of people do not realize that if you start with domestic violence charges and you end up pleading to some lesser offense such as disorderly conduct, you will still be subject to the Lautenberg Amendment. The mere fact that you got pled down to a much lower offense that is not assault or battery does not matter. This is all the more reason why it is important to speak with an attorney and have these situations handled correctly.
Is An Order Of Protection Or Restraining Order Automatically Put Into Place In Georgia When Someone Has Been Charged With Domestic Violence Related Charges?
Restraining orders are not automatic. The alleged victim has to go and apply for one, which is done through the superior court. They have to fill out a petition for a protective order, meet with a superior court judge, and get one issued. The judge will sign an initial protective order, called an ex-parte order, and that order, in addition to restricting the alleged offender’s contact with the alleged victim(s), will notice a date for a hearing to be conducted so that the accused may have an opportunity to be heard and present evidence as to why that protective order should not remain in place.
If The Alleged Victim Changes His Or Her Story After Charges Have Been Filed Or Doesn’t Want Charges Pressed Against Me In A Domestic Violence Related Case In Georgia, Does That Mean That Charges Will Be Dropped?
The decision as to whether to pursue charges and prosecute you is up to the prosecution (the Solicitor for State Court, where misdemeanors are addressed, or the D.A. for Superior Court, where felonies are addressed). It is not up to the victim or the alleged victim. If an alleged victim decides they do not want charges to go forward, changes their story, or refuses to cooperate with the Solicitor or D.A., that will help your case, but it does not mean that the State cannot continue to prosecute you. An attorney can be very helpful in presenting evidence to the prosecutor (Solicitor or D.A.) to convince them as to why they should not continue to pursue charges when something of this sort occurs.
What Strategies Can Be Used To Defend Clients In Domestic Violence Cases? Is Self-Defense A Viable Defense?
The number one strategy is to get a good defense attorney who can help steer your case to the correct route and bring it to a good resolution. Your defense attorney might advise you to enter into counseling, anger management, or family violence counseling. A lot of times, doing so proactively will help bring your case to a more successful resolution. A good attorney will give you advice on what to do and not to do, as far as communications and contact with the alleged victim or victims. An attorney will usually know the solicitor or district attorney’s office and be able to engage in meaningful conversation with them about what a good resolution of the case for everyone involved might be. Self-defense is a legal defense in some circumstances. However, I always advise clients never to engage in physical contact or acts of violence, if at all avoidable. Walking away from a situation is always better than having to defend yourself against criminal charges down the road.
What Are Potential Sentences In Domestic Violence Related Convictions In Georgia? Are There Any Alternative Programs Or Sentencing?
The possible sentences for domestic violence crimes are all the same possible sentences for the underlying alleged criminal acts, be it simple (misdemeanor) battery or simple assault, which carry a one-year maximum, or a more serious offenses such as aggravated battery, which can lead to a much higher sentence (such as a maximum sentence of 20 years for aggravated battery). The fact that it is a family violence act violation does not automatically enhance the sentence, but it does have the ramifications of the Lautenberg Amendment and the possibility of a protective order. If a protective order is issued, violation of that protective order is also punishable separately.
There are alternative ways to address the situation. As with any criminal sentence, the judge has discretion to impose less or more severe consequences, depending upon the facts and circumstances. Even with the worst case of a conviction, you can seek to keep an all probation sentence with no jail time. You can also sometimes make use of what we call the First Offender Act, which provides that if you complete all the terms of the sentence without getting into any more trouble, the conviction will not remain on your record.
For more information on Domestic Violence, a free case evaluation is your next best step. Get the information and legal answers you are seeking by calling (912) 662-5555 today.
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