Domestic violence is a serious charge. It can be charged as either a Felony or a Misdameanor, meaning it is what is commonly referred to as a wobbler.
If you have been arrested you need an experienced Attorney to help you fight your case. As a former probation officer, deputy district attrorney and a probation officer with more than 13 years of experience I can help you.
WHAT YOU SHOULD DO
1. Have no contact with the alleged victim there will often be emergency restraining orders in affect and if you violate those restraining orders there could be serious consequences.
2. Be careful what you say on the phone. Often because the alleged victim is not subject to the restraining order. Police and or the District Attorney will have the alleged victim do what is called a pretext phone call. This means the alleged victim will call you and attempt to illicit inciminating responses from you which will be recorded and used against you in court. These pretext must be done before initiation of criminal proceedings, and are usually done befor arrest.
3. Raealize if you have children with alleged victim you could have two different courts that you are attending at the same time. Familiy court and Criminal Court.
WHAT IS THE LAW ON FALSE IMPRISONMENT? WHY AM I BEING CHARGED WITH THAT? WHAT ARE THE DEFENSES?
In other articles I go over the law of DOMESTIC VIOLENCE SO I WILL DISCUSS THE LAW OF FALSE IMPRISONMENT AND SOME OF THE DEFENSES BELOW.
1. THE LEGAL DEFINITION OF “FALSE IMPRISONMENT“
Penal Code 236 is again a wobbler which means that it can be charged as either a Felony or a Misdameanor.
in order to convict for a Misdameanor False Imprisonment the prosecutor must prove the following facts or (elements of a crime)
That you intentionally restrained, confined, or detained another person, compelling him or her to stay or go somewhere, and
2. The other person did not consent
In order to be convict you of a Felony false imprisonment, the prosecutor must additionally prove that you accomplished the restraint, confinement or detainment, by means of
violence
menace
fraud
deceit
Force is an element of of both misdameanor and felony false imprisonment. The offense becomes a felony only when the force used is greater than reasonably necessary to effect the restraint.
The violation of anothers personal liberty can consist of any type of confinement in the broadest sense of that term. Examples inlude detaining a person in
a room
on the street
a moving vehicle or
even forcing a person to move from one place to another
As you can see there could be some crossover with domestic violence laws and allegations
the violence element above relates to the violence to keep someone agains there will
example
After fighting with Adam, Laurie turns to go. Adam grabs Lauries Arm and demands she stay
This could be domestic violence, but is probably not false imprisonment
Some defenses to False Imprisonment
1. Self Defense
Californias self defense laws allow a person to use reasoanble force to defend yourself or another if you or another person is about to suffer imminent bodily harm.
2. Duress
If you only falsely imprison a person because someoene else has threatened you in a violent or menacing manner. the california legal defense of duress may excuse your conduct.
this might be the case if, for example, Chris threatens to shoot you if you don’t restrain Julie while he robs her apartment. Under this type of scenerio, the legal defense of duress could absolve you of the crime.
3. Consent
It bears reapeating that if the alleged victim consents to the detention, the restraint or confinement, you are not guilty of violating penal code section 236 California’s false imprisonment law.
There are several other defenses to the crime of false imprisonment. You can call us for an evaluation of your case.
