10 Truths and Myths about Criminal Domestic Violence in South Carolina
This article was updated in September 2015 to reflect the new “Domestic Violence” law which took effect on June 4, 2015.
There are many myths about criminal prosecution that linger especially when it comes to Domestic Violence (DV) cases in South Carolina. These misconceptions can cause a defendant representing himself or herself to be blindsided by a prosecutor, magistrate, or municipal judge if they aren't aware of all of the pitfalls and procedures. Paying the fine doesn't make a DV charge go away.
It is very important to note that there is now a “new” DV law. If you were arrested for “Criminal Domestic Violence” or "CDV" before June 4, 2015, the “old” law applies. If you were arrested for “Domestic Violence” or "DV" on or after June 4, 2015, the “new” law applies. For a better explanation of the difference in the two laws look here.
If you have been charged with DV you need an experienced dv defense attorney to help you through the process and to make sure you don’t get caught in the quicksand of myths.
Myth - I can’t get jail time for a first offense.
Truth – Even first offense DV under the “old” law carries up to 30 days in Jail. Under the “new” law, third degree DV can carry up to 90 days in jail. Section 16-25-20(D) says, for a first offense of DV 3rd degree "… must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than ninety days, or both.” This means that you can get the fine or the jail time OR BOTH of “not more than ninety days days.” There is no requirement that the Magistrate impose the fine instead of the jail time.
Myth - My spouse can dismiss the charges against me.
Truth – Your spouse, or household member can request that the charges be dismissed, but that doesn’t equate to a dismissal. When a person is charged criminally, the “State” will prosecute the charges and make the decision as to whether a charge will be dismissed or not.
Myth - First Offense DV charges are routinely dismissed.
Truth – First offense DV charges are routinely prosecuted despite the request of the victim or even the evidence that that State has against the defendant. Where there is probable cause to proceed with a case, it is a rarity that the case will be dismissed without judicial intervention.
Myth – I can still carry a gun after a CDV conviction.
Truth – Under federal law, section 18 U.S.C 922(g)(9) prohibits a person from carrying any firearm or ammunition after a conviction for a “misdemeanor crime of domestic violence.” The state law has been modified as well to potentially affect the ability to possess a firearm or ammunition after having been convicted of DV. See 16-25-30.
Myth - Physical injury must occur to be charged with DV.
Truth – The South Carolina statute for domestic violence does not require physical injury. The “offer or attempt” to cause injury is sufficient to sustain a conviction for DV.
Myth - My spouse has to testify to be convicted of DV.
Truth – While testimony of a spouse certainly helps the prosecution, it is not required. Exceptions to the hearsay rule can be used to bring in statements from the victim; 911 recordings of the victim can be used if authenticated to bring in the victim’s story as well as photographs of any injuries taken by the officer or other personnel. Additionally, any statements made by the defendant can be used as well.
Myth - If my spouse doesn't show up for court, the case will be dismissed.
Truth – If the spouse or witness is served with a subpoena he or she must appear or be subject to a bench warrant or contempt charges. If there is not a subpoena, the case may be continued until one is issued or the prosecutor may proceed by using the methods described in the answer above.
Myth - If the officer doesn't show up for court, the case will be dismissed.
Truth – This is going to depend more on the jurisdiction. However, many times, an attorney from the attorney general’s office or an assistant solicitor will be assigned to prosecute domestic violence cases. If the prosecutor is there and the officer is not, likely the case will be continued. Likewise, in cases where the victim is cooperative with the prosecutor, the victim may testify and the testimony of law enforcement might not be required.
Myth – If the police can’t determine who injured who, no one will be arrested.
Truth – Generally, if the police are called, someone is going to be arrested. South Carolina law section 16-25-70(b) previously mandated that law enforcement arrest a person on a domestic violence call where there is probable cause to believe that the person is the primary aggressor. The statute has now been modified to allow the officer discretion; however, most officers take the position that they must still make an arrest to remove one person from the dispute to prevent or minimize potential or further injury.
Myth - They didn't read me my rights when I was arrested, therefore the case has to be dismissed.
Truth – This misconception is one that I hear over and over again. The truth is that “Miranda” rights only apply when there is questioning by law enforcement when the person is “in custody.” Simply asking a few questions at the outset may not be enough to require that Miranda warnings be given. Just because an officer arrests someone doesn't immediately require that the Miranda warnings be given.