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Can my case be dismissed? Order of Protection vs. Domestic Assault

This criminal defense post is to clarify a common misconception about Domestic Violence in Tennessee courts, specifically the ability of an alleged victim to dismiss the case. There are generally two ways someone can be brought to court for a domestic violence-related offense: 

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(1) Orders of Protection.

A victim of domestic violence can file a Petition for Order of Protection in civil court. This is not a criminal case. The alleged victim (Petitioner) is suing the alleged perpetrator (Respondent) and claiming he or she needs protection due to domestic abuse, stalking, or sexual assault. If at the time of the hearing the Petitioner decides he or she wants to dismiss the case, then the Petition and any Ex parte Order of Protection will be dismissed. If the petitioner goes forward and is successful after a hearing, an Order of Protection will be issued for up to one (1) year and the Respondent will be required to have no communication, either directly or indirectly, with the Petitioner.

Potential consequencesIn addition to no-contact, the Respondent may be ordered to vacate the home, provide spousal or child support, and will be unable to own or possess a firearm. Proof from the proceedings can be used against either party in further criminal matters. Having an Order of Protection against you has serious consequences that could affect your job, child custody, and other matters. It is important to have an experienced attorney represent you during these proceedings.

(2) Criminal charges.

If a criminal case is brought, then the State of Tennessee is in charge of prosecuting the case. The alleged victim does not have the ability to dismiss the case in a criminal action. Even if the alleged victim regrets calling the police, and wishes that the charge would be dropped, he or she can only relay this information to the prosecutor who is not required to follow the victim's wishes. Alleged victims who refuse to come to court may be arrested and held under a material witness bond, compelling them to be present and testify. In addition to preparing to win your case at a hearing, an experienced defense attorney may be able to resolve your case by agreement through negotations with the prosecutor. You may be eligible for Judicial Diversion (your plea of guilty is taken under advisement and your case is dismissed upon successful completion of probation), or your case may ultimately be Retired (the State elects not to prosecute your case for a specific period of time and under specific conditions) if the alleged victim does not want to go forward.

Potential Consequences: Domestic Assault is a Class A Misdemeanor punishable by up to 11 months and 29 days in jail. There is also the possibility of fines, court costs, domestic violence classes, and probation. If you are not a U.S. citizen, a Domestic Assault conviction is a deportable offense that could result in immigration removal (deportation) proceedings. Additionally, be careful of Judicial Diversion pleas as a noncitizen: Judicial Diversion for Non-Citizens. Hire an experienced attorney who can properly advise you of all the potential consequences of a conviction and fight for you at all stages of your defense.

Click below for general criminal defense information and to learn more about theCriminal Defense Attorneys at Saenz & Maniatis, PLLC.

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