Can my spouse dismiss a Criminal Domestic Violence / CDV charge against me?
This article was updated to reflect the new "domestic violence" law passed on June 4, 2015.
Argument takes place, spouse gets mad and cops are called. “He threatened to hit me!” “She slapped me!” Just as planned, the spouse, or possibly not as planned, sometimes both spouses are taken to jail for Domestic Violence or "DV". This scenario happens all too often ending up with one or both of the spouses requesting the charges be dismissed. The downside is that they soon find out that it’s just not that easy.
What is CDV
In South Carolina, Domestic Violence has a broad definition. Section 16-25-20 defines criminal domestic violence.
(A) It is unlawful to:
(1) cause physical harm or injury to a person's own household member; or
(2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
From the statutory definition, one can see that actual injury is not required to be convicted of DV. An accused must only “offer or attempt” injury with the “present ability” to carry out the threat. Prior to 2015, Section 16-25-70 required law enforcement to arrest if there are “physical manifestations of injury”. That mandatory requirement was eliminated in the 2015 amendment, but is still very much in practice.
Once an arrest is made, oftentimes people think that they can go and request the charges be dismissed. Unfortunately I usually doesn’t work this way. The “State” takes over the prosecution and generally an attorney from either the Attorney General’s office or the Solicitor’s office will be assigned to prosecute the case. Because of the heightened fears of spousal abuse, many times domestic violence cases will be prosecuted against the wishes of the victim.
A conviction for DV can stay on your record forever depending on your circumstance and can have dire consequences related to possessing a firearm. Unfortunately, the best way to defend against a DV conviction is to seek the advice of a competent attorney who handles DV cases
on a regular basis to ensure your best chance at a dismissal or an acquittal.