Arrest is Automatic in Domestic Violence Cases
New York dramatically changed its criminal law procedures when it implemented a “mandatory arrest” law for cases involving domestic violence. If the police are called for a potential domestic violence incident and they have probable cause to believe you committed an act of domestic violence, they are required to arrest you. Even if the alleged victim doesn’t want to press charges, new police training puts much less emphasis on the victim’s wishes.
This can make it more complicated to defend against domestic violence charges because, unlike some other criminal charges, the case can still proceed, even if the alleged victim changes his or her mind or the parties resolve the issue before the police arrive at the scene.
Why Was this Law Put into Place?
This law came about through good intentions. Unfortunately, many victims of domestic violence will change their story out of fear or love, because they feel trapped economically, or for a number of other reasons specific to their situation. Since a number of domestic violence cases end in serious injury or death, even after the victim has retracted their claims of abuse, New York no longer relies on the victim before pressing charges and making an arrest.
Sadly, by automatically arresting alleged abusers in an attempt to protect their victims, New York state has created a complicated problem for criminal defendants. If you are involved in or accused of being involved in a domestic incident, you could be automatically arrested, even if the victim has recanted their claims of abuse. Even if you and the other person were both participating in the incident, if the police believe you were the “primary” or main aggressor, you may be the only person arrested. An arrest could you leave you with a criminal record that could impact your future.
What Will the Police Do?
If the police are called in an emergency, they are required to come and investigate, whether the emergency is related to domestic violence or any other incident. Once on the scene, police must begin to investigate to see if there is enough evidence to show that you committed a crime by harming or threatening the alleged victim. If police gather enough of this evidence to have probable cause to believe, or reasonable belief, that you committed an act of domestic violence and are required to arrest you under New York law.
Police typically begin gathering this evidence by questioning the alleged victim. They will want to know what happened, in the victim’s perspective, where you are, whether any weapons were used, and where they may be, if there are any injuries, and if any children are present in the home. The police will typically take photos of any injury or property damage, confiscate any weapons, and make copies of any messages that threaten the victim, apologize for the incident, or otherwise discuss the incident.
When will Police have Probable Cause?
As noted above, police must make an arrest if there is probable cause that domestic violence has occurred. You can’t be charged with a domestic violence offense simply for assaulting another person. Crimes under the domestic violence statute fall under a very limited scope. The first thing police must determine is whether the alleged victim was a member of your family or household. A domestic violence victim can only be a spouse, former spouse, person you share a child with, person you share blood relationship with, or current or former intimate partner. If you do not have one of these relationships with the alleged victim, the incident cannot be domestic violence.
Your relationship with the victim is not the only thing that the state will try to prove is that you committed a crime that falls under the domestic violence statute. Police must believe that a criminal offense occurred or that you violated an order of protection by either failing to stay away from the victim or that you committed a family offense crime that was prohibited in the order.
What if We Were Both Involved?
The mandatory arrest law has one possible exception: if you and the alleged victim were both involved in the incident. If the crime is a misdemeanor, police may choose to arrest only one of the parties involved in the domestic incident. Police will investigate and determine whether you or the other party was “primary aggressor,” or the party most responsible for the domestic incident. However, if both parties have committed felony crimes, this exception does not apply. Police will be required to arrest both you and the other party.
What Happens after Arrest?
After police arrest you, they will bring you to the police precinct for booking, and you will appear before the court for arraignment shortly after. At the arraignment, a judge will review the information surrounding your arrest and the charges. Based upon your alleged crimes, your criminal history, and the likelihood that you would appear at trial, the judge will make a determination as to your possible bail. The judge may choose to release you on your own recognizance, to set a bail that you must pay in order to be released, or to refuse to set bail. In the final scenario, you could be placed in jail to await a hearing on your charges.
As with any criminal charge, there are other consequences beyond appearing for trial and the possible sentence you could receive. The ramifications can have impact your future education, career, and even your relationships. It makes this well-intentioned law very risky for defendants. It is why I always recommend to my clients that they are cautious if they find themselves in a domestic incident and help them protect their interests if they find themselves arrested as a result.